The Brief Edition 3 2022

Macquarie University Law Society magazine Edition 3, 2022 (Volume 28)

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The Brief Ed.3, 2022

Contents Features 12

14 16

18

‘The Lion’s Share of Responsibility’ Restoring the balance of interests between the complainant and the accused with affirmative consent Bradley Cagauan You could cut the tension with a knife: Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018 (‘TOLA’) Mikaela Mariano What Came First, the Music or the Misery?

An Insight into the Rising Use and Misuse of Non-disclosure Agreements within the Australian Music Industry Marie Boulougouris The Era of ESG: A Need for Better Regulation in the Corporate Landscape Muskan Khadka

20

The Erosion of Women’s Reproductive System Rimsha Acharya

22

Risking it for the Law Arnav Gandhi

Regulars 06

[What’s New in the Law?] Nina Batra

08

[Social Justice Corner] The Crisis of Child Incarceration in Australia Amy Scott

09

[Under the Radar] Is blowing the whistle worth the risk? Matilda Byrne

10

[Devil’s Advocate] Should Terrorism be an International Crime? Claire CotrellDormer & Liam King

24

[Admissions of a Law Student] Our New World Order Tracey Adams

25

[Stuff Law Students Like] The Physical Copy of AGLC4 Jasmine Choy

26

[A Brief Review] A Review of Myfanwy Wallwork and Dr Greg Adamson’s ‘Human Rights and Technology: Leading Organisational Change’ LexisNexis Podcast Valentina Muoio

Editor's Welcome

Welcome readers to the final edition of The Brief for 2022!

Our greatest decisions and experiences often begin when we take a chance. Whilst risks can make us stumble, they are also an inherent part of our successes. Thus, as we journey alongside the law, we should consider the interaction between our legal systems and risks. On the tightrope, is the law our safety net or the cause of our fall?

The third edition of The Brief, ‘Tightrope’, is an exploration of how our legal system balances risk.

This edition investigates the way the law supports us in taking risks whilst simultaneously being required to protect us from them. It allows us to be critical of times we are put at risk when the law fails to safeguard our private rights. Through ’Tightrope’, we consider the extent to which the law enables or hinders our lives.

Reforms to consent laws are considered (p.12) followed by an examination of the Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018 (p.14). Our writers then delve into the misuse of non-disclosure agreements in the Australian music industry (p.16), how environment and social governance concerns are treated (p.18) and the overturning of Roe v Wade and its impact in Australia (p.20). To wrap things up, the overarching question of how the law manages risk is addressed (p.22).

I extended enormous gratitude towards the writers, sub-editors and designer of ‘Tightrope’. Thank you for bringing your creativity, critical-eye and diligence to this edition of The Brief. Your ideas have inspired us, provoked thought and encouraged us to engage with the law beyond our formal studies. As always, I am extremely grateful for the continued support of both our new and returning readers. I trust that you will enjoy this edition; be brave, take risks and closely hold the law as you walk this tightrope with us.

Being the Editor-in-Chief of The Brief across this past year has been a truly invaluable experience. I am honoured to have worked alongside passionate individuals and now invite you to join our new Editorin-Chief, Bradley Cagauan, and his team across 2023.

This year we have witnessed the innovative thinking and critical analysis of Macquarie Law Students. As my term comes to a close and a new season begins, I am excited to see what The Brief brings and I hope you are too.

Tamika Mansell Editor-In-Chief

4 | The Brief

Ed.3 2022

President's Welcome

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

Interacting with and practicing law can often feel like a balancing act of different risks. In this digital and globalised world, it is vital that students and practitioners alike consider these risks, as changes to legal regimes carry far-reaching impacts.

This issue, ‘Tightrope’ has some incredibly interesting reads and expertly addresses this balancing act. Some of the fantastic articles include discussion of new affirmative consent laws in both New South Wales and Victoria, privacy and protection of business and personal information under the Assistance and Access Act 2018, and also a look into the changes to abortion laws in The United States. Additionally, this edition examines whistleblower protections and the relevant legal regimes in ‘Under the Radar’ and poses the question of whether terrorism should be considered an international crime in ‘Devil’s Advocate’.

I would like to extend an enormous thank you to Tamika for all of her hard work in producing three excellent editions of The Brief in 2022. You have been so incredibly reliable this year and I am so appreciative of your passion and determination as Editor-in-Chief.

I also want to thank Maryrose for her leadership and tenacity in overseeing the Publications team. Thank you very much to all of the writers and sub-editors for all of your hard work and time this year. It has been a special experience to see how you have continued to build our flagship publication.

Finally, thank you to you, as the reader, for supporting The Brief and MULS. As myself and the 2022 Executive come to the end of our terms, I wish you the best of luck for the remainder of your time at Macquarie Law School and beyond.

Devlin Greatbatch Murphy President, Macquarie University Law Society

Edition 3, November 2022 (Volume 28) EDITOR-IN-CHIEF Tamika Mansell

DIRECTOR OF PUBLICATIONS Maryrose Sukkar DESIGNER Nathan Li

WRITERS (IN ALPHABETICAL ORDER)

Amy Scott, Arnav Gandhi, Bradley Cagauan,

Claire Cottrell-Dormer, Jasmine Choy, Liam King, Marie Boulougouris, Matilda Byrne,

Mikaela Mariano, Muskan Khadka, Nina Batra,

Rimsha Acharya, Tracey Adams, Valentina Muoio SUB-EDITORS

Andrew Herlinger, Chloe Cairns, Jessica Go, Liam King, Lydia-Lian Zhu, Nasheeta Kibria, Peerlyn Chow, Seren Ozdemir, Simran Kaur, Valentina Muoio, Zoe Gleeson EDITORIAL REVIEW

Devlin Greatbatch Murphy, Maryrose Sukkar, Tamika Mansell, Bradley Cagauan and Claire Cottrell-Dormer 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.

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.

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thebrief.muls.org | 5

What’s New

in the Law Nina Batra

In Focus Deliveroo Australia Pty Ltd v Diego Franco [2022] FWCFB 156 A two-year legal fight culminated in the confirmation of the status quo: a black letter approach to Australian employment law. The Full Bench of the Fair Work Commission (‘the Commission’) reluctantly overturned an earlier ruling that classed delivery drivers as employees and protected them from unfair dismissals.

The applicant in this matter was a Deliveroo driver for three years prior to his removal from the platform, and submitted an unfair dismissal claim with the Commission. He was, prima facie, a contractor, and Deliveroo raised a jurisdictional objection. The Commission had to then turn its mind to whether the applicant was an employee.

At first instance, the Commission applied the landmark multifactorial test in Hollis v Vabu Pty Ltd [2001] HCA 44 (‘Vabu’) to determine whether a person is an employee or independent contractor.

The Commission evaluated elements of the disputed association and found an employer-employee relationship. It found the extensive data available to Deliveroo on driver movements, orders, and customers, gave Deliveroo a ‘camouflaged’ form of control over the applicant. It also contemplated the applicant’s adornment in Deliveroo logos and the consequences of this insignia when he presented himself to the public.

Deliveroo appealed the finding, citing two recent High Court rulings on employment law, which displaced the test in Vabu.

Decided in February 2022, both CFMMEU v Personnel Contracting Pty Ltd [2022] HCA 1 (Personnel Contracting) and ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2 (Jamsek) examined employment 6 | The Brief

contracts. The decisions stress the primacy of written contracts in the determination of rights and duties, instead of practical realities and ongoing dealings between the same parties. Effectively, they erase decades of judicial developments in the face of evolving technology and employment arrangements. As the national workplace tribunal, the Commission is bound by precedent. As such, it conceded it must ‘close [its] eyes’ to the true relationship between the applicant and Deliveroo and focus on the duties conveyed in express contractual terms. Per the written contract, the applicant had theoretical autonomy during his deliveries, as well as the ability to engage subcontractors and to choose his own vehicle. These were decisive in the Commission’s final determination.

