Peppercorn Edition 1 2021

CRACKED

PEPPERCORN

2021

ISSUE 1

T H E A N U LA W S T U D E N T S O C I E T Y M A G A Z I N E

LAW

POLITICS

HUMOUR

L I F E S TY L E

PEPPERCORN WOULD LIKE TO ACKNOWLEDGE THE NGUNNAWAL AND NGAMBRI PEOPLE AS THE TRADITIONAL OWNERS OF THE LAND UPON WHICH THIS PUBLICATION WAS WRIT TEN AND DISTRIBUTED. WE WOULD ALSO LIKE TO ACKNOWLEDGE OUR NEIGHBOURS: THE GUNDUNGURRA PEOPLE TO OUR NORTH, THE NGARIGO PEOPLE TO OUR SOUTH, THE YUIN PEOPLE ON THE SOUTH COAST AND THE WIRADJURI PEOPLE OF GREATER INLAND NEW SOUTH WALES. WE ACKNOWLEDGE THEIR ELDERS - PAST, PRESENT, AND FUTURE - AND THE ELDERS AND FIRST PEOPLES FROM ALL NATIONS ACROSS THIS CONTINENT. THIS WAS AND ALWAYS WILL BE ABORIGINAL LAND; SOVEREIGNTY WAS NEVER CEDED. Peppercorn also acknowledges that colonisation is ongoing and racist structures continue to perpetuate the power imbalance inherent within this nation’s cultural, economic, and political institutions. Policies such as the Stolen Generation are not historical, but rather sustained oppression, paternalism and cruelty seen in the continued removal of over a thousand Indigenous children from their homes per year. As the publication of a Law Students’ Society, we cannot ignore the role that our legal system plays in entrenching systemic failures and injustices to Indigenous peoples. Namely, by incarcerating Indigenous Australians at the highest rate in the world and continued separation of families and communities, the system we live and may work in is continuing a colonial genocide. As law students, we must all under take to change the racist operation of our legal system and the views within it.

UNTIL AN INDIGENOUS VOICE TO SPEAK ON THEIR OWN AFFAIRS AND COUNTRY IS HEARD; UNTIL THERE IS A TREATY; UNTIL TRUTH IS TOLD AND THE HISTORICAL AND ONGOING PAIN OF THOSE WHOSE LAND ON WHICH WE PROFIT FROM IS RECOGNISED...

THERE IS NO JUSTICE IN OUR COUNTRY.

FRONT AND BACK COVER BY ARTIST: CALEB BAUER INSTA: @CALEBAUER ARTWORK BY: TAHNEE EDWARDS WITH PHOTOS BY JAMIE WDZIEKONSKI INSTA: @SUB_LATION

CONTENTS 1 ACKNOWLEDGEMENT OF COUNTRY 4 MEET THE TEAM 5 LETTER FROM THE EDITOR 6 LETTER FROM THE PRESIDENT 7 ARTWORK EBEN EJDNE 8 BE NOT AFRAID OF GREATNESS ANCA COSTIN 10 ARTWORK STEPHANIE XIN HU CHENG 11 KAREN V LAW SCHOOL: IMPOSTER SYNDROME AND OTHER TERRIFYING TALES KAREN NETAPALI 12 POEM 13 THE ‘EARTHLY’ MOTHERING WE ALL NEED LILLI COWEN 14 INTERVIEW WITH A JUDGE’S ASSOCIATE ALLY KING 16 QUIZ ANU DEGREE SPECIALISATIONSTM ALLY KING

38 ARTWORK TAHNEE EDWARDS WHY SHOULD LAW STUDENTS VOLUNTEER ANU+ AND ANU CAREERS

39 UNEARTHING ONE OF CAMBERRA’S HIDDEN GEMS OF INNOVATION JIBRAN HABIB AND BELLA DI MATTINA

21 ROBO-COURT: YAY OR NAY? MIKE ZHOU

41 SOLIDARITY FOREVER: REFUGEE ACTION CAMPAIGNS IN 2020

22 MYOPIA - A DIFFERENT EPIDEMIC NICK BRADMAN

42 COUNTER-TERRORISM: LEGISLATIVE INTENTION AND THE RULE OF LAW - CAN THEY AGREE? RIWAN AGGARWAL

24 THE FUTURE OF WORK JESSICA HOEPS 26 NO SUCH THING AS CONVENIENT PROTEST: THE IMPORTANCE OF PROTEST RIGHTS IN POLITICISED ENVIRONMENTAL LAW DAVID FERRELL 28 LESSONS FROM CHINATOWN ANONYMOUS 30 ANUSA AND ITS CONSTITUTION: A GUIDE TO SOME LEGAL ASPECTS OF BEING AN ANUSA OFFICER KEVIN TANAYA 32 AN INTROVERT’S GUIDE TO ONLINE DATING ANONYMOUS 34 DEMOCRACY IN SAMOA - THE ISLAND’S CONSTITUTIONAL CRISIS CHARLIE BARNES & ELLIOTT MERCHANT 36 ALCOHOLISM IN THE LEGAL PROFESSION EMMA ASHLEY

18 FIRST YEAR V LATER YEAR PERSPECTIVES ANDY CHEN AND PIPER KEEL 20

THE OPINIONS AND VIEWS EXPRESSED IN THESE ARTICLES ARE THE WRITER’S OWN, AND DO NOT NECESSARILY REFLECT THE VIEWS OF PEPPERCORN OR THE ANU LSS

ARTWORK IZAAK BINK

56 THE LEGACY OF THE PALACE LETTERS: REVIEW OF ‘THE PALACE LETTERS’ AND ‘THE TRUTH OF THE PALACE LETTERS’ ELLIOTT MERCHANT 59 ARTWORK CALEB BAUER 60 SECTION 44(I) OF THE AUSTRALIAN CONSTITUTION: UNNECESSARY AND ONEROUS VARSHINI VISWANATH

44 RED AND UNPROMISED ENDINGS ANONYMOUS

61 FIT AND PROPER PERSON: PARLIAMENTARY INQUIRIES INTO THE CRIMINAL CONDUCT OF POLITICIANS SEBASTIAN MAZAY

45 IS THE WORLD GEO- POLITICALLY LESS RISKY DURING THE PANDEMIC? DENNY IRAWAN

63 ADDICTED TO CRIME DRAMAS & NO - I WILL NOT STOP SACHINI POOGODA

46 ARTWORK JIE EN LEE

65 ARTWORK SAMIRA INGOLD

47 MASS SURVEILLANCE AND SOCIAL CREDIT: THE PYRRHIC PURSUIT OF EFFICIENCY ANONYMOUS

66 CORPORATIONS IN THE PUBLIC DOMAIN: UNFETTERED A ND UNACCOUNTABLE SHIBAN SHAHID

48 I’M AFRAID TO WALK AT NIGHT: A MESSAGE TO THE PATRIARCHY SENURI PERERA

68 THE MANIPULATION OF LEGAL AND POLITICAL NORMS BY MARCUS TULLIUS CICERO

BY HEATHER COLLINS

50 DOING JUSTICE, ACCORDING TO THE LAW: A REVIEW OF ‘WITNESS’ BY LOUISE MILLIGAN GEORGIA CROCKER

70 PROPORTIONALITY AND SECURITY – OUR SUBMISSION TO THE INTERNATIONAL DATA ACCESS BILL ANDREW RAY, BRIDIE ADAMS & KATE RENEHAN

52 THIS BELONGS IN A MUSEUM: THE LEGAL FOSSIL OF SEXUAL DIMORPHISM ALLY KING

74 COLLEGE OF LAW PHOTOGRAPHS - FACILITIES AND SMOKING CEREMONY

54 ABOUT US: THE YOUNG WORKERS CENTRE 55

3

76 FOOTNOTES AND CITATIONS INDEX

5

MEET THE TEAM EDITOR-IN-CHIEF: David Ferrell CONTENT EDITORS: Alicia Barron Andy Chen Lilli Ireland Sue Ven Lee Piper Keel Ally King Elliott Merchant Varshini Viswanath

CHIEF ART & DESIGN DIRECTOR: Stephanie Vieceli MAGAZINE DIRECTOR: Lilli Ireland SOCIAL MEDIA DIRECTOR: Andy Chen

CONTENT WARNING: The following content addresses and invokes subjects which may be distressing, including: sexual assault; violence; graphic imagery.

LETTER FROM THE EDITOR As I write these words I am speeding down the Barrier Highway, hurtling to cross the South Australian border before it snaps shut like a jumpy trap. I’m starting to get the feeling that this COVID thing might not be so great.

Eighteen months ago we had the sense that we were going through history. It felt wild and uncharted. No one knew what was going on. But we all knew it was big.

Now it’s all sort of moved on, and yet things aren’t back to normal. They’re not even obviously back to new normal. They’re unsettled and ill-at-ease. Poised, but tiring, in the midst of slow and persistent crisis. It’s not even clear what end is in sight, what the end might look like. As a society, increasingly we’re assured that the world we open up to will be a different one from that which we left, and that we, returning, tender and hesitant, to the world, will be different, in ways that will only announce themselves only with the vaunting insecurity of hindsight. For now this difference persists only as a sense, a haunting spirit of the age, subsisting in disassociation and fear, as a disconcerting field without a centre.

For those halfway through their second lonely year of university, I am deeply sympathetic. Academic community is real; and I have felt its absence with a growing sting. The inroads we now have - an open campus and the odd in-person tutorial - are good, but they are an incomplete consolation. To have known nothing else of university is a great loss.

So what do we do with the age of uncertainty? We express ourselves.

Shout to nothing - onto a page that shouts. Follow the news, and rage and find objects to tether our voices and our feelings.

Before long we will find ourselves among distant friends, our connections not just enabled by communication technology, but invigorated by our unique places and perspectives in the world. At this time of bated breath, the purpose of Peppercorn is clear: to speak. To express to ourselves, to share and connect with each other, and to make sense of the age.

Peppercorn has been around, in one form or other, since 1969. In that time it has seen the Vietnam war, the 1975 Constitutional Crisis, the September 11 Attacks, the 2008 GFC, the 2019 bushfires, and now COVID. The colourful pieces ahead, collected between the Junes of 2020 and 2021, attack a breadth of ideas: student life and the legal profession; literature reviews and essays on Australian history; from the future of law and work to Ancient Rome; from the Australian Constitution to the Samoan; featuring student art, poetry, essays, articles, opinions, and controversies both domestic and international. Even in such one note times of crisis, there are such varied conversations to be found.

Enjoy reading this latest edition of Peppercorn, and good luck to everyone in the Semester to come.

ARTWORK: LUCY BRUCK

7

LETTER FROM THE PRESIDENT Welcome to the latest edition of Peppercorn! We are delighted to have the ANU LSS’ magazine back in action in 2021, and sincerely hope you enjoy the time spent flicking through its pages.

I would like to take this opportunity to thank David, our Peppercorn Editor-in-Chief, and the rest of the Peppercorn team for their hard work in putting this publication together. This magazine simply would not happen without all of their efforts, and we are grateful for their commitment to achieving great things for Peppercorn in 2021.

From an LSS perspective, this year has quite honestly been wonderful. We have welcomed many new faces onto the committee, and the group has banded together to forge a path out of the Covid-affected depths of 2020. In my role, I have found it a real pleasure to watch everyone approach their tasks with creativity, passion and enthusiasm- it really does make the committee a fantastic group to be a part of.

LSS achievements have been many and varied this semester. In the social justice and equity spaces, we established a Cultural Diversity in the Law podcast, co-hosted a Raise the Age panel event, and continued to provide our social justice and international student mentoring programs. Events have been busy, too, with a semester sandwiched by our wildly successful Welcome Drinks and our equally successful End of Semester Mixer with the PPE Society. The Careers portfolio has been busy as ever, producing two excellent publications and pulling off Clerkship Information Evening and Firm Visits without a hitch, and our internal competitions continue to be engaged in at a very high standard. Finally, on a broader level, the LSS has remained actively involved in several bodies across the law school, and has continued its ongoing relationship with the Australian Law Students’ Association and our counterparts over at the University of Canberra. It has been a jam-packed semester, full of challenges and hard work, but one that has proved incredibly rewarding for all involved- and we can’t wait to see what semester two brings.

For students at the ANU College of Law, it has been an equally big semester. We’ve faced the usual challenges: deadlines, poorly-designed timetables, and aching eyes from reading textbooks the size of bricks. But there have been some silver linings, too- we have seen some classes and many students make their way back onto campus, which has provided a refreshing taste of normality. The renovations on the law buildings have finally been completed (yay for the quad!), and there will soon be a spot for students to grab a coffee or drink without having to venture out into the crisp Canberra air. Overall, the ANU Law community has grown closer and stronger than ever as a result of the hardships we all faced last year- and that has been something special to be a part of.

Now, to all of you reading this, I hope you have had a productive and enjoyable 2021 thus far. As we turn towards the second half of the year, I encourage you to go out there and kick some goals, whatever those may be- but always remember to give yourself a break when you need one. After all, everyone’s lives need balance (even obsessive type A law students’), and there is more to life than university and work.

We hope you enjoy this issue of Peppercorn, and extend our warmest thanks for your ongoing involvement in and support of the ANU Law community. It wouldn’t be the same without you.

With my very best wishes, Emma

ARTWORK: EBEN EJDNE INSTA: @EBENALEKZANDER

9

BE NOT AFRAID OF GREATNESS

ANCA COSTIN (BARRISTER, BLACKBURN CHAMBERS) (Adapted from speech introducing the Asian Australian Lawyers Association Mentoring Program Launch Event) One of my favorite quotes come from Shakespeare’s Twelfth Night through Malvolio’s words: “be not afraid of greatness: some are born great, some achieve greatness, and some have greatness thrust upon 'em’’.

Despite my happy upbringing and childhood, I was not ‘born great’ as I was born during the communist regime in Romania in 1980. Most of us in Romania back then were not born great during those times as it was the last decade before the Romanian Revolution in December 1989, and arguably, one of the most difficult eras Romanians had to endure during their entire modern history.

I was in primary school when the Revolution took place.

Even as a nine-year-old, as I was at the time, I understood that something great was about to happen. And it did. The Revolution gave Romanians freedom to explore the world outside their borders, to travel, something so basic for others but forbidden to most Romanians until then. Young Romanians were incredibly curious to know and discover more. I was one of them.

From a very young age I enjoyed learning, expressing ideas and being independent. I also knew that I wanted to become a lawyer. In 2003 I graduated with a Bachelor of Law from the Romania-American University in Bucharest.

My Australian story started in 2009 when I moved here to marry my now Australian husband. Australia has been an abundantly giving country to me. Shortly after moving to Canberra, I felt I needed to do more, to find my place and belonging in Australia, so I decided to study law again. I took it as a challenge without knowing where or how far it may take me.

In 2013 I was fortunate to start my graduate legal practice at the ACT Human Rights Commission and after graduating, I was offered a position there. After one year at the Commission, I joined Elringtons Lawyers in their litigation team. After four years at Elringtons I was approached by BAL Lawyers to join their Employment Law team.

In 2017 I became a mentor with Woman in Law Organisation (WILO) at ANU, created under the auspices of ACT Women Lawyers Association. When I applied for the first time to become a mentor, the form allowed to provide a comment – my comment was that I wanted my mentee to come from a diverse background as myself.

Becoming a mentor was my way of passing forward to students coming from a diverse background as I was.

I was called to the Bar in 2019 and I joined Blackburn Chambers. My decision to become a barrister did not

spite that, I would not be so bold, nor foolish, to think they I have achieved greatness. However, greatness can be achieved by any of us, and it can take many forms. For me, one way of aiming to achieving greatness is through my assistance offered as a mentor. It is a gift that can last a lifetime if you are willing to make it

my time spent with them: when they find themselves in a position of leadership and they are able to pass forward to others in the profession, they must remember they have the moral obligation to do so, just like I did it with them. We all must help others to achieve their greatness.

come as naturally as the one to study law as English is my second language. Given that language and communication are the main instruments or the tools of the trade of our profession, speaking English with an accent may be seen as a hindrance in our profession. In addition, being a female barrister may be even less desirable for some given that female barristers are around 33% of the total number of barristers in Australia. Notwithstanding that, I am grateful and in the same time indebted to the legal community as I had the opportunity to practise as a solicitor, and now as a barrister, and feel included from the beginning. It shows that times are changing, and diversity is more accepted and embraced in the legal profession. Change takes time but we can all contribute to it in different ways.

I believe that law students from a diverse background who come after us can witness that change is happening in the ACT and in Australia, and they may be more persuaded to take certain paths in relation to their legal careers that they might not otherwise have done so.

I am not saying that the work in relation to diversity in the legal profession is done and it does not need constant improvement. But the legal fraternity has come a very long way and I am confident it will improve as we continue to embrace diversity in the law. We are all part of the change.

I was surprised to discover that I was the only barrister doing the practical bar course at the NSW Bar Association who spoke English as a second language. Some of my colleagues, I am sure, were second or third generation Australians, but I was probably the only one not born or raised here. I am not aware of any other female barristers at the ACT Bar since its inception coming from a linguistically diverse background, where English is not their mother tongue. And I am very proud to break that glass ceiling, if there ever been one.

The word greatness has a number of synonyms, including status, standing, eminence, distinction, etc. Each of these synonyms can relate to the work conducted by solicitors and barristers, either from the bar table in the Court room or from their offices. However, greatness should also be synonym - more so in our profession – to equality, access to justice, empathy, diversity, and kindness. This is even more relevant in Australia nowadays because it is a multicultural and diverse country.

Throughout my albeit short career in the law, I have helped many people - the rich and the poor, the guilty and the innocent, and some of them, undoubtedly, great people facing the most difficult times of their lives. De-

last that long.

As a mentor I am committed to passing forward all the blessings and privileges that life has offered me by helping others to achieving their professional or personal dreams, their own greatness, whenever possible.

There is only one thing I ask all my mentees in return of

...Be Not Afraid of Greatness

ARTIST: CALEB BAUER INSTA: @CALEBAUER

KAREN VS. LAW S C H O O L IMPOSTER SYNDROME AND OTHER TERRIFYING TALES K A R E N N E TA PA L I “Why did you choose law?” - the holy grail of interview questions and icebreakers in the legal profession. Now, my go-to answer is spouting off some absolute bullshit about ~ access to justice ~, and whilst I recognise the importance of that, I’m lying to myself and my interviewer. To be totally honest, I decided to enrol in law school because I’m from an Asian family where academic success is integral to preventing eternal parental disappointment.

To make matters worse, I come from a family of medical professionals: my mum, dad, brother as well as numerous aunties, uncles and cousins have sworn the Hippocratic oath and given their lives to the noble plight of protecting the health of others. I, however, will faint at the mere sight of blood. So yeah... not for me. Despite this, I sat the UMAT, applied for medical schools and did interviews all to please my parents.

So, in all honesty, applied for a double degree in Law and Science at the ANU in hopes that the word ‘lawyer’ would replace the word ‘disappointment’ in my parent’s eyes.

I turned up on my first day of law school, an anxious first year waiting outside the Coombs Lecture theatre at 12:30 for her 1pm lecture armed with more highlighters than I was capable of using and seven seasons of Suits. I was incredibly unprepared for the highs and lows of the years to come. Accompanying my lack of any legal knowledge was spades of imposter syndrome. I looked at everyone around me and felt like the odd one out. In my first week I met a number of students who had always wanted to do law, had applied for it and didn’t get accepted due to grades or other circumstances. I carried around guilt the size of my Torts textbook that I had taken their place when I really just picked this degree because it would “look good.” I dreaded the icebreakers at the start of tutorials where students would discuss a of genuine love for and interest in the law. I didn’t have that - I didn’t have a complex backstory or a passion to change the system. The sexual tension between me and changing degrees was HIGH. But I stuck with it, mostly for fear of having to tell my parents that I wouldn’t be a doctor or a lawyer – the last option in my family really is engineer and, as my high school maths teacher will tell you, that was not an option.

Yet, an initial lack of interest and focus turned out to be the best place to start for me. I was an open canvas, a sponge absorbing the intricacies and complexities of the law. With no preconceived notions of the law, I was open to being amazed by the long history, development and power of the laws we use today, and how we can mould them to become better in the future.

Now, in my final year, I look back on that small, scared first year with her chronic imposter syndrome and I’m very thankful to say I have developed that (definitely nerdy) passion for the law I yearned for. I have been exposed to the way the law impacts practical aspects of everyday life. Through enduring the aching pains of taking admin law, I’ve seen the importance of administrative accountability, keeping our executive in check. Under the tutelage of Professor Anthony Hopkins, I’ve read cases about probative value and prejudicial effect and seen it applied in real cases in the news. I’ve I have learnt from some of the best professors and academics in the world and as I stand at the doorstep of my career, I couldn’t be more thankful that I stuck with it.

So, to the first years who stumbled into the law library this year, confused, concerned and disheartened by their lack of interest, don’t worry. Not every day will be thrilling, you’ll have late nights trying to untangle the complexity of “choses in action” and tearing your hair out over AGLC 4, but stick with it. Avoiding law in life is impossible, so why not try and learn some of it? Law school teaches you valuable skills in problem solving, research and writing that will be useful in whatever career path you choose. Together, we imposters are the real deal.

ARTIST:STEPHANIE XIN HU CHENG INSTA: @GOHAN.BUBBLES

11

T H E ( E A RT H LY ) M OT H E R I N G W E A L L N E E D LILLI IRELAND 10 Easy Ways to Get Some Nature in

Study Life

1. Take your shoes off on the grass - I am not kidding, be THAT person. Tactile senses are incredibly important, and it’s such a good, easy way to keep grounded (quite literally).

The grey is circling, it’s coming for my head.

The cement encases, There’s a pretend-glow -

2. Check out the sky - How long has it been since you’ve tried to make a shape out of a cloud?

Or look at the stars and spotted that forever classy-tattoo inspiring cross? Look up, and enjoy feeling like you and your problems are completely inconsequential.

3. Listen to the birds - Don’t put in Airpods on your commute every now and then. That podcast/new Cardi B song can wait. Try and listen to all the sounds you can hear, and spot the birds calling. Maybe your hate of magpies can become a more love/hate type thing?

And I know I must be somewhere else instead.

4. Go to the botanical gardens - Canberra boasts such beautiful, mostly native, never ending botanical gardens. It’s nice for a walk, and you could even study afterwards in the Pollen cafe.

Above, the leaves are waving,

5. Walk the lake/up your local reserve - instead of a coffee catch up, ask friends to go walking with you. It’s an exercise, a dose of nature, cheaper AND you get to see the sights of this ol’ bush capital - honestly, what more could you ask for?

They beckon Whispers of the far away tides I’ve been craving.

I smell the green breath, and we breathe together An age-old song That she’s known forever.

I reach out and touch her bark, And I know what she’s telling me You belong, you are home.

6. Watch the sunset/sunrise - how great are those crazy short winter days when the sun rises at basically 10am? I jest, but Canberra does surprisingly boast the most colour-rich sun action I’ve ever seen. Try and plan one of these times into your day, go outside and watch that showoff sun (yes, even it is just outside Hancock for five minutes and no, not just for an Insta story pic).

7. Get a leaf and brush it over your face - Okay, I’ll admit this one sounds weird. But brushing it over your face forces you to relax the face muscles and just be. It goes without saying, but make sure the plant looks distinctly non-poison ivy-y.

8. Listen to the sound of water - Sullivan’s Creek can be gross and apparently is one-quarter faecal matter, but listening to a (potentially urea-moving) trickle is the most relaxing sound. Sit by the creek, or the lapping lake, and let the sweet sounds wash away your woes.

9. Try a new outdoor activity - The ACT has some incredible mountains, why not try hiking in Namadgi or Tidbinbilla? If walking ain’t for you, you could try kayaking on the lake - the mountaineering club goes weekly and is a small fee to join.

10. Get your vitamin D - In a completely UV & melanoma-not-inducing safe way of course.

This is really important, as seasonal depression is very much a thing. Don’t worry Doc, I’m getting my (vitamin) D.

ARTIST: STEPHANIE VIECELI INSTA: @FERALBASTARD

13

15

I N T E RV I E W W I T H A J U D G E ’ S A S S O C I AT E ALLY KING

Senior Associate to Chief Justice Murrell of the ACT Supreme Court – and 2019 ANU alumna - Rose Estanislao (she/her) shares her experience at the ANU, her perspectives on life after graduation, and some insights into her role as a judge’s associate.

applied, but I think that would have been detrimental. I would have done it because I felt like everyone was doing it – but really, I’m not that interested in commercial law.

Did you feel a lot of pressure to do it in your fifth year?

Which was your favourite law subject?

To be honest, none of them. I didn’t feel like I particularly glided through any of them, although there was content that I enjoyed more than others. Com Con was one that I really enjoyed and, funnily enough, Equity ... I think I liked Equity, not because I particularly loved the content, but because I had the best tutor who just made the course much more enjoyable

practise. Fourth year makes sense, because it’s when a lot of people start to get jobs in the law. It’s ‘clicking’ because you’ve got the application and you have the practical experience, I think, not because suddenly your brain clicks into gear in fourth year. ...

Some people doing crim in second year come out realising what their goal is. Some people graduate law school and don’t know if they would like to practise in the law.

Did you come into your degree with a goal for your future career?

When did you decide to pursue your current career instead?

Did you ever cop the 5% on an assignment?

Never.

Did you have a mentor or role model going through law school? What did you learn from them?

I have always loved learning languages, and I was very interested in law. When I was considering which careers would put them together, the only thing I could come up with was international law. From my first until my third year I used to think that I wanted to go into international law, or be a diplomat, or work in an embassy, or policy in that area. That’s how I picked my electives – I did advanced international law and international dispute resolution.

I thought about it more and realised I wasn’t really that interested in it ... In my fourth year, I got a job in the Dispute Resolution area of the AGS, and I realised ‘this is what I want to do’. I want to work in litigation.

That’s what gives me a rush.

I’ve always told my supervisor at AGS that I looked up to her. She was very supportive, and I learned a lot from her. I had two female supervisors, which was really great, having women in the profession to look up to. They encouraged me a lot during my degree.

Early on in my degree, I didn’t really know any lawyers. I didn’t have a legal background in my family. My dad is a public servant, my mum is a teacher. I didn’t even have any family friends in the law. So, my dad supported me quite a lot – [and] my manager at Officeworks when I worked there, she was a great leader and she was very supportive of me during exams. There were a lot of people who supported me on my journey, and I owe a lot to them and have a lot of admiration for them, because they enabled me to become who I am.

Was there a point in your degree did you start to feel ‘on top of’ your law studies?

Honestly, no ...

- That’s reassuring to hear, I was told everything would click when I got to fourth year, and fourth year is already here!

The ‘clicking’ happened to me when I saw the law already in

- That’s what brings you joy!

I like pressure, I like deadlines, I like a bit of a push. And litigation – that’s where it is. That led me to wanting to apply for an associateship – I wanted to see people in court.

Now, I’m considering whether I want to go to the Bar. I’ve seen barristers and advocates in action, I feel as though I could do what they’re doing, so maybe I’d like to go to the Bar. So did you do a clerkship?

I actually didn’t know that they existed. I found out about them too late ... By the time I found out about clerkships, the application process was over. In hindsight, if I knew about them I would have

I had the job at AGS, and I had heard the experiences of other people who had done a clerkship. They had really enjoyed it, but I knew from hearing about it that it wasn’t something that I would have enjoyed.

What is life after graduation actually like?

Once I finished uni, I felt as though a weight had lifted off my shoulders. There were no more looming deadlines. When I was socialising, I didn’t feel like I should actually be studying because there was something due in x amount of days. I enjoyed my free time a lot more, and could do things I actually liked doing ... I don’t feel like I’m putting something off.

If I could talk to myself 5 years ago and say, ‘This is what I’m doing now, and it’s because your hard work paid off’, that would have helped.

And the GDLP, how did that fit in with your position at the ACTSC? You only do one or two weeks in person and the rest online. Part of the GDLP involves completing practical experience, so it’s designed for people to be working at the same time. I took a week off work, smashed out the in-person requirements and was doing the GDLP alongside my job ... Think of it as a diploma, except all the classes are online.

Could you give a quick run-down of what your day-to-day might involve, as a judge’s associate?

It very much depends on the day, it’s very varied. It depends on the court list for the day – if we have something that will take up the whole day in court, I’ll get in, prepare the bench sheet (which is the document that I type the orders in). I’ll prep the courtroom and sit in court for the whole day with my judge and assist her in the courtroom.

Do you have to do much supplementary research?

Part of my job is to read parties’ submissions, get all the evidence that is available in the court file and prepare summaries to go before my judge ... That happens a couple of days before a matter.

