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Macquarie University Law Society magazine Edition 2, 2016 (Volume 22)

Edition 2, 2016 | 1


STAY TRUE.

2 | The Brief

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Contents

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REGULARS

What’s New in the Law Maddison Passarelli

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FEATURES

Music and Freedom of Expression: What does copyright have to do with it? Pavitra Raja

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Social Justice Corner: Violence Against Women, Australia Says No. Or do we? Shivani Gosai Smeetha Jayakumar

Avenues of Your Law Degree Alexandra Nielsen

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Lockout Laws: Appropriate or Oppressive or Over-Sensitive: Unnecessarily Restricting our Discussing the Anti-Protest Autonomy? Laws Peter Zivkovic Hannah Hargrave David Yao

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Religion in the Public Space Wendy Doan

Hong Kong: The Boiling Frog Kathlyn Gonzales

Human Dignity and the Commodification of Human Life Tanya Thomas

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The Cuban Thaw: A Glimmer of Hope Amongst the Gloom? Mary Habashy

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Bought and Sold: The World’s Human Trafficking Problem Swatilekha Ahmed

Devil’s Advocate: Corruption Laws? Olivia James Dusan Djukic

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Under the Radar: Child Soldiers James Woodward

The Basics of an Income Guarantee Rhiannon Bell

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ADDITIONALS

A Postcard A Brief Review (x4) from Abroad: Vienna Maddison Passarelli Nicky Irwin Faulks Jemima Bissett

See what we’ve been posting on The Brief Online

The Pointlessness of Extended Warranties If you’ve ever bought electronic goods, you probably have been offered extra warranty. But is the supposed peace of mind worth the price? Writer Jeremy Cassrels questions the benefit of paying extra, considering existing Australian Consumer Law.

A Haven for Evasion: The Story of Mossack Fonsecca Want to stash your cash? It seems that Mossack Fonseca can help with that. Writer Shannan O’Donnell explains the recent Panama Papers scandal and the practices of the law firm at the centre of the largest data leak in history.

Sexual harassment in clubs and bars: Why is it tolerated? Certain social settings like nightclubs and bars seem to ignore the problematic culture of sexual harassment. Writer Sonja Grnovic examines the root causes, explaining why society has treated this behaviour as normalised. Edition 2, 2016 | 3


Editor-in-Chief’s Welcome Dear Reader, Welcome to the second instalment of The Brief - it seems just like yesterday that Edition 1 was taking shape! In following the theme of human dignity and autonomy, this edition seeks to capture current happenings in society. More importantly, it aims to emphasise how this affects equality and liberty. What is the rationale behind these changes? Is there anyone who profits from them? This edition begins with academic insights on the theme by Macquarie Law School’s Professor Brian Opeskin and Senior Lecturer Carolyn Adams. Following this is a conversational piece about music and freedom of expression with writer Pavitra Raja and Vanessa Hutley, the General Manager of Music Rights Australia. Subsequently, writer Peter Zivkovic discusses the NSW lockout laws whilst writers Hannah Hargrave and David Yao debate the effects of the antiprotest laws on our freedom of speech. Other excellent topics include: religious freedom, the autonomy of Hong Kong, human cloning

Edition 2 Volume 22 June 2016

Editor-in-Chief Sarah Li Yee Lien Deputy Editor Nick Owczarek Designer Nathan Li Contributors Alexandra Nielsen, Brian Opeskin, Carolyn Adams, David Yao, Dusan Djukic, Hannah Hargrave, James Woodward, Jemima Bissett, Kathlyn Gonzales, Maddison Passarelli, Mary Habashy, Nicky Irwin Faulks, Olivia James, Pavitra Raja, Peter Zivkovic, Rhiannon Bell, Shivani Gosai, Smeetha Jayakumar, Swatilekha Ahmed, Tanya Thomas, Wendy Doan. Sub-editors Alana Tindale, Eddy Nee, Emma Breislin, Isabelle Marcarian, Jake Roche, Jane Lee, Jason Xu, Maddie Begg-Cotter, Mark Nasralla, Raveena Randhawa, Sheliza Nasser.

4 | The Brief

and many more. This edition also contains an interview with George Williams, a highly acclaimed Macquarie Law alumnus and one of Australia’s leading constitutional lawyers and public commentators. As well, Rochelle Zats from the Redfern Legal Centre kindly contributed her time to discuss the issues and responses to domestic violence. Concluding this edition, the travel segment ‘A Postcard from Abroad’ takes us to Vienna whilst ‘A Brief Review’ shares some fun recommendations for your break. Although this semester has flown by, our writers, in balancing their studies, work and other interests, have taken some time out of their busy schedules to contribute to the publication. For that, I would like to thank my subcommittee for their help and enthusiasm in growing both platforms. There are indeed some upcoming and exciting developments for The Brief this year. Happy reading, Sarah Li Yee Lien | Editor-in-Chief

Editorial Review Robert Ephraums Campus Engagement – Team Leader David Yao Director (Publications), Macquarie University Law Society Image Credits Shutterstock.com unless otherwise specified. The Brief Online The Brief’s editions and online content can be found at: http://muls.org/brief/ or through our Facebook page. 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 following from the publication of material in The Brief.


SOME INSIGHTS INTO Human Dignity and Autonomy from Macquarie Law School academics…

 What’s On in Semester 2

Acting judges and judicial independence

AUGUST

 Professor Brian Opeskin

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he use of acting judges and magistrates is widespread in many States and Territories. In 2014, there were 7 acting appointments in the NSW Supreme Court, 26 in the District Court and 27 in the Local Court, representing a sizeable proportion of each court’s membership. However, acting judicial officers lack the tenure of office that has been the hallmark of judicial independence since the English Act of Settlement 1700. Acting judicial officers are typically appointed for short, renewable terms, which runs the risk of Executive preferment and undermines judicial independence. My current research, on behalf of the Judicial Conference of Australia, examines the implications of acting judicial appointments in Australia. Specifically, it considers how parameters such as eligibility, duration of appointment, and renewability might be used to find an acceptable balance between the flexibility so desired by the Executive and the independence demanded by the rule of law.

Metadata Retention Laws

Options with Law Fair

Administrative Appeals Tribunal National Mooting Competition

SEPTEMBER Sir Harry Gibbs Constitutional Moot

Social Justice Speaker Night: Mental Health and the Law

MQU Students Legal Service Official Launch

 Senior Lecturer, Carolyn Adams

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f you haven't heard about the Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015 (Cth), then this is a brief heads up. The legislation came into force last year and requires telcos in Australia—internet service providers and telephone companies—to keep all your metadata for a period of two years. What's metadata and why should you care? Metadata includes your name, address and contractual arrangements; the source of your communications, for example, an IP address; the destination of your communication; the date, time and duration of your communication; and the location of the equipment used in your communication. This information is then accessible to a wide range of government law enforcement and national security agencies, without a warrant. The United Nations has said that laws of this kind breach our right to privacy and I agree. What do you think?

OCTOBER

Social Justice Trivia Night

Law Ball

Edition 2, 2016 | 5


PREPARATIONS FOR ANTI-TERROR LAWS

Maddison Passarelli

Recent global events have influenced the Baird Government to revise NSW’s anti-terror laws, giving relevant authorities the power to detain potential terror suspects for up to 14 days for questioning. The Government initially pushed for 28 days however, 14 days was deemed as sufficient to prevent any impingement on individual liberties and autonomy. As a means of uniform security, the Baird Government intends to advise all Australian States and Territories to adopt similar measures.

NEW CYCLING LAWS FOR NSW

THE ILLEGALITY OF MANUS ISLAND

As part of the ‘Go Together’ road safety campaign, the Baird Government has introduced new laws for cyclists including increased fines and on-road offences for riding without a helmet, running a red light, dangerous riding, riding at night without lights, holding onto a moving vehicle and failing to stop at a pedestrian crossing. The penalties for these offences range between $71 to over $425. Drivers need to give cyclists at least 1-1.5 metres of space when overtaking or passing by, and cyclists are be required to carry photo identification with them at all times.

The Supreme Court of Papua New Guinea has ruled the operation of the Manus Island Detention Centre to be illegal, unconstitutional and a severe breach of human rights. Consequently, the Australian Government may face possible compensatory claims in excess of $1 billion. This is a much needed judicial decision, creating increased accountability for the treatment of asylum seekers. The decision has also led to increased discussion surrounding faster and more humane means of processing asylum seekers and refugees without visas.

COURTS MAKING THE MOVE ONLINE

Technological advancements of the 21st century have seen an increasing amount of courts move their presence online. Most recently, the NSW Land and Environment Court and Industrial Relations Court will be joining the online registry which may facilitate increased accessibility and interactivity with the Courts’ services. Users will be able to make online searches for court case listings, make online requests for court orders and court documents and commence appeals.

THE LEGALITY OF SMACKING YOUR CHILDREN

A recent case in South Australia has questioned whether it is a crime to smack your child. The issue began when a father was found guilty of assault for disciplining his child with several smacks to the leg. In appealing the conviction to the Supreme Court, the decision was overruled on the grounds that smacking is short-term pain for the purpose of correcting a child’s behaviour. Although smacking your child may no longer be as socially acceptable, there is currently no anti-smacking legislation in Australia. However, ss 61AA(1)-(2) of the Crimes Act 1900 (NSW) provides some guidance.

6 | The Brief


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Edition 2, 2016 | 7 SEARCH HSF GRADUATES FOR MORE GRADUATE EMPLOYERS 2016


Music and Freedom of Expression:

What does copyright have to do with it? An Interview with Vanessa Hutley General Manager of Music Rights Australia  Pavitra Raja

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usic gives us the unrivalled ability to harness emotions, solemnise events, express political sentiment, reach a spiritual awakening and even start a revolution, providing us with freedom of expression. But freedom of expression is not a justification to acquire music by illegitimate means. In 2013, it was reported that music piracy cost the Australian economy $1.3 billion dollars per year. In 2012, Australia was deemed the world’s biggest offender for illegal music downloads based on per capita downloads. As a population of only 23 million people, we have access to 27 licensed digital music services. This is combined with remaining physical stores, of which there are still plenty to choose from. However, in the digital age where information is often freely and immediately available – do we feel entitled to free music? 8 | The Brief

