Finding that Dream Part-Time Law Job

Ok so I haven't really posted on this blog for ages. The reason being I actually lost my password to this blog and then had to wait until I had a chance to clean my room and find the diary which I wrote the password on. But now I am back!

In this post, I want to talk just briefly about some little tips and tricks to getting a part-time law related job. A lot of the tips relate to other professions as well so please use them as broadly or as narrowly as you see necessary.

Finding a professional job while you study has a few factors involved. Things such as luck, who you know, the state of the economy, your schedule, your grades, your professionalism and your experience to name just a few. It may also depend on the type of working conditions you are looking for. Some things in the above list can't be prepared such as luck and how the economy is going but other things such as who you know, your grades, your past experience can be prepared and perfected.

The most difficult thing that I often hear is how do I get that first office job? Well there are a number of ways. Some with parents in the legal profession have it a bit easier but for those of us who don't or prefer not to use their parent's connections (present company included), here's how you may want to approach it. Getting a job is mostly about comparing the experience of one applicant over the other. What that means is that your cashier job at Safeway or Coles could potentially get you an office job if you position your skill sets or duties with the job you want. For example, cashiers need to be good with money, be very personable, organised, able to work under pressure, manage different priorities. These are all invaluable skills to have at a professional environment. It is all about explaining to the company that your skill sets are aligned with their objectives.

What they will be asking is:
1. Can he/she do the job?
2. Will he/she do the job?
3. Will he/she fit?

In recruitment circles it is very difficult to get a yes in all three questions so mostly recruiters will be satisfied with yes to two of the above criterions. The first relates to your skill sets and as such recruiters will be looking at your past work history to determine if you can do the job or in the case of graduate recruitment, they will perhaps also look at your grades. The second criteria relates to your interest in the job. If you have no interest whatsoever in the job at hand, even if you have the requisite knowledge, you're not going to be much use to them. Finally, are you able to fit into the firm culture? These are pretty self-explanatory but just keep them in mind when you walk into that interview.

Another thing is it's easy to jump jobs within a company or jump to a similar job in another profession but not easy to jump to a different job in a different profession. What I mean is that if you're a cashier at Coles, it may be easier to jump from a customer service job to a manager position and then maybe a corporate position and it's also easier to jump from a cashier job at Coles to a cashier job at Kmart but it's not easy if you jump from a cashier job at Coles to a paralegal job at a law firm...although I have seen it done before but very rarely.

Below are some sites and tips on how to use the resources available to you to the maximum potential.

- Most universities have a dedicated career site which companies can post job adverts. This is great for university students because you know the jobs there are targeted specifically to you and it's also great for the company because they don't have to pay to use this service. For Monash students, the site is http://www.careergateway.monash.edu.au/.

- Make use of sites such as Seek and Mycareer. There is a feature in Seek which lets you receive jobs from a predetermined set of criterions. For me, I normally put in the key phrase area with 'Paralegal' or Law Clerk'. Every morning if there is a job available, I will get a notification on my email.

- Using a recruitment agency. This depends on how much experience you have. Normally only lawyers with 1-2+PAE (post admission experience) use them or career paralegals but sometimes if you can have the right skill set them they will put you forward for jobs. What normally happens is either you register with them through their website or you apply to a job that they are advertising on Seek etc. and then they will put you onto their database. This is helpful in the sense that when a job is available and they think you have the right skill, they will contact you directly.

- Using the College of Law website is a great tool to getting jobs. www.collaw.edu.aw/Your-Career/Jobs-Noticeboard-at-the-College/. I must admit that this year has been pretty slim picking but since the economy has rebounded and the fact that the jobs market is always lagging behind economic forecasting, jobs adverts should pick up in 2010.

Ok so these are my simple tips on getting that dream job. While I'm at it, I should pay tribute to Lloyd England for providing some of the helpful tips above at various law ambassador events in the past years and trust me they work.

DUMMIES GUIDE TO IPO

1. Introduction
Initial Public Offering (IPO), also referred to simply as a "public offering", is when a company issues common stock or shares to the public for the first time. They are often issued by smaller, younger companies seeking capital to expand, but can also be done by large privately-owned companies looking to become publicly traded.

2. IPO Readiness
IPOs can be a risky investment. For the individual investor, it is tough to predict what the stock or shares will do on its initial day of trading and in the near future since there is often little historical data with which to analyse the company. Furthermore, most IPOs are of companies going through a transitory growth period, and they are therefore subject to additional uncertainty regarding their future value.

Questions to ask when considering whether you are “IPO ready” may include the following:

Are you listing for the right reasons?

Are you at the right stage in your business?

Are your major stakeholders ready to “let go” and agree on the IPO features?

Do you meet ASX listing requirements?

Is you board composition right?

Will you have a sufficient and stable aftermarket?

