The Brief Edition 1 2025

Macquarie University Law Society magazine Edition 1, 2025 (Volume 31)

Past and

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Contents

In Context

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What’s New in the Law? No More Scroll: Australia’s Social Media Ban Advocating for Fairness: The Student Ombudsman Solution

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Under the Radar The Education Act 1990 (NSW): Needed then, Outdated now

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Social Justice Corner The Struggle for Equal Protection for Aboriginal and Torres Strait Islander Women

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Devil’s Advocate AML and CTF Amendment Bill: A Legal Hero or A Legal Headache?

Sebastian Fiocco Caitlin Neal-Bartier

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A Brief Interview For the Benefit of All: A NASA perspective

Anya Maclure with David Schuman

Kieran Wan Sujal Chadha Claudia Hadwen Tanvi Shah

Features

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One Torres Strait Man, the Voice of Many

Ahmed Qureshi

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Redrawing the Parenting Playbook: Australia’s Bold Family Law Reform: Back on Track

Marina Georgy

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From Convention to Action: Has the Sex Discrimination Act 1984 Lived Up to Its Promise?

Jasmine Kundu

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The Courtroom Battle: Has Time Stood Still for Battered Women in Australia’s Adversarial Legal System?

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Safety First: The Evolution of Industrial Legislation in NSW

Emma Horgan

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From Oppression to Equality: 50 Years of Redefining Marriage in Australian Law

Dung Nghi (Yoong) Tran

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Void in Futuro: The Development of the Scope of Frustration and Force Majeure in the post-COVID-19 Period

Diako Nabavi

Tara Bush

Out of Context

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A Brief Reflection Connected Through Community

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A Brief Review The Dangers of Pop Culture: Depp v Heard, a Defamation Trial or Social Media Circus?

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De Minimis Law School’s Ticketek: The Journey to Front Row Seats

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Lawtime Poems The Priestley 11 in Limericks

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The Boxer A 2075 Edition of The Boxer

Kaylen La Brooy Sarah Yeend Denusha Suthagar EEIC Emma Reading

Welcomes and Credits

Editor’s Welcome Past /pɑːst/ The time before the moment of speaking or writing.

Precedent /ˈprɛsɪd(ə)nt/ An earlier event or action that is regarded as an example or guide to be considered in subsequent similar circumstances.

Past and precedent. With an inextricable link in the theme of time, these concepts provide unique perspectives and scopes to the contexts in which they apply. The legal landscape makes room for both in the beauty of the lexical wonderland that has existed since its conception as a practice, science, philosophy, and art.

4 | The Brief

50 years have come and gone, and with that, I would like to welcome you, dear readers, to the phenomenally wonderful first edition of The Brief for 2025! To celebrate 50 years of excellence of the Macquarie University Law Society, the theme for this edition is ‘Past & Precedent’.

With a fairly young body of pure Australian law, the last 50 years have seen the development of a framework of practices that can only be described as a magnificently complex creature, unlike any other facet of society. Our common law system, combined with our evolving cultural values, has created a vastly interesting and nuanced system that presents wins for some and challenges for others.

Writers for this edition have gone above and beyond to examine our system, looking at cases that have graced headlines as well as analysing pieces of legislation that challenge the very fabric of decade-old precedent. From human rights to reform and more, I warmly invite you to dive deep into this edition to reflect on the wins and challenges presented by the past and our precedents.

Anya Maclure Editor-in-Chief, The Brief

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muls.org Edition 1, May 2025 (Volume 31)

President’s Welcome

EDITOR-IN-CHIEF Anya Maclure DESIGNER Nathan Li WRITERS

Kieran Wan, Sujal Chadha, Claudia Hadwen, Tanvi Shah, Caitlin Neal-Bartier, Sebastian Fiocco, Anya Maclure,

I am delighted to welcome you to the first edition of The Brief, the inaugural release in a special series of Macquarie University Law Society (MULS) publications for 2025.

This year is a significant milestone as MULS celebrates its 50th anniversary. In honour of this anniversary, The Brief is dedicated to reflecting on our history and celebrating the excellence of legal education at Macquarie University.

In this edition, our student writers explore the evolving contributions to Australian and international law over the past 50 years. The articles featured enjoyably range from analysis of landmark cases and new laws to personal reflections, interviews and satirical pieces.

Many articles also address important social justice issues and their legal developments.

The breadth of perspectives in this edition reflects the richness of Macquarie Law School. Our students’ experiences, insights and passions are the heart of our society, our law school and our community.

MULS is proud to provide this platform for students to engage in topical legal discussions, enriching the dialogue and learning at Macquarie Law School.

Rachel Duong President, Macquarie University Law Society

David Schuman, Ahmed Qureshi, Marina Georgy,

Jasmine Kundu, Tara Bush, Emma Horgan, Dung Nghi (Yoong) Tran, Diako Nabavi, Kaylen La Brooy, Sarah Yeend, Denusha Suthagar, Emma Reading SUB-EDITORS

Pranaya Partheepan, Maddy Storniolo, Ethan De Freitas, Peta Walton, Alessandro Romeo, Ayushi Makhija,

Lucinda Wynn, Chloe-Skye Bransden, Alison Thai,

Krishi Patel, Joseph Kim, Sharan Sidhu, Ashlynn Rees, Payton Hardey, Thomas Lockie, Louise Kwine SPECIAL THANKS TO

Emi Price, Leo Chang IMAGES

Shuttershock or Adobe Stock, unless otherwise stated.

The print edition of The Brief is published triannually by the Macquarie University Law Society, Sydney, Australia.

Visit our website at muls.org DISCLAIMER

All views expressed herein are those of the individual authors and do not reflect, in any way, the attitude of the Macquarie

University Law Society. The Macquarie University Law Society does not accept any responsibility for the losses flowing from the publication of material in The Brief.

ACKNOWLEDGEMENT OF PEOPLE AND COUNTRY

The Macquarie University Law Society acknowledges the

traditional custodians of the Macquarie University Land, the

Wattamattagal clan of the Darug Nation, whose cultures and customs have nurtured, and continue to nurture this land,

since the Dreamtime. We pay our respects to Elders past, present and emerging.

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Past and Precedent | 5

What’s New in the Law?

No More Scroll: Australia’s Social Media Ban

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Kieran Wan [Edited by Pranaya Partheepan]

n 28 November 2024, the Federal Parliament amended the Online Safety Act 2021 (Cth) and implemented a world- first ban on social media for children under the age of 16 (‘the ban’). The Act requires social media companies to take all reasonable steps to ensure that users are over the age of 16. Accordingly, the responsibility of developing means to implement this age limit lies with social media companies. Failure to take all reasonable steps to enforce the ban may result in social media companies facing civil penalties of up to 30,000 penalty units. However, the Act does not come into effect until November 2025, ensuring that social media companies have sufficient time to implement the ban.

This Act received bipartisan support from Labor and the Coalition, and opinion polls found that 77% of Australians supported the ban. Supporters of the bill argue that this ban is needed to protect the mental health of young Australians, with the eSafety Commissioner arguing that negative online experiences can lead to anxiety, ongoing trauma and suicide. The eSafety Commissioner further argued that the ban is needed to protect children from explicit content, with nearly 50% of children aged 14-17 receiving online sexual messages within the previous year.

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Opponents of this ban argue that it infringes on the freedom of expression. However, this right is preserved as the ban does not apply to all forms of social media.

Whilst Facebook, Instagram, TikTok and X (formerly Twitter) are subject to this ban, other forms of social media such as YouTube, WhatsApp, and Messenger Kids remain accessible to under-16s, ensuring sufficient alternate means of expressing individual perspectives.

Overseas jurisdictions have also made attempts at restricting social media use among teenagers. For example, Florida has recently implemented a social media ban for under 14s, which is currently being challenged for potentially infringing upon the right to free speech. Similarly, France has legislated parental consent as a requirement for children under 15 from accessing social media, although this ban faces enforcement challenges. Further, Singapore has also expressed its intention to implement age limits on social media use, and Singaporean authorities have held talks with Australian government regarding Australia’s ban. Despite the global shift towards regulating children’s access to social media, significant questions remain regarding implementation methods and their impacts on the right to privacy. Australia’s ban aims to protect the right to privacy by prohibiting social media companies from relying on governmentissued identification documents to verify the user’s age.

Further, the Act requires the eSafety Commissioner to develop guidelines for the reasonable steps which social media companies must undertake to ensure that under 16s cannot access social media. However, these guidelines have yet to be released, so it remains unclear how social media companies will implement the ban.

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Advocating for Fairness: The Student Ombudsman Solution

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Sujal Chadha [Edited by Maddy Storniolo]

he establishment of the National Student Ombudsman marks a pivotal advancement in Australia’s higher education landscape.

This initiative addresses longstanding concerns regarding the handling of student grievances, particularly in areas such as sexual misconduct, discrimination, and academic disputes.

By providing an independent and impartial platform for complaint resolution, the Ombudsman enhances transparency, accountability, and trust within academic institutions.

The Imperative for an Independent Oversight Historically, universities have managed student complaints internally, leading to perceptions of bias and inadequate resolutions. The introduction of an independent Ombudsman ensures that grievances are evaluated without institutional prejudice, fostering a culture of fairness. This move aligns with the government’s commitment to improving student safety and well-being, as highlighted in the Action Plan Addressing Gender-Based Violence in Higher Education.

Comprehensive Preparedness and Enforcement Capabilities The Ombudsman’s office comprises 40 staff members trained in trauma-informed services to address sexual assault complaints, anti-semitism, and Islamophobia. This specialised training equips them to handle complex cases with sensitivity and expertise, ensuring that all students receive equitable treatment. The office’s readiness to address intricate issues underscores its dedication to systemic change within universities.

In addition to addressing individual complaints, the Ombudsman can recommend specific actions to higher education providers and share information with relevant regulators for further compliance action if necessary, empowering institutions to adhere to best practices and uphold student rights.

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Addressing Gender-Based Violence A significant impetus for establishing the Ombudsman was the alarming prevalence of sexual assault on campuses, with reports indicating that one in twenty students experience such incidents during their university education. The Ombudsman provides a confidential avenue for victims to report misconduct, ensuring timely and appropriate responses from institutions. The initiative is a crucial component of the broader strategy to combat gender-based violence in higher education.

Promoting Best Practices and Systemic Improvements The Ombudsman is not solely a reactive entity; it proactively promotes best practices across the higher education sector. By facilitating restorative engagement processes and alternative resolution methods, the Ombudsman contributes to systemic improvements that enhance the overall student experience. This holistic approach ensures that institutions evolve to meet the changing needs of their student populations.