‘Music is the heart and soul of digital and digital is the heart and soul of music. [However] the right to override an artist’s choice is an odd assertive right. People should think before they make that choice – an artist has said ‘this is my income, livelihood and passion and I’d like you to respect this choice’ says Vanessa Hutley, the General Manager of Music Rights Australia. Music Rights Australia was established to work with its stakeholders to protect the creative interests of artists within the Australian music community through educational initiatives, government lobbying and the protection of artists’ copyrights. Vanessa believes that the shift in the model of revenue flow could be also attributed to the changing perception in the value of music. Instead of owning music (in the form of CDs for instance), which is the basis of the ownership model, we are increasingly


shifting towards the access model. Uber, Airbnb and Netflix are examples of services which employ the access model, where the consumer does not necessarily ‘own’ the good or service but is granted access to it on the basis of micropayments. Music streaming services such as Spotify, Tidal and Pandora employ the access model, making music readily available to play on any device anytime, anywhere. However, the access model may also be fuelling a misconception of the value of music. Today, where ‘digital is music, and music is digital, there is often confusion between the concepts of the speed of distribution and the speed of creation. The fact remains that it still takes days, weeks or even months to produce one song, but the ease of distribution of music is fuelling the ‘want now’ culture in music’. Vanessa states that this ‘obsession of want is translated into rights and then it becomes settled rights and then, it’s basically someone wanting to take [music] without paying for it and wanting it for free’. A 2011 report on the wellbeing of musicians claimed the average income for a professional musician today falls somewhere between $7,000 to $12,000 per year. The Australia Council reported that out of the 60,000 musicians registered with Australasian Performing Right Association | Australasian Mechanical Copyright Owners (APRA AMCOS), only 7900 people reported primary musician occupations such as instrumental musicians, singers, composers or music directors. Monetary loss aside, music piracy is also compromising the artistic integrity of musicians. ‘When people talk about piracy they only say this is about money, they don’t really understand it is also about an artist’s choice – if you take away an artist's ability to make a living, that will ultimately compromise their artistic life... it's not about the dollar, it's about the choices being made that will ultimately compromise their life as a musician’. This is where the role of copyright becomes important. ‘Copyright exists for musicians to be able to assert their rights,’ states Vanessa. Copyright is property – a copyright

“…in the digital age where information is often freely and immediately available – do we feel entitled to free music?” owner is allowed a bundle of rights to make decisions about where, when, how and who can have access or use or gain the benefit of some of those rights. ‘Every musician and every performer wants to find an audience – all they ask is that people don’t take their music without permission’. However, the right not to give permission is also a musician’s prerogative. An artist should also be allowed to refuse the use of their work in instances where they are not comfortable or believe that its use reflects ideals different to their work. ‘Someone who has different ideals to what you have [and] wants to use your work in their work and transform it into something that you don’t agree with – should they be able to do that?’ There is no straightforward answer to the above question. For instance, the US enlists the ‘fair use’ provision which attempts to balance the First Amendment right to freedom of expression, statutory damages provisions and copyright laws by providing an exception to the exclusive rights of the author of the creative work for specific purposes. Whereas, due to the absence of freedom of expression and statutory damages doctrines, Australia has taken the ‘fair dealing’ approach, which ‘creates statutory exceptions for parody, research, reporting where you aren’t misusing the material’ and ‘using it in certain ways to create expressions and express yourself in the public domain’. Which is the correct approach? The answer is that there is no such thing as the correct approach. Each and every country has a unique political, legal, economic and social context. Additionally, copyright is an intricate area of law where, along with the legal system currently in place, judicial discourse and legislative incentives are crucial factors which also need to be considered.

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Lockout Laws:

Appropriate or Unnecessarily Restricting our Autonomy?  Peter Zivkovic

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he contentious lockout laws of 2014 were a reaction to the perceived need to address alleged alcohol ‘fuelled’ violence in Kings Cross and the Sydney CBD. The public outcry following the deaths of Thomas Kelly and Daniel Christie from ‘one-punch’ attacks led to a ‘1:30am lockout and 3am last drinks’ regime being imposed across Kings Cross, Darlinghurst, Surry Hills, The Rocks and Cockle Bay Wharf. These laws also included a 10pm statewide curfew for bottle-shops across NSW. This ultimately raises questions about autonomy. Justifiable Reforms or Political Tactic? Before comparing the pre-lockout and postlockout statistics, it is worthwhile to consider the basis of the reforms. The point of these laws was to reduce violence and ensure public safety. However, Don Weatherburn, the director of the Bureau of Crime Statistics and Research (BOCSAR), indicated that assaults had declined since 2008. Furthermore, according to BOCSAR, assaults had hit a decade low prior to the 2014 reforms. Weatherburn explains that while the lockout laws may have hastened the decline, they certainly cannot be credited for what was a pre-existing trend. Ironically, in 2013, 10 | The Brief

Sydney was judged to be the ‘second safest city in the world’ by the bi-annual AnholtGfK City Brands Index (CBISM). So why the sudden need for reform when Sydney was generally considered safe and assaults were in decline? The answer is perhaps more politically geared than statistically supported, fed by extensive media coverage. Has Sydney Become Safer or Simply Deserted? A year after the reforms were enacted, there was a drop in assaults in Kings Cross by 32 per cent and a 26 per cent reduction across the CBD. This trend may be considered positive, and related statistics have been used by NSW Premier Mike Baird to justify the existence of the lockout laws. However, have these laws changed our attitudes towards drinking and violence? Or does the reduction merely represent that there are fewer people frequenting Kings Cross and the CBD during weekends? For example, comparing data from 2012 to 2015 indicates a 58 per cent reduction of foot traffic in Kings Cross at 11pm on a Friday. On the other hand, assaults in Pyrmont have increased by 88.3 per cent between April 2014 and March 2015. Pyrmont is the suburb where the Star Casino is located which,


despite its close proximity to the CBD, is not subject to the lockout laws. The map below shows the areas impacted by the lockouts laws, with a curiously convenient area to the top right that falls out of the zone. This is where James Packer’s new Barangaroo casino is scheduled to be built. The selective nature of these reforms would seem to undermine the legitimacy of the lockout laws. Another serious side effect of the laws has been the closure of businesses in Kings Cross and the CBD. NSW Labor MP Chris Minns has expressed concerns for business owners and staff, as well as Sydney’s desirability as a tourist destination. Are the Systemic Issues Being Addressed? Can the purpose of the lockout laws be achieved without the associated downturn in late-night activity? Minns noted that the NSW Government and Mike Baird’s reactions to criticisms of the controversial reforms may suggest that they are not open to ideas which will mitigate violence without adversely impacting Sydney’s nightlife. There are a number of underlying issues these laws fail to address, the first of which is transport. Citing the efficiency of Melbourne’s 24/7 public transport system, the Victorian Minister for Liquor Regulation, Jane Garret, opposes the introduction of ‘lockouts’ in Victoria. This can be contrasted with Sydney’s train system, which mostly stops between 1am and 5am. Although bus services typically run between these hours to various parts of Sydney, their relative frequency and capacity make the option problematic. Having efficient transport networks would allow patrons to return home conveniently on Friday and Saturday nights instead of loitering outside of venues. ‘Alcohol fuelled violence’ is also repeatedly mentioned, yet there does not seem to be any attempt to resolve the underlying structural reasons for it. Mandatory sentencing for onepunch attacks has already been introduced, but this is a punitive measure which comes into effect after an assault. Perhaps the government needs to think about why particular individuals have a propensity towards violence and determine if policies relating to education,

“ ‘Alcohol fuelled violence’ is also repeatedly mentioned, yet there does not seem to be any attempt to resolve the underlying structural reasons for it.” employment and community engagement can prevent violence in the first place. As Max Hardwick-Morris has discovered, violence is not confined to lockout zones or venues with a liquor licence. A victim of a onepunch attack at a McDonald's in Cremorne, he has criticised Mike Baird over the lockout laws, citing the location of his attack, and questioning the agenda behind the reforms. Enforcing the closure of NSW bottle-shops and related outlets by 10pm and last drinks by 3am in designated areas does not adequately address the underlying forces of alcoholism. Perhaps the question should be why certain people engage in alcoholic behaviour and whether they are supported. These restrictions do not prevent alcoholics from purchasing large amounts of liquor earlier in the day to prepare for a drunken night. However, they do restrict the right of a responsible adult to purchase liquor after 10pm. The lockout laws are based on a perceived problem with violence and alcohol in Kings Cross and the CBD. However, as indicated above, the statistics do not support this assertion – assaults were on a downward trend before the lockout laws. The restricted areas exclude an existing and a future casino in close proximity to the zone, which raises issues of consistency and selectivity. The laws do not address underlying socioeconomic problems, for example, which may lead to violence and alcoholism. Instead, the laws enact punitive arrangements which do not fix systemic anti-social behaviour. Has the impact of the lockout laws on our autonomy been for a proper purpose? That is, have the laws addressed the alleged problems of alcoholism and violence that have plagued our community? Or, have the lockout laws been a poorly contrived, kneejerk reaction from politicians? Edition 2, 2016 | 11


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12 | The Brief


Oppressive and Over-Sensitive: Discussing the Anti-Protest Laws AGAINST  Hannah Hargrave Earlier in March, the NSW Government passed the Inclosed Lands, Crimes and Law Enforcement Legislation Amendment (Interference) Act 2016 (NSW), dubbed the ‘anti-protest’ laws, which give police new powers to shut down any protest putting lives at risk or interrupting business.

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xpanding the definition of ‘mine’ to include gas exploration sites, the new changes targeted extremist protests at coal seam gas (CSG) sites. The word ‘extremist’ is certainly not an unfamiliar term. However, most do not associate it with the Knitting Nannas, a group of women who conduct non-violent protests to protect their land and waterways against CSG mining. According to NSW Energy Minister Anthony Roberts, these are the very extremists which the new law aims to stop by imposing a $5500 fine and up to seven years imprisonment for hindering CSG operations. The debate was so publicised that the UN has become involved, stating that such laws would violate ‘rights to freedom of opinion...as well as peaceful assembly and association’. Protesters who break the law are fuelled by conviction against bureaucratic threats to their civil liberties and the destruction of their community. Public demonstrations have been notably fundamental for Australian farmers and communities, such as those in Liverpool Plains, fighting against the threat of CSG to their livelihoods. The threat of silencing any group, whether environmentalists, human rights or political advocates, is a slippery and dangerous slope. Only on the goodwill

[With special thanks to Jonathan Moylan for his continued courage to stand up for our civil liberties.]

and independence of our police will our democratic freedoms be realised. While many of us cannot imagine locking ourselves onto CSG gates, there are communities who feel it is their duty. Jonathan Moylan (JM), a Front Line Action on Coal spokesperson, was part of a global campaign in 2009 to achieve a deal at the Copenhagen Climate Change Conference. He has provided The Brief an insight into what motivates ‘extremist’ protesters. JM: 23 people, including me, an 86-year old Kokoda war veteran, a Buddhist monk, and a local councillor, were bitterly disappointed at the outcome [of Copenhagen] that we occupied the rail corridor leading into the world’s largest coal port - which happens to be in my hometown of Newcastle. We waited until the coal train stopped and entered, with a few of us locking onto the train. We had a large banner that read ‘Greed wrecked Copenhagen: Now it’s up to all of us’. My mind was more focused on the reasons why I had decided to literally put my body on the line for the sake of my future. Later at the police station, a few police officers privately told us that they admired our action. We were publicly criticised at the time, and expected to be. It changed the way the media reported the Copenhagen conference, moving towards the view of ordinary citizens. There are certainly those in government, and in the community, who question the value of ‘lock-up’ protests. What impact have lock-up protests had in achieving democracy in Australia? JM: I am convinced that women >> Edition 2, 2016 | 13


FOR  David Yao

would not have the right to vote in Australia if it had not been for the courageous actions of the early suffragettes in chaining themselves to light-poles.Their actions very powerfully said ‘we won’t be ignored and we won’t wait’. It was far more powerful than a public debate, which can often go in circles and become more watered down the longer the debate goes on. Lock-on devices have also been able to protect places that were at immediate risk. A recent example is the CSG project at Fullerton Cove. Luckily, the blockade was successful. The government has since realised that it was risky to frack so close to residential properties without enough scientific evidence to prove that the practice was safe. The company also went bust - imagine the damage that could have been done if any fracking occurred before the company went bust and delivered no benefits to the community? How do you think the new laws will impact on protesting in the future? JM: Many protesters are doing so because their community or their water supply is at risk. I’ve spoken to residents from Gloucester, Bylong, Bulga, Caroona and Maules Creek who are facing a range of problems caused by extractive industries including contamination, rapid micro-inflation and respiratory illness. Those people are not going to see heavier fines as a bigger problem than the risks posed by CSG. Many people who protest have never done so in their life and shudder at the thought, yet are labelled ‘eco-fascists’ despite not considering themselves environmentalists. Speech has never been particularly free, and less so in a media-saturated world. The cause of protests around coal and gas is the failure of governments to deal with real, physical problems like climate change. Protests aren’t caused by a failure of law - they are caused by a failure of governance. I also think that as people realise that these new laws are not going to result in prison sentences in practice, the spectre of the laws will diminish over time.