I’ll usually do that in the afternoon while we’re out of court, I’ll prepare for the next day or the next couple of days. I’ll proofread the judgments when they’re about to be handed down. Because I am the Chief Justice’s associate, I also help draft a lot of speeches, do media releases, and other things like that.

I also really enjoy working for my judge. It’s such a privilege to work so closely with such an excellent legal mind. I’m also surrounded by lots of great people – the other judges, the other associates, the Registrars, the Registry staff ... it makes work a lot more enjoyable.

Do you take your work home with you?

Never. I can’t speak for any of the other associates elsewhere, but in the ACTSC we have a very strong culture of leaving the work at work. We do work hard when we’re at work, but there’s no expectation for you to take work home, or get things done over the weekend. I rarely have to pull a late night – it’s only if there’s something that is extremely urgent.

Do you see judge’s associateships as an alternative to clerkships and grad positions in law firms?

There’s a lot of people who do the grad program path who also do associateships. You get very different things out of them. In a grad position, you get to experience being in a law firm, being on the ground. The end goal of that is to get a position in the firm ... but an associateship is more commonly done by people who are interested in going to the Bar. They want firsthand experience of sitting in a court day in, day out and seeing advocates work ...

There are so many other pathways. There’s no one road to get to your destination. All the associates at work have taken completely different paths, all the judges have taken completely different paths to get to the same place ... I don’t think anything you do career-wise is a waste of time. A lot of the skills you need to be in the profession are things like being able to relate to someone and communicating information well. You can also learn that in retail, in hospitality, in tutoring. There’s nothing that’s inherently non-valuable.

What’s a friendly piece of advice you’d like to give law student you?

At the risk of sounding cliche, I would say, ‘It’ll work out in the end’. I think law school attracts a lot of the same groups of people, and we’re the kind of people who put a lot of pressure on ourselves to do well in everything and to not drop the ball.

I think I stressed myself out a bit. If I could talk to myself 5 years ago and say, ‘This is what I’m doing now, and it’s because your hard work paid off’, that would have helped. Though I would only say that if the future wouldn’t change from me saying that!

The real question - since graduation, have you ever looked back on your transcript and thought ‘I wish my WAM were higher’?

Yes and no? I knew I could have done better. I could have always put in a bit more time or effort and done better than I did.

But would it be worth it?

No, that’s the thing. I would not change a thing about how I did law school because in the end it got me to where I am, and it was enough.

So do you enjoy your work?

Yes. I really enjoy sitting in court, and watching court proceedings. I’ve prepped for the matter, I’ve read the material, I know what the arguments are going to be. It’s fun to watch advocates try to persuade the judge. Oral advocacy is a different skill in itself.

ARTIST: SAMIRA INGOLD INSTA: @__RA.IN__

ARTIST: JIE EN LEE INSTA: @FROGFUNGUS

WHICH ANU DEGREE SPECIALISATIONTM WILL COMPLETE YOUR LIFE & SYNERGISTICALLY REDEFINE YOUR PROFILE AS A PERSON, CANDIDATE, & FUTURE LEADER?

The anu school of law fairly recently – and fairly covertly – introduced specialisations.

The topic has been shrouded in an air of mystery – questions such as “do they matter?”, “Should i indicate one in isis?”, And “does this course even count towards my specialisation?” Pervade the group chats of later-year law-students everywhere.

Thankfully, there’s one less question for law students to ponder: “which specialisation should i work towards?”. Partake in this helpful quiz to find out!*

How do you feel about black-letter law courses? a. A necessary evil. b. If you know what you’re passionate about, they’re amazing. c. No.

Do you do a double degree that is not, in fact, Pols, PPE, economics or IR? a. ... Is this a personal attack? b. I mean no, but this is Canberra, right? c. Yes.

Would you care if someone thought you were boring? a. They’d be wrong, but I wouldn’t care. b. No, I know what I am. c. Yes!

APS – dream grad situation or inevitable doom? a. Only if its DFAT lol. b. A stable fiscal position, in this economy? Sign me up! c. You guys are getting grad jobs?

Essays – yay or nay? a. Do take homes count as essays? b. No. c. DREAM assessment, give me that 60% final essay stat.

Do you worry too much about what your peers think of you? a. Academically? Yes. Socially? No b. Socially? Yes. Academically? No c. Imposter syndrome? No, that’s for people who are competent.

Do you take notes in class? a. Of course, handwritten. Do you like my fountain pen? b. I type them. c. No. Are you disillusioned with the mechanisms for international law enforcement yet? a. No, I can fix it. b. What? That’s a weird question. c. Yes, my dreams are shattered.

Are you planning to work in litigation on graduation? a. Yes, I’ll try my best and succeed in the legal world. b. Ahahahahahahhahahahahaha no. c. No, I’ll study until I retire.

Do you feel like you’re actually just an arts student wearing a fancy hat? a. No. b. Actually, econ counts as STEM. c. Yes, but it is a REALLY fancy hat.

RESULTS MOSTLY (A)S: INTERNATIONAL AND COMPARATIVE LAW You’re driven. Like, really driven. It’s your key personality trait. Sleep is for the weak. If your extracurriculars don’t enhance your resume, they’re extracurricularen’ts. Can’t stop, won’t stop. If you never stop moving the existential crisis can’t catch up. Godspeed.

MOSTLY (A)S AND (B)S: CORPORATE AND COMMERCIAL LAW You know what you like, and you know what you’re good at. Maybe the other students don’t understand you, but that’s all good. You understand you, and more importantly, you understand the allure of a stable job. Sweet, sweet disposable income. You probably have either a beloved pet you want to provide for or a really niche hobby that you need to finance – and you’re prepared to live in a van after your midlife breakdown. That FIRE life, right?

MOSTLY (C)S AND (B)S: PUBLIC LAW So, you wanted to do the social justice one, right? Either you’re doing this as a secondary specialisation so that you can cram in more courses you’re actually interested in, or this is your only specialisation and you’re aiming to maintain the mask of legitimacy. You don’t want to be a lawyer – or if you do, you want to be a cool lawyer – policy is your friend. And your enemy, at 2 am the day before a due date. But mostly your friend.

MOSTLY (C)S: LAW REFORM, ENVIRONMENT AND SOCIAL JUSTICE You don’t want to work as a lawyer. Maybe you used to take the law a little too seriously, then took a few critical courses and re-evaluated your life choices – I’m looking at you, oh ye of the former-human-rights-lawyer aspirations. But you’re known as the cool law student in your friend group, and that heals the sting of disillusionment.

Or maybe covers it. Like a band-aid.

*Disclaimer: this quiz is not a substitute for putting actual thought towards your academic future

17

FIRST YEAR v LATER YEAR: LAW SCHOOL COMPARISON WITH FIRST-YEAR, ANDY CHEN, AND FOURTH YEAR, PIPER KEEL WHY DID YOU CHOOSE TO STUDY LAW? ANDY : I chose to study law because I love debating and analysing the ambiguity of law in general, as well as the various problem scenarios that I had seen when I was choosing what degree I wanted to do. It’s so interesting that the same set of facts can be construed to have two completely different meanings and leading to different outcomes. Furthermore, reading about different lawyers’ and judges’ train of thought about the case before them is also fascinating, and sparked my interest to study law WHY HAVEN’T YOU DROPPED LAW? ARE YOUR REASONS FOR DOING LAW STILL THE SAME AS WHEN YOU STARTED? PIPER : I have no idea why I’m still here haha. There is definitely more of a desire to be a lawyer now than when I started- law school really pushes you onto that traditional, lawyer path.

However, I still agree with my firstyear self that law is a good jumping off point for other careers but I think I’d be more inclined to practice now than when I started.

FROM YOUR EXPERIENCES, SO FAR, DO YOU THINK THERE IS A SENSE OF ELITISM AMONGST LAW STUDENTS? ANDY : There probably isn’t a great deal of elitism in the sense that “Law is superior to other degrees because ATAR/drop-out rate/workload”, but there is to some degree the more general kind of elitism due to the fact that those who do choose to study law often come from privileged backgrounds.

PIPER : Oh for sure, everyone jokes about it but I do think there is a real underlying culture of it. It’s definitely less present than it was in my firstyear though.

ARTIST: ALISON CZINKOTA INSTA: @ALISON.CZINKOTA

DO YOU BELIEVE REAL CHANGE CAN BE MADE THROUGH THE LAW? ANDY : Only to a certain extent.

I think there is a strong pushback against judicial activism, but also the fact that change can be made in the law only after an incident has already occurred, which is probably too late in most cases. Parliamentary sovereignty also results in the possibility and capability of change made through law to be repealed or changed as parliament sees fit, and thus undermining any change that is against the policies of the current government.

PIPER : It’s a hard question but I think social change is what affects real change. I’m a pretty jaded law student at this point but I like to think that the current culture and social movements are still effective in promoting institutional change.

ARE LAW AND JUSTICE THE SAME THING? ANDY : Sometimes. Sometimes law and justice align, and a satisfactory result is achieved, but at other times, the strictness of the law and of precedent means that justice is potentially not served. The human nature of juries in criminal trials also leads to potentially inconsistent decisions, and this is perhaps truer overseas where jury nullification and its racial implications are more of an issue.

PIPER : No. WHICH HIGH COURT JUDGE (NOT NECESSARILY CURRENT) DO YOU THINK YOU COULD TAKE ON IN A FIGHT? WHY? ANDY : Considering they’re all moderately close to the mandatory retirement age.....

WHAT DO YOU WANT TO DO AFTER LAW SCHOOL?

PIPER : Lord Denning. He is such a do-gooder it annoys me.

ANDY : I want to go into the legal profession, so hopefully I’ll be able to work at a law firm and work my way up as a Barrister. Or I’ll have a crisis, and go do a Masters.

AT THIS POINT IN YOUR STUDY, DO YOU THINK YOU COULD GET AWAY WITH MURDER?

PIPER : I have no idea. Masters?

WHAT’S BEEN YOUR WEIRDEST TUTORIAL EXPERIENCE SO FAR? ANDY : Haven’t really had any, but one lesson my lecturer started talking about the echo in the fellows law theatre, when the consensus amongst the class afterwards was that there definitely wasn’t an echo. Nevertheless, we just nodded and pretended there was and moved on.

PIPER : It was an LJE tutorial and my friend was tied up in a very BDSM fashion for a group project on access to justice. I think it was the first tutorial I paid attention to that semester.

ANDY : The common joke amongst my friends who don’t study law before I came to ANU was that I would be able to avoid the law in 5 years’ time and get away with murder. However, since I’ve started studying, my perceived chances of getting away with murder are dwindling more and more as I learn more about the complexities of law. One Semester in, I’ve just begun to reach the stage of “I know what I don’t know”, so considering that, I’d say slim to none.

PIPER : Well...I couldn’t not get away with murder.

WHAT ADVICE WOULD YOU GIVE TO YOUR FIRST YEAR SELF? PIPER : Get involved in the law school and remember you’re just as smart as anyone else here- some people are just louder.

19

R O B O - C O U R T . . . Y A Y, O R N A Y ?

MIKE ZHOU Technology: It is an ever-evolving phenomenon that continues to alter the direction of society. Today, we see ‘human-free’ supermarkets, completely automated distribution centers and even robo-cleaners in our local Woolies. How will this technological dominance impact the functions of the Australian judiciary in the future?

WHY SHOULD LAW STUDENTS VOLUNTEER? ANU+ AND ANU CAREERS

The national peak body for volunteering, Volunteering Australia, defines it as ‘...time willingly given for the common good and without financial gain.’

We usually expect a ‘warm fuzzy feeling’ in lieu of financial gain, but did you know there are many more benefits?

an important element of client work as a lawyer – and signal to employers your initiative and adaptability. With ANU+, you’ll be part of a structured program to do exactly that.

Below we break down these benefits, and how you can maximise your learning through the structured Award program ANU+ and engaging with the ANU Careers Team.

Throughout your mandatory study for your degree or self-sourced volunteering, there is generally no emphasis on reflecting on your motivations, values and strengths. This type of learning is vital to understand what type of workplace culture you want to be engaged in. Finding a workplace that matches your values and preferences is not a luxury but a necessity for a happy and fulfilling career that lets you perform at your best.

Employability skills – find and keep your dream job As you study, you may notice there is a lot of talk about workplace skills, employability or skills for the future of work. These skills include communication, problem-solving, leadership, self-awareness and resilience – a long list to add to your already tight schedule. As much as your law degree offers you opportunities to develop some of these through internships, law clinics and competitions, the broader your experience, the better when it comes to finding your dream job. A law degree in particular offers many different career options and it can be difficult to know which to focus on. Exposure to different work environments and projects helps you understand what type of work suits you best, builds your network and opens up new ways of thinking.

Volunteering is a great way to build that broad experience and take your personal and professional development to the next level while you’re studying. You can develop your professional skills in a low-pressure environment, connect with communities you might not usually engage with – ARTIST: STEPHANIE VIECELI INSTA: @FERALBASTARD

ANU+ develops the ‘whole student’

With ANU+, you will receive tailored learning opportunities for your development such as a strengths workshop, reflective writing guides developed in collaboration with ANU Careers and Academic Skills, and you will have access to a wide range of volunteering opportunities and events with organisations you may not otherwise had the chance to engage with.

Through a series of reflections throughout the program, you will learn to become aware of and articulate the skills you are developing and gain a deeper understanding of yourself, your motivations, strengths and values. You will reflect on how you interact with others and use those insights to make better decisions about your future career.

All your learnings, reflections and participation in ANU+ events contribute to your final submission, and you can

elect to have your participation in the program listed on your academic transcript to help you communicate your commitment to future employers.

Want to know more about ANU+?

Visit the ANU+ webpage (https://www. anu.edu.au/students/careers-opportunities/volunteering/anu) for more information and how to enrol. If you want to read more about the unique experiences of students in the ANU+ program, follow the ANU+ Facebook page (https://www.facebook.com/ANUPLUS1/). You can also email ANU+ (anuplus@anu.edu.au) who are more than happy to have a personal conversation about the program.

Want to know more about ANU Careers?

ANU Careers (https://www.anu.edu. au/students/careers-opportunities/careers) is a free service for all ANU students and graduates up to 12 months after graduation. Our services include 1-1 appointments for career planning and job application questions; career fairs, employer visits and group workshops; and online learning platforms with tools such as CV reviews, interview practice and lots more.

Get in touch with us via e-mail (careers@anu.edu.au), connect with us on Facebook (https://www.facebook. com/ANUCareers) and YouTube or browse our website (http://careers. anu.edu.au/) for more info.

In the 21st century, the Australian judicial system has proactively embraced the powers of technology and enhanced its systems accordingly. For example, we can now conduct hearings through online conferences. For efficient internal, back-office operations, federal courts in many states and territories have implemented different technological advancements. Despite these changes, Australian courts are ready to move to a purely digital platform for the progression of civil cases.

--- Hell, yeah!

Cost and Time Efficiency Technology can improve the legal system by cutting costs and efficiently administering justice in civil jurisdictions. It can enable the courts to receive, process and file a large number of claims in a relatively quick and efficient manner. As a result, there will be less backlog of cases and more prompt adjudication. Parties to legal disputes will also benefit from these technological changes. Using a digital platform will reduce associated costs, like traveling expenses and court filing fees. Overall, this has the effect of improving access to justice for everyone.

Removal of cultural barriers Technology can help minimize barriers to justice for those from different backgrounds, such as individuals from non-English speaking backgrounds and Indigenous Australians. A digital process will provide an alternative to the complex formalities and procedures associated with attending court in person, not to mention the intimidating and austere court environment. Furthermore, an online system may break down language barriers by incorporating easier translation processes.

--- Hold up... anything suss?

Public confidence and transparency Accompanying these significant benefits are potential drawbacks associated with privacy and transparency. Technology can be prone to remote, undetectable and even untraceable data breaches. Furthermore, virtual hearings may result in lower accountability and transparency as the public is unable to scrutinise the decision-making process as they might when sitting in a courtroom.

Access to technology Despite the pervasive nature of technology in Australia, there are some without access to the internet and to necessary equipment. This is especially prevalent in regional and rural areas and impacts those from low socio-economic backgrounds. If judicial processes were conducted entirely online, these groups would be significantly disadvantaged. Issues such as poor internet connection, poor sound quality or inexperience with technology can indiscriminately impact compromise an individual’s ability to claim redress. We witnessed these issues throughout 2020 as courts conducted hearings virtually as a result of COVID-19. Thus, embracing technology can give rise to new challenges.

--- So?

As society rapidly changes and continues to embrace the powers of technology, so should the Australian legal system. Technology can enhance access to justice by making court processes more efficient and reducing costs to the parties. Though we should acknowledge and address potential drawbacks associated with technology, the courts should continue to incorporate technology to enhance the legal system – enabling more individuals to receive appropriate redress for civil wrongs suffered.

23

MYOPIA - A DIFFERENT EPIDEMIC NICK BRADMAN

Modern education is contributing to the proliferation of poor eyesight among young people, but it can be part of the solution too Walk onto any university campus in Australia right now, and you will doubtless find it festooned with posters about the coronavirus pandemic—all raising awareness about, and attempting to protect students against, the spread of COVID-19. Perhaps, then, it is surprising that virtually no attention is drawn to another epidemic, one which has been sweeping Australia and the globe for decades—and to which students are especially vulnerable. This epidemic may not be so conspicuous. Yet it is present in every university library filled with diligent students whose eyes focused fervently—many with the aid of glasses—on the work before them.

Such a scene reflects what the World Health Organisation (WHO) has recently described as a ‘global epidemic’[1] of short-sightedness—caused, in part, by today’s more-intense education system.

Short-sightedness, or myopia, occurs when there is an axial elongation of the eyeball. Light entering the eye focuses in front of the retina, instead of directly on it, causing a blurring of distant objects. Mild myopia, while an inconvenience, is fixable with corrective lenses and rarely a cause for concern. A greater worry is where short-sightedness progresses to moderate and, in particular, ‘high myopia’—where anything beyond 16 centimetres (6 inches) appears blurry. These more-severe forms of myopia are closely associated with serious conditions such as cataracts, glaucoma (elevated ocular pressure) and retinal detachments—which can cause irreversible vision loss, or even blindness.

For instance, according to the Journal of American Epidemiology,[2] those with moderate-high myopia have a 10-fold increase of suffering retinal detachment compared to those without myopia. The earlier the onset of myopia, the greater the risk it will progress to these more severe levels. That is why obviating the environmental conditions that precipitate myopia in children and young adults, whose eyes are still developing, is an essential safeguard to their vision.

Precisely what those environmental conditions are remains unsettled. A lingering theory is simply that too much close-work is the culprit, spurred on

perhaps by the cliché of the bespectacled bookworm. Indeed, to many law students, including myself, this might seem intuitive; the need to squint into the hazy distance following a long exam is a form of ephemeral short-sightedness. However, this is not true myopia, but the overworked ciliary (lens-contracting) muscles remaining in a temporary state of accommodative flex. That said, WHO researchers have suggested that excessive close work associated with downward gaze, and without regular breaks, could gradually exert a biomechanical force of elongation on the eye[3]—eliciting true myopia in the long run.

However, other studies suggest that it is too much time indoors, rather than close work, that is the problem. According to Ian Morgan, of the Australian National University, insufficient time outdoors appears to be a much greater risk factor[4]—if a child spends enough time in the open, they could study all they wanted without putting their vision at risk. One theory is that when children get sufficient sunlight, this promotes the release of retinal dopamine,[5] which properly regulates eye growth. Data backs this theory up. A study comparing children in Australia and Singapore found that the Singaporean children, who spent a quarter as much time outside as their Australian counterparts, had rates of myopia at 27% by age 6— compared to 3% for the Australians.[6] Whatever the precise mechanism may be, the demand of education that children spend more time indoors doing near-work clearly predisposes them to myopia. Numerous long-term studies have found a close association between short-sightedness, and the number of years spent in education.[7] This is also supported by the staggering rise of myopia throughout Asia, especially in those countries that emphasise academic achievement. In South Korea, the rate of myopia in 20-year-olds has jumped from 18% in 1955 to 96% today. Over the last 40 years, rates of short-sightedness in places like Hong Kong, and Singapore have risen from about 10-30% to over 80%.[8] But the problem is a worldwide one.[9] Globally, about 30% of the

population are already short-sighted. By 2050, about 50%, or 4.8 billion, will be myopic. Nearly a billion of these will suffer from serious high-myopia.

While Australia may have been spared from the worst health consequences of COVID-19, we are not immune from this eye-health epidemic. About 36% of Australians are currently short-sighted; by 2050, 55% are predicted to be so.[10] Indeed, many experts have expressed concerns that COVID-19 will indirectly accelerate this proliferation of myopes. Lockdowns and online-learning systems have meant more time spent time in front of screens and less time outside. Preliminary research already indicates that this is increasing children and young adults’ chances of developing myopia.[11] Law students on their umpteenth online lecture or Zoom class of the week should take note.

Of course, education is not the sole culprit here. The now-ubiquitous use of new technologies such as laptops and smartphones are obviously accomplices—whether because they promote further near-work, or they keep people indoors. Nonetheless, education systems should recognise their significant role; and know that although they are part of the problem, they can be an important part of the solution too. Students should be encouraged to take frequent breaks from close work—such as following the 20/20/20 rule (every 20 minutes, look at something 20 feet away, for at least 20 seconds). There could be reminders on the front of, or during, lessons and exams. If inadequate sunlight is the primary cause, then longer breaks outside, or classrooms with more natural light, would be salutary changes. As they have done with the coronavirus pandemic, schools and universities must reflect upon the ways they safeguard their students’ health. With more education, more study may be inevitable, but short-sightedness is not. Education can broaden a student’s horizons; it need not make them blurry.

ARTIST: ROMBUTAN INSTA: @ROMBUTAN

THE FUTURE OF WORK JESSICA HOEPS

You won’t be replaced by robots, but you might become a digital nomad The prospect of graduating, in the midst of a pandemic, a declining job market and with accelerating technological innovation is enough to give any student anxiety. COVID-19 has shaken the workforce and forced millions of employees into sweatpants in this jarring remote-working experiment.

Even in our sheltered Canberra bubble, we weren’t (and aren’t) immune to furloughs and redundancies. And through it all, technological innovation has left many workers to have automation anxiety, with claims that robots will replace 40% of jobs within 15 years![1] But amid the tragedy and uncertainty, this crisis presents an opportunity. When, where, and how we work is fundamentally changing, and we have the chance to influence it. So, what does the future of work look like? Here are five reflections.

1. Job Security in The Fourth Industrial Revolution

Industry 4.0 has us asking questions about the future security of the labour market. Increasingly, organisations are turning to technology to fulfil roles with greater efficiency. Does this mean that there will be fewer jobs to go around? This fear has resurfaced time and time again; our jobs have been displaced by machinery and automation since the invention of the first mechanical loom in 1784. In 1928, workers were horrified that “in concrete construction, building materials are mixed like dough, in a machine and literally poured into place without the touch of a human hand.”[2] While technology is replacing jobs in industries such as manufacturing, agriculture and transport, we shouldn’t be too concerned that there won’t be enough jobs to go around. It’s a lot easier to notice jobs being lost than it is to see jobs being created. Although new technology displaces some jobs, it creates new ones to build, maintain and improve that tech. Sometimes, it can create whole new industries. We tend to forget that these technologies also result in higher productivity, allowing for organisational expansion and reduced prices, which, in turn, create even more jobs and even more expansion.[3] Moreover, this shift frees workers from menial tasks and allows them to dedicate their time to more meaningful work. Thanks to these offsetting effects, while automation does displace workers, it doesn’t reduce the number of jobs in an economy. That’s not to say that these emerging jobs will be at convenient times, in convenient places, or demand the convenient skills already at work, but the demand for human work is not going anywhere. The common saying “you are preparing for jobs that don’t even exist yet” is right. The difficulty lies in anticipating what these jobs will be.

2. Work is where the Wi-Fi is

If you hadn’t noticed while working and studying from your living room, employment is becoming increasingly flexible.

Remote work allows millions to hold full-time positions while being geographically independent. This digital nomadism[4] has exploded since the start of the pandemic. COVID-19 has pushed the envelope on flexible working arrangements and employers have been forced to adapt.

Countries have taken note as well; to attract these digital nomads in the midst of travel restrictions, Barbados has introduced a yearlong visa facilitating remote work,[5] fulfilling everyone’s dreams of working on an island paradise! On the

other hand, this shift has impacted once-thriving businesses like WeWork, a start-up once worth $47 billion that offered flexible workspace and office arrangements. WeWork started collapsing before COVID-19 sealed the deal, as organisations realised that an office space just wasn’t as essential to productivity as once thought.[6] While we don’t know if we will revert to pre-COVID working arrangements, it’s safe to say demand for flexible and remote work will remain.

3. Changing Entitlements of Casual Work

A Federal Court ruling in May 2020 saw changes to the way casual workers are defined.[7] This ruling aims to provide leave entitlements to casual employees who have “regular, certain, continuing, constant and predictable employment”, pertaining to around 1.6 million casual workers.[8] On 17 June 2020, WorkPac Pty Ltd applied to the High Court of Australia seeking special leave to appeal this decision. Offering leave entitlements for workers previously on a casual contract is a big win for employees who want the security of a permanent contract, but it can also force workers into parttime contracts when they would prefer casual loading and greater flexibility. Time will tell whether this move to provide greater security to de facto part-time or full-time workers on casual contracts will stick, and what effects it will have.

4. The Duality of the Growing Gig Economy

On the subject of job security, the gig economy continues to grow and thrive. Gig workers, like freelancers, independent contractors and agency temps, trade in the stability of a 9 to 5 in favour of autonomous work with a flexible choice of hours and wages. The emergence of digital talent platforms that link workers with employers are a driving force behind this gig economy boom. As the gig economy continues to grow, it’s likely that traditional corporate structures will need to adjust.

A core team might embody the values and philosophy of a company whilst the majority of tasks are allocated to temporary workers. While this seems a favourable shift for some, others are forced into the gig economy out of necessity. Research has found that the gig economy thrives off hardship and instability and that companies such as Uber can forgo a lot of employer requirements by hiring contractors instead of employees themselves.[9]

5. The Economics of Wellbeing

In the current climate, workers are feeling more isolated and are struggling with their mental health more than ever.[10] Employers need to continue adjusting their management practices to recognise the importance of an employee’s physical and mental wellbeing. Although we still have a long way to go, our workplace cultures are shifting! We are seeing a greater emphasis on employee wellbeing, diversity, inclusive family leave, more fluid and flatter organisational structures and purpose-driven work. Moreover, the number of two-income families demanding flexible working arrangements continues to grow. Employers are listening and investing more in employee wellbeing initiatives.[11] The research is undeniable; making work more engaging and less stressful will increase productivity, while reducing absenteeism, turnover

rates and insurance costs.[12]

25

6. From Hands to Head and Heart: Skill Shortages

While the move from manufacturing to skills-based work is a rite of passage for any industrial development, we are continuing the shift from ‘hands’ (manual labour) to working with our ‘heads’ (cognitive tasks). As technology and society evolve, we must emphasise work of ‘the heart’; humans interacting with humans, creativity, critical thinking, emotional intelligence, and leadership skills. While qualifications are important (heck, I’m not accumulating this HECS debt for nothing), there is a growing emphasis on skills rather than occupations and qualifications.

This is where technological innovation is less successful at augmenting human effort: 97% of Australian jobs require customer service skills and 70% require verbal communication skills. Australia has a significant skill shortage in management, leadership, problem-solving and conflict resolution, and employers need to adapt quickly to hire and grow these skills. Developing these in-demand skills is vital for a future worker and there is nothing ‘soft’ about them.

Conclusion:

While all this change and uncertainty is daunting, we have the ability to equip ourselves with the right tools and skills.

Digital transformation and human-robot interaction are allowing us to spend less time on menial repetitive tasks, and instead place us in a position to choose dynamic careers that interest and challenge us. We must realise that the future of work is now, and the future of work is human.

“ While all this change and u n ce r t a i n ty is daunting, we have the a b i l i ty t o e q u i p o u r selves with the right t o o l s a n d s k i l l s . . . . We must realise that the f u t u r e o f w o r k i s n o w, and the future of work i s h u m a n .”

ARTIST: STEPHANIE VIECELI INSTA: @FERALBASTARD

27 NO SUCH THING AS CONVENIENT PROTEST: THE IMPORTANCE OF PROTEST RIGHTS IN POLITICISED ENVIRONMENTAL LAW David Ferrell Australian governments are currently driving a worrying trend towards the suppression of political protest rights, particularly regarding environmental issues. In December 2019, Australia’s democratic ranking was dropped by CIVICUS Monitoring, a body assessing the civic freedoms of countries, from ‘open’ to ‘narrowed’.[1] The accompanying report took aim at the suppression of climate protests, and an illiberal, antagonistic stance towards ‘some of the biggest peaceful climate protests in the world.’ CIVICUS Advocacy Officer Lyndal Rowlands says ‘we’re [increasingly] seeing a climate of intimidation aimed at discouraging dissent.’

