The Brief Edition 1 2023

Macquarie University Law Society Magazine Edition 1, 2023 (Volume 29)

Who

?

Watches the Watchmen

MULS EVENTS

Semester 1, 2023 EDUCATION

COMPETITIONS

O-week 20-24 February

Comps Expo 1 March

Yoga Session 10 May

International Women's Day Event 4 March

EVENTS

Criminal Law Moot GF 25 April

First Year Law Camp 24-26 March

Diversity + Pride Moot GF 27 April

Start of Semester Drinks 30 March

International Humanitarian Law Moot GF 22 May

Law Cruise Date Unconfirmed

Junior Client Interview GF 30 May

MULS Sports Gala Day 30 April

Negotiations GF 1 June

SOCIAL JUSTICE

PUBLICATIONS

Environmental Speaker Night Date Unconfirmed (Week 5)

First Year Guide 13 February

Cultural Safety Training Date Unconfirmed

Competitions Guide 13 February

CAREERS Clerkship Presentations Wednesdays and Fridays during May Clerkship Fair and Interview Roulette Date Unconfirmed (May 25)

Contents The Brief Ed.1, 2023

Features 12

Who Protects the Children?

18

‘Without Fear or Favour…’ but Who Judges the Judges? Amelia McCann

14

The Importance of Responsible Government: An Insight into Scott Morrison’s Secret Ministries Sophie Baxter

20

Security Guards and the Meaning of the Law: Musings on Legal Interpretation in a Karaoke Bar Leo Chang

16

Robodebt Royal Commission: Shedding Light on a Toxic Government Culture Elinor Bickerstaff-Westbrook

22

Aboriginal Cultural Heritage and Intellectual Property Protection Giselle Fernandez

Emma Hann

Regulars 06

[What’s New in the Law?] Amy Scott

24

[A Brief Converation] With Keyvan Dorostkar Bradley Cagauan

08

[Social Justice Corner] Australia’s Non-Compliance: A Threat to the Safety of Incarcerated Persons Alexis Moubarak

29

[How We Got Here] The Corporation: The Limited Liability Principle Over History Yuanze Gunaratnam

09

[Under the Radar] How does Climate Change Impact the ‘Mean High Water Mark’? Bruce Zhang

31

[Admissions of a Law Student] Job Hunting as a Law Student: A Curated Recipe for Success Emmy Phung

10

[Devil’s Advocate] Should Drugs be Criminalised? Lachlan Cicurel & Elinor Bickerstaff-Westbrook

33

[The Law Student: A Satirical Publication] Law Student in Shambles after Submitting an Assignment One-minute Late Emmy Phung

34

[A Brief Review] The American Drama – The Good Wife (2009-2016) Tracy Tang

Editor's Welcome

Dear readers Welcome back to The Brief for 2023!

In Alan Moore’s 1987 graphic novel, Watchmen, masked superheroes roam the streets bringing criminals to justice. Their existence allowed the US to win the Vietnam War with devastating and unaccountable superpowered beings. Moore’s heroes are corrupt and self-serving and the people had enough. As cities rioted over the unchecked and state-sanctioned superheroes, the walls were sprayed with the ancient Juvenallian expression: ‘Who Watches the Watchmen?’

We are extremely fortunate to live in a nation governed by the rule of law and the democratic process. But these systems, watched over by human beings, are fallible. Leave them unchecked and they are fragile. How does the rule of law hold the gatekeepers of the law — the parliamentarians, judges, bureaucrats — and other powerful institutions to account? Are these mechanisms effective?

In this edition, our writers delve into a variety of topical and philosophical issues. This edition looks closely at the issue of filicide and how the courts sometimes fail to protect children (p. 12), the ongoing Royal Commission into the failure and coverup of Robodebt (p. 16), and the need for transparency in light of Scott Morrison’s secret ministries (p. 14). This edition also discusses the theoretical and practical mechanisms to hold judges accountable (p. 18), how legislatures failed to implement protections over First Nations art (p.

22), and contains a reflection on the complexity of legal interpretation (p. 20).

In addition to our features, this edition includes a discussion of the newly enacted National Anti-

4 | The Brief

Corruption Commission (p. 7), the debate around drug criminalisation (p. 10) and Australia’s treatment of people in custody (p. 8). We also have two new sections: ‘How We Got Here,’ a historical analysis of law (p. 29) and ‘The Law Student,’ a satirical section poking fun at the ills of student life (p. 33). We are also very fortunate to feature an interview with legal researcher and academic Keyvan Dorostkar, whose work with the Kaldor Data Centre Lab is transforming the way we hold the judiciary and tribunals accountable in refugee law, which is especially relevant in light of the recent abolition of the Administrative Appeals Tribunal (p. 24).

I want to thank the subcommittee of writers and sub-editors who have contributed to ‘Who Watches the Watchmen?’ Thanks to your hard work, we have been able to make The Brief a reality! I also want to thank Mikaela and Brendan for their assistance and support throughout the development of Edition 1, as well as Nathan, our designer, for his hard work designing this edition — this year marks a decade since he first started designing our magazine! Finally, we extend our appreciation to all of our readers for their support; we hope you all enjoy the articles and are challenged to consider the watchmen in our lives.

Democracy can be a beautiful thing but it is too easy to take it for granted. Many people have fought and died to ensure our governments are all-inclusive and so it is up to us to keep them accountable. The watchers of the watchmen must start with us.

Bradley Cagauan Editor-In-Chief

Ed.1 2023

President's Welcome

Australia follows a parliamentary democracy with a legal institution built upon the foundations of a Constitution, conventions, statutes, regulations, and judicially determined common law systems: a system underpinned by the rule of law. A just system in intention and execution. However, it is not a system without fault.

Whilst the courts, quasi-judicial tribunals, government, and other public law agencies operate with integrated operational checks and balances, the necessity for accountability mechanisms within institutions possessing influence to affect the interests and rights of many is apparent. The greater the power possessed by an individual, organisation or institution, the greater the vicissitudes of injustice if the powerful are not held to account. Hence, we ask the question, ‘Who Watches the Watchmen?’

Welcome to the first edition of MULS flagship publication, The Brief, for 2023. By introduction, my name is Brendan Piech, the MULS President. The first edition of The Brief focuses on accountability within the Australian legal system. Accountability within the judicial system and correctional institutions, accountability concerning civil liberties and human rights, and accountability of governmental decision-making.

I take this moment to acknowledge and thank the MULS Publications team, Bradley and Mikaela, for their efforts in producing the first edition of The Brief for 2023. Further, a publication with such conviction in stimulating conversation of current legal and societal challenges would not be possible without the valued contributions of Macquarie University students, as showcased in the forthcoming pages.

Brendan Piech President, Macquarie University Law Society

muls.org Edition 1, February 2023 (Volume 29) EDITOR-IN-CHIEF Bradley Cagauan

DIRECTOR OF PUBLICATIONS Mikaela Mariano DESIGNER Nathan Li

WRITERS (IN ALPHABETICAL ORDER)

Alexis Moubarak, Amelia McCann, Amy Scott, Bruce Zhang, Elinor Bickerstaff-Westbrook,

Emma Hann, Emmy Phung, Giselle Fernandez, Lachlan Cicurel, Leo Chang, Sophie Baxter, Tracy Tang, Yuanze Gunaratnam SUB-EDITORS

Adrianna Aynajian, Aleeya Adrianna,

Alyssa Aboultaif, Amreen Sangha, Anna Queja,

Caitlin Greaves, Joshua Brereton, Pearl Buhariwala, Rachel Justic, Serena Abrahams, Simeon Levine, Zoe Gleeson

EDITORIAL REVIEW

Bradley Cagauan, Brendan Piech and Mikaela Mariano 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 muls.org/publications-the-brief 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 Keyvan Dorostkar 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.

Ed.1 2023

muls.org | 5

What’s New

in the Law Amy Scott

Fair Work Amendment (Paid Family and Domestic Violence Leave) Act 2022 (Cth) In October 2022, Australian State and Federal governments released the National Plan to End Violence Against Women and Children 2022-2032 (‘National Plan’). The National Plan is a federal policy framework, aiming to increase support towards ending violence against women and children over the next 10 years.

The National Plan requires that integral parts of society, including workplaces, collaborate to achieve the shared vision of eliminating gender-based and family violence.

As a practical step supporting this vision, the Commonwealth Parliament introduced a significant amendment to the Fair Work Act 2009 (Cth), providing paid family and domestic violence leave, replacing the prior entitlement of five unpaid days. The Fair Work Amendment (Paid Family and Domestic Violence Leave) Act 2022 (Cth) enables full-time, part-time and casual employees access to 10 days of paid family and domestic violence leave over a 12-month period. This is to be available when an employee is experiencing family and domestic violence and needs to seek support or access services to deal with the impact. The current legislative note outlines examples of qualifying circumstances such as making arrangements for safety, attending court hearings, accessing police services, or attending relevant professional appointments. This new leave entitlement will be available from 1 February 2023, for employees of medium and large businesses, and from 1 August 2023, for employees of small businesses.

This amendment is an important part of the Commonwealth’s commitment to providing resources to help eradicate family and domestic violence. The leave entitlement ensures that employees, overwhelmingly women, should no longer have to secure the safety of themselves and their families at the expense of employment and financial security.

6 | The Brief

Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 (Cth) Anti-discrimination legislation is a topical and evolving area of Australian law. The Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 (Cth) (the ‘Respect at Work Act’), enacted on 12 December 2022, is landmark legislation that significantly strengthens the Australian legal and regulatory framework concerning workplace discrimination. The Respect at Work Act implements seven of the 55 recommendations in the 2020 Respect@Work Report, made by the Sex Discrimination Commissioner Kate Jenkins following the National Inquiry into Sexual Harassment in Australian Workplaces.

The Respect at Work Act inserted a new provision in the Sex Discrimination Act 1984 (Cth), imposing a positive duty on employers, or persons conducting a business or undertaking, to take ‘reasonable and proportionate measures’ to eliminate sex discrimination and conduct. This positive duty shifts the key narrative, directing employers and persons conducting a business or undertaking to not merely respond to existing conduct and incidents, but to take proactive steps to reduce the potential of such conduct arising. Moreover, the Respect at Work Act inserted a new prohibition in the Sex Discrimination Act against conduct that subjects another person to a hostile work environment on the basis of sex. The Australian Human Rights Commission Act 1986 (Cth) was also amended to expand the powers of the Australian Human Rights Commission, to monitor, promote and enforce employer compliance with the newly-imposed positive duty.