The preservation of private interests and freedom of contract are foundations of Australia’s common law heritage, and legal protections were traditionally available to employees due to their distinct lack of bargaining power. Independent contractors have historically been compensated for a lack of protection by significant potential trading rewards. However, digital technology is embedded in the framework of modern society and has glaringly reshaped conventional occupations. Deliveroo drivers cannot be considered independently contracting entrepreneurs; they rely on carefully protected algorithms, standard form contracts, and Deliveroo is not obliged to make work available to them. Nevertheless, where the general law cannot keep pace with the growing gig economy, regulation through statute is an option.

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What’s New in the Law?

Important The Climate Change Act 2022 (Cth) and Climate Change (Consequential Amendments) Act 2022 (Cth) This year, the Commonwealth government introduced its first climate change legislation since the Clean Energy Act 2011 (Cth) (‘2011 Act’) which was effective between 2012 - 2014. The Climate Change Act 2022 (Cth) (Act) and companion Climate Change (Consequential Amendments) Act 2022 (Cth) come twenty-six years after the first independent report on the state of the Australian environment, and six years after Australia signed the Paris Agreement. It follows decades of pressure by environmental groups and concerned citizens.

As called for in the Paris Agreement, the Act codifies a 43% emissions reduction target by 2030 and a net zero emissions target by 2050, and came into effect on 14 September 2022. Notably, the Act mandates that the Minister for Climate Change and Energy will provide an annual climate statement to the Commonwealth Parliament.

While the Act empowers the pre-existing statutory Climate Change Authority to advise the government on future targets, it is otherwise largely symbolic. It places no responsibilities on the private sector to cut greenhouse gas emissions, nor provides a mechanism for achieving reductions. This is in stark contrast to the 2011 Act, and Australia’s environmental laws continue to be largely inadequate in protecting its unique flora and fauna. Despite this, the Act is an important step in Australia’s recognition of the climate crisis and path to improved environmental outcomes.

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thebrief.muls.org | 7

Social Justice Corner

The Crisis of Child Incarceration in Australia Amy Scott

S

hockingly, across Australia police have the power to arrest, strip-search and imprison children, as young as ten years old. In 2020, 499 children aged between 10 and 13 were imprisoned in Australia. Alarmingly, 68% of all children in detention were being held on remand, and 65% were Aboriginal or Torres Strait Islander children. All state and territory governments, apart from the ACT, have so far resisted international pressure and overwhelming evidence brought by a coalition of legal, medical, and social justice organisations to raise the age of criminal responsibility from 10 to 14 years in line with international standards.

The federal government has remained largely silent on this issue.

Evidence indicates that removing children from their families and communities during crucial stages of development and placing them in youth detention causes irreparable harm, particularly for those with complex social and health needs. Clinical psychologist Dr Tracy Westermann stated that 80% of incarcerated children had experienced previous trauma and keeping them isolated significantly increases their risk of selfharm and mental health issues. Research indicates, detaining a child to manage their behaviour does not deter or reduce future criminal behaviour. According to a 2016 report by the Sentencing Advisory Council, 94% of children aged 10-12 in detention are likely to receive another custodial sentence before they reach adulthood. As Co-chair of ‘Change the Record’ Cheryl Axelby stated, ‘ten-year-old children who get trapped in the criminal justice system don’t come out’.

In an SBS News interview, an Aboriginal boy Leroy (a pseudonym) related how a vicious cycle of incarceration began when he was only ten years old, estimating he was incarcerated on more than 30 separate occasions before his 18th birthday. Leroy described his

8 | The Brief

experience as ‘confronting and violent’, experiencing bullying, extended lockdown periods, severe isolation, and loneliness. In September 2020 the Office of the Inspector of Custodial Services inspected Banksia Hill, where Leroy was held, detailing critical findings that child detainees, on average, spent 13 hours or more a day isolated in their cells. It has been reported that the children leave with no transferable skills, they do not receive adequate psychosocial counselling to address trauma, and many leave with no support on the outside, facing poverty, discrimination, and disadvantage.

Figures from the Department of Communities estimate that the Western Australian Government spent over $200,000 incarcerating Leroy, where he missed months of schooling and did not achieve meaningful skill development while inside.

The United Nations Committee on the Rights of the Child has repeatedly criticised Australia for not raising the age of criminal responsibility in line with the international standard, which is currently benchmarked at 14 years. In Australia’s 2021 Universal Periodic Review, 31 countries recommended that Australia raise the age of criminal responsibility to meet the international standard. This is a human rights issue of significant global concern; Australian Governments need to respond accordingly and invest greater resources into First Nations-led strategies, community rehabilitation and diversionary programs, family services and alternatives to custodial sentences.

A 2021 research poll led by Amnesty International Australia found that only 1 in 10 Australians knew the correct age of criminal responsibility was ten years, compared to 68% believing it to be 14 or above. To access further resources please visit #RaiseTheAge (raisetheage.org.au) and Amnesty International (amnesty.org.au).

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Under the Radar

Is blowing the whistle worth the risk?

Matilda Byrne

W

histleblowing, the act of disclosing illegal practices or activities by employers, particularly government organisations, is critical to transparency and accountability within Australia. The risks of whistleblowing in Australia are particularly high, with the possibility of lengthy sentences or reputational damage that can prevent future employment. Hence, there is a growing impetus to update the law to protect whistleblowers who risk their careers to tell the truth and ensure high-profile corruption is not being swept under the rug.

At the moment, there is heavy criticism surrounding the criminal charges against Richard Boyle who is facing the threat of life in prison for speaking out against debt collection tactics at the Australian Taxation Office (ATO).

The charges against Boyle include the use of listening devices to record conversations with ATO employees and disclosing protected information. Boyle is claiming immunity for these offences under the Public Interest Disclosure Act 2013, the first case to test current protections in court. If this defence is upheld in the current civil trial, Boyle will not face the impending criminal trial set for 2023.

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Despite these charges, the subject of his disclosure has been investigated by a Senate Inquiry and Ombudsman Review, questioning why an individual is being punished for disclosing wrongdoing that is verified. As an individual, the excessive litigation against Boyle has faced heavy criticism, highlighting that individuals who speak up against wrongdoing will not be protected, despite telling the truth.

A similar critique has been made of the irony of the Federal Anti-Corruption Commission in its early stages, alongside the current trial of Boyle. Attorney-General Mark Dreyfus has promised reform to ensure ‘effective protection of whistleblowers.’ However, the AttorneyGeneral already has the power to order Boyle’s charges to be dropped, evidenced by the Dreyfus ordering for the dropping of the charges against Bernard Collaery, who leaked classified information on an alleged spying operation in East Timor. This demonstrates that there may be more incentive for the government to strengthen protections and consider the public interest in dropping charges against accused individuals who are not protected, such as Boyle.

Likened to a ‘David going up against a Goliath’ by Senator Rex Patrick, when individuals blow the lid on government corruption, there remains a strong power imbalance and risk. Senator Patrick has been heavily critical of current protections, also emphasising the cost and legal burden of individuals forced to defend charges, who may not have the resources of highprofile governments. As critics have highlighted, the psychological harm to individuals is also high, with Boyle himself speaking to the depression and stress he has been under as a result of telling the truth. Therefore, it stands to reason that the absence of protections is punishing individuals, rather than protecting them.

The act of whistleblowing remains a controversial issue in Australia, despite being a central election promise by the current Labor government. Although proposed reform is underway, there is still uncertainty as to whether new provisions will be effective in ensuring individuals such as Boyle do not receive life sentences for speaking up against wrongdoing. Without action to protect individuals rather than government institutions, these protections may continue to fly under the radar. thebrief.muls.org | 9

Devil’s Advocate

Should Terrorism be

an International Crime?