It is a trend which our federation exhibits at all levels. The CIVICUS report followed shortly after the Summary Offences and Other Legislation Amendment Act 2019 (Qld) passed through Queensland’s parliament with near unanimous support: 86 votes to one.[2] The Amendment, which followed a series of environmental protests by the Extinction Rebellion group, criminalises the use of ‘dangerous attachment devices’.

It immediately met with high profile objections that the new offences could unreasonably suppress legitimate, peaceful protest and the right of political expression.

Among the voices, a joint letter by UN Special Rapporteurs expressed ‘serious’ concern that

the Act criminalises peaceful protest, acts of civil disobedience, and non-violent direct action, and further that mandatory and disproportionate penalties could ‘[silence and punish] human rights defenders and any dissenters that hinder, obstruct or prevent lawful activity.’[3] The Rapporteurs emphasise that it is not the nature or purpose of legitimate, peaceful protest to be entirely non-intrusive. ‘A certain level of disruption to ordinary life’, they say, ‘must be tolerated if the right is not to be deprived of substance.’[4] If this notion strikes Queensland legislators as familiar, that would be because it echoes the sentiments of the High Court in Brown v Tasmania,[5] where the court struck down Tasmania’s Workplaces (Protection from Protesters) Act 2014 (Tas) for derogation of Australia’s Constitutional implied right of political communication. Andrew Edgar describes the case as marking ‘a shift in judicial understanding of protests: from minimal acceptance that is commonly overwhelmed by other interests, to a feature of representative government that is protected by the Commonwealth Constitution’.[6] And yet two years later, in 2019, the government tabled amendments to the legislation, boasting that the new laws will be the strongest in the country.[7] Strong enough even that a person who ‘threat-

ens’ to protest (by ‘[impeding] the carrying out of a business activity’), including on social media, will be subject to fines of around $5000. Evidently, the government intends that the amended Act will escape the accusations of ‘disproportionality’ and ‘indeterminacy’ which the High Court levelled against it in Brown v Tasmania.[8] However, submissions to the Bill, such as by Gilbert + Tobin Centre for Public Law and the UNSW Centre for Crime, Law and Justice, express grave doubts that this is the case.[9] The Tasmanian amendment demonstrates the willingness of governments to restrict the right to protest to its absolute constitutional limit. The suppression of disruptive but peaceful protest is illiberal and inappropriate of a democratic government, and it is particularly so in the context of environmental law, whose application and practice remains deeply political. It is a regular criticism of environmental law that it is bogged down by weak political will and conservative application.[10] While the objects of environmental legislation often carry a ‘strong sense of ambition’ the law is failing to achieve environmentally sustainable development.[11] Australia’s central piece of federal environment legislation, the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) (‘the EPBC Act’), for example, was intended to allow Ministers to protect aspects of the environment of ‘national significance’ and ‘natural heritage’ from ‘significant impacts’ via Ministerial approvals. However, the decision to reject approvals has been exercised only 20 times since it came into force in July of 2000, representing only 2% of outcomes on developments brought before the Act. [12] It is a central criticism of the Interim Report of the Independent Review of the EPBC Act that: ‘current arrangements, buried within hundreds of statutory documents, fail to provide clearly defined and specific rules, and they enable considerable discretion in decision-making.’[13] Discretion to simply ‘have regard’ to environmental, economic, and social factors is not sufficient to ensure the substantive outcomes of the Act, and obligations to consider ‘key principles’ of sustainability do not ensure that they are given sufficient weight or prominence.

This excessive discretion in the decision-making of environmental law renders it not very ‘legal’ at all. The undirected, discretionary character of the law renders the protection of the environment over other interests, in the words of ACF chief ex-

ecutive, Kelly O’Shanassy, ‘optional’.[14] The effect of the above factors is to make that decision also a politically compromised one; one which may be thankless within one’s own party.

Consequently, the key recommendation of the Report was the establishment of ‘clear standards’ requiring the Minister to actually apply and deliver the objects of the Act and the establishment of an independent authority that is ‘not subject to actual or implied direction from the Commonwealth Minister’.[15] These measures would reduce the capacity for decision-making in environmental law to stray from its objects, under the influence of extraneous or overvalued competing considerations, such as those of the ‘business interests’ referenced in Tasmanian legislation.

The Federal government has however quickly refused to establish an independent regulator or implement National Environmental Standards.

[16] The government instead has introduced the Environment Protection and Biodiversity Conservation Amendment (Stream lining Environmental Approvals) Bill 2020 (Cth), which devolves the operation of the EPBC Act to the States. This will not solve the problems of environmental law identified by the Report. Unless meaningful legal obligations are put in place to ensure the substantive outcomes of environmental law are realised, they will remain vulnerable to the disincentives which surround conservation.

Ultimately, Australia is a green nation. This was the ‘overwhelming message’ received by the Interim Report.[17] Surveys endorsed by the World Wildlife Fund find that 80% of Australians agree that Australia should act now to control environmental damage.[18] According to surveys

by CSIRO, only 8% of Australians are ‘climate change deniers’, while 64% believe it is happening and the product of human activity.[19] Yet for all the politicisation of environmental law, it is not finding its way to meet the concerns of the majority. It has contributed to an undermining of Australian faith in governance and the power of their vote.[20] It reflects the sentiment of Extinction Rebellion protests that ‘the Government is not representing the people’.[21] If environmental law is to remain governed by political impulse then the accountability and dissent of political protest remains an essential defence and mechanism in that system.

ARTIST: ANNA MOSCATO INSTA : @ANNAMS.ART

LESSONS FROM

Some questions about corruption and immorality

By Anonymous

walks

THE FILM The plot of Chinatown is a lot like the water which defines the events of the film. The sick conspiracy seeps into every scene, as the helpless characters are swept away in a tsunami of intrigue, mystery and darkness. Chinatown begins with the death of its only hero as the story is told through the eyes of a clever, arrogant and seemingly incredulous private investigator Jake Gittes as he is set up to follow the threads of two conspiracies, one political and one personal. It doesn’t take him long to find himself caught in an all-powerful current of ambition, manipulation and darkness as he meets the guarded but beautiful Evelyn Mulwray, the daughter of the city’s titan of business, the old and rich Noah Cross. As he witnesses gallons of water dumped into the sea next to a city in drought, finds sabotaged water-supplies all throughout the country-side and meets aged-care residents who together are the ignorant owners of an entire valley, he begins to put the pieces of this conspiracy together. Gittes determines that the city’s water department is deliberating drying up the land to lower the price on Cross’s orders so that he can buy the land and sell it back to the city for a magnificent profit. But this doesn’t explain Evelyn sneaking off in the middle of the night to comfort a girl who Gittes saw with her husband, the dead hero. With no other choice, Evelyn reveals that the girl is the product of rape and incest, the girl is her sister and

slips into the shadows. Gittes just indifferent.

Chinatown isn’t easy to watch. Like Cross and his cronies, it is always one step ahead of its audience, daring them to hope that the worst is over and that the only corruption is political and financial, not moral. Every time I thought that the mystery had finally been solved and that I thought I knew where the film would end up, I was wrong. The final evil is worse than most could possibly imagine and the ending will leave you feeling both hollow and horrified. The juxtaposition of the glorious Los Angeles skyline, the mighty government buildings and the glow of the ocean with the depravity, the sickness and the corruption of its inhabitants makes a strong point about the simplicity and the banality of evil. Millions of people are having their water stolen from them by their own government and the unofficial father of the city, Noah Cross, is really the devil incarnate. The city’s only hero dies in the first 10 minutes of the film, the victim is punished and the villain rewarded, and the only man with the knowledge and the power to stop it all simply walks away.

For me, the defining line of Chinatown comes when Jack Nicholson’s private investigator Mr Gittes confronts the villain, a rich and charming but evil and twisted old man, just before the climax of the film.

They meet in the Spanish villa of the apparent femme fatale just after dusk. The sky is a deep shade of blue, the type you’d only find in an aquarium just after dark with just a hint of the shaded fallen sun in the background. The camera frames the shot so that the crime scene where it all began sits in between them, a calm and serene little pond awkward in the middle of the garden. The old man is not that much taller than the protagonist but he looms large in the shot, casting a long shadow with his cowboy hat disappearing off-screen. Having discovered the old man’s scheme to own almost all of Los Angeles by controlling the water supply, the protagonist simply asks ‘how much are you worth?’, the old man, missing the point says ‘well I don’t know, how much do you want?’. The protagonist persists and asks, ‘why are you doing it? How much better can you eat? What can you buy that you can’t already afford?’. The old man is shocked by the question and replies with a confidence only reserved for those with big minds and small hearts, ‘the future Mr Gittes. The future’.

This is the sick beauty of Chinatown, a film that delights in its depiction of immorality, corruption and evil. Despite its penetrating darkness, it might be the most colourful film noir ever made. In Chinatown the marriage of style and substance is a perfect and happy one.

The film is beautiful to look at, characterised by wide shots of Los Angeles in the 1930s and defined by the contrast of the lush and the barren which complements the plot’s struggle between good and evil. The film might appear charming at first, but from the first scene, you never shake the feeling that something is deeply wrong. The director builds this incredible sense of dread and curiosity which never dissipates, it just grows stronger and darker. Chinatown is about a complicated labyrinthian conspiracy defined by mystery, cloak and dagger and political malfeasance. But the story Chinatown wants to tell is much simpler. Strip away the questions, the secrecy and the violence, Chinatown simply states that corruption can come in many forms, it can be guarded, obvious or indifferent. In Chinatown there is a difference but not a separation between corruption of the mind and corruption of the soul.

away,

THE LESSONS And yet, I keep coming back to Chinatown. Forget Thanos from Marvel, Emperor Palpatine from Star Wars or the Night King from Game of Thrones, Chinatown’s depiction of evil is honest, real and deeply disturbing. There are no magic powers, no epic battles and no one foils the evil plot and saves the day, in the end an old man simply gets what he wants. Chinatown’s big reveal is that evil is often right in front of us, clear as day and yet completely ignored and that the real villains look exactly like ourselves and most of the time, they win.

her daughter.

Just before Evelyn and her daughter can escape Cross and his web of evil, Evelyn is killed by a confused policeman, and Cross clutches his last daughter close, takes her away and

Ever since I first watched Chinatown early this year, I’ve been thinking a lot about when it was released. In many ways I think Chinatown defined a whole decade without even realising it. Chinatown was released in 1974 and like the film, the 1970s were plagued by corruption, moral failure and a darkness that defined the whole decade. The political and economic model on which the world rested since the 1940s had collapsed spectacularly as stagflation took hold and unemployment soared. Leaders came and went like weather as elections were held more frequently but became less and less decisive. The Vietnam War still had another year to go, but the public had long ceased to believe that the war was worth fighting for. By 1971 the Pentagon Papers had been released, the Vietnam War was revealed to be built on lies and in 1972 alone, 40,000 American soldiers had died fighting a war that the west would lose just three years later. Just two months after Chinatown was released, the Watergate scandal reached its climax after two years of congressional hearings, a presidential election and a supreme court order when Richard Nixon finally resigned. It’s hard to think of a better real-life example of the kind of corruption and conspiracy seen in Chinatown than Watergate. A sick but clever old man covered-up crimes, bombed innocents and betrayed his people and himself when he was already the most powerful man in the world. At least Noah Cross wasn’t the President of the United States. The 1970s would see four prime ministers in the United Kingdom, three presidents in the United States and three prime ministers in Australia as well as our greatest constitutional crisis. It was more than anything a decade of decay, when the world fell apart only to be built up again in the 1980s. The moral decay depicted in Chinatown seemed to both represent and predict an era compromised by disillusionment, indifference and corruption.

The state of the world in the 2010s and the early 2020s has more than a couple of things in common with the era of Chinatown. Political instability, check. Economic uncertainty, check. Civil unrest, double check. The defining events of the last 13 years since the Global Financial Crisis have been characterised by Chinatown’s version of corruption, an ugly and foul blend of political malfeasance and moral turpitude. For me, the lasting lesson of Chinatown is that material corruption, whether it be for money or power, is usually accompanied by the moral corruption of the individuals involved. Where one finds a scheme to rob a bank, to rig an election or to frame someone for a crime they didn’t commit, they will find acts of personal horror and individual cruelty beyond their wildest imagination. Donald Trump tried to pay Ukraine to investigate his political opponents and then sent an angry, violent and deranged mob to the United States Capitol when a failed re-election bid damaged his ego. The Australian government is planning to mandate a flat-tax which will see someone on $40,000 a year pay the same rate as someone on $200,000 a year. After the revelations of Brittany Higgins and others, the same government was more interested in holding onto power than apologising and atoning for its failures.

Corruption appears to cut both ways, compromising both hearts and minds alike.

Chinatown does paint a fascinating portrait of humanity and the times we live in, even if it’s not a pretty one. The dual corruption of Chinatown came to reflect the decade of its release and its lessons are still just as relevant today. Of all the characters, Cross is who I keep thinking about. What do you think he meant when he talked about wanting the future? Does he want it for himself? Or has he convinced himself that his corruption and his conspiracies are justified? Everything about his character suggests he has no problem with his behaviour. He is a man completely at peace with himself.

Maybe his confidence comes from the fact that he is oblivious to his own corruption and immorality. He appears to believe that he is good. Maybe this is Chinatown’s depiction of the real power of immorality, it makes the corrupt believe that they are righteous and just.

Just after Cross has shamelessly revealed his plan to us, Gittes asks debasingly if he blames Evelyn for what he did to her. Cross replies ‘I don’t blame myself. You see Mr Gittes, most people never have to face the fact that at the right time and the right place they are capable of anything.’ I hope that the times prove this to be false.

are by that fact a member of the SRC[9] and are arguably otherwise taking part in the management of ANUSA.[10] The consequence of being an officer of ANUSA is that you are subject to several legal duties. These include statutory duties in the Act,[11] including a ‘duty’ to disclose material personal interests[12] as well as duties of good care[13] and good faith.[14] Further, ANUSA Officers would appear to be subject to the duties to prevent insolvent trading in s 588G of the Corporations Act 2001 (Cth) due to its expanded definition of ‘company’.[15] As with directors of a company, officers of ANUSA would also be subject to common law duties as well.[16] If you recall LAWS2203 or have a passing familiarity with corporations’ law, this might make student leadership a more intimidating prospect. It is indeed crucial that you keep them in mind. The Disputes Committee have ruled that there is an implied term in the ANUSA Constitution that ANUSA Officers must comply with the Act.[17] Hence, breaches of the statutory duties would arguably be grounds for your removal as an officer.[18] While this is yet to be argued in the Disputes Committee, it is arguable that a breach of common law duties would also be grounds for removal.

[19] Finally, it is important to note some statutory duties even have actual penalties attached to them – a sword of Damocles to hang over those wearing the crown of student officer.

ANUSA Constitution, the Councils, and the Disputes Committee – ‘What does it all mean!?’

As an incorporated association, ANUSA has rules that regulate their activities and that of their officers. Strictly speaking, ANUSA do not need to draft tailored rules as there are model rules in the Act that ANUSA could adopt.[20] However, ANUSA has decided to adopt their own ‘custom’ rules, in the form of the ANUSA Constitution.[21]

A N US A A N D I T S CO NS T I T U T I O N A GUID E TO S OM E LEG A L A S P E CT S O F B E I N G A N A N U S A O F FICER KEVIN TANAYA

The dawning of Semester Two is a special time for ANU law students. For first-years, it is the time of settling and reconciliation with their studies of law. For second- and third-years, it is a time to think about electives or honours thesis topics. For penultimate and final year students, ‘tis the dreary season of clerkships and grad jobs applications.

So too does Semester Two return with the prospect of participation in student politics. That’s right: the ANUSA elections are upon us again, as for time immemorial. In my 5 years at the ANU, I have found no aspect of ANU student life more fascinating than student politics. Certainly, none attracts a comparable eclectic blend of amazement, frustration, bemusement and boredom - often at the same time.

As a law student, it is natural to be interested in or even asked to run in an election. Some of you may have already filled the ANUSA Elections EOI form, or, indeed, may have started organising your ticket. Law students can bring valuable skills and perspectives to the table. Your knowledge, or at least familiarity, with principles of corporate or contract law are a great help to the good governance and proper administration of ANUSA. Indeed, the knowledge of law in general and its interaction with public policy are valuable for any student advocate. This is before mentioning the skills and knowledge that you may bring from a second degree or beyond.

However, respectfully, I put it to you that your skills and perspectives cannot be fully utilised without proper knowledge of ANUSA and its governance structure. While I cannot offer any advice in relation to election canvassing or campaign tactics, I can draw from my experience being a member and Chair of the ANUSA Disputes Committee to describe briefly the nature of ANUSA and its constitution for the benefit of any prospective or current student leaders.

ANUSA as an incorporated association – ‘Oh no, directors duties again?’

It is useful to start by outlining the legal status of ANUSA and the consequences of that status. ANUSA is an incorporated association registered in the ACT under the Associations Incorporation Act 1991 (ACT) (‘The Act’). Unlike companies, incorporated associations are not regulated through one federal statute,[1] with each state and territory having its own association legislation.[2] Further, an incorporated association cannot be run for the pecuniary gain of its members.[3] Much like companies, however, incorporated associations have a separate legal personality[4] and the capacity of any natural legal person upon incorporation.[5] If you are successfully elected either as an ANUSA Executive or a member of the Student Representative Council (‘SRC’), you will become a member of the ANUSA’s Committee.[6] This means that you are an ‘officer’ of ANUSA.[7] The same is true if you are elected as a College Representative[8] given that you

Given its importance, I recommend that you have a read of the ANUSA Constitution yourself. One of the most important institutions it set up is the aforementioned Student Representative Council (‘SRC’). The SRC serves as the main accountability forum for ANUSA.[22] The SRC has significant power, but it can only exercise its powers in a validly convened meeting.[23] The ANUSA Constitution also established College Representative Council (‘CRC’), which is meant to be a forum to address specific issues faced by students of the respective academic colleges of ANU. Most colleges, including the College of Law, are represented by two college representatives each. The CRC performs a crucial role by ensuring that issues are not overlooked by ANUSA just because there are comparatively fewer undergraduate students in particular colleges of the ANU. The ANUSA Constitution also established a number of ‘external’ accountability mechanism, including the Disputes Committee.

[24] The Disputes Committee has jurisdiction to consider the validity of removal of ANUSA officers as well as allegations of breaches of the ANUSA Constitution, regulations and policies.

[25] It is also required to give reasons for its decisions[26] and operate according to natural justice.[27] An uncommenced amendment to the ANUSA Constitution appears to also give the Disputes Committee the final say over interpretation of the ANUSA Constitution. In this sense, it is arguably accurate to describe the Disputes Committee as the equivalent of a ‘High Court’ for ANUSA,[28] even though it is not of course formally a court nor presumes to represent itself as one.

What then are the applicable principles to interpreting the ANUSA Constitution? The starting point for the inquiry is the Act itself.

Much like a company constitution, the ANUSA Constitution binds ANUSA and its members as a contract.[29] Provided that the provision of the ANUSA Constitution is not inconsistent with the Act

or another law of the ACT,[30] the provisions must therefore be interpreted in accordance with ordinary principles of contractual construction.’[31] As you know, treating company constitutions as a contract is not without difficulties- difficulties that have long been sanctioned and tolerated by the law.[32] However, these difficulties are arguably aggravated in the case of constitutions of incorporated associations. Take, for example, the established rule that the parties to a contract can be assumed to have intended a commercial result and not to produce a commercially absurd result.[33] While the rule is not absolute, is it even reasonable to assume that the contract of an incorporated association is to be interpreted commercially? On one hand, ANUSA and other associations can and do engage in commercial activities.[34] Engagement of support staff and contracting for equipment to be used during O-week are clear examples.[35] On the other hand, it cannot be said that ANUSA is a ‘commercial’ entity in the same sense as a, say, ordinary proprietary or public companies. As discussed above, ANUSA cannot be run for the pecuniary benefits of its members, ANU undergraduate and pathway students.

[36] Indeed, it does appear that from its genesis the association incorporation legislations were meant for entities whose activities were predominantly commercial and acted as a complement to ‘general’ companies legislation.[37] Further, as a student union, ANUSA is arguably a sui generis entity with welfare, social, recreational, commercial and, of course, political aspects.[38] The dilemma can be illustrated by s 26 of the ANUSA Constitution, which was recently before the Disputes Committee. Section 26 is a freedom of information provision that allows members of ANUSA to request access to documents in ANUSA’s possession, subject to some exceptions. From a ‘commercial’ viewpoint, it is arguable that s 26 should be read narrowly. Commercial parties may expect confidentiality in their dealings and to read the provision widely could hamper ANUSA’s ability to engage with potential sponsors and other commercial entities. On the other hand, if one works from the premise that ANUSA is a sui generis entity, s 26 can be read widely by recognising its evident accountability-enhancing purpose. Even in the context of commercial dealings, ANUSA members are arguably entitled to know who ANUSA is dealing with and whether they are ‘unethical’.

These difficulties do not mean we should not apply the principles of contract law when it comes to the ANUSA Constitution. At any rate, we are bound to do so until there is a legislative change. It does mean that it is necessary to keep these difficulties in mind when dealing with the ANUSA Constitution, and indeed its regulations and policies. As with statutory interpretation, there are difficult questions and often no straightforward answers.

Conclusion This article does not claim to cover every issue that would be relevant to being an ANUSA representative. For instance, I have not discussed the operation of the ANUSA Standing Orders, which regulate the actual conduct of debate in ANUSA meetings.

Neither have I discussed the Education Committee or the Clubs Council, two prominent and important ANUSA institutions. Nevertheless, it is hoped that the article has been helpful when it comes to a basic understanding of ANUSA and its governance and disputes structures.

Kevin Marco Tanaya is a 4th Year Law / PPE Student and the current Chair of the ANUSA Disputes Committee.

ARTIST: JIE EN LEE INSTA: @FROGFUNGUS

31

33 A N I N T ROV E RT ’ S G U I D E TO O N L I N E DAT I N G ANONYMOUS

If, like me, you’d rather face a 10-hour Administrative Law exam than the sweat-inducing nuances of yet another awkward Tinder first date, then this one’s for you.

First things, first: The Platform Cut through hours of scrolling across 5 different apps.

Second, bite the bullet and dedicate a set amount of time towards giving it a go.

Finally, take the pressure off yourself and go in with zero expectations.

If you’re an introvert, then your social media batteries are probably already in the negatives after chatting to just one new potential candidate. Forget the reasonable person test, a reasonable introvert would say a hard no to the pressure of downloading every dating app to exist, and just focus energy on the platforms that are most likely to deliver what you’re looking for.

It’s tempting to delete those online dating apps as quickly as you’d scoot out of a zoom tutorial the moment breakout rooms appear, but stick with it. The idea of online dating is terrifying and exhausting if you’re approaching it with no plan and no deadline. Break it down for yourself and dedicate a weekend, or a week or a month towards actually trying it out and messaging people. That gives you time to charge your introvert batteries in the ‘off’ periods, and to try out online dating at more quiet times in life when you’re not juggling a million things at once.

Sometimes the hardest part about online dating is the pressure we put on ourselves to be funny enough, smart enough, attractive enough. If you’re scared to take the first step, try going on a few first dates where you’re not super invested so you don’t feel pressure to get it right the first time - treat it as a trial run.

If this is not your first rodeo, the same rule applies. Don’t put pressure on yourself to find the right person or be the right person. Each date is just an opportunity to get to know someone new, or at worst, to get a new story to tell at drinks on the weekend.

ARTIST: ALISON ZAI INSTA : @ALISONZAI

Democracy in Samoa The Island’s Constitutional Crisis Charlie Barnes & Elliott Merchant Alexis De Tocqueville once wrote in his work Democracy in America ‘Nothing is more wonderful than the art of being free, but nothing is harder to learn how to use than freedom.’[1] In Samoa and the rest of the world, our ability to use our freedom is being tested. Samoa is in crisis. As of the 16th of June, almost a month after its closest election in history, the island nation remains in political deadlock. The government is at war with itself as the legislature battles the judiciary and the executive sits on the sidelines. It is a constitutional crisis like no other. The election result has been invalidated only to be declared valid the next day, a failed candidate has been seated and unseated and the country’s other Prime Minister was inaugurated in a tent after her opponent literally locked up the legislative assembly.[2] Samoa is at a critical point in its history. How this crisis is resolved will determine the fate of democracy in Samoa for generations to come. But this crisis does not exist in isolation of the rest of the world. It is part of an authoritarian clique which has taken the world by storm over the past decade. If we pay enough attention we might just learn something about our own constitutional history and our own democracy.

The Constitution of Samoa The Samoan constitution is

a fascinating experiment in democracy. The system of government it prescribes and the customs it entrenches are common in all constitutional democracies. Based on the British system of parliamentary democracy, there are substantial parallels between the Samoan and Australian constitutions which both emphasise the primacy of the legislature yet protect a distinct national identity. An understanding of the Samoan system of government is crucial to any appreciation of the significance of Samoa’s current constitutional crisis.

It is the relationship between each branch of government, the powers of their leaders and the distinct national character of Samoa’s constitution which explains this crisis and shines a light on the fragility and importance of democracy.

Like other nations in the south-pacific, Samoa has a long, rich and overlooked history. Samoa was first known as a stop for American trading and whaling ships in the 1800s and then became home to Christian missionaries in the 1830s.[3] In the lead up to the first World War, Samoa was torn apart by two great powers as the competing interests of the German Empire and the United States led Samoa into two civil wars raging from 1886 to 1899 and the partition of the Samoan archipelago in two.

[4] In 1914 as part of the First World War, New Zealand invaded German Samoa and exercised complete colonial control of the country, characterised by incompetence, contempt and cruelty.[5] After almost half-a-century of colonial rule, Samoa was finally granted independence in 1962.[6] Its constitution resembles a marriage of Commonwealth parliamentary democracy and the system of chief councils which had governed the archipelago long before it was first occupied in the late 1800s. The government of Samoa con-

sists of a head of state (the O le Ao o le Malo), a head of government (the Prime Minister), and a Supreme Court led by the Chief Justice.[7] The courts operate on the systems of both English common law and local customs and are often more engaged in the political system than other commonwealth courts. Constitutional convention dictates that whoever commands majority support of the legislature (the Fono Aoao Faituafono) will become the Prime Minister.

[8] Constitutional primacy is vested in the legislature as the chamber which forms government.[9] This is incorporated with the system of chief councils, as only holders of family chief titles (matai) can run for election to the Samoan parliament.

[10] The composition of the executive also incorporates this system, with the head of state acting as the supreme paramount Chief of Samoa and being elected by the legislature.[11] Because the legislature informally elects the head of state, Samoa is considered a republic, not a constitutional monarchy. Samoa’s constitution reflects an indigenous political system in the context of a parliamentary democracy which both affirms a commitment to representative democracy and protects a distinct national and cultural identity. This means that the commonwealth-sourced legislature, the executive and the judiciary are subject to and qualified by the traditional customs and hierarchy of Samoa, entrenching their history into an adopted and foreign political system. You might assume that a system of government which reflects tradition, protects a distinct cultural identity and entrenches a parliamentary democracy would go unchallenged and without threat of collapse for centuries. You would be wrong. All it took for the incumbent Prime Minister to set off an unprecedented constitutional crisis

and plague his country with political gridlock was a close election and the support of one man.[12] With just the Speaker of the legislative assembly, the Prime Minister declared the election of his opponent invalid, locked up the legislature and threw his country into chaos.[13] Now Samoa is a parliamentary democracy with an empty parliament, two Prime Ministers and an executive at war with the judiciary. Instead of a shining beacon of culture and democracy, Samoa’s constitution appears to be worthless, an epic conglomerate of nothing.

The Crisis Samoa has a unicameral parliamentary system with elections held every five years. Parliamentarians are elected using a first-past-thepost system with universal suffrage for those over 21.

[14] Under a 2013 constitution act 10 percent of parliamentarians must be women.

[15] This law stipulates that if fewer than 10 percent of parliamentarians are women additional seats will be added and filled with the highest polling unsuccessful women until the 10 percent quota is met.[16] Prime Minister Tuila’epa Lupesoliai Neioti Aiono Sa’ilele Malielegaoi and his Human Rights Protection Party’s (HRPP) strength had led many to believe that elections in Samoa were a “foregone conclusion”.[17] In the lead-up to the 2021 election Tuila’epa had been in power for over 22 years and held a comfortable parliamentary majority after yet another landslide election in 2016.