All of these questions are important when deciding whether to execute an IPO. It is important to weigh up the advantages and disadvantages of listing. The advantages might be that it could be a profitable exit strategy for you, creates a trading facility for your securities, makes your securities a form of currency and increases your profile. The disadvantages might be that you lose control of your business, your vulnerable to a takeover, the IPO diverts from running your business and you become subject to a number of new regulatory, corporate governance and shareholder influences.

3. IPO Preparation
Before executing an IPO, you should appoint your IPO management team and advisers which will, but not necessarily make up the composition of the board after the IPO. Your team should include the chairman, the managing director, the chief financial officer, company secretary/in-house lawyer and perhaps an IPO coordinator. If you are a proprietary company, you must convert into a public company before your prospectus is lodged (usually 5-6 weeks). You will also need to comply with corporate governance requirements. These include director’s and officers’ insurance, deeds of indemnity and corporate policies.
The role of advisers includes:

Underwriter – coordinates IPO, markets you, provide commercial input, writes prospectus, advice on how to price your IPO

Accountant – prepare guidelines for due diligence findings, certify that your account history is IPO suitable, review prospectus forecast, assist you to prepare accounts related sections of prospectus

Lawyers – due diligence planning memorandum, verification of prospectus, legal compliance of IPO guidelines

Tax Adviser – tax due diligence, IPO related tax issues
Industry Experts – complexity of industry issues impact on the IPO and the prospectus

4. Prospectus Regime
A prospectus is required for an offer to issue securities or an offer to sell securities off-market by a controller. The prospectus requirement applies to any offer of securities received in Australia, unless the issue of sale is to an exempt person. The main exemption include personal offers accepted by less than 20 investors which raise less than $2 million in any rolling 12 month period, offers where the amount paid results in a total investment by a person of at least $500,000 in a class of securities. In addition a prospectus must contain a disclosure test. The prospectus must be lodged with ASIC in addition to lodgement of a listing application with ASX within 7 days of the prospectus lodgement. Other issues which you may want to consider might be prospectus liability and ASIC exposure perid and printing the prospectus.

5. ASX Listing Requirements
You must satisfy the profits test or the assets test. It is preferable to satisfy the profits test as ASX will then not usually impose trading restrictions on the existing security holder. To meet the profits test, you must be a going concern, your main business activity must have been substantially the same for the last three financial years and your total operating profit must be more than $1 million (before tax) for the last three financial years and at least $400,000 for the last 12 months. To meet the assets test, you must have net tangible assets of at least $2 million after deducting the costs of fundraising, or market capitalisation of at least $10 million.
The accounts lodgement requirements are stricter under the profits test. Under the profits test, you must give ASX audited accounts for the last 3 full financial years accompanied by an unqualified audit report. Unless ASX agrees that it is not required, you must also provide a pro-forma balance sheet reviewed by your auditor.
Following listing, you must disclose in your annual report the extent to which you comply with The Principles of Good Corporate Governance and Best Practice Recommendations of the ASX Corporate Governance Council.
You will also need to undertake due diligence to meet the prospectus disclosure test and to maximise your ability to rely on the prospectus due diligence defence. Furthermore, your prospectus must also include all information that investors and their advisers reasonable require to make an informed assessment of the prospects of the issuer (Forecasts).

6. Product Disclosure Statement Regime
You must prepare a product disclosure statement if you offer or issue interests in a managed investment scheme to a retail investor. Like prospectuses, there are anti-avoidance provisions designed to ensure that a PDS must be given in respect of an on-sale of financial products to a retail investor within 12 month of issue if such products were issued without a PDS.
The content requirements for a PDS and a prospectus are similar. A PDS must contain the specific information required by a reasonable retail investor for the purpose of making a decision whether to acquire the relevant product. This includes:
- Information about the benefits associated with the product;
- Information about any significant investment risks;
- Information about the product;
- Taxation implications of the product; and
- Dispute resolution system, cooling – off regimes and if the product has an investment component, information about whether certain considerations are taken into account in investment decisions.
A PDS mist also contain:
“any other information that might reasonably be expected to have a material influence on the decision of a reasonable person, as a retail client, whether to acquire the product.”

7. Post-listing Obligations
After listing, your primary Listing Rules obligations are:
- immediately disclose to ASX materially price sensitive information relating to your listed securities, unless the confidentiality carve out exception applies. ASX has the power to require an entity to respond to market or media speculation to correct a false market;
- notify ASX of the occurrence of certain events such as the AGM date, changes of officers and auditors, dividends, new issues of securities, securities coming out of escrow, lodgement of a disclosure document with ASIC, prepared addresses delivered at a general meeting and results of voting at meetings;
- each director(other than a managing director) must stand for re-election at least every 3 years;
- give ASX annual, preliminary annual and half yearly financial documents, generally within 60 days of the relevant reporting period;
- give ASX details of director’s shareholdings and interests and notify any changes to ASX within 5 business days of the change occurring;
- give ASX drafts of certain documents for prior approval before these are sent to shareholders; and
- obtain security holder approval for certain transactions.