Challenges and Future Considerations While establishing the Ombudsman is a significant step forward, its success hinges on several factors.

Such factors include ensuring adequate funding and resources, which is paramount to handling the anticipated volume of complaints effectively, and maintaining absolute independence from universities is crucial to preventing conflicts of interest and upholding the integrity of investigations. Additionally, the scope of the Ombudsman’s authority—whether its decisions are binding or advisory—will play a critical role in its efficacy. Addressing these considerations will be essential for the long-term success of the initiative.

Conclusion The National University Student Ombudsman represents a transformative advancement in student advocacy and institutional accountability within Australia’s higher education system. By providing an independent, impartial, and transparent mechanism for resolving disputes, the Ombudsman strengthens student protections and fosters a more equitable educational environment. This initiative addresses individual grievances and contributes to systemic improvements, enhancing the quality of education and the overall student experience across the nation.

Past and Precedent | 7

Under The Radar

The Education Act 1990 (NSW) Needed then, Outdated now Claudia Hadwen [Edited by Ethan De Freitas]

“The goal of the school education system is not simply to impart learning. It also seeks to build the qualities that will enable students to contribute to the overall well-being of our society – skills and attributes such as confidence, teamwork, problemsolving, aspiration and a love of learning.”

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he landmark Education Act 1990 (NSW) (‘Education Act’) was enacted to modernise and reform the NSW education system. The previous Public Instruction Act 1880 (NSW) (‘Public Instruction Act’) had been amended on numerous occasions, however, the overall structure reflected a 19th-century colonial thinking of society, schooling, parents and the role of the state. Although the notion of free, secular, and compulsory education was novel in 1880, practice proved different with high costs for high schools, no explicit mention of diverse groups such as disabled and Indigenous children, as well as optional education for rurally situated students. Section 4 of the Education Act outlines four overarching principles. For example, subsection (c) states that it is the duty of the State to ensure that every child receives an education of the highest quality. The Education Act, a needed step in the right direction then, proves to be outdated now, because a main purpose contained in section 4(c) is not being fulfilled, especially concerning the changes of the technological age.

Areas of concern Over 14% of Australian students receive extra tutoring, highlighting that the current NSW education system fails to meet section 4(c) and reinforces the disadvantages of students from lower socioeconomic status. Additionally, in 2022, the OECD reported that the gap between the highest and weakest-scoring 8 | The Brief

students has widened and overall performance has declined in reading, mathematics, and science. The NSW Education Standards Authority, the relevant statutory authority empowered by the Education Act, must specify achievement targets for these essential subjects and provide inquiries and solutions when those targets are not met. Additionally, the Education Act emphasises academic subjects while ignoring specific skills crucial for the rapidly changing workforce and lifestyle of the 21st century. Systems of holistic wellbeing need to be introduced to instil healthy habits, such as daily 60-minute intense exercise, nutritious diets, and mental health support. Students must be taught critical thinking, resilience, and technological literacy to navigate the wide dissemination of misinformation online, and severe bigotry and cyberbullying on social media. Additionally, global citizenship education fosters understanding and empathy for diverse cultures, preparing students for an interconnected world.

So, what is the government doing?

Since 2018, the NSW government has been working on the NSW Curriculum Reform initiative, expected to be fully implemented by 2027. The reform is designed to emphasise core skills and build stronger foundations and define pathways to careers and further study. We may have to wait and see if this reform introduces any substantial improvements.

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Social Justice Corner

The Struggle for Equal Protection for Aboriginal and Torres Strait Islander Women

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Tanvi Shah [Edited by Peta Walton] ecent actions by the police continue to hinder Aboriginal and Torres Strait Islander women from receiving equal protection under the law despite 50 years passing since Australia enacted the Racial Discrimination Act (‘RDA’).

Admissions of Aboriginal women “to hospital due to family violence” are 32 times more likely than those of non-Indigenous women. Despite this, Aboriginal women are often wrongfully accused and arrested concerning family violence. A recent study by Emma Buxton-Namisnyk highlighted that approximately half of the First Nations women who were victims of intimate partner homicide were previously accused by police of either domestic violence or other criminal matters.

In one case, when responding to a domestic violence callout, a police officer asserted the victim was ‘just a drunk Aboriginal female’ and placed her in protective custody. However, when a higher-priority call required attention, instead of focusing on holding the perpetrator accountable, the police left the victim with the alleged offender. Tragically, in the time that elapsed after the police departed, the victim suffered further violence and soon after stopped breathing. The coroner, in this case, described the police’s actions as ‘abysmal’.

This is not the only example of police failing to protect victims or manage situations in a culturally safe manner. Buxton-Namisnyk’s study further found that almost three-quarters of the 60 women who had contacted police regarding domestic violence had been described by officers as ‘uncooperative’ or ‘unwilling’ Edition 1 2025

to work with them. Such accusations stereotype First Nations women as ‘volatile’ and ‘aggressive’ instead of recognising the complexity of their situations.

Compounding the above issues, several coroners observed that police relied heavily on alleged offenders’ claims that the victim had injured themselves instead of rigorously testing the available evidence. One specialist worker and survivor described how male offenders are usually ‘mister cool, calm, and collected’ while victims are often agitated. In their experience, this dynamic frequently led police to consider the alleged offender more credible than the victim. This bias was evident in a third of the cases identified in Buxton-Namisnyk’s study, where police disregarded accusations of First Nations women who reported violence.

The studies by Emma Buxton-Namisnyk and Kylie Cripps highlight a lack of commitment by police officers to deliver justice for First Nations women, which suggests discriminatory attitudes remain entrenched in the policing system. As the primary responders to domestic violence situations, police must build trusting relationships with Aboriginal and Torres Strait Islander women.

The above heralds the need for urgent reform in collaboration with First Nations communities and Aboriginal and Torres Strait Islander service providers.

If urgent reform is not undertaken, not only will racial discrimination remain, First Nations women will continue to be deprived of the basic human right to life, liberty, and security of person.

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Devil’s Advocate

AML and CTF Amendment Bill

A Legal Hero or a Legal Headache?

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FOR Sebastian Fiocco [Edited by Alessandro Romeo] he Explanatory Memorandum of the AntiMoney Laundering and Counter Terrorism Financing Bill 2024 (Cth) (AML/CTF), (EM) discusses the identification of key legislative gaps which it intends to address. This article aims to delve into the first of the three objectives that this Bill discusses.

The AML/CTF Bill received royal assent in November 2024 and was a response to the findings of the Financial Action Task Force (FATF). In 2015, the FATF identified deficiencies in Australia’s compliance with the FATF Standards and highlighted areas for improvement. Of note, the regulatory framework for combating money laundering, terrorism financing, and other serious financial crimes now imposes an additional duty to report on legal professionals . Here, lawyers have been flagged as providing high-risk services due to their role in overseeing complex financial transactions.

The illegal movement of money is heavily linked to human trafficking, drug trafficking, organised crime, and the funding of terror organisations. Given this context, any amendments to strengthen the anti-money laundering framework are certainly welcomed.

However, criticisms relating to the amendments in this Bill were raised and debated in parliament. In the second reading speech read by Senator Paul Scarr, Senator Scarr raised concerns surrounding the potential duplication of AML/CTF checks. For example, in addition to lawyers being captured by the Bill due to the provision of high-risk services, so too have real-estate agents. In the event of a real-estate transaction, the multiple stakeholders (being banks, lawyers, and realestate agents) would all be conducting the same checks.

AUSTRAC, however, is aware of this duplication risk and is working towards improving the regime to make it more user-friendly while minimising duplication.

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Senator Scarr further raises an interesting point about the executive and the independence of the legal system . It may be perceived that the executive arm is medling in the affairs of the legal profession and over matters which will only lead to additional unnecessary bureaucratic and expensive obligations. The ethical and legal regulations for legal professions are already stringent enough.

Most of the second reading speeches in the Senate have criticised the amendments that place a statutory duty on lawyers to report AML/CTF concerns. It is said that it will not only cripple legal small businesses (93% of law firms), but also other small businesses which make up most of the economy. This point, however, does not account for the fact that Australia would be at risk of receiving a ‘grey listing’ by the FATF, and the economic consequences that would ensue.

To be grey-listed by the FATF would be an economic nightmare and would further damage Australia’s financial regulatory reputation . It would tell the world that Australia is not doing all that can be done to stand up to the devastating effects of money laundering in this country.

Is not doing everything it can do to stop the prospect of human trade and illicit drugs on our streets worth a fight over red tape? Our focus should be directed towards the legislative intent behind these amendments, rather than the bureaucratic processes which will inevitably be improved over time.

This article supports the new amendments due to what is at stake. Small businesses will adapt and survive, and law firms will inevitably achieve the same result.

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AGAINST Caitlin Neal-Bartier [Edited by Alessandro Romeo] he Australian legal system is in a state of constant innovation; always working to find solutions to the problems of our ever-changing world. The Anti-Money Laundering and Counter-Terrorism Financing Amendment Bill 2024 (Cth) (‘The Bill’) represents one such example. The Bill seeks to improve the existing Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) by placing a greater emphasis on the role of ‘high-risk service providers’ (including lawyers) in combating suspected money laundering and terror financing. However, while the Bill seeks to improve the legal system, this article argues that it will make life for legal practitioners much harder.

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The Bill regulates several specific legal services including situations related to the purchase and/or sale of real estate, the purchase and/or sale of companies, asset management, and the restructuring of companies, amongst others. The Bill will require solicitors engaged in these services to undertake client due diligence - a rigorous process that requires the solicitor to not only verify the client’s identity but also conduct background checks on the client to assess their money laundering and terror finance risk. This due diligence process will also require solicitors who have ongoing relationships with clients to monitor and report any activity that they believe is suspicious.

Reporting is an onerous and expensive undertaking, exacerbated by the fact that the Bill also requires firms to have a designated reporting officer to ensure compliance with the new standards. Considering 93% of Australian law firms have between one and four partners, the regulatory costs are simply too great for many smaller firms to handle.

The argument could be made that as the Bill only applies to specific services, its impact on law firms can be minimised by leaving services captured by the Bill to larger firms who can afford the associated costs and training. However, this does not account for the fact that many solicitors operate in rural areas, and therefore, are expected to fulfil the legal needs of entire communities. If these smaller firms were unable to remain in business due to the large costs associated with fulfilling the reporting requirements of the Bill, then rural communities would be further deprived of essential legal services.