14 | The Brief

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here is no denying that the right to peacefully protest is a fundamental freedom in a Western liberal democracy such as Australia. Vital societal reforms have been achieved through peaceful means; one only needs to reflect on Martin Luther King’s leadership in the African-American Civil Rights Movement and Mahatma Gandhi’s non-violence movement which led to India’s independence. In the midst of championing the right to protest, two other fundamental rights enshrined in the Universal Declaration of Human Rights are often swept under the carpet: the right to property and the right to privacy. Hundreds of cases are fought between neighbours every year in Australia to defend their right to be free from interference on their private property. Yet, the same argument is not raised to defend the right of businesses to operate on their land. If your neighbour chained themselves to your front door and refused to leave until you agreed to remove a tree hanging above their property, how would you react? Is this not an invasion of privacy? When it comes to protests, it is critically important to strike a balance between the fundamental right of protesters to peacefully protest and the right to privacy and private property for businesses and individuals. There has been no end to the myriad of hypothetical scenarios featuring mistreated protesters and bullying police. An exploration of the wording and content of the Act is the soundest way to understand each provision and dispel any myths of a growing ‘police state’. Interference with a mine has always been defined in the Crimes Act 1900 (NSW) as destroying, damaging, obstructing or flooding a mine, a channel connected to the mine, or otherwise hindering the working equipment of a mine. The penalty of seven years imprisonment for intentionally or recklessly interfering with a mine has existed


since the 1980s. The new amendment merely inserts a second subsection to s 201 of the Crimes Act which updates the definition of a ‘mine’. Furthermore, this offence will not apply to peaceful protesters who rally outside a mine, hold placards, and do not destroy infrastructure. A new specific offence called ‘aggravated unlawful entry on inclosed lands’ has been created in s 4B of the Inclosed Lands Protection Act 1901 (NSW). It applies when a person trespasses onto land without an owner’s permission, attempts to interfere with the conduct of business, and acts in a way which creates a serious risk to safety to themselves or others on the land, attracting a maximum penalty of $5500. In 2014, one protester at Maules Creek placed her head under a bulldozer blade while others suspended themselves from trees, creating a serious risk for both themselves and the rescue workers. Such an offence is necessary to deter the dangerous actions of individuals who put their own or other people’s lives at risk, and the large fine acts as a deterrent. The most contentious part of the legislation appears to be the additional search and seizure powers of the police. However, even these powers have been massively exaggerated by critics. Section 45B of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA) allows police to stop, search and detain a person only if the officer reasonably suspects that the person has a lock-on device intended to be used to interfere with business activity in a manner likely to create a serious risk to individual and public safety. Section 45A states that only lock-on devices may be seized by the police in this manner without a warrant. Often, the use of lock-on devices by protesters requires specialised police to remove the protester from trees or equipment without harm, resulting in the diversion of important police resources from the wider

community. These additional powers assist police in searching and seizing lock-on devices before they can be used. Therefore, it is almost impossible for the police to confiscate or dispose any personal property that is not used to lock-on. Section 200 of LEPRA prohibits police from giving directions to ‘move along’ people engaged in industrial disputes and does not authorise police to break up a genuine demonstration or protest. Exceptions to these limitations exist in ss 200(3)-(4). This power is limited only to individuals obstructing traffic and not to those on the sidewalk. In 2013, forestry worker John Creighton was killed by a falling log while forced to stand between Greens protesters and a dangerous logging site which he was employed in, complying with OH&S regulations in the absence of police. These new reforms will ensure that the police can protect both workers at the site and protesters from danger. There is now balance between the right to protest, public safety, lawful business operations, and police powers to uphold the law due to the new legislation. A review into these laws after three years is also mandated. If they are found to be dysfunctional, the legislation can be amended and abolished. The objectives of a peaceful protest can be achieved in a civil manner without locking oneself to dangerous machinery or blocking traffic. Our understanding of the ‘anti-protest’ laws should be shaped through careful breakdown of the legislation which explains its operations and specifically outlines the police powers permitted and prohibited by law, not by emotional stories without real analysis of the law. At the time of writing, the higher penalties for hindering mine machinery and aggravated trespass had been signed into law, but the extended move-on powers and search and seizure powers had not. Neither Government House, NSW Parliament nor the Minister for Resources and Energy responded to clarifications on the reasons for delay.

Edition 2, 2016 | 15


Religion in the Public Space ď € Wendy Doan

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eligious freedom is under attack - or so it seems. The aggressive policy reactions and political commentary in the US could be a sure sign that the foundations of religious liberty are being dismantled. A brief glimpse around the world reveals some violent cases such as secularists being fatally attacked in Bangladesh, the persecution of Coptic Christians, the kidnapping of young girls by Boko Haram, and brutal Chinese regimes. Despite good intentions, diplomacy and religion are often entangled in a legal mess. It was not until recent times that the separation between church and state became a contentious debate. The religious tradition is considered the greatest antagonist to social equality in matters of marriage, body and behaviour. Legislation is often a double edged sword. For example, a US federal court ruled in favour of a Sikh in the

16 | The Brief

US Army, allowing him to maintain his turban and facial hair. This claim was made under the very same legislation which is currently used to discriminate against women, LGBT people and others. But faith occupies a unique place in society. As a result, it is afforded many concessions. But are these concessions an exercise of freedoms or privilege? Could the state be going too far in removing any privileges? Consider some examples where religious freedom has been challenged. In Ronald Williams v Commonwealth of Australia, the High Court compelled faith-based schools to provide an LGBT friendly curriculum, regardless

“The religious tradition is considered the greatest antagonist to social equality in matters of marriage, body and behaviour.�


of any conflict of religious conscience. In Allowing the free reign of religion removes The Hospital v T, courts allowed a blood accountability. We cannot derive reasonable transfusion of a child, despite it being against evidence from religion in any matter involving the parent’s faith. In Switzerland, the Catholic public policy. Cultural and religious diversity Bishop of Chur, Vitus Huonder was briefly thrives in a secular society. The secularist jailed for preaching the execution of gays. approach does not levy one faith above Is this a blatant denial of religious freedom? another and the secular objectives are for And is the state overreaching? the betterment of society rather than a select The Human Rights and Equal Opportunity group. Already, the non-religious have been Commission found that Australian legislation tolerant of the occupation of faith-based protecting religious freedom is comparatively initiatives such as compulsory scripture in weak to other common law countries. public schools and tax exemptions. There is no Australian law which expressly Secularism is not an attack on religious protects religious freedom except for the liberty - it is a mechanism to enforce the rule of Constitution Act 1934 (Tas). Canada, on the law equitably. Religion is losing authority over other hand, expressly protects individuals thought and conscience; it has monopolised from discrimination based on religion in the morality, spirituality and even the law, and Canadian Charter. we have reached a time where this is no The common law longer acceptable. Still, states that religious current legislators are “Religion is losing liberty is a ‘fundamental generating momentum authority over thought right because our society to reinforce religion in tolerates pluralism and the public space. Those and conscience; it has diversity’, which is the who will suffer most monopolised morality, very essence of a free are the non-religious or spirituality and even the society. But involving adherents to faiths not law, and we have reached a faith in matters of fortunate to have the state causes issues of time where this is no longer state’s support. disparity. Which religion Privately held acceptable.” takes precedence? This beliefs should demand has been addressed a degree of respect in s 16 of the Australian Constitution, which but they should not be immune to criticism, states that the government should not put especially if it directly affects the public. Yet, one faith before another and may not enact it seems the Christian lobby holds the power a public religion. So why is the Christian faith and the influence to deprive the recognition favoured over other practicing creeds? of a union before the eyes of the law. Just In a 2015 report led by Attorney-General as the State should not have the power to George Brandis, the Australian Law Reform decide the truthfulness of any one faith, the Commission found that current statutes do not Church should not decide what is socially ‘significantly encroach on freedom of religion unconscionable. in Australia’. It was also suggested that To move forward as a national community, ‘legislative definitions of discrimination [should] we must approach these discussions with recognise religious practice or observance as respect but also candour, recognising that lawful discrimination, where the conduct is a criticism will be the consequence of publicly proportionate means of achieving legitimate expressing unpopular opinion. Sacred beliefs religious objectives’. To what extent should do not deserve special treatment especially the exercise of religion be tolerated especially if it disadvantages others who do not profess if it violates the rights of non-believers? Should those beliefs. Religion is no longer ubiquitous faith-based objectives be prioritised, even if and has no place in the public space - it is the benefits are not enjoyed by all? time that this is applied in policy. Edition 2, 2016 | 17


Hong Kong:

The Boiling Frog  Kathlyn Gonzales

I

f a frog were to be thrown into a pot of boiling water, it would thrash and jump out. But if the frog was to be placed in a pot of cold water and slowly boiled, it would not perceive danger and would be gradually cooked to death. This is analogous to the Sino-British Joint Declaration which placed Hong Kong in ‘boiling waters’ since China’s repossession of the region in 1997. The promise of autonomy and the maintenance of liberties under the ‘one country, two systems’ principle reassured Hong Kong’s citizens of a governance resembling its experience during British occupation. This degree of autonomy was to last 50 years under the Sino-British Joint Declaration. However, although Beijing adopted a hands-off policy in the first ten years following the Declaration, it continues to fan the flame of interference and Hong Kong is feeling the heat. In 2008, China’s imposing shadow became more apparent when it was revealed that Hong Kong was governed by two bodies: the Hong Kong Special Administrative Region Government, and a body of Chinese officials which oversaw the region’s issues on the mainland. This raised doubts amongst Hong

18 | The Brief

Kong’s citizens about the sincerity of Beijing’s adherence to its ‘hands-off’ policy. This raises three critical questions. Firstly, does China have legal authority to interfere with the autonomy of Hong Kong? Secondly, is China’s interference for its own benefit? And thirdly, up to what point will Hong Kong tolerate China’s interference before retaliating? Hong Kong is an autonomous territory with the capacity to make decisions independent of external influence. This is enshrined in the Hong Kong Basic Law (HKBL), which provides exclusive liberties unavailable to Chinese citizens including the freedom of speech and the prohibition of arbitrary or unlawful arrest. However, the authority of the HKBL has been widely contested and has prompted civil action. The Umbrella Movement in 2014 sparked the ‘Occupy Central Movement’ campaign calling for civil disobedience following Beijing’s election reforms which granted universal suffrage in Hong Kong as per Article 24 of the HKBL. However, only candidates pre-selected and approved by officials in Beijing would be eligible for election in 2017. The movement, in protest of these changes, ended in police using tear gas and violence. The disappointment of this movement in failing to achieve ‘genuine’ universal suffrage signalled the deterioration of democratic processes which Hong Kong had aspired to strengthen and exposed its weakening autonomy. Inflaming this frustration further was the disappearance of five men associated with the Causeway Bay Books disappearances.