[18] However, laws introduced by Tuila’epa concerning land ownership and titles disputes led to a split in the party and the protest resignation of Tuila’epa’s Deputy Prime Minister Fiame Naomi Mataʻafa.[19] Fiame created her own party, the Faʻatuatua i le Atua Samoa ua Tasi, or FAST party and contested

Tuila’epa for the Prime Ministership in the 2021 election.[20] The general election, held on April 9 2021 ended in a tie. Of the 51 seats in Samoa’s parliament, the incumbent HRPP led by Tuila’epa and the FAST party led by Fiame both won 25 seats.

The 51st seat was won by an independent.[21] The deadlock should have been broken when the independent announced he would support the FAST party. However, of Samoa’s 51 seats, five were won by women. Women, therefore, represented only 9.8 percent of parliamentarians and the electoral commission decided to add a new seat to be filled by the highest polling unsuccessful candidate, HRPP member, Ali’imalemanu Alofa Tuuau. This brought the deadlock with both FAST and HRPP holding 26 seats each.[22] To break the deadlock, the O le Ao o le Malo, Samoa’s head of state, dissolved parliament and declared that new elections would be held.[23] The dissolution of parliament by the head of state, a largely ceremonial role, was condemned by FAST who described it as “unconstitutional” and a “coup”.[24] They challenged the decision in the Supreme Court along with the decision to have an extra seat added. The Supreme Court found in FAST’s favour on both accounts declaring the decision to hold new elections unconstitutional and that the five seats held by women was sufficient to satisfy the 10 percent rule and an extra did not need to be added.

[25] The court upheld the original results and ordered, as per the constitution, parliament to sit within 45 days of the April election.

The swearing in ceremony was to take place in parliament on the 24th of May, 45 days after the election. However when the FAST party arrived they found that parliament had been locked and the clerk of the parliament, under the speaker’s direction, refused them entry.[26] Refusing to accept this outcome, FAST decided to hold the swearing in ceremony in a tent out the front of the parliament under the authority of former attorney-general Taulapapa Brenda Heather-Latu.[27] Malielegaoi described this as a treason and has subsequently refused to step aside. To complicate matters further, the Court of Appeal has concluded that 6 women are needed to satisfy the 10 percent requirement, but that the additional seat should only be added after all electoral petition decisions and by-elections and there is certainty as to the members of parliament.[28]

Currently there are two competing governments. Several countries, including the Federated States of Micronesia, Palau and the Marshall Islands have recognised Mataʻafa’s government.[29] Australia and New Zealand, two big players in the region have not taken sides and instead have urged parties to respect the democratic process. The resolution is, as of yet, unclear.

What is clear however, is Samoans’ love for democracy. The Guardian’s recent ‘Full Story’ podcast played a recording of the ordinary men and women of Samoa singing on the streets. It was the voices of those who were celebrating a triumph of democracy. The Supreme Court of Samoa had just ruled that Fiame was the duly elected Prime Minister of Samoa and her swearing in as Samoa’s first female Prime Minister was to be carried out the next morning.

It sounded like hundreds of people had just stopped what they were doing, left their homes and had come together to sing. In a world where democracy seems under threat or in regression and people have lost faith in the power of government to do good, the recording is moving. The last few years have shown us that constitutions are made of wood not steel and that any madman can burn it all to the ground if they’re willing to play with fire.

Sometimes the world forgets that the greatest democracy, the most supreme constitution and the wisest court are really just words on a page. The temples of power, the founding papers and the sacred apparatchiks are not the state.

The state is nothing more and nothing less than the people who live and die within it. They are supreme. Democracy exists to serve them, not the other way around. Their will must triumph. The Samoan Constitutional crisis is nothing more than a test of their strength. If Tuilaepa is allowed to cling onto power by defying the will of the courts, locking up the parliament and holding his people in contempt, he will burn the Samoan Constitution to the ground and democracy in Samoa will slowly wither away.

Conglomerates of Nothing There seems to be something about constitutions that mystifies people. They give an impression of a sacred document written on paper made of gold. But really, they’re nothing more than words on a page. Samoa has shown just how vulnerable constitutions are to personal manipulation and political catastrophe.

The central lesson of this crisis is a sim-

ple one. Constitutions and the democracies they build are only as strong as the people who we choose to guard and protect them. Checks and balances, the separation of powers, and the rule of law sound like strong principles, but often they create critical power struggles, building up constitutional tension until it releases like an earthquake. In fact, Samoa’s current political crisis started when Tuilaepa tried to weaken the powers of the Supreme Court in order to build a separate legal system under the control of the council of chiefs.[30] It was this attempted perversion of the constitution that defined the 2021 Samoan election.[31] Tuilaepa’s response to the election has been likened to Trump, refusing to accept the outcome and hurling wild accusations at the opposition. But democratic regression is not new in Asia and the Pacific. The military’s increasing influence in the political sphere explains the democratic backsliding in some countries, such as Bangladesh, Fiji, Myanmar, Pakistan and Thailand. In other countries, such as India and the Philippines, nationalism and populism have been the vehicle for democratic backsliding. With no military in Samoa, and the police leaving the crisis to the political class, Tuilaepa is using overt nationalist rhetoric to maintain his 22-year-old grip on Samoa.[32] Why doesn’t the system work? Consistently in parliamentary democracies and constitutional monarchies, it is the active choice of powerful individuals to act in their own self-interest to the exclusion of everything and everyone else which does the most damage. That is why democracy must be protected world-wide.

The legacy of colonialism in Samoa should also not go unrecognised. Samoa and its people deserve more than the ‘thoughts, prayers and concerns’ of their former administrators. They deserve that their votes be counted and that their collective democratic will triumphs. However, their current constitutional crisis is really not that different to all the others which came before it. Despite all the procedure, all the founding documents and all the speeches, constitutional law boils down to one simple fact. The right people must be in the right places at the right times. We must choose wisely and that choice must be respected.

35

37

A LC O H O L I S M I N T H E L E G A L P R O F E S S I O N EMMA ASHLEY

“Stressed? Drink. Not happy? Drink. Happy? Drink, and invite some co-workers. Need to entertain clients? Drink.

Work hard, play hard, as the trite mantra goes, and don’t let anyone know if you can’t keep up” – Patrick R. Krill It is no secret that the high-pressure workplace which legal professionals are immersed in fosters a powerful drinking culture.

However, for the first time in 25 years a study, conducted by the American Bar Association (ABA), has uncovered alarming quantitative data that illustrates the extent of this issue. Patrick R. Krill, who conducted the study, remarked that he has never “seen a professional population out there with a highe r level of problem drinking”. Whilst alcohol dependence has been studied extensively in other high intensity professions, such as physicians and paramedics, the stigma and normalisation of drinking in the legal field has led to a statistical silence.

This research has shone a light on concerns which have been lurking in the shadows for far too long, prompting questions about the systemic causes and what can be done to change this dangerous culture.

THE ISSUE The ABA’s 2016 study used both objective and subjective measures in assessing approximately 13,000 legal professionals to uncover the secrets of alcoholism in the profession. 20.6% of lawyer’s drinking behaviour was recorded as problematic in comparison with 11.8% of the broader highly educated workforce. 3 of 4 re-

spondents reported that their problematic drinking began after they started law school. This has a strong correlation with the fact lawyers have a disproportionately higher rate of developing mental health issues.

For current law students and recent graduates these statistics are even more alarming. The analysis of age categories revealed lawyers under the age of 30 had the highest rate of excessive drinking at 32.3%, followed by those 31-40 years old at 26.1%. This is consistent with the finding that “among the 23% of lawyers who said they believed their drinking was a problem, 44% stated the problem began within their first 15 years of practice.”

One test in the study was based on three objective questions about the frequency and quantity of alcohol consumed. This revealed 36% had consistent results with hazardous drinking. When the same test was used to assess physicians, only 15% of respondents were above this threshold.

Another, more subjective test, posed 10 questions about the nature and impact drinking had on the respondents’ lives.

This measure revealed only 21% were engaging in hazardous drinking behaviour.

Alarm bells are ringing for the gap of 15% who, for whatever reason, either didn’t admit or were unable to see the hazardous nature of their behaviour.

THE CAUSE Alcohol consumption knows no social, economic or educational barriers, and with the unique stress factors lawyers face, the legal professional is no exception. Krill believes factors that put lawyers at high risk include “workloads, office culture and unwillingness to seek help”. American Bar Association President Paulette Brown further comments on the “ground-breaking” research stating that “This new research demonstrates how the pressures felt by many lawyers manifest in health risks.”

Lawyers and other legal professionals are forced daily to navigate an unending series of ethical conflicts, which is only a single aspect of their complex and excruciating workload in a high-pressure, competitive workplace. It is a sad reality that for many the data isn’t surprising, simply confirming what they see every day. Chelsy Castro, the clinical case and program manager at the Illinois Lawyers’ Assistance Program, finds that “With lawyers, it is a zero-sum game all of the time: One side has to win, and one side has to lose,” she said. “So, there is a lot of pressure to be perfect.”

Anecdotal evidence further confirms that the pressure beginning in law school heavily influences how soon to be lawyers approach drinking culture. The ABA interviewed Robert (who requested his last name be omitted due to fear of stig-

ma) who has been in the profession for 26 years. His experience taught him that drinking was a pillar of his firm’s, and the industries, identity and that soon conflated with his own identity. It is not only that lawyers choose to unwind with a drink in hand, but it is how they entertain clients and ultimately “there was a significant amount of pressure early on to fit in, and usually that is done through cocktails,” Robert commented.

There is a subtly widespread acknowledgement of these issues and yet the profession remains stoic and silent about the unhealthy approach to dealing with the pressure of their workplace. To many this research is alarming but the fact that the professional culture is unstainable is not news to those who have experienced it first-hand. Krill put it best when he said “Attorney impairment poses risks to the struggling individuals themselves and to our communities, government, economy and society. The stakes are too high for inaction.”

“It is a sad reality that for many the data isn’t surprising, simply confirming what they see every day.”

THE SOLUTION All the research points to these issues beginning in law school, meaning we should take a proactive, preventative approach to developing a healthier relationship with alcohol consumption. It also means that part of the change needs to be in teaching young law students and lawyers to be proactive in reaching out and leaning on their support systems before they feel overwhelmed and turn to alcohol as a solution. Whatever the solution it is clear that “This is a mainstream problem in the legal profession” and “There needs to be a systemic response.”

The biggest barrier to getting treatment, as reported by current lawyers, was the belief that admitting they had a problem would ruin their image, career, or both.

Half of all lawyers in a survey stated they would be afraid of peers finding out they needed help. A solution to this can be seen in nonprofit organisation such as Lawyers’ Assistance Program in Chicago which provides free and confidential mental health and addiction services for lawyers, judges and law students. They are working closely with local law schools and some law firms to bring the issue to the forefront and remove the stigma around seeking help. Robert, the aforementioned lawyer, commented “I want people to know that it’s OK to have a problem and it’s OK to be a human being.”

The ABA student division has been working to change this status quo and normalise seeking help. The ABA law student

podcast, which they present, covers issues that affect law students and recent grads, including alcoholism. Episodes such as “Substance Abuse and Mental Illness in the Legal Profession”, “Dealing with the pressures of law school” and “Mental health and well-being: how law students can get help and help others” are sending a message to the next generation of lawyers that it is important to seek help. Lawyers are known for their stereotypically career orientated personalities. This focus on their work can often be to the detriment to their health. However, one solution could be for the industry to use their influence on lawyer’s personal lives to ensure they took care of their health instead of ignoring these issues. From his own experience at Hazelden, Krill has noticed that lawyers, law students and judges don’t seek help at early signs of a problem. Whilst most patients at Hazelden join the program when they start to suffer consequences in their personal lives, most of the attorneys he sees join when their firms have mandated they get help. Krill comments that “It’s a population that really prioritizes their career, and it is a career that has leverage to force them to be mindful of their health.”

“All the research points to these issues beginning in law school” For this to happen, there will need to be a severe reconstruction of the legal professions culture. There needs to be greater focus on health and seeking help instead of promoting dysfunctional coping mechanisms at law firms, where “heavy drinking is 100 percent normalized.” While some law firms are trying to be proactive, “on the whole, they don’t pay adequate attention or give it enough resources or adequate messaging,” Krill said. Linda Albert, a social worker who serves on the ABA’s Commission for Lawyer Assistance Programs, said the messaging must be consistent and constant to change the culture. Some ways to implement this is to have mandatory courses in law school on the importance of person well-being as well as starting the conversation about removing alcohol from professional events. Albert also suggests that mentoring programs would be beneficial for young lawyers before these problems develop.

Whilst the data may “seem disheartening” it is really “a call to action for all of us,” Albert said. These issues are not new or unheard of, but these alarming statistics will hopefully lead the legal profession down the road of building a healthier culture.

ARTIST: CUFF INSTA: @ICUFFMYJEANS

ARTIST : TAHNEE EDWARDS INSTA: @GAMMINTHREADS

U n e a r t h i n g O n e o f C a n b e r r a’s Hidden Gems of Innovation Jibran Habib and Bella Di Mattina

Canberra has become a hub for innovation and sustainability, with start-ups and local ventures taking the innovation market by storm. The Australian Capital Territory (ACT) government supported the establishment of the Canberra Innovation Network (CIN) in November 2014, with the goal of connecting all aspects of Canberra’s innovation ecosystem. The CIN provides a co-working space and incubator for startups and delivers innovation building workshops and labs. The CIN does this to cater for businesses and research endeavours at all stages. This article provides an insight into Canberra’s innovation potential, with a close look at new local start-up Voltec.

Sherbaz Hashmi, co-founder of Voltec, has been interviewed for this article. Through him we get a glimpse into the local Canberra innovation market

—a thriving market hidden from most Canberrans.

Voltec is an example of the potential positive impacts that up-and-coming local start-ups can have on society. Voltec was formed by Hashmi, Stephen Ma and John Hughson. These co-founders, still youthful as they complete their tertiary degrees at the Australian National University, may be referred to as: three students, a group of friends or colleagues. Hashmi is studying a double degree in Software Engineering and Environment and Sustainability, while Hughson studies a double degree in Commerce and Science.

Ma has recently graduated with a Bachelor of Science. Through this interview, Hashmi has highlighted the challenges faced by local innovators, when, and how these are met—all alongside some amazing discoveries and memories.

HOW AND WHY WAS VOLTEC FOUNDED?

Voltec did not start out as a traditional company. It may even be said that this company has had an ‘Apple-like’ development, relative to Apple’s early homegrown stages. The three founders, including Hashmi, were just ordinary teenagers who would build products for fun, and this was their hobby until it blossomed into something truly remarkable. Their shot to fame shows that start-ups can blossom if supported around an idea. In Voltec’s case that idea is essentially helping people. It is a company that specialises in helping clients find innovative solutions to problems using a vast array of technology.

The first significant stride forward, the first stamp of authority the Voltec founders took as a group

establishing themselves, was when they united under one banner to win Geohack, an international hackathon against other research institutes. With other group members, these Voltec founders developed ‘RMap’, an indigenous knowledge systems application, which took into consideration land and indigenous knowledge connected to it. The application this team delivered enabled Indigenous Australians to share and preserve knowledge of their heritage and closeness to land through a web interface. Hashmi says winning this hackathon inspired them to build a company. Since then, Voltec has been a contributor towards sustainability initiatives, products and services.

VOLTEC’S PRODUCTS One of Voltec’s contributions is to Evalue8 Sustainability’s main carbon accounting web app. Evalue8 Sustainability is a start-up that provides software enabling organisations to estimate current carbon emissions based on their activities. The software also helps them track their emissions over time, ensuring companies are efficient and moving towards a

zero-carbon future. Evalue8 is just an example of the multiple projects Voltec is working on for their clients.

Environmental sustainability is just one sector, other projects include construction projects and technology. The key goals are sustainability, efficiency, and attending to clients’ best interests.

39

VOLTEC AND NON-DISCLOSURE AGREEMENTS Amidst all this promise, Voltec and other start-ups are faced with challenges nonetheless. Hashmi was not able to shed light on other projects due to confidentiality and legally binding instruments. Hashmi was asked in his interview what sort of restrictions are found in these agreements. Because of the nature of the agreements, he is not able to reveal what products their company is working on — their clients would lose a competitive advantage if the information was leaked.

Hashmi was then asked about the innovation that stems from products they contract to develop. What happens if they discover a way to make a similar product that completes the work even more efficiently? Hashmi and his colleagues steer clear of this, as it is both a danger towards breaching their NDAs and unethical. Remaining within these limits is not an inhibition for Voltec’s innovation, however, because Voltec has its own products that it is innovating independent of its clients. These products are not confined by the challenges of NDAs.

ARTIST: HARRIET BREALEY INSTA: @BABIES_TEETH

41

SOLIDARITY FOREVER: REFUGEE ACTION CAMPAIGNS IN 2020 W H AT I S T H E S I T U AT I O N F O R R E F U G E E S I N A U S T R A L I A I N 2 0 2 0 ?

Bella: As COVID 19 hit, something else was affected: Australia’s refugee intake. Of the 18,750 places on offer for refugees under Australia’s resettlement scheme, only 13,171 were actually utilised by the Department of Home Affairs.[1] This is a 30% decrease on Australia’s refugee intake, compared to last year.[2] Meanwhile, 14,000 refugees are living in Indonesia, some in detention centres, others in community facilities run by the International Organisation for Migration.[3] These centres have a 6pm curfew.[4] The UNHCR estimates that some will remain in Indonesia for decades before resettlement by Australia or the US.[5]

W H AT I S T H E R E F U G E E A C T I O N C O M M I T T E E ?

Mustafa: The University of Canberra Refugee Action Club is part of a network group advocating and seeking the fair and humane treatment of refugees in Australia. Our aim is to raise public awareness about the Australian government’s obligations to give refuge to asylum seekers and treat them with dignity and humanity. UC RAC have regular events to encourage awareness of refugee issues as well as to raise money for refugee activism and support. We strongly believe in humane and dignified treatment of asylum seekers and refugees, ending mandatory detention and deportation to warzone countries, as well as creating a fair process for asylum applications and family reunion.

W H AT I S Y O U R R O L E , M U S TA FA , I N T H E R A C ?

Mustafa: As the current President and irrespective of difficulties imposed by COVID-19, I have ensured that UC RAC continues to advocate for refugee issues, activism and support through our regular events while ensuring my team is well and united. One of my greatest accomplishments this year was to successfully switch UC RAC from its traditional way of hosting events, to an online platform due to COVID-19 restrictions. Whilst this was challenging, I have managed to continue hosting events to contribute to this great cause.

W H AT I S T H E R O L E O F R A C S I N S T U D E N T S ’ E D U C AT I O N ?

Bella: While volunteers often already have a desire to help refugees, studies show that volunteering can be a critical part of shifts in positive attitudes towards refugees. The UNHCR found that, “Volunteering is a major factor that influences people’s attitudes toward refugees and their integration in particular.”[6] Thus, volunteering in refugee organisations offers an opportunity for students to better understand structural issues with refugee policy in Australia. It also offers students an opportunity to stand in the shoes of those who might inspire them in their studies.

START-UPS AND THE LEGAL INDUSTRY While Voltec has overcome the legal challenges surrounding entering and complying with NDAs, Hashmi has identified that accessing legal advice is a struggle for technology entrepreneurs, particularly youngsters. The reasons for this extend from funding issues, to simply a lack of knowledge as to who to contact. Fortunately for these start-ups moving forward, Canberra and CIN have provided start-ups with access to multiple accelerator programs. These pro-

ARTIST: JIE EN LEE INSTA: @FROGFUNGUS

vide funding and guidance.

It may not be long, with these abundant support services and resources, for innovative and talented individuals to turn Canberra into an Australian Silicon Valley. With challenges also come the opportunity of looking at this innovation industry from afar—seeing how beautiful and unique this area can be.

We live in a media environment where there is high awareness of social issues, and views on them are increasingly polarized. We live in a society where it’s easy to fall into performative activism online, hoping likes and shares will enact meaningful, systemic change. Student programs offer an opportunity to provide tangible help for others in the community, but these programs also offer us an opportunity to challenge and reform our worldviews.

C O U N T E R - T E R R O R I S M : L E G I S LA T I V E I N T E N T I O N A N D T H E R U L E O F LA W - C A N T H E Y A G R E E ?

R I YA N A G G A R W A L

This year, the world will mark the 20th anniversary of the tragic terrorist attacks on the World Trade Center and the beginning of the Global War on Terror.

The United States and Australia have been staunch allies in the fight against terror though strategic interoperability and cooperation. To that end, both countries have enacted ever-extensive pieces of legislation to address the threat of terrorism, much to the consternation of faithful servants of the rule of law. Legislation has expanded the scope of coercive powers afforded to security agencies, eliminating democratic restraints on the exercise of their powers. Thus, it is now more prudent than ever that we contemplate the divide and conflict between legislative intent or legislation, and the rule of law in matters of national security.

Legislation has attempted to keep up with the rise of new threats posed by emergent or reinvigorated terrorist groups such as the Islamic State of Iraq and Syria [ISIS], Al-Qaeda and recently the new threat of right-wing terrorism posed by groups such as the Sonnenkrieg Division. Generally, legislative efforts have been focused on the re-appropriation and expansion of power and authority within the structures of government for surveillance, detention, arrest and trial. However, this has interfered greatly with the courts’ ability to ensure the deliverance of fair trials and the preservation of fundamental civil rights to those whom the ever-expansive terrorism laws may apply to. For instance, NSW legislation allows persons suspected to have links to terrorist groups and activities to be held without charge for 14 days. This has further emphasized the necessity for a coherent national counterterrorism framework that is expressed as a piece of legislation and which conforms to the rule of law.

C o u n t e r - Te r r o r i s m a n d i t s I n t e r f e r ence with the Rule of Law Consider the issue of Extraordinary Rendition: an intelligence strategy by the Central Intelligence Agency to arrest, detain and interrogate potential threats to the homeland. The program drew global condemnation for its derogation of the rule of law through provisions that allowed for the extraterritorial transfer of detainees and their subsequent detention without fair trial in a court of law. While the program itself was not expressly authorized by the U.S. Congress, it took its mandate from the Authorization of Military Force 2001 [AUMF] which provided the executive branch with extraordinary powers in pursuit of national security. Section 2 of the AUMF authorized the President to employ “all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001... in order to prevent any future acts of international terrorism against the United States”.[1] It was only in Hamdi v Rumsfeld that the U.S. Supreme Court handed down the landmark judgment stipulating that the executive branch lacked carte blanche in violating individual liberties.[2] As a key strategic ally in the Global War on Terror, Australia played a valuable role in this program. The arrest and transfer of dual Egyptian-Australian citizen Mamdouh Habib, whilst on a trip to Pakistan to a black site, was one of the first instances of the Australian Government’s explicit involvement in extraordinary rendition. It was alleged that Australian intelligence officers were involved in interrogating and detaining Habib, although he was eventually released without charge in 2005. The detainee alleged to have been tortured through sleep deprivation, nail-pulling and other means outlawed in the international legal framework under the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The Australian position on torture is articulated by Black CJ in Habib v Commonwealth of Australia, who defined torture as a “peremptory norm of international law from which no derogation is permitted and the consensus of the international community is that torture can never be justified by official acts or policy”. [3]

Te n s i o n s , P o l i t i c a l a n d L e g a l While the rule of law demands that legislation and Executive actions respect individual liberties, it is often difficult for parliamentarians in liberal democracies to justify placing limits on the Executive’s powers on war and counter-terrorism when security of the nation is at stake. Both houses of the Legislature are accountable to the people even in the arena of national security, in the sense that their members have sworn to represent the interests of the people, which indubitably includes their safety and the security of the homeland. The difficulty in reconciling the principles of the rule of law, and the state’s attempt to uphold national security is further exacerbated by the relatively short timeframes security agencies are often required to function in.

When these agencies are operating within a limited time span, how can they ensure they collect and verify intelligence, or effectively eliminate a threat without some level of autonomy? Another factor which further complicates matters and heightens the tension between legislators and courts is simply the absence of a universal definition of terrorism.

of accountability as it allows the judiciary to restrain Parliament and the Executive in areas where their actions exceed the powers granted to them by interpreting the laws passed by Parliament to bolster the exercise of Executive power. As the standard political saying goes, “no one is above the law”, neither Parliament, the executive nor the courts can exercise power without restraint.

What matters more? Legislative Intent or the Rule of Law? This redirects us to the fundamental question on whether legislative intent or legislation, and the rule of law can ever be reconciled when the safety and security of the nation is at stake. At the outset, this is a difficult question to answer; not because there is a lack of data or information, but because legislative intent and legislation prioritizes a different set of variables compared to the rule of law. The former looks at political priorities for the party, or of increasing their prospects of winning the next election and generally takes

“While the rule of law demands that legislation and Executive actions respect individual liberties, it is often difficult for parliamentarians in liberal democracies to justify placing limits on the Executive’s powers on war and counter-terrorism when security of the nation is at stake.”

If the arms of government are unable to agree on a set definition, even within themselves, then the expectation of a universal definition is unreasonable. In fact, many institutions err in confusing conventional crime with terrorism which sets a pernicious precedent. Legislative intent tends to group both together with the belief that widening the scope of counter-terrorism leads to lesser lead times in assessing threats and prevents illegitimate action by all bad actors at large. However, the rule of law would entreat consideration for the criminal definitions within the penal code of a country and jurisprudence. Deference to the rule of law requires legislation to distinguish conventional crime from terrorism, combatants from non-combatants and make clear distinctions in the other aspects of the subject.

The tensions between the branches of government do hold promise: debate sparks the development of new ideas and concepts. More importantly, the tension is a sign of effective oversight posed by a system of checks-and-balances. Some contention between the Legislature and Executive is necessary to effectively maintain the system of checks-and-balances in order to uphold parliamentary and governmental accountability, which is a central aspect of our democracy.

Moreover, judicial interpretation is a dominant function of the courts which aids in upholding the system

into careful consideration the tribulations of constituents. The latter is an amalgamation of a rich history of law, custom and judicial statutory interpretation. In the area of national security, the fundamental objective of both legislative intent and legislation is the survival and welfare of the state at-large. In my opinion, it is exceedingly difficult to reconcile legislative intent or legislation with the rule of law. Particularly in the face of the increasingly grave threat of terrorism to the nation’s survival, less restraint on the Government’s power to investigate and detain individuals posing security threats may be needed given the myriad of obstacles challenging the government’s ability to form an effective and timely response to such threats. However, the question remains: how much power granted by legislation or legislative intent to deal with terrorist threats and attacks is too much and has irrevocably, and unjustifiably infringed on the rule of law?

ARTIST: SYDNEY FAREY INSTA: @SYDFAREY

43

45

IS THE WORLD GEOPOLITICALLY LESS RISKY DURING THE PANDEMIC?

RED AND PROMISED ENDINGS ANONYMOUS

I bite down like a gavel My teeth and nails worn I await a jury of wolves Who have held court in me They are bias for my corpse I sense beady eyes on my bleeding Body They have not eaten and I am still bloody The stains taste as good as anything As the truth As they smear my remains across their gums Like lipstick stains their mouths mark my consent With my blood Like it’s mine I dug myself a shallow grave So my corpse could peek through And watch As I ferment in my own remains Placing my body at the table Like a party guest To pack animals Over their glasses The wolves laugh And my mouth smiles And I glance teeth with red wine hue And they look bloody

ARTIST: STEPHANIE VIECELI INSTA: @FERALBASTARD

With people staying at home and international travel halted, what impact does this bring to world geopolitics? Environmentalists are happy to see the world becomes greener during the pandemic as industries are shutting down. But does the same logic apply to geopolitics? Is the world a safer place during the pandemic?

With people staying at home and international travel halted, what impact does this bring to world geopolitics? Environmentalists are happy to see the world becomes greener during the pandemic as industries are shutting down. But does the same logic apply to geopolitics? Is the world a safer place during the pandemic?

Caldara and Iacoviello (2019) develop an index, called the Geopolitical Risk (GPR) Index, which proxies geopolitical risk both at the world,and country, level. The index is a tally of leading newspapers in every region and country, focusing on geopolitical tensions and events. The index for the world level is shown in Figure 1, covering the period of January 2016 to October 2020. There are three indicators: 1) GPR, which is the aggregate indicator; 2) GPR_THREAT, which represents tensions; and 3) GPR_ACT, which represents actual geopolitical events.

A higher value refers to a higher risk.

For the THREAT index, there are four threats accounted. The first one is geopolitical threat, which captures tensions between nations. The second is nuclear threat, which focuses on nuclear activities around the world. The third is war threat. The fourth is terrorist threat. Meanwhile, the ACT index is a combination of two aspects.