Commentary and Critical Analysis on Adam's & Brownsword's, “Breach and Withdrawal” (Whether We Should have Good Faith/Good Reason when Terminating

Adam suggests that the current legal principles governing termination by the innocent party should include ‘good reason’. Brownsword goes further to suggest that a standard of ‘good faith’ should be impliedly read into each contract. Both seem to be in favour of adopting a narrower approach to contractual interpretation; however Adam’s approach is evidently much narrower than Brownword’s. For example, a comparison is made between the English law approach, where the test is whether the breach goes to the root of the contract and the modern Hong Kong approach first seen in Hong Kong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd, where the question is in the actual consequences of the breach and if it has deprived the innocent party of substantially the whole benefit of what has been bargained for, at any rate a much narrower interpretation.
Adams points to two main deficiencies in the current principle. That is, first, if the innocent part has the right to withdraw for breach, then it is immaterial that bad legal reasons have been cited at the time of withdraw (see Maredelanto Cla Naviera SA v Bergbau-Handel HmbH [1971] 1 QB 164) and secondly, that a breach may be cited for legal grounds to withdraw when the innocent party’s reason for seeking withdrawal are wholly unrelated to the breach. Mellish LJ once even commented in Shand v Bowes at 112 and 115 that there is no requirement that the ‘real reason’ for seeking to withdrawal coincides with the cited reason of withdrawal. This seems almost like a positivist take on jurisprudence where morality plays little to no part in what the law is or should be. Adam is particularly critical of the fact that the innocent party may terminate the contract for personal economic reasons. For example, in Arcos v Ronaasen, the buyers were able to reject the timber for breach of condition even though they could have used it for precisely the intended purpose, the real reason is that timber prices has dropped and that the plaintiff is looking for a way to cut his losses. Adams argues that if the consequential approach adopted in Hong Kong was applied, the outcome may be quite different. Adams also notes that the law fails to distinguish between withdrawal for breach as opposed to withdrawal following breach. Adams argues that this is not in ‘good faith’, but is in fact in ‘bad faith’.
In this respect, two possible outcomes may arise in that the law can either secure a measure of calculability by favouring the classification approach adopted by the English Courts but at the expense of ‘hard cases’ or it can respond to hard cases with the consequential approach adopted by Hong Kong Courts but at the price of jeopardising calculability as well as fairness. This, in itself, raises a whole new issue of legal philosophical interpretation regarding the dominant moral values of society which is in some ways addressed in Commerce, the Common Law and Morality by Finn. The foundation of contract law is built upon objectivity due to, in Finn’s perspective, a way for the law to accommodate the changing principles of society. This is most evident in the formation stages of contractual relations where tests often possess an objective component. As such, Adam’s and to a lesser extent Brownword’s use of a more subjective and narrow approach, may only work for a limited number of cases and may even have negative consequences for others where an objective, broader view is necessary.
Adam proposes a number of reforms to current grounded legal principles in contract law. Notably, he proposes that the innocent party should have ‘good reason’ for seeking to withdraw. This includes (1) the culpability of the contract breaker being assessed and (2) A complete disallow of a right to withdraw for CER. It has been suggested that this brings the law closer to an overriding concept of good faith. However, this is not explicitly mentioned by Adams.
The main deficiencies in the proposed reforms suggested by Adams are the reduced levels of certainty and fairness to contracting parties. This may also have economic ramifications where the implications are much broader and far reaching. Furthermore, the concept discounts the possibility of withdrawal for breach, in combination with CER, as well as weakens the incentive for parties to ensure their contractual obligations are fulfilled as discussed by Donald Harris in Incentives to Perform or Break Contracts.
Not so different to Adam’s theory of termination with ‘good reason’, Brownsword adds a ‘good faith’ element. Brownsword’s conceptions of good faith encompass two elements. (1) Good faith as an exception, where there is no explicit requirement to act in good faith, but parties must then ensure that they do not cross the line of commercial standards and act in bad faith. Or (2) Good faith as the rule, where there is an explicit requirement to act according to some standard of good faith; seemingly in conflict with CCT. Brownsword makes a ‘tentative submission’(SM, p.42, Brownsword, p.244) that there are no grounds or evidence adduced that supports either concept of good faith on the basis of instrumental rationality. However, he indicates that a case in favour of good faith as the rule may be made out on grounds of ‘moral rationality’ (SM, p.42, Brownsword, p.244).
Brownsword goes further to suggest six non-exhaustive possible good reasons for the right to withdraw at 176. He continue by setting up a legal premise whereby suppose, a good reason for withdrawing is established, the innocent party must also (i) act in good faith and (ii) has reasonable grounds for believing that the particular supporting reasons apply.
Prima facie, Brownsword’s theory may seem fair and conscionable; however, his concept detracts from the classical contract theory in which each party is self-interested. In addition, it may make contracting a relatively less attractive option: the increased costs and the necessity to contract with respect to the legitimate interests of others limit the options available to contracting parties. Furthermore, Brownsword makes no suggestion as to how ‘community standards’ are to be discerned. Much like Adam, Brownsword’s theory also raises doubt about the certainty and predictability of contracting not to mention problems which may arise as to an arbitrary application of these principles.
All in all, the reform which Adams and Brownsword suggests are positive ones, however, concerns should be raised about the reduced certainty, especially in a common law system of jurisprudence. Both have similar approaches, which are inherently difficult to distinguish: both aims to prevent bad faith, and promote contracting in good faith. Nonetheless, Brownsword conceives a large overriding concept of ‘good faith’ to contract law, against Adam’s concept of ‘good reasons’ for the right to terminate. Here, Adam’s proposal differs in that it does not explicitly adopt a concept of ‘good faith’. Flexibility would generally be seen as greater in Brownsword’s approach although either approach leads to less certainty than is available in the law at present. The reforms may also weaken the incentive for parties to ensure their contractual obligations are fulfilled. And more importantly, may be unfair to the innocent party.