“The disappointment of this movement in failing to achieve ‘genuine’ universal suffrage signalled the deterioration of democratic processes which Hong Kong had aspired to strengthen and exposed its weakening autonomy.” Located in a narrow alley way in Hong Kong, Causeway Bay Books distributes politically sensitive and controversial content, ranging from the power struggle in the Communist Party to the predicted downfall of its leader, Xi Jinping. In the months between October and December 2015, five men associated with or employed by the bookstore disappeared under suspicious circumstances; the most disturbing of which was the disappearance of Lee Bo. On 30 December 2015, Lee called his wife from Shenzhen when there was no record of him ever crossing the border from Hong Kong. Lee told his wife that he was assisting in the investigation of the disappearance of his four colleagues. The disappearance of Lee has alarmed Hong Kong citizens as he appeared to have been abducted in contravention of the HKBL’s unlawful arrest prohibition. Ultimately this raises the issue about the effectiveness of the HKBL. Where does this document derive its authority? One could argue that the HKBL derives its authority from the Sino-British Joint Declaration as it reaffirmed Hong Kong’s autonomous experience under British occupation. The Sino-British Declaration states that the region ‘will enjoy a high degree of autonomy’ and that the ‘systems in Hong Kong will remain unchanged ensured by the

law in the Hong Kong Special Administrative Region’. As well as this, Britain’s Foreign Secretary, Philip Hammond, stated that an ‘egregious breach’ of the Joint Declaration would eventuate if Lee were in fact abducted in Hong Kong. If this notion were correct, China’s intrusion would be unlawful in the context of the Joint Declaration. However, this argument may be refuted by the idea that the purpose of the Declaration is first and foremost a ‘transfer’ of ownership of Hong Kong from Britain to China, as opposed to a document safeguarding Hong Kong’s autonomy. In this case, the autonomy of Hong Kong is irrelevant. Hong Kong must first be recognised as a mere entity of China. Hence, as evident in 2004, the official interpretation of the HKBL determined that the Standing Committee of the Central Government of China had absolute authority over contested sections in the HKBL which contravene the laws of mainland China (such as election processes). Therefore, China is permitted to intervene in the affairs of Hong Kong. However, despite Beijing’s continuing ‘reign’ over Hong Kong, its actions are not without consequence. Under the flame of disillusionment and dissatisfaction, Hong Kong has sprung with discontent and action to retain autonomy is gaining momentum.

Edition 2, 2016 | 19


summerclerks

aspire. what are your hopes and ambitions for the future? contribute. how will you make a difference to HDY, our profession and our community? thrive. what do you need to reach your full potential? Who are we?

What’s it like to be a summer clerk at HDY?

Henry Davis York is an independent Australian law firm with talented lawyers and other professionals. Our clients are primarily from the financial services and government sectors. We are also proud to work alongside an impressive list of clients from other sectors to achieve their objectives. We do this in a way that clients and staff alike enjoy the HDY experience and choose us as their preferred legal services provider. Our clients include the big four Australian banks, global investment banks, insolvency & accounting firms, fund managers, property developers, manufacturing companies, regulatory bodies and government agencies.

OUR PROGRAM

WHAT THIS MEANS FOR YOU

Comprehensive orientation program during which you will attend training sessions and meet the people you will be working with.

You will be ready to hit the ground running from day one and be given the opportunity to contribute and make a difference.

Rotations through 3 practice groups of your choice.

You will enjoy hands-on experience in the areas of law most relevant to helping you with whatever you aspire to achieve.

Supervision, advice, training & feedback from partners, senior associates and a mentor.

You will be well supported and developed throughout your time with HDY to help you thrive.

What are we looking for in a summer clerk?

Why should you apply for our program? We understand what you are looking for in a summer clerk program. We listen to what our summer clerks tell us about their experience with us and how we can build on it each year. This means we know what’s most important to you and our program delivers this for you:

Banking & Finance

Construction & Major Projects

Corporate/ M&A

The quality of our people is the key to our success. Recruiting the right people at every level is therefore a critical part of our strategy. Our summer clerks become part of the HDY team and contribute to our growth and culture from day one. So, they must be:

Dispute Resolution

Government Inquiries, Commissions & Inquests

Self-driven, highly motivated and eager to develop and take on responsibility.

Exposure to high quality, meaningful work.

Energised by being part of a team and focused on “we” rather than “I”.

The opportunity to contribute and take on responsibility as part of a team.

Respectful of others and respected by others.

A supportive, collaborative environment where your contribution matters and which fosters your development.

The chance to work with motivated and talented lawyers and have fun too.

We offer our clients a wide range of legal services from the following practice areas:

Insurance

Intellectual Property

Investments and Financial Services

Property, Environment & Planning

Restructuring & Insolvency

Tax

Technology

Workplace Relations & Safety

a.c.t now 20 | The Brief

A successful candidate will have a solid academic record, some relevant work experience, demonstrated leadership skills and a keen interest in commercial law.

visit our website to apply and start your career with HDY 15 June – 17 July 2016 www.hdy.com.au/summerclerks


aspire. contribute. thrive.

summerclerks

aspire. what are your hopes and ambitions for the future? contribute. how will you make a difference to HDY, our profession and our community? thrive. what do you need to reach your full potential?

a.c.t now

visit our website to apply and start your career with HDY 15 June – 17 July 2016 www.hdy.com.au/summerclerks Edition 2, 2016 | 21


Human Dignity

and the Commodification of Human Life  Tanya Thomas

R

apid advancements in medical science over recent decades has sparked debate on controversial ethical issues such as the commodification of human life. The clash between science, law and ethics is evident when considering the morality of human cloning and embryonic stem cell research, with such developments having the potential to undermine basic values and dignity of human life. What is human cloning? Cloning refers to the process used to create a genetically identical replica of a cell, tissue or organism. Specifically, it is the creation of a genetically identical copy of an existing or previously existing human being, or otherwise cloned tissue from that individual. Since the establishment of the Human Genome Project in 1990 and the successful cloning of ‘Dolly’ the sheep in 1996, scientists have successfully cloned numerous animals including goats, cows, rabbits and cats. While the technology for human cloning does exist, its implementation has encountered fierce opposition due to its inherent disregard of human dignity. At this stage, a distinction must be drawn between ‘therapeutic cloning’ and ‘reproductive cloning’. Therapeutic cloning refers to either the creation of a clone to harvest cells to provide ‘spare parts’ for the individual’s ageing body, or the creation of clones for general research into pathology

22 | The Brief

and repair. A benefit of therapeutic cloning is the production of embryonic stem cells, which involves the production of early embryos for use as stem cells in the production of human tissue such as bone, brain and muscle. Stem cells can be used to replace cells damaged by conditions such as Parkinson’s disease, a heart attack, or for spinal cord damage. Reproductive cloning, which is the more controversial of the two, is the production of a genetic duplicate of an existing organism. Somatic cell nuclear transfer (SCNT) is the most common cloning technique, which involves the insertion of a cell nucleus from a body cell into an egg where the nucleus has been removed. This clonal embryo is triggered to develop through the use of electricity or chemicals, and then placed into the uterus of a female to complete its development. These issues were recently brought to light when Xiaochun Xu, CEO of Chinese biotechnology firm Boyalife, expressed hopes to move into the human cloning business in the future. Boyalife, which is currently building one of the world’s first animal cloning factories, hopes to be cloning 1 million cows a year by 2020, along with other animals including police dogs and racehorses. It aims to collaborate with South Korean company Sooam Biotech Research Foundation. Sooam Biotech is heavily invested in the cloning of woolly mammoths and even recreating pets for their owners, which is said to be a lucrative market. Xu is hopeful that people will eventually embrace cloning,


saying that ‘unfortunately, currently, the only way to have a child is to have it be half its mum, half its dad. Maybe in the future you have three choices instead of one. You either have fifty-fifty, or you have a choice of having the genetics 100 per cent from [the mother] or 100 per cent from [the father]’. Compromising Human Dignity Both embryonic stem cell research and human cloning have faced strong opposition. Safety considerations pose an imminent threat as the production of the clones is often the result of a number of failed attempts. The clone itself suffers detrimental health effects such as defects in vital organs, problems with immune function and premature death. Perhaps the strongest argument against human cloning is that it undermines the sanctity of life and the value of human dignity. This is because while the main purpose of cloning animals is to create economically efficient breeds, cloning humans is being suggested as a procreative technique and a ‘cure’ for infertility. This is an unnecessary and dangerous departure from natural evolutionary processes and established social practices. Natural procreation creates individuals with a unique configuration of genes, leading to a huge range of variability. The availability of cloning as a reproductive technology would represent an inherent disrespect of human diversity and ability. It undermines the importance of accepting people as they are and creates a society that

promotes conformity rather than embracing diversity. In the long term, cloning also poses the threat of creating permanent changes to the human gene pool, threatening the fitness and survival of future generations. Therefore, the use of such techniques would markedly alter our relationship to the natural world and to each other. Scientists advocating for its legalisation claim that though a clone is genetically identical to its parent, it would never be a ‘true’ and identical replica of an individual as the clone would exhibit different personality traits and different behaviour. Despite this argument, bioethicist Kerry Bowman from the University of Toronto has commented that ‘many people find cloning abhorrent…very unnatural and very disturbing’. This is due to the inherent immorality of the commodification of human life. Reproductive cloning would turn procreation into a manufacturing process, whereby human children are objects of deliberate design with desirable characteristics. This would undermine our established notions of human individuality and dignity as it fails to encourage diversity and perpetuates exclusion. It is also important to note that human cloning does not address any current medical problems to which there are no alternative solutions. The International and Domestic Legislative Framework International legal regulations and policies on therapeutic and reproductive cloning and >>