​​I

FOR Claire Cottrell-Dormer

nternational terrorism has increased significantly in the 21st Century. The current challenge is for the international community to adopt a common approach to treat terrorism as an international crime.

‘Terrorism’, although not defined under international law, is generally viewed as a method of violence that aims to ‘create a climate of fear’ in order to ‘service political ends’ by coercing a targeted group or government into submitting to the attackers’ demands. However, the implication of this conception is that it is too broad; it can encompass a wide range of discrepancies, including behaviour that would normally be considered criminal. This makes international criminal liability difficult to establish. Hence, it is necessary to amend the definition of terrorism and treat it as a distinct category of international law.

There is no international consensus regarding whether politically motivated violence generating fear and anxiety, should be considered terrorism. To date, the most significant advancement in the definition of terrorism has been the International Convention for the Suppression of the Financing of Terrorism (ICSFT). This Convention, empowered by the UN Security Council Resolution 1373, provides the framework for several obligations imposed on UN members. While Article 2(1) (b) is an indirect and incomplete definition of terrorism, it is the closest the international community has come to define such an offence. However, the definition that it is impermissible in all circumstances to target civilians or those who are not actively engaged in hostilities remains too ambitious and broad.

In order to define terrorism in a more widely accepted and less ambitious manner, terrorism should be limited to grave violations of specific international anti-terrorism offences. These offences are defined by international anti-terrorism conventions under the International Criminal Court’s (ICC) jurisdiction.

However, Naomi Norberg asserts that terrorism differs from crimes against humanity, war crimes, ethnic cleansing and genocide because of its differing impact on victims. She further concludes that the 10 | The Brief

ICC’s jurisdiction would not ‘bring justice to any more victims than... available.’ Despite this, it can be seen that terrorist acts inflict the same collective harm as war crimes, genocides, and crimes against humanity. Large-scale acts of terrorism and these core crimes have been characterised as ‘acts of atrocity…against the world community, or, more emotively, as an offence against us all.’ Terrorism should therefore be included in our core crimes list, as terrorists target individuals and groups based on their ethnicity, race, and political affiliation.

Hence, there is both a direct attack on individuals and an indirect attack on a socio-political community.

The inclusion of terrorism as an international crime creates new possibilities for increasing the stability of international peace and security. It would allow terrorists to be prosecuted in an international court or tribunal for their offences. Terrorists can be prosecuted in situations where the state protects them, there is no domestic criminal legislation covering the acts undertaken by the offender, or where the acts amount to less serious crimes. In addition to providing impetus for additional protection and prosecution, a permanent trial record that condemns atrocities such as bombings, may deter future crimes, provide victims with a voice, and reduce cultural stigma. As a matter of human rights, justice, and reconciliation, victims of terrorism deserve the same rights as victims of other crimes within the international community. Further, classifying this crime will also ensure that ‘rogue’ governments (which refuse to prosecute terrorists), can no longer shield and hide those accused of terrorist activities. Therefore, terrorism should be treated as a separate category of international law.

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AGAINST Liam King

T

he creation of an international crime of terrorism creates new possibilities for increasing the stability of international peace and security. However, the risks associated with the creation of such a crime outweigh the potential benefits due to both the novelty and particularity of the offence. Terrorism is unique. It is perpetually novel, both in act and motive. For example, the specific acts which constitute terrorism are not well established, and although several typologies have been identified, specific ‘terrorist’ acts are often novel responses to the ever-changing socio-political environment. Further, the motives of terrorism are almost always entirely unique in that they are a reaction to whatever situation the terrorist finds or perceives themselves to be in. The definitional uncertainty of terrorism as a class of offence unduly endangers individual freedoms as it is difficult to create an offence that can properly cover the field without unduly impacing personal rights and liberties.

The definitional issue(s) associated with terrorism create innumerable difficulties with its criminalisation Ed.3 2022

on the international plane. One of the biggest issues concerns acts undertaken for purposes viewed as ‘legitimate,’ for instance, the French Resistance in WWII. However, those same acts undertaken by other parties, for other, ostensibly similar purposes, are universally condemned. Despite this dichotomy, there is no moral framework for determining the legitimacy of such acts. The primary concern here is that any attempt to create and enforce an international crime of terrorism would lead to states prosecuting and/or otherwise impairing ‘legitimate’ freedom fighters and self-determination movements.

Terrorism is already subject to a plethora of both legal and non-legal measures, including economic sanctions, domestic and transnational criminalisation, extensive enforcement measures and several bilateral and multilateral international agreements such as extradition treaties. Terrorism is not, therefore, an activity which goes ‘under the radar’ as it were.

Therefore, although there remain areas where terrorism goes undetected, unregulated, and unpunished, the solution to this issue is not the creation of a corresponding international crime because to do so would be to introduce a measure that is not only ineffective but would endanger the fundamental rights of many. The focus of future developments would thus be better spent developing and enhancing particularised criminalisation and enforcement measures at national and regional levels.

As a result of the above, the creation of an international crime of terrorism is not a desirable objective as it both unduly endangers individual freedoms and is a resource-heavy activity unlikely to be as effective as more particularised assistance. The danger of over-criminalisation and oppression alone are sufficient to warrant hesitation. However, when the option of more effective and particularised assistance is available, the choice is clear.

This position is not that one supports terrorism being legal. Rather, it is an acknowledgement that the novel and highly particularised nature of terrorism makes it ill-suited to a comprehensive definition of universal application without running the risk of undue oppression. Therefore, the focus should be on assisting vulnerable states and regions in developing superior counter-terrorism capabilities. Assistance could be in the form of better prevention measures, such as education for people susceptible to recruitment, or assisting with developing enforcement capacities, such as providing training for police or intelligence agencies. thebrief.muls.org | 11

‘The Lion’s Share of Responsibility’ Restoring the balance of interests between the complainant and the accused with affirmative consent Bradley Cagauan

12 | The Brief

I

n most sexual assault trials, the crucial question is: ‘Was consent given and received?’

The lack of clarity around sexual assault and misconceptions around consent has made it difficult to determine this question. Cultural misconceptions like ‘consent can be presumed if they don’t say no’ or ‘consent is only absent if they fight back’ compromises the interests of complainants by effectively shifting blame onto survivors and sometimes excusing sexual aggression. As such, sexual assault victims historically felt disenfranchised which results in lower reporting rates and fewer prosecutions.

The NSW Parliament recognised this attitude of ‘blame shifting’ was unacceptable and enacted the Crimes Amendment (Consent - Sexual Assault Offences) Act 2007 to bring a ‘cultural shift in the response to victims of sexual assault’ by the justice system and community.

Under s 61I of the Crimes Act 1900, a person was guilty of sexual assault if the Crown proves beyond reasonable doubt that the accused had sexual intercourse with the complainant, without the complainant’s consent and with the knowledge the complainant is not consenting.

Knowledge of lack of consent can be established if the accused had actual knowledge of the absence of consent, acted recklessly in gaining consent or acted without a reasonable belief that the other person consented.

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These reforms sought to disprove the cultural misconception that consent could be presumed. Instead, consent to sexual intercourse requires a ‘free and voluntary agreement’ communicated between willing partners. The 2007 laws increased reporting rates and prosecutions but whether they brought a ‘cultural shift’ against rape myths is debatable.

In 2013, Luke Lazarus was accused of raping Saxon Mullins in an alleyway in Kings Cross. Mullins claimed she ‘froze up’ and told Lazarus to stop. In crossexamination, Lazarus claimed Mullins ‘never said “no,” never said “stop.”’ Lazarus was convicted by a jury in 2015 but the Court of Criminal Appeal ordered a retrial on the grounds of misdirection. He was acquitted in his 2017 judge-only retrial and the Crown’s subsequent appeal was dismissed.

