MONDAY 19 AUGUST 2013

De Minimis
Official Newspaper of the Students of Melbourne Law School, Established 1948, Revived 2012 Volume 4, Issue 4

www.mudeminimis.com

FEE-HELP Shortfall Looms for Many JDs

HELP debt of around $30,000 for undergraduate studies. Currently, for those JD students commencing in 2010, the FEE-HELP shortfall is $4,000, increasing over the following cohorts: $8,618 for 2011, $13,191 for 2012 and $12,720 for 2013. The growth in the shortfall is largely attributable to tuition costs rising in excess of inflation, and the outcome of a recent enterprise bargaining agreement between the university and its staff. The LSS wrote to then Minister for Higher Education Craig Emerson on 18 April 2013, to highlight the impact of the FEE-HELP shortfall on students, and to appeal for an increase in the loans cap. Nearly five months later, the LSS received a response from Mr Emersons successor, Senator Kim Carr, who is La-

Despite Plea to Address Rising Costs, Govt Doesnt Budge

Evan Lacey
Under the leadership of Law Students Society (LSS) President Pat Easton, the LSS is running a campaign to alleviate the FEE-HELP strain felt by many JD students. The campaign has received support from the MLS Dean, Prof. Carolyn Evans, and other senior members of faculty from Melbourne Law School, which has limited control over the determination of tuition fees. At present, half of MLS students beginning their JD course will need to pay up to $13,191 upfront by the end of their degrees, with the courses costs exceeding their FEE-HELP allowance. These extra financial burdens come on top a FEE-HELP debt of around $90,000, and, in many cases, a HECSbors fourth Higher Education minister in eight months. Unfortunately, there was little to celebrate in Senator Carrs response, a full version of which is posted outside the LSS office on level two. In his response, Carr states that individual course providers determine their own tuition fees independently, and the decision of a particular course provider, in this case the University of Melbourne, is not considered sufficient justification to increase the FEE-HELP limit. However, Carr did report some good news: students opting to accept the Student Start-Up Scholarships, refashioned as loans in this years federal budget, will take them as separate loans and will not count toward their FEE-HELP debt. Continued Page 3 tion, Habersberger told De Minimis that he didnt want to sit back and vegetate, and cited his enthusiasm for engaging with young lawyers as a motivating factor. Habersberger said that he is looking forward to speaking with law students about his legal practice as a judges associate, barrister and Supreme Court judge during his Open Chambers, which he is holding in his office, Room 950 on level nine, between midday and 4 pm every Tuesday and Thursday. With his wealth of experience, Habersberger would like to offer advice to individual students about their careers, particularly those who are considering going to the Bar. Building his practice primarily in commercial law, Habersberger has Continued Page 2

Its Open Chambers for New Judge in Residence

JUSTICE DAVID HABERSBERGER QC (PHOTO: MUSSE)

Reegan Grayson-Morison

The Hon. David Habersberger QC, an MLS alumnus, has recently retired from the Victorian Supreme Court and has

taken up a new role as Judge in Residence at Melbourne Law School since July this year. When asked why he took up the posi-

