The Brief Edition 1 2026

Macquarie University Law Society magazine Edition 1, 2026 (Volume 32)

Before the Law

Contents

In Context

5

What’s New in the Law? • Mind the Gap: NSW’s Psychosocial safety overhaul and the liability most employers are missing • The Digital Workplace, Now Regulated

Najat Mal Sandy Elia

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Social Justice Corner Locked Out: Women’s Disenfranchisement Under the Taliban

Sarah Harris

8

Under the Radar The Mocktail Paradox

Akshitta Attri

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Devil’s Advocate Shared Crime, Shared Consequences: Holding Joint Criminals Accountable

Amal Jalimbetova & Tara Bush

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A Brief Conversation Starbound and Stateless

Alisha Geraghty

Features

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Waiting at the threshold Administrative Procedures and the Silent Doorkeepers of Justice

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The Lawyer at the Gate Ethics, Access, and Professional Power

Sujal Chadha

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Before the Courtroom Door Family Dispute Resolution as a Doorkeeper to Justice

Alisha Geraghty

20

It Takes a Village Protecting Children’s Participation in Family Court

Lucinda Wynn

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Pricing People Out Law and Housing Access

Dung Nghi (Yoong) Tran

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Out of Sight, Out of Rights Access to Justice and Offshore Processing

Tara Bush

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Domestic v International ‘Doorkeepers’ When Seeking International Legal Remedy

Samriddhi Kapoor

Isaac Andrew Minghui Aguilar

Out of Context

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A Brief Review Et tu, Brute? Julius Caesar and Civil Procedure

Emi Luthien Davies Barnier

29

Inadmissible Why Moral Activism? From a Filipino Australian Law Student

Isaac Andrew Minghui Aguilar

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De Minimis Law School: The Death of Pop Culture - 1.5 Stars

Caitlin Neal-Bartier

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Lawtime Poems Two Law Poems

Perpetual Boadu

Welcomes and Credits

Editor’s Welcome I read Metamorphosis by Kafka at a very young and facile age, and honestly, I didn’t care much about the book then. But now, in retrospect, I have come to realise how elite a book taste I had, to even get through 3 pages of that beautifully optimistic book (that’s horribly ironic). Ever since then, I’ve loved going through Kafka’s writings - and that’s when I stumbled upon this little tidbit called ‘The Doorkeeper’. Kafka has a way to bring morosity and bitterness to the most salient and commendable things - justice, for example. I’ll give credit where it’s due - he raises the rightest questions.

Kafka’s Before the Law is the most devastating description of legal power ever written. This is not because the law is violent, but because it is inaccessible, opaque, and endlessly deferred. There is a moment in the parable that lingers long after it has passed: a door that exists unopened, a person who waits, and the promise of an entry that never arrives. Nothing Edition 1 2026

big happens. Nothing changes. The cruelty is quieter.

The cruelty is in the waiting, but so is the safety. To be ‘before the law’ is to be told that there is a system of justice beyond the door, while placing doorkeepers before it so that it is conditional, rightfully so at times.

With that, this edition has really shaped out to be even better than I thought about when I was reading this short story, and the idea sparked in my mind, and I’m over the cloud about sharing it with the world.

To all my writers and subeditors who have answered my insanely weirdly timed emails and comments on their documents, I am eternally grateful to you. The whole is always greater than the sum of its parts, and with how seamlessly the myriad eccentric parts of this edition came together, I wholeheartedly agree. Without my subcommittee, the whole of this edition wouldn’t have been as beautiful or substantial as it is now. All the credit for making this edition so mesmerising to look at goes to Nathan, our graphic designer, still going strong with The Brief.

This is the first edition of the year, the first edition in my term as Editor-in-Chief, and it has had its hurdles, where I learned how the print business works - with humongous amounts of coffee and a sprinkle of motivation, of course - but I have come out of this a changed student. I had the time of my life working with my subcommittee for this edition, and I hope you have the same when reading it!

Krishi Patel Editor-in-Chief, The Brief Before the Law | 3

Welcomes and Credits

muls.org Edition 1, May 2026 (Volume 32)

President’s Welcome Dear readers, Welcome to the first edition of The Brief for 2026!

As a publication of the Macquarie University Law Society (MULS), The Brief provides students with the opportunity to critically engage with ideas shaping the legal sphere, offering a space to explore perspectives that extend beyond the classroom.

Now in its 51st year, MULS enters a new chapter, reaffirming its commitment to elevating student voice and fostering thoughtful discussion.

This edition centres on the theme ‘Before the Law’, inviting readers to consider the less visible dimension of legal systems, being the distance between achieving justice and the reality of accessing it. The articles in this edition draw on distinctly Kafkaesque themes of bureaucracy and procedural complexity, with students exploring whether the access to the law aligns with its presentation as an open and universal forum.

Students engage with academic scholarship, contemporary developments, personal reflection, as well as key cases and legislation to interrogate how the law operates in practice. In doing so, they move beyond abstract principles to examine how these systems are navigated in practice.

The Brief is grounded in its commitment to showcasing student voice. Through being entirely written and led by students, The Brief platforms the intellectual curiosity and critical perspectives held by our students. MULS is proud to support this publication as a space for students to engage with topical legal issues and contribute to broader conversations in the legal sphere.

EDITOR-IN-CHIEF Krishi Patel DESIGNER Nathan Li WRITERS

Sandy Elia, Najat Mal, Akshitta Attri,

Sarah Helen Harris, Amal Jalimbetowa, Tara Bush, Dung Nghi (Yoong) Tran, Sujal Chadha,

Lucinda Wynn, Alisha Geraghty, Samriddhi Kapoor, Isaac Andrew Minghui Aguilar, Emi Davies Barnier, Caitlin Neal-Bartier, Perpetual Nkatiaa Boadu SUB-EDITORS

Lucinda Wynn, Paneet Bains, Kashaf John,

Ella Carroll-Fitzpatrick, Nancy Tripodi, Rachel Justic, Amy Ngo, Maddy Storniolo SPECIAL THANKS TO

Kaylen La Brooy, Anya Maclure IMAGES

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.

Aditi Pal President, Macquarie University Law Society 4 | The Brief

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What’s New in the Law?

Mind the Gap NSW’s Psychosocial safety overhaul and the liability most employers are missing Najat Mal

F

or years, mental health in the workplace meant two things: employee assistance programs and wellness policies. It was rarely challenged, and rarely enough.

Under NSW’s overhauled workplace health and safety framework, it is now neither.

A fundamental restructuring of psychosocial risk management has arrived through the Work Health and Safety Regulation 2025 (NSW) (‘WHS Regulation’), and incoming section 26A of the Work Health and Safety Act 2011 (NSW) (‘WHS’).

The WHS Regulation 2025 commenced on 22 August 2025. It rewrote the rules on psychosocial risk management by requiring employers to apply the hierarchy of controls to psychosocial hazards.

The hierarchy establishes the necessity to attempt to eliminate the risk of the hazard first, followed by substitution, engineering, or redesign, before reaching for training or Employee Assistance Programs. Section 55C codifies the hierarchy requirement. Section 55D lists factors employers/Person Conducting a Business or Undertaking must actively consider and document when assessing psychosocial risks, including how often workers are exposed to the hazard, duration, severity, and interactions between hazards. Lack of documentation could lead to a provable breach.

The Industrial Relations and Other Legislation Amendment (Workplace Protections) Act 2025 (NSW) has inserted section 26A, which commences on 1 July 2026. The new section makes compliance with approved codes of practice a legal duty, rather than a ‘best practice’ guide.

The relevant code, the Managing Psychosocial Hazards at Work Code (2021), was previously optional before s26A. The code was written before the 2025 regulation existed and thus does not mention the hierarchy of controls or the 55C-55D requirements. After 1 July 2026, Edition 1 2026

employers must comply with the Code or prove an equivalent or higher standard. Following one without the other leaves a gap, and employers who believe that merely following the code is enough will be exposed.

Under the old framework, regulators needed to prove harm had occurred. The breach is now simply falling short of the Code; no actual incident is needed.

The shift towards this point is seen in the case SafeWork NSW v Western Sydney Local Health District, where the court recognised workplace investigations as psychosocial hazards. Western Sydney Local Health District had policies in place, but simply failed to follow them, and after 3 weeks of hearings, SafeWork withdrew the prosecution after expert evidence was excluded.

The court never determined what employers should do to avoid stress becoming a risk of psychosocial injury after the case was withdrawn. The 2025 reforms tackle that question directly, where failing to comply with the Code is now a breach, regardless of any technicalities.

SafeWork NSW has also expanded its powers with new six-monthly psychosocial reporting requirements and penalty notices in Schedule 18A. On paper, this is a win for workers, as their psychosocial safety now has a statutory benchmark. However, access to remedy is still gated by the employer’s documentation. Without an employer’s documentation, workers are left proving a failure that was never recorded. The November 2025 workers’ compensation reforms also narrowed what psychosocial injuries can be compensated, so as WHS protections grew, compensation access shrank. The July 2026 commencement of section 26A is a hard deadline, but the WHS Regulation 2025 has been in force since August 2025. For practitioners advising employers, the shift is critical: psychosocial risk is no longer an HR conversation; it is a liability one.

Before the Law | 5

What’s New in the Law?

The Digital Workplace, Now Regulated

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Sandy Elia

n today's Australian workplace, our hard work is no longer driven by human systems and interactions but by algorithms, monitors, and the digital world. With this new horizon comes many risks, and accordingly, the NSW Government has responded to these emerging issues by introducing the Work Health and Safety Amendment (Digital Work Systems) Bill 2025 (‘the Bill’).

The Bill was passed on the 12th of February 2026, ensuring that digital workplace systems defined as 'an algorithm, artificial intelligence, automation or online platform' do not pose a risk to workers' health and safety.

This legislation amends the Work Health and Safety Act 2011 (NSW) (‘WHS’) by imposing specific duties on employers regarding their use of digital workplace systems. The reforms cover the rapid expansion of artificial intelligence tools and duties, as well as automated decision-making processes. Importantly, this reform recognises that workplace harm is no longer limited to physical hazards but may also arise from stress, excessive workloads, and even diminished autonomy caused by digitally mediated work.

Furthermore, under the newly amended s 21A, the Bill requires a person conducting a business or undertaking (PCBU) to manage risks created by artificial intelligence, automation, and algorithms. This further grants Work Health and Safety entry permit holders access to inspect digital work systems suspected of contravening WHS laws. These inspectoral powers likely encompass technologies such as automated rostering tools, performance-tracking software, workallocation tools, and algorithmic scheduling systems.