The Respect at Work Act has practical implications for all workplaces, taking a significant step towards achieving equality, respect and safety for all in the workplace.

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What’s New in the Law?

National Anti-Corruption Commission Act 2022 (Cth) This edition of The Brief — ‘Who Watches the Watchmen?’ — focuses on how the law holds powerful entities and individuals accountable for their actions.

On 30 November 2022, the National AntiCorruption Commission Act 2022 (Cth) and the National Anti-Cozrruption Commission (Consequential and Transitional Provisions) Act 2022 (Cth) were enacted, establishing a powerful, transparent and independent National Anti-Corruption Commission (‘NACC’); the first of its kind in Australia.

The NACC is expected to commence operations by mid-2023 and provides for the existing Australian Commission for Law Enforcement Integrity to be subsumed into the NACC. The mission of the NACC legislation is to create an independent agency, with broad jurisdiction to investigate and report ‘serious or systemic corruption’ across the Commonwealth public sector. The NACC will hold the power to investigate the conduct of public officials, and those who seek to corrupt public officials, in relation to criminal and non-criminal conduct, including conduct that occurred prior to the NACC’s establishment. The NACC will be responsible for referring evidence of criminal conduct for further investigation by the Australian Federal Police, and prosecution

Ed.1 2023

by the Commonwealth Director of Public Prosecutions. In addition to investigating corruption in the public sector, the NACC will possess education and prevention functions to improve anti-corruption efforts and provide advice on vulnerabilities and risks across the government.

The NACC legislation is a historic step towards maintaining integrity, honesty and accountability in government. It is the culmination of decades of debate, lobbying from organisations and coalitions including Transparency International Australia, as well as outcry from the Australian public.

The NACC should improve standards and restore faith in the public system, in turn strengthening democracy and promoting the rule of law. However, this is not without criticism, as by default the NACC’s hearings will be conducted in private; hearings will only be public if the Commissioner is satisfied there are ‘exceptional circumstances’ and if it is in the ‘public interest’ to do so.

Fair and honest Australian government process requires oversight and vigilance.

The NACC legislation provides a concrete mechanism to monitor the powerful entities and individuals who must be held accountable.

muls.org | 7

Social Justice Corner

Australia’s Non-Compliance:

A Threat to the Safety of Incarcerated Persons

S

Alexis Moubarak

ince 1989, Australia has been a member of the United Nations Committee Against Torture (CAT), aimed at protecting incarcerated persons from inhumane and ‘degrading’ treatment. Nevertheless, in October 2022, Australia became one of the few countries to breach this convention and deny complete access to CAT for their annual inspection of our prison systems.

Australia’s failure to cooperate with the UN was one of many complaints published on behalf of the committee. Sarah Schwartz, a member of the Victoria Aboriginal Legal Service, reported that the findings of Australia’s prison systems were ‘horrific’ and a clear example of ‘ill treatment’.

In their report, the UN urged Australia to take accountability and shift its focus towards the safety and health of people held in custody, particularly the overincarceration of Aboriginal and Torres Strait Islander people. While First Nations communities merely make up 3% of Australia’s population, they equate to 32% of the prison system, with Indigenous children 26 times more likely to be incarcerated.

The consequence of high incarceration rates is increasing First Nation deaths in custody. The UN reported that Australian prison systems have failed to adequately investigate and report on custodial deaths, subsequently resulting in prison conditions progressively worsening for Indigenous communities. Since the 1991 Royal Commission into Aboriginal Deaths in Custody, figures have risen to a total of 516 Indigenous custodial deaths, with a large majority attributed to suicide.

In November of 2022, Four Corners aired a documentary entitled ‘Locking Up Kids’, revealing the conditions in Western Australia’s youth detention 8 | The Brief

centres. Alongside the UN, it was reported that children continue to be subjected to ‘verbal abuse and racist remarks’, stripping them of their right to safety and protection as young offenders. Four Corners commented on the prevalence of solitary confinement for children and how such ill-treatment has led offenders to be ‘suicidal’.

The UN Committee Against Torture has further commented on the safety and rights of incarcerated persons with regard to their treatment when in custody. In the report, the UN demanded that the use of torturous devices such as ‘spit hoods’ be removed from use immediately ‘in all jurisdictions’. Spit hoods are bags of mesh that are placed over a person’s face to restrict them from potential spitting or biting.

Accordingly, the UN has argued that devices such as this are not only a breach of the Convention Against Torture and Other Cruel, Inhumane, or Degrading Treatment or Punishment, but also the safety and rights of young offenders.

Since 2021, the Queensland Government confirmed that spit hoods were used on minors as a form of punishment whilst in custody. The 2017 Royal Commission into the Protection and Detention of Children in the Northern Territory deemed this treatment ‘inhumane’ and is in agreement with the UN decision to remove such punishment of prisoners.

In 2022, the UN believes that Australian prison systems require much reform and transformative change to improve the safety of persons in custody. As a member of CAT, Australia has been urged to address the over-incarceration of Indigenous Australians and remove the use of devices that threaten the well-being of adult and young offenders.

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Under the Radar

How does Climate Change

Impact the ‘Mean High Water Mark’?

I

Bruce Zhang

n New South Wales, properties fronting tidal water, such as sea and tidal river, find their boundaries drawn at the mean high water mark (MHWM). This rule was established in Attorney-General v Chambers. The MHWM is the annual mean of the highest and lowest high tides each lunar month of each year. Due to the ever changing nature of tides, the MHWM provides certainty in determining property boundaries of properties facing either the sea, tidal river, or lakes.

MHWM is ambulatory because tidal water erodes land leading to gradual and imperceptible changes of natural boundaries of that property. Hill v Lyne established doctrine of erosion that any decrease in land will accrue to the Crown. The doctrine of erosion in Hill v Lyne established that any decrease in land will accrue to the Crown. Such a doctrine applies in New South Wales meaning that in the long-term, parts of waterfront properties will be washed away and become part of Sydney Harbour vested in the Crown.

A rise in sea levels means that the MHWM would also rise accordingly. Recently, Transport for NSW conducted a survey of the MHWM at Fort Denison. It found that the MHWM was 1.44m between 1927 and 1994, 1.48m in 1994, and 1.52m in 2022. If a private property whose MHWM experienced the same 0.08m increase in sea level, the part of that property subject to the increase is now technically vested in the Crown.

Therefore, a few issues may arise. First, private property owners may build seawalls to protect their properties from coastal erosion. Recent media coverage of property owners building seawalls in Collaroy is an example of such effort. It is likely those walls are built somewhere at or close to the paper title boundary.

However, the walls could be in Crown land because the Ed.1 2023

MHWM increases. The state government or council may take actions against property owners for either trespass or public nuisance. The latter had been raised as early as 1997 in the US Case of Scott v City of Del Mar, where the California Court of Appeal held that the sea wall built by the appellant encroached on council owned land, obscured a seashore public path, and constituted public nuisance.

Second, the MHWM has its implications in planning law. When owners plan to build a new house or expand, they need to comply with the council’s development control plan requirements for building setbacks. A higher MHWM means the dwelling must be set back further from the boundary which may reduce the developable yield (i.e. a smaller house).

Third, the rise of MHWM leads to more property boundary disputes between private owners and the State. Torrens title is designed to provide indefeasibility. The State may not have the resources or willingness to survey every waterfront property and record the correct property boundary on its Torrens title. Therefore, private property owners may hire their own surveyors resulting in a different site boundary giving rise to disputes. An example is Butcher v Lachlan Elder Realty Pty Ltd. Notwithstanding the issue of whether the respondent’s conduct is misleading or deceptive, it shows the critical role of MHWM in determining property boundary regardless if it is a swimming pool or a house that is in dispute.

As a result, the legal principle established in the 19th century fits ill with its purpose of defining and protecting land proprietorship. Therefore, reform of the principle is required to better respond to the changed tidal environment caused by climate change. muls.org | 9

Devil’s Advocate

Should Drugs be Criminalised?

FOR Lachlan Cicurel

T

he war on drugs is a globally contentious topic. In recent years, decriminalisation has been proposed as the solution to end the war on drugs, receiving ample public and government support. However, decriminalising drugs can potentially increase the pool of drug users and thus pose a threat to public health and safety in addition to creating an economic barrier that contradicts Australia’s national interest in skill development.

Decriminalising drugs pose a significant risk to the entire population; this includes casual drug users, addicts, and the broader community. A core risk is a nationwide increase in substance use disorders and other diseases, such as Korsakoff’s syndrome. In a 2008 study, Dr Nikos Makris et al conducted thorough research on cortical thickness abnormalities in both drug users and a corresponding control group. The study revealed that there are numerous non-drug users who carry varying biological dispositions towards addiction. If drugs were decriminalised, individuals with a greater disposition towards addiction might be more likely to experiment with drugs without the fear of prosecution. This could lead to mass addiction levels, which would strain the healthcare system and put the public at further risk of untreated medical illness. Further, Makris also found that these dispositions are carried down genetically.

This means that the children of drug-using parents will likely exhibit an inclination toward drug usage, leading to an exponential increase in addiction after years of increased drug use across the population. An article from the International Journal of Environmental Research and Public Health revealed Australia’s significant strain on resources within the health sector. This means there is also an economic risk in larger portions of the populations being subject to addiction.

The criminalisation of drugs is crucial in public safety to prevent the adverse and unpredictable effects that 10 | The Brief

drugs have on users. A recent report from the American Addiction Centre revealed that many behavioural changes caused by drugs are violent, with 40–60% of domestic abuse situations involving alcohol or drug use.

The findings are applicable worldwide as the implications are based on biological reactions, making the results a strong indicator that the decriminalisation of drugs in Australia would also likely lead to an increase in violence. Additionally, the government has an obligation to facilitate the protection of its civilians. This includes protecting both the health and safety of the drug user as well as those affected by the user’s potential behavioural changes. Further, the United Nations Office on Drugs and Crime commented on the addictiveness of drugs, revealing that societal acceptance of drug use reflects the broader social construct, which is shaped by laws and regulations. This means that decriminalisation could change the social construct in a way that makes drug use socially acceptable, consequently posing further risks for addiction and harm. While not every new drug user will react with a degree of intensity and danger, there will undoubtedly be some increase and this should not be accepted. Additionally, a study from the Australian Institute of Criminology revealed that 47% of homicides in Australia occur under the influence of alcohol. This could be exacerbated if drugs are decriminalised. In this way, the criminalisation of drugs is safe for society as it reduces the likelihood of violent behaviour manifesting.