In determining whether the accused had ‘no reasonable grounds’ for believing that the other person was consenting, the Court of Criminal Appeal focused on the complainant ‘freezing up’ and her ‘failure to convey’ an absence of consent. The Court placed less emphasis on the accused’s ‘failure to ascertain’ whether the complainant was consenting. In their analysis of the decision, Gail Mason and James Monaghan concluded that while the judiciary is more cognisant of rape myths, these myths still influence courts’ decisions as shown through their over-reliance on the complainant’s conduct. Despite the 2007 reforms’ aim to establish a ‘communicative model’ of consent, Lazarus demonstrates that the ‘lion’s share of responsibility’ still falls on the complainant. It is not the duty of the defendant to ascertain consent; it is the duty of the complainant not to get raped.

Lazarus prompted community concern about how the law addresses ‘freeze’ responses and whether the ‘no reasonable grounds’ test focused too much on the complainant’s conduct rather than the defendants. This led to further reform with the enactment of the Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021.

Previously, if a defendant had reasonable grounds to believe someone had given consent, they would be acquitted. However, under the new law, an accused’s belief will not be reasonable if they did not, ‘within a reasonable time before or at the time of sex, say or do anything to find out whether the other person consents.’

The only exception is when a person fails to ‘say or do anything’ because of a ‘cognitive’ or ‘mental health impairment’. If a defendant seeks to rely on this defence, they must establish it on the balance of probabilities.

The 2021 reforms are referred to as ‘affirmative consent laws,’ because they clarify that sex cannot Ed.3 2022

be acquiesced to. Instead, the law focuses on the defendant’s responsibility to seek an ‘enthusiastic yes.’

If circumstances similar to Lazarus were to occur today, then a defendant who never says or does anything to ascertain whether the other person is consenting during sex will likely be convicted.

Alongside the reforms, new jury directions have been provided to dispel rape myths such as the direction that there is no ‘normal response’ to sexual assault and that ‘freeze responses’ do not indicate consent. This is especially important because the 2017 National Community Attitudes Survey on Violence Against Women found that 1 in 10 Australians believe that ‘rape only occurs where a woman physically resists’ and 1 in 5 Australians are ‘not clear that coerced sex in marriage is against the law.’ As such, these jury directions will allow juries to arrive at more accurate decisions. To further dispel rape myths and improve complainants’ experience with the justice system, the NSW Government also committed to train lawyers, police and judges around the new reforms and the ‘Make No Doubt’ campaign was launched to educate young people about affirmative consent.

Some have decried the new laws as ‘reversing the presumption of innocence’ by requiring the defendant to prove their innocence. This is not the case; it is still the Crown’s duty to prove that the accused did not ‘say or do anything’ to ascertain consent beyond a reasonable doubt. All the new law does is recognise that consent is a ‘positive obligation’ which must be actively obtained by the defendant or they risk having ‘no reasonable grounds’ for having knowledge of consent. While the ‘say or do anything’ requirement is broad, AttorneyGeneral Mark Speakman said the ‘requirement is not onerous.’ The new law only seeks to restore the balance between the complainant’s interests and the common law rights of the accused, a balance which has historically been unfavourable to complainants as to have a chilling effect on sexual assault survivors.

By imposing a small legal burden on individuals initiating sex to actively ascertain consent, the risk of trauma inflicted on an unwilling partner is decreased.

These reforms are a stepping stone to broader cultural change and a shift from a ‘no-means-no’ standard to an ‘enthusiastic yes’ standard. The success of these laws remains to be seen but advocacy groups have praised its rational approach. At least for now, the reforms are a triumph for rationality, compassion, and a vindication of our personal freedoms and choices.

thebrief.muls.org | 13

You could cut the tension with a knife:

Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018 (‘TOLA’) Mikaela Mariano

Introduction In response to the concerns of the cybersecurity of devices, TOLA empowers law enforcement and national security agencies to request, or compel, assistance from telecommunications providers. The implementation has led to indirect (interfering with innocent third party personal data etc) and direct threats (such as damaging reputation and interference of consumer’s data etc) that TOLA poses for consumers, business and partners for digital trust. Thus, I would argue that this has resulted in a tension between national security interests and public interest in privacy, security, confidentiality and the freedom of expression of Australia.

Purpose of TOLA The Act’s purpose is to assist law enforcement and intelligence agencies to continue to perform their authorisation and safeguards by compelling technology providers to give access to encrypted data. This intervention from the agencies purports to decrypt any communication that would pose a risk to public safety. Such ‘risks’ that TOLA is concerned with include encrypted information that serve as imminent threats to national security and the rise of serious criminal offences such as terrorism and criminal organisations.

14 | The Brief

Has it been beneficial I would argue that TOLA has a more general benefit.

This Act introduces new covert computer access warrants which improve existing search and seizure powers to assist law enforcement in protecting our national security and unmaking illegal conduct. TOLA prefaces the relationship between business and agencies by enhancing a business’ obligations that provide communications services to assist agencies in disrupting criminal activity. As such, it enables Australians to confidently engage in online activities securely such as online banking and shopping.

The main controversies of TOLA Yet, there is limited guidance as to the circumstances in which the purpose would apply safeguards and oversight. The unintended consequences of modifying the services that fit this form of assistance may introduce weaknesses or vulnerability into these electronic services. Arguably, counteracting TOLA’s purpose of protecting the security of personal information as it leaves greater chances of consumers’ software being exploited by illegal interference.

Some of these controversies include:

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Affects trust between business and the clients and their employees Imposing TOLA, digital trust of citizens is affected by activities that may not relate to their specific digital activities. The existence of such unauthorised access undermines that consumer trust and their reasonable expectation of confidentiality in communications is promised. TOLA intends to justify the authorisations of intrusive powers that limit an individual’s right to privacy and censorship, where the ability of interception agencies to access digital communications and data would otherwise remain private.

This uncertainty of security will lead consumers to take their business somewhere else. It can be interpreted as accusing businesses of endangering its users, damaging the organiser’s reputation. The inevitable risk must be considered when balancing the requirements of preserving Australia’s security and assistance from law enforcement agencies. Thus, arises this tension of encryption access laws that reflect the moral conflict between the protection of individual privacy rights and allowing agencies to conduct their investigation of criminals by accessing personal data.

Limited oversight While TOLA includes brief oversight for the authorisation, the absence of transparency or oversight in a formal manner could lead to an abuse of power. The lack of limited oversight is prefaced in the three types of requests; technical assistance requests, technical assistance notices and technical capability notices. A specific warrant is not required and where there is limited detail as to show how this is actually done.

Pursuant subsections 317MAA(3) and (4) of TOLA, the Director-General of Security is required to inform the providers of their right to complaint when providing notice of accessing their data. However, TOLA fails to include what constitutes a valid complaint and a more detailed process of what relevant body is overseeing or receiving that right to complaint. As such, the lack of transparency and detail in oversight reflects the need of a greater availability to review to not only aim for secure communications on the internet but also question the current complaint mechanisms implemented.

Violation of a Third Parties’ Privacy The access law enforcement and related agencies will have to private individual devices and technology poses a detrimental impact on third parties. If a software is hacked, third parties could obtain personal information of users of the application, which may Ed.3 2022

lead to cybercrimes such as identity fraud, infringe the right to privacy and limit freedom of expression.

TOLA authorising agencies access to third party devices (i.e parties affected that are not engaged in criminal activities or are targeted individuals) direct access the system authorises highly intrusive interferences with the right to privacy. There needs to be governmental accountability for these innocent third parties to have their data exposed. The breadth of interception powers supplied to these authorities justifies access to telecommunications systems in a variety of different circumstances in the absence of intervention.

Recommendations suggested to amend TOLA Given these controversies, robust assurance, accountability and greater oversight mechanisms are critical to ensure that TOLA does not disrupt the balance between the public interests and the individual’s right to privacy.

