Aunt Pep Strikes Again

Dear Aunt Pep,

The mid-semester exams have dawned on us. The Corps, Admin and Property clash has sent many into a spin. What’s your advice for people doing two or, God forbid, all three of these subjects?

Best,

Rightfully Frazzled

Aunt Pep

Dear Rightfully Frazzled,

This is a hairy situation for even the calmest and most preemptively prepared of law students. First of all, give yourself total license to whinge and moan endlessly to whoever is in earshot. Then get down and plan it all out: Break everything you have to do up into manageable bite-size pieces and then figure out how to space them out and when you need to get each of them done by. If it’s too late for this, you have credit for ten Aunt Pep-approved toddler tantrums . But after you’re done with those, pull yourself together and get back to the grind. Make a template or roadmap if it’s a problem question as fast as you can, and then work through practice questions. You’re allowed one big guttural scream between each one and should feel fully entitled to bug your friends for validation and encouragement (this after all, is the real point of study groups). If you’ve got an essay that you’ve left too late, crack open your lectures notes and get crlt+F-ing. Quick sticks! You’re burning daylight!

Best of luck!

Aunt Pep

Reflections on Law in Action

Cambodia is not really one of those countries you hear about when you’re younger.  Vietnam takes up a special place in the collective consciousness of all Australians but its closest neighbour, both geographically and within the context of the proxy wars of the Cold War, continues to remain on the peripheries of history.

Four years was all it took to wreak havoc over a country which could have, at one point in history, had all the potential of a thriving nation. The Cambodian genocide was carried out between the years of 1975 and 1979 by the Khmer Rouge, a Socialist Agrarian Republic. Between 1.5 and 3 million Cambodians were killed. If you visit the Killing Fields, you may be able to see the skulls of some of the victims who were killed during that time, and the ways in which the were killed, what tools were used, how old each victim was, and whether they were male or female. You pass through all this with impassivity. To let yourself feel, would feel like a betrayal of all the pain that was suffered there.

At the Tuol Sleng Genocide Museum, a former high school used as the s21 prison under the regime, you can see vivid photos of prisoners, and the conditions of the cells. Blood stains scar the floor.

Image of Angkor Wat.

But in another city, Siem Reap, the towering temples of Angkor Wot dot the landscape and throw shadows over red sands and small villages. The strength of a nation – which was nestled in the weeds during the regime – now stands reinvigorated for us all to see.

Walking down the streets imbued me with an overwhelming sense of familiarity. There are coffee shops and tea houses, tech stores and frozen yogurt huts, street vendors selling mango with chilli paste, a memory of my childhood from another part of the world. There are rickshaws and cars, traffic lights and temples. I moved through all this knowing that although this is another country, it is simply the home of another person, who is probably in a lot of senses, a lot like me.

When I think of these two faces of Cambodia, I feel bitter. Bitter at my own ignorance, not only of its tragic past but also of its rich history and culture. I feel resentment at the western focused education system here in Australia which had failed to honour the lives of those lost and the history that lies next door.  Without minimising the tragedies that occurred all over the world, I felt I had a certain responsibility to go beyond and learn about Cambodia, a name that emerges occasionally without the import it has for me now.

We talked to many NGOs who are currently grappling with the current political agenda of Cambodia and its future. We visited the ECCC, the international court created to try those who led the Pol Pot regime. We visited courts where we learnt about the struggle in implementing the rule of law when culturally and historically it has had very little meaning. The rule of law: Something I took for granted. We visited a lawyer training centre where we learnt how hard it was to be a lawyer, to become a lawyer, to practise post-conflict.

There were eighteen of us on the trip. And each of us took something different away. Me, I gained a new lens through which to see, new questions, and a few answers.

Alley v Gillespie: Why you can’t pay your rent by suing MPs.

By Harry Main

If you were one of the countless law students who followed the Section 44 debacle of 2017 with dismay, you might be interested to know that the next time a bunch of ineligibly elected MPs are floating around Parliament, you can take action. How, you might ask? You can simply do as any self-respecting litigious lawyer would do – sue them!