The first one is war act, which accounts real war incidents.

The second one is terrorist act, which represents real terrorist activities and incidents.

TRENDS BEFORE COVID The aggregate and threat indices were relatively stable before 2020, with some noticeable peaks during 2018 and 2019.

There were two peaks in 2018.

The first one appeared in April when tensions increased in Syria. The US, joined by the UK and France, launched a military strike to Syrian government facilities using aircrafts and shipbased missiles. The second happened in July, fuelled by increased tension between Iran and the US when the US and Iranian presidents exchanging threats after the US withdrew from Iran’s nuclear program deal, called the Joint Comprehensive Plan of Act (JPOA).

During 2019, there were two peaks. The first one appeared in June, caused by increasing tension between Iran and the US, sparked by Iranian military who shot down the US drone. The second one happened in August, fuelled by increasing tension

between China and the US, started by the US imposed more tariffs to Chinese products.

THE WORLD DURING COVID PANDEMIC As can be seen, there was a clear spike in January 2020, when the pandemic started. Both the THREAT and ACT indices spiked, with the THREAT index exceeding 400. The last time the index was this high was when the Iraq invasion happened in March 2003, when the GPR aggregate index exceeded 500.

One noticeable pattern, after January 2020, the index substantially low compared to before 2020. Table 1 shows the annual average of the indices. The average of 2020 is 133.71, which is lower than the average of 2017, 2018, and 2019. In addition, the average of 2018 and 2019 are 176.52 and 177.40, indicating that the level of risk in 2020 is substantially lower, regardless of the spike which appeared in January 2020.

However, in some regions, geopolitical tensions and actions are still high. Pro-democratic demonstrations in Hong Kong and Thailand continue, and as Biren Nanda (2020) argues, will keep escalating despite the high risk of COVID contagion. These events are not explicitly described by the world GPR index, which focuses on the geopolitical tensions at the world level, which involves many countries.

Furthermore, Crisis Group (2020) argues that the pandemic will instead exacerbate the scale of conflicts and crisis for specific regions. This phenomenon refers to fragile states, who were already in the midst of conflicts before the pandemic started. One of them is Syria. One major proponent is that the pandemic devastates international crisis management and conflict resolution mechanism, caused by limitation to travel and, in most cases, budget cuts.

In conclusion, perhaps it is too naïve to say that the world becomes safer during COVID; however, as can be seen from the GPR pattern, indeed it is geopolitically a more stable place.

Less human activity means lower risk. The same logic applies to the greener world we are seeing during COVID, where the rate of environmental damage occurring has dropped alongside the amount of human activity.

47

M A S S S U RV E I L LA N C E A N D S O C I A L C R E D I T T H E PY R R H I C P U R S U I T O F E F F I C I E N CY ANONYMOUS Efficiency is what companies and individuals alike strive for- whether it’s attempting to make processors faster, or reducing costs by utilising the lean six sigma in team collaboration. Whatever it is, efficiency is the name of the game. It sounds great on the surface: products are able to be sold at lower prices, and there’s less waste, but at what cost comes the striving f o r efficiency?

At Super Bowl XXXV, twenty years ago, American police failed in the unveiling of their facial recognition software to scan and identify criminals, due to the lack of capacity to scan accurately through crowds.

Nonetheless, without the majority of the population knowing it, the race to make facial recognition faster, more accurate, all-encompassing had begun. That race has neared its end in the last three years, with the rollout of a complete surveillance and facial recognition software across China. There were 626 million surveillance cameras in mainland China at the end of 2020, with the number of C C T V cameras in Beijing alone coming second to only the total number of cameras within the United States and the United Kingdom.

ARTIST: JIE EN LEE INSTA: @FROGFUNGUS

Each and every one of those cameras are connected to a facial recognition network that the Chinese government has ironically dubbed “Skynet”, amidst their reassurances that it would be used for benign purposes only. This facial recognition network then is connected to a social credit score for all citizens. Currently some online consumer platforms resemble this dystopian social credit system. Websites such as Ebay and Amazon have a seller rating score, whilst lenders and mortgage brokers all have a profile of you. However, these systems cannot deny people the right to education, access to public transport, and job opportunities. What may sound like a bleak dystopian future taken out of 1984 is already occurring in China, and has impacted thirty-seven million citizens so far. These instances

include where people have been denied access to basic governmental services, alongside jobs placements and university entry. Certain personal information of the blacklisted people is deliberately made accessible to the society, being published online across social media and dedicated apps, but also at various public venues on the public TVs that would normally display advertising. This program with the official slogan of “Leave no dark corner” has widespread ramifications.

So how is this relevant to us? The rule of law that many countries follow encompasses the principles that law is made by representatives of the people in an open and transparent way, the separation of power amongst the branches, and the presumption of innocence. None of the above are even remotely being followed.

There currently is no transparency from the government as to how the algorithm that determines your social credit score is determined and used, and human rights groups have identified so far thirty-six unnamed potential factors which may be used. Law in western countries is perhaps confusing, but is still accessible and understandable to the general public, provided that they spend time researching it. In contrast, this algorithm is completely hidden, much like Google’s search algorithm. We merely know of its presence, but cannot truly understand it. Whilst this might be acceptable in a benign use to get our search results, it isn’t acceptable when it comes to determining innocence or guilt.

The lack of separation of powers where the legislative and executive body that implemented this mass surveillance and social credit system is also now the judge, jury, and executioner of those who are flagged as socially untrustworthy is equally as concerning. There is a distinct lack of the “checks and balances” that so many liberal democracies champion, where the legislative branch cannot determine innocence or guilt in regards to laws. The consequences of this is that individuals’ right to privacy and arguably dignity are ignored as their faces are smeared across electronic billboards at pedestrian crossings when they are recognised by a camera in the vicinity. Perhaps more importantly, this lack of separation also results in this tool to be used to

silence dissent. It is a supplement to the online “great firewall” of China, facilitating the suppression of dissidents both online and in the physical world. One such example is Liu Hu, an investigative journalist that has uncovered corruption within the government and solved serial murder cases. His outlet for journalism which has had two million followers, Weibo, has been shut down, and recently been placed under effective house arrest as his car registration, access to both public and commercial transport has been denied. Whilst this is only one such instance of this social credit system being utilised, statistics and stories about the consequences of this system are inaccessible in all but the most public cases.

Furthermore, family members and relatives can be punished by this social credit system, their ‘linked’ profiles allowing flow-on retaliation by the government for perceived injustices. The presumption of guilt on the part of all close contacts sets a dangerous precedent, and further restricts freedom of choice for fear of retribution not only against oneself, but also one’s loved ones.

Chinese Communist Party publications allege that “Westerners are simply too unsophisticated to understand the wonders of the new system.” The massive social credit system, it goes on to say, is simply “beyond the understanding of Western countries”. I’ll leave you to decide for yourself whether it is beyond our understanding, but I believe we understand it all too well.

49

Dear Patriarchy, This year, Director-General of the World Health Organisation, Tedros Ghebreyesus, delivered an impactful statement: ‘Unlike COVID-19, violence against women cannot be stopped with a vaccine. We can only fight it with deep-rooted and sustained efforts.’[1] This statement reflects the pervasive and deep-rooted nature of sexism and gendered violence, and the fact that there is no easy fix. This opinion piece unpacks the issue of gendered violence and offers aspirational solutions.

The statistics on this matter are revealing.

Studies show that women are more often worried about their personal safety than men. A 2018 survey by Mission Australian Gender Gaps reveals that 46.6 per cent of women between the ages of 15 and 19 feel ‘unsafe’ or ‘very unsafe’ walking after dark in their neighborhood. On the other hand, only 18.1 per cent of men felt the same.[2] More concerning is the absence of efforts to overhaul this issue and to improve women’s qualify of life. Rather, today’s culture sends the message that victims must change and adapt according to the actions of perpetrators to prevent their own victimization.

Women are constantly told to not go out at night. They are told not to not dress a certain way or wear bright clothes.

They are told to walk faster or to cross the road if someone is walking behind them. They are told to carry their keys in their hands to prepare for any unwanted encounters. They are told to take their headphones out to be more aware of their surroundings. They are told to talk to a loved one on the phone.[3] Sarah Everard took nearly all these steps, yet she is not here today to tell her story. Sarah could have been any woman, and hauntingly, ‘Sarah could have been me’.[4] Despite public shock and surprise, most women understand that this is almost inevitable. Unlike their perpetrators, victims of gendered violence do not have the luxury of forgetting the incident. The cloud of melancholy, persistent grief and exhaustion continues to hang over their heads and will continue to do so unless big social and political changes are made.

It is also immensely important to view this issue from an intersectional lens.

Often, we overlook the fact that ethnic women, trans women, women from lower socioeconomic backgrounds, and marginalized groups face higher degrees of risk and trauma. Moreover, ethnic women or immigrant women do not feel comfortable asking for help from authorities or those around them. Our society cannot continue to allow these women to fall through the gaps, to be denied full and fair justice. An intersectional issue warrants an intersectional solution.

Clearly #enoughisenough is not enough.

This complex issue must be uprooted at its base so that women don’t have to worry about their survival every time they step out at night. The women coming forward to share their trauma with the world cannot be expected to resolve the issue themselves. Any solution will require collective efforts from people of different backgrounds.

We should focus on how today’s leaders are addressing the issue and ultimately shaping our institutions. Our representatives must represent us in substance, not only form. In my opinion, men like Scott Morrison, Tony Abbott, or even Boris Johnson, lack credibility and awareness of gendered violence. Thus, they should not be the ones charged with making change. Representatives with diverse backgrounds and lived experiences are key to rectifying broader institutional failures that support the system of gendered violence.

A M E S S A G E TO T H E PAT R I A R C H Y - S E N U R I P E R E RA

To conclude our message to you, the patriarchy: Perpetrators must be held accountable. Survivors must not witness the same trauma repeatedly I am optimistic that our resilience will prevail as we make small but certain steps towards securing a better future for us and the next generation of women, femme-aligned, non-binary and gender queer people.

ARTIST: ALISON CZINKOTA INSTA: @ALISON.CZINKOTA

50

“DOING JUSTICE, ACCORDING TO THE LAW” A REVIEW OF LOUISE MILLIGAN’S ‘WITNESS’ GEORGIA CROCKER

The story of the criminal trial which we are taught as law students focuses on the defendant. He is unsophisticated and under-resourced, perhaps assisted by an overworked Legal Aid lawyer. The prosecution, on the other hand, are dressed in crisp suits, sweeping into court in a flurry of barristers’ robes and clicking heels. They are habitual litigants, cogs in the well-oiled machinery of the State. The defendant risks being ground to dust beneath the heels of their RM Williams boots.

Louise Milligan’s book, ‘Witness’, asks us to question this narrative. She tells three stories: the first is that of Saxon Mullins, raped in an alleyway behind a nightclub at age 18; the second is Milligan’s own, as she is drawn into the web of legal proceedings surrounding Cardinal George Pell; and the third is about Paris Street, groomed as a schoolboy by his running coach. In each case, Milligan focuses on the witness: not just their experiences of the crime, but their experience of the court proceedings. It’s a perspective that should not feel as novel as it does.

All three stories have a common theme – the legal system is failing victims of sexual assault. Victims are routinely left traumatised and humiliated, sometimes pushed to the point of suicide.

This is occurring not in spite of the principles of criminal justice, but because o f them.

A s l a w stu-

dents, we can take from this book both an understanding of the need for systemic change, and an opportunity for personal reflection. Milligan demonstrates that our ideological commitment to high-minded ideals may blind us to the ways in which we are complicit in their subversion.

To be a defence lawyer, one must believe wholeheartedly in the presumption of innocence. Milligan’s interviews with solicitors, barristers and judges show that this is as much self-preservation as it is ideology. It’s much easier to discredit a survivor of sexual assault in service of high-minded legal ideals, than because an accused rapist is paying you. One defence barrister, Phil Dunn QC, describes it to Milligan as a ‘siege mentality’. ‘The courts are turned against you, the juries are turned against you’, he says. There is only the barrister and his client, facing the overwhelming power of the State. As law students, we learn that this dynamic is its own justification; it’s important to defend an accused precisely because all he has is his lawyer, and their belief in his innocence.

But how much bad behaviour by defence lawyers does this justify? Per legal tradition, complainants are owed relatively little protection in court. The crime is committed against the State and the victim is merely a witness. They are both exhibit and bystander; the body upon which the crime was committed and the person who saw the whole thing unfold. The fallacy that a complainant is just another witness allows the prosecution and defence alike to ignore their experience of giving evidence.

There is no question that cross-examination can be traumatic, after all, its primary aim is to discredit.

Milligan argues, however, that t h i s traum a i s n o t

merely a by-product of the behaviour of a few overzealous barristers. It is inherent in the structure of our court processes.

“As law students, we learn that this dynamic is its own justification; it’s important to defend an accused precisely because all he has is his lawyer, and their belief in his innocence. But how much bad behaviour by defence lawyers does this justify?”

The most common tactic in cross-examination is to find inconsistencies within a complainant’s statement. Inconsistencies make a complainant seem uncertain, and uncertainty breeds doubt in the minds of jurors. Barristers don’t need to be aggressive about this in order to be successful. Ian Lloyd QC, the barrister who cross-examined Saxon, is one example. He’s not one of the table thumpers, the men who tally the number of times they have provoked a complainant to throw the bible at them. When he cross-examined Saxon, he was polite and professional. He asked her about what she said during the rape. The difference between ‘I think I told him to stop’ and ‘I told him to stop’ might seem immaterial in hindsight, but it was the start of hours of questioning that undermined every element of Saxon’s testimony.

Paris Street was also cross-examined, by the famous Robert Richter QC. Milligan described Richter’s tone with Paris as ‘sarcastic, belittling, disbelieving, derisive.’ The questioning went on for two days. During that time, Paris told Milligan, ‘it’s almost like Richter wanted me to rethink what I already know and challenge my own knowledge, so he could break me’.

These tactics exploit vulnerabilities created by the very assault they seek to disprove. Milligan cites multiple experts who explain that victims of sexual assault often make inconsistent statements because of the effects of the traumatic event on their memory. Dr Annie Cossins says ‘the brain doesn’t work like a video recorder ... if you are in a highly traumatised emotional state – that will interfere with your memory recall ability.’

It’s almost inevitable that even the most restrained defence lawyer will find the inconsistencies that

they’re looking to exploit.

Cross-examination then compounds this trauma. Saxon says, ‘they call it the second rape... not only was I having flashbacks while on the stand... I now have being called a liar moulded into all these memories – it’s all sort of amplified.’

Paris described it as a ‘cognitive annihilation of my fifteenyear-old brain.’

Milligan describes, in excruciating detail, the experience of being on the stand. It’s a system designed to exploit our natural responses to trauma. Trauma fixes an experience in your mind as a single moment. Your brain takes a slice of time and expands it, suspends you in it, smothers you with it. Our justice system demands that complainants relive this moment on command. The trauma must be exposed, dissected, and made available for public consumption. Once the questioning is over, the annihilation complete, the victim is expected to walk out of the courtroom and get on with their life.

What, as law students, can we take away from this book?

The lesson is Kantian: we must treat people as ends in and of themselves. A witness does not sit before us to be conquered, cornered, or to be the blank slate upon which we practise rhetorical tricks learnt from Clarence Darrow. They are a person with complex subjective experiences, experiences that they don’t get to leave behind at the courtroom door.

“The lesson is Kantian: we must treat people as ends in and of themselves.”

Good behaviour by individual lawyers, however, is not enough. Our criminal law system, as it is, it demands that good lawyers do their best to humiliate, embarrass, and undermine some of the most vulnerable members of our society.

So long as one lawyer is willing to cater to an accused by tearing shreds off a vulnerable witness, we are all engaged in a race to the bottom. Milligan reminds us that lawyers have a duty, first and foremost, to serve the interests of justice. A system which leaves victims feeling as humiliated, broken, and disheartened as the assault they are there to vindicate fails to do that.

THIS BELONGS IN A MUSEUM THE LEGAL FOSSIL OF SEXUAL DIMORPHISM ALLY KING

Legal gender[1] is a relic of past discriminatory policies, enduring despite diminishing significance. It has, however, reached its final hour.

The separating of the population into inflexible, gendered categories arose in the law as a tool for discriminating between those afforded various rights such as in property, voting, and marriage, and those not. The progress of feminist and queer law reform, culminating with the Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth),[2] has rendered legal gender a relic of these previous discriminatory laws. Considering the impediment these categories represent for the recognition of intersex and trans* identities,[3] I wonder if it is time we buried them for good.

The legal categories of gender— usually ‘male’ (M) or ‘female’ (F), occasionally with a nonbinary or non-specific option— originated as a means to determine whether or not groups could exercise certain rights.[4] For example, M or F categories of gender were used to award the right to vote selectively until 1902;[5] to augment the property rights of F-assigned individuals based on their legal relationship to an M-assigned individual;[6] and, to criminalise M-M and F-F sexual relationships, as was the case in Tasmania until 1997.[7] Under Commonwealth law, trans individuals were required to prove that their marriages fit the characterisation of ‘a man and a women to the exclusion of all others’ until 2017.[8] Feminist and queer law re-

form has led to the widespread repeal, amendment and abandonment of laws that expressly discriminate based on legal gender and sexuality in Australia. By the admission of the High Court, such laws these days are virtually irrelevant, but the harmful effect of legal gender lingers.

Assignment and registration of legal gender takes place at, or soon after, birth, with the infant being categorised as ‘M’ or ‘F’.[9] Even where a third option is offered, the othering of non-dimorphic identities pathologises intersex and trans individuals by placing them outside the binary of perceived socially legitimate categories.[10] Assignment of legal gender at birth does not take into account that sex and gender are distinct, nor does it readily lend itself to classification based on chromosomal arrangement, hormone levels or physical characteristics.[11] Despite its failings, legal gender forms the basis for social and legal classification for the entirety of an individual’s life, determining access to rights and the imposition of expectations.

Applying to have a change of gender legally recognised differs between jurisdictions and can involve meeting certain requirements such as taking hormones, engaging in gender counselling, having surgery, or merely self-declaring legal gender.[12] The more stringent of these re-

53 quirements delegitimises the identities of trans* persons; by setting the parameters of medical transition required for a change in legal gender marker, this regime insists that there is a ‘correct’ way to transition, and ignores that some trans* individuals are unable to transition due to medical reasons. Imposing requirements for expensive and potentially unwanted medical interventions for the sake of legal categorisation is fundamentally unjust.

Additionally, the artificial binary construction of gender has resulted in the normalisation of genital surgery and medical intervention on intersex children, in an effort to erase their non-conforming identities, which has been flagged as an abuse of human rights.[13] Establishing a third legal gender category does not overcome these issues if membership to the third category is physiologically governed[14] and/or requires sexing by the law.[15] Rather, the problems with binarism are merely reproduced, and the third category becomes an exception.

Legal gender should be abolished as the next step in removing discrimination based on gender identity in the law.

After the Marriage Amendment Act 2017, the legal gender categories to which each party to a marriage had been assigned became irrelevant to the legal recognition of their marriage. Sexing[17] by a Court for the purpose of determining whether the relationship was acceptably heterosexual was thankfully abandoned. However, the practise of sexing continues where an individual is required to meet certain requirements in order to have their gender identity affirmed by chang-

ing or removing the gender on their birth certificate and other legal documentation.[18] Sexing most commonly occurs when the legal gender category to which an individual should be assigned is unclear, such as in the case of intersex and trans individuals. The process of sexing an individual is highly invasive and commonly involves examination and discussion of physical characteristics and medical surgeries, such as in the case of NSW Registrar of Births, Deaths and Marriages v Norrie (2014).[19] This treatment of trans individuals constitutes a breach of Australia’s domestic anti-discrimination laws and its international human rights obligations.[20]

medical procedures.

For the invasive process of sexing and the above barriers to recognition to be removed, legal gender must be removed from laws, documentation, and administrative processes.

Under a system of non-gender registration, trans and gender non-conforming individuals would be able to socially transition, and could choose to medically transition (or not, as the case may be) without paying fees for legal recognition and being required to undergo

There is no biological justification for dimorphic legal gender – and no legal justification for the use of gender as an identifying trait. Not only does this legal practise perpetuate policies and practises that are invasive and dehumanising, but its application may even constitute a breach of human rights and of domestic law. It is time to retire this fossilised remnant of past discriminatory policies to it where it belongs: a museum.

ARTIST: SYDNEY FAREY INSTA: @SYDFAREY

55

ABOUT US: T H E YO U N G WO R K E R S C E N T R E DID YOU KNOW? More than half of young workers have had their wages stolen by their employers (Young Workers Centre Survey, 2020). 89% of young workers have experienced sexual harassment (United Voice Survey, 2017). Young people between 15-25 have a 75% greater risk of being injured at work (WorkSafe ACT).

The first step to ending wage theft and harassment is knowing your rights and options in unfavourable situations. To improve awareness around these issues and advocate for young workers, UnionsACT launched the Young Worker Centre in 2019.

Our growing community of organisers, supporters and volunteers at the Young Workers Centre help to shape a meaningful future where young people feel respected and safe at work. We equip young people with the skills, leadership, and knowledge to shape a future world of work where they feel financially secure, confident and in control over their working lives. Ultimately, we want to ensure young people have avenues to assert their rights and to feel empowered in their workplaces.

WHAT SERVICES DO WE OFFER? We provide training, information, and support for young workers on their workplace rights, safety, and wellbeing through drop-in clinics, workshops and classroom-delivered programs. This includes the Work Health and Safety for Work Experience Students and Rights at Work programs. These programs are offered to high schools, colleges and tertiary institutions including CIT. With the support of the ACT Government, we also provide free, confidential information about workplace rights to workers under the age of 25 via an online portal, email address and phone line.

Anyone can access our website to find relevant workplace fact sheets about wages, pay slips, health and safety information, employment conditions and our latest blog posts and articles.

WHAT ELSE DO WE DO? We recognise that we can only achieve meaningful progress on issues faced by young workers by scrutinising the structure of workplace laws and regulations. Today, Australians undertake unprecedented levels of insecure, casualised jobs, with less

guaranteed protections at work and without sufficient recourse to assert their rights. An overwhelming 75% of respondents to our 2020 survey were employed as casuals or contractors or even ‘informally’ (illegal “cash in hand”). The Young Workers Centre, along with similar organisations around Australia, recently wrote submissions to the Senate Select Committee on Job Security.

We highlighted the detriments of casualisation on the lives of young people.

HOW CAN YOU GET INVOLVED? It all starts with having conversations with our friends and co-workers and realising that any oppression affects us collectively. Wage theft, harassment, and unsafe work are not unique to select workplaces or industries, nor are they unique to particular groups of young workers even though some groups may be especially prone to exploitation.

The Young Workers Centre is organising a campaign in the ACT to introduce legislative changes which guarantee better protections for young workers. Get in touch with us to share your story or join the campaign. Sign and share this petition so we can achieve these changes together --- www.youngworkerscbr.org. au/young-workers-demand-fair-and-secure-jobs/ Community Legal Education, a student-lead program within Law Reform and Social Justice ANU, will be introducing a volunteer program to coordinate with the Centre in Semester 2. Follow the Community Legal Education page on Facebook for more updates. You can apply to volunteer in the research, outreach and/ or campaigns stream. Applications will open soon, so stay tuned!

WANT TO CHECK OUT OUR UPCOMING EVENTS? Follow us on Instagram: ‘youngworkerscbr’ Like our Facebook page: Young Workers Centre ACT Join our Facebook group: ‘Young Workers CBR’ Join our Facebook group for hospitality workers: ‘Canberra Hospo Worker’s Collective’ Visit our website: www.youngworkerscbr.org.au Community Legal Education (LRSJ): https://www.facebook.com/ groups/581113191906431

THE LEGACY OF THE PALACE LETTERS A REVIEW OF ‘THE PALACE LETTERS’ BY JENNY HOCKING AND ‘THE TRUTH OF THE PALACE LETTERS’ BY PAUL KELLY & TROY BRAMSTON E L L I OT T M E RC H A N T

57 The first memory I have of the Dismissal is of a large frustrated looking man proclaiming ‘may we say God save the Queen, because nothing will save the Governor-General’. At the ripe old age of 11, I had no idea what he was talking about, who he was or why anyone cared. Despite my ignorance, I found it all incrediwbly fascinating. In Year 6, we had to complete a ten-week project on a past or present leader of our choice. Everyone else in my class chose someone like Julius Caesar, George Washington or Captain Cook.

With the memory of the proclamation firmly in my head, I chose Gough Whitlam, without any understanding of the man, his government, his times or his legacy.

Two Stories and One Shared History 10 years later and 46 years following the Dismissal itself, the achievements, the crises and the characters of the Whitlam government loom large in the Australian polity. It is unique as a moment in history as one that can be characterised as either a political thriller, a constitutional battle or a personal drama running deep with anger, hatred and spite. Perhaps this is why almost half a century later, people like Jenny Hocking and Paul Kelly are still writing about it, seemingly gripped by this insatiable obsession with the events of the fateful day, the 11th of November 1975.

The historian Jenny Hocking started out working in a printing press, immersed in the world of politics and news. Her mother was the first barrister briefed on the Mabo case and she herself has authored eight books, six on Whitlam, his government and the Dismissal. Starting in 2016 she fought a four-year long legal battle to gain access to the infamous Palace Letters, correspondence between the Governor-General and Queen Elizabeth II in the lead-up to the Dismissal. The journalist Paul Kelly of The Australian was a young cadet at the time of the crisis. He has written no less than three books on the Dismissal and produced at least one documentary. He has authored an impeccable history of Australian politics since, covering every government up to the 2013 election.

The release of the Palace Letters has set off another round of November 1975 fever with both Kelly and Hocking releasing books on the letters. The Palace Letters

by Jenny Hocking and The Truth of the Palace Letters by Paul Kelly & Troy Bramston reflect what both authors have been arguing for decades. It is unsurprising that Kelly and Hocking use the Palace Letters to achieve different ends and offer opposing interpretations. Both conclude that the Dismissal was a political, constitutional and personal catastrophe but lay the blame at different feet. Beyond the truth of the Palace Letters, their history and the legal battle which saw their release we must

ask ourselves: why? Why did this happen? What did it cost? The legacy of the palace letters must be paramount, or we are destined to repeat the same mistakes.

November 1975 On the 11th of November 1975 the Governor-General Sir John Kerr dismissed the elected Prime Minister Gough Whitlam and appointed the Opposition Leader Malcolm Fraser as caretaker Prime Minister.

This was the climax to a political stalemate hatched by Fraser when he instructed his people in the Senate to defer the government’s appropriation bills (laws enabling government expenditure), denying Supply to the government. This meant that when existing finance ran out, the governance of Australia would grind to a halt with no money for public-servants, government services or basic administration. The government of Australia would effectively shut down.

As the representative of the Crown, and the guardian of the Sovereign’s reserve powers, immense pressure was put on Sir John Kerr, the Governor-General, to resolve the crisis. Particular attention was given to the reserve power of dismissal which enables the Governor-General to remove the elected prime minister surreptitiously and appoint someone else.

Fraser and the Opposition believed that a government unable to secure Supply had lost the confidence of the parliament and must either call an election, resign or be dismissed. Whitlam and his government believed that this was unconstitutional and that the Governor-General was under no obligation to dismiss the government or grant an election. Against the advice of his Prime Minister and his ministers, the Governor-General dismissed Whitlam on the morning of the 11th of November, commissioned Fraser shortly after and dissolved parliament in the afternoon. An election was held a month later on the 13th of December which Fraser won in a landslide.

Whitlam lost 30 seats, almost half of his original total. Unlike the role of Sir John Kerr, no uniform view exists about the nature of the Crown’s role in the crisis.

Jenny Hocking’s ‘the Palace Letters’ Hocking’s book The Palace Letters is the more personal account of November 1975 and the author’s relationship with the crisis. Instead of offering an overview with the addition of the letters as evidence, Hocking details the legal battle which saw the letters released and then uses them to argue that the Palace had an intimate role in the dismissal of the government. This book essentially tells two stories, firstly a uniquely Australian legal drama to get the letters released and secondly a constitutional thriller as Hocking uses the letters to characterise and detail the nature of

Kerr’s relationship with the Palace. The story of how Hocking came to be aware of the letters to securing their release is a fascinating one. Some might assume that the only relevance of the book is its discussions of the letters themselves and their constitutional validity. This would be a mistake. Hocking vividly describes the Australian judicial system and creates a portrait of a nation and a Commonwealth deeply unsure of itself, paralysed by constitutional and political insecurity.

