The Brief Edition 2 2022

Macquarie University Law Society magazine Edition 2, 2022 (Volume 28)

With

Different Eyes

MULS EVENTS

Semester 2, 2022 PUBLICATIONS ● Careers Guide August ● Well-Being Blog August, September, October, November SOCIAL JUSTICE ● Social Justice Legal Skills and Advocacy Workshop 31 August ● DLA Piper x MULS SJ Environmental Law Speaker Panel TBC ● Speaker Night on International Human Rights Law TBC CAREERS ● Corrs Insights to Commercial Law Panel 29 September ● Legal Roles in the Government ● Streeton Lawyers Criminal Law Panel 4 October ● Alternative Pathways with Your Law Degree Panel COMPETITIONS ● Junior Client Interview Grand Final 26 October ● MULS x Allens Witness Examination Grand Final 25 October ● MULS Clyde and Co Private Law Moot Grand Final 24 October ● MULS Gilbert and Tobin Novice Moot Grand-Final 27 October ● MULS Ashurst Diversity and Pride Moot Grand-Final 19 October ● MULS x HSF Foundations of Law Moot Grand Final 31 October ● 2022 King and Wood Mallesons Contract Law Moot Grand Final 2 November ● Alternative Dispute Resolution Championship 3 September ● MULS Beatty Hughes & Associates Environmental Law Intervarsity Grand-Final 20 October ● ESL Moot October EDUCATION ● Semester 2 O-Week 19-21 September ● Campus Experience Event September ● Mental Health Week 10-14 October ● AGLC workshop 16 August ● Justified Podcast - Mooting & Oral Advocacy August EVENTS ● Start of Semester Drinks II 11 August ● Social Sport 28 July - 2 November ● SCLSS Intervarsity Sports Gala 28 August ● MULS x Maddocks Law Ball 2022 | Diamonds Are Forever 7 October

The Brief Ed.2, 2022

Contents Features 12

‘Can you read this for me?’ Adults with language, literacy, numeracy and digital skills gaps and the enjoyment of their economic, political, social and legal rights Bradley Cagauan

14

Love and Thoms v Commonwealth: A Landmark in First Nation Rights Rachelle Duffy

16

My Body, My Choice: Intersex Human Rights Sarah Morgan

18

Revisiting Our Founding Document: The Constitutionality of Australia’s Offshore Detention Regime Simranjeet Kaur

20 22

Rights of Disabled Workers in Australia: Is $2.27 an Hour really Wage Equality?

Amy Scott The Historic Indonesian Sexual Violence Bill A Triumph for Women’s Rights Matilda Byrne

Regulars 06

[What’s New in the Law?] Through New Eyes Madeleine Bishop

07

[Law & Disorder] Driven over the edge; a federal court judge’s reputation on the line Katie Chapman-Paton

08

[Social Justice Corner] Indigenous Injustice: Barriers to Legal Aid in 21st Century Australia Mustafa Arifeen

09

[Under the Radar] America’s Dual Citizens’ Visa Blacklist Remains Under the Radar Ava Emdadian

10

[Devil’s Advocate] The View from the Streets or the View Behind Bars Jackson Bradney & Elena Corry

25

[A Brief Conversation] with Sarah Jones Tamika Mansell

28

[Admissions of a Law Student] A Reflection of Western Sydney Mikaela Mariano

30

[A Brief Review] The Mauritanian (2021) Katie Walker

Editor's Welcome

Welcome Readers!

Diversity is a cornerstone in our ever-changing world. Our differences ensure that new ideas and perspectives transpire. Accordingly, in protecting our rights and stimulating global development, the law must fundamentally safe-guard diversity - we must ask: ‘does the law really see me?’

The second edition of The Brief for 2022, ‘With Different Eyes’, explores the extent to which the law does, or does not, support and protect our human differences. By looking deeply at diversity and the law, this edition questions whether the law embraces or neglects our individuality.

Education levels, ethnicity, gender and physical ability are just some of the differences explored throughout this edition. ‘With Different Eyes’ embarks upon critical reflection of the law’s ability to acknowledge, accept and guard the diversity found within our local and global communities.

To begin this exploration, the focus is drawn to literacy gaps in Australia and the attempts the law makes to rectify this (p.12). This edition then continues on to investigate First Nation peoples’ rights following the landmark case of Love and Thoms (p.14) before examining Australian law in relation to intersex people, particularly considering consent and medical intervention (p.16).

Australia’s treatment of asylum seekers is next discussed through moral and constitutional lenses 4 | The Brief

(p.18), and whether Australian law protects the rights of people with disabilities in the workforce is questioned (p.20). Beyond Australian borders, this edition investigates Indonesia’s new sexual violence law and notes the important step this law takes in recongising the rights of women and children (p.22).

I invite you to read our recurring segment ‘A Brief Conversation’, where I sit down with Sarah Jones from JFK Legal. This article provides insight into the future of women in the law and steps through Sarah Jones’ career highlights and experiences. Sarah also offers advice for the next generation of lawyers. I would personally like to thank Sarah for her contributions in this segment.

At the heart of this edition are the dedicated and talented writers, sub-editors and designer who together ensure that the high standards of The Brief are upheld.

Thank you for continuing to challenge our thoughts, ideas and perspectives. To both our returning and new readers, I hope you enjoy this edition and embrace this opportunity to look at the law with different eyes.

If our legal system is truly to protect everyone, it must be rooted in the knowledge that diversity is what we all have in common. A strong justice system sees our human differences.

Tamika Mansell Editor-In-Chief

Ed.2 2022

President's Welcome

thebrief.muls.org On behalf of MULS, it is my pleasure to welcome you to the second edition of The Brief for 2022!

In recent years, the recognition and importance of diversity continues to advance within law schools and the legal sector. Discussion, protest, legislative action, case law developments and social media culminate to spark and demand change, where both novel and institutional injustice is present. It is inspiring to see students, young professionals and established members of the legal and political sectors fight for change, to recognise the vast differences in the human experience.

This issue, ‘With Different Eyes’ explores the concept of diversity within the law, and has some fantastic reads including discussion about recent legal developments such as the US Supreme Court overturning Roe v Wade, and the advancement of the Uluru Statement from the Heart.Other pieces explore critical themes such as sexual violence law, the rights of disability care workers and Australia’s off-shore detention regime. The team were also fortunate enough to interview Sarah Jones, a Director at JHK Legal, who was able to provide some invaluable insights into gender equality in the legal profession.

MULS is constantly working to provide new and unique opportunities to enhance student’s experience whilst studying at Macquarie Law School. This semester, keep an eye out for the fantastic suite of competitions, a number of great Justified episodes and further informative and enjoyable Social Justice speaker nights. Be sure to become a MULS member where you will receive our fortnightly newsletter and a 10% discount from Cult Eatery on campus!

An enormous thank you is owed to the Publications team, in particular Tamika and Maryrose and the writers and editors in the subcommittee, for your hard work and dedication in producing such an incredible edition of our flagship publication.

From all of us at MULS, we hope you enjoy this second edition of The Brief for 2022 and reflect on the critical value and importance that diversity plays within law school, the legal sector and in broader society.

Devlin Greatbatch Murphy President, Macquarie University Law Society

Ed.2 2022

Edition 2, August 2022 (Volume 28) EDITOR-IN-CHIEF Tamika Mansell

DIRECTOR OF PUBLICATIONS Maryrose Sukkar DESIGNER Nathan Li

WRITERS (IN ALPHABETICAL ORDER)

Amy Scott, Ava Emdadian, Bradley Cagauan,

Elena Corry, Jackson Bradney, Katie ChapmanPaton, Katie Walker, Madeleine Bishop,

Matilda Byrne, Mikaela Mariano, Mustafa Airifeen, Rachelle Duffy, Sarah Morgan, Simran Kaur SUB-EDITORS

Acshaya Vijayaratnam, Archit Dhillon, Charlotte Macdonald, Chloe Cairns,

Claire Cottrell-Dormer, Lydia-Lian Zhu, Mackensie Day, Marie Boulougouris,

Muskan Khadka, Seren Ozdemir, Valentina Muoio, Vanie Cardinio, Zoe Gleeson EDITORIAL REVIEW

Devlin Greatbatch Murphy, Maryrose Sukkar and Tamika Mansell IMAGES

Shuttershock, unless otherwise stated.

The Brief’s print edition is published three times a year by the Macquarie University Law Society, Sydney Australia.

Visit our website at thebrief.muls.org.

DISCLAIMER

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

Macquarie University Law Society does not accept any

responsibility for the losses flowing from the publication of material in The Brief.

WITH SPECIAL THANKS TO Sarah Jones ACKNOWLEDGEMENT OF PEOPLE AND COUNTRY The Brief acknowledges and pays respect to the Wattamattagal people of the Darug nation, the

traditional custodians of the land where the campus of Macquarie University is located.

thebrief.muls.org | 5

What’s New in the Law?