An increase in drug use across the population will make Australians less capable of contributing to areas of demand, such as jobs, defence, and trade.

Professor Unterrainer from the Frontiers Research Foundations affirmed that an increase in drug use interrupts cognitive processing and motor function, making problem-solving and general employment unfeasible. This is evident in the ‘Jobs and Skills Summit’ hosted by the Australian Government, which revealed that Australia is currently not meeting its economic demands because of a skills shortage in technical and trade occupations. Therefore, Australia’s Ed.1 2023

current economic conditions would likely be worsened through the decriminalisation of drugs.

The decriminalisation of drugs would likely lead to detrimental outcomes for society. There is a significant risk of mass addiction which the nation does not have the resources to bear. Further, as the studies above have demonstrated, there exists a strong causative link between drug use and violent behaviour threatening public safety. Finally, the decriminalisation of drugs will likely increase the number of drug users, which will conflict with Australia’s ability to fill occupations where sobriety is a minimum requirement.

AGAINST Elinor Bickerstaff-Westbrook

T

he criminalisation of recreational drugs not only fails to reduce drug use or help those with drug addiction, but also encourages widespread consumption of illicit drugs within communities.

This is because simply criminalising recreational drug use disregards the underlying socioeconomic reasons for why people consume drugs and develop drug addictions, essentially being a system of reactionary punishment rather than of pre-emptive reduction or rehabilitation.

Individuals with drug addictions are often emotionally and physically dependent on the drugs they consume. Drug addiction has more recently come to be understood by the National Library of Medicine as a disease that needs treatment rather than ‘devious behaviour’ that someone can simply quit. Incarceration does not help individuals recover from drug addiction, but rather pushes them towards drug use without addressing underlying factors, therefore forcing them into cycles of poverty, homelessness and social ostracization. By decriminalising recreational drug use and promoting a rehabilitative approach, drug use and addiction can be reduced much more effectively.

We often criminalise certain acts because we believe they are immoral or wrong to do, instantly creating a Ed.1 2023

social stigma against those acts. This effect is particularly harmful to drug users, as those fighting addiction are far less likely to reach out to friends and family or seek rehabilitation services out of fear of criminal punishment or social judgement. This isolation often leads to an even heavier emotional dependence on drugs. Further, users will often hesitate to seek medical assistance in cases of emergency, such as when they or someone they know overdoses. This is similarly out of fear of judgement or being turned in to police, and can easily lead to serious harm and even death of the user.

Decriminalisation removes much of the social stigma around drug use, meaning individuals are able to access family, medical, and rehabilitative support to help them out of their addiction. It also means others are more willing to get medical help when they find someone overdosing. While some worry that decriminalisation may appear as an endorsement of drug use leading to increased addiction, there has been no evidence to support this. In fact, places that have decriminalised drug use and shifted to a rehabilitative approach have shown the opposite. After decriminalising all low-level personal drug possession in 2001, Portugal has seen consistently lower drug use rates and drug-related deaths than the EU average, according to Transform, a UK drug policy foundation.

Criminalisation of recreational drugs also increases poverty among users by making it harder for individuals to gain employment or to find housing once leaving prison. Employers and landlords will often reject applicants with criminal records, which stays with them even after they have recovered from addiction. This can lead individuals to return to drugs for emotional support, especially if they did not receive rehabilitative treatment whilst or after being in prison. Further, with few employment options, individuals can be pushed into drug dealing as it becomes their only option to earn money.

Decriminalisation means drug users can avoid prison and therefore avoid cycles of poverty and homelessness. It also means money which would otherwise be spent on drug-related police work and jail costs can be redirected into rehabilitation and support services. This combination of decriminalisation and rehabilitation services has seen prison rates for drug offences in Portugal fall from 40% to 15.7% since 2001.

Although decriminalisation is by no means a complete solution to reducing drug use and addiction, it is a first and incredibly necessary step. Criminalising drug use and lowlevel possession fails to deter people from engaging with recreational drug use, whereas a rehabilitative approach can have far more effective and positive outcomes. muls.org | 11

O Who Protects the Children

?

Content Warning:

This article makes reference to extreme domestic violence and filicide

Emma Hann

12 | The Brief

ne of the most difficult life events for anyone to experience is the process of a family breakdown after divorce. However, an unfortunate but common trend of filicide arises when parenting orders and custody are key issues in that process.

Filicide is the deliberate murder of a child by their own parent and in the context of family breakdown in NSW, a fifth of those murders involve family separation as a triggering factor, according to the NSW Commission for Children and Young People. Further, research from the Australian Journal of Family Law noted that parents committing filicide are often perpetrating these horrific crimes whilst the children are in their custody. A key example of this tragedy is the case of Jessie and Patrick Dalton, murdered by their father Jayson whilst they were living with him as per a court order given by the Family Court. Despite the court having knowledge of his significant history of domestic abuse, when determining interim parenting orders the judge concluded that the history of violence against the mother was not an indicator that the father may be violent towards the children. Within two months of that court order, the children were killed. A similar narrative occurred in Sydney in 2018, namely the murders of Jack and Jennifer Edwards. Here, the father’s history of abuse was disclosed by the children but the court concluded the abuse was evidence of ‘problematic mothering.’ Instead, the judge concluded that ‘the children’s reluctance to have a relationship with their father may [also] be tied to their mother’s feelings about their relationships with their father’.

Sadly, even the independent children’s lawyer (ICL) (who has the responsibility of providing an independent view on the children’s best interests), stated that the violence towards the children was simply, ‘a bit of heavy handed parenting’. These facts leave us with the following questions: What is the role of the family court system in preventing these tragedies? How are parties held accountable? Who protects the children?

There are multiple case management mechanisms to ensure cases with a higher risk of violence are afforded adequate attention and care. The two divisions of the Federal Circuit and Family Court of Australia have their own lists on which high-risk cases are placed, specifically the Magellan List (Division 1) and the Evatt List (Division 2). Matters will often enter the Magellan Program either where a notice of risk is filed in the proceedings and the Magellan Registrar deems the matter suitable for the Program, or if allegations of physical or sexual abuse of a child are raised during the proceedings. Once registered in the

Ed.1 2023

Program, the court requires state-based child-protection agencies to develop a Magellan Report containing information regarding assessments and reports of child abuse. Further, an ICL is appointed and no monetary cap is placed on the provision of Legal Aid. At face value, the Magellan Program has been a great success in adequately responding to cases of this nature, with matters placed on the list more likely to settle earlier, involve fewer judges, and attract increased support from the statutory child protection department. The Evatt List operates in a similar manner to the Magellan List, with all judicial officers supporting the list having specialised training and experience working in this high-risk environment. On top of these mechanisms, early on in divorce proceedings parents also have the opportunity under the Lighthouse Project — an innovative screening system in the Family Court — to voluntarily complete a DOORS Triage Questionnaire, which is used to identify serious risk of abuse or harm to children involved in the proceedings.

In this context, if it is concluded that a child may be exposed to an ‘unacceptable risk’ of harm when determining the best interests of said child, the presumption of shared parenting no longer applies. This means the weight of the first primary consideration under s 60CC(2)(a) of the Family Law Act 1975 (Cth) (‘FLA’), namely that children maintain a meaningful relationship with both parents, is superseded by the second primary consideration in sub-s (b). Subsection (b) fosters the importance of protecting children from physical or psychological harm. Regardless, as per s 60CC(2A), the court is required to give more weight to the second primary consideration. The ‘unacceptable risk’ test was set out in the case of M v M, which summarised principles to be considered when determining what degree of risk is ‘acceptable’, and the nature of the evidentiary burden (balance of probabilities). However, the ‘unacceptable risk’ test does present some flaws in this setting. The test is immediately limited by the binary nature of legal fact; either the fact of previous abuse is established, or not established. In these circumstances, the probability of future abuse is determined by the nature of past abuse which, if not proven, places the judge in a difficult position. This issue was outlined in the case of Kings v Murray, where the judge concluded that little assistance is provided to him by the test since the inability to conclusively decide whether abuse has occurred presents immense difficulty when determining custody time allocated to the allegedly abusive parent.

Another protective mechanism implemented by the courts is the appointment of an ICL. This lawyer Ed.1 2023

is tasked with providing an independent perspective of the child’s best interests. These tasks include arranging expert evidence to be obtained, facilitating the participation of the child in the proceedings which reflects their maturity level, as well as facilitating settlement negotiations. However, despite their primary task being to represent the child’s best interests, it is not uncommon for children to only speak to an ICL once or for an ICL to simply align their views with one of the parents in the matter. Further, the expert evidence provided to lawyers by Family Court experts is susceptible to potential bias because, unlike experts in other arenas, they are not exposed to double-blind peer reviews and other quality guarantees. Instead, the reports may only be read by other parties, their lawyers, and the judge. As seen in the aforementioned Edwards murders, an incorrect interpretation made by an ICL can have irrevocable consequences. The ICL in the Edwards case proclaimed no responsibility on her behalf, stating that it was the judge that made the final orders, meaning her assessment was not to blame. Although the ICL in this matter was eventually removed from the NSW Legal Aid ICL Panel, the children’s murders cannot be reversed.

Although these protective mechanisms exist, children are still slipping through the cracks. A United States Divorce Child Murder Database concluded that a total of 13.75% of filicides in the context of family separation involving allegations of domestic abuse before a judge, were entirely preventable. Despite this, in Australia, there is no public accountability process for judges making orders which later result in filicide.

In fact, the only real accountability lies in a successful appeal to a superior Court, where another judge may review that judge’s decision. In Australia, the FCFCOA has no investigatory powers, meaning that no data is collected to determine how decisions made by the Family Courts impact the lives of children. Thus, ascertaining a clear picture of the facts proves difficult as even the Coroner’s Office and Police do not annually publish data associated with filicide. Furthermore, the Australian system does not provide any long-term follow-up after the conclusion of proceedings and offers no system of support for families and children in these high-risk situations.