Nevertheless, the removal of ‘software' from an earlier version of the Bill emphasises that email and other messaging services are exempt from these duties.

This raises the question of whether the amendments introduced by this Bill effectively provide employees with adequate protection against potential digital risks associated with the use of technological systems in the workplace. This concern is particularly relevant considering that digital messaging platforms often serve as conduits for workplace bullying and harassment.

6 | The Brief

This evolution in NSW law represents a crucial evolution in work health and safety legislation.

Traditionally, our Work Health and Safety Act focused on tangible risks such as machinery, unsafe work environments, and manual handling. However, with the rise of digital management, less visible yet more detrimental harms are introduced. For example, in modern workplaces, automated systems can assign unrealistic goals, monitor employees intrusively, or even embed biases into decision-making processes.

Thus, recent amendments effectively position NSW as a national leader in regulating digitally associated workplace risks.

With these new obligations, it is crucial to recognise that algorithms can be notoriously tricky to understand, and it may be difficult for employers to ensure full compliance with the law, particularly where digital systems are designed off-site. These systems may not be fully transparent to their users, as their underlying logic, data inputs, and decision-making processes are often inaccessible or commercially protected, limiting an employer’s ability to scrutinise how outcomes are generated or to identify potential risks. While these algorithmic decision-making systems operate as “black boxes”, the Bill emphasises the need for employers to document and demonstrate compliance efforts. Furthermore, assessing psychosocial harm is notably more complex than dealing with physical risk, especially as it is currently unclear how these duties will be applied and policed. It may add to the compliance headache for businesses trying to navigate a legal landscape increasingly spotlighting the risks of technology.

In light of the current circumstances, the introduction of this Bill is exceptionally well-timed.

It encourages policymakers and business leaders to see this reform as an opportunity to lead in shaping a safer, more responsible digital workplace, fostering confidence in future regulations. In this way, this Bill goes beyond addressing immediate risks. It redefines the scope of work health and safety in New South Wales for an increasingly digital workforce.

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Social Justice Corner

Locked Out Women’s Disenfranchisement Under the Taliban

T Sarah Harris

he United Nations drafted the Convention on the Elimination of All Forms of Discrimination Against Women (1979) (‘CEDAW’); to ensure equality before the law between men and women. This is not the reality for women in Afghanistan, and ever since the Taliban returned to power, its iron fist has been restricting justice for Afghan women, barring them from the same rights and freedoms as their male counterparts and other women globally.

Education and Employment Article 10 of the CEDAW mandates that parties provide men and women with equal access to primary, secondary and tertiary education. However, since December 2022, women have been strictly forbidden from all Afghan universities. As a result, it’s extremely difficult for Afghan women to secure employment in high-paying occupations, such as legal occupations, that require a high school diploma and/or a university degree. This has resulted in Afghan women being forced to live in domestic servitude. Furthermore, Article 11 of the CEDAW requires parties to provide equal employment opportunities to men and women. However, 80% of young Afghan women are barred from job opportunities and training. Corroborated by women’s limited access to education, Afghan women’s occupations are strictly limited to primary education and healthcare. In most cases, however, women are confined to being caregivers, homemakers, and reproducers.

Public and Private Life Afghan women are compelled to stay at home due to being strictly forbidden from going to parks, gyms, and public bathing houses. They are not allowed to let their voices be heard outside the house, including singing and reciting poetry and passages in the Quran, thus barring them from public life. Regarding private life, the Taliban enacted a new penal code in 2026 that permits husbands to commit domestic violence offences against their wives and children, as long as there are no broken Edition 1 2026

bones or open wounds. Under Taliban rule, Afghan women are not only barred from public life, but from a peaceful private life, too.

Resistance In response to the oppressive penal codes, there has been resistance from Afghan women like ‘Sara’, who illustrates that she and other women have attended peaceful protests on Afghan streets to demonstrate against the Taliban’s oppressive regime. Unfortunately, these protests have resulted in women being further subjugated through violent gunfire, beatings and by officials forcing them to pledge that they will never protest again. Sara’s story highlights that even though resistance is present within Afghanistan, the Taliban has refused to meet the needs of Afghan women.

Cumulative Effects While men are enfranchised within the Afghan legal system, the Taliban’s institutionalised and systematic oppression of Afghan women has resulted in them being subjugated to ‘gender apartheid’ and, therefore, disenfranchised from the legal system. They have been denied possession of the same economic, political and social rights and freedoms that the CEDAW aims to achieve. The tragic result is that Afghan women have been removed from private and public life, becoming prisoners within the oppressive four walls of their own homes.

Before the Law | 7

Under The Radar

The Mocktail Paradox Akshitta Attri

T

he rise of alcohol-free liquor products has been widely framed as a positive shift, with some using it as an inclusive alternative, including those who choose not to drink due to health, religious or personal reasons. However, there is a growing question as to whether these products may also operate as a subtle gateway to alcoholic consumption, particularly in a regulatory environment that has yet to catch up fully.

In Victoria, zero-alcohol products can be sold and advertised without the same safeguards that apply to alcoholic beverages under the Liquor Control Reform Act 1998 (VIC) s 3. This means fewer restrictions on placement, promotion and messaging, which are elements that are tightly regulated in the alcohol industry due to well-established public health concerns. Meanwhile, in NSW, low-alcohol products are frequently marketed not as substitutes, but as “additional” or “occasional” drinks. This framing is significant because, rather than encouraging reduction, it may instead promote increased overall consumption.

This raises a broader concern about how these products shape perceptions of drinking. By mimicking the branding, taste, and rituals associated with alcohol, these beverages may reinforce the social centrality of alcohol rather than challenge it. This includes gin alternatives, alcoholfree beers, and ready-to-drink mocktails. For younger audiences, in particular, this could blur the distinction between alcoholic and non-alcoholic consumptions, normalising the aesthetics and behaviours of drinking before legal or responsible consumption begins.

There is also a question of vulnerability. For individuals with a history of substance misuse or

8 | The Brief

those attempting to reduce their alcohol intake, these products may function differently. While some may find them helpful as a harm-minimisation tool, others may experience them as a trigger by replicating not just the taste, but the habit and context of drinking.

The regulatory gap becomes more pronounced here as products that ‘look’ and ‘feel’ like alcohol are not necessarily treated as such under the law.

What makes this issue particularly compelling is its social dimension. Drinking, especially in Australian culture, is often less about the substance itself and more about participation. The presence of alcoholfree alternatives is appealing because it can appear to offer a solution, allowing individuals to ‘fit in’ without consuming alcohol. Yet this raises a key question: are we expanding inclusivity, or simply reinforcing a system where participation still revolves around drinking culture?

This is something I have observed personally. As someone who does not drink, I often turn to nonalcoholic beverages in social settings to avoid standing out. While these products provide a convenient way to navigate social expectations, they also highlight how deeply embedded alcohol is in social interaction. The expectation is not just to be present, but to be seen holding a drink that resembles everyone else’s.

Ultimately, the rise of alcohol-free liquor presents a nuanced challenge. While these products undoubtedly have benefits, their marketing, regulation, and social impact deserve closer scrutiny. If they are to serve as genuine alternatives, rather than extensions of drinking culture, policymakers may need to reconsider how they are positioned, for whom they are positioned, and for whom they are truly designed.

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Devil’s Advocate

Shared Crime, Shared Consequences Holding Joint Criminals Accountable

T

Amal Jalimbetova he Extended Joint Criminal Enterprise (‘EJCE’) doctrine embodies a fundamentally problematic approach to criminal liability, which undermines both the objectives of s 93T of the Crimes Act 1900 (NSW) and the foundational principles of criminal responsibility itself. The statutory criminalisation of participation in criminal groups was deliberately constructed to reflect distinct levels of fault, recognising that disproportionate outcomes must be avoided and that individuals directing criminal enterprises bear greater culpability. In contrast, the ‘EJCE’ doctrine conflates participants by attributing liability on the basis of mere ‘foresight’. Individuals face a significant risk of unjust convictions for crimes neither intended nor authorised, imposing derivative liability without deliberate contribution and beyond any principled conception of personal fault. The abolition of the doctrine of ‘EJCE’ is a requisite to restoring coherence and proportionality to a criminal justice framework in which a ‘close correlation between moral culpability and legal responsibility’ remains a paramount principle of criminal liability.

The doctrine’s insurmountable difficulties are elucidated by its emergence from a deficient precedential foundation, one that remains unremedied by any Australian Court. The ‘EJCE’ doctrine is founded on a wrongful interpretation of Chan Wing-Siu v R and its interaction with prior Australian authority. The erroneous interpretation was subsequently adopted in R v Hyde and impaired future judgements within both jurisdictions. This interpretation unfastened the decision from the authority upon which it was based, producing a self-referential doctrine disconnected from any persuasive justificatory foundation. The doctrine was formally adopted in Australia through McAuliffe v The Queen (1995). In R v Jogee (2016), the UK Supreme Edition 1 2026

Court recognised these deficiencies and abolished the ‘EJCE’s English counterpart due to its anomalous departure from the common law requirement of intention. The Australian High Court in Miller v The Queen (2016), when presented with nearly identical arguments, declined to follow the UK Supreme Court’s decision. In doing so, the High Court chose to cite debatable demonstrations of ‘EJCE’ in 19th-century authorities and overlooked fifty years of intervening Australian common law, leaving a doctrinally deficient principle unremedied. Beyond its flawed origins, the doctrine fails equally when examined on its own theoretical terms.

The doctrine’s theoretical development is best illustrated in Clayton v The Queen, where the court held that “...the wrong lies in the mutual embarkation on a crime, and the participants are liable for what they foresee as the possible results of that venture”. The intent behind this principle later retained by Miller v The Queen, is evident; it is to serve as a harsh deterrent to participation in joint criminal enterprises. The principle, however, only affords a perfunctory consideration of criminal culpability when it extends beyond the shared common purpose. A common purpose cannot logically imply intent or authorisation for crimes extending beyond the discussed scope, and justly hold those individuals liable. In particular, circumstances which were neither anticipated nor agreed to. Despite this, that is what the doctrine risks enforcing. Whilst R v Nguyen preceded Clayton, the application of the ‘EJCE’ and its practical operation closely resembles the version of the doctrine articulated in Clayton. In R v Nguyen, the secondary offender, indicted for murder and attempted murder, pleaded guilty to manslaughter on the basis of ‘EJCE’. This liability arose from the primary offender’s independent decision to shoot the victim. The primary offender was ultimately acquitted of all charges, whilst Before the Law | 9

Devil’s Advocate the secondary offender was sentenced for manslaughter at the middle range of seriousness. The court could not be satisfied beyond a reasonable doubt that the accused was even aware that the primary offender was armed.