Through

New Eyes Madeleine Bishop

T

his edition of The Brief – ‘With Different Eyes’ – is concerned with diversity and the law, particularly with how the law treats human differences. This article examines three legal developments which demonstrate the importance of considering the perspectives and experiences of minority groups within the law.

Waratah Coal v Youth Verdict (‘Galilee Coal Project’) is currently being heard in the Land Court of Queensland. The case, which has been brought by the local Aboriginal community, argues that the Galilee Coal Project will infringe upon the rights of First Nations peoples by contributing to climate change. As part of the hearings, the court travelled to Yidinji country to hear on-country evidence from traditional custodians.

This is the first time in Australian history that the Land Court of Queensland has heard evidence on-country, setting a major precedent for future cases. It is hoped that gathering evidence from this perspective will better inform future decisions relating to traditional land ownership and cases involving Aboriginal and Torres Strait Islander people.

6 | The Brief

The overturning of Roe v Wade – an American Supreme Court case, which ruled that the Constitution of the United States conferred the right to choose to have an abortion – has caused shockwaves around the world, including here in Australia. As a result, Australians have been re-familiarising themselves with the existing laws around abortion in Australia and have raised concerns about potential future challenges to abortion access. Particular attention is being paid to the experiences of women living in regional areas of Australia, where access to abortion services is extremely limited. Consideration is also being given to the disparity between the laws in different Australian states - for example, abortion is legal up to 16 weeks gestation in the ACT, but is available up to 22 weeks of gestation in New South Wales, and 24 weeks in Victoria.

These differences continue to create confusion for women seeking abortion services across Australia.

With the election of the Labor government comes a fresh look at how the Uluru Statement of the Heart can be implemented. This is a significant development for Aboriginal and Torres Strait Islander people in Australia.

The Labor government has already committed to holding a constitutional referendum, regarding whether a Voice to Parliament should be enshrined within the Australian Constitution. Alongside this ‘First Pillar’ the ‘Secondary Pillar’ also commits to establishing a Makarrata Commission for Treaty and Truth-telling.

This seeks to capture the idea of two parties coming together after a struggle, and healing the divisions of the past. It is anticipated that implementing the Statement will require significant changes to Australian parliament and the Australian legal system, particularly in the area of administrative law and its procedures.

Ed.2 2022

Law & Disorder

Driven over the edge; a federal court judge’s reputation on the line Katherine Chapman-Paton

I

t’s clear that some are more prone to breaking the law than others. What’s muddier, however, are their identities. Would you expect a former federal court justice to evade a simple speeding fine? Or dare speed in the first place?

In 2009, Marcus Einfeld found himself in a rather uncomfortable position where he sat on the opposite side of the bench to which he was accustomed. The former federal court judge was standing trial for charges of perjury and perverting the course of justice from attempting to avoid a $75.00 speeding fine in 2006.

Enfield’s stellar reputation as Queen’s Counsel was tarnished when he concealed the truth. He claimed that he was not the driver of his car and therefore could not have possibly been speeding. Under the guise of a typical non-guilty individual, Einfeld appealed the fine in 2008. That was his first mistake. His contradictory actions were clear reflections of dishonest behaviour.

Firstly, by denying driving the car in the first instance and then contradicting himself by claiming he did not make these statements at all. The mental gymnastics within this case was extremely confusing. Einfield maintained a façade of innocence until his trial, where he ultimately pleaded guilty to both perjury and perverting the course of justice. Astonishingly, the person he argued to have committed the speeding offence had actually been dead for three years. It is laughable that a federal court judge resorted to such a poor excuse to evade a small fine.

Ed.2 2022

Enfield’s attempt to salvage his reputation was mishandled and in vain. The motive was obviously to save face, although it is a fine line that differentiates the acceptance of our mistakes from outright covering them up. We’re all human and although judges are perceived to be intelligent individuals, they are not infallible.

However, we should really commend Einfeld for his tenacity and commitment to his position. We’ve been allowed certain insights into the reactionary nature of the law through Einfeld’s actions. It is evident from the outcome of this matter that our legal system is not beyond repair after all. This ridiculous attempt to avoid a small fine significantly affected a former judge’s reputation; a stark reminder that we are all accountable for our own actions. The role of lawyers in modern society is one of great significance and usefulness, but those attributes should not allow corruption to prevail.

thebrief.muls.org | 7

Social Justice Corner

Indigenous Injustice:

Barriers to Legal Aid in 21st Century Australia

A

Mustafa Arifeen

s First Nations peoples, Aboriginal and Torres Strait Islander communities hold a significant place in Australian society.

Despite more than 200 years having elapsed since colonisation, Indigenous communities continue to encounter barriers in accessing justice. As a result of very little change towards the treatment of Indigenous Australians, such an issue is more prevalent than ever before.

Some hurdles include geographical barriers that limit access to a fair trial in the courtroom, as well as the overwhelming fear of police. Evidently, the removal of these barriers is critical in moving forward.

The complexity of some Australian law renders it incomprehensible to the lay person. With double negatives and archaic terminology, it is no surprise that a law degree is required to understand the nature and implications of some provisions. Sylvia Tkac, a Ngalmi interpreter for the Anindilyakwa language, stated that she had to undergo legal training to understand the terminology behind Australian law. However, the real problem is rooted much deeper, as you have entire communities that cannot understand the English language. In a proceeding, all defendants are entitled to an interpreter from the Language Services division of Multicultural NSW, completely free of charge. However, there is a shortage of interpreters for certain language groups, especially Indigenous ones. Without a clear understanding of the language spoken in court, former WA Chief Justice Wayne Martin deems the judicial process to be unfair.

During the pandemic, the courts recognised the power of technology, which saw the rise of remote hearings. Despite in-person hearings having recently 8 | The Brief

recommenced, these virtual proceedings are still used in select circumstances. One instance in which a virtual hearing would be permissible is when it is impractical for a First Nations person to leave their family and traverse rural Australia. However, it should be noted that 21.3% of these people live in remote communities, which can lack access to basic telecommunications and electricity. In such a case, what do you believe is the appropriate course of action?

With dark historic relations, it is no surprise that some Indigenous communities find it difficult to trust the authorities and seek aid. Today, the incarceration rates of Indigenous Australians remain disproportionately high in comparison to the non-Indigenous population.

One explanation for this includes a lack of warnings and cautions from police, and the dominant focus on arrest.

Consequently, 47.2% of non-Indigenous prisoners reoffend within two years of their release, with that figure rising to 64.1% for Indigenous citizens.

This raises a deeper issue as to whether Australia’s incarceration process is a failure. Comparatively, whilst some prisons in Nordic countries have been criticised for their luxurious nature, the recidivism rate in Norway is less than half of Australia’s for the same two-year release period. This is partly because inmates are trained to reintegrate into society through employment, and some studies demonstrate that employment after release from prison leads to lower crime recommitment.

Perhaps our focus should be diverted from mere punishment to reassimilation into society, so that offenders can contribute to our community. Ultimately, in a utopian Australia, all offenders would be subject to the same number of warnings and level of treatment by the authorities, irrespective of ethnicity.

Ed.2 2022

Under the Radar

America’s Dual Citizens’

Visa Blacklist Remains Under the Radar Ava Emdadian

I

n January 2016, changes to the United States’ (US) Visa Waiver Program were implemented. The US Congress passed a bill whereby dual citizens of 38 countries who have recently travelled to Iraq, Iran, Syria and Sudan over the last five years or hold a dual citizenship from those countries are no longer allowed to access the Visa Waiver Program and must be granted a visa before travelling to the US. This means that dual citizens from Iraq, Iran, Syria and Sudan are required to apply for a visa, along with an in-person interview at the US Embassy. Later in 2016, the same rules were applied to Libya, Somalia, and Yemen.

This new legislation and changes under the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015 (US) was introduced following the terrorist attacks in Paris, in the fear that similar acts may be carried out in the US. These changes also affected those travelling to the US for urgent business, medical, and humanitarian matters, which are analysed on a case-by-case basis. Although these changes were announced years ago, the legislation has seemed to continuously remain “under the radar”, with many unaware that these laws exist. Consequently, lack of awareness around these laws has cost regular civilians and professionals including academics, businessmen and businesswomen to experience hardship and setbacks in their careers.

Amongst the most affected are academics. When it comes to career success, international conferences are the single most important event for these professionals to share their research findings, update their knowledge and expertise, form new collaborations and gain inspiration for novel ideas. Many academics therefore believe that “free movement” is a must in their profession, and that without this, the diversity Ed.2 2022

of opinions and experiences is hindered, limiting the progress of any academic field. Evidently, seasoned academics have first-hand experience of such setbacks.