Tips on gaining graduate/seasonal employment with top tier law firms

Many of my colleagues and peers have often asked me about ways of gaining employment within the top law firms in Australia. Although I will be focusing on the Australian Legal profession, the tips are wide ranging and can be applied to many other common law jurisdictions as well as other professions. I thought this topic as appropriate since many students in Victoria will be applying for graduate and seasonal employment at law firms start 2009.

I will begin by giving a little commentary on the current legal profession in Australia. Currently, Australia is trying to create a unified legal profession where lawyers in Melbourne or in any other state for that matter of fact will be able to practice unrestricted in all States and Territories in Australia. And as such, practical legal training will become the main path to admission. Law firms have adapted themselves to integrate the programs provided by institutions such as the College of Law into an in-house graduate training program, also known as traineeship (formally known as Articles, however, the two are quite differences). Nowadays, graduate lawyers not only have to contend with billing clients and building up a profitable practice but also undertaking assessments to gain admission to practice.

In Victoria, the number of law schools have increased significantly in the last 20 years from a mere 2 (Melbourne and Monash) to more than 5(Deakin, Latrobe and Victoria). As such, the amount of graduates chasing a job at one or many of the country's top firms have become incrementally more competitive. Even local firms now receive well over 200 applications for graduate programs. However, throughout my years working in both HR as well as law, I have found a few back doors into many of the top firms in the country.

More and more, seasonal clerkship is becoming the primary recruitment method for law firms as it gives them an opportunity to see whether their seasonal clerks are 'culturally fit'. In Sydney for example, all but about 3 of the reputable firms recruit solely from their seasonal clerkship batch for their graduate intakes. As such, the best way to attain a graduate position is to gain employment as a seasonal clerk. In any application, there are only 4 things which law firms will assess applicants on, three of which are based purely on the applicant's application. They are, academics, professional experience, extra curricula interests and cultural fit, the latter of which is assessed only at the interview stage. When firms talk about hiring 'well rounded' individuals, they are referring to the above 4 assessment criteria. So how then do I get a seasonal clerkship you may ask? The first point of call for many law students is to rely on their Law Society's Seasonal Clerkship or Career Guides. Although such guides provide a very useful source of information, they do not provide the whole picture. One should always do their own law firm research because the firms listed will only be the top to mid tier firms and as everyone has access to such information, competition is fierce. A good technique is typing 'seasonal clerkship' or 'summer/winter clerkship' into google and having a look at some of the firms which aren't listed in your career guides.

The truth is, the sooner you play the clerkship game, the better. I got my first clerkship at the end of my first year of law school having only done 3 law units. How did I do this? I did my research. I clerked at Freshfields Drew and Napier in the Singapore office. Why Singapore you might ask? Singapore and Hong Kong run clerkship programs especially targeted at Australian Law students normally around late December or early January. The application is much more relaxed. All I did was send my resume and my transcript to them, answered a reply email and then got my offer. How easy is that! No interview, no stress. The downside is that you would have to incur most of the expenses. They do pay you but not enough to live their for 1 month. Many law schools have grant programs for student organised internships so consult with your faculty to see if such programs exist.

Another useful tip is to apply to top-tier equivalent firms. Now what do I mean by top tier equivalent? Top-tier equivalent means firms which were started by lawyers/Partners from top tier law firms. An examples is say a firm like Chang, Pistilli & Simmons where all the partners came from a top tier firm and have since banded together to set up their own practice. Usually, such firms are not well known to law students but are well known within the legal profession. The quality of deals undertaken is equivalent, if not better than their top tier counterparts and junior lawyers are able to gain much more guidance and support in their earlier years at the firm.