It is also worth mentioning that, despite the Bill not contravening the confidentiality requirements of the Legal Profession Uniform Law Australian Solicitor’s Conduct Rules 2015 (NSW), due to the exemption in s 9.2.2, due diligence may cause relationships between clients and solicitors to become strained, as clients may feel that the rigorous investigation and reporting process is a breach of their privacy. This is especially relevant where clients have developed long-standing relationships with their solicitors built on a foundation of trust.

The legal profession is already heavily regulated and has some existing frameworks in place for anti-money laundering. The now-repealed Financial Transactions Reports Act 1988 (Cth) had previously mandated that all cash transactions over $10,000 made to solicitors must be reported to AUSTRAC. The Bill threatens to overregulate legal services, to the detriment of all involved. Put simply, for the legal profession, it’s a massive headache.

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A Brief Interview

For the Benefit of All A NASA perspective

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Anya Maclure, interview with David Schuman

apturing the hearts and minds of those who look to the skies, missions to the heavens command the interdisciplinary efforts of professionals from all backgrounds. NASA lawyer, David Schuman, was lead counsel for the James Webb Space Telescope and other science projects during a long career with the space agency. Along the way, he spent time working for a United States Senator, NASA’s Chief of Staff, and the head of NASA’s Science Directorate. Now living in Vienna, Austria, home of the United Nations Office of Outer Space Affairs, he has given lectures at the University of Vienna, and the Technical University of Vienna, to audiences of international students. He recently represented the International Astronomical Union at the annual meeting of the U.N.’s Legal Subcommittee.

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Anya: Considering space exploration and its developments have greatly expanded in the last 50 years, how would you describe space law and the field as we know it?

David: First of all, since it’s a broad subject, one should try to capture what the term “space law” means. In the classic sense, it deals with international law and treaty interpretation. That part of space law practice is a smaller part of what space lawyers do around the world. Many people would call themselves space lawyers. There is no exact definition of what a space lawyer is. To me, it’s best to think of it as simply being involved with clients who are active in a space program or in space-related fields of work. There are many sub-facets of that description, including government work, work for law firms, representing older and newer space companies, regulatory work, teaching, and other activities.

When I started my career in 1990, there were a very small number of schools that even had a space law course. Now, students are very fortunate because there are many classes around the world.

This reflects the growth and importance of the space program. So the universe of work in space law is much bigger now than it was 35 years ago.

I envy the students starting their space law careers today.

Anya: During your time at NASA, what were the interesting parts of your practice? What would you say about the developments in space law during this time?

David: An important thing for a lawyer is to help clients achieve their goals. In government, I was very fortunate to watch the development of significant programs - those scientifically at the top of the list around the world, over a long time. This was very rewarding to me as a lawyer interested in science and engineering. The James Webb Space Telescope (JWST) is a great example and something we could talk about for a long time. This incredible instrument will help us answer the biggest questions human

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beings have always wondered about - where did we come from, how did we get here, is there other life in the universe? Everyone around the world is interested in these questions. I was interested in them as a lawyer. So watching JWST develop over its entire program, from beginning to launch, was a unique privilege.

Many developments in space law are connected to developments in science and technology. In astrophysics for example, since about 1960 or so, we have had the tools to address these deep questions methodically. For most of human history, these questions were subjects for philosophy and religion. Now our space law clients are working on them with our new technology. Our great space telescopes are gathering data to precisely examine how the first stars and galaxies came to be and whether exoplanets have life. This is a revolution in human behaviour and human understanding. It’s a tremendous intellectual pleasure as a lawyer to help these clients. There are many other wonderful science and technology clients around the world.

They could all use some help from space lawyers.

Anya: Your roles at NASA were crucial to ensuring the legality of missions in which you were involved.

What areas of law did you use daily? Did you have a favourite?

David: As a space lawyer, you have to consult many different authorities because they ’re all relevant to different degrees. For example, NASA’s founding legislation is the Space Act of 1958. My favourite aspect was NASA’s “other transactions” authority that part of the Space Act which allowed us to do many interesting agreements, outside the normal contracts environment, with other agencies, educational institutions, and private companies. I was very fortunate to interview Paul Dembling, the author of the Space Act before he died. His story about how this authority came to be is a fascinating one. It’s good for a lawyer to know the client’s history. It helps you give better advice today.

I came to enjoy much of our ethics work also.

A lot of this is routine annual training for our

Past and Precedent | 13

A Brief Interview

employees, and identification and resolution of conflicts of interest. But the most interesting aspect of ethics work was advising civil servants on their acceptance of prizes and awards. We did a lot of this work for our scientists and engineers. After many years at NASA, I came in to work one day to learn that one of my clients, John Mather, had won the Nobel Prize in physics for his work supporting the Big Bang model of the universe. Going to Stockholm, Sweden, in the middle of winter to see one of my clients reach the heights of his professional work was extremely rewarding to me as a lawyer. And John has said that there will be more Nobel prizes in this field. A few years later, Adam Reiss, at the Space Telescope Science Institute, one of our contractors, won a Nobel prize for showing that the expansion of the universe is speeding up.

So there are other interesting clients out there.

The most rewarding aspect of my practice, and one that I came to appreciate more and more over my career, was earning the trust of my clients so that they came to me early to ask for it, and I could give it to them, long before any legal crisis had developed.

It’s much more efficient to have a discussion with a client this way. And you’ll discover that they will also invite you to see and hear about different aspects of their work. This type of arrangement between lawyer and client is wonderful for everyone.

Anya: Looking to the future of the sector, who do you think will be the biggest actors in the next ten years?

David: There will be many important actors national governments with lunar and interplanetary missions and defence programs, commercial satellite providers, legacy aerospace companies, entrepreneurial activities, and others we haven’t thought about. International and intergovernmental organisations like the U.N. will play a role. Lawyers can be highly influential behind the scenes at law firms and insurance companies. Regulation and even litigation can present some interesting challenges. There is no shortage of opportunities for new space lawyers.

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In the United States, there have been many changes to Federal law, many having to do with commercial activity, which has really developed in recent years. Reusable launch vehicle improvements and satellite miniaturisation have made it possible for many more clients to reach space. This is a technological revolution. We always wanted easier access to space, and now we have it. This is a good thing - and a thing that we need to manage carefully. There will be 100,000 satellites before we know it, not to mention a tremendous amount of orbital debris. Mega satellite constellations can have negative effects on ground-based observatories around the world. Many countries have invested billions of dollars in the great new ground-based observatories and we need to protect their access to dark and quiet skies. This is a huge opportunity for new space lawyers to contribute positively.

On the international front, one could ask why there haven’t been any new space treaties since the important ones from several decades ago.

Some would say it’s impossible now to develop an international treaty because of the world situation.

We really need an international agreement on sustainable space topics like orbital debris and spectrum management. We’re all worried about the Kessler syndrome. We’ve been very lucky not to have had an international incident involving a collision.

But those days are coming. There are likely to be impacts to life and property on the ground. These cases will affect spacecraft development and use. A few companies are trying to develop technology to address this. These subjects are ripe for new space lawyers. It is the cutting edge of space law now.

On a practical level, it’s much easier to search for these opportunities now. Back in the dark ages, before the internet, I researched in the library, made inquiries in person, and sent applications out in hard copy. Now you can sit in a cafe with a laptop and do a huge amount of career planning in one day.

It’s much more efficient.

Anya: What do you believe are going to be the biggest challenges for space lawyers to deal with in the upcoming years?

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David: There are substantive challenges and practical challenges. Substantive challenges include space sustainability, such as management of orbital debris, the dark and quiet skies problem, environmental issues, spectrum issues, and many others. Lawyers also need to pay attention to political issues and ethical concerns. Paul Dembling used to say, “I’m general counsel, not just legal counsel.” You can always give a correct legal answer to a question, but maybe the best answer includes information beyond legal advice, taking into account the bigger picture.

The best lawyers understand their clients well and understand what they ’re trying to do. They give better advice. Practical challenges include finding a good work-life balance, something we didn’t talk much about in the old days. I hope the world will wrestle successfully with the opportunity for remote work. Lawyers can do much of their work from many different locations, not just in a formal office setting. Employers should compete for new talent using this factor. This flexibility is good for everyone. During the pandemic, I had a twoweek trial from my son’s bedroom, with witnesses, co-counsel, and the judge in different states and multiple time zones. It was one of the hardest things I’ve done. Now, the Board of Contract Appeals does all of its trials remotely. I would have loved to continue working for NASA in Vienna.

I think space law will become much more international because the players are international, but not in obvious ways. They ’re international because they ’re connected. Future large science projects will be international because they need resources from multiple countries. More typically, the classic case is the entrepreneur from one country launching a satellite, or group of satellites, on a launch vehicle from a different country, with the launch taking place in a third country, licenses obtained from a fourth country, and an insurance provider from a fifth country. So it can be complicated, but it’s intellectually challenging as well. And the good news is that it means full employment for lawyers, because lawyers will help figure it all out. Space lawyers must figure it out.

The best science and engineering projects take place in a stable legal environment.

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Anya: Knowing what you know now about the sector, what knowledge and skills would you recommend space-law students develop to enter this field of work?

David: I would give the same advice anyone would give to new graduates entering the professional field as a lawyer in general, which is be curious about your clients, try to work on a journal or law review if you can, try to do moot court if you can, try to do a judicial clerkship if you can. These are all skills that will make you a better lawyer. Make yourself uncomfortable.

In a Star Trek episode from the 1960s, a lawyer onboard a spaceship had every legal resource imaginable on a small screen. Those days are here. Now you have a different problem - when to stop researching. Work on your time management skills. But most important of all, be interested in the space program.

Space law subjects can be specific to different countries and regions of the world. If you do some digging, there is an aerospace sector in almost every country. Understand the local environment. There are many different kinds of space law work.

A lot of “space law” is more traditional legal work involving other industries that need specialist lawyers. For the large ground-based observatories that are coming online, there’s construction law, environmental law, and local government relations. Some of the most interesting work as a space lawyer can be helping an entrepreneurial company. Maybe they ’ll hire their first lawyer in a year or two. That’s exciting - finding the next Apple before it’s Apple.

I think the future is very bright for space law.

In the biggest sense, someday, maybe 50 years from now, an interviewer will ask, “Can you tell me about Earth law?” Because Earth law will be the subset. Most law will be space law.

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Feature

One Torres Strait Man The Voice Of Many Ahmed Qureshi [Edited by Ayushi Makhija]

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European Colonisation ndigenous people were the first to live in this country for several millennia. In 1788, the age of colonialism began with the First Fleet arriving in Australia, leading to settlers colonising the lands through property and agriculture. This resulted in the settlers claiming full ownership and control of the land through the Crown’s power. Simultaneously, the British dehumanised and discriminated against First Nations peopled by treating them as a backward and inferior race, considering them flora and fauna, forcibly taking their lands and exploiting them. The settlers concluded this land had no laws, declaring Australia was “Terra Nullius”, or “Land Belonging To No One”.

