The Brief Edition 3 2023

Macquarie University Law Society Magazine Edition 3, 2023 (Volume 29)

Condemned to

Live in Loneliness?

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Contents The Brief Ed.3, 2023

Features 06

[Editorial Opinion] So, Now What? Bradley Cagauan

20

The Great Dividing Range within the Australian Constitution Tracey Adams

14

Genocide vs Ethnic Cleansing: Does this leave the Rohingya in a state of limbo?

22

International Protections Against the Forced or Coerced Sterilisation of Refugee or Asylum Seeker Women Zoe Gleeson

16

The Speech We Love to Hate

24

18

‘Vastly Disproportionate’: NSW Police’s Interactions with Indigenous People and Use of Force Sujal Chadha

The Disparity of Outcome for Young Offenders in Minority Groups Simeon Levine

Zoe Gleeson

Leo Chang

Regulars 08

[What’s New in the Law?] Bruce Zhang

28

[Admissions of a Law Student] Should we use AI? Rachel Justic

10

[Social Justice Corner] Condemned for Religion: The Repression of Uyghur Muslims in China Amy Scott

30

[A Brief Review] ‘The Wigs’ Grace Drinan

12

[Under the Radar] Western Australian Aboriginal Heritage Law – A Lost Chance Elinor Bickerstaff-Westbrook

31

[The Law Student] The Boxer, Issue 304, 2023 Leo Chang

Editor's Welcome

Welcome to the final edition of The Brief for 2023!

In 2015, the Supreme Court of the United States heard oral arguments in the case of Obergefell v Hodges, an appeal challenging state bans on samesex marriages as unconstitutional. In a case weighing up religious freedoms, individual liberties, and discrimination, Justice Anthony Kennedy — writing for the majority — rejected the respondent’s argument that same-sex marriage would harm the institution of marriage, stating that, ‘No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice and family … [the plaintiff’s] hope is not to be condemned to live in loneliness … they ask for equal dignity in the eyes of the law.’ In one fell swoop, same-sex marriage was legalised in all 50 states of the US, in a landmark victory for queer people and social justice.

This edition takes its title from Justice Kennedy’s words. ‘Condemned to Live in Loneliness?’ asks us to consider marginalised groups and their continued struggle to have their interests recognised and protected by law and policy. Does the law adequately protect their interests? If not, how can we rectify this?

In this edition, we look at the inadequacies of international law in protecting ethnic groups from genocide (p.14), an examination of the protections for refugee and asylum seeker women from coerced sterilisation (p.22), and the philosophical tensions in legislating hate speech laws (p.16). This publication comes shortly after the failed 2023 Referendum, and so many of our articles are focused on laws and policies affecting Indigenous people. This issue contains a rare opinion-editorial discussing the 1991 Royal Commission into Aboriginal Deaths in Custody, and my personal thoughts on what the referendum loss means for Indigenous affairs (p.6). This issue also contains articles covering the vastly disproportionate rates of force used against Indigenous people by the NSW police (p.24), 4 | The Brief

how the age of criminal responsibility disproportionately targets Indigenous young people (p.22), and a discussion of the polarising and often toxic debate around the 2023 Referendum (p.18).

Issue 3 is our most thought-provoking issue yet, and I extend enormous gratitude towards the writers, sub-editors, and designer of ‘Condemned to Live in Loneliness?’ Thank you all for sharing your passion for law, writing, and social justice with The Brief.

Your continued support is what allows The Brief to be such an invaluable publication for law students of all backgrounds. I thank Mikaela for her infectious cheerfulness and neverending encouragement — I wish you all the best for your leadership of MULS in 2024! I also want to thank Brendan for the privilege to curate and publish The Brief and Simeon and Leo for their immense assistance with subediting and editorial review. Finally, I want to thank my partner, Kai. Even if you know nothing of law, you have always been my biggest encouragement in all areas of my life and that includes my editorship.

And so, that concludes my tenure as Editor-In-Chief.

It has been an immense privilege and pleasure to be a part of a long line of passionate editors and I hope my tenure will be remembered as one that championed articles by writers who sought to use their voices to fight for the voiceless, hold the watchmen to account and write optimistically about a future for all. I thank all the writers and subeditors I have worked with over the past year and wish you all the very best in your vocations as lawyers and writers. It is now my time to go and so I invite you to join our incoming Editor-In-Chief, Leo Chang, and his team across 2024! I am super excited to see where you take things!

Signing off, one last time, Bradley Cagauan Editor-In-Chief Ed.3 2023

President's Welcome

muls.org Edition 3, November 2023 (Volume 29)

EDITOR-IN-CHIEF Bradley Cagauan DEPUTY EDITOR Simeon Levine

DIRECTOR OF PUBLICATIONS Mikaela Mariano

Welcome, readers, to the final edition of The Brief for 2023.

Inspired by Justice Anthony Kennedy’s words in the Obergefell v Hodges opinion, our theme explores the historical and ongoing challenges marginalised groups face. This publication ventures into Indigenous rights, the interests of racial minorities, religious communities, nonconforming gender identities, queer identities, individuals with disabilities, youth, and older people.

This edition of The Brief is a testament to our community’s unwavering commitment to inclusivity, diversity, and social justice. It is more than a collection of articles; it is a platform for learning, reflection, and a deeper understanding of the experiences of those often overlooked. Within these pages, you’ll find narratives that challenge the status quo, insights that inspire change, and stories that illuminate the resilience of marginalised communities.

As the year draws to a close, we must acknowledge the combined efforts of our dedicated Publications team, notably Mikaela and Bradley. Their dedication has made The Brief a resounding success in 2023. I thank you and all others who have contributed to the success of MULS publications in 2023.

Brendan Piech President, Macquarie University Law Society

DESIGNER Nathan Li

WRITERS (IN ALPHABETICAL ORDER)

Amy Scott, Bradley Cagauan, Bruce Zhang,

Elinor Bickerstaff-Westbrook, Grace Drinan, Leo Chang, Rachel Justic, Simeon Levine,

Sujal Chadha, Tracey Adams and Zoe Gleeson SUB-EDITORS

Anna Queja, Elinor Bickerstaff-Westbrook,

Leo Chang, Rachel Justic, Simeon Levine and Zoe Gleeson

EDITORIAL REVIEW

Bradley Cagauan, Brendan Piech, Leo Chang 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.