Edition 2, 2016 | 23


“The availability of cloning as a reproductive technology would represent an inherent disrespect of human diversity and ability.” human stem cell research vary, ranging from complete prohibition to little or no regulation. Currently, 31 countries including Germany, Russia and France have banned human cloning outright. Fifteen countries, including the UK, Japan and Israel have distinguished between reproductive and therapeutic cloning, banning the former but not the latter. Other countries such as the US currently have no federal legislation governing cloning or human stem cell research. In other jurisdictions such as Canada and Belgium, both therapeutic cloning and embryonic stem cell production are permitted while reproductive cloning is banned. In Australia at the Commonwealth level, the Gene Technology Act 2000 (Cth) prohibits the cloning of ‘whole human beings’, with ‘cloning’ defined as the ‘cloning of a whole human being [through] the use of technology for the purposes of producing, form one original, a duplicate or descendant that is, or duplicates or descendants that are, genetically identical to the original’. The Research Involving Human Embryos Act 2002 (Cth) and the Prohibition of Human Cloning Act 2002 (Cth) were passed in December 2002, establishing a strong regulatory framework, prohibiting human cloning and regulating the use of human embryos created through reproductive technology. Reproductive cloning is banned under the Act, while therapeutic cloning is permitted under a license issued by the NHMRC Embryo Research Licensing Committee. In 2006, the Prohibition of Human Cloning for Reproduction and the Regulation

24 | The Brief

of Human of Human Embryo Research Amendment Act 2006 was introduced, coming into effect in 2007. Queensland, New South Wales, the Australian Capital Territory and Northern Territory do not have state legislation regulating embryonic cloning. Further complications arise with the definitions of ‘cloning’ and ‘embryo’ differing between various state legislation. In Victoria, it is considered that cloning an embryo for any purposes is prohibited, while in Western Australia, embryonic cloning is prohibited only if it is undertaken for reproductive purposes. The South Australian definition differs to both these states, focusing on the particular cloning technique in its definition. Future Directions It is inevitable that advances in cloning technology will raise a plethora of moral and ethical concerns. Despite the supposed benefits of new genetic technologies, it is important that the social and legal arguments against such experimentation are not ignored. The use of such techniques would not only markedly alter our relationships to each other and to the natural world, but it will also drastically undermine fundamental human values such as acceptance and inclusion. For regulators in Australia, the challenge lies in establishing a legislative framework which encourages scientific innovation, while ensuring that it is not taken too far. A more uniform and consistent approach should be taken in any proposed legislative framework in Australia.


The Cuban Thaw:

A glimmer of hope amongst the gloom?  Mary Habashy

U

S President Barack Obama’s visit to Cuba in March this year signified the beginning of a peaceful relationship between Cuba and the world. For the first time since 2014, the hostility spanning 54 years between Cuba and the US is thawing. Change is winning the war against tradition; the Cuban public yearns for freedom whilst the government fights to suppress it. Only after understanding the rich history of this nation and the significance of President Obama’s historic visit can one begin to comprehend the urgent need for reform within Cuba that will uphold human autonomy. Cuba’s unstable relationship with the US dates back to 1898, when at the conclusion of the Spanish-American War, Spain, in defeat, signed the rights of its territories to the US. Paradoxically, despite Cuba gaining independence, the US continued to play an imposing role. Until the Cuban Revolution, the two nations cooperated. On January 1 1959, Fidel Castro and his men overthrew the Batista Government. US-Cuban relations continued until Castro’s Government in 1960 seized private land, nationalised private companies, and heavily taxed US products to the point that US exports halved within two years. The US responded by imposing uniform trade restrictions with the exception of food and medical supplies. This ended

when Cuba began trading with the Soviet Union, provoking former US president John F. Kennedy to impose an embargo, severing diplomatic ties. By banning all forms of commercial, economic and financial relations with Cuba indefinitely, no longer could cars, food, telephones and televisions be imported. Hardship was rife and since 1961, diplomatic relations have been mediated by Switzerland. The relationship with the US took an even more dangerous turn in the Cuban Missile Crisis, and it would be a long time before the US attempted to re-establish relations with Cuba, an event dubbed the ‘Cuban Thaw’. The Cuban Thaw lessened the tension between the two nations, particularly with regards to trade and tourism. Despite the embargo, the US has exported certain goods to Cuba like frozen goods and farmed food since 2001. In his 2015 State of the Union Address to Congress, President Obama urged lawmakers to lift the embargo against Cuba permanently. However, since easing trade restrictions in 2014, tourism has flourished, and is both a driver of income and social change for Cuba. This year alone, there has been a 36 per cent increase in US tourists visiting the country. As a result, the fastest growing industries in Cuba are tourism and hospitality. Hotels, commercial property and restaurants are all being repaired to accommodate the influx of tourists. Edition 2, 2016 | 25


1928 1959 1960 1961 1962 1966 1980 199 Calvin Coolidge is the last US president to visit Cuba

Cuban Revolution – Fidel Castro takes power

Growing economic antagonism – US imposes first trade embargo

Failed Bay of Pigs invasion US breaks diplomatic ties

Hope is one emotion felt when considering Cuba’s future development. The deterioration of its autonomy is one secret which the world has become privy to. Cuba’s Government utilises the Communist ideology, where it has complete oversight of all aspects of Cuban society such as the press, arts and academia. This places severe restrictions on citizens who are also unable to exercise freedom of speech. For decades, human rights abuses such as torture, unfair trials and arbitrary imprisonment by the Cuban Government were unknown in the international community. If Cubans cross the line in criticising the government, a person may lose their job, have their children’s future education denied, or become a political prisoner. The number of political prisoners in Cuba remains unknown although the Cuban Commission for Human Rights and Reconciliation suggested there are currently 70 political prisoners. Different statistics state otherwise. In 2015, 4,264 26 | The Brief

US imposes full trade embargo Cuban Missile Crisis – US agrees to not invade Cuba

US Congress passes Cuban Adjustment Act

Agreement to Mariel boatlift and mass emigration to Florida

people were imprisoned for short periods of time, while others are facing consequences for exercising freedom of speech. An example of how desolate these consequences may be is the recent firing of Cuba’s most renowned advocate of economic reform, Omar Everleny Pérez, from his position at the University of Havana. It is alleged that information was shared with the US which highlighted the bleak plight of those fighting for basic human rights in a repressive nation. President Obama’s visit to Cuba has reignited the discourse surrounding human rights in Cuba, with the country split in opinion. Officials issued warnings about the US’ ‘imperialist aspirations’, with Cuba’s Foreign Minister Bruno Rodriguez describing the presidential visit as an ‘attack on the foundation of our political ideas, our history, our culture and our symbols’. President Raúl Castro classified the US as an adversary whose intention was to ‘seduce’ Cuba’s most vulnerable and

HelmsBurton passed strengt US san


96 1998 2008 2009 2012 2014 2015 2016

-

Act d– thens nctions

Arrests of the Cuban Five

Presidential handover to Raùl Castro

Obama lifts travel restrictions

Cuba lifts exit visa restrictions

US and Cuba move to restore diplomatic ties

Cuba removed from terrorism list US and Cuba reopen embassies in Washington DC and Havana

US approves more business trade with Cuba Travel restrictions further eases Obama visits Cuba

“For decades, human rights abuses such as torture, unfair trials and arbitrary imprisonment by the Cuban Government were unknown in the international community.”

intellectuals. It is clear that Cubans face a tough battle against its leaders in addressing the reform of human rights. Cuba’s reintroduction into the world has been met with acceptance. Various nations such as Canada and Russia have supported the restoration of the US-Cuba relations. What remains to be seen is how successful Cuba will be in adapting to the modern world since

it has spent the past few decades in near isolation. As Cuba rejoins the international community, it is hoped that it will take on board the vast human rights developments that have occurred. How Cuba will react to such enormous challenges is yet to be seen, but there is hope that a nation so hidden for many years will flourish once more.

Edition 2, 2016 | 27


Devil’s Advocate

For 

T

Anti-Corruption Laws: Beneficial or Burd

Olivia James

o say that corruption laws are unnecessary is to ignore reality. The human condition causes all individuals to want more than they have and to benefit off the disenfranchisement of others. This is evidenced historically, politically and socially. However, to the same extent that ambition is part of the human condition, the desire to help those in need drives action. Corruption laws have foundations in this desire, as they seek to protect people that cannot protect themselves. The not-for-profit organisation FIFA, as well as the ineffectiveness of corporate social responsibility (CSR), are examples of the desire for profit. One of the most recognised organisations, FIFA has come under heavy fire with claims surfacing that FIFA executives have taken bribes. By May last year, the US Federal Bureau of Investigations indicted 14 officials connected with wire fraud, racketeering and money laundering. The 2014 World Cup was also surrounded by controversy from the moment the host nation, Brazil, was announced. Not only did the games cost billions of dollars for Brazil, but FIFA threatened to change locations after Brazil refused to amend a law prohibiting alcohol sales at sporting matches. It was only after the ‘Budweiser Bill’ was passed, allowing for the exclusive sale of Budweiser Beer (one of FIFA’s most generous partners), that they revoked the threat. The lack of corruption laws in Brazil meant that the nation suffered not only great financial setbacks but also losses in the protection of citizens’ wellbeing. But FIFA is just one corporation and it would be unwise to paint all corporations with the same brushstroke of corruption. Take CSR, which is good in theory. But can we really expect that a corporation, whose entire goal is to profit, will prioritise the rights of vulnerable people at the expense of financial growth? 28 | The Brief

It has been predicted that 1,200 migrant workers in Qatar have died since Qatar was named host nation of the 2020 World Cup. What justification can be made to host the Cup in what is essentially a modern day slave state? According to an ongoing investigation by CNN, this is especially concerning as 94 per cent of the unskilled labour force in Qatar made up of migrant workers. Not only is this an issue regarding fundamental human rights, but it encapsulates the unethical practices by unmonitored and unregulated business. Just because there are high numbers of Australian companies adopting a CSR approach to business does not mean that CSR is adequately addressing social and political concerns. CSR today can be seen as a PR strategy rather than a genuine attempt to create a socially conscious business. When companies take a CSR approach, they are essentially at an impasse with the government on the issue of regulation. This raises the question: if CSR is eliminating any unjust practices - which exploit the least protected - then why is regulation such a threat? If a corporation’s approach to social responsibility is genuine, then supporting governments would only prove to benefit their public persona. In a world of multinational business, companies behaving unethically without trace is unavoidable. Regulation is not a threat to business; rather, it is a chance for businesses to put their money where their mouth is. In an age where organisations like FIFA are running rampant with claims of bribery and disregarding human rights, and where CSR has failed to resolve global issues regarding ethical business practice, it is clear that corruption laws are the legislative solution. These laws would give corporations the opportunity to prove that they genuinely care about their responsibility to respect the rights of those vulnerable to their operations.


dening? Against ď…Ľ

A

Dusan Djukic

nti-corruption laws in relation to international business create more problems than they solve. The main reason is due to over-regulation. Anticorruption laws look good on paper but in practice they heavily limit corporate activity. What is needed instead is self-regulation through corporate social responsibility (CSR). Moving away from heavy regulation towards self-regulation not only provides economic prosperity but it also promotes and enhances basic human rights. The objective of CSR is to consider and balance all the various stakeholders within a corporation (and not just the direct shareholders). Anti-corruption law takes a narrow-minded view when dealing with corporations, being to simply control and direct the corporation. When CSR is ingrained within a corporation’s culture, CSR can do more than the law ever could by itself. This is because corporations, when following the law, will either follow the bare minimum or completely avoid it. The focus on anti-corruption law is simply on internal responsibility instead of external accountability outcomes. This means the law runs the risk of benefitting corporate power-mongers who can bend the law to their interests. The corporation’s primary goal is profit-making, but this does not mean that CSR is a far-fetched reality. In 2003, 71 per cent of Australian corporations reported they had developed a CSR approach. Furthermore, an analysis found that companies adhering to CSR had outperformed the market by at least three per cent for the past 10 years. CSR is not only an economic incentive but it allows various stakeholders instead of just shareholders to be considered. CSR is a much more effective method of pleasing various stakeholders while not restricting corporate activity. But how does CSR actually work in practice? The United