King’s College London paleo archaeologist, Katie Manning, PhD, had been planning to speak at the Cultural Evolution Society Conference, but had been denied entry into the US due to her recent travels to Sudan for fieldwork. Like many others in her situation, she admitted that she was ‘unaware of these changes and maybe [she] should have been aware’. Similarly, the implications and rules apply to students hoping to travel to the US for school or educational conferences, who may miss out on the opportunity due to the lack of awareness of these laws.

Recently, the US has considered the removal of five extremist groups from their foreign terrorism blacklist following a five-year mandatory review. This decision has been made on the basis of the belief that these groups are now defunct and no longer pose terrorism threats. In a statement the State Department declared ‘Our review of these five FTO designations determined that, as defined by the INA the five organizations are no longer engaged in terrorism or terrorist activity and do not retain the capability and intent to do so’. However, whilst the above mentioned laws are reconsidered, the legal implications for entering the US remain in place for dual citizens of the blacklisted countries, regardless of the consideration that many of these citizens are civilians needing to travel to the US for work, study, or simply visiting close family and friends. It is therefore important that these laws, including the Visa Waiver Program regulations, are revisited and possible reforms are considered. Or, at the very least, these laws are made clearer to the rest of the world.

thebrief.muls.org | 9

Devil’s Advocate

The View from the Streets OR The View Behind Bars

FOR Bail Law Reform Jackson Bradney

​​R

eforming bail law might not garner the widespread interest that new criminal laws incite, but they have a profound effect on the lives of those going through the court system.

It’s in the day-to-day operation of law that principles of fairness, due process and justice are most important.

The weight of any reform to bail laws is borne primarily by those going through the local court (as most legal matters only go this far). Of course, restricting the freedom of those who pose a danger to the community is typically well justifiable, but what about the cases where bail is refused on procedural grounds?

One provision of the Bail Act 2013 (NSW) stipulates that there may be an ‘accommodation requirement’ as a bail condition. This requires that the young person must have a suitable living arrangement before they will be granted bail. This seems reasonable, as of course, the courts would like accused young people to have somewhere to stay. However, this places an extraordinary burden on Family and Community Services and youth homelessness services, as those who cannot secure accommodation will have their hearing postponed until they do. If there is simply no place for the individual to stay, they will be held in custody, even if they would otherwise be eligible for bail.

This presents a double bind for young homeless people (estimated at 13,005 in NSW in the 2016 Census) as living in public spaces increases the likelihood of committing public order offences like trespass.

Additionally, the Census Report notes that youth homelessness numbers are likely to be underestimated due to difficulties with ‘couch surfing’ arrangements and categorising homeless people as ‘Persons staying temporarily with other households’.

10 | The Brief

Sensationalising cases where bail ‘got it wrong’ and dangerous individuals are allowed in the community misses the point. For every instance that later convicted criminals are released, how many individuals without conviction are held on remand? According to the Bureau of Crime Statistics and Research (BOCSAR), approximately 37.7% of adult offenders in NSW custody are on remand. For young people it’s 77%. Of course, many of these people will go on to be convicted of crimes, and their detention would therefore be justified.

The question is, how many will not be? How many people will be held in remand, only to be proven innocent at trial? There is also no telling how long these people will be held. The BOCSAR March 2022 report suggests the average number of days on remand (before sentencing) was 8.1 for youth and 53.4 for adults. In an ideal world, it would be mere days before these individuals have their trials. The reality is that local and district courts can often become bogged down, it may take weeks or months for a trial date. Although the average was 8.1 days, the total across youth in remand was 720 days for that quarter. It may not seem like much, but what could 7 weeks in jail do to your life? What about if you were a young person, spending a week there? How many days on remand are justifiable for people later found innocent?

This is a fundamental reversal of the presumption of innocence. Even subtle changes in bail laws can have dramatic effects on the lives of those charged with crimes. This is not to say that bail is fundamentally flawed, but it does bear remembering that a ‘wrong’ decision to refuse an application means an innocent person is deprived of their liberty. This is no small mistake. The cost of undiscerning bail reform is a human one, it is not a matter of statistics.

Ed.2 2022

AGAINST Bail Law Reform Elena Corry

R

eform remains an integral part of the Australian legal system. Reform ensures that current laws reflect society’s growing moral and ethical standards. However, reform can lead to diminished trust in the criminal justice system without appropriate consultation. This may hinder its effectiveness.

The process of bail must effectively balance protecting society and maintaining the presumption of innocence.

Holding the accused on remand prevents the chances of re-offending with a greater focus on community protection while awaiting trial.

Proposed amendments to the Bail Act 2013 (NSW) include the prohibition of judges granting bail following a guilty plea or conviction where the accused faces potential imprisonment. Whilst this aims to protect the community from a potentially dangerous individual, such changes have failed to consider the pressure placed on an already backdated court system. This provision may discourage the admission of early guilty pleas, resulting in greater hearing wait times on an overwhelmed system.

According to a 2021 Bureau of Crime Statistics and Research (BOSCAR) study, early pleas have resulted in an average of 27 days decrease between committal to finalisation of the case. Further amendments to the bail process will create longer wait times for trials further affecting those already held on remand.

Rapid changes to the Bail Act 2013 (NSW) eliminate critical input from the NSW Law Society and Aboriginal Legal Services. The 2022 Bill has experts left ‘blindsided’ with concerns that amendments will disproportionately affect Indigenous communities. With Aboriginal and Torres

Ed.2 2022

Strait Islander communities already overrepresented in the criminal justice system, how can these amendments reflect efforts to close the gap? Adult Aboriginal and Torres Strait Islanders represent 2% of the Australian population however contribute 27% of the national incarceration rate. Pathways to Justice 2018 provides evidence-based recommendations made by the Australian Law Reform Commission. These reports provide approaches to bail reform that are considerate of Indigenous communities rather than this short-cut approach. The lack of consultation with the Aboriginal Legal Services will see a reduction in ‘access to effective diversionary programs’ which have been shown to support the community. How can these reforms effectively promote fair access to justice, a foundation of any legal system? With the NSW government enacting these changes without essential advisory bodies, many questions arise as to whether these changes will work and promote justice. With the rushed changes, there is a greater potential for error and ‘flawed laws’ (NSW Law Society President, Joanne van der Plaat).

Considering that a third of imprisoned Indigenous peoples are currently held on remand, the current bill creates a further social divide. Hence, these Indigenous groups will most likely feel the impact of backdated court hearings and elongated wait times.

Bail laws travel a fine line between protecting the presumption of innocence and protecting society. Whilst there is a potential to deprive an individual’s liberty, diminishing the presumption of innocence, the concept of bail laws is essential in the administration of justice.

However, room for error arises with rapid amendments to existing bail laws. The 2022 proposed amendments question whether the changes will be effective or if they will create further divides and injustices. thebrief.muls.org | 11

‘Can you read this for me?’

Adults with language, literacy, numeracy and digital skills gaps and the enjoyment of their economic, political, social and legal rights Bradley Cagauan

‘I

had to stop helping out at the school that my children attended because the year one children wanted me to write on the bottom of their drawings … I left my son[‘s] class in tears and so embarrassed,’ says Pauline Bruffer in Submission 53 to the Commonwealth Standing Committee on Employment, Education and Training. In another submission, Nicholas Deans noted that the gaps in his literacy made it harder to apply for work, get a driver’s licence and would avoid ‘anything to do with reading and writing.’ Similarly, an anonymous submission spoke of their husband’s difficulty to perform basic literacy tasks including reading to their children, assisting with their homework and interpreting medical labels. ‘Can you read this for me?’ he’d ask his partner multiple times a day.

Unfortunately, these experiences reflect at least 14% of Australians aged 17-74 who struggle with language, literacy, numeracy and digital (LLND) skills. These experiences were collated in the 2022 Commonwealth Parliamentary Report, Don’t take it as read – Inquiry into

12 | The Brief

adult literacy and its importance, which examined the pressing need to develop stronger LLND skills in the population. LLND skills are ‘foundational skills’ which go beyond merely reading and writing at the basic level.

According to Swinburne University of Technology, ‘literacy is the possession of all skills needed to navigate information and mediums in our rapidly evolving culture and economy,’ while UNESCO emphasises how literacy enables us to enjoy our ‘basic economic, social, legal and political rights.’ However, LLND skills gaps are often neglected and misunderstood while those seeking help are burdened with the stigma of appearing ‘illiterate.’

While society has become more inclusive and sensitive to the varying needs of others, adults with LLND skills gaps are an unseen group in the population. Furthermore, those living with LLND skills gaps often face further inequalities through complex intersections with disabilities, socioeconomic status and race. Addressing these skills gaps is necessary for an increasingly digital age where the ability to effectively read and write is essential for an individual to participate in society.