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.3 2023

muls.org | 5

Editorial Opinion

So, Now What?

60% voted NO.

Meanwhile, 555 Indigenous people have died in custody since 1991.

Editor’s Note: All views expressed in this article are the personal opinions of the Editor-In-Chief.

They do not represent the positions of Macquarie University Law Society, the Law School, or the University.

Our publication maintains a strict commitment to apolitical and neutral content.

O

n 14 October 2023, the Australian people voted on whether an Indigenous Voice to Parliament should be inserted into the Constitution. A majority of the country and all six states voted no.

As law students, we know the difficulties in passing referendums. As voters, we heard slogans, old myths, meaningless platitudes and (at times) blatant racism blared from all directions. Over the final six weeks of campaigning, many Australians looked forward to 14 October; not to cast their vote, but for a much-needed break from the heated rhetoric.

In a debate about legal risk and racial division, it was easy to lose sight of what the referendum was really about; the gap of disadvantage between the lucky country and the First Nations who have historically been rendered silent.

Noel Pearson commented that many Australians do not know Aboriginal people personally, making it difficult for many to comprehend the disparity of the gap. As the outgoing Editor-In-Chief and an aspiring criminal lawyer, I feel duty-bound to point readers’ attention to one gap: Indigenous deaths in custody.

The Indigenous death rate in custody is the fatal intersection between the flaws of our criminal justice system, the lingering impact of colonisation, and a general cultural apathy toward Indigenous affairs. From 1989-1991, the Royal Commission into Aboriginal Deaths in Custody examined 99 deaths from 1980-1989.

6 | The Brief

The Royal Commission confirmed two points: 1. Indigenous people in custody did not die at a higher rate than non-Indigenous people in custody.1 2. However, Indigenous people are overwhelmingly more likely to end up in custody. As such, while the rate of deaths in custody is the same between both groups, more Indigenous people die in custody.

The Royal Commission saw deaths in custody as the symptom of the wider problems of over-policing and systemic racism. Many of its recommendations sought to effect systemic change to ensure Indigenous people were less likely to be targeted by the criminal justice system. Most recommendations involved initiating a process of reconciliation to ensure better outcomes in health, education and employment. Targeting these gaps in health, education and employment was necessary because ‘the disadvantaged and unequal position in which Aboriginal people find themselves in society’ is the ‘most significant contributing factor’ in Aboriginal people coming into contact with the criminal justice system. These disadvantages are the product of domination and disempowerment caused by 200 years of history.

1 Commonwealth, Royal Commission into Aboriginal Deaths in Custody (Final Report, April 1991) vol 1, para 1.3.1 (‘Royal Commission’).

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Editorial Opinion

During the referendum, there was a pervading belief that the effects of colonialism were merely historical, but the Royal Commission and scholarship make it clear that colonialism manifests itself today through laws that bear ‘unequally upon Aboriginal people’ and a complex ‘web of discriminatory values and outcomes.’2 For example, consider the NSW Police’s statutory power to use ‘reasonably necessary’ force in exercising a function, such as arrest. The statute makes no reference to race. However, in Sujal Chadha’s article (p.24), statistics collected by Redfern Legal Centre show that 45% of ‘use of force’ incidents by the police were against Indigenous people from 2020-2021.3 This is despite Indigenous people comprising 4.2% of NSW’s population.4 This vastly disproportionate use of force is alarming; it is unlikely that all or even a majority of these incidents of force are reasonable.

Earlier this year, Constable Ryan Barlow was convicted of assaulting an Indigenous teenager in 2020.

The footage of the arrest shows the boy swearing at the constable, although not posing any imminent threat.

Despite this, the constable immediately arrested the boy and then swept his leg, injuring him. While the constable claimed the leg sweep was in self-defence, Magistrate Attia held that the boy had complied with the arrest, and that the constable’s discretion to use force was not reasonable. Constable Barlow maintains his innocence and is appealing.

We can never know whether every case of use of force is reasonable. However, Constable Barlow’s immediate resort to force in the arrest of an Indigenous young person for swearing suggests that we should be concerned about that 45% figure. As the Royal Commission outlined three decades before, the problem is less that individual actors are racist, but rather that the system itself (in this case, the discretion to use force) bears ‘unequally upon’ Indigenous people.

To combat institutional racism, the Royal Commission made 339 recommendations inside and outside the criminal justice system, but many of these recommendations remain unimplemented. For example, NSW imposes a presumption against bail.

This is inconsistent with recommendation 89. The WA Government’s failure to uphold its duty of care to persons in custody during transit went against

recommendation 122, resulting in Mr Ward’s death in the back of a 47ºC police van in 2008. The NT government’s ‘paperless arrest laws’ gave police increased discretion to detain individuals who were drunk in public, rather than to issue fines or move-on orders. While NT police acted lawfully in arresting the elderly and sick Kumanjayi Langdon for public intoxication — who the coroner found was ‘always likely to die’ — the laws meant Kumanjayi was robbed of dying in his home. Inconsistent with recommendation 87 (arrest as a means of last resort), Kumanjayi was ‘treated as a criminal’ in his final moments for an offence that many others would have merely been fined or moved on for.

Despite the pleas of Indigenous activists and legal experts to adopt the recommendations, governments have continually failed to do so. This is made evident in two statistics: 1. In 1989, 28.6% of the prison population was Indigenous. 32 years after the report, 31.5% of prisoners are Indigenous despite making up 3% of the population.5 2. Since 1991, 555 Indigenous people have died in custody.

Recommendation 1A of the Commission was for the government to consult with the Aboriginal and Torres Strait Islander Commission to agree on a process to implement their recommendations. This body, ATSIC, was abolished in 2005. No advisory body has since replaced it.

It is not clear that a yes vote would have closed the gap, but after a resounding no vote, the invitation to enshrine an Indigenous Voice in the Constitution fell on deaf ears. But we cannot just give up and say ‘Now what?’ Steps toward progress have been known

by Indigenous communities, elders, and experts for decades. This is not the end. Despite setback after setback, Indigenous activists have fought for better outcomes in the face of fierce opposition.

Constitutionally enshrined or not, they will continue to make their voices heard and shall wave their flag of the sun breaking the dawn.

So, now what? Business as usual; the fight continues.

2 Thalia Anthony and Harry Blagg, ‘Biopower of Colonialism in Carcereal Contexts: Implications for Aboriginal Deaths in Custody’ (2021) 18(1) Bioethical Inquiry 71, 72; Royal Commission (n 3) para 1.7.2.