The common purpose extended only to a minor assault, yet despite limited planning and absent foresight of the possibility of the true extent of the crime, liability followed automatically. This issue is illustrated in paradoxical situations where a perpetrator who has foresight but requires proof of intention may escape conviction, yet a secondary offender who possessed identical foresight is found guilty. The High Court’s decision in Miller v The Queen to retain a doctrine whose fault threshold remains substantively unchanged ensures that such paradoxical situations remain a live possibility. A doctrine capable of producing such an outcome cannot be reconciled with any principled conception of criminal responsibility.

The EJCE doctrine is not merely deficient; it is also fundamentally incompatible with the principles upon which criminal liability rests. It convicts without contribution, punishes without intention, and disregards the very distinctions of culpability that s 93T sought to enforce. The abolition would not act as a concession of criminality, but a restoration of principle in which moral culpability and legal consequence are justly intertwined.

T

Tara Bush hesis: The extended joint criminal enterprise doctrine in New South Wales should be abolished as it unfairly expands criminal liability and risks convicting individuals beyond their actual level of blameworthiness.

The fundamental premise of extended joint criminal enterprise (‘EJCE’) is that liability is attributed to individuals who have agency, share a common purpose in participating in a criminal enterprise, and proceed to commit an offence despite foreseeing the commission of an additional crime. This doctrine remains essential to ensuring accountability in group criminality as it encapsulates those who enable, encourage, or fail to prevent harm, thereby reinforcing deterrence and public confidence in the justice system.

Complicity doctrines such as EJCE are imperative to ensuring justice for those who commit offences at the encouragement of an auctor intellectualis who otherwise may avoid legal responsibility, as well as 10 | The Brief

those who omit to dissuade or prevent another crime from occurring. The death of three-year-old Timothy occurred after a series of assaults were inflicted on the boy by the adults who cared for him. The Court found that the mens rea can extend to one partner of the EJCE where they stayed involved in the plan, despite not being the individual who administered the final, fatal assault.

Administration of justice hinges on public confidence in the judiciary and democracy; thus, the implementation of the doctrine of EJCE provided a just verdict for Timothy. Similarly, in the United Kingdom, Ben Kinsella was stabbed to death by three men, with his father being emphatic in his conviction. He purports that EJCE should remain in the common law to deliver justice to families of victims and enforce penalties against participants of group violence.

Abolishing EJCE would result in undermining the importance of deterrence and the safety of the public as it would limit criminal liability. Consequently, it would subvert the objectives of section 93T of the Crimes Act 1900 (NSW), that is, to ensure the safety and wellbeing of the community, particularly where the threat is greater than most crimes committed by individuals acting alone. Deterrence has been deemed to be ‘the most important factor’ in some cases, especially where the crimes are ‘well-coordinated, or endemic in a community. Punishments that are delayed and limited are largely ineffective as deterrents. Deterrence imparts the ‘seriousness’ of the contravention of law, and public condemnation evokes shame and humiliation.

In Miller, the Court explicitly rejected the UK’s approach in R v Jogee, which required proof of intention to assist or encourage the commission of the incidental offence. Rather, it upheld the history and precedent of foreseeability and contemplation in Australian law. Additionally, Miller distinguished between other accessorial liability doctrines, establishing sui generis liability, and the principle that a secondary party’s presence, actions, or endorsement reinforces the main offender’s conduct. The foresight requisite is narrow in that it must be a real possibility, not ‘fanciful’ or a ‘negligible’ risk. Miller concludes that the doctrine is justified on the basis that it is firmly grounded in established Australian authority, provides a coherent and morally defensible framework for attributing liability in group criminal activity, addresses genuine evidentiary challenges, and has not been demonstrated to cause injustice. Any significant change, the Court maintains, is a matter for legislative action rather than judicial reform.

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A Brief Conversation

Turn lines to white

Starbound and Stateless Alisha Geraghty Introduction The rapid expansion of outer space as both a commercial and military domain has fundamentally reshaped the legal landscape. Once considered a distant frontier of exploration, space is now a critical infrastructure environment underpinning global communications, navigation, and defence capabilities. As reliance on space-based systems deepens, so too does the urgency of understanding how international law regulates activities beyond Earth.

In this interview, Alisha Geraghty speaks with a leading space law expert about the application of international humanitarian law (IHL) to outer space, the challenges posed by emerging technologies, and the future of legal regulation in this rapidly evolving domain.

Dr Joel Lisk is a Lecturer in Space Law at the Flinders Law School in South Australia. Dr Lisk’s academic work focuses on the laws – international and domestic – that apply to the space domain with an emphasis on regulatory design and novel activities. Dr Lisk is a legal practitioner, providing advice on a range of matters including space operations.

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What drew you to this field, and why is it Alisha becoming increasingly important today?

As a kid, I had a fascination with outer Dr Lisk space, whether it was the science or science fiction side of things. Ultimately, I gave up on pursuing spaces or a career when I discovered physics and found that the maths and the complex science weren't really for me.

At that point, I decided that I probably couldn't have a career in the space sector, and I looked to law instead.

While I was an I was presented with an opportunity to work on an academic project on space policy. This was a gateway, and the work and involvement snowballed from there. After finishing my law degree, I started a PhD on Australia’s approach to space law and started working in a commercial law firm as well. Over time – and somewhat surprisingly – the two areas spoke to each other, and as I did more academic work, I began to start doing commercial legal work in this field as well.

Space law is an incredibly important field because it's effectively about how we approach a new, inspiring and remote domain from a behavioural perspective.

Effectively, space law is asking all of humanity what Before the Law | 11

A Brief Conversation the basic conditions are for activities in the space domain. This is becoming increasingly important because of the rapid commercialisation of the space domain. Outer space is commonly characterised as competitive, congested and contested - commercial and strategic interests must work together – and this is why law is becoming increasingly important.

Many assume outer space exists as a legal vacuum. From your perspective, is that accurate, or does international law already provide a sufficient framework?

This is a common perception! You commonly see headlines describing outer space as the ‘wild west’ or a lawless frontier. This couldn’t be further from the truth. Law has extended to outer space from the moment humanity physically reached orbit, much the same way that laws apply to human activities in areas beyond national jurisdiction.

There are five treaties that specifically contemplate space activities: the 1967 Outer Space Treaty, the 1968 Rescue and Return Agreement, the 1972 Liability Convention, the 1975 Registration Convention and the 1979 Moon Agreement. The first of these treaties, the Outer Space Treaty, is based on a United Nations General Assembly Resolution of principles that was adopted in 1963. The Outer Space Treaty sets the base work for the legal principles that apply in outer space, confirming that no State can claim sovereignty over outer space, that outer space should be free for all to use and explore, and other foundational norms. Some scholars argue that the Outer Space Treaty (and the 1963 declaration of principles) may stand as customary law.

Importantly, Article III of the Outer Space Treaty confirms that States remain subject to all other international law, including the United Nations Charter, apply to space activities.

Beyond international law, there are also vast bodies of national laws that apply to space activities. As a consequence of international law, is that States will generally seek to exercise both territorial and national jurisdiction over activities and regulate space activities undertaken from their territory, as well as activities undertaken by their nationals wherever they may be.

This leaves us with plenty of law to work with.

One of the core principles of IHL is distinction.

How does this principle operate in a domain where most space infrastructure is dual-use?

The concept of distinction will apply to outer spacebased assets in much the same way as it operates 12 | The Brief

in terrestrial contexts. States must take steps to distinguish between civil and military assets. As you have noted, the complexity is the dual-use nature of space-based assets. For example, the United States’ Global Position System network (GPS) plays an important role in guiding munitions and deployments on the ground, but it is also essential to civilian navigation across the world. Similarly, the SpaceXoperated Starlink system of satellites is used by hundreds of thousands of individuals across the world, providing internet services to remote and regional locations. This same system has been used by force in the Ukraine-Russia conflict. These are the assets that are the hardest for the distinction assessment, but practice has shown that forces have focused on the services themselves as opposed to the orbital assets, but this goes to proportionality.

There are, of course, easier examples – there are dozens (if not hundreds) of military satellites.

These would be clearly targetable if being used in a conflict situation.

How does the principle of proportionality apply in space, particularly given the long-term risks associated with orbital debris?

Proportionality is a more complex concept. There are consequences for all actions that take place in outer space, and these actions can have long-term implications for space activities. There are various ways of targeting space-based assets, including direct kinetic destruction (missiles, etc), electronic warfare (blocking, jamming, spoofing, etc) and cyber-attacks (hacking the satellite). There are also emerging technologies that would enable other forms of direct physical intervention, such as proximity operations (where one satellite approaches another and interferes with it).

When it comes to proportionality, direct kinetic destruction of a space-based asset is likely to be disproportionate. The physical destruction of a satellite creates significant debris, which can negatively impact other operations for decades to come. More typically, states have used electronic warfare to impact spacebased assets – this might be blocking or jamming radio communications on the ground, effectively preventing a system from operating in a conflict zone. This is somewhat common. Spoofing is another alternative and is particularly common with navigation signals and effectively involves confusing an end user’s receivers with incorrect information being sent on the same frequency as a satellite system. This happens Edition 1 2026

quite frequently with GPS in areas where there are conflicts. These electronic warfare means of targeting space systems means that the system itself is not destroyed, but combatants within a particular region are deprived of the benefit.

What constitutes an “attack” in outer space, and how do emerging counter-space technologies challenge traditional legal categories of warfare?

This is yet to be resolved.

Of course, we can have regard to the full body of existing IHL to argue whether there has been an armed attack. With space-based assets, there are complicating factors, particularly if an action is electronic warfare.

Deprivation of benefits from space-based systems is normally used in combination with other kinetic acts, which remove much of the uncertainty (i.e., we are looking at multiple simultaneous actions). Electronic warfare is often a temporary action, which also complicates the assessment, as the harm to a spacebased asset may only be temporary and transient.

Some academic works have tried to answer the question of when an attack will occur, or at least identify factors to assess. They largely rely on existing IHL and refer to the impact of an action, the damage caused and the temporal impacts.

There is currently no dedicated treaty governing armed conflict in space. Do you see this as a critical gap in international law, and how realistic is the prospect of developing a binding international treaty on space warfare?