Nations (UN) drafted a prototype norm that will help promote and protect human rights in regards to international business. The UN indicates the norm is not binding, but rather it will require corporations to consult with various stakeholders (shareholders, governments, local communities) and report annually on their human rights obligations. All is to be monitored by a UN body. The implementation of CSR in promoting human rights is evident through how the Newmont Mining Corporation conducts its activity in the Yanacocha mine in Peru, where regulations are lax. The mine produces gold and the company pays about $89 million of government tax per year with half of the tax remaining with the regional government. The mining company conducted a CSR project which involved constructing over 635km of rural roads; funding connection to portable water systems for 7,000 households; and from 1993-2007, electrifying households in rural areas, increasing electrification from 3 to 39 per cent. The implementation of CSR by the Newmont Mining Corporation is just one example of many effective ways CSR can be used to benefit society at large while appeasing shareholders. Anti-corruption laws, however, tend to hinder both economic and human rights progress. The Yanacocha mine case study is one example of how CSR promotes human rights. CSR requires responsibility that is not just a call for bare conformity to the law but instead requires reflection and understanding of various stakeholder interests. The enactment of many laws and strict procedures looks good on paper but in reality all it does is cause unnecessary problems. Corporations want to be seen positively, and this trend towards CSR will help promote human rights while considering the various stakeholders at hand. Edition 2, 2016 | 29


The Basics of an Income Guarantee  Rhiannon Bell

T

he Universal Declaration on Human Rights and the International Covenant on Economic, Social and Cultural Rights, as well as other international treaties, recognise the importance of so-called ‘third generation rights’. Difficulties manifest, however, when attempting to practically translate these rights into reality. One pressing example is the right to economic security, which is an area of need in Australia given the 2.55 million Australians living below the poverty line, with children accounting for 23.6 per cent of this figure. As early as the 1920s, scholars have suggested providing universal income support, sometimes termed a ‘basic income guarantee’ or a ‘negative income tax’. Put simply, this involves paying money to living individuals. What is it? Several terms are typically used in different ways to describe this policy, which makes it difficult to understand the actual meaning. In this article, the policy involves payments that fulfil three major principles: 1) they apply to all and without conditions, 2) they provide some incentive to work while ensuring that people can pay for basic costs of living and 3) while the payments are fixed, they adjust to compensate for economic fluctuations. In some cases, supplementary payments may be made to people who are unable to work for 30 | The Brief

additional funds, but all are equally entitled to the basic income. Therefore, it is not meanstested. There are also two main terms to be aware of: the basic income guarantee and the negative income tax. A basic income guarantee or ‘universal basic income’ is a regular payment of money to each person, without conditions. A similar version is the ‘negative income tax’, which involves providing the payment only to those who have no other income. This article will deal more directly with the grounds for implementing either of these policies. Where would the money come from? In 2012, Allan Sheahen, a member of the US Basic Income Guarantee Network Board, discussed the feasibility of an income guarantee in the US, and found that it was possible with some adjustments to the existing system. While it does not appear that anyone has calculated similar modelling for an Australian context, this program would require taxpayer funding, primarily from income taxes. It would replace many existing payments. Furthermore, by eliminating the need for means-testing, there is a reduction in the costs of implementing the policy. Why implement this policy? Aside from the argument that this is a means of protecting the right to economic security, there is the need to adjust the existing system


to meet the changing nature of employment. Today’s graduates may struggle to find employment in the first place, and others do not expect to stay with the same firm for the duration of their career. Furthermore, with growth in artificial intelligence, many of the jobs currently completed by humans are under threat. Some jobs will still exist, however - there is likely to be growth in other areas, such as health services, largely due to the ageing population. By having a guaranteed income, people can worry less about how they will afford the basics of living. Instead, they can pursue their passions, take risks that may lead to the latest innovation, and spend time on jobs traditionally paid less. Some even argue that it will empower people to leave jobs where working conditions are poor. Will this work in practice? There are two major objections to implementing universal income support. Firstly, people complain that others are getting nothing for free. Unemployment is viewed as a symptom of laziness. This argument, however, fails to consider that anyone could be in a position where they were unable to support themselves financially, as unemployment is often not a choice. Moreover, no system can ever guarantee that every individual will participate fully in society. Finally, although everyone enjoys their holidays, employment does have an important role in psychological well-being. It is therefore likely that people will continue to contribute to society in some way. Secondly, taxpayers often question whether those in poverty should be allowed to decide how they spend their money. In particular, there is a perception that some will waste their money on ‘non-essential’ goods, such as alcohol and drugs. A recent paper dismisses this stereotype, and even where this may be a legitimate concern, such as where

“Instead of punishing those living below the poverty line, we should focus on achieving substantive equality for all.” people are addicted to certain substances, it represents a symptom of a larger and more complex cause. Furthermore, denying funds will not resolve these issues, and studies suggest a correlation between increased financial pressures and increased crime. Instead of punishing those living below the poverty line, we should focus on achieving substantive equality for all. Whilst this typically involves a substantial focus on empowerment, by giving people the freedom to make their own decisions about what is best for them, we are making the first step. By encouraging the development of capacitybuilding, people will be able to manage their own affairs, particularly their finances. This independence may provide the impetus for long-term sustainability. Conclusion We may never achieve a perfect system where all have equal access to economic security. However, it is worth pursuing a more effective means of distributing taxes for the benefit of all members of society and not just the powerful. A universal income guarantee may be the solution, though it appears unlikely that any politicians are willing to try such a bold idea. Although some experiments have been conducted, these only go so far in predicting whether this will succeed. Even if the program was successful, it will be necessary to continue addressing the underlying causes of poverty. As a starting point, this model will at least inspire discussion about how best to reform income support.

Edition 2, 2016 | 31


Social Justice Corner

Violence Against Women, Australia Says No. Or do we?  Shivani Gosai and Smeetha Jayakumar

C

hipped teeth, blood dripping down her nose and smeared across her mouth; brutally battered, mentally distraught and confused. At the mere age of 19 seeking safety and help, Ashlee Savins reported her assault to the police. The perpetrator was her 21 year old boyfriend, Justin Toro, who denied the allegations and stated that Savins fell down a set of stairs. Savins sought the help of police to pursue a case against Toro, but was discouraged when she was advised, ‘it’s your word against his’. She endured not only a violent attack by her former partner, but also a lost hope and confidence in the law to protect her. In 2004, James Ramage murdered his wife but received a conviction of manslaughter. Provocation in the form of sexual insults was relied upon as mitigating factors, which the jury accepted. In 2012, Chamanjot Singh dodged a murder conviction and instead received a sentence of six years imprisonment for stabbing his partner to death. He testified that his partner provoked him by telling him that she did not love him. Similarly, Mrs Baden-Clay was murdered at 32 | The Brief

the hands of her husband in 2012. Again, the charge of murder was set aside and substituted with manslaughter. It is apparent that there is a significant gap in the law resulting in Australia’s inability to achieve justice in matters of violence against women. According to the Australian Human Rights Commission, one in three women around the world experience a degree of violence at some point in their life. Amnesty International states that violence against women is one of the most widespread and prevalent abuses in the world. Developing countries, in particular, use violence against women as a method of punishment and discipline. This includes cases of marital violence in India, ritualised female genital mutilation in Papua New Guinea and stoning in Afghanistan for crimes as severe as theft to as minor as exposing ankles. However, Australia holds a strong stance regarding violence against women with several awareness initiatives introduced. A prime example is White Ribbon Day on November 25 in alliance with the International Day for the Elimination of Violence Against Women, introduced by the UN. The White


Writer Smeetha Jayakumar further discussed the issue of domestic violence with Rochelle Zats (RZ), the Information and Referral Officer at the Redfern Legal Centre. The full interview is available in the online version of The Brief Edition 2 (www.muls.org/the-brief). Below is an extract. How does the work you do specifically aim to reduce the number of DV victims and the severity of the issues that you deal with? RZ: So, our service aims to reduce the severity of violence experienced by victims by responding immediately. Our service is mandated to contact women after each police incident. We have found that by this immediate and repeat response we are able to assist victims of domestic violence at whatever part of the process they are in. Often on the first contact with a client they will decline needing any support however months later they will call the service back and say ‘I wasn’t ready before but I am now’. Our ‘safety action meetings’ aim to address the threat of serious assault and homicide and increase safety of victims and their children. Do you feel like the work you do has actually reduced the number of DV victims and if so why? Or otherwise why not? RZ: I do think it’s working to reduce the severity of domestic violence and I really

Ribbon Campaign was established to create awareness and to draw attention to the seriousness and prevalent nature of abuse. This is accompanied by initiatives including ‘One in Three’ and ‘Our Watch’. Australia even made international headlines by denying entrance to singer Chris Brown because of prior domestic violence. But with the emergence of the cases of Savins and Baden-Clay, are the existing initiatives above only a façade? Why do we turn a blind eye to the reality? Is it because we believe that what happens behind closed doors is simply not our business?

believe in this program. I have seen how targeted information sharing can have fantastic outcomes for clients that were unprecedented before the program. We’ve been able to transfer housing properties in a matter of days, locks changed on properties in two hours and perpetrators having their parole revoked. Why is the law alone not enough in curbing the issue at hand? RZ: Well I think that not every victim of domestic violence wants to go to the police and wants to go through the legal process. I think it’s important that other services are in place to support women outside of the criminal justice system. Also many victims experience violence in ways that cannot be proven by a legal response. Patterns of manipulation, psychological and verbal abuse are frequently not able to be prosecuted as a criminal act. It is important that other services are available for women who are victims of all kinds of abuse to assist in the process of increasing their safety and healing from the trauma that they have experienced.

Cindy Dyer, president of Vital Voices, aims to work with global leaders to improve the lives of girls and women. Dyer advises that solving the issue is a matter of effective enforcement. Investing thousands in campaigns, making political statements and advertising does not address the crux of the problem. Law enforcement, the executive and judiciary need to strongly apply our existing legal framework. It gives victims hope and makes a much bigger statement than denying an artist entry into Australia. Let’s stop concealing the truth and start attacking the issue.