Ed.2 2022

The impact of LLND skills gaps on daily life upends the most basic of tasks into a Herculean effort. For example, it limits the capacity of individuals to apply for work, earn higher wages, support their children’s education, and improve their health and wellbeing. As LLND skills gaps burden an individual from engaging with society, they are deprived of their ability to advocate for their economic, social, legal and political rights. With a legal system that is already intimidating and Kafkaesque to the disempowered individual, low literacy levels block one’s access to navigate and exercise their basic rights.

The Mid North Coast Community Legal Centre (MNCCLC) illustrated this disempowerment in its Parliamentary submission. They described the story of ‘Mary’, a woman who was injured in a car accident one year before engaging the services of the MNCCLC. She was served with local court proceedings because of debts incurred to an insurance company covering the other party. Due to LLND skills gaps combined with a hearing impairment, she couldn’t use a phone nor comprehend the correspondence served to her. The other party threatened legal action for Mary’s apparent ignorance but she didn’t ignore the court; she just couldn’t understand. Luckily, Mary’s Disability Advocate reached the MNCCLC who communicated her situation in a manner the court could understand. But the sobering truth is that many people in Mary’s position would have been excluded from the law entirely, with the court more than prepared to make a judgement in her absence. In our justice system, Mary’s story is that of the silenced and excluded individual for reasons beyond their control.

Similarly, LLND skills gaps make it difficult for individuals to understand their obligations and comprehend complex documents and legal jargon.

Associate Professor Shumi Akhtar and Dr Farida Akthar raised concerns that adults with LLND skills gaps are more vulnerable to financial fraud as they may be unable to fully understand their rights. Furthermore, the NSW Adult Literacy and Numeracy Council noted that low literacy renders workers more susceptible to exploitation and wage theft.

When the height of the pandemic forced people to move their lives online, the vulnerabilities adults with LLND skills gaps face were exposed. For example, skills Ed.2 2022

gaps have made it difficult to both interpret public health information and recognise misinformation.

With states moving in and out of lockdowns and other health restrictions throughout the pandemic, it became almost impossible for people with low literacy to stay on top of current health advice. As such, this group was at an increased risk of innocently breaching health orders. Additionally, legal services like the MNCCLC and other public services like Centrelink and Medicare became significantly more difficult for struggling adults to access. Similarly, many Australians who lost their jobs during lockdowns later found themselves unable to reenter the workforce due to limited literacy skills.

While government services such as the Skills for Education and Employment program and the Reading and Writing Hotline are available, the stigma surrounding illiteracy has made it extremely difficult for people to access these services in the first place.

This stigma is so strong that in an interview with Adult Learning Australia, rugby player Ian Roberts said he was so ‘ashamed and embarrassed’ about his literacy that he found coming out as a ‘breeze’ compared to admitting he ‘was basically illiterate.’ During the lockdowns, many forced themselves to stomach their fears and contact the Reading and Writing Hotline, but the huge spike in calls left the service unprepared to meet the high demand.

Many first-time callers were turned away.

With the pandemic exposing these vulnerabilities, the Standing Committee on Employment, Education and Training presented the 2022 Don’t take it as read Parliamentary Report. The report set out a number of recommendations such as the renewal of adult literacy education, increased funding of community legal services, subsidised treatment for learning disabilities, public education campaigns, and safeguards preventing the penalisation of those who are unable to navigate online public services due to LLND skills gaps. These types of measures seek to empower individuals to safely and comfortably develop their LLND skills alongside implementing certain legal protections against mechanisms that disproportionately affect people with low literacy.

Adult LLND skills gaps remain a misunderstood and largely unaddressed issue in Australian society.

Low literacy renders millions voiceless in a world that expects everyone to have one. To ensure our institutions are all-inclusive, we must better accommodate those with LLND skills gaps for a more fair and just society affording all the freedom to enjoy their economic, social, legal and political rights.

thebrief.muls.org | 13

Love and Thoms v Commonwealth:

A Landmark in First Nation Rights

I

Rachelle Duffy

n February of 2022, the High Court of Australia ruled on the case of Love and Thoms v The Commonwealth (‘Love and Thoms’). The case was brought by Brendan Thomas, a Gunggari man, alongside Daniel Love, a member of the Kamilaroi People, who were both faced with deportation from Australia. Neither Mr Love nor Mr Thoms held Australian citizenship status and, having both been found guilty of serious crimes, were held in detention by the Department of Home Affairs for the purpose of being deported to their country of birth.

Mr Love and Mr Thoms were both born overseas, in Papua New Guinea and New Zealand respectively. Since they both had at least one parent who held Australian citizenship, they had access to citizenship themselves under the Citizenship Act 1948 (Cth). However, like many children born overseas to Australian parents, they had never exercised their right to citizenship, and instead held long term residence visas. These allowed them to live legally in Australia but did not award them citizenship nor its associated rights.

14 | The Brief

The citizenship status of both men would likely not have impacted their lives, until they were both convicted of crimes that carried prison sentences of 12 months or more. As a result, their sentences fell subject to the ‘character provision’ in s 501 of the Migration Act 1958 (Cth). Under this provision, their visas were cancelled and they faced mandatory deportation. Until such time, they were to be held in detention for the purposes of removal.

The power of the Commonwealth to make these provisions is granted under the external affairs power, which can be found in s 51(xix) of the Constitution.

Under this head of power, the Commonwealth may make laws regarding ‘aliens’ to the nation. In Love and Thoms, the Court was to consider whether Indigenous Australians could be considered ‘aliens’ within the meaning of the Constitution.

The plaintiffs successfully argued that an Indigenous person could not be an alien to the country. This argument called back to Aboriginal and Torres Strait Islander peoples being the first inhabitants of the land.

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Not only does this line of reasoning call to the landmark Native Title decision of Mabo [No 2], but also moves to establish new doctrine. The argument recognised the connection that Indigenous peoples have had to the land for more than 80,000 years and was literal in its interpretation of the word ‘alien’. The High Court Justices recognised that ancestral cultural ties to the land had not ceased upon colonisation, as well as that the drafting of s 51(xxix) was not intended to refer to the nation’s Indigenous peoples. In a four-to-three majority, it was held that no First Nations person could be classified as an alien under the meaning in the Constitution, and therefore the character provision of the Migration Act was not applicable.

The case also involved discussion of the Mabo tripartite test on determining a person’s legally recognised Aboriginality. Mabo was the last case to address this; however, High Court Justices have stated that this may not be a definitive test, and those who do not meet it may still be positively impacted by this decision. As a result, those in immigration detention who are able to prove their Indigenous ancestry, whether by this test or otherwise, may be released.

Despite this significant progression in Australia’s recognition of Indigenous cultural and land rights, the Australian Government is fighting to have it overturned.

This was prompted by the case of Shayne Montgomery, who relied upon the decision in Love and Thoms in an attempt to be released from immigration detention. The contention lies in the fact that Mr Montgomery did not have Indigenous ancestry by birth.

Mr Montgomery was born in New Zealand and was adopted by the Mununjali people, an adoption that is recognised by both the Australian legal system and Indigenous customary law. However, the Australian government is fighting to have his release from detention reviewed on the basis of his Indigeneity, as well as seeking to overturn the original Love and Thoms decision.

Although the Love and Thoms decision only affects a minority of people, its significance lies in its recognition of First Nations peoples’ cultural connection to the land and Australia’s historical treatment of its Indigenous peoples. As the first precedent-setting case regarding Indigenous land rights since the landmark Mabo [No 2] in 1998, the decision is a huge step in the nation’s recognition of Indigenous peoples’ connection to the Australian landscape. This case recognises that Indigenous connections to Australia have deeply rooted ancestral customary ties, which have not been overturned by colonialism.

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The case of Mr Montgomery highlights the ambiguity in Australian law regarding the recognition of a person’s Indigeneity. Aside from the Mabo test, which is itself contentious, there is little to be said in Australian law on what it means to be Indigenous. This is despite guidance from international conventions such as the United Nations Declaration on the Rights of Indigenous Peoples, and the Australian First Nation peoples’ call for sovereignty in the Uluru Statement from the Heart.

It could be said that Indigenous voices in decisionmaking roles would be, at the very least, valuable in lessening the ambiguity in the Australian legal and political system regarding First Nation rights, values and perspectives. The Love and Thoms decision is a step forward in recognising the special nature of First Nation peoples’ connection to the land that evades well-defined recognition in the current Australian legal system. Of course, to make significant change, mere recognition needs to be met with a means of activism; hence, the calls for a Constitutionally enshrined Voice to Parliament.

Ultimately, the Love and Thoms decision demonstrates a movement in Australian law towards recognising Indigenous rights outside of the bounds of what has been traditionally acknowledged by the colonial legal system. It regresses from ascribing colonial rules and definitions to peoples whose ancestry predates Federation and whose values do not conform to European ideologies. By challenging what it means to be an ‘alien’ to the nation, the Love and Thoms decision has demonstrated that our common law system is capable of recognising Indigenous rights when the legal repercussions are considered, rather than a mechanical application of the law.