Yes, there are no express treaties that govern conflict in space. I do not see this as problematic. International law exists that contemplates space activities as well as other activities more generally; it is simply a matter of applying the existing law to the space context.

I don't believe it would be possible for a new treaty relating to space activities to be agreed. At present, there are growing ideological differences between large groups of States, which would make the negotiation of a specific treaty on military activities or warfare in outer space near impossible to agree.

Looking ahead, how do you see space law evolving over the next decade?

There are significant ideological differences emerging between the major international powers.

This simply means that we are unlikely to see any new treaties in the absence of a significant change in approach.

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With space activities now being undertaken predominantly by private enterprise, I would expect these entities to have a stronger role in shaping the laws, policies and practices that apply to their operations, particularly when States are acting as customers.

I think approaches such as the Artemis Accords may be the way forward: non-binding political arrangements that shape interpretations and practices of States and commercial entities. The United Nations Committee on the Peaceful Uses of Outer Space (UNCOPUOS) is still undertaking work to develop principles and guidelines. While not binding, these will continue to be influential, particularly as the UNCOPUOS is required to make decisions through a consensus approach. This means we end up with materials that everyone has agreed to.

What has been the most intellectually challenging (or rewarding) aspect of working in this area?

The application of law, concepts and ideas to a different operating domain. When you then add on top that the technology is rapidly changing, this is just a really interesting sector to work in.

Finally, do you believe the law is keeping pace with technological developments in space, or are we falling behind?

Law in this area will never keep up with the rate of technology development. The key here is to develop legal approaches and interpretations that are technology-neutral and principles-based to ensure they can evolve alongside the technologies being used in the space sector.

The practical reality is that space activities, principally undertaken by commercial entities, will stretch and push the envelope of existing laws, and States will (as they always do) need to develop approaches to these activities that meet their own political and strategic needs.

CONCLUSION As space becomes increasingly central to both civilian life and military capability, the legal questions surrounding its use grow more complex and urgent. While existing frameworks provide a foundation, their application in the space environment remains uncertain and contested. The challenge for legal practitioners is not simply to apply established rules, but to interpret and adapt them in a way that preserves their humanitarian purpose in a radically new domain.

Before the Law | 13

Feature

Waiting at the threshold Administrative Procedures and the Silent Doorkeepers of Justice Samriddhi Kapoor

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n Before the Law, a man waits his entire life for access to the law, only to realise that entry is possible but never granted. The tragedy of his life is not that law is closed to him, but that it is perpetually deferred.

The quiet cruelty offers a powerful lens through which we examine procedural delay in the Australian legal system.

The right to receive timely justice is not a new concern. It can be traced back to the Magna Carta, which declared that justice must not be “sold, denied or delayed”. Yet despite this foundational principle, delay remains a persistent feature of contemporary litigation. In Australia, systemic delay has been identified as just as significant a barrier to justice as cost and procedural complexity form the “unholy trinity ”.

Architecture of Delay At first glance, delay often appears justified with appeals, adjournments and procedural safeguards viewed as essential to ensure fairness, accuracy and legitimacy in judicial outcomes. Within institutions such as the Federal Court of Australia, appellate structures are designed to correct error and uphold the rule of law. However, each procedural lawyer introduces extended time. What appears reasonable in isolation accumulates into prolonged litigation, often extending years.

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This accumulation restricts access to justice in profound ways. Delays are not merely an administrative inconvenience but also carry real consequences: financial strain intensifies as legal costs mount over time; emotional fatigue sets in as disputes linger unresolved; evidence becomes harder to obtain, and memories fade. In extreme cases, delay may amount to a denial of justice altogether, not because courts refuse to hear claims but because the process becomes unsustainable, making delay a kind of denial.

Recent developments highlight the persistence of this issue. Court backlogs, exacerbated by the COVID-19 pandemic, have pushed many matters beyond national benchmarks, forcing parties to endure prolonged uncertainty. Such delays affect not only litigants, but also victims, witnesses and defendants, extending uncertainty and undermining the integrity of the justice process.

Inequality and Endurance Those with sufficient resources can endure extended proceedings, even leverage them strategically. For others, delay becomes a form of pressure. Many litigants take no action at all due to cost, stress, or the complexity of the legal system. Others fall within the “missing middle” due to being unable to afford private representation but ineligible for legal aid. .

This group is often forced to self-represent, which can lead to longer trials and poorer outcomes or Edition 1 2026

litigants being forced to abandon claims altogether.

This forms a filter within the justice system, where justice is not outright denied but practically exclusive to those who can afford the wait.

This challenges the idealised notion that justice systems are equally accessible. Hazel Genn argues that the justice institutions are a public good, essential to a well-ordered society and functioning economy. However, the value of justice depends on accessibility and not just theory.

Procedure as Power Court procedures are often treated as secondary to substantive law, yet they play a decisive role in shaping access to justice. International frameworks such as the International Covenant on Civil and Political Rights emphasise that a fair hearing requires not only impartiality, but also timeliness.

Delays that undermine these principles risk eroding both individual rights and public confidence in the legal system.

More broadly, access to justice depends on the ability to meaningfully engage with legal processes.

It is not enough for rights to merely exist — what matters is whether they can be enforced without prohibitive barriers. As justice must be both accessible and capable of producing outcomes that are both socially and individually fair.

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A System at Risk An effective justice system must be accessible “in all its parts,” or risk losing its relevance to the community it serves. This raises the question of whether delay is an unavoidable byproduct of ensuring justice, or has it become an embedded feature that reshapes who can access it? While some delay is inevitable in complex systems, its disproportionate impact suggests that it is no longer neutral.

Reform efforts have focused on improving case management, increasing funding for legal assistance, and leveraging technology to streamline processes. These measures aim to reduce delay without compromising fairness, reflecting a growing recognition that timeliness is not merely administrative but also central to justice itself.

The Illusion of Access Procedural delay preserves the formal promise of justice while deferring its delivery. Each adjournment, each appeal, each procedural step may be justified.

Yet together, they create a structure in which time becomes a barrier.

When justice is endlessly postponed, the distinction between availability and accessibility begins to collapse. The law remains, but its promise grows distant and, like the man before the gate, many are left waiting, never denied access but often never quite able to reach it.

Before the Law | 15

Feature

The Lawyer at the Gate Ethics, Access, and Professional Power Sujal Chadha

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aw is a public service vital to citizens, but most depend on lawyers to access it. It is ironic that a profession claiming to support justice and confidentiality controls access to legal services. In NSW, this is codified in law. The Legal Profession Uniform Law (NSW) (‘Uniform Law’) aims to promote justice, improve public access, uphold ethics, protect clients and the public, and help clients make informed decisions about legal services and costs.

The Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (‘Solicitors’ Conduct Rules’) aim to define solicitors’ expected conduct, guide their ethical behaviour, and emphasise that their primary duty is to the court and justice.

Lawyers are often seen as barriers to justice, but in reality serve as gatekeepers, crucial for protecting rights

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and ensuring procedural justice. An accessible system still requires qualified intermediaries; without them, it would be less reliable, accountable, and trustworthy.

The law on access to justice mandates professional control and is governed by Part 2.1 of the Uniform Law, which states that legal work must be performed by the proper person; unqualified individuals or entities must not undertake legal work.

Australia’s admission rules require lawyers to have appropriate academic qualifications, practical legal training, and fitness and propriety before admission, after which they are officers of the Supreme Court.

Gatekeeping ensures the profession’s integrity and community respect. The law rejects self-declaration as a basis for competence; conditions are imposed at each stage, including being a Supreme Court officer and holding a current practising certificate upon admission.

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This practising certificate is issued by state and territory law societies and Legal Professions Admissions Committees, provided the lawyer meets statutory requirements, including ‘fitness to practice’ and, if applicable, professional indemnity insurance, as new solicitors must also complete supervised legal practice.

However, gatekeeping ensures that those speaking with authority on the law are properly educated, accountable, and insured.

Solicitors play a gatekeeping role in protecting the administration of fair justice as they are bound

by Conduct Rules; they must act in clients’ best interests, provide competent and timely service, stay independent, give understandable advice, and ensure justice is not prejudiced. These duties take precedence over or equal to their court duties and must be followed by all solicitors. The High Court of Australia in Clyne v New South Wales Bar Association (‘Clyne’) emphasises the importance of legal practice, describing it as both a ‘public calling’ and a ‘private business.’ The court highlights the importance of ethical conduct in upholding justice and effective market regulation, asserting that guiding clients through the legal system is an ethical responsibility.

There is also the issue of confidentiality, which Rule 9 of the Conduct Rules addresses only in specific circumstances. Likewise, under the Evidence Act 1995 (Cth), issues of confidential privileged communications and documents are only covered in limited cases. The law of legal professional privilege safeguards open communication with lawyers, allowing early advice and participation in legal proceedings. It has evolved from evidence to substantive justice in Giannarelli v Wraith, the High Court’s leading case. While limiting lawyers’ control over legal advice in other services might seem beneficial, it hampers their monopolistic control, which is crucial for trust in the legal system.The case shows that managing client money in accordance with the Uniform Law aligns with legal trust money rules. Law practices must handle trust funds responsibly: deposit in trust accounts, safeguard client property, and disburse only with authority. These rules protect clients’ finances and uphold fiduciary duties, emphasising ethics beyond basic accounting.

Gatekeeping can sometimes backfire on the legal profession, becoming exclusionary due to costs. The Uniform Law addresses these issues by requiring full disclosure of costs and estimated expenses, helping consumers make informed choices. It also requires full

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disclosure of settlement costs in disputed cases and allows clients to request an itemised bill of costs and specify when bills are issued. Additionally, it limits the recovery of interest, except in certain cases. The law further states that all legal expenses must be fair and reasonable, and that lawyers should avoid conduct that leads to high legal costs. The law allows a practice to collect reasonable security for its costs, but not beyond that. It acknowledges that professionals might misuse their authority, so safeguards are built into the legal system to prevent abuse that could undermine justice. The case of Law Society of New South Wales v Foreman (‘Foreman’) demonstrates that charging clients excessively constitutes professional misconduct.

All conflict rules are designed to prevent conflicts with former clients, current clients, or personal interests. To maintain proper loyalty, independence, and trust, solicitors are restricted in the areas where they can effectively offer advice and represent clients. The law’s disciplinary system also depends on public standards of unacceptable conduct. While investigations and reports from third parties are allowed, the final decisionmakers at regulatory bodies have the power to enforce disciplinary measures if those standards are breached.