TOLA lacks sufficient roles for independent judicial authorities to oversee the three requests. TOLA should be amended to make available merits review by an independent judicial authority to any decisions to use any of requests pursuant to the Act. This would benefit for two reasons. Firstly, create a clear pathway on how these authorities would inquire into the circumstances in which the purpose of the request would apply.

Secondly, review how such an investigation would be used for the purpose of safeguarding national security and if such should be issued in the first place. Allowing judicial review is critical for public trust, encouraging and informing, democratic debate, expanding a degree of transparency and accountability. Where the public has awareness and information regarding the powers of these agencies, it upholds these bodies accountable for its action in the event of any breach of trust and unauthorised access to personal data. Further, any amendments to TOLA should reflect the need to balance secrecy and the openness critical to society. Ultimately, greater oversight further plays an important role in system-wide accountability, where any justification to access telecommunications systems is sufficiently explained and understood, ensuring that the public has engaged meaningfully with this knowledge.

Conclusion Observing all these pressing concerns mentioned above supports that TOLA is unnecessarily complex. As such, it becomes difficult to identify that balance between protecting the user’s privacy and public interest in enabling the evasion of criminal investigations to avoid greater threats of security. thebrief.muls.org | 15

What Came First, the Music or the Misery?

An Insight into the Rising Use and Misuse of Non-disclosure Agreements within the Australian Music Industry

Marie Boulougouris

Content Warning: This article discusses sexual assault. If you or someone you know is affected by the following story, you are not alone. To speak to someone, you can call Lifeline on 13 11 14, or 1800 RESPECT on 1800 737 732. Macquarie University offers support services and reporting pathways for anyone who has experienced any form of sexual assault or sexual harassment at wellbeing@mq.edu.au.

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he Australian music industry’s hyper-reliance on Non-Disclosure Agreements (‘NDAs’) has been put under the microscope in recent years, with survivors of abuse asserting that such agreements fuel a culture of fear and help repeat perpetrators avoid detection and punishment.

These NDAs not only pervade corporate and commercial spheres within the music - rather, their use has extended in recent years to Australia’s musical subcultures. Not only does this reinforce a macroculture of insidious silence, but it increases the risk of harm to future victims. This article aims to investigate the ways in which the law supports survivors of abuse, and its failure to protect the private rights of citizens to disclose experiences of abuse. It will also explore how the use of NDAs prohibit victims from speaking out about their experiences.

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NDAs, also known as confidentiality agreements, are legal contracts that are used when sensitive information needs to be shared between two parties.

It ensures that the person or organisation who gains access to sensitive information doesn’t disclose it to a third party.

NDA arrangements are commonly entered into as part of the settlement of sexual harassment and abuse claims. They generally prohibit all parties to the agreement from talking about the claim, and details of the settlement.

It is difficult to determine just how pervasive the use of NDAs may be - they often require parties to completely deny the existence of any settlement contracts. The few places people feel they can freely talk about them are on anonymous gossip sites or social media pages, such as Deuxmoi, and Beneath The Glass Ceiling. The latter operates as a dedicated Ed.3 2022

platform for disclosures of sexual harassment, assault, and other unlawful conduct, to ‘lift the lid’ on the complex pattern of behaviours that contribute to the perpetration of abuse in Australia’s local and commercial music industries. In addition, ‘Raising their Voices’, an independent review into sexual harm, sexual harassment and systemic discrimination in the Australian contemporary music industry, affirmed the widespread use of NDAs. Additionally, the review reflected on their struggle to find participants in the context of their assessments, as survivors of abuse were regularly forced to sign an NDA as a condition of settlement.

However, protections are available to survivors of such abuse, and media is often seen as an important last-resort integrity check. As music is largely a private sector industry, there are some protections provided under the Corporations Act 2001 (Cth) and the Fair Work Act 2009 (Cth). The former legislation makes it a criminal offence to victimise a whistle-blower or terminate their employment based on the disclosure of certain information. Accordingly, whistleblowing allows businesses to effectively investigate suspected infringements and take appropriate steps to reduce the consequences. This in turn minimises risks and loss for the business, and helps raise awareness about unethical behaviours and instances of abuse. Ideally, this is seen to enable the development of an open and transparent workplace culture. Furthermore, when boards have visibility of a settlement arising from whistle-blower action, this ideally allows for systemic challenges to be addressed and for practical top-down solutions to be made.

In an ideal world, whistleblower provisions play an important role in identifying and calling out misconduct and harm to the community. However, they are only effective when a company is actively willing to address such allegations and work towards effective solutions. Furthermore, for whistleblower processes to be successful, reporting mechanisms must be confidential - following the findings of the ‘Raising Their Voices’ campaign, it was found that breaches of confidentiality in the whistleblower process are rampant in contemporary music sectors. This not only has a flow on effect to hinder employee and community trust, but also reduces the sense of agency which survivors of abuse require in order for their reports and experiences to be effectively respected and taken seriously.

NDAs on the other hand protect the informational Ed.3 2022

privacy interests of both perpetrators and victims, facilitate dispute settlement, and provide victims with larger settlement awards.

However, whether guilty perpetrators are entitled to informational privacy about their wrongdoings gives rise to an ethical dilemma for all non-victim stakeholders. On one hand, it might be thought that NDAs protect perpetrators from excessive social punishment. However, it remains that when repeat perpetrators continually avoid wider social detection, punishment, and accountability for their actions, this has a flow on effect to increase the risk of harm to future victims.

It is more recently argued that a moral dilemma arises for both lawyers who draft NDAs and the corporations which exploit them. In particular, this relates to the duty of care owed to relevant stakeholders. In the New Zealand case of Gartside v Sheffield, Young and Ellis, it was recognised that the social objective of compensating deserving plaintiffs must operate alongside the promotion of professional competence. In applying this to the use of NDAs – particularly following the arbitration and mediation of sexual harassment and abuse claims - it can be said that the unidimensional use of NDAs as a ‘gagging order’ significantly hinders the systemic prevention of sexual harassment. Furthermore, where organisations fail to assess such trends, including the hazards associated with continuing the employment of serial offenders, their professional competence is compromised through the denial of more effective remedies, amounting to a subsequent breach of their duty of care.

However, it is hoped that both State and Federal governments will follow suit on implementing the recommendations of the National Inquiry into Sexual Harassment in Australian Workplaces, and the Victorian Government’s Taskforce on Workplace Sexual Harassment. In both recommendations, it was endorsed that NDAs be prohibited in the context of workplace sexual harassment settlements. By implementing such provisions, issues surrounding the use and misuse of NDAs within the Australian Music Industry can be more effectively tackled. Though this is not a simple solution to prevent and deter all instances of sexual harassment within the Australian music industry, it will safeguard the private rights of survivors of abuse, so that they may deconstruct and disclose their experiences with their communities. thebrief.muls.org | 17

The Era of ESG:

A Need for Better Regulation in the Corporate Landscape

Muskan Khadka

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he corporate world has often come under great scrutiny for its insensitivity and inability to recognise the importance of sustainability, ethical practices, and environmental feasibility. In the last decade, environmental, social and governance (‘ESG’) pressure has intensified to the point that it has quickly dominated the discourse around real-world change and is being increasingly reflected in the corporate sector.

While it is important to note there has been formidable change enacted, it is not large enough change to combat the impacts of ESG related issues. More recently, two phenomena have emerged that seem to be key indicators of the way ESG concerns are being treated - these are the rise in greenwashing, as well as climate change activism and litigation. As the greatest perpetrators of issues like global warming and workplace inequality, it is integral that actors in ‘big business’ are made accountable by regulators and legislators for their shortcomings, and that a culture of pro-ESG is firmly integrated into the fabric of the industry.