Despite key issues being addressed by the implementation of the Magellan and Evatt Lists, ICLs, and the unacceptable risk test, it is evident that further reform is required to ensure the safety of minors and to protect children from the dangers associated with familial separation. muls.org | 13

The Importance of ‘Responsible Government’:

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An Insight into Scott Morrison’s Secret Ministries Sophie Baxter

n August 2022, three months after the Coalition lost the federal election, it was revealed that over the course of 2020– 2021, then-Prime Minister Scott Morrison had been appointed to administer five Departments of State in addition to the Department of Prime Minister and Cabinet. These departments included the Department of Health, the Department of Finance, the Department of Industry, Science Energy and Resources, the Department of the Treasury, and the Department of Home Affairs. While some of the appointments had been disclosed to the respective ministers, to other Senior Ministers, and to senior public servants, the appointments were largely kept secret from the Coalition, the broader Parliament, and the Australian public.

Morrison claimed that the appointments were necessary for several reasons, including that he could take responsibility for the departments should the respective Minister become incapacitated. He also stated they were a check on ministers’ power during the pandemic, when the Ministers for Health and Finance, in particular, had unprecedented power.

Morrison characterised the appointments as ‘emergency powers’ and argued the sustained secrecy behind the appointments was evidence of his lack of intervention in each ministry.

In fairness, it was only on one occasion that Morrison did exercise any of the powers he 14 | The Brief

acquired from his appointments. Administering the Department of Industry, Science, Energy and Resources, Morrison overturned then-Minister Keith Pitt’s approval of a gas project off the NSW coast. Morrison defended his decision as being in the national interest and for the protection of the environment. Concerningly, Pitt was not aware that Morrison was jointly responsible for his portfolio at the time.

Understandably, upon hearing of the appointments, Morrison faced intense scrutiny from his party, the current federal government, the media, and the public.

The legal validity of the appointments quickly came into question.

Were the Appointments Valid?

In response to this question, the Solicitor-General’s advice to Prime Minister Anthony Albanese began with a simple ‘yes’. Though the Solicitor-General was only advising on Morrison’s appointment to the Department of Industry, Science, Energy and Resources, the reasoning for this validity is applicable to the remaining appointments.

Section 64 of the Australian Constitution empowers the Governor-General to appoint an existing Minister, including the Prime Minister, to administer additional departments of State. The Governor-General does so on the advice of the Prime Minister and has no discretion to refuse such advice.

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While ministerial appointments are usually published in the Commonwealth Government Gazette, the Constitution does not require such notification for the appointments to be valid. Further, the oath usually taken by ministers upon appointment serves a purely ceremonial, rather than legal, purpose. Evidently, there is no legislative or constitutional requirement to disclose the appointments for the sake of their validity or otherwise. Professor George Williams from UNSW Law and Justice, and Professor Anne Twomey from the University of Sydney, agree with the Solicitor-General’s advice that s 64, and the constitutional provisions on the executive government generally, are expressed broadly to ensure flexibility in its application. But this also places significant trust in politicians and their practices, says Professor Twomey, who believes the former Prime Minister should have published the appointments regardless.

Should the Appointments Have Been Disclosed Despite the Lack of Legal Requirement?

The issue with Morrison’s numerous appointments was not purely that he was responsible for administering several departments. The issue was these appointments were not disclosed to his party, the Parliament, and most importantly, the public.

Fundamental to Australian constitutional principles is the notion of ‘responsible government’, which provides that the executive is responsible to the legislature and in turn, the Australian public.

Parliamentary transparency is integral to this concept, allowing ministers to be held accountable for their actions and encouraging the proper administration of their departments.

Section 64, discussed above, supports this notion by requiring ministers from each department to be elected representatives who are thereby accountable to Parliament and ultimately, the public. Common sense dictates that unless we know who is responsible for administering departments of State, we cannot hold ministers accountable for that role.

In August 2022, when the news of the appointments first broke, Morrison defended the secrecy of the appointments. He reasoned that he did not want his Ministers to question their own judgement or to make it appear that their authority was diminished. Morrison also claimed the appointments, which he characterised as providing merely ‘reserve powers’, would have been ‘misunderstood’ if disclosed to the public.

According to the Solicitor-General’s advice, however, Morrison’s actions were inconsistent with the practices Ed.1 2023

and conventions key to Australia’s system of responsible government. This is the case regardless of the extent to which Morrison exercised any power he acquired because he was both legally and politically responsible for each department from the time of appointment.

The Bell Report, a Parliamentary inquiry into the appointments, concluded that Morrison’s appointments ‘fundamentally undermined’ the principles of responsible government and were ‘corrosive of trust in government’. Professor Anne Twomey similarly condemned Morrison’s actions, claiming that such lack of transparency demonstrated little respect for the Australian government and the public who are entitled to know who the holder of certain governmental powers is.

In November 2022, a government motion to censure Morrison passed, making him the first former Prime Minister to be subject to such action. While this censuring was seen by many as a warning to others that Morrison’s actions were wrong, Morrison refused to apologise, maintaining that his various appointments were necessary.

What are the Consequences of these Appointments?

Considering the backlash Morrison faced due to his appointments, it seems unlikely that a Prime Minister would attempt to do the same again. It is generally agreed that some form of publishing requirement must be legislated to ensure that ministerial appointments are made known to the public. This might be that they are published in the Commonwealth Government Gazette, published on the Parliament website, updated on the ministry lists, or on the Administrative Arrangements Orders. Professor Twomey believes that such legislative reform would be a positive outcome.

Yet there is concern that this debacle has already damaged the public’s faith in elected officials. Indeed, Australians have every right to be concerned about a lack of transparency in government processes.

Diminishing public trust in elected officials presents broader implications for the Australian government and democracy. Former Minister, Karen Andrews, who administered one of the portfolios to which Morrison was appointed, agrees that his actions have certainly not helped our democracy moving forward.

Accordingly, it is vital that we preserve the notion and practice of ‘responsible government’. Parliament has a duty to ensure transparency within their appointments. Without such openness, there is no way for Australians to hold ministers accountable, as is intended in a parliamentary democracy. muls.org | 15

Robodebt Royal Commission:

Shedding Light on a Toxic Government Culture Elinor Bickerstaff-Westbrook

T

Content Warning:

This article makes reference to suicide

he Robodebt scheme has been described as one of the biggest government policy failures in our recent history. Not only was it illegal, it also devastated the most vulnerable people in Australia.

To many, it was financially crippling, emotionally traumatic, and in some cases, fatal. The ongoing Royal Commission of the automated debt collection scheme has revealed a disturbing lack of human oversight within an incredibly delicate system. Further, it has uncovered a toxic government culture, where critical legal advice was ignored, and the integrity of government was continually – and in some cases, purposefully –undermined.

What was Robodebt?

In 2015, the Abbott Government was on a mission to save as much money for the budget as quickly as possible. So, they decided to crack down on fraudulent benefit claims and debtors within the welfare system.

However, because the manual debt-notice system was slow, the Department of Social Services (DSS), headed by Scott Morrison as Minister of Social Services, developed the Online Compliance Intervention, later nicknamed ‘Robodebt’.

Robodebt was an automated system that calculated how much an individual owed to the government, either because they had historical debt or had received welfare

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payments they were not entitled to. The system would then automatically send a notice of possible debt. If an individual failed to address the debt within 21 days, by correcting their reported income and providing documents to Centrelink, the debt would be assumed accurate and official debt notices were automatically sent demanding repayment. This completely automated system was far more time-efficient than the previous manual system, going from 20,000 debt notices a year to 20,000 debt notices a week.

However, the system resulted in hundreds of thousands of people, most of whom were financially and emotionally vulnerable, being hounded to pay a debt that was either falsely inflated or non-existent. This was due to how the system calculated debt. The program would compare income data from the Australian Tax Office (ATO) and Centrelink, but formatting and technical differences between the two led to incorrectly calculated debt. The process of averaging yearly income data from the ATO to compare with fortnightly data from Centrelink was particularly problematic, and as it turned out, illegal.

After the scheme was implemented in 2016, over 400,000 people were affected by incorrect automated debt notices, with the scheme not ending until 2019. For some, it was too late. Multiple people committed suicide after being pursued to repay these debts, such as Jarrad Ed.1 2023

Madgwick, who was told he owed just under $2,000, and 27-year-old Rhys Cauzzo, who was told he owed $28,000.

By focusing on welfare recipients, Robodebt targeted people who were financially, emotionally, medically, and socially vulnerable. These individuals were treated like rogue criminals by the government, with Human Services Minister Alan Tudge warning ‘We’ll track you down and you will have to repay those debts and you may end up in prison’ during an episode of A Current Affair.

No Human Contact A major reason Robodebt was not repealed sooner was the complete lack of human oversight, with little to no manual reviews taking place. Further, the process for individuals to fix or repute incorrect claims of debt was completely online through Centrelink’s ‘Compliance Portal’. This was problematic for those unable to use or access a computer, phone, or internet, or those who were not technologically savvy. Even worse, the Portal was often inaccessible, frequently showing error messages. When individuals tried solving their issues in person at a Centrelink Office, they were told they had to do it online. People calling Centrelink were often put on hold for hours, sent to voicemail, or hung up on. This was not helped by 5,000 Centrelink jobs being cut by the government in 2017. These nightmarish experiences with Centrelink meant many people did not dispute debt notices.

This also highlights how the onus was put on individuals to dispute the debt, rather than the government being expected to get debt calculations right. The Royal Commission questioned Kathyrn Campbell (the former Head of the Department of Human Services) on why the Department used incomeaveraging despite knowing it could be inaccurate.

Campbell replied that income-averaging was only a last resort. To the Department, it was more important that recipients ‘engaged [with the system] so the [incomeaveraging] wouldn’t happen’. This meant that those who did not or could not engage were likely to be issued an incorrect debt. Seeing how difficult Centrelink was to engage with, being saddled with an incorrect debt was practically inevitable.

Ignoring Legality The legality of income-averaging was first questioned in 2014 by internal legal advisers in the DSS, who flagged the system as possibly inconsistent with the legislative framework. This advice was ignored because it was not ‘favourable’. In a 2015 draft executive minute Ed.1 2023

seen by Scott Morrison, legislative inconsistencies of income-averaging were flagged, but later redacted and replaced with possible ‘significant implications’. In 2017, DSS secretary Finn Pratt told the Ombudsman that the Robodebt program was legal, despite receiving no external professional legal advice. When individuals within DSS became concerned about possible legality issues in 2018, attempts to seek external legal advice were blocked by superiors. It was not until the commencement of legal action by Robodebt victims in 2019 that the government sought external legal advice, which found the scheme was illegal. The program was subsequently stopped.