Something I couldn’t help noticing as Hocking’s legal team jumps from court to court was how frequently the government changed in-between her appeals. As someone who grew up in the lost decade of the six prime ministers, this was more disorienting than I anticipated. Hocking works hard to describe a legal and political environment which appears if not rigged against her, predisposed to keep the letters and their secrets hidden. Surprise decisions, cagey judges, creepy government lawyers and a cautious political class (including a hedging Malcolm Turnbull) serve to create an atmosphere of paranoia and power. The romance of this campaign is not lost on Hocking either, she frequently reminds us that Gough Whitlam’s son, Antony Whitlam is her chief advocate. Her interactions with stuffy public servants, her descriptions of the courtroom and her own emotions convey to the reader that this is personal for her, much more so than for Kelly, for the jurists, the national archivists or the Crown. It is this grounding of Hocking’s book in modern Australia that makes it all the more entertaining and readable.

Unlike Kelly’s work, which is set in November 1975, Hocking gives the reader more agency in the story. Free of legalese and out of the past you feel like you’re a part of this crack legal team, fighting against a weak and insecure government to set history free. This makes it all the more euphoric when the High Court finally orders that the letters be made public, against the express desires of our sovereign, Queen Elizabeth II. Hocking then turns to the letters themselves. For almost 50 years, the chief villain of November 1975 has been Sir John Kerr with Whitlam validated as a martyr and a hero of social democracy and Fraser vilified as a ruthless politician but a mediocre Prime Minister. Gough Whitlam summarised this view best when he said on the question of Sir John Kerr, ‘let’s face it, he was a weak man and a deceptive man and a dishonourable man.’ Hocking has no love for Kerr and characterises him as an arrogant and bitter man consumed by ‘his fear of his own recall, his frailties, his need for royal approbation and his planning for and eventual decision to dismiss the government.’ Kerr seems to be someone who wanted to achieve great things but lacked the strength and the guts to ob-

tain the power he so craved. She claims that this made him unstable, impulsive and ripe for manipulation. Hocking’s chief criticism of Kerr is twofold. She claims he was lying when he said he acted alone in deciding to dismiss the government and that he neglected his constitutional duty to warn Whitlam of his decision to dismiss.

Hocking is right on both counts. However, using the Palace Letters, Hocking goes one step further and claims that the Palace was also complicit in this deception.

The Palace Letters reveal that the Queen, through her private secretary, Sir Martin Charteris, was well aware of what Kerr was thinking and planning. Kerr’s insecurity seeps off the page like mud as he describes the crisis and casts aspersions on the character and the abilities of both Whitlam and Fraser. Charteris indulges him, perhaps out of compassion, politeness or deference, and tries to address his concerns. In a series of letters in the lead up to the critical point, Kerr writes about the possibility of dismissal if the government cannot secure Supply. Charteris, and the Queen by extension, does nothing to discourage him. Instead, Charteris confirms that not only does Kerr possess the power to dismiss the government, but he refers Kerr to the work of Eugene Forsey, a constitutional scholar with supreme belief in the reserve powers of the Crown and contempt for the parliament.

Hocking concludes that this correspondence confirms the knowledge and active participation of the Crown in the crisis. Not only did Charteris indulge and encourage Kerr but the Palace confirmed the existence of the reserve power to dismiss the government. This gave a weak and repressed man all the confidence he needed to prove himself and defy his superiors.

Hocking claims that the Palace should have informed Whitlam of Kerr’s thinking as Kerr himself was too afraid to do so and that it was improper for them to advise Kerr without the Prime Minister’s knowledge.

Hocking concludes that this constituted a gross breach of the separation of powers as the Crown and their Governor-General acted without the knowledge of the democratically elected Prime Minister. Therefore, Hocking argues that the blame lies with the Governor-General and Buckingham Palace and that the constitutional crisis of November 1975 was a constitutional failure, not a personal one.

Paul Kelly and Troy Bramston’s ‘The Truth of the Palace Letters’ Paul Kelly’s view of the Palace Letters is unsurprisingly, very different. Kelly essentially rewrites his excellent account and evaluation of the Dismissal, November 1975, and cut and pastes the Palace Letters into the relevant chapters. His book The Truth of The Palace Letters is more like a collection of essays loosely

tied together than a compelling political, constitutional and personal narrative like Hocking’s book. His writing is mechanical, forceful and as strong as iron. But his prose lacks the personal touch of Hocking’s and his book reads more like a manual than a novel. Kelly is far more aggressive than Hocking in his treatment of Kerr. Paul Keating’s foreword is lethal and he cuts Kerr’s memory deep; disparaging his character, his intelligence and his soul.

Someone should remind him that Sir John Kerr died 30 years ago. Kelly characterises the constitutional crisis of November 1975 as a personal failing, not so much a constitutional or royal one.

The focus of his work is overwhelmingly on the character and motives of Sir John Kerr as he describes how he made the decision to dismiss Whitlam and the ramifications of his actions. Kelly claims that the Palace Letters prove nothing other than that Australia is a constitutional monarchy with executive power vested in the Queen as head of state and the Governor-General as her supreme representative. He casts no dispersions on the role of the Palace, Charteris’s correspondence with Kerr nor his advice on the nature and exercise of the reserve powers. He characterises Hocking’s take on the Palace Letters as one founded in paranoia and insecurity and treats her accusations of royal interference and impropriety as no more than a common conspiracy theory. He argues that Charteris did nothing more than confirm the existence of the power of dismissal, which is hardly a stunning revelation in a constitutional monarchy.

Kelly argues that Kerr, seeking fame and glory by dismissing the government, ‘cultivated’ the Palace and manipulated Charteris, not the other way around. He lays the blame for the crisis solely at the feet of the Governor-General, not the Opposition Leader, not the Palace and definitely not the Queen. Kelly goes a step further and states that Hocking’s take on the Palace Letters is indicative of national insecurity.

He argues that there is something in the Australian psyche which makes us seek to avoid blame for our own crises. The discourse around the Dismissal would seem to support this view, even Whitlam himself publicly accused the CIA of having some connection to the crisis. However, Kelly’s powerful conclusion is that the Palace Letters are a window into the soul of Sir John Kerr, not a weapon of manipulation wielded by a vindictive and Machiavellian Buckingham Palace. Kelly wants us to look deep within ourselves and our politics to learn the lessons of November 1975 rather than export our angst to London.

Our Constitutional Crisis All of this begs the question: why? Why should we care about any of this? Why should I read these books? Why should we relive something that happened almost half-a-century ago? These two books provide a vital historical and constitutional service. Through all the back and forth between Hocking and Kelly, both authors have shed a light on one of Australia’s most meaningful and unforgettable crises. Through their own distinct prose and ideas, both books represent the final piece of the grand puzzle that was November 1975. For this we should be eternally grateful. These books will rightly haunt the shelves of countless libraries for centuries to come. While their material form may be compromised by dust and decay, their value will never depreciate. Both write that they believe the release of the Palace Letters marks the end of November 1975 fever and that the story is now complete.

They may well be the last books ever written about Australia’s greatest constitutional crisis. And yet, both books completely miss the point. They fail to answer the fundamental question: why did this happen?

And why should we care?

The answer is simple. November 1975 and the Palace Letters are about us, our way of life, our leaders and our nation.

What could be more important? The constitutional crisis to which the Palace Letters belong marked the violent and chaotic end to what I believe to be Australia’s greatest experiment in social democracy to date. The Whitlam Labor Government came to power in 1972 after a generation of Liberal rule by Menzies and his many successors. I believe they achieved more in just three years than the previous regime had in 23 years. We owe our modern society to him and his government.

Universal healthcare, the abolition of the death penalty, the beginning of the end of protectionism, secular education funding, territorial representation and free tertiary education are just some of his achievements. My father and the parents of many others could not have gone to university without these reforms.

However, Whitlam did not run a perfect government. It was plagued by personal conflict, individual incompetence and a series of scandals born of poor judgement and mismanagement. The global economy suffered its greatest crisis since the Great Depression and Australia suffered double doses of stagflation and unemployment. Perhaps the noise of the crisis acted as a double-edge sword, washing away both the bad and the good together.

However, the endless focus on the constitutional crisis which ended this great experiment tends to mask the legacy of the Whitlam Government. It should go neither unthanked or unmourned. We should

59

care about the Palace Letters because they form a piece of the Australian social democracy, perhaps an ugly one, but a part of this great society nonetheless. These two books allow us to learn from the crisis which created them, to remember the government lost and the government gained.

No achievement or failing can exist in isolation of history. The Australian Story is incomplete and Australians are paralysed until the full truth is known.

Finally, we should not forget the human cost of this crisis.

The constitutional cost is well documented, the political less so. But little to no attention is given to Sir John Kerr or the Crown in the aftermath of the crisis. I have no love for Kerr and neither do most people.

He made a serious mistake, one that cost him his reputation, his confidence and his happiness. He lived out his days in exile, separated from the country he loved and the people he had tried and failed to serve. The 20 years of his life after the crisis were not happy ones. He drank heavily, was obsessed by November 1975 and dumped as Governor-General by the man he had elevated to the Prime-Ministership just two years earlier.

Whitlam never forgave him and the constant barrage of attacks from the Labor Party, some from his old friends, must have cut deep. He died in 1991 at the age of 76. With the exception of Julia Gillard, most of our deposed former leaders seem to live their final years unhappily, consumed by regret, revenge and torment.

Perhaps the Palace Letters also reveal a window into the Australian psyche and the character of our leaders. Perhaps, despite being someone who appears to be above all of this, the Queen was not left unscathed by the crisis either.

Paul Keating wrote that when he went to see the Queen and explained why it was time Australia became a republic, she paused and said ‘you know, my family has done a lot for Australia’. Maybe Paul Kelly was right, it is impossible to separate the personal from the constitutional or the political

ARTIST: IZAAK BINK INSTA: @IZAAK.BINK

ARTIST: CALEB BAUER INSTA: @CALEBAUER

SECTION 44(i) OF THE AUSTRALIAN CONSTITUTION: UNNECESSARY AND ONEROUS VARSHINI VISWANATH

Why does s44(i) matter today?

COVID-19 has highlighted the differential impact on and treatment of various ethnic and socioeconomic groups in Australia. To me, the most striking example of differential treatment was the imposition of punitive measures on Australians returning from India. Would such policies have been implemented if the Federal House of Representatives was more ethnically diverse and could bring various perspectives to the table for deliberation?

Australia is one of the most diverse countries in the world. Yet, Australia has the lowest ethnic descriptive representation on the federal level compared to countries like Canada, UK and US.[1] I believe this discrepancy is unacceptable, and that the country would benefit from more diverse representation. In contexts of low government legitimacy and a history of excluding minorities from political participation, descriptive representation improves the deliberative process of democracy.[2] During deliberation, different ideas and perspectives are shared within the legislature before legislation is passed.[3] According to Mansbridge, deliberation improves because representatives with share lived experiences are able to advocate for the needs of their constituents more authentically.[4] Unfortunately, there are many political, social and psychological barriers to descriptive representation on the federal level. This opinion piece focuses on a constitutionally entrenched bar to representation for immigrants, especially those who hold alternative citizenships. Citizenship has many practical and symbolic effects. It allows one to participate politically, while providing them with a sense of belonging in both, home and host countries.[5] Under s44(i) of the Australian Constitution, why must one renounce all other citizenships before qualifying for office on the federal level? Is this an unnecessary and onerous bar to political participation? s44(i) and Re Canavan S44(i) disqualifies from running for, being elected into or sitting in office: ‘Any person who: (i) is under any acknowledgment of allegiance, obedience, or privileges of a subject or a citizen of a foreign power.’ adherence to a foreign power, or is a subject

or a citizen or entitled to the rights of a origin. Without much deliberation, however, foreign power.[6] the Australasian Federal Convention redrafted the clause into what it is today.[16] I In 2017, Re Canavan; Re Ludlam; Re Wa- believe the s44(i) should be amended to reters; Re Roberts (No 2); Re Joyce; Re Nash; flect this earlier version. This version is also Re Xenophon (Re Canvan)[7] gave rise to more consistent with the allegiance requirea ‘constitutional crisis’ that questioned the ments in other Commonwealth countries. eligibility of seven members of parliament who held multiple citizenships.[8] The Court Other jurisdictions adopted a formalist understanding of ‘allegiance’, ‘deciding that if the law of a foreign Dual citizens are welcome to run for, get country deemed a person to be a citizen of elected to and sit in parliament in other that country, that fact alone was a sufficient common law countries like the United Kingaffirmation of foreign allegiance,’[9] unless dom, United States, Canada and New Zeathat person has ‘take[n] reasonable steps to land.[17] In New Zealand, the allegiance free himself or herself of foreign citizenship’. requirement resembles the earlier draft of [10] What ‘constitutes reasonable steps to s44(i), whereby, a parliamentarian may lose renounce foreign citizenship will necessari- their seat if they acquire a new citizenship ly depend on the requirements of the law of after election.[18] Even Australian states the foreign power’.[11] Five of seven mem- and territories do not have tests as strict bers were immediately disqualified, despite as that in s44(i), thus allowing dual citizen the fact that some of them were not aware to occupy political offices.[19] Overall, the of some citizenships.[12] case for s44(i) is very weak. The need for loyalty and security do not overwhelm the While allegiance is important, I believe that need to amend s44(i) to allow for more desuch a strict requirement is unnecessary scriptive representation. and forces immigrants to renounce important symbolic and practical ties to their coun- How do other people feel about s44(i)? try of origin. Re Canavan coincided with Pauline Hanson’s fearmongering about the ANU’s Anne Twomey and the Joint Standing ‘Muslimisation of Australia’.[13] While I dis- Committee on Electoral Matters, amongst agree with Hanson, there is some merit in others, have called for changes to the curensuring loyalty to the Australia.[14] Never- rent exclusionary regime.[20] theless, s44(i) imposes an obligation of allegiance that is unnecessarily stricter that the Acknowledging that Australia is an immiprovision’s previous drafts and from equiv- grant and multicultural nation, the Hon Mialent obligations in other Commonwealth chael Kirby remarked about s44(i): countries. [u]nless there is some other interpretive way to solve the problem then I Drafting History think it should be changed, because Australia really has been successful Previous drafts of s44(i) disqualified only as a multicultural society and that is those who took positive steps to acquire challenged by this approach to disentiother memberships while in office: tle a very large number of members of the Australian community being elect“If a Senator or Member of the House ed to the national parliament. That’s of Representatives ... takes an oath or not a good thing.[21] makes a declaration or acknowledgment of allegiance, obedience, or adherence Concluding thoughts on s44(i) to a Foreign Power, or does any act whereby he becomes a subject or citi- Amidst rising ethnic and culture divisions zen, or entitled to the rights or privileges both within and outside of Australia, descripof a subject or citizen, of a Foreign Pow- tive representation will ensure that diverse er ... his place shall thereupon become voices are heard within the highest levels of vacant.”[15] political decision-making. S44(i) is but one bar to better representation, but it poses an It is likely that this draft of s44(i) would have important symbolic and practical bar to the allowed immigrants to run for office as long country in its journey to truly earn the title of as they did not seek a new citizenship once ‘most successful multicultural society’. in office. Thus, it would not require repudiation of important ties to their country of

FIT AND PROPER PERSON PA R L I A M E N TA R Y I N Q U I R I E S I N T O T H E C R I M I N A L CONDUCT OF POLITICIANS S E B A S T I A N M A Z AY

Recent calls for a Parliamentary Inquiry to investigate the alleged criminal conduct of the former Attorney-General Christian Porter have been dismissed as contrary to the rule of law.[1] I disagree, such inquiries are both legal and act to balance the rule of law. The executive and legislative bodies should be held to an equal fit and proper standard under the rule of law. I will examine inquiries which make findings of criminal conduct in the process of their decision making. Likewise, I will discuss the distinction between punishment and the removal of statutory entitlements. Ultimately, I will demonstrate that a parliamentary inquiry can and should be established to uphold, rather than contradict, the rule of law.

I. THE RULE OF LAW The rule of law and the separation of judicial power are well-established principles in Australia. In fact, one of the many justifications for the separation of judicial power is to allow the courts to uphold the rule of law.[2] Central to this understanding of judicial power is that courts, and courts alone, exercise the exclusive power of ‘adjudgment and punishment of criminal guilt’.[3] This allows allegations to be heard in front of independent and impartial adjudicators.[4] Importantly, the rule of law seeks to uphold equal application of the law. In other words, officers of the State should not be rendered exempt from the law merely because they hold office. One such example is set out under s 44(ii) of the Constitution which disqualifies members who are ‘convicted and ... under sentence, or subject to be sentenced, for any offence under the law of the Commonwealth or of a State by imprisonment for one year or longer’.[5] Whilst Mr Porter does not fall into these categories, as he only faces allegations without charge at this time, it is integral that we understand that government Ministers are held to a higher standard to maintain confidence in public institutions.

Intuitively, we want to be able to trust the members we have elected. Having allegations heard and either validated or dismissed reinforces public confidence in the institution.[6] The NSW government acknowledged this benefit in 1988 when it established the Independent Commission Against Corruption (‘ICAC’) in response to several allegations of corrupt conduct.

[7] It has worked effectively to expose, publicise, and prevent corrupt conduct in NSW government and corporations.[8] Clearly, having serious allegations against public officers heard publicly is both beneficial to public confidence and ensures officers are held to the standard of the rule of law.

A. FIT AND PROPER TEST To re-establish trust in government in the wake of alleged misconduct, it is necessary to examine whether parliamentarians are fit to hold their office. The ‘fit and proper person’ test is used frequently as a condition for holding a licence or office in Australia.[9] Whilst the test exists in different forms for different legislative areas, common requirements include no past criminal convictions, no breaches of registration or authority, and public confidence in the person’s suitability.[10] Serious allegations of criminal conduct such as those made against Mr Porter, by their nature, undermine confidence in both the Minister and the institution of Parliament.[11] Hence, an inquiry which applies the fit and proper standards to Ministers ensures that allegations can be resolved and restore public confidence in Parliament. Thus, a fit and proper inquiry has two functions; repairing public confidence in the person by validating or dismissing allegations against them and repairing public trust in government by removing members who have irreparably lost public confidence. As such, it should not be controversial to consider a fit and proper person inquiry into members of Parliament to repair lost confidence and trust.

II. DETERMINING CRIMINAL GUILT Whilst only courts can determine criminal guilt, this does not prevent an executive inquiry forming opinions of criminal conduct. The key distinction here is that forming opinions of criminal conduct is done in the process of decision making.[12] That is, the finding of criminal conduct is not determinative but merely a consideration of the decision maker. For example, in Precision Data Holdings the Australian Securities Commission was empowered to have an inquiry into wrongful or potentially unfair acquisition of shares.[13] To do so, it was required to determine ‘unacceptable circumstances’ of past conduct to ensure a competitive and informed market.[14] Framing the power to ensure a competitive market, based on public interest considerations, was essential to its validity. The High Court concluded that policy considerations distinguish mere administrative opinions of legal obligations from judicial determinations; [A]lthough... the formation of an opinion as to the legal rights and obligations of parties [is a] common ingredient in the exercise of judicial power... if the ultimate decision be made not merely by the application of legal principles to ascertained facts but by considerations of policy also, then the de-

61

termination does not proceed from an exercise of judicial power.[15] Forming opinions of past criminal conduct according to policy considerations, such as ensuring public trust in public institutions, is not judicial.[16] It does not merely apply legal principles, but examines conduct and its impact on relevant policy considerations.

As such, the proposed parliamentary inquiry cannot be established to make a finding of criminal guilt but, can form an opinion on whether the alleged conduct occurred if given sufficient policy considerations. An obvious and acceptable policy consideration is maintaining and repairing public confidence in Parliament and its members. This opinion will be necessary in determining if Mr Porter, and other Ministers, meet the description of ‘fit and proper’ to hold office as a member of the government.

III. ADMINISTRATIVE PUNISHMENT Furthermore, only courts can impose criminal punishment as consequence to findings of criminal guilt.

This does not prevent executive and legislative bodies from removing statutory entitlements which were not obtained properly. In Duncan v New South Wales (‘Duncan’) the NSW Parliament passed legislation revoking mining licences which ICAC found to be issued under corrupt pretences.[17] The High Court’s decision in Duncan was based on the removal of statutory entitlements being distinct from the enforcement of existing rights.[18] If statutory rights are removed or powers are non-punitive in their purpose, then they are not exclusively judicial powers. It should be noted that non-punitive purposes have been read broadly to include community harm prevention and prevention of corruption.[19] Gageler J has noted that ‘not... all hardship or distress inflicted upon a citizen by the State constitutes a form of punishment’ rather, only those which have no convincing non-punitive objectives.[20] Likewise, in Kariapper v Wijesinha the Privy Council dealt with legislation which removed parliamentarians from office in Ceylon.[21] Since corrupt members were not qualified to hold office, removing their membership was consistent with removing entitlements, not punishment. This is consistent with s 64 of the Constitution which empowers the Governor-General to appoint Ministers who ‘shall hold office during the pleasure of the Governor-General’.

[22] Ministers have no legal right to hold administrative office rather, their office may be removed at the pleasure of the Governor-General. There is some debate in Duncan regarding the necessity of ICAC forming the opinion of corrupt conduct as well as NSW Parliament separately forming an opinion to remove the statutory entitlements.[23] This may constrain the powers of a potential inquiry to merely forming

opinions of conduct which may evidence the fitness and propriety of Ministers. What is clear, however, is that an inquiry could make recommendations to the Governor-General or Prime Minister to remove Ministerial office in cases of unfitness. As such, if an inquiry were established to examine the qualifications of members to sit in Parliament according to a ‘fit and proper’ standard, they could be removed from office or, at the very least, be empowered to issue recommendations to the Governor-General to dismiss unfit members.

ADDICTED TO CRIME DRAMAS & NO - I WILL NOT STOP SACHINI POOGODA

https://sachinipoogoda.wixsite.com/writer?fbclid=IwAR1O-s8b3rZmqLMHF85tQyks_CxaqX6IDsSssY3CLHq0VxjIWC6WOhhARok

IV. CONCLUSION An inquiry into serious allegations against senior public officers is not only consistent with the rule of law but is necessary to uphold it. As discussed, it is not contrary to the powers of Parliament to empower an inquiry to examine if members are fit and proper to hold office. During the inquiry, they may form opinions as to whether criminal conduct occurred without determining criminal guilt. Likewise, they can remove the entitlements of office and recommend an officer be removed from office without explicitly punishing the officer for their conduct. Thus, Parliament can and should establish a parliamentary inquiry into any and all serious allegations against its members.

ARTWORK: JOÃO BRESLER INSTA: @OYSTERBOIART

63

65

Are you still watching?

It’s 2:38am. The message meets my heavy lids eyes with an air of judgement. Yes, I think, like anyone else who’s ever been asked, I am. I’m watching Criminal: UK. I have been for the last 6 hours. Kit Harrington stares down the barrel of the camera. He’s been accused of raping a co-worker. I can’t look away.

I have always liked crime-centred entertainment. I’ve watched all fifteen seasons of Criminal Minds; spent hours listening to Eleanor O’Neale recount the most prolific crimes of Western history; and tuned into podcast after podcast. I let the theme song of Law & Order lull me to sleep.

I am fascinated by the brutality of murder. The more I know I shouldn’t look, the more I want to.

It’s voyeuristic. I say this all at the risk of sounding psychopathic because there is a reason there is so much material out there—I’m not the only one who is obsessed.

‘not getting murdered’ is going to be pretty hard.

I also don’t hold much faith in law enforcement, so it’s not the solving of the crime I find enticing either.

It’s the murderer, the rapist, the criminal. I am captivated by questions of what would drive someone to murder. When does anger become lethal? What happened in their childhood that twisted their psyche so much to make inflicting pain desirable? It is a morbid fascination I have no ability to quell. And I wonder, although many have suggested that women’s fascination with true crime is rooted in empathy with the victim, might my obsession be rooted in a desire to empathise? I want to understand human behaviour.

I want to know why. I don’t want to justify awful behaviour – but I want to believe it has come from somewhere. Somewhere deep and fucked up. I want to know how someone got that way.

Humans are fascinated with death. And the more So I can make sure, for absolutely certain, that grisly and disturbing the crime – the harder the I won’t. jolt of adrenaline. Criminology professor Scott Bonn describes watching crime drama as a way to experience fear in a controlled environment ‘where the threat is exciting but not real’. It is a form of thrill-seeking. But what does it mean when the stats reveal that women, by far, are driving the surge in popularity for the crime genre?

It has been known for a while now that, while men might be the more physically aggressive sex, women are more drawn to the true crime genre. In their 2010 paper, Vicary and Fraley suggest several possibilities as to why, including that women fear becoming the victims of crime more than men, though men are more likely to be victims. Women consume stories about crime to learn how to avoid it. This is partly because when it comes to disturbing crimes —like rape and serial killings—women are the prime targets. Other articles suggest crime TV is an outlet for the way women are socialised— women aren’t given the same allowances to show aggression the way men are, and crime dramas allow them to access a darker side of their personalities.

I’ll agree, hearing stories of the Golden State Killer forces me to double check I’ve locked my doors.

But ‘staying sexy and not getting murdered’ (as hosts of podcast My Favourite Murder like to say) still doesn’t quit encompass the root of my obsession. If there is one thing many hours of true crime consumption has taught me, it’s that serial killers are smart. And if one has their eye on you,

ARTIST: SAMIRA INGOLD INSTA: @__RA.IN__

CORPORATIONS IN THE PUBLIC DOMAIN: UNFETTERED AND UNACCOUNTABLE SHIBAN SHAHID

Representative government, as envisaged by section 24 of the Australian Constitution,[1] requires public functions to be performed primarily by the government, or under governmental supervision. As the government is democratically elected, they implicitly have the public’s consent to perform public functions and are, accordingly, politically accountable. As such, the unregulated ambit of the corporation’s legal capacity following the abolition of the ultra vires doctrine and the subsequent affirmation of the separate legal entity doctrine (‘SLEd’) within a laissez faire capitalist economy, as well as the absence of direct public accountability, justifies governmental regulation of corporations performing public functions. In this essay, public functions means the provision of goods and services which affect the interests of the wider public, such as utilities and transport. Further, government regulation refers to any legislative (statute) or executive (contract or ownership) regulations through which the government can impose legal conditions on the corporation’s performance of the public function. Thus, judicial review does not fall within this ambit.

A. UNFETTERED LAWFUL AUTHORITY OF CORPORATIONS 1. LEGAL CAPACITY OF THE MODERN CORPORATION The separation of powers curtails the arbitrary exercise of the government’s authority by preventing power from being ‘concentrated in the hands of any one individual or institution’.[2] This is necessitated by the ‘broad-ranging effects on the nation’s well-being’[3] that are likely to result from the State’s performance of ‘functions which fall outside’ the legal capacity and recourses of an individual.[4] Thus, to be valid, State actions must have a legal source of power, as defined by the Constitution, statutes and common law.[5] The lack of equivalent requirements governing the corporation’s legal capacity in the public domain may, therefore, result in undemocratic and arbitrary exercises of power.

Where, prior to 1984, a corporations’ valid exercise of power was limited to acts directly or tangentially provided for in their Memorandum of Association’s objects statement,[6] no such requirement exists today. Rather, the abolition of the ultra vires doctrine is explicitly demonstrated by section 125(2) of the Corporations Act 2001 (Cth)[7] – that an act is not invalid merely because it is not within a company’s statement of objects.[8] This, in combination with Salomon v Salomon’s affirmation and normalisation of the SLEd,[9] has effectively broadened corporation’s legal capacity in terms of the acts which they may validly perform.

companies. This is increasingly more important considering the rising popularity with which public functions, such as utilities, private prisons, railroads and education, are being privatised.[20] 3. CONTEMPORARY EXAMPLE

As such, the modern corporation now has the ‘legal capacities and powers of an individual’,[10] as well as those of a body corporate.[11] The effect being that companies are lawfully able to perform any act which is not, of itself, contrary to existing laws.[12] This, however, is qualified by the fact that acts of a company which are particularly extraneous to the company’s objects may result in a breach of director’s duties.

2. IMPLICATIONS IN A LAISSEZ FAIRE ECONOMY The implication of this is that corporations have a legal capacity beyond that of an individual, while simultaneously being subjected to fewer restrictions than the State.

When considered in light of the relative ease with which corporations can access and accumulate resources, being vastly greater than that of an individual and even some States,[13] the unfettered nature and degree of their legal capacity facilitates the potential for corporations to enter the public domain, performing functions that impact the rights and interests of the collective public.

Resultantly, under the laissez faire capitalist conception of the modern Australian economy, the broad, unregulated legal capacity of the corporation creates a significant likelihood of the neglection of societal equality and public interests. A laissez faire, or free-market, economy is one which promotes corporate liberalism in a profit-driven system.