The structure of these regulations highlights the vital gatekeeper role that solicitors hold in relation to their clients, along with the considerable responsibility this role involves. The courts’ approach in Clyne and Foreman towards potential misuse of this influential position is a key element in upholding legal integrity: specifically, evaluating whether the solicitor’s actions might undermine justice or lead to undue overcharging.

Lawyers play a pivotal role in the justice system, either facilitating or obstructing justice. Their gatekeeping responsibilities are understandable, but the manner in which they fulfil these duties is vital.

The Uniform Law and Conduct Rules provide guiding principles, emphasising that lawyers are essential to ensuring access to justice and must exercise their authority responsibly, in line with these core values.

These issues are exemplified in a recent appeal, D’Orta-Ekenaike v Victoria Legal Aid, which addresses the extent of advocates’ immunity and the judicial integrity and finality it seeks to protect. On the bright side, a lawyer no longer has to stand outside pushing the gate open for people to enter, as it is now left wide open and unlocked.

Before the Law | 17

Feature

Before the Courtroom Door

Family Dispute Resolution as a Doorkeeper to Justice

K Alisha Geraghty

afka and the Quiet Power of Procedure Franz Kafka’s Before the Law tells the story of a man who spends his life waiting at the threshold of the law.

He is not refused entry. The door remains open. Yet he is never permitted to pass through. The cruelty of the story lies not in denial, but in deferral — in the quiet, procedural waiting that renders access to justice perpetually out of reach.

Modern legal systems rarely deny access so explicitly. Instead, they rely on procedural thresholds — requirements that must be satisfied before a person can even be heard. In Australian family law, one such threshold is mandatory Family Dispute Resolution (FDR). Before a party can commence parenting proceedings, they must obtain a certificate confirming that they have made a “genuine effort” to resolve their dispute. This requirement, though well-intentioned, raises an important question: does it facilitate access to justice, or does it operate as a modern “doorkeeper”, leaving some individuals indefinitely before the law?

The Legal Architecture of the “Door” Under s 60I of the Family Law Act 1975 (Cth), parties seeking parenting orders must participate in FDR and obtain a certificate from an accredited practitioner before a court can hear their application. Since its full implementation in 2008, this requirement has become a jurisdictional gateway to litigation. Unless one of the statutory exceptions applies — such as urgency or risks of family violence — the absence of a certificate prevents the court from entertaining the matter at all.

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This framework reflects a broader policy shift in civil justice: litigation is to be a last resort. Pre-action procedures across Australian jurisdictions emphasise early dispute resolution, cost efficiency, and the narrowing of issues before judicial intervention. In the family law context, this approach is not without merit. Litigation is often emotionally taxing, financially burdensome, and ill-suited to preserving ongoing parental relationships.

Empirical research suggests that parents who engage in dispute resolution early in the separation process are more likely to achieve cooperative outcomes.

Yet embedded within this framework is a critical question: who decides when a dispute is sufficiently unresolved to justify access to the court?

“Genuine Effort”: An Undefined Threshold At the centre of this system lies the requirement that parties make a “genuine effort” during FDR. Despite its significance, the term is not defined in the legislation, nor has it been meaningfully clarified by judicial interpretation.

Instead, its meaning is shaped by broad and inherently subjective formulations. The AttorneyGeneral’s Department suggests that “genuine effort” involves a “real, honest exertion” directed towards resolving the dispute. Others, such as Altobelli, frame it as good faith participation. Yet these explanations offer limited guidance. What constitutes a “real” or “honest” effort is itself open to interpretation.

Scholars have attempted to bring greater clarity to the concept. Hilary Astor proposes a behavioural framework requiring attendance, willingness to consider options, willingness to propose solutions, and a focus on the best interests of the child. While this approach provides a more structured basis for assessment, it does not eliminate Edition 1 2026

the need for evaluative judgment. Determining whether a party has been sufficiently “willing” or appropriately engaged remains inherently contextual.

The result is a threshold that is both mandatory and indeterminate — a legal requirement whose content shifts depending on who is applying it.

The Rise of the Practitioner as Gatekeeper This indeterminacy places significant power in the hands of FDR practitioners. Traditionally, mediators have been understood as neutral facilitators, assisting parties to reach their own agreements. However, the requirement to issue certificates assessing “genuine effort” fundamentally alters this role.

Practitioners are now tasked not only with facilitating dialogue, but with evaluating participation and determining whether parties may access the court.

In doing so, they assume a dual function: a mediator and a gatekeeper.

This shift has important implications. Mediation is premised on voluntariness and party autonomy,yet the certification process introduces an element of authority and potential coercion. Parties may feel compelled to behave in ways that align with perceived expectations of reasonableness or cooperation, rather than engaging authentically with the process.

Moreover, the certificate itself partially erodes the confidentiality of mediation. By signalling to the court how parties conducted themselves during FDR, it introduces an evaluative record into what is otherwise intended to be a private process. In this way, the practitioner’s role extends beyond facilitation to one that actively shapes access to justice.

Structural Inequality and Power Imbalances The operation of FDR as a gatekeeping mechanism is particularly problematic in the context of structural inequality. The process assumes that parties are able to negotiate on relatively equal footing. In practice, however, family disputes frequently involve significant imbalances of power — whether economic, social, or psychological.

Where such imbalances exist, compulsory mediation may produce not only inequitable outcomes, but inequitable processes. Parties with greater confidence or resources may dominate negotiations, while more vulnerable individuals may struggle to assert their interests. In such circumstances, the requirement to demonstrate a “genuine effort” may disproportionately disadvantage those least able to perform it.

These concerns are especially acute in cases involving family violence. Although the legislation provides Edition 1 2026

exceptions where there is a risk of abuse, identifying such risks is not always straightforward. Screening mechanisms exist, but their effectiveness is limited by the complexity of detecting coercion and control.

Even where violence is recognised, mediation may remain inappropriate. The private and confidential nature of FDR can enable subtle forms of intimidation while placing a significant burden on victims to engage in negotiation before accessing formal legal protection. In this context, the requirement to participate in FDR may prioritise procedural compliance over substantive safety.

Cultural Barriers and Access to Justice Cultural diversity further complicates the operation of FDR as a gateway to justice. Individuals from culturally and linguistically diverse (CALD) backgrounds are underrepresented among users of family dispute resolution services, and those who do engage often encounter significant barriers, including language difficulties and unfamiliarity with legal processes.

Importantly, mediation itself is not culturally neutral.

It reflects Western assumptions about communication, autonomy, and dispute resolution. Behaviours that diverge from these norms may be misinterpreted or undervalued, particularly in the absence of culturally competent practice.

Recent reform efforts, including the proposed Family Law (Family Dispute Resolution) Amendment Bill 2024, seek to address these issues by facilitating the involvement of interpreters, cultural advisors, and community support services. While these measures represent a positive step, they remain discretionary and do not fundamentally alter the underlying structure of the “genuine effort” requirement.

Without deeper reform, the system risks privileging those who can navigate its cultural and procedural expectations, while excluding those who cannot.

Conclusion: Who Gets Through the Door?

Kafka’s parable reminds us that the law’s greatest failure is not always in its outcomes, but in its inaccessibility.

The man at the gate is not denied justice — he is simply never permitted to reach it.

In Australian family law, mandatory dispute resolution may serve an important purpose. But when access to the courts is contingent on satisfying an ambiguous and discretionary requirement, the risk is that some individuals will remain perpetually at the threshold.

If justice lies beyond the courtroom door, the law must ensure that the path to that door is not itself an insurmountable barrier.

Before the Law | 19

Feature

It Takes a Village

Protecting Children’s Participation in Family Court Lucinda Wynn

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acilitating children’s participation in family disputes is crucial to acknowledge their personal opinions; the adversarial nature of litigation inherently risks exacerbating trauma and stress through direct participation. It is widely recognised that children are vulnerable participants susceptible to the distressing nature of court processes and materials.

Although the legal system provides an avenue for children’s participation, the extent of involvement is necessarily constrained by the paramount obligation to protect children’s safety. One primary method to facilitate children’s right to participate is through the appointment of an independent children’s lawyer (‘ICL’) who advocates for a child’s best interests.

Emerging practice also reveals potential for judges to proactively communicate with children, recognising the profound implications of court decision-making on their lives. Ultimately, the responsibility to protect children’s safety and rights is not entirely borne by ICLs and judicial officers. All participants in family law proceedings can contribute to fostering an environment that protects children’s safety and right to participation.

Legislative Right to Participation A child’s right to participate in proceedings is enshrined in Article 12 of the United Nations Convention on the Rights of the Child, establishing obligations to protect their right to share their opinions in proceedings and have 20 | The Brief

these views taken into account in decision-making. The Family Law Act (Cth) (‘the Act’) expressly recognises this principle in section 60B(b) as an underlying objective of its legislative provisions regarding children. Similarly, section 60CC(2)(b) requires the consideration of a child’s expressed views in determining their best interests, recognising how appropriate levels of participation play a fundamental role in informing these assessments.

Systems Abuse Protectionist stances on child participation emphasise children’s characterisation as vulnerable participants, foregrounding the paramount obligation to protect a child’s best interests, including their safety and welfare. The term “systems abuse” in this context refers to the secondary abuse and trauma caused by a child’s involvement in processes that undermine their safety and welfare. Family proceedings are “incredibly complex and emotionally charged” meaning direct participation in proceedings may compound stress and trauma, constituting systems abuse. As children are unable to navigate court procedures on their own, legal professionals must determine an appropriate extent of their participation that mitigates risks of systems abuse.

Independent Children’s Lawyers In Australia, ICLs are specialised family lawyers appointed by the court under section 68L of the Act, Edition 1 2026

at their discretion, to represent a child’s best interests in proceedings. A primary way ICLs facilitate a child’s participation is by meeting with children to ascertain their views, providing ICLs with an opportunity to relay a child’s opinions to the court, where possible. In meetings, ICLs can also explain the nature of court proceedings to children, encouraging understanding of their role in the dispute and the opportunities for involvement. However, this obligation to facilitate a child’s involvement may be subjugated by the overarching obligation to protect children from the traumatic repercussions of family disputes. Section 68LA(5)(d) of the Act specifically requires an ICL to case manage to minimise trauma experienced by the child in proceedings. Concern has been raised by academics that section 68LA(5)(d) disincentivises ICLs from meeting with the children they represent out of fear of perpetuating systems abuse.