The Nuisance of Integrity Catherine Halbert, former deputy secretary of the DSS, told the Ombudsman in 2017 that legal implementation of income-averaging did not require legislative change, despite the DSS being aware of legality issues in 2015.

Further, the Royal Commission heard claims that Halbert told a colleague to ‘tone down’ concerns of legality in 2015.

Jason McNamara became general manager of Services Australia (previously DHS) in 2017 to control the emerging ‘crisis’ with Robodebt. In a later job application, McNamara bragged that he ‘shaped the Ombudsman report’. He told the Commission it was normal for public servants to suggest wording to independent bodies during an investigation. In essence, he successfully influenced and ‘changed [the Ombudsman’s] mind’ to make findings that matched Service Australia’s ‘narrative’.

These revelations demonstrate a prominent attitude within the DSS and Services Australia that independent investigations were something to manipulate, rather than be respected and supported. As a result, the 2017 Ombudsman report did not identify legality issues within Robodebt.

Conclusion Robodebt was emotionally and financially devastating for the most vulnerable people across Australia. The ongoing Royal Commission into the scheme has revealed a government department marred with coverup and disrespect for basic principles of integrity and legality. While the disastrous system will hopefully serve as a powerful lesson to future governments, there are some who will never come back from it.

If you or someone needs help, call: Lifeline 13 11 14

muls.org | 17

‘Without Fear or Favour…’

but Who Judges the Judges?

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he ability to keep judges accountable is an important part of a constitutional democracy, as the rule of law to which all persons are subject involves ‘…the ability to seek a remedy in independent courts should the government act illegally’. Upholding the rule of law, which ‘depends upon public confidence in lawfully constituted authority’, requires that the judiciary ‘is seen by the community, and the other branches of government, to conform to the discipline of the law which it administers’.

Concerns about Australia’s judicial accountability methods are evident in the spate of criticisms of Judge Street’s handling of immigration cases in the Federal Circuit Court. In 2016, Judge Street was found to have rejected 252 out of the 254 immigration appeals he heard between January and June 2015, with 100% of these decisions being ex tempore judgments made shortly after hearing the case.

While the 2016 appeal against Judge Street was dismissed, with the court holding that ‘statistics do not speak for themselves’ and are not sufficient as an argument of judicial bias, criticisms of his handling of immigration appeals have continued. In 2019, Judge Street was criticised for ‘professional discourtesy’ in an asylum seeker case — His Honour took 75 days to give written reasons for judgment when an applicant had only 21 days to appeal. Between 2015 and 2019, more 18 | The Brief

Amelia McCann

than 90 of His Honour’s rulings have been overturned on appeal and in at least 10 cases there was a denial of procedural fairness. Judge Street’s history of handing down judgments on the spot exemplifies the need for ‘an avenue for independent review’ in the form of a federal judicial commission.

This article will consider both theoretical and practical kinds of judicial accountability present under current Australian law, and outline potential amendments that could improve the current law for holding judges accountable for their conduct and decision-making.

Theoretical Kinds of Accountability Under current Australian law, there is a notable lack of ‘sacrificial accountability’. The Honourable T F Bathurst AC claims ‘sacrificial accountability’ occurs when ‘reasons or explanations are inadequate.’ In those cases, Bathurst says ‘a sanction, penalty, or dismissal must follow’ for judicial officers. Publicly available evidence of this comes from the Federal Court of Australia’s website page entitled ‘Judicial Complaints Procedure’, stating that the Federal Court ‘does not, and cannot, provide a mechanism for disciplining a judge’. Bathurst identifies the reasons for this lack of ‘sacrificial accountability’ for judicial officers as the product of their ‘security of tenure’, as judges cannot be punished or disciplined for making a wrong or unpopular decision nor can they be Ed.1 2023

‘booted out’ in an election, unlike the legislature and the executive.

Bathurst argues that this lack of ‘sacrificial accountability’ is appropriate based on the need for judges to make decisions ‘without “fear or favour” from the executive’. Judicial decisions must uphold the law even if they are politically controversial and leave it to the legislature to change the law as per the separation of powers doctrine. Bathurst posits that in the absence of sacrificial accountability, the current Australian system includes a notable and important presence of other theoretical forms of accountability, two of which are explored below.

The first, ‘explanatory accountability’, meaning ‘a duty to explain or justify’, is apparent through the fact that judges are obliged to publicly state ‘the reasons for all their decisions’. The argument that the level of scrutiny judges face from the public and fellow judges and lawyers is ‘more likely to result in a reasonable decision’ is compelling. However, as the criticisms of ‘professional discourtesy’ against Judge Street indicate, the routine nature of this duty creates obstacles in ensuring consistency for the effective and efficient provision of judicial explanations. These obstacles have a direct effect on people’s lives, particularly in the case of immigration appeals.

The second, ‘content accountability’, meaning ‘responsibility to an appellate court for the substance of a decision’, is apparent through the fact that at the federal level, most decisions can be formally reviewed through an appeal. According to Bathurst, the fact that judges ‘take an oath, or make an affirmation, to do right according to law, independently “without fear or favour, affection or ill-will”’ is far from insignificant.

Moreover, the fact that multiple applicants (over 90) have succeeded in appealing Judge Street’s decisions demonstrates the role of ‘content accountability’ as a valuable, if admittedly less than efficient, means of judicial accountability.

Practical Kinds of Accountability The current framework for judicial accountability includes ‘methods of encouragement,’ in the form of ‘ethical infrastructure’ through features such as the Oath of Office, judicial guides, codes, and bench books.

Other examples include programs of professional development, such as formal judicial education, ongoing education programs, and international standards like those seen in the Declaration of Judicial Training Principles.

However, as noted in Bathurst’s explanation of ‘sacrificial accountability’, the methods of enforcing Ed.1 2023

judicial accountability are notably lacking. The only two grounds on which federal judges can be removed from office by the Governor-General are judicial incapacity and misconduct, the bars for which are notably high to ‘ensure that judges are free from political interference’.

While this is an important goal, concerns about the current system of judicial accountability have led to calls for several changes that better serve the public interest in the enforcement of procedural fairness.

Key Recommendations The Australian Law Reform Commission (ALRC) in their report on judicial impartiality tabled in Parliament on 2 August 2022 recommended the establishment of a ‘Federal Judicial Commission’ underpinned by the four key features of ‘independence, coherence, accessibility and transparency.’ In the ALRC’s survey of lawyers for the Report, this was ranked as ‘the most important reform that could be achieved to maintain public confidence in judicial impartiality.’

Another key recommendation was increasing the clarification and transparency around the processes of appointing and disqualifying judicial officers to promote public understanding of and confidence in the judicial process, and thus better serve the public interest goal of judicial accountability.

Conclusion Under our current laws, there is a notable absence of ‘sacrificial accountability’ for judicial officers. This absence has been historically justified to ensure judges can operate ‘without fear or favour’ from the executive or public opinion and thus, maintains the independence of the judiciary.

However, despite the presence and importance of other forms of judicial accountability — namely ‘explanatory’ and ‘content’ accountability — the current system does create some difficulty in investigating and disciplining judicial officers. The current system raises concerns over whether the courts can truly be considered ‘accountable’ in practice when problems over conduct arise. Some of the key methods that have been identified and recently advocated by the ALRC include the establishment of a federal judicial commission, and improvements in clarity and transparency for the judicial appointment and disqualification systems. Adoption of the ALRC’s recommendations would be an effective means of providing greater support to our systems of ‘explanatory’ and ‘content’ accountability for judicial officers in a way that better promotes the public interest in the rule of law. muls.org | 19

Security Guards and the Meaning of the Law: Musings on Legal Interpretation in a Karaoke Bar

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Leo Chang

was walking through the doors of a karaoke bar at three in the morning when I discovered that security guards are the foundations of a healthy society. As I was examined and waved through, he made a curt nod towards the proprietor to let her know that I had passed his rigorous examination. Although our group remained intact, the party which followed us was promptly expelled upon the discovery of snacks hidden within the folds of their shirts. A curious jurisprudential train of thought rushed through my mind as I entered our assigned room, and the peculiar coincidences of the affair ensured that all of my legal ruminations would remain with me long enough to collect them once again for this publication.

This security guard was a fine specimen of bravery and stoicism. He had faced the chip-smugglers with a fearsome spirit in his soul, and in this way inspired within me that emotion I feel towards all members of the legal class: unconditional compliance. The ability of a security guard to expel me from his domain for violating a rule felt equal to a magistrate’s power to sentence me to prison in accordance with the law. The only promise of security within this unequal relationship was the beautifully written rules, ideas formulated in lucid lines of lexical logic. Thanks to the wonders of statutory law, the constitution, and a rigorous analytical framework supported by numerous Interpretation Acts, the dubious nature of all decrees was null and void. If the need ever arose, I could work out a deal with the prosecutor (or security guard) and have a comfortable session where we could determine my culpability against an objective set of standards.

The lights dimmed, and the first singer was up for ‘Total Eclipse of the Heart.’ I sat back in my chair, pleased with my ability to sort out any of my future arrests and indictments. But my pleasure was feigned, and I knew it. How many dissenting legal opinions had I read in the past, presenting an alternative view of the case according to the same facts and laws? My mind flitted back to the Tasmanian Dam case, a dispute concerning the construction of a hydroelectric dam in a UNESCO World Heritage Site. State law authorised the construction of the dam, but the Commonwealth law (in accordance with UNESCO) 20 | The Brief

Ed.1 2023

prevented any construction from taking place. One part of this case concerned the extent to which section 51 of the Australian Constitution applied, which declared that the Commonwealth had the power to legislate with respect to external affairs — in this case, a UNESCO treaty. Justice Dawson argued that the potentiality of a Commonwealth government forming treaties to justify opposing the wills of states was patently absurd and therefore refused to recognise the legitimacy of the Commonwealth law. However, Justice Murphy saw environmental protection law as well within the realms of external affairs, owing to their character as a ‘world heritage’. The justices, almost evenly split, decided in favour of the Commonwealth in a landmark 4–3 decision. This case was important, which explained my ability to recall all of its details while ‘Bohemian Rhapsody’ played in the background, but the divided opinions of the Justices terrified me. If the greatest legal minds in Australia couldn’t unanimously discover the meaning of the law, who could? My feeling of unconditional compliance towards the security guard began to wane as I ploughed through my research.