The Mabo Decision In 1982, a group of Meriam people from the Murray Islands, led by Eddie Mabo, went to the High Court of Australia to challenge the Australian legal system to establish their ancestral lands’ rights and ownership, aiming to abolish “Terra Nullius”. The legislation in place at the time was the Queensland Coast Islands Declaratory Act 1985, whose aim was to retrospectively extinguish the claimed rights of the Meriam people to the Murray Islands. This legislation failed because it conflicted with the Racial Discrimination Act 1975. As a result, the Murray people achieved land rights to the Murray Islands and the High Court overturned “Terra Nullius”, establishing the principle of native title rights. Native Title rights specifically involve exclusive 16 | The Brief

possession, use, and occupation of traditional country, right to access and camp, or the right to hunt and fish on traditional country, requiring a connection to land and/ or sea country. The High Court’s decision from Mabo v Queensland (No 2) (‘Mabo’) was codified into the Native Title Act 1993 (Cth) (‘NTA’), which provided a regulatory framework for the recognition and protection of native title in Australia. Indigenous Guugu Yimidhirr lawyer Noel Pearson commented that the ruling represented a ‘turning point in Australia’s history since colonisation, and compels the nation to confront fundamental issues concerning the Indigenous people of Australia, issues which have been largely avoidable to date’.

This statement emphasises that Mabo’s fight for land ownership caused enormous social change in Australia, reforming the discriminatory Anglo-Saxon doctrines within Australian Property Law to better reflect First Nations values.

The Wik Case In June 1993, the Wik peoples from the Western Cape York Peninsula lodged a native title claim on land where pastoral leases had already been granted. Pastoralism involved running large numbers of cattle at low density as a way of economically exploiting the land. This led to the dispossession of Aboriginal peoples from their ancestral lands, extinguishing First Nations peoples’ right to practise their sovereignty; this is reflected in Chief Justice Brennan’s comment in Mabo: ‘Aborigines were dispossessed of their land parcel by parcel, to make way for expanding colonial settlement.’ This highlights Edition 1 2024

that Australian history was of land grants, where the Crown took land from Indigenous people and re-granted it to non-indigenous people. This was the most common way to take ownership from Indigenous people.

The High Court dealt with the question of whether a pastoral lease extinguishes native title. The judges focused on the provisions of the Land Act 1910 (Qld) and the Land Act 1962 (Qld), which highlight the purpose of pastoral leases and the rights they come with. Justice Gummow stated that, ‘It is appropriate to turn to consider more closely the particular provisions of the legislation with respect to pastoral leases … [a]ttention is to be focused upon the terms of the legislation and of the instruments themselves.’ As a result, the High Court concluded that native title can co-exist with a grant of pastoral leases. The court found pastoral leases have limited rights and do not automatically grant exclusive possession because these leases were established through the statute rather than common law. This is because ‘statutory grants were not of any freehold estate, being, indeed, grants of interests that were sui generis.’ The latin term ‘sui generis’ means ‘of its own kind’, proving that pastoral leases are not common law leases like freehold leases where it would provide ample rights like exclusive possession and would immediately extinguish native title, but rather leases granted under legislation which provided limited rights where it did not give exclusive possession. This case was crucially important for First Nations peoples since pastoral leases made up about 42% of the Australian land mass, especially in rural areas where Indigenous people predominantly live.

By establishing the rights of First Nations peoples to lands with pastoral leases, they are given the right to practice their customs and traditions, and to manage the pastoral lands and their activities in a way that does not conflict with their native title rights. Without Mabo, there would be no native title recognition, especially for the Wik people as they would not be able to take care of their lands within pastoral leases, ensuring that non-Indigenous people do not use the land without considering the requirements of those with native title.

The David Case On 30 November 2022, the landmark case of David on behalf of the Torres Strait Regional Seas Claim v State of Queensland [2022] FCA 1430 was decided. The Federal Court established that the people of the Torres Strait and the Northern Cape would receive native title rights over ‘40,000 square kilometres’ of sea in the Torres Strait region in Northern Queensland. Breaking the Edition 1 2025

misconception that native title is only applicable to land, Indigenous and Torres Strait Islander peoples have demonstrated a caring for their Sea Country through ‘interweaving their culture and spirituality with sustainable use of its resources’ as a way of preserving their connection. This was done through fishing, trading with other tribes, and managing the sea’s environment.

This case marked the first time a native title claim was achieved by both Aboriginal and Torres Strait Islander peoples. The NTA states ‘the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters’ which highlights that one of the requirements to achieve native title is to show a connection with the land or water by those rituals, customs, and practices. In correlation to this requirement, Justice Mortimer stated: The material before the Court acutely demonstrates how, from “before time”, the lives of people in the determination area were interwoven with the sea, its resources and its moods, the winds and the weather, and how the sea country frames their history, cultural practices and traditions, and all aspects of their sense of self and community.

The NTA has created a mechanism for acquiring native title, allowing courts to recognise First Nations peoples’ connection to their land through evidence of their customs and practices. The NTA effectively abolishes the colonialist idea that Indigenous people had no laws and thus, no ownership of the land.

Justice Mortimer’s statement reveals that in this case, the Indigenous people had an immense cultural and spiritual connection to their lands, clearly supporting the requirement of achieving native title. This emphasises that without the Mabo decision, First Nations people would still experience major dispossession of their lands and sea country and struggle to speak out against the injustice their people have faced in the past.

Conclusion These three cases effectively highlight the impact of Mabo and how Mabo’s efforts opened the door for First Nations peoples to achieve native title and their rights and interests as owners and custodians of these lands. Without the decision of Mabo, Indigenous peoples would unfortunately face the hardship of unfair dispossessions and utilisation of their lands by non-Indigenous people, also facing restrictions on practicing their customs and traditions.

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Feature

Redrawing the Parenting Playbook Australia’s Bold Family Law Refor m: Back on Track

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Marina Georgy [Edited by Lucinda Wynn]

he Family Law Amendment Act 2023, passed by the Australian Parliament on 19 October 2023, introduced sweeping reforms to our country’s family law system, particularly to Part VII of the Family Law Act 1975, which deals with parenting matters.

These changes, set to take effect in May 2024, aim to overhaul provisions that have governed family law for decades. Notably, the Act repeals the presumption of equal shared parental responsibility, a key element of the 2006 ‘shared parenting’ amendments. These earlier changes, driven largely by advocacy from fathers’ groups, aimed to promote equal time-sharing between parents after separation. However, the intended impact of the 2006 reforms did not materialise as expected, leading to dissatisfaction and ongoing debate.

A Deep Dive The 2023 amendments schedule 1: sections 20, 21 (note 1), 22, 23 and 24 repealed sections 61DA, 61DB and 65DAA ask courts to consider equal or substantial timesharing between parents in custody decisions unless it is demonstrably in the child’s best interest. This marks a significant departure from previous legislation that emphasised shared parental roles. Additionally, the Act redefined the principles and objects under section 60B, simplifying the framework for interpreting a child’s best interests and shifting focus from parental rights to child-centric outcomes. The ‘best interests’ checklist in section 60CC, particularly subsections (a) and (b), has been streamlined to guide courts, reduce complexity and improve clarity in decision-making where the child’s safety and views are considered.

Another important reform is the codification of the role of independent children’s lawyers—section 68LA, 18 | The Brief

mandating that they meet with children and consider their views in the legal process. These changes reflect several key recommendations from the Australian Law Reform Commission’s 2019 report, which called for a child-focused approach to family law and a departure from rigid parental time-sharing expectations and shared parental responsibility principle. Overall, these reforms signal a move towards a more flexible, childcentred family law system that prioritises children’s well-being over equal parental involvement. However, the current sense of accomplishment in Australian family law reform, stemming from the removal of inappropriate measures that should have never existed in the first place, is a rather disheartening observation.

‘Fehlberg and Ingleby, 2024’ argues that this 2023 reform seeks to correct prior legislative ambiguities and create a more child-centric approach, addressing criticisms that the previous framework often diluted focus on the child’s best interest in favour of maintaining shared parental responsibilities. Although these amendments are a progressive step in its potential to correct imbalances in parental responsibility and refocus on child welfare most; however, their long-term effects on custody disputes and child welfare remain currently unclear, given limited data post-enactment.

Best-Interest Approach ‘Dodds et al. 2023’ explores the various interconnected factors driving past, present, and future family court reforms. It critically examined the shortcomings of Australia’s family law system in protecting children’s rights arguing that the adversarial nature of the judicial process in family law cases often undermines the best interests of children. They acknowledge the efforts of social workers and legal professionals who strive to Edition 1 2025

He supported the idea that child’s maturity should play a central role in determining a child’s ability to influence decisions affecting their own welfare and life decisions. This rights-based perspective raises critical questions regarding age and determining maturity, arguing that standardised rules often overlook individual competencies.

serve children’s best interests within this flawed system.

However, they point out that the current structure often prevents these practitioners from performing their duties with integrity and ethical diligence. Additionally, they look ahead 50 years, predicting that future reforms will likely focus on technology and that what was once considered a fanciful idea for family courts, such as electronic filing and online court events, is now a reality. Furthermore, ‘Amundson and Lux, 2019’; ‘O’Neil et al. 2022’; and ‘Rathus, 2021’ emphasise a clear systemic failure that remains largely unrecognised and unaddressed. This failure lies in the need for legal professionals in Australia to consider social science issues alongside legal matters, while child welfare experts should conduct their assessments with an understanding of the legal framework. They underscore the importance of bridging this gap to uphold children’s essential rights as human beings within the family court system.

Rights-Based Model ‘Tobin, 2023’ heavily criticised the 2023 amendments bill which was before the Australian Parliament at time of publishing his paper because children’s views were not sought during the drafting. The article proposed the ‘rights-based’ approach against the welfare-approach currently used by the family court to determine a child’s best interest comparing it to the past-proprietary approach used previously. Additionally, he argued that children should have greater autonomy in decisions about their lives, invoking the ‘Gillick competency principle’ or ‘mature minor principle’ which requires that a child demonstrate sufficient understanding and intelligence to grasp the nature and consequences of a proposed treatment, assessed on a case-by-case basis.