[14] This pecuniary focus, however, does not require corporations to consider or perform functions in manner which ameliorates inequalities,15 injustice or socioeconomic dislocation.16 The privatisation of public functions will thus be equitable only where there are conditions requiring or incentivising corporate directors to act in the public interest. Thus, where no such conditions are naturally present, as is unlikely in a profit-driven economy, ‘governmental involvement will likely be necessary’.[17] Given this, regulation is a justified and, arguably, appropriate, tool through which the government can re-direct the focus of a corporation’s performance of a public function exclusively away from profit-maximisation, as inspired by the laissez faire economy. Rather, regulation imposes conditions which both require and incentivise corporations to perform their functions in a manner capable of creating social value and addressing inequalities,[18] as determined by government officials who are best suited to make such polycentric policies.[19] Concurrently, where the conditions regulating and permitting the corporation’s performance of the public function are established and maintained by elected officials, actions performed by the corporation will retain degrees of democracy and representativeness that are absent where the same functions are performed by private, technocratic

NBN Co Ltd (‘NBN’) is a monopolistic State-Owned-Enterprise – a corporation in which ‘full, majority, or significant minority ownership’ of its share capital are owned by the State.[21] It has two Minister shareholders – the Ministers for Finance and Telecommunications – each holding 50 per cent of NBN’s shares.[22] Through this, NBN is subject to parliamentary scrutiny through parliamentary committees, and is required to submit a three-year Corporate Plan to the Ministers for approval each year.[23] Thus, the government has imposed conditions on NBN, permitting them to operate as Australia’s monopolistic broadband provider. In return, NBN operates on a non-for-profit basis in areas – such as rural regions – which could not otherwise afford or have access to such goods and services in a laissez faire market, thus acting in the best interest of the wider public.

B. THE CORPORATIONS LACK OF POLITICAL ACCOUNTABILITY Despite the general requirement that bodies performing public functions be publicly accountable, limitations in both principle and practice preclude the existence of a comparable standard of accountability for public officials (‘officials’) and private corporations.[24] The constitutional doctrine of representative government imposes an obligation on officials to take the view of the public into account when performing public functions on their behalf.[25] While the scope for legal enforcement of this ‘fiduciary duty’ to the public is limited,[26] the obligation renders the officials politically accountable to nation-wide scrutiny, by virtue of the public consent implicit in the democratic process.[27] Thus, when performing public functions, they are required to balance the polycentric interests of the wider public, having regard to countless demographic groups and their varied needs. In doing so, the government is positioned to maximise public utility and address inequalities.

However, to impose such an obligation on directors would disregard the private character of the majority of free-market corporations. Similarly, such duties would be impractical and unrealistic in the private laissez faire economy, given that directors’ expertise do not typically reside in polycentric decision-making.[28] It would similarly impair the efficiency of the entire economy by subjecting direc-

tors to the potential of countless trivial claims of breach of such a duty.

For these reasons, inter alia, with the exclusion of the general requirements the directors act with the ‘care and diligence’ of a reasonable person in his or her circumstances[29] and in the best interests of the company as a whole,[30] directors duties primarily centre upon satisfaction of the monocentric, often pecuniary, interests of the company’s shareholders or towards the company’s internal governance.[31] The result of these monocentric duties being that directors are responsible only to the board, and the company’s shareholders through corporate statutory contracts.[32] This is evinced in that the wider public is not party to the company’s corporate contract,[33] nor can they sue under it.[34] Despite the practical limitations, however, these monocentric duties and the limited degree of accountability afforded under them, are inappropriate and ill-suited for corporations performing public functions. Rather, the polycentric considerations required, coupled with the potentially broad-ranging consequences, when performing public functions necessitates the ‘involvement and contribution’[35] of all societal stakeholders – being the private and public sectors, the state and citizens. Thus, government regulation is justified to impose a greater standard of ‘transparency and accountability’[36] on corporations performing public functions.

Through regulation, the public is able to provide input on the manner in which the corporation ought to be regulated through political means of accountability. This is because, as the regulations dictates the very manner in which the corporation operates, the political accountability of the regulators themselves (i.e. the government) actively extends the corporation’s accountability from merely its shareholders to the wider public.

67

C. CONCLUSION The performance of public functions by private companies justifies government regulation. The unfettered and broad legal capacity and autonomy of private corporations, justifies regulations which limit the ambit of the corporation’s capacity, thereby directing their performance of public functions towards the creation of societal and public value, rather than pecuniary gain. Regulation is further justified to impose political accountably onto corporations performing public functions, due to the notable lack of public accountability afforded under the private laissez faire economy.

ARTIST: GEORGIA LARSON INSTA: @GEORGIALARSONDESIGN

69

T h e M a n i p u l a t i o n O f Le g a l A n d Po l i t i c a l N o r m s B y M a r c u s Tu l l i u s C i c e r o

By Heather Collins

Marcus Tullius Cicero, known commonly to history as Cicero was ‘a famous orator, philosopher, priest, poet, politician, wit and raconteur.’[1] He is known for a myriad of political and legal speeches alongside personal correspondence. Cicero provides an interesting case study for assessing how “Roman law” could be manipulated by high-ranking Roman individuals to serve their individual interests – for example, political advancement.

This phenomenon will be assessed by analysing the Catiline Conspiracy to illustrate and evidence Cicero’s manipulation of Rome’s legal reality.

Then a discussion will be undertaken which will show that this action did not have the effect Cicero desired and that this was commonplace for those who manipulated the rules. Then the phenomenon will then be linked to broader Republican dialogue surrounding declining morality to illustrate legal misuse as an indicator of broader social trends. This will facilitate a discussion on how this legal manipulation can be construed as a contributing factor and the systematic instability which resulted in the Republic’s fall.

From the onset of this article, it is important to acknowledge that Roman law and consequently Roman legal principles, whilst composing the foundation for much of modern common law, were vastly different. Roman law was based on written principles. However, the core of these written principles were contained in the Twelve Tables.[2[ These were a series of laws developed very early in the Republic and consequently, the Rome represented in these codified laws and the Rome which existed the last century BC were very different worlds.[3] From this foundation Roman law continued to be codified, however Roman law practically seems to have been governed by mos maiorum [‘the way of the ancestors’].[4] This concept was used repeatedly in legal and government contexts to validate actions that were considered against Rome’s ambiguous legal and political norms because they had historical precedence.[5] Legal and Political Norm Manipulation in the Catiline Conspiracy?

The Catiline Conspiracy is considered

ARTIST: STEPHANIE VIECELI INSTA: @FERALBASTARD

as simultaneously a political plot, coup, ‘terrorist conspiracy’ or farce.[6] Opinions regarding the validity of the crisis are increasingly divided and comprehensive.[7] The Conspiracy centred around Cicero, one of the Consuls for 63BC, and his opponent Catiline.

[8] The social position of both men is important to note. Cicero was a novus homo [new man] and as such his rise to the consulship was an unusual and some would have argued “unconstitutional” reality.[9] However, the concept of the Roman Republic having a solidified, written constitution is a myth, with Rome’s written legal code being vague.[10] This led to Roman politics and legal matters being governed primarily by mos maiorum [‘the way of the ancestors’].[11] Yes, there was written law, for example, the Twelve Tables, however, precedence for any written law was always established by citing the actions of an ancestor.[12] Marius could be evidenced as precedence for Cicero, as he assumed the consulship as a novus homo, however, the concept was still taboo.[13] This information is relevant because it helps explain why the vast majority of Rome’s aristocrats did not like Cicero.[14] Catiline, however, was a blueblood patrician, supposedly disillusioned with his inability to obtain the consulship and described as having a ‘wicked and crooked deposition.’[15] Beard described the conflict as ‘partly a clash of political ideology and ambition’ alongside these social factors, meaning Catiline realistically felt spurned that Cicero, despite having no ancestral right to the consulship, had deprived Catiline of the position.

[16] Catiline also had severe financial problems as a result of two failed electioneering attempts to assume the role of consul.[17] Cicero reported stories of a coup against the state concerning Catiline’s attempts to rerun for the consulship in 62BC.[18] He postponed the elections and then manipulated the results so that Catiline was not elected.

[19] From here Cicero reported further intelligence surrounding Catiline’s socalled coup.[20] Some of this intelligence was purportedly found through the involvement of the Allobroges.[21] This is noteworthy because of Rome’s fear of the “Gauls.”[22] Rome feared these people because they represent-

ed the only people who had managed to sack Rome and thus they represented a real and historical threat to Rome’s sovereignty.[23] Cicero presented this evidence to the Senate in early November, which isolated Catiline and likely contributed to him fleeing to his supporters outside Rome – an act that made him guilty.[24] Cicero here exceptionally manipulated the legal reality. He accused Catiline effectively of conducting terrorist acts and pursued policies to address this which were outside established legal practices.[25] This has parallels to modern homeland security and the extrajudicial treatment of those who have been accused of terrorism.[26] This comparison is apt considering the senate had earlier already awarded Cicero “special powers” which enabled him to ‘to prevent the commonwealth from suffering any damage.’[27] This effectively meant Cicero could act outside the law in response to any threat against Roman statehood.

Cicero’s personal beliefs surrounding the conspiracy can be seen in the opening of his first speech against Catiline. Cicero opens by stating ‘what point will exhaust, our patience, Catiline?’[28] His first three lines are rhetorical questions. These questions heighten Catiline’s absence (at the time) because they reiterated his inability to answer the charges levelled against him. Cicero’s speech is littered with historical precedence validating that the state has the “right,” “obligation” and most importantly the precedence to act against Catiline.[29] One example he cites was that of Gaius Gracchus who Cicero’s stated that despite ‘all the distinction of his father, grandfather and ancestors, was killed on the vague suspicion of treason’.

[30] This is the problem of Roman law – namely, the fact that history established precedence, not legal authority or written law. This proved to be increasingly problematic and a significant contributing factor to the demise of the Roman Republic.[31] This is because the actions which were undertaken by Marius, Sulla, Caesar, Marc Antony and Octavian, could all, to some extent, be considered “legal” as they had precedence. Yet, this description does not portray the abnormality

of their actions to the established legal and political norms.[32] Cicero’s case is no different, he manipulated the Roman concept of mos maiorum to facilitate the removal of a political threat.

Cicero assembled the Senate on December 5, 63BC to determine what should happen with the men who had been arrested for participating in the conspiracy.[33] It was decided these men would be executed, without trial.

[34] However, the whole affair generated a lot of suspicion about where certain powerful men’s loyalties lied, including Cicero’s fellow Consul Antonius Hybrida, Caesar and Crassus.[35] However, following the end of his consulship the very law Cicero manipulated to prosecute Catiline was turned against him.

[36] It was decided that those who punished Roman citizens without providing them with a fair trial did not deserve a place to voice their opinions.[37] Two years later it was further decided anyone who killed a Roman citizen without a trial deserved to be exiled from Rome.

[38] This was Cicero’s fate and his career never fully recovered.[39] Thus, an interesting reality is evidenced here – namely, that Cicero manipulated the legal code of Rome to pursue his agenda and to make himself memorable, noteworthy and deserving of the people’s love. Yet, it backfired on him spectacularly. Despite all his knowledge and his intelligence, his gamble did not work, and he was eclipsed by men such as Pompey, Cato and ultimately Caesar (who ultimately eclipsed them all).

These men all bent the law to their advantage too, and it did not particularly work out any better for them – for example, Caesar who was famously stabbed to death for assuming the role of “Dictator for Life.”[40] So maybe the moral of the story is that dodgy dealings catch up with you and this has been a reality for at least two millennia.

The “Morality Debate” as evidenced in the sources Pertaining the Catiline Conspiracy Cicero also engages in the morality debate which was permeating Rome at the time. This is seen in the opening of his speech denouncing Catiline, Cicero stated ‘o tempora, o mores’ which roughly translates to ‘oh the times we live in, oh the morals of the time.’[41] This reiterated the idea that Catiline’s immorality was a product of his time.

This type of morality dialogue is not specific to Cicero. There was a common perception amongst authors and elites of the time that the Republic’s morality was being impinged.[42] Sallust’s account of the Catiline War additionally coupled as a monologue despairing the declining morality of the Roman Republic and how this was responsible for the corruption of traditional Roman norms.

[43] The text opens by describing how politics had been corrupted and that Catiline illustrated this phenomenon at its worst.[44] Interestingly he was approving of Caesar (believed to be his patron), and Cato, who was a staunch moral traditionalist summarising their competing personalities in section 54.[45] This morality narrative is centred on the decline of the “proper Roman aristocratic man” whose masculinity was supposedly being impinged by Greek effeminising influences.[46] This narrative appeared as a response to Rome’s rapidly changing social norms. It is noteworthy concerning the manipulation of laws to serve political agendas because this was one of the core things which allowed the weakening of the Republic and its collapse. It is intrinsically linked to this narrative of Roman senators being “unable” or no longer believing it to be in their interests to resign from government posts.

[47] The historical precedence set by Scipio Africanus was no longer applicable to men such as Cicero, Catiline and Caesar.

[48] Instead their personal prestige, political safety and desire to prove themselves in Rome’s competitive “military-political complex,” where elite men were only deemed valuable if they contributed to the state militarily and then politically.[49] Additional to this was Ro-

man conceptions of ancestral memory, wherein you had to do your ancestors proud, meaning that becoming consul was no longer enough.[50] Finally, this worked in conjunction with systematic changes which resulted in Rome having conquered, by Cicero’s time, a very substantial empire, which the governance system established in the Twelve Tables for a small, rural Italian farming community could simply not effectively govern.[51] Thus, Cicero’s actions are symbolic of a broader societal reaction, based on Roman principles and customs which facilitated the manipulation of the law for personal gain.

Conclusion To conclude, late Roman Republican politicians altered Roman legal norms and frameworks to suit their agendas.

They did this for a multitude of reasons including to enhance their political careers or to eliminate rivals. An example of this is Cicero through his manipulation of law during the Catiline Conspiracy.

However, the evidence also suggests that this type of engineering of the law and misuse of the concept of mos maiorum tended to have negative effects on the perpetrator. This practice of legal manipulation fit within Republican dialogue surrounding declining morality to help indicate that this legal manipulation was a factor of the Roman governance system and one which u l t i mately c o n tri b u ted to t h e fall of the Republic.

Proportionality and Security – Our Submission to the International Data Access Bill

Andrew Ray, Bridie Adams & Kate Renehan

71 In conjunction with the ANU Law Reform and Social Justice Research Hub (ANU LRSJ), we three law students wrote a submission concerning the Telecommunications Legislation Amendment (International Production Orders) Bill 2020. This piece outlines the process we followed in making the submission and the key recommendations we ultimately made.

Making a submission to a parliamentary inquiry We have had the opportunity to make submissions to a range of parliamentary and ancillary inquiries on behalf of the ANU LRSJ, GreenLaw and the Allens Hub for Technology Law and Innovation, based out of UNSW. In the process of making these submissions, we have generally followed a strict formula and have compiled with a few tips for student submissions which are set out below: 1. Find a topic that you enjoy Writing submissions is relatively time intensive, with no guarantee that the submission will be used by the parliamentary body. This means that it is important to pick an Inquiry in an area that you are interested in. In this way, submissions can become a fun way to learn more about an area of law that you don’t have space for in your degree. If you look at the submissions we have authored, they (generally) have a technology law focus as this is an area that we as a group have a strong interest in. It helps if the area is something that you have some experience working in, regardless of personal interest. For example, we as a group would not be well placed to make a submission to the COVID inquiry regarding nursing training offered in response to the pandemic.

We may, however, be able to offer a useful comment on the privacy implications of the COVID-Safe app.

2. Pick a diverse group that you know you can work well with As submissions need to touch on a wide range of areas and discuss policy outcomes, it is important to select a diverse group of individuals to work with. Drawing on people with differ-

ARTIST:STEPHANIE XIN HU CHENG INSTA: @GOHAN.BUBBLES

ent degree or/subject combinations and with differing expertise can be an easy way to strengthen your submission. As a volunteer project, the importance of being able to work well together similarly cannot be overstated.

Once you find a group of individuals you like working with – keep working with them!

3. Find a supervising academic who has expertise in the area (and has time) The ANU has a wide range of expert academics and finding one who has both a particular interest in your area and who is willing to supervise is key.

We were supervised by Dr Damian Clifford in relation to this submission and his knowledge of privacy law (particularly comparative privacy law) was extremely helpful in guiding our final submission. Don’t forget that academics are human too and giving them a clear deadline (with plenty of time to review) will allow them to plan for the time needed to review your submission.

4. Narrow your submission to a few questions Government inquiries often have wide-ranging terms of reference.

However shorter submissions that focus on areas of law that you as a group know about are often more effective than wide ranging submissions. It is important to outline which questions you are responding to and then focus on those. This allows those reading the submission to work out quickly whether it is relevant for what they are looking at.

5. Focus on the practical, not the theoretical Rather than a legal essay, a government Inquiry submission is meant to advocate for clear, practical outcomes – it is often a case of not letting the perfect get in the way of the good and not making points beyond the focus of the inquiry. In this manner, a good starting point therefore is to read any submissions made to the inquiry or similar inquiries and work out what you can build on or add.

6. Structure and form Submissions generally follow the same template (irrespective of which organisation you are making the submission on behalf of). Start by outlining who you are (and why the committee should listen to you), then outline a summary of the recommendations you are making. Next break down each recommendation in detail with supporting literature as appropriate, and finally summarise your points and outline whether you are happy to be contacted by the committee.

7. Have fun!

While it may be daunting to publish a submission to an inquiry, the process is meant to be fun and engaging and allow you to broaden your interests.

After all, if you aren’t enjoying something you volunteer for, it may be time to find a different project.

Our submission Our submission drew on earlier work of some of the group members regarding the need to balance privacy and security objectives. In applying a lens of proportionality, we assessed the proposed Bill in order to answer whether it appropriately protected the privacy of Australian citizens, while balancing against the need to protect Australia’s national security. In completing this analysis, we made a series of tailored recommendations regarding the scope and application of the Bill. In particular, our submission made recommendations regarding the areas to which the considerations decision-makers should turn their mind to in granting an international production order, the time taken for the process and how transparency and accountability mechanisms could be improved. We concluded that this was best achieved through increased funding.

Co l l e g e o f L a w P h o t o g r a p h s F a c i l i t i e s a n d S m o k i n g Ce r e m o n y

IMAGE CREDIT: ANU COLLEGE OF LAW

73

FOOTNOTES AND CITATIONS INDEX

____________________________________________ MYOPIA - A DIFFERENT EPIDEMIC [1] World Health Organisation, The Impact of Myopia and High Myopia, (Report of the Joint World Health Organisation-Brion Holden Vision Institute, 16–18 March 2015).

[2] The Eye Disease Case-Control Study Group, ‘Risk Factors for Idiopathic Rhegmatogenous Retinal Detachment’ (1993) 137(7) American Journal of Epidemiology 749.

[3] World Health Organisation, The Impact of Myopia and High Myopia, (Report of the Joint World Health Organisation-Brion Holden Vision Institute, 16–18 March 2015).

[4] Ibid.

[5] Tracy Bowden, ‘Short-Sightedness, or Myopia, a Global Epidemic as Children Spend Less Time Outdoors’ Australian Broadcasting Corporation (Online Article, 2 March 2017) <https://www.abc.net.au/news/2017-03-02/short-sightedness-epidemic-as-peoplespend-less-time-outside/8318882>.

[6] Australian National University, ‘’The Epidemic of Myopia in East and Southeast Asia’ Australian National University Research School of Biology (Online Article) < https://biology.anu.edu.au/news-events/news/epidemic-myopia-east-and-southeast-asia>.

[7] Science Daily, ‘Education Linked to Higher Risk of Short-Sightedness’ Science Daily (Online Article, 6 June 2018) <https://www.sciencedaily.com/releases/2018/06/180606185354.htm>.

[8] Madison Park, ‘The Simple, Free Solution to Asia’s Myopia Epidemic’ CNN World (Online Article, 6 April 2015) <https://edition.cnn.com/2015/04/05/asia/myopia-east-asia/ index.html>.

[9] Fiona Duffy, ‘Short-Sightedness Now a Global Epidemic’ Raconteur (Online Article, 24 September 2018) <https://www.raconteur.net/healthcare/eye-health/myopia-global-epidemic/>.

[10] MyVision, ‘Child Myopia: A Looming Public Health Crisis for Australia and New Zealand’ MiVision (Online Article, 13 May 2019) <https://www.mivision.com.au/2019/05/ child-myopia-a-looming-public-health-crisis-for-australia-and-new-zealand/>.

[11] DeutscheWelle, ‘COVID-19 and Eyesight: Myopia on the Rise During Lockdown’ DeutscheWelle (Online Article, 21 January 2021) <https://www.dw.com/en/covid-19-andeyesight-myopia-on-the-rise-during-lockdown/a-56301421>. ____________________________________________ THE FUTURE OF WORK [1] A.I. Expert Says Automation Could Replace 40% of Jobs in 15 Years, Don Reisinger, 2019, Fortune [2] Evans, Clark, 1928. March of the Machine Makes Idle Hands; Farm Employees Less with Increased Output, The New York Times [3] Sherwani, F., Asad, M.M., Ibrahim, B.S.K.K., 2020. Collaborative Robots and Industrial Revolution 4.0 (IR 4.0), in: 2020 International Conference on Emerging Trends in Smart Technologies (ICETST). Presented at the 2020 International Conference on Emerging Trends in Smart Technologies (ICETST), pp. 1–5. https://doi.org/10.1109/ICETST49965.2020.9080724 [4] Hermann and Paris, 2020, Digital Nomadism: the nexus of remote working and travel mobility. URL https://link-springer-com.virtual.anu.edu.au/article/10.1007/s40558-02000188-w [5] Barbados Welcome Stamp - Work Remotely in Barbados, 2020, Barbados Welcome Stamp. URL https://barbadoswelcomestamp.bb/ [6] Wildecombe, The Rise and Fall of WeWork | The New Yorker, 2019 URL https://www. newyorker.com/culture/culture-desk/the-rise-and-fall-of-wework [7] WorkPac v Rossato [2020] FCAFC 84.

[8] Marin Guzman, 2020. High Court asked to overturn “double dipping” decision. Australian Financial Review. URL https://www.afr.com/work-and-careers/workplace/high-courtasked-to-overturn-double-dipping-decision-20200617-p553ge [9] Brennan, 2020. New report reveals gig economy thrives off hardship and instability. URL https://independentaustralia.net/politics/politics-display/new-report-reveals-gig-economy-thrives-off-hardship-and-instability,14130 [10] Harris Poll Survey commissioned by Microsoft on May 26-30, 2020 among 2,285 total adults ages 18+ who are currently working remotely across the US, UK, Germany, Italy, Mexico, and China.

[11]Comcare Australian Government, 2020 https://www.comcare.gov.au/__data/assets/ pdf_file/0006/99303/Benefits_to_business_the_evidence_for_investing_in_worker_health_and_wellbeing_PDF,_8 9.4_KB.pdf [12] Pandey, S., 2020. An Empirical Study on Socially Responsible Human Resource Practices and Wellbeing of the Employees in SMEs, NCR 10. ____________________________________________ NO SUCH THING AS CONVENIENT PROTEST [1] ‘Australia’s civic space rating downgraded as freedom of speech threatened’, CIVICUS (online, 4 December 2019) <https://monitor.civicus.org/Australia.PeoplePowerUnderAttack/>.

[2] Ben Smee, ‘Queensland parliament passes laws to crack down on climate protesters’, Guardian <https://www.theguardian.com/australia-news/2019/oct/24/queensland-parliament-passes-laws-to-crack-down-on-climate-protesters>.

[3] Communication to Australia from Clement Nyaletossi Voule, David R. Boyd, David Kaye, and Michel Forst to Australia, 3 December 2019, 3 <https://spcommreports.ohchr.org/ TMResultsBase/DownLoadPublicCommunicationFile?gId=24922> (‘Communication to Australia’).

[4] Ibid.

[5] Brown v Tasmania [2017] HCA 43.

[6] Andrew Edgar, ‘Environmental Protests and Constitutional Protection of Political Communication: Brown v Tasmania’ (2018) 30 Journal of Environmental Law 333, 341.

[7] Matt Dennien, ‘Tasmania is again Tackling Protesters. What led here?’, Examiner (online, 16 November 2019) <https://www.examiner.com.au/story/6493558/tasmania-is-againtackling-protesters-what-led-here/>.

[8] See eg. Brown v Tasmania [2017] HCA 43, 64-93 (Nettle J).

[9] Gabrielle Appleby, Luke McNamara, and Victoria Sentas, Submission to Workplaces (Protection from Protesters) Amendment Bill 2019 (Tas) (3 March 2019) <http://www.gtcentre.unsw.edu.au/sites/gtcentre.unsw.edu.au/files/submission_-_tas_anti-protest_amendments_03032019.pdf>, 2.

[10] Adam Morton, ‘‘The Franklin would be dammed today’: Australia’s shrinking environmental protections’, The Guardian (online 30 January 2018) <https://www.theguardian. com/environment/2018/jan/30/the-franklin-would-be-dammed-today-australias-shrinking-environmental-protections>.

[11] Phillipa C. McCormack, ‘The Legislative Challenge of Facilitating Climate Change Adaptation for Biodiversity’ (2018) 92 Australian Law Journal 546, 553.

[12] Morton, (n 10).

[13] Graeme Samuel, Independent Review of the EPBC Act (Interim Report, June 2020) 4.

[14] Michael Slezak, ‘Federal environment law review calls for independent cop, but Morrison Government rules it out’, ABC News (online, 20 July 2020) <https://www.abc. net.au/news/2020-07-20/epbc-act-environmental-review-report-recommends-independent-cop/12392594>.

[15] Samuel, (n 13).

[16] Slezak (n 14).

[17] Samuel, (n 13) 3.

[18] Australian Attitudes to Nature 2017 (Report, 2017) 4.

[19] CSIRO, Annual surveys of Australian attitudes to climate change (Report, 2019) <https://www.csiro.au/en/Research/LWF/Areas/Pathways/Climate-change/Climate-attitudes-survey>.

[20] Rebecca Huntley, ‘Australia Fair, Listening to the Nation’ (2019) 73 Quarterly Essay 4.

[21] ‘Extinction Rebellion protesters charged after blocking roads and creating chaos in Brisbane’, ABC News (online, 6 August 2019) <https://www.abc.net.au/news/2019-08-06/ extinction-rebellion-protest-brisbane-cbd/11384442#:~:text=Police%20arrested%20 15%20men%20and,police%2C%20and%20breach%20of%20peace.&text=Several%20 activists%20who%20were%20blocking,from%20the%20road%20by%20police.> (‘Extinction Rebellion protestors charged’). ____________________________________________ ANUSA AND ITS CONSTITUTION [1] Corporations Act 2001 (Cth).

[2] Associations Incorporation Act 2009 (NSW); Association Incorporation Reform Act 2012 (Vic); Association Incorporation Act 1981 (Qld); Associations Incorporation Act 2015 (WA); Association Incorporation Act 1985 (SA); Association Incorporation Act 1964 (Tas); Associations Act 2003 (NT).

[3] See Association Incorporation Act 1991 (ACT) s 14(2) (‘The Act’). But see s 4.

[4] Ibid s 22 (‘The Act’) [5] Ibid s 24. See also s 23.

[6] See Constitution, ANU Students’ Association s 14(1) (‘ANUSA Constitution’). This is confirmed by a recent Disputes Committee ruling in Re Section 26 Request of 24 October 2020 [2021] 1 DC 1 (‘FOI Interpretations Case’), which can be accessed here: https://anusa.com.au/pageassets/about/meetings/DRAFT-SRC-2-Minutes-1.pdf.

[7] The Act (n 3) Dictionary [8] See ANUSA Constitution (n 6) s 15.

[9] See ibid s 14(1)(d).

[10] The Act (n 3) Dictionary [11] See ibid ss 65, 65A, 66A–66D. [12] Ibid s 65(1).

[13] Ibid s 66A. [14] Ibid s 66B. [15] See Corporations Act 2001 (Cth) s 9. See in particular the definition of ‘company’, ‘Part 5.7 Body’. I could not find legislation that excludes ACT associations from the Corporations Act 2001 (ACT): see s 5F. Cf Association Incorporation Reform Act 2012 (Vic) s 144(1).

[16] Justice Connect, ‘Positions in an incorporated association: Legal Information for ACT incorporated associations’, Not-For-Profit Law (Fact Sheet, 2020) 4 <https://www.nfplaw. org.au/sites/default/files/media/Positions_in_an_incorporated_association_ACT.pdf>.

[17] FOI Interpretations Case (n 6) [24].

[18] ANUSA Constitution (n 6) s 9(11)(a).

[19] Ibid s 9(11)(b).