If, however, you still strive for a job at the country's top, it is still not entirely impossible. A good example to illustrate my point would be to use the law firm Freehills, which is well renowned as one of the top 3 law firms in Australia as well as ranking number 1 for their Mergers and Acquisitions work in the last few years. It is no surprise then, that Freehills would receive hundreds if not thousands of applications for their graduate/seasonal programs. A clever way to get around it would be to look at its subsidiary companies. Freehills has a subsidiary company called Greenwoods & Freehills which specialise entirely on tax. The graduate program they run is the same as the Freehills program as you will be in the same group as the Freehills graduate lawyers in training but competition wise, you are in a much better position to get an interview this way. You can also apply to both firms as their HR department is mutually exclusive so if you're luck you might be called into interview twice, doubling your chances on attaining that dream job.

So all in all, come application time, my point to applicants is to be smart and make sure you do your research. Research for me normally begin at the end of semester 2 exams when you have the Christmas holidays. I hope this helps. If you have any questions, I would be glad to help. Just shoot me an email. Cheers

Some Legal Humour

I read this from an article in the papers and found it quite humourous.
Minter Ellison lawyers who use the firm's after hour meals when they're not working late and AMEX for cab fares on their own time received a slap on the wrist last week. All Brisbane lawyers at Minters received an emailed warning from the managing partner who was trying to curb "staff collecting meals in gym gear at 7:00pm on the way home", as the group email explained. Apparently it was a cab driver who dobbed them in (man how sad can you get...), telling a partner who tried to pay cash for a cab fare that there was always a rush of lawyers from both Minters and Mallesons between 7.00pm and 7.15pm and that the corporate AMEX usually paid. As the managing partner rightly points out to these grasping lawyers, it's not about the money(as if not@!!) - as the cost of the abuse is relatively small - it's about a breach of trust. Shame on you, hungry, tight lawyers.

The Coverage and Charactersitics of Federal and State Labor Laws under Work Choices - A Comparative Analysis

Introduction
In March 2006, the Workplace Relations Act 1996 as amended by the Workplace Relations Amendment (Workchoices) Act 2005 came into effect. One of its key amendments being the formulation of a single national industrial relations body, replacing the previous model where the various state and federal industrial relations systems coexisted side by side. This radical shift towards centralisation brings with it opportunities for the federal government to be more proactive in promoting economic growth, yet a degree of flexibility is lost where state systems could cater to particular needs and circumstances in their respective jurisdictions.

History of Industrial Relations
Prior to the Workchoices amendments, the Commonwealth lacked jurisdiction to enact national legislation directly on employment conditions (such as wages). Instead, the Federal Government was empowered to establish mechanisms that facilitate the resolution of certain types of disputes through conciliation and arbitration under section 51(xxxv) of the Constitution. With this, the Commonwealth Court of Conciliation and Arbitration was created pursuant to the Conciliation and Arbitration Act 1904 (Cth), currently known as the Australian Industrial Relations Commission. During its history, the Commission has laid the foundation for a centralised system of wage fixing and other legislative industrial documents and awards. The current division between the state and federal jurisdiction on labour laws is due in part to the expansive approach to the interpretation of the Commonwealth powers by the High Court, a product (by and large) of the formulation of industrial powers in the Constitution. Traditionally, the Commonwealth had a prominent influence over Australia’s unique system of wage fixing while areas such as occupational health and safety, together with the compensation of workers injured at work were a state matter. Recent years have seen the coalition federal government led by John Howard take a more dynamic approach on labour law by increasing its dominance over the states on matters of industrial relations.

Federal Labour Law
The Workchoices amendments are the most prominent and comprehensive manifestation of the federal government’s power to enact national labour laws. This extremely complex piece of legislation replaces the original Commonwealth Conciliation and Arbitration Act of 1904. The principal objective of the previous 1996 Act was stated to be the provisions of ‘a framework for cooperative workplace relations so as to promote the economic prosperity and welfare of the people of Australia’. The Australian Industrial Relations Commission and the Federal Court of Australia became vital components of this framework. Together, these legislative bodies constituted the contemporary equivalent of the traditional Arbitration Court. The Australian Industrial Relations Commission, however, lacks judicial powers, as opposed to the Federal Court which operates as a general court of law and its jurisdiction is not restricted to only matters of labour law. The new Workchoices laws introduced many significant amendments to the original Workplace Relations Act 1996 (Cth). The major amendments include the following:

- Changing dismissal protection laws for some employees
Under this provision, employees of businesses under 100 staff will no longer come under the jurisdiction of unfair dismissal laws. In addition, employees of larger businesses who are dismissed for ‘bona fide operational’ reasons are also not protected.

- Forcing all constitutional corporations into the Federal system
All corporations under the constitution (Financial, trading and foreign corporations) are forced into the new Workchoices system, which the Government argues is valid under the Australian Constitution. This argument relies on the corporations’ power given under section 51(xx) as the entire basis for the government’s new laws. In the case of NSW and others v Commonwealth 2006, the High Court ruled that the Workchoices amendments were constitutional.