By now, I had ceased to depend on my mind and had pulled out my laptop and textbooks. How could laws be interpreted at all? How do we communicate such ideas? I came across another new framework called a ‘three-layered analysis of communication’, coined by Stephen Levinson. Levinson deemed it necessary to divide the building blocks of conversation into three layers — grammar (logic), vocabulary (ideas), and the personality (personality) behind it all.

The grammar served as logical strands connecting ideas (which were represented in the vocabulary), spun by the personality into an argument of varying success. Successful legal interpretation was only a matter of determining the flow of logic, agreeing on ideas, and considering the intent of the legislator (or security guard). ‘Extrinsic sources of food Ed.1 2023

are not permitted in the karaoke bar’ was an idea that came into a dizzying logical collision with the idea that ‘a group had attempted to traffic extrinsic sources of food’ — with the intent of the legislator known, consequences had followed.

I breathed a sigh of relief as ‘Everybody (Backstreet’s Back)’ came to a close. All I had to do was apply those three layers of analysis to the Tasmanian Dam case to find out who was in the right, and all would be at rest. Well, the ideas at play were simple. The river to be dammed was a World Heritage Site.

This is important because it is a duty we owe to our fellow humans to protect the environment. Why? Because it is the common heritage of mankind and we should look after the world because it is inherently good. Why is the world inherently good? Well… since life ought to be good. Why does life ought to be good?

At this point, I would be crossing the territory of a seemingly infinite number of conflicting philosophical and theological claims so I will stop here. Perhaps the claim that ‘the world is good because life ought to be good’ is a step too far for some readers.

Levinson’s framework helped me to an extent but at its heart, ideas still depend on a common base of knowledge building up to a singular truth, like the claim that ‘the world is good and life ought to be good’. Legal ideas, especially in the modern day, have been mapped and interpreted in many ways by a number of schools, scholars, and sceptics. Law is a collaborative field, and the ideas of others are not always belied by their words — either owing to poor translations, changing definitions, or their utilisation in a unique field. To be charitable in our interpretation of words is only part of our duty to be charitable in our interpretation of ideas. The law has a watchman within each of us, and we must all pay deference to the truth.

The final song concluded — the hour had come to a close. I gave the security guard a curt nod as I left. muls.org | 21

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Aboriginal Cultural Heritage and Intellectual Property Protection Giselle Fernandez

boriginal art is much more than a piece of art, it is their way of telling precious stories that pass from generation to generation.

Unfortunately, their art has been exploited by art dealers and commercial companies who profit from their cultural heritage. The Arts Law Centre of Australia (‘ALC’), a community legal centre that delivers targeted legal services to Aboriginal and Torres Strait Islander artists estimates that 80% of Aboriginal souvenirs sold are fake. This article will provide an insight into how the courts have adjudicated past cases of copyright law and First Nations artists, the Australian Law Reform Commission’s (‘ALRC’) proposed ‘fair-use’ amendments to the Copyright Act in the digital economy, and why it will be beneficial for NSW to codify the Aboriginal Cultural Heritage Bill (Culture is Identity) Bill 2022 (‘ACH’).

Judicial Background The following cases illustrate how intellectual property (‘IP’) law has failed to protect Aboriginal artists’ commercial interests in relation to their copyrighted artworks. Despite Warimiri Artist Terry Yumbul’s ‘Morning Star Pole’ appearing on the Australian tendollar note, Yumbulul v Reserve Bank of Australia ruled no breach of copyright. The artist sought a claim against the Artistic Agency for false and misleading conduct, which failed on the grounds that the copyright law does not provide sufficient protection to recognise artwork ‘which are essentially communal in origin’.

Similarly, the question posed to the courts in Bulun Bulun v R&T textiles was whether customary laws relating to the ownership of artistic works are afforded to entities outside First Nations communities. Here Bulun Bulun’s bark paintings: ‘Magpie Geese’ and ‘Water Lilies at the Waterhole’ were printed into textiles and rugs without authorisation from the artist. Again, no

22 | The Brief

protections for the artists’ rights were awarded. These precedents failed to grant IP protection for artworks with communal and cultural origins.

Copyright in the Digital Economy: The Fair-Use Exception As technology in the digital space advanced, ‘innovation’ and ‘collaboration’ were the new ‘buzz words’. Effectively, in 2012 the ALRC proposed to make amendments to the Copyright Act to anchor the growth of the digital economy. The current Australian Copyright Act allows fair-dealing exceptions to copyright breaches. The ALRC proposed to expand the Copyright Act to include a fair-use section that allows copyrighted protected material, such as Aboriginal artwork, to be used online for social, private, or domestic purposes without breaching copyright laws.

The ALC submitted a response to this inquiry, advocating for the rights of Aboriginal artists. Their program, ‘Artists in the Black’, delivers legal advice specific to those artists who identify as Aboriginal and/ or Torres Strait Islander. This program was heavily influential in the ALC’s response. With the intent of preserving the communal aspect in First Nations artworks, the main submissions include the following: • ‘Traditional cultural expressions’ including Aboriginal artworks by museums, archives or other cultural institutions who wish to publish these materials online should be subject to the free and informed consent of the Aboriginal artist. They should not be an exception from copyright.

• The fair-use exception can be used as a shield from liability by corporate entities who create ‘fake’ Aboriginal art and merchandise. This can cause distress and turmoil for First Nations communities, as the profits from their cultural identity are funding businesses that do not appreciate nor respect Indigenous artworks.

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The ALRC published a final report which addressed the concerns of Indigenous cultural artwork in the digital space. The commission agreed that copyright protection for Aboriginal artists is not sufficient, but raised the possibility that Indigenous artwork can be protected under the ‘moral rights’ amendment to the Copyright Act. Moral rights protection can distinguish an ‘Aboriginal artist and the non-Aboriginal artist’ where commercial entities attempt to reproduce cultural art. The ARLC also states that companies can protect themselves by using the defence of ‘parody and satire’, a current fairdealing exception to Australian copyright law. This unclear protection towards Aboriginal artists raises erratic issues within the ‘public interest in expressive freedom’. Thus, clear legislation needs to be enacted that protects ACH so there are no discrepancies as to whether or not Indigenous artwork may be protected under IP rights.

Aboriginal Cultural Heritage The ACH bill was formally introduced to the NSW Parliament in June 2022, by Reverend the Hon. Fred Nile titled the Aboriginal Cultural Heritage (Culture is Identity) Bill. The Bill defines Aboriginal cultural heritage as ‘the tangible and intangible elements that are important to the Aboriginal people of the State, and are recognised through social, spiritual and historical values, as recognised by Aboriginal people’. Moreover, the crucial section of the bill, s 50 allows Aboriginal individuals the right to use their communal heritage for commercial purposes. This provides clear protection for Aboriginal artists to protect their artworks where the Copyright Act fails to account for Indigenous cultural artwork of communal origin. The Bill has currently passed the second reading in the Legislative Council with no amendments to be proposed.

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The Landscape Today I have had the pleasure of interviewing Cecilia Alonso, the veteran Manager of the Warlukurlangu Artists Corporation, the longest-running centre in the Northern Territory. She is an expert in managing Aboriginal artists who kindly shared her insights with me. She excitedly told me that Aboriginal artists are flattered when companies pick their artwork to be licensed. If companies contracted and licensed Aboriginal artists for their work, they would be ‘happy to collaborate’. Aboriginal artists represented

by Warlukurlangu have collaborated with big corporations such as Myer with the ‘Warlukurlangu Artists x Vue line’ and recently, Boating Camping and Fishing with artist Athena Nangala Granite’s ‘Wanderer collection’.

However, companies today still resort to reproducing and manufacturing ‘fake’ Aboriginal art. For example, Birubi Art manufactured ‘fake’ boomerangs, didgeridoos, and message stones with images depicting Aboriginal art to retailers. In 2019, the Australian Competition & Consumer Commission bought charges for misleading and deceptive conduct pursuant to the Australian Consumer Law. The Federal Court ordered Birubi Art to pay $2.3 million in damages. In hindsight, these damages could have been avoided if Birubi Art licensed an Aboriginal Artist to create these artworks.

Conclusion The ALRC’s final response to the Inquiry of Copyright in the Digital Economy suggests that Indigenous artworks may be protected under the moral rights in copyright law. Though unclear, NSW has proposed the ACH bill which provides clear protection to Aboriginal artists. NSW should follow Queensland and Western Australia which have codified their version of the Aboriginal Cultural Heritage Act. This will prevent any confusion or doubt as to whether Aboriginal Artists have the right to protect their cultural identity against companies, who may appropriate and reproduce their stolen artworks for profit.

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A Brief Conversation

With

Keyvan Dorostkar

Bradley Cagauan

Keyvan Dorostkar is a lawyer, PhD candidate at UNSW and an academic tutor in administrative law at Macquarie University. He has received his Bachelor of Arts (International Relations), Bachelor of Laws (Honours) and Masters of Research here at Macquarie University. Specialising in refugee law, his research interests and work with the UNSW Kaldor Centre Data Lab use computational and statistical methods to improve legal systems and processes for those going through Australia’s refugee status determination procedures. Their work has been referenced in Senate Committees, the Australian Law Reform Commission, the courts and the media.

The Brief would like to thank Keyvan for his time and insight into these new methods of accountability.

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Let’s start with you describing your career journey and how you got interested in legal research and refugee law.

My early childhood and migrant experience have shaped my career journey and the decisions I’ve made along the way. I was born in Iran and immigrated to Australia with my parents when I was seven years old. From that early age, I remember grappling with the question: ‘why me?’ Why was I so fortunate to have this opportunity to immigrate to Australia and enjoy the profound privileges that come with living in Australia? I still reflect on this question today by now asking: ‘how can I use these privileges and opportunities to be of service?’

My interest in refugee law is a reflection of that migrant experience. I’m interested in understanding how we can improve our legal frameworks and political rhetoric away from exclusion and ‘othering’ to one which is centred around humanity and affords protection to those in need.

As to my interest in research and academia — I didn’t imagine that I would pursue a PhD. My interest in research was sparked when I did a law honours thesis here at Macquarie University during my undergraduate degree. What I most enjoy about my research journey thus far is the level of intellectual freedom and creativity I’m given to pursue ideas and concepts I’m intrigued by.

This edition’s theme is called ‘Who Watches the Watchmen?’ and is focused on the challenges of holding our democratic institutions to account. What does this theme mean to you and the work you are involved with?

To me, accountability is an ongoing and continuing struggle that takes on many forms.

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In the legal form, the right to challenge executive decisions through judicial review is pivotal to ensure the executive exercises their powers within the confines of the law.