Despite this significant step in the right direction, Australia has a long way to go to move past the harm done by the terra nullius sentiment. As stated by Justice Gordon, ‘European settlement did not abolish traditional laws and customs, which establish and regulate the connection between Indigenous peoples and land and waters.’ We are under a unique obligation to Australia’s First Nation peoples to reform our colonial views and make impactful movements towards recognising the uninterrupted connection between Indigenous peoples and the Australian land and sea.

thebrief.muls.org | 15

My Body, My Choice:

Intersex Human Rights Sarah Morgan

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ssumptions around gender have long influenced the medical and legal community. The intersex community has been advocating for change in life-changing and often irreversible medical intervention. The legal framework surrounding intersex people has been to define sex and gender in the strictest binary. Karpin has noted, 'legal responses to bodily transgression are generally boundary policing, and a singular individual is carved out through judicial force'. Law in Australia needs to urgently change and take on the recommendations made by the Australian Human Rights Commission; that personal consent should be a priority and surgery should only be performed when medically necessary.

Where a child’s consent cannot be competently given, invasive medical procedures on intersex bodies should be considered Special Medical Procedures, requiring the direction of the Family Court.

The term intersex refers to 'variations in sex development whereby a person's biological sex traits are not exclusively male or female'. The medical response to intersex people has been complex and varied. Still, it almost always reflects the time's cultural attitudes, providing a unique 'insight into our cultural, political and social constructions of sex and the "natural" body.'

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Scholarship dates to the Middle Ages, from Hippocrates viewing sex as a spectrum to Aristotle viewing sex as a dichotomy. With the rise of medical science in the late 19th century, a more interventionist and invasive approach came. It is no surprise that by the late 1990s, activists and intersex people began questioning not only the ethics but the legitimacy of treatment.

Across the world, human rights violations of intersex people extend beyond coercive medical interventions and include infanticide and discrimination in access to sport, employment and legal paths and remedies. The United Nations Human Rights Office has reported that between 0.05% and 1.7% of the world's population is born with intersex traits. The pervasiveness of Australia's social and cultural norms adhere to this strict gender binary, which means that bodies that do not fit a specific gender can be medically modified to make them socially acceptable.

At the end of 2021, the Australian Human Rights Commission made significant recommendations in a report to protect the rights of intersex people. These recommendations are central to an ongoing campaign by Equality Australia, arguing for laws to end unnecessary medical procedures that change the sex characteristics of intersex people without their consent. The Australian Human Rights Commission report made twelve Ed.2 2022

recommendations, advocating for the creation of a human rights framework. This framework, derived from international human rights law, looks at principles of bodily autonomy, medical consent and medical necessity.

In the nineteenth century, surgeons performed sterilisation procedures on children, administering them lifelong hormone treatments so that children could be assigned a single-gender.

No one questioned what happened when the surgeons got that assignment wrong.

While medical knowledge and practice have certainly improved over the last decade or two, there seems to be little recognition that intersex conditions can manifest in many ways and require different management. In 2013, the Sydney Morning Herald reported that the Royal Children's Hospital in Melbourne still performs yearly ten to fifteen genital reconstruction surgeries. With little psychological evidence to back up ongoing medical interventions, it remains hard to support the status quo.

While there is an ongoing legal issue concerning the legal sex of intersex people, such as formal identity documents, this area has seen positive legislative changes. For the first time, the 2021 Australian Census included three options for sex: male, female, and nonbinary, reflecting a cultural shift in how Australians understand sex and gender. However, the legal issue to focus on is that of consent. For the most part, surgical procedures can be consented to by parents of intersex children. The limitations of this consent are that the procedure must be in the child's best interest and that some procedures such as sterilisation cannot be consented to by parents and must be authorised by the Family Court within its parens patriae jurisdiction. What has plagued legal scholarship and medical science is what a child's best interest assumes in the context of gender-affirming surgery, especially when a child lacks the competence to personally consent.

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To date, very few countries have adopted a legal framework where an intersex child's consent is required for harmful medical intervention. This legal framework would be important in that medical intervention on intersex children could potentially be classified as a Special Medical Procedure, as defined in Marion’s Case; a small identifiable list of invasive medical procedures in which legal guardians cannot give consent for a child.

Irreversible medical intervention for intersex children is an assault, unless performed for life-saving treatment.

As McHugh J states in Marion’s Case, within the bounds of common law, any ‘surgical procedure is an assault unless it is authorised, justified or excused by law’.

The Australian Human Rights Commission report explores the concept of medical necessity where a child cannot give personal consent. The need for personal consent is based on a much broader principle of maintaining bodily autonomy. While international human rights law has created a narrow definition of medical necessity, it is still subjective if lacking robust evidence of the potential for harm. As the Court said in Marion's Case, the risk of medical intervention and sterilisation is that the consequences 'are not merely biological but also social and psychological.' These medical interventions should only be allowed when surgery is required to avoid serious harm, where harm cannot be minimised in another way and when the risk of harm outweighs the application of human rights.

The identities of intersex people have been pathologised and subsequently medicalised since the 19th century. The Australian Human Rights Commission Report establishes the need for a framework based on international human rights law instead of a medical one. There is a consistent absence of evidence; a lack of reliance on psychological and psychiatric professionals on the consequences of such non-reversible outcomes. Children born with various sex characteristics are often subjected to inappropriate medical intervention, including sterilisation and lifelong hormone treatments. The current practice in Australia for treating intersex children is wrong; it is invasive and outdated. Legislation needs to adopt a framework utilising the recommendations of the Australian Rights Commission or be considered a Special Medical Procedure requiring oversight from the Family Court.

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Revisiting Our Founding Document:

The Constitutionality of Australia’s Offshore Detention Regime Simranjeet Kaur

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top. Intercept. Transfer. Forget.

Australia’s Offshore Detention Regime (‘Regime’) can be briefly summarised in four simple words. First introduced in 2001 under the Howard government and reinstated in 2012 under successive Labour and Coalition governments, the Regime purports to forcibly transfer asylum seekers arriving in Australia by boat without authorised visas to detention centres, or Regional Processing Centres (‘RPC’), in Nauru or Manus Island in Papua New Guinea. In these facilities, asylum seekers spend years surrounded by guards, cameras, and barbed fencing, awaiting their status determination and enduring grave psychological, emotional, and physical abuse.

While the policy has garnered much negative attention in the international arena, with constitutional eyes, the Regime is valid and legitimate. The Australian Constitution carries a critical provision, s 51, under which the Parliament is empowered to make laws for the ‘peace, order, and good government of the Commonwealth’.

The Australian government has primarily relied upon the aliens power in s 51(xix) to defend the legality of the Migration Act 1958 (Cth) (‘the Act’), the statutory scheme regulating the Regime. Before examining the Regime with constitutional eyes, it is first essential to explore the purpose of Australia’s Regime.

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Australia’s Cruel Regime Labelled as a ‘necessary deterrence measure’ to stop people smuggling and unauthorised boat arrivals, the Commonwealth has consistently justified the Regime as a means of maintaining the integrity of Australian borders and safeguarding the lives of those on the boats. However, under the veil of national security, the Commonwealth outsources humanitarian functions through extraterritorial migration management and deflects legal responsibility by employing third-country actors. Unsurprisingly, Australia’s treatment of asylum seekers has been the subject of serious international criticisms, often described as ‘cruel, inhumane and degrading’ and in direct violation of its international human rights obligations.

As a sovereign state with a dualist system, Australia has ratified only a handful of its international obligations into federal law. Further, unlike other common law democracies, our state does not have a Bill of Rights. Absent the legal and factual frameworks necessary to challenge the Regime for violating fundamental international rules, domestic challenges in Australia have consequently surfaced in the field of constitutional law. Let us now examine some constitutional challenges to elucidate the constitutional argument.

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Constitutional Challenges In Plaintiff S156/2013 v Minister for Immigration and Border Protection [2014] HCA 22, the plaintiff challenged the validity of ss 198AB and 198AD of the Act on the grounds that neither provision was supported by the heads of power under s 51; namely, the naturalisation and aliens power (s 51(xix)), the immigration and emigration power (s 51(xxvii)), and the external affairs power (s 51(xxix)). The provisions in question respectively authorise the Minister to designate Nauru and PNG as regional processing countries, and direct which RPC asylum seekers are transferred.

Plaintiff S156/2013 was an unauthorised maritime arrival transferred to Manus Island, a designated regional processing country under s 198AB since 2012.

The Full Court ruled that the statutory scheme under which PNG was designated as a regional processing country is supported by the legislative power under s 51(xix). Their Honours clarified that the Act regulates the expulsion or deportation of aliens present in Australia without a valid visa, and therefore ‘once a federal law has an immediate operation within a field assigned to the Commonwealth as a subject of legislative power, no further enquiry is necessary.’