2 FEATURE
Red Cross Seminar

De Minimis mudeminimis.com Volume 4, Issue 4

Finding a Balanced Approach: IHL & IHRL on Gender

Jessica Sykes
The Australian Red Cross hosted Gender and Protection Without Adverse Distinction: Future directions in IHL and IHRL last Wednesday, a thoughtprovoking seminar on the differing approaches of international humanitarian law (IHL) and international human rights law (IHRL) to gender-based violence in armed conflict. The seminar comprised Dr Helen Durham, director of International Law and Strategy at the Australian Red Cross and a senior fellow at MLS, and MLS Prof. Dianne Otto, whose work often deals with questions of gender and human rights. Prof. Otto also directs the Institute for International Law and the Humanities at MLS. Dr Durham spoke on the IHL approach and emphasised the ability for armed conflict to exacerbate existing inequalities that result in womens bodies being used as battlefields themselves. Although the propensity for women to suffer in conflicts is disproportionately high, in comparison to men, Durham stressed the importance that they not be viewed merely as victims. They are, she said, instrumental in holding communities together and in undervalued and seen as less than human before armed conflict, Otto said, they could be subjected to this kind of subhuman treatment. Otto said she finds IHRL is better placed than IHL with regards to gender mainstreaming, although she acknowledged the need for improvement in this aspect, as well. The importance of speaking of rights for women and not merely protection of women is vital in advancing this goal, she added. However, Durham countered this, stating that IHL must focus on protecting all persons, regardless of gender, in a conflict zone. Both speakers cited the increased focus on international criminal law as a weakness of IHL, as it offers up a few bad actors in place of confronting the larger, systemic issues. Whilst there was some disagreement as to where the focus lies in their respective fields, both also acknowledged the same central issues of gender-based violence: the archaic language found in international instruments; the use of conflict to highlight existing inequalities in need of change; and the focus on gender more inclusively, and not just females. constant clickity-clack as a strange experience. He also noted that a few students were looking up other things during class other than taking notes, but the former judge has promised not to rat out any students to lecturers. For students interested in talking to Habersberger, a sign-up sheet for Open Chambers is located outside his office. However, he said he is happy to speak with students if he is free when they drop by. De Minimis Staff
Editor Dean R. P. Edwards Online/Layout Editor Mika Tsoi Quiz Editor Anna Nodrum General Staff Nicholas Baum, Peter Botros, Reegan Grayson-Morison, Emma Henderson, Thomas Ho, Haram Kwon, Andrew Michaelson, Melissa Peach, Doug Porteous, Raoul Renard, Tessa Sidnam, Jess Sykes, Christine Todd, Jessica Williams, Annie Zheng

MLS PROFESSOR DI OTTO TOOK PART IN THE DISCUSSION. (PHOTO: UNIVERSITY OF MELBOURNE)

peacekeeping efforts. Although often difficult to acknowledge, women are also perpetrators, she noted, citing the prosecution of women in Rwanda who ordered the rape of other women. Despite this, the indirect effects of conflict were frequently worse for women, with more dying of dysentery than of direct attacks. Prof. Otto discussed gender-based violence from an IHRL perspective. She emphasised the ability of conflict to further existing inequalities. She illustrated the point with an article documenting a little girl in Syria who was left in the middle of the road amongst passing trucks, simply because she was just a girl. If people are being Supreme Court. Habersberger has maintained a strong connection with Melbourne University since graduating in 1971, and has enjoyed mentoring students at Queens College, at the Bar and on the Bench. He commented that building relationships with young lawyers allows him to take a trip down memory lane and to live vicariously through others. Habersberger took on five readers when he was a barrister and championed the idea of equal opportunity since the 1980s. During his time on the bench, he had eight associates, including MLS sessional lecturer and noted barrister Matthew Albert. According to Habersberger, he has maintained a strong relationship with all eight former associates, as well as with the tipstaff that served him during his tenure on the Bench. Since joining MLS, Habersberger said he is most surprised by the prevalence of laptops in classrooms, describing the

New Judge in Residence

Continued from Page 1 appeared in many cases, including the infamous Tasmanian Dams Case (which we all know and love from Constitutional Law). However, he did sit in the Criminal Division during his tenure at the Supreme Court, and can offer insight into both commercial and criminal law. In addition to his responsibilities as Judge in Residence, Habersberger said that he looks forward to involvement in the Law School in a variety of other activities. He will be joining students in Contracts, Remedies and Advocacy, where he hopes to provide some practical insight into the profession. He is also assisting in a number of Law Students Society ventures, such as the Q&A with the Hon. Bernard Bongiorno, who previously served as Judge in Residence and was a colleague of Habersbergers on the