- Removing the "No Disadvantage Test" for agreements
Prior to the Workchoices amendments, Collective Agreements also known as Certified Agreements under both the amended Workplace Relations Act as well as Australian Workplace Agreements had to satisfy a No Disadvantage Test. This test aims to evaluate a proposed agreement which should cover employees up until the proposal for the agreement through relevant awards. By contrast, only five minimum entitlements are sought by employers in the amended Workplace Agreement Act 1996 (Cth). These entitlements seek to cover maximum ordinary working hours, annual leave, parental leave, personal/carer's leave and minimum pay scales for workers. The minimum entitlements are collectively referred to as the Australian Fair Pay and Conditions Standard. Although in terms of retrospectivity, the above conditions will have no bearing on any agreements that were certified prior to the commencement of Workchoices.

- Streamlined process for agreement certification
Prior to the introduction of the new amendments in Workchoices, all ‘certified agreements made by an employer directly with employee or unions had to be lodged and certified by the Australian Industrial Relations Commission’. With the changes to the Workplace Agreements Act 1996 (Cth), responsibilities concerning the overseeing of agreement certification were transferred to the Office of the Employment Advocate, which had some of its powers of investigation assigned to the Office of Workplace Services. Therefore, parties to a collective agreement will no longer be required to appear before the Commission but rather need only to lodge the agreement with the Office of the Employment Advocate.

Criticisms
Although the new laws are supported by various business associations such as the Business Council of Australia and the Australian Chamber of Commerce and Industry, they are opposed by the labour movement, principally the Australian Labor Party and the Australian Council of Trade Unions as well as attracting criticism from nearly all state and territory governments, which are currently held by the Labor Party.

State Labour Law
Prior to the Workchoices amendments, the federal jurisdiction governing industrial powers was limited. These Constitutional limitations, however, do not hamper the state legislatures. The states’ emphasis on industrial relations is not focused on regulating conditions of employment but rather seeks to mimic a more effective copy of the Federal Industrial mechanism, tailored to the needs of individual states and territories. In a broad sense, substantive legislation in matters of labour law is restricted to the domains of workers’ compensation, which takes the shape of the so called ‘workers’ compensation statutes’. It is also at the state level that various forms of leave entitlements for workers (like long service leave) are catered.

Resolution of Inconsistencies between the States and Commonwealth
Where there is an inconsistency between State and Federal laws, Section 109 of the Australian Constitution stipulates that the latter prevails. It is widely accepted that the latter is sufficiently broad to include federal awards as well as legislation. However, the notion of inconsistency is somewhat more problematic. The notion of a direct inconsistency is a simple process of discerning the area where there is a conflict of interest although often, this inconsistency is more ambiguous. Typically, the simultaneous compliance of both laws is impossible. However, in the case of Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR 466, the federal award fixed a standard 48 hour working week as opposed to the states, which imposed 44 hours prescribed by relevant state awards. In general, a narrow interpretation to inconsistency is preferred, which would include instances of indirect inconsistency.

The Victorian Industrial Relations System
In 1996 the Victorian Government, under the Premier Jeff Kennet, referred most of its industrial relations powers to the Commonwealth Government. This allowed for the formation of a single framework of laws regulating industrial matters in Victoria through the Workplace Relations Act 1996 (Cth). While Victoria no longer has a state-based IR system, except for some specialist legislation, the Victorian Government still retains certain conditions, among which, preserve for the state, the power to regulate various aspects of public employment. Even though this allowed Commonwealth industrial relations law (the Workplace Relations Act 1996 (Cth)) to have a broader reach in Victoria, the Workplace Relations Act is generally limited in operation by the corporations’ power and the conciliation and arbitration power.

Conclusion
Even though federal labour laws were never intended to play more than a minor role, federal laws have prevailed over any inconsistent state laws ever since federation. In terms of employees affected in Australia, the various state systems far outweigh that of the federal system, even though the regulatory framework for industrial dispute resolutions at state and territory level has mirrored their Commonwealth counterpart. In part, this explains why the focus of the academic community tends to favour uniformity. In addition, a federal system of industrial governance would see many advantages such as greater foreign investment, cost reduction, legal equality and stronger economic growth to name a few. However, a unified national industrial authority would still be a dual system. As the corporations’ power is a centre piece for the new Workchoices amendments, only corporations and their employees will be covered by the Federal system while the states will still regulate other employers and employees not covered under the federal scope. Even though it is in the best interest of the economy to have a unified system of industrial governance, unification should be achieved through consultation with states on a mutually agreeable basis rather than what some states are calling a ‘hostile takeover’.

Commentary on Thomas v Mowbray [2007] HCA 33

In Thomas v Mowbray [2007] HCA 33, is Justice Kirby expressing a coherent theory of what law is, or is he merely expressing regret that the law is not what he wants it to be?

MICHAEL ZHOU

In the Thomas case, the High Court decided by a 5-2 majority that an interim control order on Mr. Jack Thomas of Victoria was valid. But behind that simple outcome, the case was one of the most important in decades in relation to the separation of powers, State and Federal rights, and human rights in Australia. This article will first examine the role of differing courts in the Australian legal hierarchy and the different legal principles respective courts apply. Then it will discuss the distinctive role that the High Court plays in judicial decision making and how the differing perceptions of its role by individual Justices on the High Court influence their respective judgments. Finally it will discuss how legal principle can assist in the analysis of what law is, in addition to what Justice Kirby in his dissent is trying to evoke.