3 Christopher Knaus, ‘NSW police use force against Indigenous Australians at drastically disproportionate levels, data shows’, The Guardian (Article, 31 July 2023).

4 Australian Bureau of Statistics, Estimates of Aboriginal and Torres Strait Islander Australians (Catalogue 3238.0.55.001, 30 June 2021).

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5 Australian Bureau of Statistics, Prisoners in Australia (Catalogue 4517.0, 24 February 2023).

muls.org | 7

What’s New

in the Law? Bruce Zhang

Exposure Draft: Family Law Amendment Bill (No 2) 2023 (Cth) This edition of The Brief focuses on the topic of loneliness. It is not difficult to imagine how lonely a person may feel after their relationship was broken, particularly for victims of domestic violence whose access to matrimonial properties is either denied or limited.

On 18 September 2023, the Attorney-General’s Department opened a public consultation on the exposure draft of the Family Law Amendment Bill (No 2) 2023 (Cth). The exposure draft would amend the Family Law Act 1975 (Cth) (‘Family Law Act’) and make some consequential amendments to the Federal Circuit and Family Court of Australia Act 2021 (Cth) (‘FCFCOA Act’).

The exposure draft is a response to the findings and recommendations of the Australian Law Reform Commission published in its Final Report No 135: Family Law for the Future - An Inquiry into the Family Law System (ALRC Report) and elements of the Government Response to the Joint Select Committee on Australia’s Family Law System (‘Joint Select Committee’). The exposure draft contains four schedules, three of which relate to the substantive law concerning property settlement, children’s contact services, and other general amendments to the Family Law Act and the FCFCOA Act; the remaining concerns case management and procedures.

Regarding property settlement orders, the exposure draft contains amendments to specify the decisionmaking principles a court will take when deciding whether to make an order to alter the property interests of parties to a relationship. It is proposed to include the effects of family violence as a factor for consideration in 8 | The Brief

determining a property settlement. Such an amendment is a response to recommendation 23 of the Joint Select Committee’s Second Interim Report, where a deficiency of the Family Law Act in recognising the economic impacts of family violence is identified. Further, it is noted that financial abuse, debts, and wastage are also recognised as factors for consideration in making property settlement orders. Such a move is consistent with the evolving recognition of financial abuse as a form of coercive control, a recognised pattern of abusive behaviours that qualify as family violence.

The exposure draft also contains other changes to provisions of the Family Law Act regarding property settlement. These changes include the establishment of ‘Less Adversarial Trial’ processes for conducting property or other non-child-related proceedings and the disclosure requirements for people with financial matters within the Family Law Act. The exposure draft aims to reduce the complexity of family law arbitration provisions and empower courts to make directions for an arbitrator’s effective conduct of an arbitration on application. It also proposes amendments to provide an explicit power for the court to terminate an arbitration process in certain circumstances, regardless of whether the arbitration is court-ordered or privately arranged.

All these changes reflect the recognition that family violence, including financial abuse, impacts victims’ capacity to participate in adversarial dispute resolution and aims to achieve a just, quick, and cheap dispute resolution for victims who are going through perhaps one of the darkest moments of their lives.

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What’s New in the Law?

AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 26 It is hard to imagine how lonely it would be to live in an immigration detention centre and be isolated from families and friends. Ned Kelly Emeralds, an Iranian refugee, spent ten years in immigration detention centres before he won the case against the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs in the High Court of Australia on 6 September 2023.

In 2021, Emerald’s protection visa was refused by the delegate of the Minister. Emeralds then applied to the Federal Court of Australia seeking orders to require his removal from Australia to a regional processing country through s 198AD(2) of the Migration Act 1958 (Cth). Section 198AD(2) provides that ‘[a]n officer must, as soon as reasonably practicable, take an unauthorised maritime arrival to whom this section applies from Australia to a regional processing country’. The order was made in Emeralds’ favour, declaring that s 198AD(2) applied to the appellant, requiring the Secretary of the Department of Home Affairs to remove him to Nauru as soon as reasonably practicable and requiring that pending performance of the duty, the appellant be detained at the home of one of his supporters. However, two weeks after the order was made, the Minister for Home Affairs exercised the discretionary power in s 198AE(1) of the Migration Act (‘[i]f the Minister thinks that it is in the public interest to do so, the Minister may, in writing, determine that section 198AD does not apply to an unauthorised maritime arrival’) by determining that the duty in s 198AD(2) did not apply to the appellant.

From the Minister’s decision, the appellant appealed for an order of habeas corpus, or a writ in the nature of habeas corpus, and a declaration that the appellant was falsely imprisoned, and other reliefs (‘the habeas proceeding’). That application was refused.

Dissatisfied, Emerald appealed to the High Court.

The appeal turned to not only immigration law but also constitutional law for an answer. The constitutional issue Ed.3 2023

raised and asked to be answered by the Court was whether the Full Court of the Federal Court of Australia had jurisdiction to hear the habeas corpus proceeding.

In other words, ‘whether there was a “matter” within the meaning of ch III of the Constitution’ arising from the case. The High Court answered that question negatively by ruling that the Full Court only has jurisdiction where there is a ‘matter’ within the meaning of ch III of the Constitution, which relevantly requires that there be a dispute about rights, duties, or liabilities that is sufficient to give rise to a justiciable controversy. This requirement applies in appellate jurisdiction as well as original jurisdiction. The High Court clarified the Federal Court’s jurisdiction and jurisdictions of primary and appellate courts. The High Court stated that: For appellate courts, the question is not whether the party can establish the claimed legal right, duty or liability, as that question has been determined. The question on appeal and for determination on appeal is whether the orders of the primary judge should be affirmed, varied or reversed – that is, whether the appeal should be allowed and, if so, what orders should be made in the place of the primary judge’s orders.

Moreover, there must be a controversy over some right, duty, or liability, that is, ‘there is a live controversy because the orders of the primary judge continue to have effect in determining the parties’ rights, duties, or liabilities’ to be decided by the appellate court to exercise appellate courts’ jurisdiction.