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Cross-Jurisdiction Perspectives ‘Fernando and Mant, 2023’ assess how the “children’s objection” exception to mandatory return orders under the Hague Convention—Article 13—the child can oppose returning if reached an age and level of maturity where their views should be considered, is approached in three different international jurisdictions England, Australia, and the United States of America (USA). The authors highlight how the ‘children’s views’ are considered for the purposes of the ‘gateway’ stage of the relevant exception to mandatory return which allows courts to consider a child’s objection to being returned to their habitual residence if the child is mature enough. Additionally, in light of the Hague Convention, the authors examine how aspects such as the methods by which children are heard can influence the outcome of their experiences. They acknowledged the limitations due to inconsistency across jurisdictions to be problematic for international law, which relies on uniformity and that clear guidance is needed to ensure children’s voices are heard and their rights upheld consistently.

Conclusion The situation remains ambiguous whether the 2023 amendments genuinely advance the future of children’s rights in Australia or merely rectify the systemic flaws of the previous framework, requiring further evaluation.

While the amendments correct some of the systemic issues associated with shared parental responsibilities and adversarial processes, they may still face challenges in fully realising a rights-based approach for children.

Further amendments are required, especially to enhance children’s direct participation and autonomy in decisions impacting their lives. Moreover, research is needed to bridge the gap between law reform, policymakers, legal practitioners, and social service providers informing the effectiveness of current legislative frameworks in creating safe, supportive environments for children.

This is essential for ensuring that Australia’s family law system evolves in a way that prioritises children’s wellbeing and actively involves them in decisions impacting their lives.

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Feature

From Convention to Action

Has the Sex Discrimination Act 1984 lived up to its Promise?

Jasmine Kundu [Edited by Chloe-Skye Bransden]

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espite Australia's reputation for fairness and progress, the gender pay gap remains a significant issue, with women earning 13.4% less than their male colleagues. This issue needs to be addressed nationally by implementing the United Nations Convention on the Elimination of All Forms of Discrimination Against Women (‘CEDAW’) to combat gender inequality. This article delves into the Sex Discrimination Act 1984 (‘SDA’), exploring how it incorporates CEDAW’s principles, evaluating whether the SDA is truly effective in practice. A central challenge in evaluating SDA's implementation of CEDAW is determining what constitutes ‘effective’ change.

While striving for perfection is ideal, effectiveness is not defined by flawless execution. This article defines 'effectiveness' as the extent to which it addresses gender inequality in workplaces and public life, as evidenced by tangible legal reforms and reductions in reported discrimination.

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Historical Context and Significance of CEDAW The international legal instrument, CEDAW, often labelled as the "international bill of rights for women," aims to eliminate discrimination against women.

Australia ratified CEDAW in 1983, committing to its comprehensive framework. With over 30 articles, CEDAW sets out fundamental principles of equality, providing a clear agenda for nations to trend towards abolishing gender-based discrimination.

To what extent is Australia truly dedicated to advancing the rights established in CEDAW? The enactment of the SDA sends a powerful message, highlighting that Australia does not take the issue of discrimination against women lightly. Australia portrays a strong commitment to advancing the rights outlined in CEDAW through various initiatives, including: • Section 28 of the SDA which explicitly prohibits sexual harassment in the workplace. In line with Article 2(e) of CEDAW, which calls for parties

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to 'take all appropriate measures to eliminate discrimination against women,' the Act imposes a positive duty on employers to take proactive and reasonable measures to prevent discrimination.

• Article 5 of CEDAW underscores the elimination of stereotypes and cultural practices that perpetuate discrimination. Aligned with this principle, Australia’s introduction of the National Paid Parental Leave Scheme in 2011 provides up to 18 weeks of paid leave for eligible employees, actively addressing gender inequality in caregiving roles.

The scheme’s inclusion of fathers and partners challenges traditional gender norms, fostering a more equitable division of parental duties.

• Article 12 of CEDAW calls for equal access to healthcare and services - a principle that is increasingly reflected in Australia’s focus on women’s health and reproductive rights. A notable achievement in this regard is the regulation of access to abortion, which, despite some ongoing uncertainties in state and territory-based laws, has seen significant progress in recent years.

• Article 14 of CEDAW focuses on rural and disadvantaged women. Australia has made substantial strides in its foreign aid strategy to comply with this requirement, as evident in the allocation of at least 80% of development investments toward gender-related issues, including women’s empowerment and the fight against violence towards women.

How is discrimination defined?

To assess the effectiveness of the SDA, it is essential to compare its definition of discrimination with CEDAW's. If the definitions differ significantly, this raises concerns about whether the SDA fully aligns with CEDAW's principles in addressing gender inequality. Either way, both emphasise the importance of addressing discrimination based on sex and the need for the implementation of active protection measures. However, CEDAW’s definition places greater emphasis on eliminating discrimination against women specifically.

On the other hand, the SDA offers a broader scope in protecting both men and women alongside other gender-related factors such as gender identity and sexual orientation. While the SDA's broader scope is advantageous in addressing various forms of discrimination, it may inadvertently dilute the focus

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on issues specifically affecting women. Additionally, the SDA applies to discrimination in various contexts such as the workplace and education.

However, CEDAW’s broader definition ensures that all fields of life are covered. Hence, whilst SDA’s definition may be effective in many contexts, it does not provide the same holistic protection.

Improvements and Effectiveness The committee's assessment of Australia's record on women’s rights was critical, issuing over 90 recommendations for improvement.

This underscores the significant gaps that still perpetuate the advancement of women's rights.

The SDA provides legal protection for women against discrimination in the workplace, ensuring fair treatment. In evaluating its effectiveness, based on the definitions discussed earlier, it can be argued that it has been substantially effective in addressing women's equality, particularly evident in the significant changes implemented by the SDA that align with CEDAW’s principles. While it is not perfect, the substantial reforms and changes it has brought about demonstrate an effective change.

CEDAW has the potential to be a robust and enforceable international women’s rights framework needed to achieve gender equality. However, its success largely relies on the efficiency of national reporting systems and individual complaint mechanisms. Australia’s ratification of CEDAW’s Optional Protocol reflects its commitment to Article 2, which mandates the provision of effective remedies for violations. In the context of the SDA, there are approximately 350 complaints per year, with a notable 36% increase in 2006-2007.

This issue may stem from the broader definition of discrimination in the SDA, which overlooks specific challenges women face. However, the rise in complaints, predominantly from women, indicates that Australia's reporting and complaint mechanisms are active and effective, and reveals the ongoing challenges in achieving equality.

The Act has led to significant legal reforms and continues to offer women avenues for redress.

However, its broad definition of discrimination, whilst inclusive, may reduce its focus on addressing gender-specific challenges faced by women, a core priority of CEDAW.

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Feature

The Courtroom Battle

Has time stood still for battered women in Australia’s adversarial legal system?

Tara Bush [Edited by Alison Thai]

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quality before the law is a fundamental component of the administration of justice. The binary, confrontational nature of adversarial legal systems disadvantages women, consequently jeopardising the principle of equality. This is exacerbated for the one-quarter of Australian women afflicted by intimate partner violence (IPV) as patriarchal values, impersonal communication styles, and legal tests obstruct their access to protection.

There have been legal triumphs in advancing the rights of IPV survivors, such as allowing evidence of ‘battered woman syndrome’ and abolishing the partial defence of provocation. However, the adversarial model has perpetuated gender inequality over the past 50 years.

The Patriarchy and Law Scholar Will LeSeur posits that the patriarchy can be understood as a society wherein institutional, economic and interpersonal structures inherently benefit men, thus subordinating women in these processes. The woman’s traditional role in the private home resulted in their historical exclusion from obtaining legal status or personality. Women have been expected since colonial times to submit to ‘ritualised forms of etiquette and the tenets of polite social intercourse’. This has remained largely unchanged as Justice Harrison recently stated that ‘women are somehow expected to abide by a higher standard [than men]’. Customary gendered double standards exacerbate the unequal application of the law.

The Adversarial System Australia’s adversarial system has faced decade-long criticism for exacerbating binary power imbalances.

The confrontational and competitive nature of the courtroom disadvantages women as they are more cautious and disinclined to engage in conflict. The impersonal communication style of the adversarial system includes direct questioning, cross-examining and fact-finding which create an atmosphere of apprehension and animosity. The victim is less likely to relay their experiences or engage in open dialogue when they do not feel the environment is safe.

Justice becomes elusive when the truth cannot be acquired. Debate within the adversarial model often omits or manipulates information, oversimplifies facts,

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overemphasises representations and becomes tactical.

Facts are interpreted differently by individuals, notably in contexts where there is no lived experience or relatability to the narrative being shared by the victim.

The IPV survivor is more likely to be economically dependent on their partner, resulting in another disparity between the parties as they are limited by their resources. A victim who cannot adequately share their side of the story in a courtroom is not afforded equal protection of the law.

a violent crime. However, the South Australian Court of Criminal Appeal accepted the appeal on the grounds that the trial judge erred in ruling that the expert evidence could not be admitted. The 1998 case of Osland v R affirmed the admissibility of expert evidence of battered woman syndrome in Australian courts.

The Runjanjic decision acknowledged the psychological condition of IPV victims and provides future decisionmakers with a further understanding of the mens rea of a victim who had committed a crime.

Reasonableness The ‘reasonable person’ test has been heavily criticised as a gender-biased assessment that excludes the experiences of womanhood. The test fails to recognise that the actions of an IPV survivor may not appear ‘proportional and necessary’ as physical danger is not always forthcoming. Scholars have posited that it is not credible or reliable as it institutes ‘male violence as the norm’.

The 2011 amendments to the Family Law Act 1975 (Cth) aimed to increase support for domestic violence victims. A definition of ‘family violence’ was included to replace the inconsistent term of ‘reasonable fear’. In 2012 the reforms had entered into force and removed the test that a victim’s fear is ‘reasonable’. However, New South Wales legislation such as the Crimes Act 1900 (NSW) continues to rely on this test. For instance, the partial defence of extreme provocation is measured against an ‘ordinary person’. This reflects the dominant group of white, middle-class men. Consequently, the test decontextualises the IPV victim’s experiences and excludes the subjective values of those on the jury.

C) Defences Victorian case law and legislation provide an example of the law adapting to emerging socio-cultural norms advocating for equality between the sexes. In the early 2000s, the Crimes Act 1958 (Vic) allowed for the partial defence of provocation against a murder charge.