Unnecessary interviews can harm a child’s well-being by repeatedly discussing distressing experiences, which may in turn degrade the child’s confidence in providing evidence. While meeting with children enhances their understanding of procedures and determines their individualised best interests, there are real concerns about over-involving children in proceedings. However, failure to encourage or initiate children’s participation may deny appropriate opportunities for children to express their opinions, effectively undermining their inherent right to participation.

Opportunity for Judicial Practice to Protect Children While a common method of upholding children’s safety and participation is through the appointment of ICLs, academic discourse has recently focused on opportunities for judges to adapt judgments and directly communicate with children to improve understanding and trust.

Judges Meeting with Children Despite being an uncommon practice, judges directly meeting with children provides an opportunity for children to meaningfully engage with judicial decision making by mitigating the impersonal nature of formal court processes. Judges represent the ultimate decision-maker in a child’s proceedings, so children may feel a higher level of trust and confidence when their opinions are directly acknowledged by judges.

Direct communication also provides essential insight into a child’s individual experiences without having their opinions filtered through third parties, such as ICLs, strengthening a judge’s ability to make decisions acknowledging children’ s views. However, there are persistent objections to this practice arising from Edition 1 2026

concerns of undermining due process by obtaining evidence unavailable to parties in dispute, and the lack of training for communicating with children. Despite the significance of these concerns, they are not strict barriers to this practice. In a 2018 review, the Australian Law Reform Commission recognises that these concerns can be mitigated by ensuring the child is supported by a legal professional with experience working with children and by disclosing that the discussions may be mentioned in open court. Ultimately, the reluctance to fully endorse this practice mirrors broader concerns of systemic abuse, prioritising the protection of children above the potential to broaden their involvement.

Judgements Tailored for Children Facilitating clear and accessible information for child participants essentially recognises the profound impact of court decisions on their lives, rather than viewing them as a mere object in dispute. Childcentric judgements may take the form of personalised letters, summarised versions, videos, infographics, or even cartoons. Adapting judgements to children’s communication preferences recognises children as an “audience of the judgement” instead of a marginal consideration. Despite the paramount importance of a child’s best interests, there are circumstances where judges’ decisions will diverge from them. In such cases, accessible judgements recognise the profound consequences of the dispute on the child’s life by supporting their acceptance of difficult decisions. By justifying reasons for court orders, judicial officers can improve the accessibility and transparency of decisions, providing children with an invaluable sense of closure following family disputes. Ultimately, the underutilisation of this practice emphasises the integrity of precedential judgments, revealing systemic obstacles to adapting for children’s needs.

Conclusion Facilitating children’s direct participation protects their right to be heard and emphasises their needs in family proceedings. However, there are instances where limiting participation is necessary to uphold the paramount importance of their well-being. As children are vulnerable participants in litigation, their right to participation must be considered alongside the paramount importance of protecting their best interests. Children lack agency to adequately protect themselves in court processes so there is a collective responsibility to develop accessible environments that protect their rights and safety.

Before the Law | 21

Feature

Pricing People Out Law and Housing Access Dung Nghi (Yoong) Tran

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ousing laws in Australia lack sufficient rights protections to ensure access to justice. Despite the Commonwealth’s commitment to uphold international human rights law through the scrutiny of bills, Australia has consistently fallen short in meeting international standards of living regarding tenancy, social housing, and foreign residential land law. These commitments alone are not enough to secure practical access to justice.

Therefore, this article proposes three reforms.

First, rent increase regulation should operate as a meaningful safeguard for tenure security through accessible review. Second, social and affordable housing delivery should be treated as core infrastructure with measurable, enforceable accountability. Third, foreign residential land regulation should prioritise enforceable transparency, so that its operation and effects are subject to public scrutiny.

Rent Increases as a Legal Threshold, not a Substantive Affordability Rule New South Wales (‘NSW’) tenancy law regulates rent increases through notice and frequency limits, not affordability. Section 41 of the Residential Tenancies Act 2010 (NSW) requires a written notice of at least 60 days and restricts increases to once per 12 months, including a prohibition on increases within the first 12 months of a tenancy. This framework treats rent escalation as lawful once procedural conditions are met, even where increases undermine security of tenure.

The statutory check on unfairness is narrow and reactive. Section 44 permits the Tribunal to set aside 22 | The Brief

an increase that is ‘excessive’, but the mandated factors centre on market comparators, outgoings, condition, amenities, and timing, and exclude tenant income and capacity to pay. The brief window to apply to the Tribunal turns review into a further threshold, because tenants must know that an ‘excessive rent’ application is available, must act within the statutory time limit, and must be ready to gather and present the marketbased material the Act requires. In ‘before the law’ terms, the regime recognises an interest in shelter, measuring protection through market benchmarking and process, not need.

Reform should amend s 44 to enhance both affordability and tenure security for tenants. The rationale for this is twofold: allowing for consideration of affordability evidence and establishing a rebuttable presumption that rent increases above a defined index are excessive, unless landlords justify them through costs or improvements. Research from the Australian Housing and Urban Research Institute shows little evidence that Australian residential tenancy regulation reduces investment, suggesting firmer tenant protections are justified without risking supply withdrawal. The Productivity Commission’s emphasis on improving private rental affordability and better targeted assistance further justifies using rent increase regulation as a practical safeguard, rather than a mere formal mechanism to exclude through pricing.

Social and Affordable Housing Scarcity as a Legal Distribution Problem Australia’s human rights commitments frame adequate housing as a legal entitlement that includes affordability Edition 1 2026

and security of tenure. Yet, limited social housing stock leaves many households exposed when private rents rise. The Australian Institute of Health and Welfare reports growing ‘greatest need’ on social housing waiting lists, including about 70,000 households in 2023. This gap between the housing norm and delivery capacity turns access into rationing through eligibility rules, prioritisation, and waiting times.

Waiting lists and prioritisation rules convert shelters into a threshold governed by eligibility, documentation, and delay. In NSW, the Audit Office reported 56,000 households on the NSW Housing Register in June 2024 and long waiting times for general applicants. This, then, creates a structural problem ‘before the law’, limiting the practical reach of legal protection.

Reform should strengthen supply institutions with enforceable delivery and transparent measurement.

Of the current governing frameworks in this area, the Housing Australia Future Fund Act 2023 (Cth) establishes a financing mechanism intended to increase social and affordable housing, with a policy framework that sets a target of 30,000 homes over five years. Further to this, The National Housing Accord sets a target of 1.2 million homes from 1 July 2024. These frameworks recognise the housing supply constraint, but targets without binding implementation and comparable reporting risk fragmented delivery. A stronger package would legislate annual reporting on dwellings funded, contracted, commenced, and completed under the Housing Australia Future Fund using consistent national metrics. This aligns with the Productivity Commission’s emphasis on easing supply constraints and better targeting housing to help improve affordability outcomes.

Foreign Investment Rules, Enforcement, and the Politics of Scarcity Commonwealth law regulates foreign participation in residential land through a screening and compliance framework, but its central weakness for housing access is accountability rather than legal coverage.

The Foreign Acquisitions and Takeovers Act 1975 (Cth) regulate notifiable actions and includes vacancy fee frameworks for foreign acquisitions of residential land, and guidance frames a supply rationale by steering investment towards new dwellings rather than established stock. The 2025 to 2027 ban on foreign purchases of established dwellings confirms the regime will shift from case-by-case screening to categorical restriction, yet the practical effect on shelter access depends on exception use, compliance, and disposal outcomes rather than the headline rule.

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Registration and notification duties under the Register of Foreign Ownership of Australian Assets provide the administrative base for this oversight, but without consistent public reporting on approvals, exceptions, vacancy fee outcomes, and enforcement action, the regime’s operation remains difficult to evaluate against its stated supply objective.

This framework shows that foreign investment is regulated, but the system’s weakness is the public’s lack of visibility into how the rules operate. Guidance sets policy direction, yet public debate often lacks accessible, current reporting on approvals, exceptions, vacancy fee outcomes, disposals, and enforcement actions. The ‘before the law’ problem is therefore informational.

Rules exist, but their practical effect on shelter access is difficult to test without consistent transparency.

Reform should prioritise enforceability through measurable reporting. Treasury and compliance agencies should publish annual metrics on residential approvals, exception use under the established dwelling ban, vacancy fee outcomes, and compliance activity linked to disposals and penalties. Under this structure, legislated reporting duties would align with the existing Register framework and support evidence-based change to it, while maintaining a focus on broader affordability linked to supply constraints and rent conditions.

Conclusion Australia’s housing framework recognises adequate housing as a protected interest in international human rights law and domestic scrutiny processes, yet access is shaped by market pricing and scarcity queues. Private renting regulates rent increases through procedure, and ‘excessive rent’ review relies on market factors while excluding tenant affordability. Social and affordable housing shortages then ration shelter through eligibility and delay. Foreign residential land regulation is extensive, but limited public reporting on approvals, exceptions, vacancy outcomes, and enforcement weakens scrutiny of its practical impact.

Therefore, reform should narrow the gap between recognition and access. Tenancy law should permit affordability in rent, increase review, and improve practical access to low-cost review. Social and affordable housing delivery should operate as core infrastructure with enforceable reporting tied to funding. Foreign residential land regulation should prioritise transparent, consistent reporting and compliance visibility to support evidence-based change. These reforms shift housing protection from formal recognition to measurable access ‘before the law’.

Before the Law | 23

Feature

Out of Sight, Out of Rights Access to Justice and Offshore Processing

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Tara Bush

ustralia’s offshore processing regime has been denounced for its harsh treatment of asylum seekers, indefinite confinement, and the profound trauma inflicted on individuals. Detainees sent to centres in Nauru and Papua New Guinea (‘PNG’) face limited legal rights, minimal access to justice, and severely restricted options for resettlement. Despite legal challenges exposing human rights breaches, offshore detention persists.

Reforming the system is vital to adhere to international legal obligations, uphold human dignity and the rule of law, and provide opportunities for legal recourse.

Overview of Offshore Processing Regime Australia’s offshore processing regime has been widely criticised for its punitive measures, shifting refugees away from the nation by negating the detainees’ experience of trauma, mental health crises, long periods of indefinite detention, and developmental harm to children. The Howard government instituted the ‘Pacific Solution’ in 2001, following the MV Tampa incident, wherein 433 asylum seekers had to be rescued from a drowning boat headed to Australian shores. The government made agreements with Nauru and PNG to transfer all unauthorised maritime arrivals (‘UMA’) to offshore processing centres. A UMA is defined as a person unlawfully entering Australia by sea, thus becoming an ‘unlawful non-citizen’ upon arrival, unless a specific exemption is invoked.