The High Court’s decision reaffirms and reminds us that the federal judiciary’s power is rooted in the Constitution and any other statutes made by the Constitution. Before arguing parties’ rights, duties, or liabilities in a certain court, the first question to be answered is always whether the court that will hear the matter has the jurisdiction to do so. muls.org | 9

Social Justice Corner

Condemned for Religion:

The Repression of Uyghur Muslims in China Amy Scott

S

ince 2017, it has been reported that over one million Uyghurs in China have been arbitrarily detained by Chinese authorities, with more subject to religious restrictions, intense surveillance, forced labour and restrictive family planning.1 In 2022, the United Nations Office of the High Commissioner for Human Rights (‘OHCHR’) released a groundbreaking report which declared that these actions are ‘serious human rights violations’, which may constitute international crimes, in particular ‘crimes against humanity’.2 Several countries, including the US, UK, Canada and the Netherlands, have publicly accused China of committing ‘genocide’, the ‘intent to destroy, in whole or in part, a national, ethnical, racial, or religious group.’3 1 Human Rights Watch, World Report 2021: Events of 2020 (World Report No 31, 2021) 8-9; Julian Borger, ‘China’s treatment of Uyghurs may be crime against humanity, says UN human rights chief’, The Guardian (News Article, 2 September 2022).

2 United Nations Human Rights Office of the High Commissioner, ‘OHCHR Assessment of human rights concerns in Xinjiang Uyghur Autonomous Region, People’s Republic of China’ (Final Assessment, 31 August 2022) 44.

3 Convention on the Prevention and Punishment of the Crime of Genocide, signed 9 December 1948 78 UNTS 277 (entered into force 12 January 1951) art II (‘Genocide Convention’); ‘Who are the Uyghurs and why is China being accused of genocide?’, BBC News (News Article, 24 May 2022).

10 | The Brief

Who are the Uyghurs?

The People’s Republic of China officially recognises 56 ethnic groups, with the largest ethnic group being the Han Chinese. The Uyghurs are a minority, predominantly Sunni Muslim-identifying and Turkic-speaking ethnic group native to the Xinjiang Uyghur Autonomous Region (‘XUAR’), in North-West China. The Uyghurs briefly declared independence for the XUAR in 1933 and 1944, however, the region was brought under the complete control of the Chinese state after the Communist Party came to power in 1949. With a population of 12 million, the Uyghurs are overshadowed by the 1.4 billion Han Chinese, who form a super majority of 92% of China’s total population. In recent decades, there has been a mass migration of Han Chinese into the XUAR, allegedly orchestrated by the state to dilute the minority population there.

What is the current situation?

In the 2022 report, the previous High Commissioner for Human Rights, Michelle Bachelet, detailed how the implementation of counter-terrorism and religious Ed.3 2023

extremism strategies in the XUAR have led to ‘interlocking patterns of severe and undue restrictions on a wide range of human rights.’ China has developed what it describes as an ‘anti-terrorism law system’, composed of national security and counter-terrorism legislation, criminal law, and formal regulations pertaining to religion and extremism. This system contains extremely vague and open-ended concepts, providing officials with discretion to interpret and apply broad investigative, preventative, and coercive powers, without prescribed safeguards, independent oversight, or effective remedies. The strategies have a common underlying discriminatory component, and they have led to a large-scale arbitrary deprivation of liberty for Uyghurs and other predominantly Muslim communities in the XUAR. The strategies enacted have been far-reaching, arbitrary, and discriminatory, violating international human rights and fundamental freedom standards as defined by the United Nations. The OHCHR recognised that there are credible allegations that the Uyghurs who are detained in ‘Vocational Education and Training Centres’ (‘VETC’) without access to a fair trial are subject to torture, ill-treatment, and sexual and gender-based violence.4 Two-thirds of the 26 former detainees interviewed by OHCHR reported having been subject to abuse, including beatings, electrocution, medicating, waterboarding, prolonged solitary confinement, and psychological torture in VETC facilities, or during the process of referral to VETC facilities. Some interviewees described being forced to stay awake for days, having no access to food or potable water, and not being permitted to speak their own language or practice their religion.

The coercive and discriminatory enforcement of family planning and birth control policies has further violated the right to individual autonomy and the right to the highest attainable standard of physical and mental health, in particular, reproductive rights. The Chinese Government has attempted to justify this practice by claiming that there is a link between high birth rates and religious extremism. As a result, in June 2021 the XUAR introduced a three-child policy for all ethnic minority groups, in line with the national policy. The average rate of sterilisation in China is 32 per 100,000 inhabitants, however, in the XUAR it is significantly higher, being 243 per 100,000. Several OHCHR women interviewees have alleged forced birth control practices, including IUD placements and forced sterilisations.

Labour and employment schemes, purportedly for the purposes of poverty alleviation and the prevention of terrorism and extremism, involve coercion and discrimination based on religious and ethnic grounds.

All of the strategies enacted have had reverberating effects on family members, transcending borders, and separating families, with many seeking information about the fate of their detained relatives. There are patterns of violence and intimidation used against members of the diaspora community who have spoken publicly about their experiences in the XUAR. The extent of these arbitrary and discriminatory strategies has violated the Uyghurs’ rights to privacy, movement, freedom of speech, self-determination, religious identity, expression, and health, among others.

Responses and Recommendations Despite the findings of the OHCHR, the Chinese Government has strenuously denied all allegations that it is committing any crimes against humanity or violating the human rights of the Uyghurs. China has stated that the strategies they employ in the XUAR are suitable and necessary for responding to the threats of terrorism and religious extremism. China claims they are attempting to increase domestic stability in response to separatist XUAR sentiments, which arose in the 1990s and subsequently in the 2009 clashes, where 200 people died.

Irrespective of the Chinese Government’s denials, the UN’s official recognition of the XUAR human rights situation has been welcomed by Uyghur exiles, foreign officials, and international human rights groups, who state that their findings support years of advocacy, reporting, and research. Omer Kanat, the executive director of the Uyghur Human Rights Project, stated that the report is ‘a game-changer for the international response to the Uyghur crisis’. The OHCHR stated that the Chinese Government should promptly and effectively bring all policies in line with international human rights law, ensure accountability for perpetrators, and provide redress to victims. They also recommended that China release all arbitrarily detained individuals and provide explanations to family members regarding their missing relatives. Lastly, the OHCHR has stated that further urgent attention is required by the United Nations and the broader international community to rectify this situation.

4 Johana Bhuiyan ‘Former Xinjiang detainee arrives in US to testify over repeated torture he says he was subjected to’, The Guardian (News Article, 13 April 2022).