R v Ramage was a catalyst in abolishing the defence as the case evidenced abusive men weaponising the law to evade justice. Ramage successfully relied on provocation as a partial defence against the murder of his wife. This sparked public outrage towards the discrimination against victims of IPV. The Victorian Government eradicated provocation as a defence in 2005, swiftly replacing it with ‘defensive homicide’ which aimed to protect women who murdered in the context of prolonged IPV. Under section 9AD, the defendant must have had no ‘reasonable grounds’ for their belief that the murder was necessary to defend themselves or others. In 2014, this defence was also revoked as the public climate of opinion was that men who commenced and sustained domestic violence were abusing the defence. The case of R v Middendorp was fundamental in establishing this public perception as the female victim was ‘put on trial’ rather than the murderer Middendorp. Australian jurisdictions that have abolished the provocation defence have effectively taken a step closer to achieving equality before the law.

Positive Developments A) Definition The feminist movement of the 1970s and 1980s promoted the rights of women and coincided with a political shift in the definition of ‘domestic violence’.

Previously used as a phrase to describe national security, Hansard recorded a dramatic change in 1977 in which IPV was included under the political definition.

B) Evidence In the 1990s, the watershed case of Runjanjic v R established that expert opinions on battered woman syndrome could be admissible as evidence. The trial judge had denied the request of the defendant’s counsel to raise defences of duress and provide expert testimony from an experienced clinical psychologist on the role that battered woman syndrome had in the execution of Edition 1 2025

Conclusion Despite positive developments in the legal field, the unfortunate reality is that female victims remain inadequately protected from the law. Patriarchal values have been sustained in courts over the past halfcentury, as women are held to a higher standard than their male counterparts and are adversely affected by the confrontational nature of the adversarial system.

Additionally, the application of the ‘reasonable person’ test reinforces that the dichotomous experiences of women and men are not considered equally.

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Feature

Safety First

The Evolution of Industrial Legislation in NSW

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Emma Horgan [Edited by Krishi Patel]

ew South Wales (NSW) has had an ever evolving array of legislation improving occupational health and safety. However, 50 years ago companies took reactive measures by responding to workplace incidents and hazards after they occurred instead of proactive preventative measures. Today, regulations, workers’ rights and preventative measures have vastly improved and have become embedded in NSW legislation, fundamentally transforming occupational safety standards. This article analyses the evolution of legislation whilst highlighting key legal milestones and catastrophic incidents that have had an everlasting impact on NSW. 1970s - 1990s Laying the Foundations On the 18th of January 1977, a train carrying 469 passengers derailed in Granville, NSW, claiming the lives of 83 people and injuring 213 others. The derailment caused a bridge to collapse onto the carriages, killing some passengers instantly. Despite the risks, volunteers and emergency services personnel rushed in, suffering severe physical and psychological injuries due to the lack of a coordinated emergency strategy at the time. Many survivors developed posttraumatic stress disorder which can never be erased.

The Granville Disaster remains Australia’s worst railway accident and has had an everlasting impact on NSW legislative reform.

A formal investigation was conducted by His Honour Judge J H Staunton, Chief Judge of the District Court in 1977. The inquiry determined that the derailment was due to long-term neglect and inadequate railway maintenance, making the disaster preventable. A high turnover of staff led to insufficient track inspections, which failed to consider the high speed and operational capabilities of the train. In response, the Wran Government at the time invested $200 million for rail maintenance over the next five years. However, workplace accidents persisted, resulting in the deaths of train drivers and 24 | The Brief

maintenance workers, highlighting the ongoing need for safety regulations.

In 1983 after reflecting on the limited protections for workers, the Occupational Health and Safety Act 1983 was enacted. This was a turning point in Australian workplace safety legislation because it imposed stricter legal obligations on employers to ensure the health, safety and welfare of their employees. The OHS Act reflected the philosophy of the Robens Report which was based on a concept of self regulation and recognised that the government could not provide legislation to run a workplace, but instead should create legislation that gives the capacity to those in control of workplaces.

Rather than attempting to regulate every aspect of work safety, a general duty of care framework was established making sure the employer must be familiar with their obligation and align their workplace to take reasonable care for others. This philosophy was codified in the Act as an absolute duty. It stated that employers would fail this duty if they did not provide systems of work that were safe and without health risks. Failure to comply with these duties was a breach of the Act, punishable by monetary fines and imprisonment.

2008: A Step Towards National Unification In 2008, at the Workplace Relations Ministers Council, ministers from across Australia agreed that a harmonised national framework was essential for regulating workplace safety. The agreement was to create a model act, regulations, codes of practice to achieve national compliance, as well as establish an independent body to develop and implement these laws. A national review of Australia’s Work, Health and Safety (WHS) legislation was undertaken which resulted in the creation of the Occupational Health and Safety Act 2011. All states except Victoria implemented these WHS laws which focused on protecting workers and other persons from harm by requiring employers to: eliminate or minimise risks, have effective representation in unions, conduct further training and development, provide a framework for continuous improvement, and create a work Edition 1 2025

authority entity. Initially, WorkCover was responsible for enforcing the new WHS laws, but in 2015, it was replaced by SafeWork which is responsible for enforcing compliance with the Act. Additionally, in 2009 the Fair Work Act (Cth) was enacted as primary legislation clearly setting out employment relations, wages and unfair dismissals in Australia. The Act has established a guaranteed safety net for workers for fair and just minimum wages and reasonable working hours. It has also provided accessible dispute resolution mechanisms and penalties for non-compliant employers through the Fair Work Commission (FWC) and Fair Work Ombudsman (FWO). In 2023-2024 the FWC received 41,190 lodgements with 14,772 being unfair dismissals demonstrating the importance of these services to empower employees.

The Present: Recognising Preventable Deaths and Psychological Health and Safety Now in 2025, each and every worker has legal workers rights but in recent years, there has been growing recognition that workplace safety extends beyond physical hazards to include psychological health and safety. SafeWork NSW has identified mental health as a critical workplace issue, emphasising the need to manage psychosocial hazards that can cause stress, anxiety, or psychological harm. These hazards can include heightened job demands due to long work hours, exposure to traumatic events, hazardous conditions, workplace bullying, and harassment which can impact mental health. In response to this WHS

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laws now require employers to include psychosocial hazards so far as it is reasonably practicable in their general duty of care and must eliminate or minimise psychological health and safety risks arising in the workplace. This is explicitly demonstrated in SafeWork’s Psychological Health and Safety Strategy 2024-2026. Another major development in the workplace has been the introduction of industrial manslaughter laws through the Work Health and Safety Amendment (Industrial Manslaughter) Bill 2024 which inserts new sections and amendments in the Work Health and Safety Act. These sections have not enforced new obligations but instead have established industrial manslaughter as an offence and imposed a maximum penalty of 25 years of imprisonment or a $20,000,000 fine demonstrating the shift in psychological health and unnecessary deaths. This shift depicts the growing recognition of psychological health risks and the need for accountability and prevention of workplace deaths.

The evolution of WHS standards in NSW reflects an ongoing commitment to improve workplace safety and employee rights. From the reactive measures of the past to the duty of care embedded in our legislation and recognition of safety in the workplace, it is clear that NSW has come very far. It is important to recognise that in every professional aspect of our lives we have workers’ rights and if contravened, we have the opportunity to hold our employers accountable.

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Feature

From Oppression to Equality 50 Years of Redefining Marriage in Australian Law Dung Nghi (Yoong) Tran [Edited by Joseph Kim]

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ver the past fifty years, Australian marriage laws have evolved significantly, reflecting changing societal values and advancing human rights. Historically rooted in patriarchal norms, these laws once condoned practices such as marital rape and excluded same-sex couples from the institution of marriage. The legal recognition of marital rape as a crime, the introduction of no-fault divorce, and the eventual legalisation of same-sex marriage illustrate Australia’s commitment to equality, individual rights, and the progressive redefinition of marriage.

Marital Rape: Dismantling Spousal Immunity For much of history, Australian law did not recognise the possibility of rape within marriage. This immunity was largely based on Sir Matthew Hale’s 17th-century assertion that by consenting to marriage, a wife permanently surrendered her right to refuse intercourse. This doctrine persisted for centuries, 26 | The Brief

despite growing criticism from legal scholars and feminists. Legal reforms in the late 20th century gradually dismantled this archaic notion. South Australia became the first jurisdiction to criminalise marital rape in 1976, and by 1991, the High Court of Australia, in R v L [1991] 174 CLR 379, confirmed that a husband could be convicted of raping his wife. This landmark decision cemented the principle of bodily autonomy within marriage, ensuring that spousal consent to intercourse is not irrevocable. The final vestiges of marital rape immunity were removed in 1994 when all Australian states criminalised the act. This shift reinforced the fundamental principle that marriage does not negate an individual’s right to autonomy and consent.

The Family Law Act 1975: The Advent of No-Fault Divorce Prior to 1975, divorce in Australia was fault-based, requiring evidence of wrongdoing such as adultery, cruelty, or desertion. This system often trapped Edition 1 2025

on de facto relationship laws for legal rights, but these frameworks fell short of granting full marriage equality.

The federal government’s resistance to same-sex marriage was codified in 2004 when the Marriage Act 1961 (Cth) was amended to define marriage explicitly as ‘the union of a man and a woman to the exclusion of all others.’ This amendment also prevented the recognition of same-sex marriages performed overseas.

Despite this legislative setback, public support for marriage equality continued to grow. By 2017, 61.6% of Australians voted in favour of same-sex marriage in a national postal survey, prompting Parliament to pass the Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth). This Act redefined marriage as ‘the union of two people’, removing gender as a barrier to legal matrimony. The legalisation of samesex marriage marked the final step in dismantling the historical exclusion of LGBTQ+ Australians from the institution of marriage and reaffirmed the nation’s commitment to equality and human rights.

individuals in unhappy or abusive marriages, as proving fault was costly, time-consuming, and emotionally taxing.

The introduction of the Family Law Act 1975 (Cth) marked a seismic shift in Australian marital law by establishing no-fault divorce. Under s 48 of the Act, couples could dissolve their marriage by demonstrating it has ‘broken down irretrievably ’, evidenced by a twelve-month separation. This reform empowered individuals to leave unfulfilling or harmful marriages without the need for legal battles over blame, recognising that relationships can end without moral fault. Moreover, the Act prioritised the welfare of children by requiring courts to ensure ‘proper arrangements’ were made for their care post-divorce.

Same-Sex Marriage: The Battle for Equality The struggle for same-sex marriage in Australia was a decades-long legal and political battle.

Before legal recognition, same-sex couples relied Edition 1 2025

The Broader Implications of Legal Reform These legal advancements not only modernised Australia’s marriage laws but also signified broader shifts in societal attitudes. The criminalisation of marital rape underscored the importance of bodily autonomy, no-fault divorce prioritised individual well-being over archaic moral judgments, and the legalisation of same-sex marriage affirmed the principle of equality before the law.