Edition 2, 2016 | 33


Get connected to the rest of the world Be part of something exciting. Allen & Overy was the first global elite law firm to commence operations in Australia. Our practice comprises hand-selected, top-tier partners, each leaders in their field with an average of 20 years’ experience. Allen & Overy Australia offers comprehensive legal services in the Australian and international market. Much of the work performed by lawyers in Australia involves cross-border deals including inbound investment by international clients and outbound investment by Australian clients; international disputes and regulatory reviews; project financing for projects both in Australia and around the world; and international bond programs. Allen & Overy Australia offers the best of both worlds: the expertise and resources of a global elite law practice coupled with a leading group of senior domestic practitioners. We provide our clients with instant access to the firm’s regional and global resources, enabling the Australian team to deliver innovative, timely and cost effective legal solutions. Our Australian operations in Sydney and Perth are fully integrated into Allen & Overy’s global network. The offices offer has three core Practice Groups offering a full suite of corporate, finance (debt and equity) and litigation services. Within these, the practice areas are diverse, including International and Debt Capital Market, Mergers & Acquisitions, Private Equity, Projects, Structured Products,

Funds, Competition, Asset Finance, Tax, Energy & Resources, Litigation and International Arbitration. Clients increasingly need global service providers and we are currently one of the only firms in Australia able to provide a fully integrated domestic, regional and global offering. As a Summer Clerk, you will be exposed to premium quality domestic and international work and will also participate in various exercises that simulate real transactions from beginning to end, providing a valuable insight into the role of an Allen & Overy lawyer. Please visit the Australian Student and Graduate pages on our Careers site – www.allenovery.com/careers (click on Australia). Applications for our summer clerkship program in 2016/17 open on 15 June 2016. The website also contains the details of our clerkship program in Perth.

For further information please contact us at australianrecruitment@allenovery.com

34 | The Brief Allen & Overy means Allen & Overy LLP and/or its affiliated undertakings. © Allen & Overy 2016

allenovery.com


Bought and Sold:

The World’s Human Trafficking Problem  Swatilekha Ahmed

20-30 million slaves in the world

32 billion $

profit a year

6 00,000-800,000 people involved in trafficking

At a glance: the global industry of human trafficking today

T

he agency of human beings has been enshrined in the Universal Declaration of Human Rights (UDHR) since 1945. Therefore, the fact that human trafficking has become a billion-dollar business rears its head like an ugly insult. Encapsulated in the words of the historic first judgment in Rantsev v Cyprus and Russia, trafficking in human beings ‘is based on the exercise of powers attaching to the right of ownership which ‘treats human beings as commodities to be bought and sold’. Trafficking in Australia Thuy was lured to Australia with the promise of a career working at a bar or as a housekeeper, with travel and visa costs

% 12 boys

% 21 girls

included. On arriving, she was placed in a brothel and worked with no days off and was beaten and raped. Although she eventually escaped, she was forced to work at another inner-city brothel. While Australian measures seem adequate to deal with exploitation, poor knowledge of English and fear of authorities leave individuals in this situation without proper assistance. In 2007, foreign worker Dulo Ram arrived to Australia hoping for success in the Sydney restaurant business but was held in servitude by Divye Trivedi who withheld his passport and imposed a $7,000 payment to leave. After 16 months of forced unpaid labour, Ram escaped and alerted the Australian Federal Police (AFP). Although Trivedi was charged under s 271.2(1B) of the Criminal Code 1995

% 18 men

% 49 women

Detected victims of trafficking in persons (by age and gender) Edition 2, 2016 | 35


)

%

7% (+6

)

%

South America

s

Central Europe and the Balkans

3% (0

g ffickin into Am er i

ca

5% (+3

Tra

)

%

4%

South Asia

% 47% 48

25

%

59% (-7

)

%

(-3 ) %

East Asia

within North, Central America and the Carribeans

Americas

t

Evolution of the origins of trafficking (2010/2012 compared with 2007/2010)

(Cth), the resulting $1,000 fine and 250 hours of community service was viewed only as a deterrent. On appeal, it was ordered that Trivedi pay Ram $125,431 with interest. While this action was brought in industrial law, it is of some benefit that the judge considered the abuse of the 457 visa. Position of Victims In a 2012 report, the Australian Institute of Criminology noted a gap between detected cases of trafficking and estimates of actual numbers. Causes of underreporting stem from fear of authorities, poor knowledge of the local language and dubious visa statuses. The report found that most victims were female, particularly in sex trafficking, and from low socio-economic backgrounds. The imposition of debts (between $18,000 to $53,000), confiscation of passports, and suspicion of the police and other authorities, also leave victims without much choice to seek help. The labour industry benefits from the same concepts where the victim is lured to 36 | The Brief

Sexual exploitation

Forced labour, servitude and slave

Forms of exploitation among detected trafficki

Australia under false pretences. Cases of domestic servitude and forced labour stem from victims unable to access any help from authorities and often with limited mobility because of passports being confiscated. R v Kovacs, a case where a false marriage led to domestic servitude, should be read in the light of the US State Department’s annual Trafficking in Persons Report 2009, where involuntary domestic servitude is defined as a unique form of forced labour. The victim’s workplace is connected intrinsically to their living quarters and not shared with other workers. This leads to exploitation because authorities cannot inspect private properties as easily as formal workplaces. For victims of forced marriage, there is little respite in a foreign country when they are legally married to their captor. Anti-Trafficking Measures and Gaps Central to combatting this issue is the National Action Plan to Combat Human Trafficking and Slavery 2015-19, which involves the AFP referring suspected victims to the Support for


Trafficking

into

8% 26

E ur

op e

8

%

66

%

7% (0

10%26% 64%

10% 37

53

%

Africa and the Middle East

ery like

)

Eastern Europe and Central Asia

(+1%)

Americas

Europe and Central Asia

%

4% (-1

%

%

East Asia, South Asia and Pacific

Organ removal and other forms of exploitation

ing victims, by region of detection (2010-2012)

)

%

East and South Asia

19% (+1

)

%

Africa and the Middle East

62% (-2

within Western and Central Europe

Evolution of the origins of trafficking (2010/2012 compared with 2007/2010)

The data used in creating these infographics were sourced from the UNODC Global Report on Trafficking in Persons 2014 and Project Future's Impact Report 2015.

Trafficked People Programme. However, this has been problematic due to AFP discretion. Part of the Action Plan, the Human Trafficking Visa Framework allows ‘good witnesses’ to remain permanently in Australia if they ‘made a contribution to an investigation or prosecution of an alleged offender’. However, putting the onus on victims to provide evidence when they are fearful of authorities and have a limited language ability has the effect of deterring them from seeking help. Laws relating to the mass trafficking of refugees overseas remain imbued with gaps which volunteers choose to plug. For example, the Aliens (Consolidation) Act 2009 (Denmark) makes it an offence to transport anyone who does not have a residency permit issued to them under the Act. In March this year, high profile children’s rights campaigner Lisbeth Zornig, was prosecuted for bringing a Syrian family to Copenhagen. Under s 59(7)(vi) of the Act, a person is liable to a fine or imprisonment for up to two years if they intentionally assist ‘aliens’ working in Denmark without the requisite permits by

)

%

providing shelter, or means of transport. In the period between September 2015 and February 2016, 279 people have been fined under this Act. Is it fair to group well-meaning citizens and human traffickers under the same legislation? While you may feel it is unfair, the policy’s rationale is one of anti-immigration. In a world where countries are socioeconomically interdependent, human trafficking is an issue which requires more attention. In Australia, the high amount of human trafficking cases suggests that the legislation relating to visas, migration, and human trafficking are insufficient in deterring traffickers. To improve, Australia could take a victim-oriented approach, working with the victim’s home country and removing the ‘criminal’ stigma. Internationally, it seems that Europe’s anti-trafficking laws provide neither a deterrent to criminal traffickers, nor to well-intentioned volunteers. Volunteer groups can be better managed, not through criminalisation, but registration.

Edition 2, 2016 | 37


Under the Radar

Child Soldiers: Innocence Lost and Childhoods Stolen ď € James Woodward

S

ince Myanmar signed the UN Joint Action Plan to end recruitment and military use of children in June 2012, 744 children have been released. However, progress has been slow. In 2015, the Country Task Force for Monitoring and Reporting (CTFMR) reported 210 cases of suspected minors for age verification. Such figures represent only known cases of suspected underage soldiers in Myanmar, not accounting for other children serving in armed opposition groups such as the Kachin Independence Army (KIA). As nongovernmental organisation Child Soldiers International noted, falsification of identity documents creates difficulty in obtaining accurate data, which is a major hindrance for the development of preventative measures. A Global Problem Sadly, Myanmar is not an anomalous case. It is estimated that there are between 250,000 to 300,000 child soldiers worldwide. On the African continent alone, an estimated

38 | The Brief


120,000 children between the ages of 7 and 18 have participated in armed conflict. UNICEF reported the trend of increased child recruitment in the Syrian conflict as concerning, with more than half of verified cases of child recruitment reported by UNICEF in 2015 involving individuals under 15. These recent events have largely flown under the radar, but they do bring to mind the viral documentary Kony 2012 which called for Joseph Kony, Ugandan warlord and former leader of the Lord’s Resistance Army (LRA) to be prosecuted for his crimes. Kony is accused of ordering the abduction and exploitation of more than 66,000 Ugandan children who became child soldiers. However, the campaign disappeared from mainstream consciousness, leaving Kony still at large. The Legal Framework Currently in Place Under the International Labour Organisation (ILO) Convention, forced or compulsory recruitment of children for use in armed conflict is categorised as one of the worst forms of child labour. The Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict extends this by prohibiting all recruitment of children under 18 years old by armed forces and groups. In cases where the child is under 15 years old, the Rome Statute of the International Criminal Court, which makes it a war crime to conscript or enlist such persons or use them as active participants in hostilities. Even with these prohibitions in place, exploitation of children in armed conflict remains widespread, as the Syrian situation and continuing releases of underage combatants by Myanmar’s army highlight. Recruitment Methods Children are recruited similarly from region to region. Abduction followed by threats of violence to prevent desertion is a common tactic, particularly in the Central African region. In a study conducted by the ILO, of the children involved in armed conflict, 21 percent said they had been abducted. One 16-year-old recalled how he and all the pupils

“It is estimated that there are between 250,000 to 300,000 child soldiers worldwide.” at his school were taken from class by armed rebels and sent to the front two weeks later. Forced recruitment with threats of fines, death or violent reprisal against families is also common. Other methods include offers of reward and employment, with three percent of respondents in the aforementioned survey naming the opportunity to earn a livelihood as the impetus for their involvement. Prevention and Reintegration The International Labour Organisation’s International Programme on the Elimination of Child Labour (IPEC) is a significant initiative working to end the abhorrent and exploitative practice of child soldiery. IPEC has implemented projects aimed at the economic reintegration of war affected children in Central Africa, Colombia, the Philippines and Sri Lanka. IPEC projects related to reintegration focus particularly on equipping former child soldiers with vocational training and the skills needed to obtain productive and fair income work. The organisation also takes preventative measures that focus on improving the economic situation of poor families whose children may seek work with armed groups by keeping children at school and educating communities about life in armed groups. Conclusion As the language of the United Declaration of Human Rights (UDHR) suggests, our rights are an inherent part of our human dignity. One of the most important rights is freedom from exploitation as alluded to in Article 4 of the UDHR and this right is nowhere more violently denied than in the exploitation of children in armed conflicts. The fact that the continued exploitation of children in armed conflict is flying under the radar shows it is a trend that must be reversed.