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muls.org | 11

Under the Radar

Western Australian Aboriginal Heritage Law

– A Lost Chance

Elinor Bickerstaff-Westbrook

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n 1 July 2023, the Aboriginal Cultural Heritage Act 2021 (WA) was put into operation in Western Australia.1 Five weeks later, the Western Australian government announced it would be repealed. The Act was aimed at recognising and protecting land, remains and artefacts of Aboriginal cultural heritage, but was particularly legislated in reaction to the destruction of Juukan Gorge by the Rio Tinto mining company. The quick reversal of the 2021 Act came after widespread confusion and backlash from the Western Australian community, especially farmers, concerned with the financial obligations imposed on them by the Act.2 While the WA government still plans to amend the 1 Hamish Hastie, ‘“I’m sorry”: Roger Cook scraps WA Aboriginal cultural heritage laws’, WA Today (Article, 8 August 2023).

2 Keane Bourke and Cason Ho and James Carmody ‘Labor MP critical of reaction to Aboriginal Cultural Heritage Law as backflip set to be announced’, ABC News (News Article, 8 August 2023).

12 | The Brief

previously operational Aboriginal Heritage Act 1972 (WA), the insufficiencies led to the destruction of the Juukan Gorge.

Many in the Indigenous community were incredibly disheartened by the decision to repeal the 2021 Act. However, the short-lived discussion of the legislation and the wider issue of the recognition of Indigenous culture reveals a far deeper issue in Australia’s current attitude towards Indigenous people.

The previous 1972 Act had deep flaws, but the root of many was how it kept ultimate discretion in the hands of the Minister for Aboriginal Affairs. In particular, Section 18 allowed landowners and companies to apply to the Minister for approval to damage or demolish a cultural heritage site.3 If the application was denied, the landowner had the right to appeal the decision. Critically, traditional 3 Aboriginal Heritage Act 1972 (WA) s 18.

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Indigenous owners were not given the right to appeal decisions allowing destruction.

This prioritisation of mining and business over Aboriginal heritage protection led to the disaster that was the destruction of the Juukan Gorge in 2020.

An application was made by Rio Tinto under section 18, and the application was approved by the Barnett government in 2013. Between this approval and the Gorge’s destruction, numerous culturally significant remnants were found, including stone tools, preserved human hair, and pollen remnants in sediment, which could have been used to analyse environmental changes over past millennia. It was considered one of the most significant Indigenous archaeological sites in Australia, with records of human activity spanning 46,000 years.

Despite these discoveries, the Gorge was obliterated for the sake of resources and profit.

The 2021 Act aimed to remedy the failures of the 1972 Act by prioritising the Aboriginal people’s connection and custodianship over their heritage.4 This involved the creation of the Aboriginal Cultural Heritage Council to provide information and services to facilitate the 2021 Act and to promote awareness of Aboriginal cultural heritage.5 The Act also put positive obligations on landowners to have their land surveyed, with excavations exceeding 1,100 square metres requiring approval from the Minister.

This spurred outcry from the large farming community in WA, who were worried about large financial burdens and penalties for failing to adhere to the Act. Further criticism came from some Aboriginal communities, such as those in the Kimberley, who felt that the Act was overly bureaucratic and that it failed to bring Indigenous decision-making to the forefront. The Act still put the final say in the hands of the Minister. However, it

was primarily the concern of farmers and landowners that led to the decision to repeal the 2021 Act and re-instate the 1972 Act with amendments – a choice which left many Aboriginal groups disappointed.

In late August, the WA government announced their planned amendments to the 1972 Act, providing their reform plans to Aboriginal organisations and a law implementation group for further assessment. Following these reforms, the Aboriginal Cultural Heritage Council from the 2021 Act will take on the form of a Committee that can give recommendations to the Minister on applications made under section 18.

Indigenous stakeholders will also be given the right to review and possibly to appeal section 18 applications, which was a major issue with the original Act. Furthermore, when a section 18 application is approved, the applicant must inform the Minister for Aboriginal Affairs if they find any indication of or information about an Aboriginal site on the approved land. The reforms also give the Premier a far-reaching ability to make determinations on issues considered to be of ‘State significance’.

Overall, the conversation resulting from the 2021 Act’s implementation and subsequent repeal shone an important light on the priorities of the WA people and government. The WA government ultimately prioritized businesses and the economy, and the interests of the nonIndigenous majority. Whether the 2021 Act was too flawed to meaningfully impact the state’s treatment of Indigenous land and culture will remain unknown. However, the short lifespan of the Act and the conversation surrounding it has illustrated that most people are not willing to spend time thinking or taking meaningful actions about the crisis this country faces in recognising and respecting Indigenous rights and equity.

4 Emma Garlett and Deanna Kemp and Sarah Holcombe, ‘Why is there so much confusion and fearmongering over WA’s new Aboriginal Cultural Heritage Act?’, The Conversation (News Article, 5 July 2023).

5 Aboriginal Cultural Heritage Act 2021 (WA) ss 22(1), 25-26.

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muls.org | 13

Genocide

versus Ethnic Cleansing: Does this leave the Rohingya in a state of limbo?

Zoe Gleeson

*as adapted from author’s submission at Macquarie University, Sydney

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he definition of ‘genocide’ can be found in the Genocide Convention. Article 2 of this Convention and Article 6 of the Rome Statute state that ‘genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such…,’ ‘killing members of the group;’ ‘causing serious bodily or mental harm to members of the group;’ ‘deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;’ ‘ imposing measures intended to prevent births within the group;’ ‘forcibly transferring children of the group to another group.’1 To prove the crime of genocide, the act must have occurred ‘…in the context of armed conflict, international or non-international, but also in the context of a peaceful situation.’ Similar to the crime of murder, a mental element and a physical element must also be present. The ‘intent to destroy, in whole or in part, a national, ethnical, racial or religious group…’ and an exhaustive list of physical requirements must be met in order for an act to be classified as ‘genocide’.

Unfortunately, ethnic cleansing has not been officially defined in a Convention, nor recognised as an ‘independent crime under international law’.2 It has been referred to in resolutions of both the Security Council and General Assembly; ‘ethnic cleansing’ was only established as a term during the war between Bosnia and Herzegovina in the 1990s. Many official bodies have attempted to define the term, with the United Nations Commission of Experts championing a meaning in their final report. Ethnic cleansing is a ‘purposeful policy designed by one ethnic or religious group to remove by violent and terror-inspiring means the civilian population of another ethnic or religious group from certain geographic areas.’