For asylum seekers, this may literally be a matter of life or death as an unsuccessful outcome may result in their deportation to countries where they may experience persecution, torture or death. Effective legal mechanisms to challenge executive action could not be more important.

Accountability also has a political form that must not be overlooked, especially where our judicial institutions offer little protection from the cruelty inflicted through legislation or executive policy. Each and every one of us has a responsibility to hold our governments and representatives accountable for the decisions they make on our behalf.

Working alongside the Kaldor Centre Data Lab, you and your colleagues have used data-driven analysis to reveal trends in the way judges and tribunal members make decisions. Referencing the Centre’s findings, the Honourable Sir Anthony Mason claimed there are ‘disturbing signs … that the value of impartial decision-making is no longer a fundamental feature of the judicial appointment process.’ To what extent do you think this is true and how does data-driven analysis hold decisionmakers to account?

I think there are two separate issues to consider here.

The first is around impartial decisionmaking and the judicial appointment process.

In 2013 the former Attorney-General Senator George Brandis abolished the advertising of judicial positions, the selection criteria from which judges would be assessed, and the independent panel that would make recommendations for judicial appointments.

This removed all transparency around how judges were appointed to the Federal Court and Federal Circuit Court. This provides some context to Sir Anthony Mason’s quote here.

In the research that I’m involved in, we gathered data on the judicial review 26 | The Brief

decisions of the Federal Circuit and Family Court of Australia regarding refugee protection visa applications. Our study found that the rate at which applications for judicial review are accepted by the Court varies widely based on the judge who hears the case.

Our study also considered many factors that could explain this level of variation and it’s important to emphasise that data on its own is not proof of the existence of judicial bias. However, when you combine the lack of transparency around judicial appointments with data demonstrating significant levels of variation in judicial decision-making — I think this should be a cause for some discomfort as Sir Anthony Mason alludes to.

In relation to the second part of your question — I would say that data and statistics on judicial decision-making is a tool that can provide transparency into how our judicial institutions are operating and in turn we can use that knowledge to question and hold our judicial institutions to account.

In the words of Chief Justice Allsop, ‘it is the questions that are raised and the answers made and obtained from those questions that are the most valuable aspects of these statistics’. However, I’d caution here that data and statistics are just one added tool and should not be viewed as a silver bullet when it comes to accountability. I would object to solely using data and statistics as a strict accountability mechanism to measure judicial performance. Data and statistics can only provide you with one part of the story.

Data-driven analysis of judicial decisions is transforming the way we view the courts. Still, there are legitimate concerns that such data can be misused to undermine the independence of the judiciary. For example, France criminalised the publication of judicial statistics due to concerns that judges may be pushed to make average outcomes without regard to a case’s merits. How can we reconcile these concerns?

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My co-authors and I actually spent a lot of time thinking about this dilemma during our research.

For some additional context, the Federal Circuit and Family Court of Australia responded to our research stating ‘judicial decision-making should not be evaluated through this limited and simplistic approach’. Along a similar line as the French example, the Court objected to the use of statistics on the basis that each case is decided on its own merits and factual circumstances which cannot be captured in the data. The Court also expressed concern that this type of data may erode public confidence and judicial impartiality.

There are four points that I’d make in response to this.

Firstly, the collection and analysis of data and statistics on judicial decision-making are becoming inevitable. Technology is rapidly becoming more sophisticated and accessible meaning that objecting to the use of statistics or worse, issuing criminal sanctions, is unlikely to prevent or reduce this type of analysis.

This leads to my second point being that data and statistics are neither intrinsically beneficial nor dangerous to judicial impartiality and public confidence. It is the way they are used and applied that determines this.

I agree, there is a real risk that data and statistics can be misused or misinterpreted in a way that erodes public confidence in the judiciary. However, the solution is not to ban data and statistics but to implement strategies that reduce the likelihood of data being misused or misrepresented.

The Australian Law Reform Commission (ALRC) considered this issue in their report ‘Without Fear or Favour: Judicial Impartiality and the Law on Bias’. One of the ALRC’s recommendations was that the courts themselves should be collecting and analysing this type of data as a primary way to prevent their misuse. As part of my Master's thesis, I set out a framework of how the courts might consider collecting and analysing this type of data. This is a real issue we must remain cognisant of Ed.1 2023

because we can’t fully eliminate the risk of the misuse of data and statistics. All we can do is implement strategies to mitigate these risks.

Lastly, there are circumstances where we have robust and accurate data that highlight particular issues or problems about the way in which the judiciary is operating. In these instances, data and statistics should be used as a tool to alter judicial behaviour and if such issues aren’t addressed then public confidence should be eroded in our judicial institutions. Impartiality and public confidence are not set in stone; we must always be striving to strengthen and improve our public institutions.

Last December, Attorney-General Mark Dreyfus announced the abolition of the Administrative Appeals Tribunal (AAT) claiming that its independence has been compromised due to an abundance of ‘political appointments’.

A replacement body is currently in the works. What needs to be done to ensure that tribunal members are appointed based on merit and not political affiliation? What else could the new AAT benefit from?

Before I discuss some of the issues, it’s important to remember that we don’t have a constitutionally enshrined right to merits review of administrative decisions.

The AAT is a creature of statute and sits as part of the executive. This means in effect that governments of both political persuasions have established and upheld a system by which their own decisionmaking is scrutinised and reviewed.

Secondly, it’s also worth noting that the AAT has operated since 1976 and has jurisdiction to review decisions made under more than 400 Commonwealth Acts. Its abolition means a lot of the experience and knowledge of operating an organisation like the AAT is at risk of being lost.

Having said that, the politicisation of the AAT has both eroded its independence and its ability to function efficiently such that I don’t think its continued operation was tenable. muls.org | 27

With the establishment of a new merits review body (whatever form it will take), it is crucial that the appointment of its members is done through a transparent and independent process. A successful merits review body must operate at arm’s length from the executive if it is to maintain any legitimacy.

Additionally, any new merits review bodies need to be adequately funded. In my area of refugee law, there is currently a six-year wait time for review applications being processed. This means asylum seeker applicants are left in limbo, with their futures hanging in the balance for up to six years!

How we structure and establish a new merits review institution is complex. I would like to see a systematic review, which I believe is already taking place, into what components of the AAT worked well and what components need a complete overhaul. These are nuanced problems that require nuanced solutions.

As a recent graduate and administrative law academic, what advice do you have for law students who are interested in legal research or refugee law? What first steps can they take to get involved?

I don’t really see myself as being in a position to give advice, so please take this with a grain of salt.

For legal research, my advice would be to look up all the amazing academic staff we have in our law school and find people who share similar areas of interest and reach out. You’ll be surprised just how supportive and helpful our law school academics are if you take that initiative. This was the very strategy I used when I was in law school. Also, I would recommend giving an honours research thesis a go as a sample taster of what academic research is like.

In relation to practicing refugee law – there are many opportunities that come up from time to time in this space. Our law school has a lot of PACE opportunities with organisations such as RACS and the National Justice Project. This is how I got my first experience

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in this field. Beyond law school — keep in mind your career doesn’t need to be a binary decision of practising in this social justice space or not. There are lots of pro bono opportunities that will be available to you in the refugee space (amongst others) and in corporate law firms as well.

I also have two pieces of general advice for all law students: 1. You are enough and you deserve to be here.

Throughout my journey in law school, I struggled with feeling like I belonged or was capable of being there. I also see this sometimes in the tutorials I teach; talented students struggling with self-doubt.

I still struggle with this imposter syndrome from time to time, even now. What’s worked for me in these moments of self-doubt is to return to my purpose: going back to the original question of ‘how can I use these privileges and opportunities to be of service?’ Focusing on how this opportunity of education can later be used to help others has shifted my mindset from ‘do I deserve to be here’ to one of ‘I need to be here!’

2. Try and escape the ‘If-Then’ model of happiness.

This is one of my mantras for this year. Reflecting on my experience of going through law school and beyond, I spent a lot of time in this ‘if and then model’. For example, I would think ‘if I graduate law school then I will be happy’ or ‘if I land that graduate role then I will be happy’. What I’ve come to realise is that following that mindset meant I was always two steps away from achieving that thing that was truly going to make me happy. What I’m actively trying to work on is focusing on finding joy and satisfaction in the process. If you enjoy the process, then happiness and satisfaction are not contingent on that final achievement. I would encourage you all to find joy in studying and learning about the law, learning how to problem solve and asking difficult questions. If you enjoy that process, I guarantee you’ll be a better student and an even better lawyer for it!

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How We Got Here

The Corporation: The Limited Liability Principle Over History Yuanze Gunaratnam

T

he doctrine of the corporation with limited liability is one of the major building blocks of corporate law in Australia today. Very broadly, it allows an individual or a group of individuals to register a company without any risk of incurring personal liability, other than their share price.

A brief mull over the development and operation of the concept since Ancient Rome unveils that the emergence of limited liability comes part and parcel with the protection and positive growth of businesses in society.

Ancient Rome Evidence from Roman legal sources demonstrates that Roman society entertained a number of major business organisations in operation.

The simplest form of organisation that conducted trade and other business activities was the societas, roughly translated as ‘partnership’. There was no distinction between societas liabilities and the liabilities of the members.

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However, another trading entity was the Roman family, headed by the pater familias, the oldest male member. An offshoot of the Roman family was the delegating of certain commercial activities to the slave, a commercial operation that endowed assets known as peculium, to the slave. Creditors could only claim from the peculium. As such, the pater familias were not liable for any of the slave’s debts.

Evidence from as early as the fifth century BCE reveals that external entities were privately contracted to perform construction ventures, provide goods and services to the public and the collection of public revenue. The process of contracting out public endeavours for the betterment of society was a capital structure known as societas publicanorum. A consortium of investors, the publicani, constituted these external entities. Unlike the societas, the publicani was endowed with a form of legal personality under Roman law, where partners operating within the publicani were protected by limited liability. However, this was not extended to the investors or shareholders.

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Medieval Europe The gradual transition from travelling merchants to ‘sedentary trade’ sparked the development of the ‘commenda’ contract, as well as the continuation of the Roman societas. This involved two parties — the passive investor and an active merchant. The investor lends the merchant capital for a business enterprise. Any debts and liabilities incurred by the merchant are protected from the passive investor, a form of limited liability.