You might be familiar with Section 46 of the Constitution, which provides:

Until the Parliament otherwise provides, any person declared by this Constitution to be incapable of sitting as a senator or as a member of the House of Representatives shall, for every day on which he so sits, be liable to pay the sum of one hundred pounds to any person who sues for it in any court of competent jurisdiction.

Before you start Googling 1901 inflation levels to see what £100 per day will land you today, you ought to know that there has been an update to s 46. We now have a piece of legislation called the Common Informers (Parliamentary Disqualifications) Act 1975.

This Act exists for two reasons: Firstly, to supplement s 46, and secondly, to prevent a majority in the House or Senate from nefariously refusing to refer the matter of a Member’s eligibility to the Court of Disputed Returns.

Section 3 of the Act entitles the plaintiff to $200, plus an additional $200 for every day the ineligible member continues to sit after being served with the suit. So, the money isn’t that great. On the bright side, the Act ostensibly gives a powerful tool to ordinary people who want to take on dubiously eligible MPs. This might have been the thinking of the ALP’s Peter Alley, who brought a suit under the Act against sitting Nationals MP David Gillespie.

The question mark over Gillespie’s eligibility concerns a potential breach of s 44(v) of the Constitution. Gillespie owns a shopping centre in Port Macquarie, and inside that shopping centre is an Australia Post outlet. Given Australia Post is a government owned corporation, Gillespie may have an indirect pecuniary interest of the sort prohibited by s 44(v). So, the stage was set in Alley v Gillespie for the Common Informers Act to claim its first casualty.

Unfortunately for those looking to personally bring down MPs, the High Court unanimously found that it did not have jurisdiction to consider the substantive issue of whether the Constitution has in fact rendered Gillespie ineligible. The Court was unwilling to wade into this issue because of s 47 of the Constitution, which requires that the question of a member’s qualification be addressed by the House in which the question arises.

Section 3 of the Act requires that the sitting MP against whom the suit is brought has been “declared by the Constitution to be incapable of so sitting.” In a joint judgement, Kiefel CJ, Bell, Keane and Edelman JJ rejected that the Court is permitted to assess this element of s 3, because of the restriction imposed by s 47 of the Constitution. Moreover, the Court had not been granted authority to assess Gillespie’s eligibility by a referral under s 376 of the Commonwealth Electoral Act 1918.

Consequently, the Court ordered that Alley’s proceeding under the Act be stayed until the question of Gillespie’s eligibility is determined. At the date of publication, Gillespie has not been referred to the High Court.

So, what’s the rub? It seems that the Common Informers Act is impotent. If the whole point of the Act was to provide for a contingency in the event of a House that stubbornly refuses to refer ineligible members, then the Act is rather pointless. Gageler J touched on this matter by suggesting it is likely that the “Attorney-General [under whom the Act was implemented] was acting on a considered view of the constitutional structure which the High Court now unanimously rejects.”

Whatever the reason, it looks like making a few thousand bucks off the Common Informers Act is off the table.

Turnbull Train Still on Schedule Despite Newspoll Losses

By Varun Bajekal

Varun is a fourth year, studying Business Information Systems/International Relations.

Thirty. The magic number Malcolm Turnbull cited when he ousted Tony Abbott as the leader of the Liberal Party and Prime Minister of Australia. “The one thing that is clear about our current situation is the trajectory. We have lost thirty Newspolls in a row. It is clear that the people have made up their mind about Mr Abbott’s leadership,” Turnbull said at his press conference the day before he won the leadership spill in September 2015. Now, Turnbull is approaching that dreaded figure. He has lost twenty-nine Newspolls in a row and is on track to hit the benchmark thirty that he set on that fateful day, unless a miracle occurs within the next week. Should he be held to the same standard, or should he be given a chance to prove himself and guide the Liberals to the next election?