[20] See The Act (n 3) s 16(c)(i); s 31(1)(a).

[21] The ANUSA Constitution can be found here: https://anusa.com.au/about/anusa/ constitution/ [22] Re the Constitutionality of the Out-of-Session SRC Resolution of 30 October 2019 [2019] 1 DC 1, [9]–[10]. The ruling can be found here: https://anusa.com.au/pageassets/ about/meetings/SRC-1-agenda-040320.pdf.

[23] Ibid.

[24] ANUSA Constitution (n 6) s 20.

[25] Ibid s 20(3).

[26] Ibid s 20(16)(b).

[27] The Act (n 3) s 50.

[28] Hayley Hands, ‘ANUSA Investigates Governance Overhaul’, The ANU Observer (online, 9 March 2020) <https://anuobserver.org/2020/03/09/anusa-investigates-gover-

nance-overhaul/>.

[29] See The Act (n 3) s 48. I shall leave the question how s 30 of the Human Rights Act 2004 (ACT) affect the provision for another article.

[30] Ibid s 34.

[31] See FOI Interpretations Case (n 5) [20]–[21].

[32] See Stephen Bottomley and Tom D Campbell, The Constitutional Corporation: Rethinking Corporate Governance (Routledge, 2007) 35, cited in FOI Interpretations Case (n 5) [28].

[33] See Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640.

[34] FOI Interpretations Case (n 6) [36].

[35] Ibid.

[36] ANUSA Constitution (n 6) s 3 [37] See Greg Taylor, ‘The Origins of Associations Incorporation Legislation – The Associations Incorporation Act 1858 of South Australia’ (2003) 22(2) University of Queensland Law Journal 224, 225, 233–4; Stephen Bottomley, ‘The Corporate Form and Regulation: Associations Incorporation Legislation in Australia’ in Roman Tomasic and Ric Lucas (eds), Power, Regulation and Resistance: Studies in the Sociology of Law (Canberra College of Advanced Education Series in Administrative Studies No 8, 1986) 44, 46, 51.

[38] See FOI Interpretations Case (n 6) [36]. ____________________________________________ DEMOCRACY IN SAMOA [1] Alexis De Tocqueville, Democracy in America (Penguin Books Australia, 2003).

[2] Pacific Beat, ‘Samoa faces political crisis as Prime Minister-elect blocked from Parliament, caretaker PM accused of holding onto power’, ABC (online, 25th of May 2021) <https://www.abc.net.au/news/2021-05-24/samoa-fast-blocked-from-parliament-tuilaepa-handover-crisis/100159880>.

[3] Rhys Richards, Samoa’s forgotten whaling heritage; American whaling in Samoan waters 1824-1878 (Wellington: Lithographic Services, 1992) 18-20.

[4] Robert Louis Stevenson, A Footnote to History: Eight Years of Trouble in Samoa (Cassell, 1892).

[5] Albert Wendt, Guardians and Wards: A Study of the Origins, Causes, and the First Two Years of the Mau in Western Samoa (Wellington: Victoria University, 1965).

[6] Western Samoa Act 1961 (NZ).

[7] Samoa Constitution s16, s32, s65.

[8] Ibid s32.

[9] Ibid.

[10] Ibid s44.

[11] Ibid s16.

[12] Anthony Regan, ‘Samoa’s Constitutional Crisis and the Dangers that have gone before’, The Interpreter (online, 8th of June 2021) <3https://www.lowyinstitute.org/the-interpreter/samoa-s-constitutional-crisis-and-dangers-have-gone>.

[13] Ibid.

[14] Samoa Constitution, Article 44.

[15] Ibid s44.

[16] Ibid.

[17] Natasha Frost, ‘She was supposed to become prime minister but was locked out of Parliament’, The New York Times (online, 24th of May 2021) <https://www.nytimes. com/2021/05/24/world/asia/samoa-election-parliament.html>.

[18] Ibid.

[19] Malama Meleisea, Penelope Schoeffel, ‘Culture, Constitution and Controversy in Samoa’, The Interpreter (online, 23rd of June 2020) <https://www.lowyinstitute.org/ the-interpreter/culture-constitution-and-controversy-samoa>.

[20] Ibid.

[21] Natasha Frost, ‘She was supposed to become prime minister but was locked out of Parliament’, The New York Times (online, 24th of May 2021) <https://www.nytimes. com/2021/05/24/world/asia/samoa-election-parliament.html>.

[22] Ibid.

[23] Ibid.

[24] Ibid.

[25] Pacific Beat, ‘Samoa’s political crisis deepens as two rivals claim prime ministership’, ABC (online, 25th of May 2021) <https://www.abc.net.au/news/2021-05-25/samoa-tuilaepa-refuses-concede-fiame-mata-afa-oath-primeminister/100162880>.

[26] Natasha Frost, ‘She was supposed to become prime minister but was locked out of Parliament’, The New York Times (online, 24th of May 2021) <https://www.nytimes. com/2021/05/24/world/asia/samoa-election-parliament.html>.

[27] Ibid.

[28] Ibid.

[29] Pacific Beat, ‘Samoa’s political crisis deepens as two rivals claim prime ministership’, ABC (online, 25th of May 2021) <https://www.abc.net.au/news/2021-05-25/samoa-tuilaepa-refuses-concede-fiame-mata-afa-oath-primeminister/100162880>.

[30] Malama Meleisea, Penelope Schoeffel, ‘Culture, Constitution and Controversy in Samoa’, The Interpreter (online, 23rd of June 2020) <https://www.lowyinstitute.org/ the-interpreter/culture-constitution-and-controversy-samoa>.

[31] Anthony Regan, ‘Samoa’s Constitutional Crisis and the Dangers that have gone before’, The Interpreter (online, 8th of June 2021) <https://www.lowyinstitute.org/the-interpreter/samoa-s-constitutional-crisis-and-dangers-have-gone>.

[32] Ibid. ____________________________________________ ALCOHOLISM IN THE LEGAL SYSTEM American Bar Association, “Study On Lawyer Impairment”, Americanbar.Org (Webpage,

2019) <https://www.americanbar.org/groups/lawyer_assistance/research/colap_hazelden_lawyer_study/> Bezrutczyk, Destiny, “Alcoholism Among Lawyers & Legal Professionals - Alcohol Rehab Guide”, Alcohol Rehab Guide (Webpage, 2021) <https://www.alcoholrehabguide.org/resources/alcohol-abuse-lawyers-legal-professionals/> Cidambi, Indra, “Drug And Alcohol Abuse In The Legal Profession”, Psychology Today (Webpage, 2017) <https://www.psychologytoday.com/us/blog/sure-recovery/201707/drug-and-alcoholabuse-in-the-legal-profession> Elejalde-Ruiz, Alexia, “advertisement business high rates of alcohol abuse, depression among u.s. Attorneys, study says”, chicago tribune (webpage, 2016) <https://www.chicagotribune.com/business/ct-lawyers-problem-drinkers-0204biz-20160203-story.html> ____________________________________________ COUNTER-TERRORISM: LEGISLATIVE INTENTION AND THE RULE OF LAW - CAN THEY AGREE? [1] Authorization for Use of Military Force Against Iraq, Pub. L. No. 102-1, 105 Stat. 3 (1991) [2] Hamdi v. Rumsfeld, 542 U.S. 507 (2004) [3] Habib v Commonwealth of Australia [2010] FCAFC 12 ____________________________________________ THIS BELONGS IN A MUESUM [1] In this article, I refer not to sex, nor to social gender, but legal gender; that is, the legally recognised classification of gender that appear in laws, in administrative processes and on birth certificates.

[2] Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth).

[3] I use the term trans* as an umbrella term to refer to all gender identities that do not completely or consistently identify with legal gender as assigned at birth.

[4] Sweeting, Helen, Matthew William Maycock, Laura Walker, and Kate Hunt, ‘Public challenge and endorsement of sex category ambiguity in online debate: ‘The sooner people stop thinking that gender is a matter of choice the better’’ (2017) 39 (3) Sociology of Health and Illness 380.

[5] Commonwealth Franchise Act 1902 (Cth).

[6] See, e.g., Andrew James Cowie, ‘A History of Married Women’s Real Property Rights’ (2009) 6 Australian Journal of Gender and Law 1; Married Women’s Property Act 1882 (UK); Marriage Act 1961 (Cth).

[7] Graham Carbery, ‘Towards Homosexual Equality In Australian Criminal Law - A Brief History’ (2010) Australian Gay and Lesbian Archives 1, 47; Criminal Code Amendment Act 1997 (Tas).

[8] Marriage Amendment Act 2004 (Cth); Kristen Walker, ‘The Same-Sex Marriage Debate in Australia’ (2009) 11 The International Journal of Human Rights 109-110.

[9] Bars, Grietje, ‘Queer Cases Unmake Gendered Law, Or, Fucking Law’s Gendering Function’ (2019) 45 (1) Australian Feminist Law Journal 15, [10] See, e.g., Maria Victoria Carrera, Renee DePalma and Maria Lameiras, ‘Sex/gender identity: Moving beyond fixed and ‘natural’ categories’ (2012) Sexualities 15 (8) 995, 998.

[11] See, e.g., West-Sell, Sharon A., John Mark Van Ness, and Margaret E. Ciccolella, ‘Policy, and Physiology as Determinants of Fairness for Transgender Athletes’ (2019) 22 (2) Professionalisation of Exercise Physiology 1, 7-8; Knox, Taryn, Lynley C Anderson and Alison Heather, ‘Transwomen in elite sport: scientific and ethical considerations’ (2019) 45 (6) Journal of Medical Ethics 395-400.

[12] Holzer, Lena, ‘Sexually Dimorphic Bodies: A Production of Birth Certificates’ (2019) 45 (1) Australian Feminist Law Journal 91.

[13] See Dean Spade, “Documenting Gender” (2008) 59 Hastings Law Journal 731.

[14] See generally Dean Spade and Wahng Sel ‘Transecting the Academy’ (2004) 10(2) A Journal of Gay and Lesbian Studies 240.

[15] Sexing refers to the process undertaking by courts or administrators to determine the applicable legal gender to attach to an individual under that jurisdiction’s legislative regime. The practise of sexing perpetuates the perception that gender identities outside the legally recognised categories, and physical characteristics other than those associated with the legally recognised categories, are abnormal or require rectification and classification.

[16] See above n 2.

[17] See above n 15 for a definition of sexing [18] See e.g. NSW Registrar of Births, Deaths and Marriages v Norrie (2014) 306 ALR 585; NSW Government, ‘Change of Sex’, NSW Registry of Births, Deaths and Marriages (Web page) <https://www.nsw.gov.au/topics/name-changes-and-corrections/change-of-sex>.

[19] 306 ALR 585.

[20] See generally Cowan, Sharon, ‘“Gender is No Substitute for Sex”: A Comparative Human Rights Analysis of the Legal Regulation of Sexual Identity’ (2005) 13 (1) Feminist Legal Studies 67; Lena Holzer, ‘Sexually Dimorphic Bodies: A Production of Birth Certificates’ (2019) 45 (1) Australian Feminist Law Journal 91. ____________________________________________ SOLIDARITY FOREVER: REFUGEE ACTION CAMPAIGNS 2020 [1] Amy Remeikis, 19 October 2020 “Australia’s refugee intake falls 30% below target as pandemic takes toll” in The Guardian Australia https://www.theguardian.com/australia-news/2020/oct/19/australias-refugee-intake-falls-30-below-target-as-pandemictakes-toll.

[2] Ibid.

[3] Nicole Curby, 21 October 2020 “The wait: Indonesia’s refugees describe life stuck in

75

an interminable limbo” in The Guardian Australia https://www.theguardian.com/australia-news/2020/oct/21/the-wait-indonesias-refugees-describe-life-stuck-in-an-interminable-limbo.

[4] Ibid.

[5] Ibid.

[6] UNHCR Regional Representation for Central Europe, “Attitudes towards Asylum Seekers and Refugees in Bulgaria” November 2013. ______________________________________________________ I’M AFRAID TO WALK ALONE AT NIGHT: A MESSAGE TO THE PATRIARCHY [1] ‘Devastatingly Pervasive: 1 in 3 Woman Globally Experience Violence’, World Health Organization (Web Page, 9 March 2021) <https://www.who.int/news/item/09-03-2021devastatingly-pervasive-1-in-3-women-globally-experience-violence>.

[2] Maani Truu and Bethan Smoleniec, ‘One in Two Australian Women Don’t Feel Safe Walking Alone at Night’ SBS News (online, 14 March 2019) <https://www.sbs.com.au/ news/one-in-two-australian-women-don-t-feel-safe-walking-alone-at-night>.

[3] Rachel Obordo and Jedidajah Otte, ‘I Stick to Well-Lit and Busy Areas’: Women Share their Fears of Walking Alone at Night’ The Guardian (online, 12 March 2021) <https:// www.theguardian.com/lifeandstyle/2021/mar/11/i-stick-to-well-lit-and-busy-areasfive-women-share-their-fears-on-walking-alone-at-night>. [4] Samantha Hawley, ‘What Happened to Sarah Everard? The Murder that Triggered a Global Outpouring of Grief and Rage’ ABC News (online, 20 March 2021) <https://www.abc.net.au/news/2021-03-20/ sarah-everard-death-one-week-on/13261376>. ______________________________________________________ SECTION 44(i) OF THE AUSTRALIAN CONSTITUTION: UNNECESSARY AND ONEROUS [1] Juliet Pietsche, Race, Ethnicity and the Participation Gap: Understanding Australia’s Political Complexion, (University of Toronto Press, 2018) pt 2, ch 4.

[2] Jane Mansbridge, ‘Should Blacks Represent Blacks and Women Represent Women? A Contingent “Yes”’ (2019) 61(3) The Journal of Politics 628, 628.

[3] Ibid 630.

[4] Ibid.

[5] Irene Bloemraad, ‘Theorizing and Analyzing Citizenship in Multicultural Societies’ (2015) 56(4) The Sociological Quarterly 591, 591.

[6] Australian Constitution s44(i).

[7] Re Canavan; Re Ludlam; Re Waters; Re Roberts (No 2); Re Joyce; Re Nash; Re Xenophon [2017] HCA 45 (‘Re Canavan’).

[8] Greg Carne, ‘Neither New Nor Unexpected? s44(i) Commonwealth Constitution Interpretative Choices, Representative Government and Rehabilitative and Restorative Reform’ (2020) 21(2) Flinders Law Journal 127. 184.

[9] Gerard Carney, ‘Disqualification of Members of the Australian Parliament – Recent Developments and the Case for Reform’ (2018) 24 James Cook University Law Review 89, 94.

[10] Re Cavanan (n 7) 53 Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ. [11] James Morgan, ‘Dual Citizenship and Australian Parliamentary Eligibility: A Time for Reflection or Referendum’ (2018) 39(2) Adelaide Law Review 439, 442.

[12] See Re Canvan (n 7).

[13] Helen Irving, ‘The Concept of Allegiance in Citizenship Law and Revocation: An Australian Study’ (2019) 23(4) Citizenship Studies 372, 379.

[14] Find original report and citation but see for reference: file:///Users/varshiniviswanath/Downloads/39AdelLRev439.pdf [15] Re Canavan (n 7) 28 Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ. [16] Ibid.

[17] Morgan (n 11) 443.

[18] Ibid.

[19] Ibid 445.

[20] Ibid 442.

[21] Ibid 448. ______________________________________________________ FIT AND PROPER PERSON: PARLIAMENTARY INQUIRIES INTO THE CRIMINAL CONDUCT OF POLITICIANS [1] See Georgia Hitch, ‘Scott Morrison Dismisses Calls for Inquiry into Historical Rape Allegation Denied by Attorney-General Christian Porter’ Australian Broadcasting Corporation (online, 4 March 2021) <https://www.abc.net.au/news/2021-03-04/scott-morrison-inquiry-rape-allegation-denied-christian-porter/13214832>.

[2] See Cesar Augusto Chichelero, Caroline Ferri and Eduardo Brandao Nunes, ‘From an Idealized Separation of Powers to its Practical Problems in the Rule of Law’ (2018) 5(1) Revista de Investigacoes Constitucionais 15, 17.

[3] Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1, 3.

[4] William Blackstone, Commentaries on the Laws of England: Vol I (Special ed, 1983) 266-9.

[5] Australian Constitution s 44(ii).

[6] E Madalina Busuioc and Martin Lodge, ‘The Reputational Basis of Public Accountability’ (2016) 29(2) Governance 247, 254.

[7] Independent Commission Against Corruption, ‘History’, About the NSW ICAC (Web Page) <https://www.icac.nsw.gov.au/about-the-nsw-icac/overview/history>.

[8] Ibid.

[9] See generally Senate Standing Committee on Economics, ‘Provisions of the Financial Sector Legislation Amendment Bill (No. 2)’ (Report, 11 December 2002).

[10] See eg, Fit and Proper Person Requirements 2011 (Cth) s 4.

[11] Justin Gleeson, ‘It is Not Too Late Prime Minister, To Seek the Advice of the Solicitor General’ The Guardian (online, 11 March 2021) <https://www.theguardian.com/commen-

tisfree/2021/mar/11/it-is-not-too-late-prime-minister-to-seek-the-advice-of-the-solicitor-general>.

[12] Re Cram; Ex part Newcastle Wallsend Coal Co Pty Ltd (1987) 163 CLR 140, 149.

[13] See Precision Data Holdings Ltd v Wills (1991) 173 CLR 167 (‘Precision Data Holdings’).

[14] Ibid, 181.

[15] Ibid, 189.

[16] See Attorney-General (Cth) v Alinta Limited (2008) 233 CLR 542.

[17] See Duncan v New South Wales (2015) 255 CLR 388 (‘Duncan’).

[18] Ibid, 407.

[19] See generally Thomas v Mowbray (2007) 233 CLR 307; Minister for Home Affairs v Benbrika (2021) 95 ALJR 166; see also Duncan (n 17).

[20] Pollentive v Bleijie (2014) 253 CLR 629, 656 (Gageler J); quoting Re Woolley; Ex parte Applicants M276/2003 (2004) 255 CLR 1, 12 (Gleeson CJ).

[21] See Kariapper v Wijesinha [1967] AC 718.

[22] Australian Constitution s 64.

[23] See generally Duncan (n 17). ______________________________________________________ ADDICTED TO CRIME DRMAS [1] Scott Bonn, “Why We Are Drawn to True Crime Shows ,” Time Magazine, January 8, 2016, https://time.com/4172673/true-crime-allure/.

[2] “ABC Survey Reveals Surge in Podcast Listening as Women Turn towards True Crime Tales ,” ABC, October 17, 2018, https://about.abc.net.au/press-releases/abc-survey-reveals-surge-in-podcast-listening-as-women-turn-towards-true-crime-tales/.

[3] Amanda M. Vicary and R. Chris Fraley, “Captured by True Crime: Why Are Women Drawn to Tales of Rape, Murder, and Serial Killers?,” Social Psychological and Personality Science 1, no. 1 (January 1, 2010): 81–86, doi:10.1177/1948550609355486.

[4] Amanda M. Vicary and R. Chris Fraley, “Captured by True Crime: Why Are Women Drawn to Tales of Rape, Murder, and Serial Killers?,” Social Psychological and Personality Science 1, no. 1 (January 1, 2010): 81–86, doi:10.1177/1948550609355486.

[5] Vicary and Fraley, “Captured by True Crime: Why Are Women Drawn to Tales of Rape, Murder, and Serial Killers?”

[6] Chris Weller, “Why Young Women Are the Biggest True Crime Buffs,” Business Insider, March 28, 2016, https://www.businessinsider.com/why-young-women-are-the-biggesttrue-crime-buffs-2016-3?r=AU&IR=T. [7] Ibid ______________________________________________________ CORPORATIONS IN THE PUBLIC DOMAIN: UNFETTERED AND UNACCOUNTABLE [1] Australian Constitution s 24 (‘Constitution’) [2] Peter Cane, Leighton McDonald and Kristen Rundle, Principles of Administrative Law (Oxford University Press, 3rd ed, 2018) 2 (‘Administrative Law’).

[3] Hon Justice Geoffrey Nettle, ‘The Changing Position and Duties of Company Directors’ (2018) 41(3) Melbourne University Law Review 1402, 1404.

[4] K Sabeel Rahman, ‘Conceptualising the Economic Role of the State: Laissez-Faire, Technocracy, and the Democratic Alternative’ (2011) 43(2) Polity 264, 268; Walter Block and William Barnett, ‘The Economic Case for Laissez Faire Capitalism’ (2005) 21(3) International Journal of Ethics and Systems 49, 54-56.

[5] Administrative Law (n 2) 22.

[6] Stephen Bottomley et al, Contemporary Australian Corporate Law (Cambridge University Press, 2018) 118 (‘Contemporary Australian Corporate Law’); Ashbury Railway Carriage and Iron Co Ltd v Richie (1875) LR 7 HL 653.

[7] Corporations Act 2001 (Cth) s 125(2) (‘Corporations Act’).

[8] Ibid.

[9] Salomon v Salomon & Co Ltd [1897] AC 22, 51; Contemporary Australian Corporate Law (n 6) 69.

[10] Corporations Act (n 7) s 124(1).

[11] Ibid.

[12] Ibid s 124(h).

[13] James Peck, ‘Remaking Laissez-Faire’ (2008) 31(1) Progress in Human Georgraphy 3, 17.

[14] Rahman (n 4) 265.

[15] Peck (n 13) 36.

[16] Rahman (n 4) 274.

[17] John B Goodman and Gary W Loveman, ‘Does Privatisation Serve the Public Interest?’

1991 (NovemberDecember) Harvard Business Review 176, 178.

[18] See section ‘3. A contemporary example’.

[19] ‘Government Business Enterprises (GBEs)’, Australian Government Department of Finance (Web Page, 8 January 2019, AEST) <http://www.finance.gov.au/resource-management/governance/gbe/>.

[20] PWC, State-Owned Enterprises Catalysts for public value creation? (Report, April 2015) 6 <https://www.pwc.com/gx/en/psrc/publications/assets/pwc-state-owned-enterprise-psrc.pdf> (‘PWC Report’).

[21] PWC Report (n 20) 4.

[22] NBN Co, Annual Report 2010-2011 (Report, 2011) 13 <https://web.archive.org/ web/20120511145059/http://nbnco.com.au/assets/documents/nbnco-annual-report-2011.pdf> (‘NBN Report’).

[23] NBN Report (n 22) 27.

[24] Nettle (n 3) 1404.

[25] Australian Capital Television v Commonwealth (1992) 177 CLR 106, 138 (‘Capital

Television’).

[26] Nettle (n 3) 1431.

[27] Capital Television (n 25) 138.

[28] PWC Report (n 20) 14.

[29] Corporations Act (n 7) s 180(1).

[30] Nettle (n 3) 1428.

[32] Corporations Act (n 7) ch 2D; Nettle (n 3) 1426.

[33] Baker Mckenzie, Duties and Liabilities of directors of Australian companies (Report, 2017) 5-15.

[34] Corporations Act (n 7) s 140(1).

[35] PWC Report (n 20) 27.

[36] PWC Report (n 20) 6. ______________________________________________________ HOW THE ADAPTABLE NATURE OF MOS MAIORUM CONTRIBUTED TO THE FALL OF THE ROMAN REPUBLIC [1] Mary Beard, SPQR: A History of Ancient Rome (London: Profile Books Ltd., 2016), 21.

[2] Author(s) Unknown, “The Twelve Tables” in Early Republican Rome: 507 – 264BC, ed.

Matthew Dillon and Lynda Garland, ed. 2 of Ancient Rome Social and Historical Documents From the Early Republic to the Death of Augustus, ed. Matthew Dillon and Lynda Garland (Oxon: Routledge, 2015), 22-27. ; Beard, SPQR: A History of Ancient Rome, 139-146.

[3] Beard, SPQR: A History of Ancient Rome, 145-6.

[4] Matthew Dillon and Lynda Garland, “The Origins of the Twelve Tables,” in Ancient Rome Social and Historical Documents From the Early Republic to the Death of Augustus, eds.

Matthew Garland and Lynda Garland, (Oxon: Routledge, 2015), 21.

[5] Matthew Gelzar, Caesar Politician and Stateman (Cambridge: Harvard University Press, 2003), p.27.

[6] Beard, SPQR: A History of Ancient Rome, 21.

[7] Beard, SPQR: A History of Ancient Rome, 43-49.

[8] Beard, SPQR: A History of Ancient Rome, 21.

[9] Beard, SPQR: A History of Ancient Rome, 28-29.

[10] Gelzar, Caesar Politician and Stateman, 27.

[11] Gelzar, Caesar Politician and Stateman, 27.

[12] Gelzar, Caesar Politician and Stateman, 27. ; For example the military reforms of Gaius Marius changed how the army recruited - Michael C. Gambino, “The Military Reforms of Gaius Marius in their Social, Economic and Political Context” (PhD Thes., East Carolina University, 2015).; Plut. Vit. Mar. 9. ; Sall. Lug. 86.1-2.

[13] Plut. Vit. Mar. 46.

[14] Beard, SPQR: A History of Ancient Rome, 28-29.

[15] Beard, SPQR: A History of Ancient Rome, 21. ; Sall. Cat. 5.1.

[16] Beard, SPQR: A History of Ancient Rome, 27.

[17] Beard, SPQR: A History of Ancient Rome, 28.

[18] Beard, SPQR: A History of Ancient Rome, 29.

[19] Beard, SPQR: A History of Ancient Rome, 29. ; Cic. Mur. 52.

[20] Sall. Cat. 30, 40.1-4., 44-45.

[21] Sall. Cat. 40-41.

[22] Livy 5.39, 65.5. ; Ogilvie, Comm. Livy 1-5. 5.39-43.5. ; Caes. BGall. 1.7.

[23] Livy 5.39., 65.5. ; Ogilvie, Comm. Livy 1-5. 5.39-43.5. ; Caes. BGall. 1.7.

[24] Beard, SPQR: A History of Ancient Rome, 34.

[25] Sall. Cat. 31.5-9., 32.1. ; Beard, SPQR: A History of Ancient Rome, 34.

[26] Beard, SPQR: A History of Ancient Rome, 24.

[27] Sall. Cat. 29.3.

[28] Cic. Cat. 1.1 ‘Quo usque tandem abutere, Catilina, patientia nostra?’ “Translation mine.”

[29] Cic. Cat. 1.1-4.

[30] Cic. Cat. 1.4.

[31] Heather Collins, Xenia, “How the Adaptable Nature of Mos Maiorum Contributed to the Fall of the Roman Republic,” blog. Posted June 29, 2020, accessed June 15, 2021, https:// anucssxenia.wordpress.com/2020/06/29/how-the-adaptable-nature-of-mos-maiorum-contributed-to-the-fall-of-the-roman-republic/.

[32] App. B. Civ. 1.1. ; examples comes from Plut. Vit. Sull. 27-28, Suet. Ceas. 19-20, 22 and Plut. Vit. Caes. 13-14.

[33] John T. Ramsey, “Introduction - The War With Catiline,” in The War with Catiline. The War with Jugurtha, ed John T. Ramsey, trans. J. C. Rolfe, Loeb Classical Library 116 (Cambridge MA: Harvard University Press, 2013), 15. ; Beard, SPQR: A History of Ancient Rome, 34-35.

[34] Sall. Cat. 55.1-6.

[35] Beard, SPQR: A History of Ancient Rome, 35.

[36] Beard, SPQR: A History of Ancient Rome, 36.

[37] Beard, SPQR: A History of Ancient Rome, 36.

[38] Beard, SPQR: A History of Ancient Rome, 36.

[39] Beard, SPQR: A History of Ancient Rome, 36.

[40] Plut. Vit. Caes. 57.; Phillip A. Stadter, explanatory notes to Plutarch’s the Life of Caesar, trans. Robin Waterfield (Oxford: Oxford University Press, 1999), 517.

[41] Cic. Cat. 1.2 “Translation Mine.”

[42] Celia E. Schultz, “Rome and the Greek East, Second Century BC,” in A Companion to Roman Italy, ed. Alison E. Cooley (Chichester: John Wiley & Sons, 2016), 117-119 [43] Sall. Cat. 3.3-4., 5.1-8., 52.24-26.

[44] Sall. Cat. 1-5.

[45] Sall. Cat. 54.

[46] Ceas. BGall. 1.19-21.

[47] Beck, “Cursus Honorum.”

[48] Nep. Excerpts from the Books on Latin Historians, 2.1-2.

[49] Plut. Vit. Caes. 32.

[50] Harriet I. Flower, The Art of Forgetting: Disgrace and Oblivion in Roman Political Culture (Chapel Hill: University of North Carolina Press, 2006), 2-3.

[51] Beard, SPQR: A History of Ancient Rome, 139.

77