This decision confirmed that while the legislative provisions may be in breach of Australia’s international non-refoulement obligations and morally harsh, the Minister’s decision-making powers under ss 198AB and 198AD are constitutionally valid and in the state’s national interest.

Similarly, Plaintiff M68/2015 v Minister for Immigration and Border Protection [2016] HCA 1 reaffirmed that the underlying legal framework of the Regime is lawful and provided an insight into the constitutionality of the Commonwealth’s funding of the Nauru RPC. Here, the plaintiff argued that Australia’s funding of the Nauru RPC was unconstitutional and not authorised by any valid Australian legislation, particularly s 198AHA. In turning to the Memorandum of Understanding between the Commonwealth and Nauru regarding the transfer to and assessment of persons in the Nauru Ed.2 2022

RPC, the Court determined that s 198AHA was valid with respect to the Commonwealth’s aliens power.

Further, the majority noted that the Commonwealth’s role in funding the Nauru RPC and their power to enter into an arrangement for regional processing was supported by the non-statutory executive power under s 61 of the Constitution. While Gageler J noted that the aliens power ‘is not subject to any territorial or purposive limitation’, Gordon J (in dissent) strictly opposed this reasoning and provided an interesting observation. His Honour held that s 198AHA is not supported by the aliens power insofar as the provision does not authorise the detention of aliens outside of Australian territory.

Both case authorities provide a constitutional perspective in illuminating how the Regime, and the statutory scheme supporting its operation, uphold the Commonwealth’s intention of controlling its borders, despite international law breaches. However, as reinforced by N. Aroney and J. Allan [w]hat is not to be expected in a federal system is that over time the most senior judges will decide such “penumbra of doubt” disputes in a way that the central legislature ends up free to legislate on virtually any matter it wishes or thinks will be of political benefit.

Consequently, these decisions set strong precedents for future constitutional challenges, and depict the underlying tension between balancing the rule of law doctrine with broader human rights principles.

Conclusion Australia’s Offshore Detention Regime can be viewed with two different eyes: moral and constitutional eyes.

When viewed through a moral lens, the policy is highly flawed. However, from a constitutional perspective, the Regime and the statutory scheme supporting its operation are lawful. Its validity remains intact despite concerns about whether the legislation and subsequent policies conflict with Australia’s international obligations. With the High Court adopting a broad interpretation of s 51(xis) of the Constitution, the dissenting judgement of Gordon J in Plaintiff M68/2015 sheds light on a progressive view of the aliens power to hold executives accountable for their decisions.

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Rights of Disabled Workers in Australia: Is $2.27 an Hour really Wage Equality?

Amy Scott

he Australian economy, like most of the world, is reeling from the disruptions of the COVID-19 pandemic. With the annualised inflation rate already surging to 5.1% in early 2022 and still climbing, many Australians, especially low-income households and minimum wage workers, are under immense financial pressure. This cost-of-living increase has seen the price of non-discretionary items, such as food, utilities, petrol, and housing, become increasingly unaffordable. The Fair Work Commission acknowledged the need to provide relief to vulnerable workers, raising the national minimum wage by 5.2% from July 1, 2022.

This changed the rate from $20.33 an hour to $21.38; still amounting to only $812 for a 38-hour week.

However, many would be alarmed to know that there are currently still workers in Australia, who are legally paid as little as $2.27 an hour. Yes, you read that correctly. $2.27 an hour, for manual labour. Imagine trying to support yourself, or worse, a family, in today’s economy on $2.27 an hour. To put that into perspective, an average 8-hour workday would amount to only $18.16.

The Disability Royal Commission (‘the Commission’) has reported that disabled workers employed by Australian Disability Enterprises (‘ADEs’) are legally paid hourly rates that are only a fraction of the national minimum wage. The Commission identified one ADE, the South Australian Bedford Group, as paying disabled workers as little as $2.27 an hour and on average a mere $6.28. Over the last two years Bedford is estimated to have earnt $94 million in profits and accumulated $20 million in JobKeeper payments.

This begs the question: does the law really support and protect the rights of disabled people in the workforce?

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What are Australian Disability Enterprises (‘ADEs’)?

ADEs are organisations that provide supported employment opportunities, separate from the mainstream workforce, to people with moderate to severe disability across Australia. There are currently about 600 ADEs in operation employing more than 20,000 people with disability, making up 7% of all National Disability Insurance Scheme (‘NDIS’) participants. The work is often physically strenuous, including gardening, laundry, packaging, catering, and cleaning services.

You may be thinking, how are ADEs legally allowed to pay a supported employee $2.27 an hour?

ADEs calculate supported employee wages using an assessment tool provided by the Supported Employment Services Award 2020. This tool calculates pro-rata wage rates as a percentage of full rates, ostensibly based on productivity capacity. ADEs receive training funding from the Government and most disabled support workers receive the modest Disability Support Pension. Arguably, this provides ADEs with subsidised employees, who work hard for total packages reportedly up to $9,000 less than the minimum wage.

Findings of the Disability Royal Commission In April 2022, the Commission conducted a three-day hearing on ‘The Experience of People with Disability Working in Australian Disability Enterprises’. The Commission examined the experiences of people working in ADEs, wage assessment tools, supported wage rates and training opportunities assisting transition to open employment. It heard submissions from ADE workers with disability, family members, advocacy organisations and government services.

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Greg Tucker, who lives with intellectual disability, reported being paid only $2.50 an hour packing nappies for two years. Tucker described the work as exhausting and physically demanding, and felt he deserved more but was afraid to ask his employer for a raise. Phillip Shoolman, who is deaf, reported that he earned $5.65 an hour when he first started working at an ADE in 2012, only increasing to $12 seven years later. Shoolman stated this caused him financial stress and required him to adhere to a very strict budget to afford basic necessities. Mahdi, who is blind and speaks English as his second language, was originally paid $3.70 an hour for packaging and recycling work. After several requests for the raise he was promised, Mahdi’s hourly wage was finally lifted last year to only $10. Mahdi later resigned, stating ‘a wage of $10 an hour is nothing’.

Along with many other workers, Mahdi reported feeling discriminated against and found it difficult to support his family, stating ‘I feel that no one will offer me a job with a fair wage because of my disability.’

How is this Equality in Practice?

In Australia, under section 15 of the Disability Discrimination Act 1992 (Cth) it is unlawful to discriminate on the basis of disability, specifically including terms and conditions of employment.

Australia has also signed and ratified the United Nations Convention on the Rights of Persons with Disabilities, committing to ensure and promote the full realisation of all human rights and fundamental freedoms for persons with disabilities, without discrimination. Article 27 states that participation in employment, on an equal basis with others, is fundamental to the aspiration of all individuals to lead an ordinary life through the dignity of work.

Despite this framework, disabled ADE employees are in reality being exploited and discriminated against. ADEs are taking advantage of the fact that people with disabilities do not have enough open work opportunities, and provide them with unfair, unequal, and demeaning wages. The work of ADE support workers is valuable, providing crucial support

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services and labour. As stated by Therese Sands, CEO of advocacy organisation People with Disability Australia, ‘everyone deserves a fair day’s pay for a fair day’s work.’ This wage imbalance is inequity at widespread levels across Australia and is a complete disregard of people with disabilities rights’, going against Australian domestic and international law agreements. Disability advocacy organisations argue these low wages hark back to the segregation of the ‘sheltered workshops’ from which they arose.

How can this Situation Be Improved in the Future?

To rectify this situation, the Australian Government should be looking to create new pathways and accessibility to open and mainstream employment, instead of supporting the continued segregation and unfair payment of people with disability in the workforce. Advocacy organisations, such as Inclusion Australia, are calling for a five-year transition plan backed by the Government, industry, and the community to pay disabled workers minimum wages.

Initially, the Government should focus on paying workers the difference between the Disability Support Pension and minimum wage, and eventually, ADEs should appropriately raise their wages in a structured manner, requiring less Government subsidisation. This would transition ADEs to a more open, inclusive model where people with disability would have the opportunity to earn a living and freely choose their work. Awareness regarding these issues must be raised, as despite the Royal Commission’s effort, this topic has largely been ignored in the media.