Further, other Roman law concepts were adopted including the ‘universitas’, literally translated as ‘a number of individuals turned into one.’ This concept primarily described the status of legal ownership of property by ecclesiastical members of a Church or Parish. As the Digest (3.4.7) records: ‘what is owed to the corporation is not owed to the individual members, and what the corporation owes the individual members do not owe’. It was at this time that a flood of legal disputes was recorded around the definition of ecclesiastical ownership and the legal status of individual members.

In other words, the underpinning principle of corporate ownership was established in this context.

Based on the limited amount of evidence of the operation of merchant guilds in the medieval period, they were a collective organisation of skilled merchants providing goods and services to the public. The group was formed based on loyalty or ‘the brotherhood’ and a common purpose and legal protection was endowed by the monarchy through written charters. In addition, members were collective owners of guild assets and were afforded unlimited authority to decide the guild’s operations. Relevantly, although the guild legally entered into contracts, owned assets and had legal personhood, the guild as a business organisation did not entertain the principle of a separate legal entity.

The Joint Stock Company In the sixteenth century, merchant guilds were gradually replaced by the unincorporated joint stock company, which were formed via a grant or charter issued by the English Crown. These joint stock companies consisted of a large number of members of which ownership and management were separated. Legally, shares were freely transferable among the members.

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Invitations to purchase a joint stock based on promises and speculation were prolific. Although some members of these unincorporated joint stock companies did enter into deeds of settlements to limit their liability for company debts, what emerged was known as a ‘bubble’ company resulting in the potential for fraud and speculation as well as negligence on the part of management in looking after shares of a large number of investors.

Saloman’s Case The House of Lords in Saloman v Saloman & Co Ltd (1897) clarified the universality of the separate legal status from large-scale corporations to small companies and one-man traders. Since this decision, the separate legal entity doctrine has been further codified in statute and upheld in common law. The 1800s, therefore, saw the passing of the Joint Stock Companies Act 1844 (UK) which regulated the incorporation of companies

by Crown registration. This was followed by the Limited Liability Act 1855 (UK) company formation based on limited share liability.

NSW Prior to adopting uniform legislation for corporation law, both NSW and Victorian parliaments attempted to encourage limited liability companies in response to the needs of the colony and business transactions at the time. Even prior to the UK Limited Liability Act, the NSW Parliament allowed the liability of shareholders to be limited to twice the nominal value of shares held.

This was available to banks, mining, insurance and shipping companies.

Now The current concept of a separate legal entity is enshrined in s 516 of the Corporations Act 2001 (Cth).

Members of a company ‘need not contribute more than the amount (if any) unpaid on the shares in respect of which the member is liable as a present or past member’. Thus, once a company is validly created, registered and incorporated, it exists as a legal person apart from the members.

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Admissions of a Law Student

Job Hunting as a Law Student:

A Curated Recipe for Success Emmy Phung

T

he night feels heavy as waves of people come and go out of the restaurant.

Vietnamese karaoke screeches from the speakers outside, which can still be heard after entering past the muddy fish tanks and welcome mat that is visibly worn out. As I sit down, stares from my family members dart towards me as my mum mentions that I am starting a new job next week.

Applauds and congratulations explode from our table.

It only felt like a minute passed before the food arrived.

Slippery rice noodles doused in fish sauce and salt and pepper tofu with a semi-hard exterior and soft inside, my favourite.

A family member says gleefully, ‘you must be happy that you are finally getting what you want’.

I brush off this statement with a smile and with that, the chopsticks start clinking together. Though, I wish my response was a photograph that I could rip into pieces.

Six months ago, I believed that having a paralegal role was the greatest accomplishment that every law student hoped for. This thought became so entrenched in my mind that I began this seemingly never-ending chore that could not be ticked off my to-do list, finding a job. A competition with a bittersweet taste of a win or a loss.

People say, ‘it will be easy’. That is, save countless job listings, send your resume, academic transcript and cover letter to potential employers and practice impeding Ed.1 2023

interview answers. If you do not get the job, you learn from your mistakes and do it all again. Simple, right?

Yet, this slow burn of waiting was always met with quick rejection. I just could not perfect the recipe for success.

I felt trapped between two polarising ideas, being successful and being a failure. I had good relationships with friends and family and a flexible tutoring job where I bonded well with my students and boss. Yet, my inner critic reinforced that I was a failure because I needed more, a legal job.

I no longer perceived LinkedIn as a platform for developing professional relationships, but rather as a space of self-doubt as students were winning mooting competitions or placing first in their cohorts. I no longer wanted to attend social events where the premise of conversations would be about careers. Was I an imposter?

After no progress, I succumbed to volunteering and quitting the tutoring job that I had at the time.

I was determined to tackle the new journey ahead and, as a result, paid no attention to the last moments of banter with my students. When your stomach is in knots, it is hard to savour those joyful moments.

Volunteering was a thrill as I dealt with conveyancing and criminal law matters, gaining a few friends along the way. However, nothing could have prepared me for that call on an ordinary day of work. It was two o’clock in the afternoon. The woman on the other line spoke so muls.org | 31

fast that I was unsure what was happening until I heard a phrase that hit me, ‘we would like to offer you a position’.

Unable to contain my excitement, I immediately said yes. I had already researched the firm before the interview and discovered that it had a good location, team, and office space. Two weeks later, as I was heading to my new job, I thought to myself, ‘I am finally happy’. Like a hearty slurp of freshly cooked udon topped with runny egg yolk, everything was perfect.

Yet the labours of finding a job did not bring me any closer to the conceived happiness I wanted, and I learnt this the hard way.

Almost two months into working at this firm, the HR manager called me into her office, sat me down and said something that no law student wanted to hear. ‘We are sorry, but we have to let you go because there is not enough work’.

It was that simple. When you have strived to make everything fall into place like dominoes, there is always that one single piece that ruins the chain of pattern. I have built myself up just to be knocked down again. As I finished up that day, resentment filled my mouth like spit, and I constantly swallowed utter disappointment and shame.

However, my dad always used to say that ‘there is always something better waiting for you out there’.

In such circumstances, it was hard to revert to such positive thinking. But with support from friends and

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family, I was motivated to get back on track. I submitted 50 applications in the span of two months, receiving only four interviews. Feeling lost on the cusp of defeat, the little urge left in me applied for one more job application. Despite having no compelling interest in it initially, it landed me an offer within a week.

It is easy to say that I got what I wanted in the end, and quite unexpectedly, however, it came with a lot of sacrifices. Of course, being let go could happen again.

Though, after experiencing the job hunt, I feel ready to take on this challenge knowing that everything will work out one way or another.

So, let us turn the curated recipe of success into something more substantial. Step one, take a deep breath because it will be a journey. If you already have a great job, savour those moments because you will miss them once you move on. Step two, you will compare yourself to others and while it is hard, make sure you focus on self-improvement rather than proving your worth. Step three, be patient. If you do not end up getting a role that you interviewed for, it doesn’t matter too much. Only you can determine what is in your control. Finally, make sure you celebrate every win no matter how small it is. Pure happiness does not equate to work. Instead, it arises from your loved ones, interests and for me personally, food, specifically some salt and pepper tofu.

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The Law Student A Satirical Publication

Law Student in Shambles

after Submitting an Assignment One-minute Late

The very real news of very real law students Emmy Phung

Ed.1 2023

‘Y

eah, I am an organised person. I colourcode all my units and always keep up to date with my readings and lectures.

Do I attend tutorials? *scoffs* hell, I have perfect attendance and participation.’

I stared at him with bewilderment as this was an interview for what is the typical life of a law student. ‘Oh, I see…’, I said, quickly reviewing the interview notes. ‘It states here, however, that you were in tears a few days ago due to handing in an assignment late?’

Silence filled the room.

Kevin, a third-year law student, has single-handedly done it again. The clock had struck 11:56pm on the night his assignment was due at 11:55pm, yet he could not fathom that possibility. Not even Turnitin clearly stating the assignment was handed in at 11:56pm was enough to convince him.

‘It’s completely rigged,’ he cried. ‘I’ve already sent an email to the convenor and if I don’t get at least a high distinction for this unit, I’m appealing to the board, maybe even the High Court!’

According to Kevin’s email, sent a second after handing in the assessment, his dog had ‘accidentally chewed the Wi-Fi cable’ and was also ‘unable to access his hotspot, having used it all during the mid-semester break.’ The phrase ‘not my fault’ had been written at least seven times in the email.

Bobby, Kevin’s classmate, showed The Law Student pages of text messages between him and Kevin. ‘I’m going to die’, Kevin writes, ‘Good luck with law school Bobby, I’ll be on the streets the next time we meet.’

‘He does this shit all the time,’ said Bobby with a shrug, ‘and every semester, it’s the same song and dance: “I’m not gonna do that again, next semester I’m gonna get it in time, surely”’.

Kevin ended up receiving a credit for the unit and no appeal was made. Bobby later informed The Law Student that Kevin handed in his assignment two minutes late the following semester.

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A Brief Review

The American Drama

The Good Wife (2009-2016) Tracy Tang

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T

he Good Wife is an American legal-political drama spanning seven seasons from 2009 to 2016. It depicts how the heroine Alicia Florrick, wife of a high-office politician brought down by scandals, built a legal career, raised two teenage children, and underwent incredible personal development in the face of adversity.

The show covers a variety of interesting legal dilemmas. For example, one episode explored a teenage girl struggling to choose between a plea bargaining deal of 25 years in prison and a jury trial that could sentence her to death. Another episode involved a surrogate mother insisting on giving birth to a child with biological defects. One episode that really impressed me explored an insurance company refusing to cover the operation on a newborn baby suffering from complications in the face of her potential death.

In The Good Wife, it is deeply liberating to watch Alicia manage complex life events in an incredibly challenging career

while balancing parental responsibilities.

However, it is also thought-provoking as it makes the audience ponder whether things would be different if she were not the wife of the Attorney-General (and later, the Governor of Illinois) or if she did not go to a prestigious university and made connections with her boss.

The show explores many individuals under-represented in the legal system, such as single mothers, drug dealers, sex workers, and individuals from diverse ethnicities. It also provided discourse on the unspoken and subtle discrimination and inequality in a growing polarised society, as well as shining a light on the powerful exploiting the less privileged.

For better or worse, Alicia has transformed into an individual she would not have foreseen more than ten years ago when she was responsible for raising the family’s children. Such is life, it is imperfect, but she has lived and grown from her experiences, something we all ought to remember as we embark on our journey through law school.

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