De Minimis mudeminimis.com Volume 4, Issue 4

LEGAL 3
A cognitive agents ability to do certain things that is, its behavioural competence depends on whether it can execute the embodied cognitive processes upon which the abilities in question are predicated. Thus an agents behavioural competence is a matter of whether its brain is both causally influencing and influenced by the appropriate non-neural structures. Shopping lists and open-book law exams are familiar examples of how this process unfolds. Along with our brains, shopping lists jointly govern our behaviour in a way that enables us to identify and purchase a large number of items. Similarly, notes, textbooks and statutes are scrupulously indexed, tabbed and highlighted in ways to enhance the students ability to cleverly deploy an otherwise unwieldy mass of information. The upshot of these examples is that each of these items enables people to do things they otherwise could not do. So what does this have to do with AGL? A whole lot, really. Whether an individual has the capacity to consent under AGL depends upon their ability to demonstrate the requisite degree of behavioural competence. And this in turn may depend upon whether they have access to the appropriate bits of non-brain. For example, patients suffering from either Alzheimers disease or acquired of Melbourne Law School Completion Bursaries to FEE-HELP students. The maximum award for the bursaries is currently $10,000. Still, both measures represent bandaids, with around half of MLS students facing major financial challenges and the Commonwealth, at present, refusing to consider an increase to the FEEHELP cap. More information is available at http://mulss.com/education/fee-help. brain injury rely upon certain cognitive aids in order to demonstrate the degree of behavioural competence required to live independently. These aids include things like notebooks used to record their memories and conspicuously placed post-it notes reminding them to initiate certain behaviours, e.g. Take medication twice daily. For such individuals, the ability to consent is contingent upon having the right things to think with. So how do AGL respond to such individuals? Poorly. There are two reasons which, taken together, show this to be the case. First, people who require cognitive aids are not ensured an opportunity to demonstrate their capacity to consent. This could be achieved only if AGL ensured access to such aids. Unfortunately, they do not. Second, individuals who are not given an opportunity to demonstrate their capacity to consent are deprived of that capacity. Naturally, such individuals are found to lack capacity, and are thus assigned a substitute decision maker. The role of substitute decision makers is to make certain decisions on behalf of those who purportedly lack capacity. Therefore, most of AGL deprive already compromised individuals of their capacity to consent in at least some decisions.

Is It All in Our Heads? Australian Guardianship and Capacity

Third-year JD student Chris Ambas wrote the following excerpt from an assignment in Medical Law, in which he explores the effect of how we understand cognition on the notion of capacity in Australian guardianship law.

Chris Ambas

Brain-bound theories of cognition assert that brains are the only place where cognition happens. Historically, this view has enjoyed widespread currency among cognitive scientists. But much has changed within the past 15 years. The ascendency of the embodied cognition thesis has been characterised as a time of disillusionment with brainbound theories of cognition. Hence the growing consensus that a good deal of cognition is embodied. In spite of this development, the notion of capacity enshrined in most of Australias guardianship laws (AGL) remains at odds with the embodied nature of cognition. In particular, it fails to acknowledge that demonstrating ones capacity to consent may depend upon having access to certain things to work with. Accordingly, I want to show why this is an unhappy state of affairs. The embodied cognition thesis asserts that certain cognitive processes namely, embodied cognitive processes emerge from a series of reciprocal causal interactions between neural and non-neural structures.

No Help for FEE-HELP

Continued from Page 1 Under the new arrangement, students receiving Youth Allowance will receive loans of up to $1,025 biannually, from 1 January 2014. Unlike the scholarships, students will need to repay the loan amounts once their income reaches a certain threshold. MLS has implemented another relief program that provides a limited number

INTERESTED IN CONTRIBUTING? mlsdeminimis@gmail.com

NEW HIGHER EDUCATION MINISTER, SENATOR KIM CARR. (PHOTO: COMMONWEALTH OF AUSTRALIA)