Whilst genocide and ethnic cleansing both describe heinous assaults on ethnic groups, it was vital to differentiate between the terms during the ICJ’s case of Jorgic v Germany.3 The International Criminal Tribunal for the former Yugoslavia (ICTY) surmised what the European Court of Human Rights quoted from the ICJ’s ruling of the case: ‘there are obvious similarities between a genocidal policy and the policy commonly known as “ethnic cleansing”. Yet, a clear distinction must be drawn between physical destruction and mere dissolution of a group. The 1 Convention on the Prevention and Punishment of the Crime of Genocide, opened for signature 9 December 1948, 78 UNTS 278 (entered into force 12 January 1951) art 2 (‘Genocide Convention’); Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 3 (entered into force 1 July 2002) (‘Rome Statute’).

2 ‘Ethnic Cleansing’, United Nations Office on Genocide Prevention and the Responsibility to Protec (Web Page).

3 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Judgment) [2007] ICJ Rep 43, 83 [190].

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expulsion of a group or part of a group does not in itself suffice to genocide.’4 The Rohingya People are classified as ‘stateless persons’ by the Government of Myanmar (GOM), however, are simultaneously categorised as illegal immigrants from Bangladesh. The GOM does not accept the Rohingya as they are illegal immigrants from Bangladesh, however, Bangladesh does not accept these people as they are not ‘citizens’. As Myanmar was a province of India before becoming its own State, the migration of the Rohingya People was customary and they were allowed to move freely between states. National legislation passed by Myanmar made it illegal for the Rohingya to migrate through India and Bangladesh after Myanmar declared its independence from Britain. Once this movement was made illegal, citizenship of the Rohingya People to Myanmar was rejected.

Aforementioned, ethnic cleansing is not considered a ‘crime’ under international law. This means that any conduct that would be considered ‘ethnic cleansing’ would have to classify itself under the crime of ‘genocide’ to be able to be prosecuted. If the conduct is ‘merely’ ethnic cleansing, then Myanmar escapes prosecution. If the conduct is considered genocide, then one would assume Myanmar is in direct breach of Article 2 of the Genocide Convention. Unfortunately, Myanmar has expressed a reservation toward ‘immunity from prosecution’, as outlined in Articles 4, 6 and 8 of the Convention. Myanmar is also not a signatory to the Rome Statute, meaning any conduct that meets the requirements to be investigated by the International Criminal Court (ICC) will not be examined by this measure of international law, as no jurisdiction exists.

Additionally, most of the brutalities committed are by the Tatmadaw, Myanmar’s official military force.

The United Nations Human Rights Council (UNHRC) was alerted to the severity of the issue, and through a Resolution were able to investigate and uncover further information about other atrocities. Allegations of ‘recent human rights violations by military and security forces, and abuses, in Myanmar, in particular, in Rakhine State, including but not limited to arbitrary detention, torture and inhuman treatment, rape and other forms of sexual violence, extrajudicial, summary or arbitrary killings, enforced disappearances, forced displacement and unlawful destruction of property…’ were explored.

The results of this ‘fact-finding’ mission discovered that

the Tatmadaw were performing ‘clearance operations’ of the Rohingya People.5 Many regimes fit the criteria for the crime of genocide as they intend to eradicate an entire ethnic group. Concerns whether such violence is considered ethnic cleansing surround the activities of attempting to remove the group from their State. Are the Tatmadaw trying to remove the Rohingya from their State or are they purposefully intending to murder them all to eradicate them?

Drawing from experience of other classified genocides, the former Yugoslavia and Rwanda genocides required the establishment of ad hoc tribunals to deal with the atrocities, as they were so significantly severe. The Rwandan genocide was explicitly declared a ‘genocide’, as over one million individuals were responsible for the killings. The entire State was so severely decimated that it was unequivocally labelled as the deliberate extermination of an ethnic group. This is juxtaposed with the Bosnian genocide in the former Yugoslavia, where the killings were considered to be both ‘ethnic cleansing’ and ‘genocide’ throughout the years, and became more ambiguous in definitively labelling the crimes. Both the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the ICJ have stated that for a crime to be considered ‘genocide’ and separate from ‘ethnic cleansing’, evidence of physical or biological destruction of a protected group must be present, as well as an additional factor of intent.

As the UN Report evidences, ‘the crimes in Rakhine State, and the manner in which they were perpetrated, are similar in nature, gravity and scope to those that have allowed genocidal intent to be established in other contexts.’ Therefore, in order for Myanmar to be in direct breach of the Genocide Convention, it must be decided whether Myanmar is still under the duty to conform to the Convention’s parameters. Unfortunately for the Rohingya people, either classification of genocide or ethnic cleansing will not be found with much help from the Myanmar Government. An outcry for the UN to step in and aid this crisis was met with significant opposition from both China and Russia who vetoed every potential option proposed to the Security Council.

Notably, China and Russia are allies of Myanmar, which essentially means that anyone who denies the Myanmar Government as authority will be met with persecution. It is until the UN changes their approach, will the Rohingya people be lifted out of their current state of limbo.

4 Prosecutor v Radislav Krstic (Judgement) (International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of Former Yugoslavia, Trial Chamber, Case No IT-98-33-T, 2 August 2001).

5 Nathan Thompson, ‘Myanmar: UN Fact-Finding Mission releases its full account of massive violations by military in Rakhine, Kachin and Shan States’, United Nations Human Rights Council (Feature Story).

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muls.org | 15

The Speech

We Love to Hate

W Leo Chang

ithin the history of speech, the concept of a right to free speech is a relatively new development. For thousands of years, the simple solution to nasty words was to incapacitate the speaker. However, with the development and organisation of large polities, limitations on speech began to take shape in a more official sense, and the concept of a general right to speech arose.

The Fight for Free Speech In the 5th century BC, Athens was a democracy.

Although her citizens had the right to make political representations to the government (isegoria: equal public speech to government), there was no general right to speak freely (parrhesia: all speech).1 Of these civil values, the former was seen as vital to the survival of the Athenian polity, while the merits of the latter were subject to fierce debate.

The line dividing isegoria and parrhesia is dramatically explored in one slice of the trial of Socrates, a philosopher on trial for speech crimes.