Conclusion It is not fair or reasonable for any individual, let alone a person already facing disadvantage, to be expected to work for $2.27 an hour. People with disabilities should rightfully be able to work on an equal basis and be paid an equitable wage. The law and ADEs must evolve and take urgent action to rectify these injustices that are being experienced by disabled workers in Australia.

thebrief.muls.org | 21

The Historic Indonesian Sexual Violence Bill

A Triumph for Women’s Rights Matilda Byrne

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Warning: This article makes reference to sexual violence/rape specifically.

ndonesia has passed the landmark Sexual Violence Bill, known in Indonesian as the Rancangan Undang-Undang Tindak Pidana Kekerasan Seksual (RUU TPKS), which will see nine protected offences of sexual violence. These include, physical and non-physical sexual harassment, sexual torture, forced contraception, forced sterilisation, forced marriage, sexual slavery, sexual exploitation and cyber sexual harassment. This comes ten years after the National Commission on Violence Against Women (National Commission) first proposed the law to Parliament. Barriers to the law’s success are attributed to fierce conservative opposition from Islamic groups, who contended the law would violate religious tradition for wives to be obedient to their husbands. Such opposition led to rape specifically being omitted from the final list of offences, (a concern for gender activists) as marital rape remains legal under the definition in the current Indonesian Criminal Code of 1946. As the RUU TPKS immediately came into effect in April 2022, questions remain as to whether the law is sufficient with a 50% rise in gender-based violence since 2020.

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A decade in the making The absence of a clear framework of laws prohibiting sexual violence in Indonesia and escalating rates of violence against women, spurred the National Commission, (an independent state agency) to initiate the first iteration of the RUU TPKS. The intention of the law was to promote women’s rights and overcome barriers to victims bringing claims, under strict existing laws. The draft was officially submitted in 2016 to the House of Representatives, after tense negotiations and lack of political will amongst conservative parties to see laws targeted to sexual violence. Opposition followed from the Prosperous Justice Party (PKS), a conservative Islamic faction in the House of Representatives, who argued the RUU TPKS would promote ‘free sex and deviant sexual behaviour’. Such campaigning stalled negotiations for more than five years, with arguments from moral and religious grounds and misconceptions that the law would corrupt Indonesia with ‘western’ ideas of sexuality.

A representative from the National Commission stated before the law was passed, ‘Religion cannot Ed.2 2022

simply let violence against women happen, whether that [is] rape or sexual harassment’. They emphasised that the law is not at odds with Islamic belief, and very few critics read the draft and understood the impact for women and children facing sexual violence.

Concerningly, it was not until the conviction of an Islamic boarding school teacher who raped multiple students over five years and impregnated eight of them, that lawmakers finally passed the RUU TPKS amid growing concern for the safety of women and children.

Prioritising victims’ rights Although taking more than a decade to be enacted, the law will be significant. It represents a changing culture in the country to finally recognise the rights of women and children. Notably, unlike other laws which are premised on punishing perpetrators, the RUU TPKS is victim-centred with provisions for restitution and counselling for victims. Additionally, the evidence required for victims to establish an allegation has been reduced to just one piece of evidence and victim testimony. Previously, victims had to bring forth more than two items of evidence, and witnesses, to corroborate their stories under the Indonesian Criminal Code. Such evidence included ripped clothes to prove the lack of consent, screams heard by witnesses, or injuries to the perpetrator.

Under the new law, admissible evidence now includes medical reports and statements from psychologists to overcome previous barriers to non-physical offences. The process is now easier for victims to report incidents, as the law also requires that police are duty bound to investigate incidents of sexual violence.

Moreover, the law contains multiple new offences not previously covered by any legislation, including penalties of up to nine years for forced marriage and four years for publishing non-consensual sexual content online. As the Indonesian Criminal Code does not outlaw marital rape, the RUU TPKS contains a caveat which states that, sexual abuse can occur both within and outside of marriage, and can also affect both women and men. With current estimates that only 30% of victims report incidents to police, this is a critical step towards breaking the stigma against sexual violence and victims accessing justice.

Does the law fall short?

Even so, due to earlier opposition, the RUU TPKS was ‘watered down’ from its original proposal; to exclude rape specifically and other offences such as, forced Ed.2 2022

abortion. This raised concern amongst critics that the law did not stand up to scrutiny and women need stronger protections amongst high rates of sexual and gender-based violence. However, the Indonesian Government intends to strengthen existing laws to alter the definition of rape, in line with the RUU TPKS. Until this is passed, victims may still bring a claim under the current sexual abuse provision, which may apply to sexual assault. This may provide reparations for victims, however both laws need to be operational to ensure women have adequate rights. This is supported by a statement from the International Court of Justice, who welcomed the RUU TPKS, but raised concern over existing laws allowing for discrimination against women.

As the changes to the Indonesian Criminal Code have not been made public, there remains concern that certain rights afforded to women will still be restricted.

The current legal system has treated incidents of sexual violence as private matters, and victims are often discouraged from speaking up due to fear of being shamed in questioning. The religious conservative influence within society cannot be ignored, with samesex marriage still illegal and teachings of consent in marriage at odds with existing law. For example, there is a lack of awareness for couples in marriage that a wife can reject the advances of her husband, due to strict ideologies around the dominance of the husband.

Equally, the RUU TPKS cannot be discredited for its omissions alone, as it represents an important step forward for women’s rights. A study in 2017 found that 71% of violence against women occurred within intimate partner relationships, a third of those involving sexual violence. This is despite the existence of the Domestic Violence Elimination Law enacted in 2004, which intended to address the systemic problem of violence against women, including sexual violence. This demonstrates that existing laws are not adequate and that the RUU TPKS serves to strengthen these laws and operationalise rights for women.

Conclusion With such high rates of gender-based sexual violence, the RUU TPKS will be significant in contributing to the growing body of laws promoting the rights of women and breaking the stigma for victims bringing claims.

However, there remains uncertainty as to how the RUU TPKS and other existing laws will strengthen the growing movement for women’s rights and diversity within Indonesia.

thebrief.muls.org | 23

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Ed.2 2022

A Brief Conversation

with Sarah Jones Sarah Jones is a Legal Practitioner Director at JHK Legal. She was awarded the Banking and Finance Partner of the Year by Lawyers Weekly in 2018 and was a 2020 and 2021 finalist for the Women in Finance Awards. I sat down with Sarah to discuss her legal career, the future of women in law and the advice she has for future lawyers.

Tamika Mansell

Can you tell me about yourself and your career journey thus far? What areas of law have you practised?

My name is Sarah Jones and I have been a lawyer for over 10 years. I was admitted in Brisbane and then had the opportunity to move to Sydney in 2014 (which I jumped at).

I started my career doing litigation and debt recovery. Now the vast majority of my work is commercial, in the banking and finance area.

What shaped your decision to become a lawyer?

I had an opportunity to be exposed to the law as a young person; I have worked in law firms since I was seventeen because I was lucky enough to know lawyers. I did not necessarily plan to become a lawyer but through this opportunity, I found a lot of satisfaction and value in legal work. I think being exposed to the law is really what shaped my decision to move forward and pursue a legal career.

What is the most rewarding aspect of your career?

For me, it is not the intellectual pursuit that is most satisfying but the people that I deal with everyday. Bringing a team together with your staff, or assisting your parent companies with business, or helping the community by sponsoring a local event - helping the people around me is what I find most rewarding!

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thebrief.muls.org | 25

For the first time ever, a July 2021 report by the Law Society of New South Wales found that female lawyers outnumbered male lawyers in every Australian state and territory. However despite this, there are still less women in senior legal roles. In your opinion, how close are we to achieving equality in the legal sector?

In my opinion, we are probably still a generation away. There is still a full generation up there making decisions and there are still many cultural changes that are coming through. I do not want to suggest that the women and men who have paved the way have not done an amazing job. My mum for example has been a lawyer for my whole life. She was a lawyer in the 1980s which was really uncommon and meant that she went back to work four weeks after giving birth. There are also really amazing things I have seen since I became a lawyer like cultural shifts, shifts in the legal sector and in the world, so I think we are definitely on our way. However I do think we still have a way to go.

How has the legal profession evolved, if at all, to better support female lawyers since the beginning of your professional career?

Well, we are having this interview! I do not think that would have happened at the beginning of my career. Also, at the beginning of my career there was a trend of saying “I am not a feminist”. You had to be part of the boys club to be invited.

I think acknowledging the unconscious bias we have been operating under as a society has been a big change in the last 10 years. Being able to have a voice and being told that our voices have value has become a consideration not just for university students and young lawyers but older lawyers and decision-makers too. If we do not allow women to be part of the law, we are missing out on 50% of the potential talent pool which is an insane choice for the profession. Social media is probably the largest factor helping the profession evolve, sharing knowledge and fostering change.

What factors do you think are needed to progress gender equality in law?

Cultural change is on its way but we do still have those unconscious biases. Acknowledging this is one thing but then to make sure that we implement strategies to combat it is the next.

I think one factor would be creating awareness, like what this interview is doing. A lot of the time people think we live in a meritocracy and are just not aware of how accidentally biassed they are. We all have those unconscious biases.

Another factor I thought of was implementing more robust parental leave. In your early 30s, promotions are occurring but many women are starting to have kids and so are dropping off. It would be great if my firm had a really great maternity leave policy so women could take the time off but also if their

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partner’s work had a great parental leave policy so they could take time off too. Not needing to take as big of a break would affect how women move forward. A lot of companies and firms are moving towards this but there is still a stigma about men taking that time off which I do not think is helpful to us all moving forward.