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Combatting Greenwashing Greenwashing describes the practice of companies making false claims to deceive the public into believing that their aims, policies, and products are environmentally friendly. It is known as a quick and efficient strategy for businesses to win over the public’s favour through manipulative conduct.

However, a 2021 study conducted by a shareholder advocacy group identified that 60 out of 94 ESG funds failed to abide by ESG investing principles, triggering investors and regulators to place heavy emphasis on requiring companies to substantiate any ESG related claims. One such case that intensified regulatory scrutiny was German financial regulator, BaFin, and the US Securities and Exchange Commission’s investigation into allegations that Deutsche Bank’s asset management arm had been misstating environmental credentials of green labelled products. This indicates that not enough is being done to regulate and prevent environment related misconduct.

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While there has been a move to increase disclosure requirements, these initiatives are generally not sufficiently enforceable in practice. It often creates loopholes for companies to slip through the cracks and leaves regulations ineffective. This is evident in the large number of defendants involved in greenwashing litigation using the defence of claiming their statements were merely ‘puffery’ meant to be understood as such by consumers. This raises the question of what credible disclosure constitutes and remains in the hands of legislators and regulators to clarify as such.

Increase in ESG Activism and Climate Change Litigation There has been an increase in ESG related activism, as ESG-related proposals are frequently being tabled at listed company annual general meetings. Many proposals included reductions in indirect emissions that occur in the value chain of the reporting company otherwise known as Scope 3 greenhouse gas emissions, as well as a recognition of greater social awareness with a push for gender, racial and ethnic diversity on boards.

The impact of activism was particularly seen in the area of ‘Big Oil’ in 2021. For instance, campaigns calling for Exxon Mobil and Shell to be more ESG conscious triggered a number of changes regarding gender parity, with Shell’s board now composed of an equal number of male and female directors. Despite investor activism, oil production is still expected to rise to meet demands, causing hedge funds to continue buying oil and gas stocks which frequently don’t align with ESG goals. Combined with the reality that small, family owned, or private equity backed producers operate with little accountability, ESG improvements in traditional areas of high financial rewards such as oil still have a long way to go.

With the rise in climate activism, there has been a steady increase in climate litigation involving activists suing governments and large international corporations alike, pressuring companies to seriously consider their duty to combating climate change. In May of 2021, a climate litigation case in Germany involving a group of German minors and young adults, supported by environmental organization Deutsche Umwelthilfe, resulted in a ruling that amended the country’s climate protection act to include greater CO2 emissions reductions. Many similar cases are being lodged in countries around the world including Italy, Pakistan and the United States. For companies, this means that there is now an increasing expectation to be climate friendly Ed.3 2022

– specifically in the statutory areas of disclosure, which forms the basis of most climate change litigation. A failure to disclose problematic processes, operations or even product labelling regarding ESG practices has been proven grounds to sue. Therefore while many jurisdictions are not under any rigid obligation to engage in sustainable practices, it is highly recommended to do so.

In Australia specifically, there is a shifting priority for businesses to comply with governance frameworks or else risk litigation. Several cases alleging failure to disclose climate risk have already been lodged in Australian courts. Notably, the Australasian Centre for Corporate Responsibility (ACCR) commenced legal action against Santos Limited in the Federal Court of Australia for alleged misleading or deceptive conduct.

The alleged conduct was regarding the company’s 2020 annual report that claims natural gas provides ‘clean energy’ and that it has a ‘clear and credible’ means of reaching net zero emissions by 2040. Further in O’Donnell v Commonwealth of Australia (2020), a holder of and an investor in certain Australian Government Bonds (‘Bonds’) brought proceedings to the court on behalf of themselves and other holders and investors of the Bonds. It was argued that the Commonwealth had failed to disclose climate related financial risks in promoting the Bonds and therefore was in breach of the Australian Securities and Investments Commission Act 2001 (Cth) and the Public Governance, Performance and Accountability Act 2013 (Cth) which stipulate respectively that there must not be misleading or deceptive conduct and that a duty of due diligence exists. Such cases are indicative of a shift towards climate consciousness where corporate entities must recognise that inadequate handling of ESG considerations may form a breach of existing obligations.

The increase in climate litigation can be predicted to continue into coming years, with both constitutional and legislative changes being not too far from the reality of climate law. ESG concerns must be heeded now before its devastating impacts are irreversible. Change requires legislators and regulators alike understanding and recognising that they must step in to ensure the corporate sector is engaging in sustainable and ethical practices. The rise in greenwashing and climate change activism are the two most significant indicators of a need for change and increased regulation. Ultimately it is a clear reminder that there is still much to be done in the corporate sphere to ensure that ESG concerns are meaningfully mitigated, addressed, and combatted.

thebrief.muls.org | 19

The Erosion of Women’s Reproductive System Rimsha Acharya

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bortion is one of the most polarising topics that continues to spark debates world-wide.

Laws surrounding abortion directly impact women’s reproductive rights which are internationally grounded in human rights. Access to abortion is critical to fundamental human rights for women, girls, and pregnant people.

Restricted access to abortion increases unsafe abortion, putting women at risk of unsafe procedures and criminal charges. Minority groups including Black, Indigenous peoples of colour and people living in poverty, can disproportionately face these risks and are impacted more by restrictions to safe and legal abortion.

Advancement in women’s rights has seen the rise in education for women, women in positions of power and a big step towards gender equality. This has been a significant advancement for reproductive rights of women and bodily autonomy, such as the 2018 decriminalisation of abortion in Ireland which was previously inconceivable.

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However, as progress has been made towards women’s rights, there have been resurgences in conservative and religious interests leading to attacks on women’s reproductive rights. The erosion of women’s reproductive rights in the US over the years has not only impacted women in the US, but continues to affect women globally. During Trump’s presidency in 2017, he enacted a ban on US foreign aid to international and domestic family planning organisations which advise or provide abortion services. As a direct result of this, there was an increase in teenage and unwanted pregnancy in rural Zambia and other developing countries. Moreover, the US State Department’s annual international ‘Country Reports on Human Rights Practices’ in 2018 had a section on reproductive rights removed, and a section titled ‘Coercion in Population Control’ added. The report failed to mention the prison sentences imposed on women suspected of having an abortion in El Salvador. There was also no mention of forced pregnancy through forced marriage, rape, and sex slavery by armed forces in South Sudan, the Democratic Republic of Congo, Nigeria, and Syria. These are grave human rights issues, as countries such as the US are refusing to recognise forced pregnancy as Ed.3 2022

human rights abuse. This may deny rape victims access to reproductive services. The US’ stance on women’s reproductive rights including abortion accentuate the continuous erosion of women’s reproductive rights.

The recent decision to overturn Roe v Wade (‘Roe’) reverses 50 years of precedent that granted women a constitutional right to abortion. This decision saw states in America enact complete bans on abortion, and the state of Missouri making abortion punishable by 15 years in prison. In countries where abortion was criminalised and access to contraception were restricted, there was increase in death rates among women as seen in Romania between 1967-1990. Additionally, it is estimated that 47,000 women die yearly from unsafe abortion and approximately 5 million women are hospitalised for serious complications after an unsafe abortion. The overturning of Roe will have major impact on health and safety of women seeking an abortion in the US. The decision to overturn Roe is recent and the impacts will be clearer in the future. However, the laws enacted in Texas in 2013 whereby facilities providing abortion care significantly decreased highlights the risks associated with women’s health and the negative impact that women face.

Research shows that 1 in 3 women in the US seek abortion and restriction to safe access to abortion put women’s health at risk. The US has the highest maternal mortality rate among developed countries and Black and Indigenous women’s maternal mortality rates are higher than that for white women. The 2022 State of World Population report highlights that 50% of pregnancies worldwide are unintentional and 60% may end in abortion. The closure of facilities providing abortion care results in increased travel time, waiting time for appointments and cost. This can cause termination at a later stage in pregnancy, resulting in major complications. In addition to the major complications, unwanted pregnancies may keep women in contact with violent partners, placing them at risk of increased violence for both the mother and the child. Women who bore children from unwanted pregnancy, compared to those who obtained abortion, are four times more likely to live in poverty, three times more likely to be unemployed and more likely to have financial resources for everyday needs.