While it may sound hypocritical to let Turnbull keep his job even if he loses thirty Newspolls, given that this number was used to replace Abbott as Prime Minister, there are many differences between the two situations that need to be taken into account. While Abbott achieved substantial outcomes as Prime Minister, and delivered many of his promises, it seemed like the looming election was unwinnable. As he had promised to do, he stopped the boats and scrapped the carbon and mining taxes, two issues that were important to the voters at the 2013 election. He also negotiated three free trade agreements, including one with China, Australia’s largest trading partner. However, despite succeeding in these areas, there were certain failures of the Abbott government which the public could not ignore. It began when the government lost immense political capital after the 2014 budget was released. Included were several cuts and broken promises, and ultimately the government failed to sell the budget to the people. Fiscally, the 2014 budget measures would have been instrumental in overturning the budget deficit the government had inherited from the previous Labor government. However, then Treasurer Joe Hockey and Abbott failed to explain the budget to the people. The constant gaffes and poor captain’s picks, such as knighting Prince Philip, did not help Abbott either. He seemed out of touch in the eyes of the Australian public.

The media also did not help Abbott’s case; constantly lurking in the grass, waiting for him to make a mistake and pouncing at every opportunity. Unlike some of his predecessors, there was a media bias against him on many occasions. From day one, Abbott was under scrutiny and was held to a different standard, particularly because his conservative views differed from that of the largely leftist mainstream media.

However, despite his successes outlined above, Abbott’s economic management was not exemplary. After he took over as leader, unemployment rose, the economic growth rate slowed, and the Australian Dollar weakened. This was one of Turnbull’s other reasons for ousting Abbott: He believed he could provide better economic administration. Fortunately for Turnbull, he has succeeded on this front. Most economic indicators have shown improvement under his leadership, and job growth is at a record high. In the past year, one of the key economic achievements of the Turnbull government was the approximately 403,000 new jobs that have been created. This is over 1,000 jobs created per day.

Turnbull has also been able to deliver on his other promises, even though some of them faced major obstacles. After Labor and the Greens blocked the same sex marriage plebiscite in the Senate, he still found a way to give the Australian people a say: Through a postal vote. The turnout of approximately 80% gave it legitimacy as well as giving the people a democratic vote. The Turnbull government is also very close to getting its proposed company tax cuts (from 30% to 25%) through a hostile Senate, and his record in getting legislation through has been positive. Going by the forward estimates, the budget is forecast to hit a surplus in the 2020-21 financial year. Turnbull’s vision for the country and economy needs to be lauded as well. His government has heavily invested in innovation, science and technology, and he is leading the country into the modern age with a futuristic mindset.

Yet, it is obvious that the Coalition is losing some of its voter base to fringe minor parties. Considerable work must be done to win them back if Turnbull is to win the next election. It is a worrying sign that an established and sensible party is losing votes to radical parties like One Nation, led by a zealot who is uncharismatic, inane and offers nothing positive to Parliament or the country. Turnbull has his work cut out for him to win back those protest voters who decided to demonstrate their dissatisfaction with the government by voting for Pauline Hanson. But it can be done. In the recent Queensland election, votes for One Nation actually assisted Labor in winning the election, as Turnbull pointed out. Hopefully for Turnbull, those voters have learned their lesson.

The final major difference between Turnbull and Abbott is that Turnbull is still leading the polls over Bill Shorten as preferred Prime Minister. While this victory may not be substantial given the Coalition is still trailing Labor 47-53 in the two-party preferred vote, it represents a glimmer of hope for Turnbull. Shorten is unpopular with the Australian public, and has recently solidified the notion that he will do or say anything to become Prime Minister. Shorten assured coal miners in Queensland that he supported the Adani mine while simultaneously telling inner-city Melbourne voters that he was against it in the lead up to the Batman by-election.

Turnbull is delivering but needs to make some changes if he is to retain power. The next election is not unwinnable for the Coalition, but a lot of hard work needs to be put in to achieve a positive result.