Furthermore, these reforms reflect an ongoing recognition that marriage is not a static institution but one that evolves in response to cultural, ethical, and legal developments. Each of these legal changes demonstrates that marriage, once a tool of social control, has been redefined to uphold the rights and dignity of all individuals.

As Australia moves forward, the evolution of marriage laws will likely continue to reflect contemporary understandings of relationships and human rights. The journey from patriarchal dominance to equality demonstrates that legal change, though often slow, is instrumental in shaping a more just and equitable society.

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Feature

Void in Futuro The Development of the Scope of Frustration and Force Majeure in the post-COVID-19 Period

T

Diako Nabavi [Edited by Sharan Sidhu]

he doctrine of frustration persists in Australia as a creature first formulated in English law. The seminal English case Davis Contractors Ltd v Fareham Urban District Council [1956] A.C. 696 (‘Davis Contractors’), provides that frustration occurs when, through no fault of either party, the obligations under a contract become ‘radically different’ from that which the parties promised to undertake. The case posits that the supervening event, or cause of frustration, was unforeseen by the parties. In Australia, this was applied by the High Court in Scanlan’s New Neon Ltd v Tooheys Ltd (1943) 67 CLR 169, where the ‘implied term’ theory was preferred by Australian courts. The application of this doctrine is under heavy contention, particularly in light of contractual obligations to be performed during the COVID-19 pandemic. Factors such as social distancing, uncertainty in commercial 28 | The Brief

trading, and lockdowns have dramatically affected the ability of contracting parties to perform their obligations. A ‘supervening illegality’, such as one arising from government restrictions, is a longrecognised cause of impossibility, and thus frustration.

However, courts domestically and internationally may take a different approach when faced with frustration and force majeure in the post-global pandemic context, due to the limitation of foreseeability. This article will consider the approach of Australian courts in applying the doctrine of frustration and force majeure, and examine the clarity and consistency of the doctrine of frustration in the post-COVID-19 period.

Background to Frustration and Force Majeure The ‘implied term’ theory of frustration posits that frustration comes about through an implied term in a contract itself, rather so through the operation of a rule Edition 1 2025

of law. Nonetheless, frustration remains concerned with a significant change in the circumstances of the performance of a contract. A force majeure clause, or, an ‘act of God’, has been held in English law to be limited to natural causes, or, ‘without human intervention’.

Importantly, the court’s have recourse to the specific wording of the force majeure clause, and whether it is wide enough to encapsulate a pandemic such as COVID-19.

Both frustration, as applied through the ‘implied term’ theory, and force majeure, will ordinarily take into account the objective contemplations of the parties as determined by the wording of the actual contract. This is significant as it limits the possibility of a finding of frustration, or operation of a force majeure clause. Thus, a contract must reflect a specific contemplation by the parties, impliedly or otherwise, that a pandemic or disease outbreak would arise. As a result, if the parties to a contract did not expressly include a clause to account for a situation such as COVID-19, or would not have had they turned their minds to it, they cannot enjoy a finding of frustration or force majeure.

Frustration The doctrine of frustration may be enlivened in the COVID-19 context through a ‘supervening illegality’, vis-a-vis government intervention, which renders the contract legally impossible. It is unlikely that the doctrine arises through any other case—including the destruction of the subject matter of the contract. The court, in oOH! Media Roadside Pty Ltd v Diamond Wheels Pty Ltd (‘oOH! Media’), applied the Davis Contract frustration test: a supervening event which (1) neither party caused, and (2) the obligations of the parties become ‘radically different’ from that which was undertaken at the time of formation. The court also examined the requirement of foreseeability. Where an event was actually foreseen, frustration does not arise. However, where an event was foreseeable but not actually foreseen, the ‘nature and extent of foreseeability is critical’. A high degree of foreseeability is required to find that the parties were aware of, and assumed, the risk of the event occurring, resulting in frustration being incapable of being established. Looking to oOH! Media, when frustration is considered in the context of COVID-19, a distinction must be drawn between ‘frustration by reason of a pandemic and frustration by reason of government restrictions’. This is because if something was rendered ‘unsafe by reason of the pandemic, then it was a radically different thing from that which was contracted for, regardless of whether the government had yet recognised it’.

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Force Majeure Generally, the operation of a force majeure clause will, as an incident to its operation, oppress a finding of frustration. For a force majeure clause to operate, in a post-COVID-19, the parties must have foreseen an event similar to a pandemic and accounted for the occurrence of that event. Thus, frustration cannot arise as the supervening event would not have been unforeseen by the parties. During the height of the COVID-19 pandemic, it was unclear whether a force majeure clause would be activated. This is due to the uncertainty around the phrase ‘act of god’, provided for in the case of Nugent v Smith, which has been defined as ‘due to natural causes directly and exclusively, without human intervention, and that … could not have been prevented by any amount of foresight and pains and care reasonably to be expected’. Force majeure is not a doctrine recognised in Australia, however, the operation of a force majeure clause within a contract is enforceable through ordinary contract law. Looking internationally, PD Teesport Ltd v P&O North Sea Ferries Ltd [2023] EWHC 857 highlights the judicial approach to force majeure, — whereby the UK’s judgment may influence the approach in Australia. The court held that a finding of force majeure can only be made by a close inspection of the wording of the clause. Regard must be had to the cause of the obligations becoming ‘impossible’; a distinction is drawn between the pandemic being the direct reason as to the impossibility, or government intervention making certain obligations unlawful.

Conclusion The consequences of the doctrine of frustration being engaged is that the obligations of the parties are discharged in futuro. This means that obligations that have arisen before the frustrating event will remain on foot. Contrastingly, the operation and wording of a force majeure clause determines the future obligations of the party. Thus, the parties decide what happens upon the foreseen event occurring. Whilst a force majeure clause is enforceable in contract, and the doctrine of frustration has been distilled clearly, the position of the Australian courts in the context of COVID-19 remains unclear. It is for prudent parties to seek legal advice and carefully draft their contracts to encompass all situations, including a pandemic, and adequately determine the contractual rights and remedies that flow from its operation.

Past and Precedent | 29

A Brief Reflection

Connected Through Community Kaylen La Brooy [Edited by Ashlynn Rees]

I

“I am empowered by my community”

reflect fondly on my experience as a firstyear law student. This, however, came from rejecting the assumption that university would be an independent journey. I came to understand that university is a time for developing individual learning through the support and nourishment of a strong community. Finding my community at Macquarie University was a journey taken by embracing the smorgasbord of opportunities available to us.

For the first few weeks, I attended class, and completed assigned work. I repeated this process in preparation for my assessments –truthfully, doing the bare minimum.

At face value, that was all my timetable had mandated: several classes spread across half of the week.

As the semester progressed, I discovered an abundant range of academic, social, and extracurricular opportunities waiting for me to explore. For me, this turning point was when I finally made use of my MULS membership. After gravitating towards a polished copy of ‘The Brief ’ given to me on kickstart week, I was introduced to what the Macquarie University Law Society produced for the community. The publication introduced me to the vibrant social and intellectual world of MULS, sparking an interest in how the society supports its members. This encouraged me to dive in and immerse myself in this new environment.

Socially, I took the plunge and attended the firstyear law camp which involved a few nights packed with 30 | The Brief

parties, team-building, and plenty of opportunities to connect. What began as a simple chance to meet likeminded peers turned into the formation of lasting friendships. Upon my return to class, I was greeted by familiar faces. Class discussions felt more inviting.

I felt emboldened to participate, and before long, I was actively engaging with my classmates as I never had before.

What I genuinely appreciate about Macquarie is the sense of community fostered through campus life. It extends beyond academic success by building a community of belonging that elevates each other through friendship and mentorship. What truly sets our university apart is the genuine spirit of all-around support at its core. Nowhere was this more apparent than at the start-of-semester drinks night. It wasn’t just about meeting people—it was about connecting with peers who were keen to form both social and study groups in preparation for assessments. The annual law cruise deepened these bonds, also helping me find others with shared interests.

Professionally, I also took advantage of the many career panels hosted by MULS throughout the year, particularly during ‘Mad May’. As a first-year student curious about what graduate programs lay beyond my degree, I invited a few of my new friends to attend these panels with me. Together, we broadened our professional networks by connecting with fellow students eager to carve out a future in law. Some of Edition 1 2025

these friends even joined me in participating in future MULS competitions.

My first taste of a university moot was a largely successful learning experience. After forming a team with those I had connected with outside of class, we entered the Foundations of Law Mooting Competition.

Engaging respectfully with opposing counsel and building connections through each round was a testament to how the university experience is enhanced not through independence but through collaboration.

Applying our knowledge beyond the classroom was highly beneficial, especially as we drew on each other’s insights to create a refined submission.

These experiences were the stepping stones that led me to become more involved with MULS. Staff mentors, both in and outside the classroom, encouraged me to participate in the society’s operations. By the end of the year, I decided to apply for an Executive Officer role with the support of my peers, putting my name forward.

Looking back, I feel grateful for the supportive community that encouraged me to embrace the full spectrum of opportunities available to me. Just like sitting in front of a smorgasbord, I’m glad I tried everything on the table, but it wouldn’t have been as fulfilling without the people who shared the ‘meal’ with me. What I’ve learned is that from the moment you step onto this vibrant campus, you’re not just a student; you are a member of a dynamic and diverse community. The Edition 1 2025

most successful students, I’ve observed, are those who recognise the importance of immersing themselves in these support networks from day one.

As someone who has embraced every opportunity Macquarie University and MULS have offered, I want to encourage everyone from first-year to final-year students to adopt this mindset. Build relationships that extend beyond the classroom. These networks will become invaluable sources of support, opportunity, and real-world insights that go far beyond what can be taught in lectures.

At its core, law school is not just about mastering relevant provisions and case law. It’s about collaborating with others in a community that nurtures your growth.

In study groups, we push each other to prepare for exams, hold one another accountable, and motivate each other to succeed. Through collaboration in activities like mooting, I’ve learned that success in law school isn’t just about acquiring knowledge—it’s about immersing yourself in a community that empowers you to reach your full potential.

As I look towards my year as an Executive Council member, I am more excited than ever to give back to this incredible community of exceptional people! I hope to contribute to the culture of mentorship and collaboration that made my law school journey so rewarding, ensuring that others can experience the same growth and support that I did; something I can do as I continue to be empowered by this community.

Past and Precedent | 31

A Brief Review

The Dangers of Pop Culture

Depp v Heard, a Defamation Trial or Social Media Circus?