Limiting access to safe abortion disproportionately affects low-income earners as there will be an increase Ed.3 2022

in travel cost and medical procedure. Furthermore, according to the US Centres for Disease Control, Black women are more likely to die from a pregnancyrelated cause than white women. As medicines such as misoprostol are not easily accessible for those seeking cheaper alternatives to self-induce termination, women may turn to herbs or alternate methods which can inflict abdominal trauma. Forced pregnancy among young girls is also significantly increased which is in violation of the Convention on the Rights of the Child.

The medical procedure for safe abortion is safer than having a wisdom tooth removed and, in the US, major complications occur in less than quarter of one percent of procedures. Access to safe abortion therefore is necessary to maintain the emotional and physical health of women and girls, and to adhere to human rights in line with international treaty obligations that the US is signatory to.

While abortion in Australia has been decriminalised in majority of the states, the overturning of Roe could exacerbate the challenges in accessing abortion in Australia. While abortion is an issue of health law and not criminal law in Australia, it is still over-regulated.

As a result, abortion stigma is exacerbated making abortion seem more of a risk than it is. There have already been instances where US anti-choice groups had influence in Australia. In 2015, Right to Life Australia invited anti-abortion activist Troy Newman of Operation Rescue for a national lecture tour. However, the most significant instance is when US anti-abortion activists lobbied South Australian MPs in person during South Australia’s decriminalisation of the abortion bill in parliament. During this time, Liberal leader David Speirs and 3 other members of the shadow ministry were involved in organising a pro-life training event which later got cancelled due to protests. There are also many political parties who oppose abortion in Australia.

This demonstrates the potential resurgence of antiabortion activism in Australia, emphasising the impact of Roe in Australia.

It is paramount for women’s reproductive rights, including access to safe abortion and access to contraception, to be protected. This will ensure the preservation of human rights, safety of physical and emotional health and women’s bodily autonomy. The erosion of reproductive rights of women in the US has proven to cause a ripple effect on the erosion of women’s rights in other countries and negative impacts on minority groups of peoples. It is of great importance to continue to preserve reproductive rights of women for the advancement of human rights globally. thebrief.muls.org | 21

Risking it for the Law

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Arnav Gandhi

ife is fraught with risk. While the wonders of industrial capitalism have reduced the chance of you dying from a common disease or famine the technology and frameworks it has created have brought a new bevy of risks. Every time you hop into a car you take a risk. Every sip of that delicious latte brings about risk. There is risk inherent in the superfund you pool your savings into for retirement. As the adage goes, risk is the price you pay for opportunity.

The fields of economics and sociology have much to say about risk. However there is no explicit theory delineating the relationship between risk and law. This is understandable. The concept of risk is baked into the very doctrines of contracts, torts, and regulations.

Statute that regulates industry practice serves to manage and mitigate risk in a way that protects the public and commercial interest.

22 | The Brief

So how should the law manage risk? Without taking a particular stance, we will outline how the contracts, torts and regulations all have a part to play in this risky world.

In a perfect world, contracts should be all we need to manage risks. Private citizens could mutually agree to take whatever degree of risk they desire along with the appropriate precautions. The market could subsequently price these arrangements accordingly. A common example would be when car and homeowners decide on insurance. Insurance companies aim to provide ‘peace of mind’ to policyholders who may be reluctant to take risks associated with using a product or service. They (in theory) allow you to offload risks in exchange for insurance premiums, thereby promoting market efficiency.

However, perfect markets do not exist in reality. The real world is associated with information asymmetry, Ed.3 2022

deception, and transactional costs. For instance, businesses may overstate the quality of their products to entice uninformed customers. Insurance companies will fight ardently against policyholders to minimize payouts. Individuals cannot perfectly understand, quantify, or negotiate the risks they face on a regular basis. We do not negotiate compensation clauses with our barista who tends to make the daily latte a little bit too hot. Nor do we have personal contracts with every driver who may veer into our lane. Modern society simply does not permit individuals to privately manage all the risks they encounter.

This is when torts come into play. Torts provide a mechanism in which society can impose risk management measures on actors without expressly requiring them to recognize they are undertaking risks. Consider the classic case of Donoghue v Stevenson where Lord Atkin’s ‘neighbour principle’ found its genesis. Broadly speaking, it applies a Duty of Care to any person you could foreseeably harm. Consequently, manufacturers must take appropriate caution to make sure the products they deliver to market are safe to consume. Drivers are mutually responsible for the safety of others on the road. Not only do torts allow individuals to be compensated for the undue risk they were exposed to, but it can also socially deter risky behaviour by imposing punitive and exemplary damages on defendants.

The tort of negligence is predicated on the reasonable man or ‘the man on the Bondi Tram’ as put by Deane J. The vagueness of this ‘reasonable man’ serves a purpose. It allows the law to adapt to increasingly novel risks without being undermined by industry nomenclature and practice. Furthermore, as torts require a plaintiff to suffer damage, courts do not need to speculate on the validity of unmaterialized risks.

However, the generality of negligence is not without downsides. The question is should judges be responsible for deciding on what is ‘reasonable’ when the matter is highly technical and specific? And because torts require actual damage, should society permit unscrupulous and risky behaviour to go unpunished if nobody directly suffered?

To address this, complex bodies of law have emerged, with the Australian Consumer Law and the Environmental Planning and Assessment Act being two prime examples. These statutes impose strict and preventive measures on actors within the regulatory spheres. As they are developed in tandem with industry, academia, Ed.3 2022

and the public, they better account for the technicalities that are potentially left unresolved by tort law. For example, the National Construction Code specifically requires multiple story buildings to have fire exits built from steel that is at least 6mm thick. This kind of precision could only be attributed to an expert builder.

Critics of regulation have noted the occurrence of regulatory capture, where powerful interest groups can co-opt regulatory legislation for their own benefit.

Using their financial influence companies are able to lobby regulators to create legislation that works in their favour. This can result in chronic under regulation or regulation that aims to strengthen a company’s competitive advantage. The Hayne Royal Commission of 2017 noted how financial regulators seemed to persistently ignore misconduct by the Big 4 banks in relation to superfunds and advisory. This was partly attributed to a culture where the regulators viewed the Banks as ‘clients and partners’. Productivity Commission Reports have detailed the association between lax animal welfare laws and industry involvement in agricultural regulation. The Department of Agriculture had the conflicting goal of promoting agribusiness while ensuring the welfare of animals.

However, this may be overtly cynical. Regulatory capture has failed to explain the increase in legislation mandating consumer and environmental protection across Europe and the Anglosphere over the last 50 years. Generally, these regulations offer no advantage to businesses and have been legitimately enforced.

The strict nature of regulations also has its advantages when it concerns activities that are inherently risky and could impact a large number of stakeholders. Private actors provide vital services to the community at large, who are effectively vulnerable to any mishap. Should these actors be required to merely act ‘reasonably’ or should they be held to a higher standard? Consider the recent fiasco surrounding the Optus data breach, where millions were made vulnerable to identity theft and cyberattacks. The impending threat of climate change inevitably rear its head when discussing risk mitigation. It is clear market forces and torts simply cannot account for risks not directly borne by corporate polluters.

Regulations thereby serve as useful mechanisms for wider public policy goals. They allow the government to address market blindsides and internalise otherwise externalised risks.

thebrief.muls.org | 23

Admissions of a Law Student

Our New World Order Tracey Adams

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student’s life is not what it used to be. The tyranny of COVID-19 and its unmerciful destruction on any poor being who lay in its path, created a new world order. Using technology as a tactic to learn and connect was a method of survival. Combined with apocalyptic fears, the dread of a dystopian future and the destruction of human interaction as we knew it during lockdown, our new world has had to adapt to the new human condition.