1. INTRODUCTION

The question with which this article is concerned can be analysed using two basic processes. These processes are established by Justice Kirby in Thomas v Mowbray as to the origins of constitutional knowledge which he posits as being found in legal principle. The two processes involve first, analysing lessons learnt from constitutional history and alternatively, the devastating consequences it may cause if such elements are forgotten or neglected by a court ‘under the passing pressures of time’.

At the jurisprudential level, Justice Kirby posits himself as someone who is in between that of a natural lawyer and a positivist legal theorist and this is also present in many of his judgements which have come to be known as the ‘Kirby Doctrine’ .

However, before proceeding to the subjective task at hand it is necessary to provide an overview of the present processes which courts use when making judicial decisions in relation to their respective positions within the judicial hierarchy.


2. OUTLINE OF THE PRESENT SYSTEM FOR JUDICIAL DECISION MAKING

The decision-making roles of magistrates and judges have been controversial at times — do they make law and, if so, what factors do they, and should they, consider? To answer this, we need to first examine the position of individual courts in relation to the overall judicial hierarchy.


2(a) The Differing Levels of Courts

In Australia, there are two broad levels within the judicial hierarchy: the federal level and the state and territory level. While the Court system is separate from one state to another, with the exception of the Federal Court of Australia and some quasi-judicial organisations, the High Court of Australia remains the ultimate court of appeal in the Australian system .

As Australia is a common law jurisdiction both at federal and state levels , the application of precedents handed down by superior courts form a large proportion of judicial decision making . It is also due to this principle that inferior courts have very little room to maneuver in terms of law making . Due to its inability to make new laws, lower courts constantly apply laws and judicial precedents handed down by superior courts . Owing to the disposition of inferior courts in the legal hierarchy, and their distinctive role in the application of law, lower courts find themselves utilising a more positivist legal approach. Although a purely positivist legal approach would see that there is no inherent or necessary connection between the validity conditions of law and ethics or morality, the evolution of both common law and equity have reduced this somewhat .

Looking beyond the role of inferior courts, mid-tier courts also find themselves restricted by precedents but they have more maneuverability in terms of independent law making . This is especially prevalent amongst state supreme courts and to a lesser degree district/county courts, thus such courts tend to apply a more moderate/conservative approach in judicial decision making. This is very similar to Dworkin’s theory in that mid-tier courts are more prevalent to assert individual rights . In addition, the majority of Justices in these courts do not believe criminal law should be concerned with private morality; however, individuals should nonetheless be treated equally .

From this, one can see the shift in trend towards the different principles courts from differing positions within the legal hierarchy choose (and in some cases, are obligated) to employ. This shift in principle, from a purely application based, positivist legal perspective (in lower level courts) to a moderate/conservative approach (in mid-tier courts), shifts again for superior courts especially that of the High Court of Australia.


2(b) The Special Role of the High Court

The High Court of Australia is the highest court in the Australian legal hierarchy . Its authority and jurisdiction is far reaching and is the only court in this country to have the power of a judicial review over the laws passed by the parliament of Australia . With this additional authority and power, the role of the court and its Justices differs from that of other courts . Therefore, the legal principles with which this court chooses to apply in its judicial decision making should reflect this change .

3. THE USE OF LEGAL THEORY IN THE HIGH COURT OF AUSTRALIA

Section 3 will further discuss the application of legal principles in the High Court. In addition, it will examine how Justice Kirby’s remarks in Thomas v Mowbray can assist in this analysis.


3(a) Judicial Decision Making in the High Court of Australia

It is necessary for the High Court to recognise the changing social values in their judicial decisions . These ‘contemporary values’ are shaped by the climate of the day, therefore, High Court judges need to reflect and analyse these contemporary values . This is evident in Mabo v Queensland (No.2) where the High Court ruled unanimously that the laws of the time patterning to native titles were out of touch with contemporary values in society.

Similarly, in Thomas v Mowbray the High Court by majority recognised this change in the climate as justifying these stricter penalties. This is because we are a different society post 9/11 than we were before. Our value systems have changed because we feel more strongly about the need for protection.

It is, therefore, up to the High Court to decide whether the provisions of the Crimes Act could be justified within S51 of the constitution under the defence power or the external affairs power . The Federal Parliament can state that they are passing laws under one of the above categories but they cannot put it beyond question. It is still up to the High Court to decide its constitutional validity.


3(b) Justice Kirby’s Doctrine for Thomas v Mowbray

In Thomas v Mowbray, Justice Kirby in his dissent, delivered possibly his most important consideration for the rule of law in Australia. His unprecedented dissent included many ‘un-judge-like’ criticisms both of the High Court of Australia as well as some of his fellow judges . In addition, Justice Kirby pointed out that the High Court’s “surrender” to the demands for more executive power that ‘exceed or offend the constitution’ and the liberty of the individual in Australia could be “grave” as a result.