Edition 2, 2016 | 39


INTERVIEW

Avenues of Your Law Degree  Alexandra Nielsen

Although law is a highly competitive field, there are many opportunities available to graduates to explore both traditional and non-traditional areas. Recently, Alexandra Nielsen had the opportunity to interview George Williams AO (GW), a highly acclaimed Macquarie University alumnus, and one of Australia’s leading constitutional lawyers and public commentators. He is a prolific writer, has served on a number of public inquiries, and is engaged in an international project on anti-terror laws and democracy. Williams holds the position of Anthony Mason Professor, Scientia Professor and the Foundation Director of the Gilbert + Tobin Centre of Public Law at UNSW. He has also been recently appointed as the new Dean of Law at UNSW, commencing in June.

Q1: Why did you choose to specialise in Constitutional Law? GW: I have been fascinated by this area for a long time. My interest goes back to when I was a high school student, during the controversy regarding whether the Tasmanian Government could dam the Franklin River for a hydroelectric scheme. That sparked my interest in how the law could resolve major

political controversies of this kind, and also be important for environmental protection. The decisive step though, was being in Tony Blackshield’s class at Macquarie University. He was an inspiring teacher who made me think this would be a great area to work in.

Q2: What does your role as the Foundation Director of the Gilbert + Tobin Centre of Public Law entail? GW: I was appointed in 2000 to UNSW as the first director of the Gilbert + Tobin Centre of Public Law. My job was to establish the Centre, and to create a mission for it. I wanted to see the Centre develop answers to some of the big problems facing Australia that require public law analysis, such as fixing the federal system, improving human rights protection 40 | The Brief

and achieving a legal system that better serves the interests of Indigenous peoples. A large team of us over the years have sought to achieve this not only by academic research and teaching, but also engagement in a range of public inquiries and through participation in debates in the media.


Q3: Were there any obstacles in developing the multi-year international project on anti-terror laws and democracy? GW: My project on anti-terror laws and democracy developed in response to the enactment of a vast number of these types of laws in Australia and elsewhere. These laws are too often acted with extreme haste, leaving little time for analysis, and also some real problems on the statute book. The project

was conceived as a response to this by way of establishing a long-term perspective on these laws, and what shape they should be in to protect both the community and ensure the health of our democracy. The project itself was not difficult to develop, as it emerged naturally from these concerns.

Q4: You previously held visiting positions at various overseas tertiary institutions such as Columbia Law School in New York, what were some differences you found compared to Australian universities? GW: Australian law schools fare very well on the international stage. Indeed, we have a disproportionate number ranked as being among some of the top in the world. What is distinctive is how often Australian law schools have achieved this on a lower resource

base. Some American law schools, such as Columbia Law School, are comparatively much better endowed, and certainly that shows in the resources available. Nothing can beat a great student body and a dedicated team of academics though.

Q5: What personal qualities or skills from your legal education do you think have aided you best in your career so far? GW: I have very fond memories of my time as a law student at Macquarie University. The model during my studies was one of essays and group discussion. I can’t recall ever being in a class larger than 25, and not one subject

that I took involved an exam. This approach to teaching and learning played a key role in developing my writing skills, and also my capacity to analyse and understand the law.

Q6: What is your most memorable experience at Macquarie University? GW: That’s a long time ago now. My last year was 1991. I do though have very fond and strong memories of the many friends I made

at Macquarie University. Some of these have become lifelong relationships, including that with my wife!

Q7: Do you have any advice for law students? GW: Be open to new and unexpected opportunities. I never thought I’d be an academic, instead thinking I’d end up at the Bar. As it turned out, being open to academic

work has enabled me to take part in the best of both worlds, with teaching and research on one hand, and part-time work as a barrister on the other.

Edition 2, 2016 | 41


Take flight with a career at Maddocks Maddocks works in partnership with our clients to support them in reaching their goals. We have the same attitude with our people in helping them reach their full potential. The unique position Maddocks has in the market - working with both corporate and government clients - provides seasonal clerks, graduates and junior lawyers with the opportunity to work on high-quality, complex matters, take real responsibility and have genuine contact with clients at an early stage of their career. Our firm culture is very important to us and we work hard to sustain it. We take very seriously the health and wellbeing of our people, take pride in their diversity and provide outstanding learning and development opportunities. And we also understand that we have a responsibility to the communities in which we operate to act in an ethical and empathetic way, which we do through our pro bono, sustainability and charitable grants initiatives. That is why we have just been recognised again by the Workplace Gender Equality Agency as an Employer of Choice for Gender Equality (EOCGE) for 2015 – the 12th consecutive year we have received this citation.

The journey with our clients We work with our clients to build strong, sustainable relationships. We get to know our clients and the sector they work in, and work with them to help them achieve their goals. We provide premium commercial legal services to corporations, businesses and governments throughout Australia and internationally. We advise clients across a range of sectors, including education, government, infrastructure, healthcare, professional services and technology.

Clerkships: now boarding Our approach to recruitment is based around our commitment to individuality and diversity. We are not looking for a specific stereotype and will consider each application in its entirety to determine whether the applicant has strengths and qualities that are compatible with the firm’s core values. We look for students who have a well-rounded experience and approach to life, who not only have the right academic ability but who also fit the firm’s culture and values. Once at Maddocks, our intention is to ensure our clerks have a good understanding of the firm and the kind of work that we do, as well as what it would be like to be a graduate in the firm. As such, we offer our clerks hands-on, practical work. Clerks will work closely not only with solicitors but with senior associates and partners and will have exposure to complex matters and client contact. All clerks take part in an informative induction program, which includes partner-run sessions. Each clerk is assigned a senior lawyer as their coordinator to assist in managing workflow and act as a mentor for their rotation. All clerks are assigned a buddy and are invited to network with current graduates. Applications open 15 June 2016. All of our graduates complete Practical Legal Training through the College of Law. In addition to this we have designed a comprehensive internal training program.

Our corporate and government clients value our contribution to their work: we provide clear, solutions-based advice and are easy to work with. But don’t take our word for it. Here’s what our clients said about us in the latest edition of Chambers and Partners: “Considered to be the best in the business and are always very courteous with a focus on long-term relationships.” “They’re responsive, know their stuff, and are happy to get involved and willing to listen.”

twitter.com/maddockslawyers linkedin.com/company/maddocks facebook.com/maddockslaw

42 | The Brief

www.maddocks.com.au/careers


A Postcard from Abroad

Viennese Culture Before arriving in Vienna, I thought I was going to be living in a city with great food, a memorable café culture, renowned art galleries and a rich history. To my delight, all my expectations were completely satisfied. However in some ways, the unexpected experiences are my favourite memories. Being a lover of markets, discovering the Naschmarkt was wonderful! I happily spent afternoons doing my grocery shopping among the stalls. Other fantastic events included seeing an Operetta at the Volksopera. For only €4, I bought a standing ticket and even though it wasn’t the most comfortable way to watch an opera, the price was definitely worth it! A particularly memorable aspect of Vienna was the food! Over my time there, I became a connoisseur of schnitzels and desserts. From eating a schnitzel that was bigger than my plate, to having the famous Sachertorte with tea at the Sacher Hotel, the Viennese definitely know their food. University The University of Vienna had a very different feel to Macquarie University. Last year, the University celebrated its 650th birthday and this is reflected in its classical architecture. In fact, the library could have been used as a Hogwarts set! The subjects I studied there were Space Law, Human Rights, and General Issues

Name: Nicky Irwin Faulks Year: 5th year Degree: BPsych / LLB Where: University of Vienna, Session 3 2015/16

University of Vienna

A view of Salzburg

Edition 2, 2016 | 43


Cityscape of Vienna

of International Law. I found the European Union’s approach to human rights so different to Australia, and I enjoyed a new understanding of the procedures in place to protect human rights. My favourite experience of studying was going on a class excursion to the United Nations Office in Vienna.

Inside the UN

The gazebo featured in the Sound of Music

44 | The Brief

Travels whilst in Vienna One of the best aspects of being in Europe is that it doesn’t take long to travel to other places. On the first Sunday in Vienna, I went with two of my housemates to Brno, in the Czech Republic. The following weekend I was on another train, and found myself in Salzberg. When I arrived, it was snowing and the city looked like a winter wonderland! I took the opportunity to soak up Salzburg’s famous music icons by going to see Don Giovanni at the Opera, and booking a Sound of Music tour. What was fantastic about the Vienna short-term exchange was that there was a large group of law students from Macquarie University, and half of this group also attended the Sound of Music Tour! My final train trip was for a weekend in Budapest, where I enjoyed the River Danube, the imperial architecture, and a relaxing few hours at the baths.


Edition 2, 2016 | 45


A Brief Review

EVENTS

 Jemima Bissett

NSW YOUNG LAWYERS SCLSS STUDENT GOLDEN GAVEL 2016

Whoever said that compensation wasn’t a barrel of laughs has obviously never met alaw student. The Annual Student Golden Gavel provided a unique platform for students to get their heads out of their equity textbooks and try their hands at stand-up comedy. With the topic ‘Straight Outta...Compensation’, the audience enjoyed acts including a rap about suing your parents and secret rap names of the judiciary. Zoe from UTS took the top spot with her hilarious satire about the gender pay gap.She will compete in the final on May 20 at The Westin in Sydney. It looked like so much fun that I might just compete next year. You’ve all been warned!

 Maddison Passarelli

NOVEL

JUST MERCY BY BRYAN STEVENSON

In a thrilling and interesting memoir, Bryan Stevenson, the director of the Equal Justice Initiative, recounts the life of young pro bono lawyer Walter McMillan and his attempts to rectify the wrongs and unfairness of the US criminal justice system. Stevenson’s memoir highlights the inherent challenges and conflicts that pro bono lawyers face when defending clients on death row in such a public light. For anyone interested in defence lawyering and social justice issues, this is a must read for you! Rating     

Rating     

FILM

PRESUMED INNOCENT

Taking us back to 1990, Harrison Ford stars as a conflicted prosecutor who investigates the murder of a woman he was romantically involved with. However, as the investigation continues, he finds himself as the prime suspect. With plenty of twists and turns, the film provides an in-depth insight into the American criminal justice system, showing us what is really involved in prosecuting a crime, painting a more realistic and ultimately rewarding image of life as a lawyer. If you’re looking for a bit of old school criminal law to count as study for Civil and Criminal Procedure, then look no further than this awesome blast from the past. Rating     

TV SERIES

AMERICAN CRIME STORY: THE PEOPLE V OJ SIMPSON

A much anticipated television series, American Crime Story details the controversial trial of OJ Simpson for the 1994 murders of his exwife Nicole Brown Simpson and her friend Ronald Goldman. During the series, we are exposed to the prosecution’s case theory and Simpson’s defence team strategy. We see the trial being drawn back and forth between notions of racism, conspiracy theories and evidence tampering. As well, we see how the court of public opinion operates, the role of the media in sensationalising the trial and the relationship between the African American community and the Los Angeles Police Department. 20 years later, the series leaves you in a state of anticipation and still questioning, was OJ innocent or guilty? Rating     

46 | The Brief


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The Brief Edition 2 2016  

This second edition is based on the theme of Human Dignity and Autonomy.

The Brief Edition 2 2016  

This second edition is based on the theme of Human Dignity and Autonomy.

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