The setting of our new world has metamorphosed into a dystopic and alienesque milieu, reminiscent of Bladerunner and Aliens. Incubating in hyper-sleep chambers during lockdown, while waiting to be woken up to fight an unknown force, has become our new bunker and home. Our primary connection to human life is via the internet, with Skype and iLearn as the ‘Mission Centre’ for learning. While waiting for other students in my law classes to reveal their faces in a tutorial, I couldn’t help but think this portal could very easily morph into a metaverse. Beamed up as a hologram into a class does not seem that remote for the law student and their interactive connection with the adaptive and virus resistant new cyber world. Convincing a jury of your client’s innocence within a cyber court seems the ideal forum for testing our adversarial skills. When courts are still fumbling around with archaic paper trails in the form of briefs, it seems that the threat of viruses and nuclear warfare has positively propelled the ancient practice of keeping a client’s life enclosed in a manila folder and a pink ribbon into a server far, far away.

In this new world, acrobatic juggling and combat skills have now been added to our armoury in order to balance study, work, and relationships. Law students are not just focused on whether a Bill has been passed, but how they are going to negotiate surviving in this new 24 | The Brief

world. Does one need to invest in drone shares because it is likely to be a ‘thing’ where one can order a strong black coffee with an extra shot before an exam? Does one need to build a bunker with an ample storage of energy drinks, lightning speed internet that would allow us to MS Teams with Mars, and firewall protection to protect us from Putin and WWIII? Does a law student need to research case law in between foraging for wild plants or harvesting our own personal Doomsday Vault with precious seeds? Perhaps Astrobotany may be a new skill set we can add to our curriculum vitae?

Our new world order has given us skills, discipline, and a toughness we never knew we had. Sarah Connor’s commando brawn in fighting off the Terminator and Ellen Ripley’s military style strategy to fight off that Alien have been revived within Tough Broads Fandom. Stanislav Petrov has been resurrected within our consciousness as the new Thor to fight impending doom and all of those ‘baddies’ out there. We somehow find the resilience to get on with our day-to-day routine and pay the bills, feed ourselves and read the fluff social media messages by Kanye or the Kardashians.

We still manage to find light and humour in his Honour Justice Hamill’s amusing collection of catchwords in his case headnotes. We manage to race our essays in, like Logan’s Run ‘runners,’ via a portal at 11.55pm on the due date. We somehow locate our bravery to attend awkward tutorials where there is always that one student who knows everything, and the one student who has not read any readings. We somehow find the tenacity to wake up with a hacking cough and strap up our bootlaces even if we are COVID-19 positive. We somehow find the strength to attend the funerals of our beloved relatives and friends who were not as fortunate as us. The Herculean effort of the law student is not proven on the basis of whether they can submit an essay on time, but whether they can survive in this new world order.

However, I do believe I have cracked the code of surviving. If I have an artillery of a fine book collection, which I can read within the comfort of my hypersleep chamber, and a ration pack containing a large cappuccino with an extra shot, I will certainly survive.

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Stuff Law Students Like

The Physical Copy of AGLC4 Jasmine Choy

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ost of you will be familiar with the ‘AGLC4’ thanks to its cultlike following by every law unit and, of course, the notorious Foundations of Law or ‘foundies’ unit. If you’re lucky enough to be a third-year law student like me, I’m sure you remember ‘foundies’ because of that lecture incident. Anyways, the main takeaway from ‘foundies’ should have been that the way to every legal academic's heart is perfect footnotes and a strict application of the AGLC4.

I know that there are probably some of you reading this who have the AGLC4 engraved on the backs of your eyelids, so if that’s you then keep scrolling. Okay now that all the liars are gone, I’m going to tell you a life hack I wish someone had told me.

During my last assessment block, I was sent into a spiral when I had finished writing two

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thousand words and realised, I still had what felt like a million footnotes to cite, and, if you are familiar with the PDF version of the ‘AGLC4’, you know the sheer amount of patience it takes to navigate that beast. So, at that moment, I did the only thing a sane person would do… go on an impulsive shopping venture. One thing led to another, and the next thing I knew I had received an email confirming my purchase of the physical copy of the ‘AGLC4’.

Although definitely an impulse buy, all I can say is… I have no regrets. Thank God for my impulsive shopping habits because I kid you not, the physical copy of the ‘AGLC4’ changed my life. This review will probably sound like some C-list celebrity’s sponsored Instagram post but I promise, it’s not. Not only is the book a cute A5 size and therefore perfect for carrying around as emotional support, but the tabs inside are revolutionary. Hats off to whoever designed this gift from God, because the tabs along the side of the book are oh-so-flippable and practically beg to be highlighted. Of course, I’ve come across tabs before in my lifetime, but the thought of never having to wait about 3- 5 business days for the PDF version to search for the results of one word brings me an unexplainable amount of joy.

I mean, not only is the digital copy incompatible with the law students' BFF, but also known to Mac users as a cheeky command F search, but it often leads you to the contents page of the book which isn’t even accurate for the PDF as the pages do not correlate. So thanks to the physical copy of the ‘AGLC4’, gone are the days of overstressing as to when ibid applies, or whether it is ‘above n1’. This is not a sponsored post, although I often do feel like an ‘AGLC4’ ambassador when I rave about my physical copy of the ‘AGLC4’ to my law friends. But, I would never want to gatekeep, so I am encouraging you all to purchase the physical ‘AGLC4’ to save yourself the tears.

thebrief.muls.org | 25

A Brief Review

A Review of Myfanwy Wallwork and Dr Greg Adamson’s

‘Human Rights and Technology:

Leading Organisational Change’ LexisNexis Podcast

T

Valentina Muoio

he protection and promotion of human rights are paramount, especially in a society where emerging technology has the power to infringe on human rights. The most prominent issue in this area of law is how responsible innovation methods could be adopted with the rise of technology. This LexisNexis podcast provides an insightful analysis of what can be done to target the array of legal issues posed by technology to protect human rights.

Moreover, Myfanwy Wallwork, the Executive General Manager of Regulatory Compliance (Global) LexisNexis, focuses on her recent involvement in the expert reference group for a Human Rights and Technology project led by the Human Rights Commission. It was insightful to learn that the Human Rights Commission has identified technology as an area that may require legislative safeguards to uphold human rights standards. This not only highlights the paramountcy of human rights, but also the integral role that the law plays in the protection of human rights.

Wallwork also provides a comprehensive insight into the Final Report presented to Parliament earlier this year, which focuses on how organisations use and develop artificial intelligence, and how recommendations made to Parliament can improve 26 | The Brief

decision-making. The podcast also clearly outlines Wallwork’s working theory, where she believes that organisations that adhere to human rights frameworks will see positive benefits across a range of key performance indicators (KPIs), such as financial gain, as well as customer, employee, and shareholder satisfaction. The podcast also identifies the range of issues that may arise in this area of law from a regulatory and legislative compliance point of view.

This highlights the relationship between technology and human rights.

Additionally, this podcast also draws upon the perspective of Dr Greg Adamson who has twenty years of experience in digital risk, and provides practical tips on how to make the recommendations in the Final Report come to fruition. Dr Adamson explains the relationship between voluntary standards and regulatory compulsion. He also presents a persuasive ideology, if something is of a voluntary nature there is less likelihood of compliance, however, if it is enshrined in law it is a legal requirement to adhere to the rules. Evidently, this encapsulates the nexus between law, technology, and human rights, and the associated challenges of such a framework, perfectly. I highly recommend this podcast to students who have an interest in this area of law!

Ed.3 2022

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28 | The Brief

Ed.3 2022