4
Equity Uncle

De Minimis mudeminimis.com Volume 4, Issue 4

QUIZ
and the Lord Chancellor would go to the theatre and party as if it were 1066 again. But then Coke said Equity was fat and that Dickens prick just had to tell everyone about it. Now Equity stays home and reads. Have you read Fifty Shades of Grey? You should. The writing is incredible. Youre right, Equity frowns on misleading conduct. Equity abhors the fib. Equity smiles only on propriety. That said, Equity doubts that you can be both true and supportive, if your friend is as terrible as you depict. Given theyre forcing you to attend this most unconscionable of events, for 5 Equity is happy to turn away and mumble something about unclean hands. Deal? Equity Uncle 1. What was discovered by Hiram Bingham on 24 July 1911? 2. Name the cocktail from its ingredients: brandy, curaao, lemon juice (shaken and strained). 3. When was the word cocktail first recorded: 1658, 1798 or 1838? 4. How many Greens candidates have served in the House of Representatives? 5. Who has kicked the second most goals in AFL history? 6. What was Ho Chi Minh City formerly known as? 7. Who composed the Water Music? 8. Australias longest serving prime minister, Sir Robert Menzies, first came to power with which party? 9. Who sculpted The Thinker? 10. The Thinker was originally the central figure in a piece called The Gates of Hell, which was based on which work of fiction? Answers below. This weeks quiz compiled by Bill, Hannah, Nick and Anna.

Equity Delights in Light Entertainment

Dear Equity Uncle, I am obligated to go to a friends terrible show. No one has given it a good review. They know when Im going and cant back out. When they are merely acting in it, I can say they were great but the show not so. They wrote and produced it. How can I still tell them something true and supportive while maintaining my integrity? Equity doesnt allow people to be misled, right? Dont Want to Damn with Faint Praise, but Cowardly Afraid of Constructive Criticism Dear Cowardly Afraid, Equity doesnt have many friends, and no terrible ones. Back in the Court of Chancery days, Equity and some judges

Film Review

Only God Forgives: A Guide

Upcoming Events
Tuesday, 20 August A Bill of Rights for Australia, talk by Julian Burnside AO QC. Part of Global Thinking Lecture Series, hosted by the Global Law Students Association. 6.30 pm, with light refreshments following. Room GM15. The Public Interest Law Network is meeting up for drinks at the nearby Corkman following the event. Thursday, 22 August Lawyers Ethics Regulation in China and Japan: A Comparative Study, lecture by Dr Richard Wu from the University of Hong Kong. 6 pm. Room 920. Register at: <http://bit. ly/14qaXL0>. Friday, 23 August Challenging Life Sentences for Children American and International Perspectives, hosted by the Institute for IILAH. 1 pm, with a lunch served at 12.45 pm. Room 609. Register at <http://bit. ly/16kqVbn>.

FOR FANS OF RYAN GOSLING (ABOVE), NOT SEEING ONLY GOD FORGIVES IS A CONVENIENT WAY OF REINFORCING THE IDEA THAT GOSLING COULD DO NO WRONG. (PHOTO: RADIUS-TWC)

Mika Tsoi

The new Ryan Gosling/Nicolas Winding Refn movie, Only God Forgives, features Gosling as a boxing promoter who is asked by his mother to avenge his brothers death. A scary guy in a black polo shirt walks slowly, cuts people with a traditional blade and sings karaoke. Sound good?

already enjoy, perhaps Crazy Stupid Love or Drive. Like the new Star Wars trilogy, this movie never happened. - Be happy.

Reasons to watch Only God Forgives:

- You enjoy watching gratuitous violence. - You like slow, unentertaining subversions of tropes that dont rise to the level of satire. - You like watching people die in gruesome deaths on screen. Suggested course of action: - Expect to cover your eyes many times during the movie. - Do not take a date to this movie.

Reasons not to watch Only God Forgives:

- You watch movies for pleasant escapism. - You watch movies for Ryan Gosling. Suggested instead: - Watch a Ryan Gosling movie you

QUIZ ANSWERS. 1. Macchu Picchu 2. Brandy Sour 3. 1798 4. 1 5. Gordon Coventry 6. Saigon 7. George Frideric Handel 8. United Australia Party 9. Auguste Rodin 10. Dantes The Divine Comedy