Although he was aware of the reputation of parrhesia, one of his defences drew upon its negative freedoms.

The words he spoke in private, he argued, ought not to be used against him in public.

The prosecution argued that Socrates was tacitly rejecting the system of democracy by hosting private political conversations instead of participating in the democratic government. Unlike parrhesia, isegoria was a positive freedom fundamentally tied to democracy.

The private nature of speech could not alter the severity of its content, as private actions would always affect society at large.

The jury found in favour of the prosecution, condemning Socrates to death. Soon after, the city of Athens was conquered by the Roman Republic, and it would be hundreds of years before the philosophical development of modern free speech.

John Stuart Mill, although born more than two millennia after Socrates in 1806, was a devout Hellenophile. But even as a lover of isegoria, he would be remembered more fondly as a partisan for parrhesia.

His argument, expounded in On Liberty, is fairly simple: (1) speech is the means by which a statement’s veracity is determined, so (2) any limitation on parrhesia undermines the search for truth, and thus (3) any motive for limiting parrhesia must be infallibly known.2 Paired with his belief that the novelties of science and philosophy lent their fields to eternal

1 Douglas Birkhead, ‘Muckraking Free Speech: I. F. Stone and the Trial of Socrates’ Communication Research (1989) 16(2) 295.

2 Nishi Shah, ‘Why Censorship is Self-Undermining: John Stuart Mill’s Neglected Argument for Free Speech’ Supplementary volume - Aristotelian Society (2021) 95(1) 80.

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nebulousness, this defence of parrhesia made it into the Constitution of the United States of America as the First Amendment. From here, thankfully, we enter the realm of law once more.

‘No law shall be made… abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble.’ With these words, parrhesia was established as a virtue in the newly enlightened Anglosphere. The central conflict in American law would centre on the prohibition of speech which posed a ‘clear and present danger’, and later ‘imminent lawless action’, in light of the Constitution.3 Australia, though born of the British Empire in the 19th century, possesses relatively fewer legal protections for freedom of speech. Freedom of speech, in the sense of parrhesia, is a mere common law right subject to abrogation through statute.4 Speech is frequently limited on the grounds of insult and obstruction. However, an implied freedom of political communication is present in the Constitution; or, by another name, isegoria.

This historical understanding and traditional division of the freedom of speech helps contextualise the rapidity and harshness of penalties relating to speech crimes in Australia. However, this zealousness on the part of Australian law helps to protect the vulnerable; as in this year, when the Victorian Department of Education was found to be liable for their failure to protect Jewish students from anti-Semitic vilification.

A question thus comes to the foreground: how do we determine what speech is unacceptable?

The Fight against Hate Speech Alongside Socrates’ defence on the grounds of privacy, he further denied the charges of blaspheming the pantheon and corrupting the youth on substantive grounds, claiming that he had rendered a good service upon the Athenians. The democratic government of Athens had brought about the death of thousands; Socrates merely refused to equate the good with the popular. These propositions were rebuffed by the prosecution, who had witnessed Socrates’ students institute a tyrannical government and kill hundreds of political enemies; corruption of the youth was no euphemism. Here, there was a fundamental disagreement on a matter of politics, particularly on the value of democracy. Politics took on a fundamentally

moral character, and with neither side willing to cede their case, violence entered the fray.

Mill’s proposition took the moral implications of speech one step further. To Mill, the nebulous natures of science and philosophy contributed to the unknowable nature of a grand complex morality. Rejecting the classical natural law approach, he developed the rightsbased system unique to liberalism. It was parrhesia alone, unbound from moral considerations, that served this rationalist philosophy.

However, despite his best efforts, Mill could not truly escape from the grasp of moral judgements; Mill considered life superior to death, and equality superior to inequality. An anti-suffragist or a Little Englander would have been considered proponents of a proto-hate speech by Mill, an ardent suffragist and imperialist.

The limitations and inherent biases of Mill’s position on speech were expressed in American law as that which inspired ‘imminent lawless action’. Later theories, in particular critical race theory, sought to further widen the net of rights; considering racist propaganda to constitute hate speech, distinct from moral parrhesia.5 What now?

Australia is stuck, caught in a Catch-22. To rely on the parrhesia-based mechanisms of speech is to respect an individual’s right to express themselves. But tolerating morally troubling views is to limit the speech of others, since their speech may be suppressed by fear. This extends to isegoria, since, as Athenian prosecutors and critical race theorists have pointed out, the individual is fundamentally political.

Then, the problem we are faced with is twofold: first, is there a common morality? And second, is it knowable? If either of these questions are answered with a no, unfettered political communication becomes impossible. The question of what speech is acceptable is reduced to a bigger-stick diplomacy.

The solution, then, must lie in that which Mill thought impossible. These questions are the key to understanding the distinction between free speech and hate speech, between good parrhesia and bad parrhesia.

The question of what constitutes these categories is a fundamentally moral one. It is time we found out what is good, side by side with our fellow man.

3 Thomas Healy, ‘The Justice Who Changed His Mind: Oliver Wendell Holmes, Jr., and the Story behind Abrams v. United States’ Journal of Supreme Court History (2014) 39(1) 41.

4 Katharine Gelber, ‘Norms, institutions and freedom of speech in the US, the UK and Australia’ Journal of Public Policy (2021) 41(2) 214.

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5 Mari J. Matsuda, ‘Public Response to Racist Speech: Considering the Victim’s Story’ (1989) 87(8) Michigan Law Review 2320.

muls.org | 17

The Disparity of Outcome for

Young Offenders in Minority Groups Simeon Levine

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he rule of law states that no one is above the law and that we are all equal before it.

This framework requires a legal system that is grounded in the principles of fairness and equality.

However, the criminal justice system’s response varies significantly for juvenile first-time offenders.

Given the same circumstances and the same offence, there are vastly contrasting outcomes between young offenders. Why? Membership of a minority group.

In Australia, the overrepresentation of Indigenous people within the criminal justice system continues to be a major issue, with Indigenous people accounting for 31.5% of the total prisoner population, despite their representing a mere 3.2%

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of Australian adults.1 This imbalance is at its worst amongst young offenders, with Indigenous youths (aged 10 to 17) being 26 times more likely to be in custody than their non-Indigenous counterparts.2 Although attempts to resolve this issue have focused on addressing economic and social disadvantages, family dysfunction, and low educational standards, ethnic differences in policing and judicial decision-making are having a much greater impact on the evident disparity in the incarceration of young Indigenous offenders in Australia.