Throughout his dissent, references to natural rights, individual liberty and equality are continually evident . This, in some ways reflect the overall structure of natural law principles in that such rights, liberty and freedom come from a higher order/being. In looking at this from a common law perspective, these laws, ethical/moral obligations would be bound by all levels of the judiciary. If it is recognised by the individual courts, as Justice Kirby have done in this case, then in theory, these laws would and can be considered as precedents for lower courts. To fully understand the reason behind the application of such principle, one must reflect on the hierarchical nature and purpose of the High Court of Australia.

As previously stated, the High Court of Australia is the single most dominant court in this country, which brings unprecedented powers over all other courts and judicial organisations within Australia. The High Court is therefore, not bound by any precedents. Without any direction in the guidance of judicial decision making, judges should consider a broader range of implications in their judgements.

Justice Kirby’s judgement focused especially on individual rights as opposed to the majority of the other High Court Justices who had a more liberalist/utilitarianism approach. In this regard, Justice Kirby defends his position by pointing out that even though other countries such as the UK have implemented such measures in their respective legislatures, such incursions on fair trial, privacy, liberty and equality before the law occurred in circumstances where there were actual terrorist atrocities taking place in Belfast, Birmingham and Knightsbridge . We in Australia have not reached such levels of terrorist activity on our shores, but yet we have the draconian laws .

Looking at this from a positivist legal perspective, it is clear that the majority of Justices have taken a literal approach to its interpretation in that the role and jurisdiction of the High Court extends so far as to the constitutional validity of federal legislation, not to its fairness or impact on society. This is one of the core ideology for which Justice Kirby is in conflict with his colleagues on the High Court bench. On one hand, Justice Gummow and Justice Crennan stated that there is a need for the court to consider things in the context of current policy. In doing so, they considered what is meant by policy and how that changed over time. In addition they discussed how the court must take into account policy arrangements but at the same time, place it in a context which is clearly able to be articulated (in other words, what is the policy context of this legislation and how can it be defended). On the other hand, Justice Kirby commented that this seemed to be a retreat from the protection that had been granted by cases like the communist party case. What he is saying is that because the situation is different now, one cannot abandon all of the underpinning principle democracy holds dear to. In other words, he is articulating that the decision to hand that power over is perhaps unprincipled and ignores both legal and constitutional philosophical underpinnings.


3(c) Lessons of Constitutional History

To fully comprehend the context with which Justice Kirby is referring to, one must consider the historical constitutional considerations which lead to his dissent, with reference most notably to the communist party case and more recently Al-Kateb v Godwin.

For a long time, the Communist Party case was regarded as a benchmark and a clear signpost that the high court would be there to stop overreaching powers by the Commonwealth parliament. It is argued that the Thomas case raised similar issues. Could you essentially deem a person to be a treat to Australia/to the defence of Australia/ to Australian people, without them ever actually having been found to have done anything wrong? This is where Kirby’s dissent took its context from. The Justices disagreed about what it meant or what were necessary to protect the public, so they interpreted the legislation in the context of what they believed were the current political climate and the nature of the treat that was posed to Australia. This perception can be very general just like legal philosophy which always talks at a general level.

Furthermore, in Al-Kateb v Godwin , the High Court ruled by a 4-3 majority that the indefinite detention of a stateless person was lawful. Similarly to the Thomas case, the High Court focused on two main issues concerning whether the relevant act (in this case the Migration Act ) was valid and if so, whether this was permissible under the Constitution of Australia . The Justices in the majority took a similar interpretation to that of the Thomas case (by using more or less a positivist legal approach), however, the position of Justice McHugh (who ruled in the affirmative ) later changed and has since spoken out openly about his mistake and regret in this judicial decision . This is exactly the kind of mistake Justice Kirby is referring to and cautions about.

4. CONCLUSION

Through analysis, this article contends that in Thomas v Mowbray, Justice Kirby is evoking his own perception of the law and what he envisage the law to be, although, in the process, he makes reference to legal theory to further his reasoning for such a system of judicial decision making in the High Court of Australia, taking into account its unique role and position in the Australian legal hierarchy. In 1971, an Australian Chief Justice found it ‘hardly possible to disentangle any general principle’ for the case law on the subject. He considered the law to be ‘in a state of flux and confusion.’ In 1982 Sir William Wade concluded that:

“Probably…there can be no hard and fast rules for determining when the court may or may not allow collateral challenge. In some situations it will be suitable and in others it will be unsuitable, and no classification of the case is likely to prove exhaustive.”

Over the ensuing years, no general principle has emerged. What has emerged, however, are differences of judicial opinion about when and when not collateral challenge is suitable.

*Apologies that footnotes did not show. If you would like references to the above mentioned material please let me know via email. Michael