I

n 2022, social media platforms were inundated with discussions of the Depp v Heard defamation trial. Despite Heard receiving moderate public support when she first accused Depp of domestic violence in 2016, at the outset of the defamation trial social media platforms became overrun with an unwavering support for Depp, and in turn, hostility towards Heard. In stark contrast to the #MeToo movement just years prior, Heard was ridiculed and berated and it appeared the strides made by the #MeToo movement were being dismantled piece by piece. The storm of public scrutiny aimed at Heard made the trial result appear inconsequential, as Depp’s ultimate goal to regain public support had been satisfied. It was not until the 2023 ‘Depp v Heard’ Netflix documentary was released that self-reflective processes on social media began, with the group mentality of ‘hating-on’ Heard being challenged. This review reflects on how Depp successfully utilised the judicial system to create a ‘media circus’ and restore his public image.

From the outset of the Depp v Heard trial, Depp’s legal team argued the trial should be televised, stating to the media that “Mr Depp believes in transparency”. This stance was challenged by Heard’s lawyers who argued the sensitive nature of the trial, including the alleged sexual assault of Heard by Depp, meant under Virginia law cameras were prohibited. Ultimately, Judge Azcarate ruled there was no “good cause” to not livestream the trial; a decision widely criticised for setting back the ability of domestic violence survivors to come forward.

As with any defamation case, the goal of Depp was to prove Heard’s claims were unfounded and false, however, in this case, his celebrity status amplified the

32 | The Brief

Sarah Yeend [Edited by Thomas Lockie]

importance of public opinion. Contrasting Depp v Heard to the 2020 United Kingdom (‘UK’) Depp v News Group Newspapers Ltd case, the role of televising Depp v Heard in advancing Depp’s public opinion goals becomes evident. Although there was some coverage of the UK case, the social media ‘circus’ only erupted when the televised US trial began, with nearly 3 billion views under the hashtag ‘JusticeforJohnnyDepp’ on TikTok by April 2022.

Once the US case began, social media was flooded with support for Depp which almost always took the form of hostility towards Heard. Shockingly, in a trial with domestic violence at its centre, social media searches regarding the trial do not yield valuable discussions, but portrayed ‘funny moments’ from the trial. Whether it was accusing Heard of snorting cocaine on the stand, framing her accusations as a ‘moneygrab’, or making ‘memes’ regarding her testimony, the treatment of Heard is what some have called one of the worst cases of flagrant abuse. It ultimately became clear that no matter the outcome, Depp had won in the court of public opinion, with almost unanimous support.

Whether this cacophony of hate for Heard stemmed from so-called “#Me-Too fatigue” or a myriad of other factors is still debated, but what remains clear is that Depp achieved his goal. The Depp v Heard trial can serve as a cautionary tale, exhibiting the widespread damage that televising sensitive trials that include topics like domestic violence and sexual assault. Justice systems must find a balance between the concepts of open justice and the protection of alleged victims, particularly in cases with the potential for widespread misogynistic reactions on social media.

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De Minimis

Law School’s Ticketek: The Journey to Front Row Seats Denusha Suthagar [Edited by Louise Kwine]

A

bead of sweat trickles down the back of my neck as I sit next to the WiFi router inconveniently placed in my oven-heated garage. Aside from feeling like I’m boiling alive, my laptop fan won’t stop, my iPad screen is scorching hot to the touch and my iPhone is buzzing relentlessly with notifications from my friends. It’s 9:15am, and I’m still in my pyjamas.

Crusts are stuck in the crooks of my eyes making the text messages that I am being bombarded with more difficult to read than it truly needs to be. But the plan is in place, a plan so airtight that nothing can go wrong - to open the website and ensure my friends and I secure the right time slot and day.

At first, the plan was typed on my laptop, however, I quickly came to the conclusion that my five-year-old Macbook could potentially take flight with its disturbingly loud fan if both a singular website and a Word document were opened at the same time. So instead, a fluorescent sticky note stares at me. My “replace battery soon” laptop is deemed far from useful, however, my iPad seems to Edition 1 2025

be pulling its weight by loading up the screen first.

It is now 9:25am, and all three devices have made it onto the homepage of the website. A layer of sweat has formed on my upper lip and lower back while my heart pounds - my garage has swallowed all sound.

I think of the likely possibility that I don’t secure a spot - I force myself to dismiss such a thought immediately. Those worries are far from useful now because the 50-year-long waiting journey is almost over and it’s 9:30am. The loading circle taunts me on all devices, and my phone is no longer buzzing with notifications. Every Macquarie student’s house has gone silent. A pin drop could be heard as I perched over my devices, waiting for one to let me in. I leap towards my iPad as I see a grid displayed across the screen. Tapping on LAWS3000, I start vehemently scrolling looking for the agreed upon tutorial time slot - Thursday 10-11am. It’s the perfect time slot; late enough that I’m fully awake thanks to my $5 oat latte, but early enough that my stomach isn’t rumbling mid-tutorial. I click on the register button, and the loading circle appears again.

Past and Precedent | 33

Lawtime Poems

The Priestley 11 in Limericks

By EEIC

Civil Procedure In order to run a fair trial that’s free from all partisan guile, read these regulations by the state and the nation but they’ll probably just cramp your style.

Contracts When parties agree on their courses (unless there were violent forces, which made one agree to do it for free) they’ll contract their prior discourses.

Criminal Law and Procedure The state has enacted decrees concerning how things should just be and if you haven’t listened you’ll head off to prison where the meals and the board are all free.

Administrative Law Our nation’s executive chooses to tax all my things and my boozes, but to prevent sticky ends for their corporate friends they’ll administer loophole excuses.

Equity (including Trusts) A parallel system of law could hardly be seen as a bore, but when Quistclose trusts are considered a must, who’ll blame you for wanting no more?

Constitutional Law Constitution determines one’s health with respect to one’s body and wealth.

Our kind benefactors through eight verbose chapters in virtues, were aiming for stealth.

Property Transferring land titles and chattel and several heads of beef cattle with no-one observing, the property’s swerving to end in a custody battle.

Ethics and Professional Responsibility Ethical lawyers are able to work in a barn or a stable but an office or court will treat them as sport and they’ll never be rid of that label.

Torts If your neighbour is wielding a wrench, while trespassing onto your bench assaulting your chair breaching duties of care, he’s wrong, but at least he’s not French.

Company Law To act all alone is mischievous but in concert with corporates it’s devious thanks to legal civility and stopped liability veil-piercing remains rather tedious.

Evidence To prove that a fellow’s committed an action that’s not quite permitted within our society— A great impropriety!— good evidence must be submitted.

34 | The Brief

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Editorial

2075 Edition

The Boxer Emma Reading [Edited by Payton Hardey]

News Mandatory retirement age for judges raised to 100 MARTIN PLACE — The retirement age for judges has been raised as legal professionals are found to live 2x longer than funny people. This finding has come as a shock to cardiologists, who note distinctly higher rates of caffeine-related heart attacks from law students and legal professionals in their first 5 years of practice. We asked some Supreme Court judges for their secrets to living forever. ‘I still wake up at 5am for a daily run before work. Stay sleeping *****s!’ says 72-year-old Justice Chan. ‘I have too much adrenaline in me from only sleeping three hours a night since I graduated’ reports another judge, who passed out immediately after this interview.

progressive move, the full Court found in favour of the defendant, who relied on the defence of ‘your Honour, I am literally just a girl’. ‘Can’t argue with that’ said Chief Justice Meeson when handing down the unanimous judgement.

Senior lawyer becomes first partner to be able to do long division MOSMAN — Freshly promoted partner Una Realsman developed a passion for maths when first trying to commit tax fraud in 2030. After serving time in jail, she has risen through the ranks to become a managing partner. Una soon hopes to also be the first partner in Sydney to be able to make a spreadsheet without lying on her resume.

However, many fear that this could be too ambitious of a goal.

Solicitor’s motivational speech sparks fears EDGECLIFF — a solicitor’s motivational speech at his senior school has left many speechless at his ramblings. The solicitor talked of perseverance in attending high school during something he called ‘the pandemic’, and spoke at length about a traumatising toilet paper shortage. Many paralegals at his firm have confirmed that the solicitor regularly asks to ‘Zoom call’ them, a term which was coined around the time ‘the pandemic’ is alleged to have occurred.

The firm has not made a public comment at this time.

Court finds in favour of gender-based defence to negligence AUSTRALIAN CAPITAL TERRITORY — The High Court of Australia has allowed the first gender-based defence in a negligence case. The case concerned the alleged negligence of 72-year-old Anna Onymous, a retired solicitor who allegedly made statements causing pure economic loss. In a

Queen’s Counsel caught driving Corolla ROSE BAY — A QC is now desperate for clients after being caught driving a 2065 Corolla Descent. She was driving her kids to school on Old South Head Road in Rose Bay when one of her clients saw her at a stop light and took a photo. Her chambers, 105th Floor, have since terminated her as a member. ‘She’s been misunderstood, her regular driver is just sick!’ reports Dr Morris, her closest friend, and plastic surgeon.

Macquarie Law School celebrates 51 years of the prettiest law building in the southern hemisphere NORTH RYDE — Macquarie University’s Michael Kirby Law Building celebrates 51 years of being the most aesthetically

pleasing law school in the entire southern hemisphere. The award-winning building continues to boast some impressive features, including a law students’ self-quarantine zone on the first floor. For 51 years, students have used the zone to protect themselves from mingling with the general student body, side-effects including sobriety, humour, and a sense of integrity. Other universities in Sydney have also embraced this idea when renovating their infrastructure from looking like used paper bags to actual buildings.

Big law partner regains empathy after saving enough to afford it Sophie Biggs, a partner at ******* has decided she now cares about people other than herself, after working in big law for five decades to be able to afford it. Biggs attended law school in the 2020s and had hopes of being one of the many international human rights lawyers that her university produced.

However, after realising the cost of Lululemon, Kookai and Mecca Cosmetica, she realised that breaches of fundamental human rights were not that bad. Now, after spending decades in the trenches, Biggs’ mindset has changed. ‘I was okay defending the petrol, ammunition and textbook pirating firms, but something clicked after the recent case with the credit customers. They were denied credit limits above $10,000!

Can you imagine that?!’ Biggs now looks forward to working in customer advocacy at Australian Espresso, where her salary is expected to increase by $500,000 a year. ‘The best part is that I was planning to retire anyway! With the extra income, my wife and I can go to Monaco on our annual holiday instead of just Cannes’.

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- Satirical -

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