In 2001, the Migration Act (‘MA’) was amended to enable the transfer of UMA’s to offshore processing centres in the aforementioned designated countries.

Despite the limited exceptions, the general rule is that a UMA in Australia cannot make a valid visa application.

The Minister has discretion to grant a detained unlawful non-citizen a visa, pursuant to section 189 MA, if it ‘in the public interest to do so.’ However, this has been described as ‘non-compellable and non-reviewable.’

In 2016, the Prime Minister of PNG ordered that their 24 | The Brief

detention centre be closed after the PNG Supreme Court determined that the regime was unconstitutional and breached the country’s constitutional guarantee of liberty to all persons, as well as their dignity and fundamental rights. While this was a significant advancement for human rights in migration law, the offshore processing in Nauru continues to the present day. Additionally, the men remaining in PNG’s centre had to decide whether to return to their home country or move to temporary accommodation facilities with prospects of eventual resettlement in a third country. This decision exemplifies the illusion of choice as formal resettlement was highly unlikely due to limited availability, and integrating into PNG’s community offered minimal opportunities for ‘employment and long-term livelihood.’

2012 brought obscurity and equivocation as the amendment to the Nauruan Immigration Regulations proffered the granting of visas for detained refugees after ‘determination of their refugee status’; however, the conflict arose as to whether Nauru or Australia would be undertaking such determinations. Enacting the Refugee Convention Act 2012 (Nr) provided little assistance in its objectives of determining refugee status and erecting a Tribunal for merits review as heavy delays, incompetence, and deficiencies in capacity rendered the process ineffective.

Fast-track applicants are those who arrived in Australia by boat between 13 August 2012 and 1 January 2014 and did not go to Nauru or Manus Island.

Where the refugee status determination denies an individual a visa, a merits review may be conducted ‘on the papers.’ Equality before the law is undermined as there is no entitlement or right to a hearing.

Further, unsuccessful applicants at this stage may then proceed to judicial review. However, the applicant ‘must demonstrate judicial error’. Common grounds for review are substantially anchored in the ‘denial of procedural fairness’: where an applicant was not given a fair opportunity to present their case, when the decision-maker misunderstood or incorrectly applied Edition 1 2026

share their experiences and evidence, ensure outcomes are fair and accurate, and respect their rights.

the legal test for determining refugee status, if the reasoning was so irrational or unsupported by evidence that it was illogical to reach the conclusion, where the decision-maker overlooked or did not properly consider a key argument or where there has been ‘actual or apprehended bias.’ Cases rarely appeal to the Federal Court or High Court. The cost of pursuing judicial review - which is limited in scope to legal errors - leads to unrealistic chances for applicants to challenge their decisions, thus restricting meaningful access to justice.

Barriers to Justice Access to justice is severely compromised in immigration policies, procedures, and legislation. Financial assistance is seldom afforded to refugees, leading them to severe disadvantage as they face barriers to accessing the judicial system. The case of SZQPE v Minister for Immigration and Citizenship (‘SZQPE’) evidences the issue of access to justice, as Flick J remarked that unrepresented refugee litigants are likely to not possess adequate access to ‘competent advice’ and went so far as to exclaim that refugee claims may not be ‘dealt with in accordance with the law.’ Further, in TCXM v Minister for Immigration and Multicultural Affairs, Moshinsky J stated that ‘the power conferred by s 198AHB(2)’, whereby the provision allows the Commonwealth to take actions, make payments, and undertake related activities to support or implement a third-country reception arrangement, has no ‘obligation to afford the applicant procedural fairness.’

Changing socio-economic attitudes and views on refugees have the potential for lawyers to reduce their costs, engage in services more proactively, and advance access to justice. Further, refugees are often unaware of information about ‘social support offices’ and the available opportunities for legal representation, impeding their ability to have their rights enforced. The case of Plaintiff S99/2016 v Minister for Immigration and Border Protection (‘S99/2016’) demonstrates that ‘agency and voice’ are crucial in migration cases as it allows migrants to participate in decisions affecting their status, Edition 1 2026

Recommendations for Access to Justice The following proposals are aimed at enhancing access to justice for those subjected to offshore processing regimes. Most importantly, the significantly costly model should be ceased as it has caused prolonged and arbitrary detention and failed to ‘[achieve] any of its…policy objectives.’ Notably, it has allowed rights violations such as the human right to liberty and security. For example, Plaintiff S99 suffered rape while having a seizure. Another illustration is the lack of medical services available in Nauru, as evidenced by tenyear-old AYX18 possessing no child psychiatrist to look over his severely deteriorating mental health, which led to attempted suicide. Guaranteed access to lawyers and interpreters is imperative to assist with refugees navigating the complex legal system and preventing misunderstandings that can impact the outcome of the case. The rule of law is essential for accessibility, clarity, and protection of rights. Crucially, the rule of law includes equality before the law. Therefore, all refugees should be protected by equal treatment regardless of how they arrived in Australia. Improving transparency by public reporting and enacting stronger public oversight will ‘address human rights abuses’, increase accountability, and facilitate better policy decisions.

Family reunification programs should be instituted to promote well-being, align with ethical practices that uphold dignity, and encourage social stability through support networks. Finally, increasing humanitarian visa quotas will positively enhance Australia’s international legal obligations by preventing the non-derogable right of non-refoulement from being exercised, and protect those ‘at risk of serious harm [who may] lose the opportunity for resettlement.’

Conclusion Australia’s offshore processing regime has been strongly condemned on an international level for indefinite detention, human rights violations, and severe trauma to detainees. UMA’s were sent to centres outside Australian territory through agreements with countries, including Nauru. These individuals are subject to a lack of legal representation, restricted access to impartiality, due process, legal remedies, and inadequate procedural fairness. Cases such as SZQPE and S99/2016 highlight the devastating consequences of these barriers. Reforms are critical to ensure equality before the law and pathways to justice for refugees in Australia.

Before the Law | 25

Feature

Domestic v International

‘Doorkeepers’ When Seeking International Legal Remedy Isaac Andrew Minghui Aguilar

I

nternational law has consistently suffered public criticism, especially with its perceived failure to resolve the current world conflicts. Nonetheless, international law has provided fundamental accomplishments to globalisation, international peace, and human welfare. The Law of Armed Conflicts provides the internationally agreed limitations for the ‘causes, conduct, and cessation’ of the reasonable uses of military force. This system has largely prevailed in promoting the reduction of international hostilities.

International law likewise permits an open economic system where institutions such as the World Trade Organisation (WTO), the World Bank, and the International Monetary Fund (IMF) promote free trade and economic globalisation, reducing the incentive for conflict. Similarly, another example is the Universal Declaration of Human Rights. However, whilst recognising its positive effects, the system requires continual improvement and proactive reform.

The international legal system primarily serves the interests of peacekeeping and litigation between state actors. However, this focus on state relations means that 26 | The Brief

the interests of individuals and smaller legal entities are sidelined at times. This is made clear for people turning to international law for solutions, as obtaining the right to compensation can be difficult; likewise, NGOs also face challenges when approaching international courts for legal action. Moreover, the case Nulyarimma v Thompson [1999] FCA 1192 in Australia considers that state sovereignty trumps international law even if the act may be recognised as a crime. International law thus suffers from public inaccessibility to remedies due to systemic imperfections, legislative barriers, and administrative hurdles.

The reality of legislative barriers impeding access is demonstrated in the relationship of Nongovernmental Organisations (NGOs) with international judicial bodies, specifically the International Criminal Court (ICC) and the International Court of Justice (ICJ), where states take primacy over individual access. The ICC provides a means for an NGO to present itself as a victim to the Prosecution and they may also serve the role of amicus curiae (‘friend of the court’) during judicial proceedings in exceptional circumstances. However, though the ICC considers the documents and opinions Edition 1 2026

of NGOs important sources for the Prosecution to order an investigation, they are only indirectly involved in court proceedings. The ICJ similarly provides that only States may access their judicial proceedings.

For individuals, on the other hand, public access to international law as a means of remedy is difficult and not immediate. Access to the right of compensation is difficult as international judicial proceedings are expensive and time-consuming. As a result, the public suffers from a lack of accessibility, financial obstacles, and psychological trauma. Additionally, adequate redress suffers from limiting factors such as the absence of clear stipulations and procedures and the absence of detailed means and standards for determining compensation, making litigation by international means near impossible for those needing it the most.

This laborious access to international law as a means of redress is likewise evident in the Australian context, specifically in the relationship between state sovereignty and international customary law. The contentious relationship between the two was especially visualised in Nulyarimma v Thompson. This one appeal case addressed two separate cases addressing a similar Edition 1 2026

issue of the genocide of Aboriginal peoples. The first case was an appeal case from the ACTSC concerning the warrants of arrest of certain Parliament ministers, who, in their support of the ‘Ten Point Plan’ and the Native Title Amendment Bill 1977, were alleged to have committed the criminal offence of genocide. The second case concerned the failure of the Commonwealth to proceed with the World Heritage listing of the lands of the Arabunna people, where the appellants claimed that such an act similarly constituted genocide. The appellants had argued that the international customary norm of genocide has been accepted into the common law of Australia. However, the Court dismissed the appeal on the grounds that international customary law had to be legislated by the Parliament for it to be binding.

The outcome of this case thus raises the question about the relationship between domestic legislation and compliance with international standards, a discussion with continued relevance in contemporary politics.

Though these institutional and administrative obstacles are difficult to surmount and are imperfect, they nonetheless serve essential purposes in the international democratic process. These obstacles provide the backbone of accountability with these administrative hurdles, though being complex, serving as a necessary impediment to verify, substantiate, and corroborate the validity of claims entering through international courts and arbitration bodies. Moreover, by not usurping domestic legislation or imposing domestic ratification of international law, national sovereignty is respected. These statements, however, do not negate the imperfections of the system. The plight of vulnerable, unrepresented groups that are without access to litigation needs to be continually discussed and reviewed. Their interests, especially indigenous cultures that suffer under the systemic biases of former colonial states, must frequently be considered, especially in international law, for addressing injustices.

Thus, as we continue to progress towards an everinterconnected and globalised society, we must engage in proactive discourse on legislation. It is important to address the inadequacy of current institutional means for the public to address their grievances to the international community. Reflection is also especially necessary on the place of international legislation in the Australian context. And the next generation of policy makers should consider the trends in multilateralism and economic globalism, and the regulatory relationship between individual nation-states and the global community.