Were the challenges that you overcame in your legal career heavily gender based? Are there any challenges you continue to face as a woman in the legal profession?

I should say, for the most part my experience of being a woman in the law has been really positive. I have felt really supported by the other women and men in the law that I have known. The vast majority of people in the profession have made me feel very included.

However, there were definitely challenges I overcame that were gender based. When I was younger, being taken seriously was probably the major challenge, particularly when I was dealing with older men on the other side. I was called “young lady” a number of times when I was trying to negotiate a deal. I do not think they were overt but it was implied by little comments. It was more systemic gender-based challenges.

As a practicing lawyer, have you ever encountered gender discrimination in the adminstation of justice?

I was not in court, but once a judge, trying to be helpful, told me that I needed to have a lower voice if I ever wanted to be taken seriously in court. A lot of people on the other side too would ask how old I was or say “respectfully” that they did not think we were on the same level to negotiate. I think this was probably the main gender discrimination I experienced when I was younger, but I can see it changing which is amazing.

The shift is really nice to see because I definitely feel as though lots of male clients made me feel really uncomfortable in my career when I was younger, particularly when it was not practice to say anything. I do not think anyone ever told me not to speak up but it was definitely implied culturally that those who spoke up were the problem. For example, whenever a woman would bring a bullying or harassment claim, the papers would get hold of it and it would be impossible for her to find another job, whereas there would be no issue for the man who did it. This meant women would just put up with it and hope for the best because they did not want to be the reason their firm lost a client. I did not know that you could complain but I think now we are

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so much more aware of blaming the victim and we talk about it more. It is just a different conversation.

How does the reality of your career compare to the dreams you had through law school? What advice can you impart to current law students?

I think I get a lot more satisfaction from the dealings I have with people than I had expected. This was really nice to find out. I did not realise how often you interact with different people, and it is satisfying to help people that you care about. You often have a relationship with them and sometimes have been working with them for years.

In terms of advice, one thing I would say is that you cannot have it all today. You are not going to be the partner of your firm today and you are probably going to do some boring tasks in the beginning. I think if you know this at the outset, you can enjoy the learning part of a legal career, because learning is fun (I hope)!

What advice do you have for women who experience gender discrimination in their legal career?

I think, as I said before, do not just take the discrimination but speak up about it. The more we speak up, the more it will hopefully bring attention to it and limit how much it happens moving forward. It is not always that a company knows about discrimination and is trying to cover up. They often just do not know about it, so it is important to speak up so that people are aware of what is happening. Also, if you do not feel comfortable speaking up at your company, seek some advice from a friend or mentor.

What can we as law students do to support the move towards gender equality in the legal profession?

Keep doing things like this interview! Keep talking about it, keep yourselves involved and keep being part of the discussion. It is sometimes easy to set important discussions and learning aside when you are busy, but it is always really important to keep yourselves informed and when you have an opportunity, to try and add to the conversation.

--On behalf of The Brief, I would like to thank Sarah for her time and invaluable insights regarding women in law.

To read more about Sarah’s work, go to https://www. jhklegal.com.au/our-people/sarah-jones/

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Admissions of a Law Student

A Reflection of

Western Sydney

Mikaela Mariano

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F

or all my life, I’ve lived in Western Sydney – a region which encompasses a culturally diverse identity. Enriched by stories of different people from all walks of life lies a heartfelt connection between people.

Yet, it is my personal experiences living here that has provided pertinent preparation for working towards a future in the legal field.

In primary school, my friends and I were nothing but proud of our culture. Every day during recess, we would sit in a circle and exchange food. Rice dishes, lampuki pie, pierogi, pancit and baklava were some of the many meals we had. Our paper plates barely kept it together with the hefty amount of food as we told stories about how our families made them. These foods created a home for us. The bold flavors and distinct fragrance of food was a safe haven. The meals were another kind of hug that brought out our most authentic selves.

Everyday after primary school, my dad took my sister and I to the park in Parramatta. Yet, it was not the routine of going to the park that was memorable; it was the people there. With every visit to the park, I learnt a remnant of someone’s story.

The older kid that I played tag with lived with his grandmother across the park. He would play for two hours and then practise his mandarin with his Grandmother. He was a part of the 38% of people who spoke a language other than English at home in Western Sydney. I learnt that he would finish all his homework in class, so he would spend the night with his Grandmother in case she needed him to look after her.

The twins who taught me how to skate always had their mother watching from the tables. Their mother would do her homework for her evening classes. She started attending university in her early 40s as she learned very young that her life with marriage, moving to Australia and taking multiple jobs to support her family was a higher priority. Working toward a Bachelor of Science, she wanted to be the first in her family to have an undergraduate degree.

The two elderly men who lived together, taught the other kids and I to play poker. These friends who fought in war, covered in arm tattoos and scars on their legs, taught me not to prejudice others by appearance.

Sometimes, my parents would take my sister and I to Starlight Bakery in Doonside on the weekends. I

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would walk outside - patiently waiting for the boxes of pandesal, Spanish bread and Ensaïmada. One time, I remember going into a local Kebab Store, amazed at the scenery; tables distanced, and yet, the communication between people was not. Amidst the workwear, sports uniform, scrubs and casual wear, the laughter, light jokes, the storytelling, I saw the power of love formed by people learning about others’ lives. Conversations of family, hardship and work – I saw the most sincere connections between these people. Every time I went there, the atmosphere was always the same - those whose stories I learnt, learnt mine.

In high school, Culture Day was the annual event hosted by my school, where students and teachers had the opportunity to express their culture. Some made their beloved national meal with others, and those who spoke languages other than English taught other students the basics in smaller classrooms. My science teacher taught students and teachers how to make moussaka. In between each step, she would tell stories of how her parents migrated to Sydney. She would describe it as a house full of love and sacrifice from her parents, who did their best to show her the world that she could contribute to. Afterwards, my friends and I taught the basics of Tagalog to students.The joy that came with us discussing our culture and the interactions we had with each other, brought a world of love where people were learning about others’ rich history.

Home to 2.6 million people, the beauty of the diversity of Western Sydney is the individual, human stories. Where the voices of our communication are rich and vibrant, we connect with each other with compassion, adversities and our hard-working nature.

Being a part of these stories allowed me to not only see the world in different eyes but to appreciate the sacrifices, communication and traditions people hold here. Being a part of this narrative, I am motivated to hold honour in the diversity and culture that makes Western Sydney. I advocate to give such a multicultural community a platform to speak about their own journeys and experiences. Skills so versatile, and yet, critical in the legal field; to be able to listen, empathise and understand.

I feel nothing but pride for Western Sydney.

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A Brief Review

The Mauritanian (2021) directed by Kevin Macdonald

A

Katie Walker

young man is escorted out of his home

by Mauritian police two months after 9/11. Kissing his mother’s forehead he whispers, ‘Save me some tajine’ as he takes a final glimpse of his family.

This scene opens Kevin Macdonald’s legal drama The Mauritanian which depicts the true story of Mohamedou Ould Slahi (Tahar Rahim). Slahi is a Mauritanian man imprisoned indefinitely, without charge or trial, in Guantanamo Bay due to suspected connections to Al Qaeda. Established in 2002, Guantanamo Province was chosen by the Bush Administration as a site to imprison suspected terrorists, rather than holding them in US territory. By holding prisoners in Cuban land, they are not protected by US law or international treaties.

Macdonald tackles the confronting, first-hand brutality of the US justice system, delivering an impactful examination of Slahi’s experience. While imprisoned, Slahi was subjected to sexual humiliation, beatings, a mock execution, and prolonged isolation, among other forms of torture. While difficult to watch, it is a raw depiction of the kinds of practices that still exist at Guantanamo Bay. Nancy Hollander (Jodie Foster) is the criminal defence lawyer who undertakes Slahi’s case pro bono three years after his initial detention. Supported by her associate Teri Duncan (Shailene Woodley), the pair maneuver through the language and geographic hurdles of representing Slahi. Although Hollander

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initially appears to assume Slahi is guilty, she begins to re-evaluate this assumption as she learns more about his experience and the corruption infiltrating the political sphere.

The final scenes of the film integrate footage of the real Mohamedou Slahi, bringing a powerful sense of reality and depth to the film. The credits reveal that of the 779 prisons detained at Guantanamo, only 8 have been convicted - a profound reminder of the injustices still present in contemporary legal systems.

The Mauritanian is an emotionally engaging film, tackling deep issues of human rights within the criminal justice system. It encapsulates the real issues facing the 39 men left in prison at Guantanamo Bay today. As law students, it is important to expand our perspectives on international justice systems to build greater awareness of the injustices that continue to infiltrate our systems.

The film is compelling, moving and truly deserving of greater recognition.

Watch the film on Amazon Prime.

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