Before the Law | 27

A Brief Review

Et tu, Brute?

Julius Caesar and Civil Procedure

B

Emi Luthien Davies Barnier

ell Shakespeare, Australia’s national theatre company, has been blessed by our epoch. Shakespeare’s tragedies, which are renowned for their relevance, are striking audiences with a particularly unsettling resonance and drawing crowds.

I experienced their most recent endeavour, ‘Julius Caesar’, in the cultural heart of Sydney, the Opera House. The performance’s greatest strength, apart from its relevance, was in the casting of Caesar and Brutus.

The play explores the rise of autocracy as democratic norms disintegrate, centring a tension between law and political violence. Shakespeare issues a warning against undermining a decaying system rather than endeavouring to uphold its principles when faced with Executive aggrandisement and overreach. Conversely, to prevent the fall of the republic, the conspirators take its life or death quite literally into their own hands, assassinating Caesar.

The conspirators respond to the fears Caesar will be crowned king with mutiny, Brutus reasoning, ‘Not that I loved Caesar less, but that I loved Rome more’. The crime is allegedly committed to prioritise civil order by breaking civil procedures. Protecting civil liberties and following civil procedure can instigate change effectively.

The play demonstrates that being equally opportunistic and underhanded, or panicked and acting against the principles of the democratic system, will let the chaos win.

This rendition of the play involved a Brutalist set design to subtly reframe the setting to the Cold War. While in brutalist architecture, structural materials are left exposed rather than concealed, ‘Julius Caesar’ exposes the human vices entangled in the structures 28 | The Brief

of Rome concealed behind a façade of civility. It reveals the brutality of humans who are drawn to quick solutions rather than order and procedure. Architect Geddes Ulinskas explains, ‘Brutalist design is about architecture being brutally honest [...] Forms are as simple as can be, and materials are stripped to be as bare and raw as possible.’ Behind the façade of legal and political structure, personal ambition, emotional impulse, and political necessity are shown to be what truly rule the republic.

Brutus seeks to surgically remove the spirit of autocratic rule saying, ‘Let us be sacrificers, but not butchers.’ However, unruly violence is unleashed during the intermission as the murderers wildly stab at Caesar with 33 strikes, the curtain rising to show them covered in blood, panting after the act. In the wake of Caesar’s death, the institutions of Rome fall as those with principles have resorted to violence over due process.

Surgical precision is however exercised with the tool of rhetoric. Its potency in politics is on display in the production, with two speeches performed to the audience, the people of the Republic, through a prop loudspeaker. Brutus and Antony each in turn sway the opinion of the people in some of the play’s most quoted scenes. Country-folk spread throughout the audience as the speakers addressed the crowds of Caesar’s funeral.

The tension in the room was palpable as Antony turned his back to the audience and sobbed into the speaker.

In a world of Artificial Intelligence, we often overlook plain and simple manipulation through rhetoric.

Bell Shakespeare reminds us that the law is meaningless if no one demands it be applied.

Edition 1 2026

Inadmissible

Why Moral Activism?

From a Filipino Australian Law Student

L

AWS1100 tasked us to read Christine Parker’s A Critical Morality for Lawyers, where four types of ethical frameworks were identified: adversarial advocacy, responsible lawyering, moral activism, and ethics of care. We were then asked to identify which framework we adopted. A majority identified with adversarial advocacy and responsible lawyering, with a minority of ethics of care. However, despite agreeing substantially with the former two, I nonetheless hold strongly to moral activism as a Filipino law student.

In this article, I’ll attempt to provide an answer as to why I chose moral activism, and the Philippine context has informed that choice. I’ll provide two cases in the Philippines that underscore the rationale of this choice: Republic of the Philippines v. Maria Lourdes Sereno and Sara Z. Duterte v. House of Representatives.

Philippines v. Sereno saw the ousting of Chief Justice Maria Lourdes Serenno over lack of integrity because of filing inconsistencies with her Statement of Assessments, Liabilities, and Net Worth (SALNs) during her years in government service. On that alone, her case had merit to be heard. However, the surrounding context of the ousting adds another layer. She was a vocal critic of Rodrigo Roa Duterte, the president at the time, whose administration saw the extrajudicial murder of approximately 12,000 Filipinos, many of whom were juveniles and members of the urban poor. Duterte himself was open about his desire for her deposal. Nonetheless, the Supreme Court held that the quo warranto was a proper remedy even against an impeachable officer and that her incomplete SALNs record demonstrated a lack of integrity on her part. The Court granted the petition and ousted her from office, ruling that she was never legally qualified to become Chief Justice.

On the other hand, in the case of Duterte v. House of Representatives, the Court addressed the constitutionality of four impeachment complaints filed against the sitting Vice President Sara Duterte. The Articles of Impeachment were filed because of assassination threats she posed against the current President Ferdinand ‘Bongbong’ Marcos Jr., the First Lady, and the Speaker of the House Edition 1 2026

Isaac Andrew Minghui Aguilar

Martin Romualdez. Similarly, an impeachment addressed in the case was also filed because her department, the Office of the Vice President (OVP), saw a total expenditure of confidential funds of approximately ₱375 million (9 million Australian dollars). The Supreme Court held that earlier impeachment constituted an ‘initiation’ of impeachment proceedings under Article XI, Section 3(5) of the Constitution, thereby triggering the one-year bar rule. The Court thus ruled that the fourth impeachment complaint was unconstitutional, declaring that the House committed grave abuse of discretion. Thus, on those bases, the impeachment was dismissed. However, the Supreme Court has noted that the impeachment dismissal was not based on the Vice President’s actions but rather on the constitutionality of the proceedings themselves; however, she has yet to be tried.

These two cases, both where a public official is to be held accountable, have veered into opposite directions: the former resulting in a critic of a controversial administration being removed and the latter where the judiciary rejects accountability in favour of a legalism devoid of public grievance. Though both cases have argued sufficiently for the legal grounds of their respective decisions, the spirit of the law is neglected, and people are left dissatisfied and disgruntled. As such, Filipinos continue to criticise the rulings of both cases. The Human Rights Watch stated that the removal of Sereno was ‘unprecedented and nefarious.’ Atty Yusingco, constitutionalist and senior research fellow with Ateneo Policy Centre, believed the Supreme Court overstepped in its ruling with Duterte. It is within this context of publicly perceived unjust judicial decisions that the legal ethical framework of moral activism is the most valuable. In my case, it is why I have adopted that framework. Neither adversarial advocacy nor responsible lawyering provides an adequate response to these cases, nor will they provide a remedy to a population cheated by its politicians and by a system that promised protection. For neither will adversarial advocacy and responsible lawyering provide an adequate response, nor will they provide a remedy to a population cheated by its politicians and by a system that promised protection.

Before the Law | 29

De Minimis

Law School The Death of Pop Culture - 1.5 Stars Caitlin Neal-Bartier

P

icture this: It’s exam week.

I’m procrastinating, flicking through books on my Kindle. An author I like pops up with a new book. I click download and start reading.

And drop my phone in horror.

I’m not a person with a weak stomach. I’m an avid true crime podcast listener, and I love murder mysteries.

But this?

He was her custody lawyer. And he was having an affair with her under the thin guise of romance coaching.

Conflict of interest screaming at me, I texted my best friend, also a law student. She agreed that he had a fiduciary duty, which he was probably breaching by pursuing this relationship. I didn’t even care that they lived happily ever after at the end, and there was no horrible power imbalance, or that these people aren’t even real. The paramount duty of the court? Failed.

It turns out that law school has made me think a little too hard about books and movies. I often find myself wondering if these trust fund clauses in our favourite romances that mean the two leads simply have to get married would actually hold up under NSW trust laws (yes, they would). I question the conduct of lawyers in 30 | The Brief

the courtroom during climactic legal scenes. I worry about the disturbing amount of professional violations that the Lincoln Lawyer commits in his titular film.

But the real kicker of my legal snobbery, the catalyst for this entire article, happened when I was at a rewatch of one of my favourite movies, the 2000 Australian classic Looking for Alibrandi. Josie tells us the whole movie that her father is a barrister, so why does he work for Clayton Utz? “Barristers work independently!” I cried to my long-suffering mother, who has witnessed my metamorphosis from ‘That wasn’t in the book!’ to ‘This is a contravention of the uniform law!’. I am like those people who get upset at historical inaccuracies. But I’m worse. I am insufferable. The legal inaccuracies I argue about have no stake. They do not represent underlying political tensions or ongoing dialogues about racism and class structure.

They represent people trying to make lawyers more interesting, more glamorous. Less paperwork, more solving murders from the bar table, and not ignoring the woman of your dreams because you’re busy suing her ex-husband. My frustration is entirely irrational.

Law school, what have you done to me?

Edition 1 2026

Lawtime Poems

Two Law Poems Perpetual Boadu

#1

#2

Her feet ached as she stumbled through the slippery sand,

The road was winding and uncaring,

Her body burned, and her mouth felt sticky and parched,

It twisted and turned towards a destination unknown,

All she needed was water, or better, something to set her free.

I had heard of a door, a gateway to freedom.

Yet as she looked at the horizon, she saw no end in sight.

But as I looked at my dark skin against the beating sun.

​

I felt unsure if this door would be for me.

She felt her body begin to give up,

​

It was all too much,

The door stood before me, wrapped in majesty,

Her body began to sink into the sand,

I walked straighter as I drew closer,

It pulled her deeper into darkness.

I saw a doorman in front of it,

​

I was confused as to why this door needs a protector.

As she began to accept her fate,

Couldn’t anyone walk through?

She saw a door materialise in front of her,

​

She hesitantly stood up, eyes fixed,

I smiled at him hesitantly,

She thought it would disappear if she looked away.

He looked me up and down.

​

I made an attempt to move towards the door.

Her hand shook as she reached for the door,

He shook his head slowly,

And as she turned it, she heard a click.

His face a statue.

But nothing happened; the door didn’t open for her.

​

It instead stood there in all its majesty, shut.

He gestured over to the side,

​

There was a bench with a few people seated,

The doorknob under her hand burned hot,

They looked similar to me, all women with dark skin,

Dismissing her without a second thought,

The heads were hung low, tears ran down their face,

As she looked, the door collapsed in on itself,

I took my seat next to the forgotten women and hung my head.

Leaving in its wake nothing but what could have been.

Edition 1 2026

Before the Law | 31

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