In South Australia, juvenile apprehensions led to court pathways in 65% of cases involving Indigenous youth, but only 45% in nonindigenous cases.3 In Western Australia, convicted Indigenous offenders were incarcerated at a rate of 25%, compared to 16% for non-Indigenous offenders.

The differential selection hypothesis claims that minority offenders, such as Indigenous youths, receive more severe consequences from the criminal justice system due to a conscious or unconscious bias held by enforcement and judicial authorities. Although this is arguable once offenders have entered the court system, the pressing concern is the lack of initial diversionary methods offered to Indigenous youths. Indigenous young offenders are more likely to be prosecuted rather than cautioned by police, irrespective of any other personal or circumstantial characteristics.4 Moreover, in Queensland, Indigenous youth are almost three times

1 Australian Bureau of Statistics, Prisoners in Australia (Catalogue 4517.0, 24 February 2023); Australian Bureau of Statistics, Estimates of Aboriginal and Torres Strait Islander Australians (Catalogue 3238.0.55.001, 30 June 2021).

2 ‘Youth detention population in Australia 2022’, Australian Institute of Health and Welfare (Web Page, Last updated 13 December 2022).

3 Nina Papalia et al, ‘Disparities in Criminal Justice System Responses to First-Time Juvenile Offenders According to Indigenous Status’, (2019) 46(8) Criminal Justice and Behaviour 1067.

more likely to appear in court for their first offence.

This lack of diversion for Indigenous youth, especially for first-time offences, has significant consequences.

Formally entering the criminal justice system as a young offender leads to a greater potential for an individual to develop an official criminal record, which could limit the opportunities available to them.

Furthermore, this could expose young offenders to detention, which has destructive impacts on their well-being and increases the potential for recidivism.

Attempts should be made to limit the possibility of young offenders having to attend court, as mere attendance is an established risk factor for further criminal justice system contact.

The evident apprehension in applying diversionary practices to Indigenous young offenders may not reflect systemic racial discrimination, but it does indicate that the current system does not embody the appropriate principles of fairness or equality. This disparity contributes towards the subsequent Indigenous overrepresentation within Australia’s criminal justice system, which can have intergenerational consequences for young people.

Critics have acknowledged that concerns of judicial or enforcement officers may relate to a lack of diversionary options in remote areas or perceptions of diversionary methods causing increased criminogenic risk when deciding to formally process Indigenous youth. Moreover, the strained relationship between police and Indigenous communities (as highlighted in the Royal Commission into Aboriginal Deaths in Custody) should also be noted in contributing towards negative encounters denying the consideration of diversionary means. These concerns do not justify the present disparity, but rather, they highlight areas that can be improved to reduce any potential for racial discrimination to disrupt the practice of fairness and equality within the criminal justice system.

Membership of a minority group must not interfere with the achievement of justice in Australia. For Indigenous youths, their minority status continues to inhibit the role of diversionary programs in limiting their interactions with the criminal justice system.

Further public policy and legislative efforts are required to prevent this initial court contact, by ensuring that diversionary methods are prioritised in all situations for all people.

The theory of equality is only useful when it is accurately reflected in practice.

4 Don Weatherburn and Brendan Thomas, ‘The influence of Indigenous status on the issue of police cautions’, (2022) 56(2-3) Journal of Criminology 253.

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muls.org | 19

T

The Great Dividing Range within the

Australian Constitution Tracey Adams

here is a huge crevice within the arid plains of Australia and the opals of hope are sinking slowly within the cracks of its red soil. The Great Dividing Range within the Australian Constitution has unmarked territories and faults, which have been mapped by hysterical rhetoric on social media. Our ‘fair go’ attitude has been stifled by spin doctors. Conspiracy theories, opinions and fears, mostly spawning out of social media, have turned the promise of an Advance Australia Fair view of our Constitution into a modern-day frontier war.

Australia has seemingly formed brigades of the ‘elite’ versus ‘non-elite’, the ‘dinosaurs’ versus ‘Generation Z’, and the ‘racists’ versus ‘humanists’. Class consciousness has shown itself and the divide has never been larger.

Meanwhile, First Nation people’s issues and strengths are dismissed. But it’s never too late for reformation and healing to occur within our barren desert plateaus and for a subterranean mineral wealth of hope to rise and drink from our shores of contrast and diversity.

Our advances in recognising Australia’s First Nations people were never clearer than when we navigated our 20 | The Brief

way out of the murky ‘White Australia era’ in 1967 via a constitutional referendum.1 It was our chance to stand up as an advanced nation, remove the exclusion of Aboriginal and Torres Strait Islander people and expand the power of the Parliament to make laws in relation to them. Our 2023 constitutional referendum had the chance to advance our nation even further and validate the self-determination of Australia’s First Nations people via their voice in relation to laws that affected them. The Hon Robert French AC, former Chief Justice of the High Court of Australia, stated at a recent National Press Club address, ‘...[it] is a means of better addressing the challenges of apparently intractable social and economic disadvantage.’2 However, our latest referendum raised issues, including discourse that the amendment was ‘racist’ and offered ‘special treatment towards Aboriginal and Torres Strait Islander people’.

It appeared the ship was missed by many to recognise 1 Matthew Thomas, ‘The 1967 Referendum’, Parliament of Australia (Web Page, 25 May 2017).

2 ABC News (Australia), ‘IN FULL: Robert French speaks at National Press Club about the Voice in the Constitution’ (Youtube, 6 October 2023).

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that the Voice was to provide a mechanism within the Constitution for First Nations people to be recognised, for a racist history found within the Constitution to be corrected, and for First Nations people to finally have an input into the laws and decisions that are made about them. People expressed their fears on social media and were certain the Voice could make laws rather than make representations to the Parliament and the Executive Government of the Commonwealth. Robert French AC further addressed these fears: ‘On no view can they give rise to any constitutional legal obligation for the Parliament or the Executive to accept or be bound by such submissions or advice.’ However, the deep-seated fears and tectonic rumblings, fuelled by mainstream and social media commentary, continued to shake and widen the converging plates within Australia’s cataclysmic political landscape.

Australia has, by all accounts, made huge leaps in cultural respect towards our First Nations people. I clearly remember sitting in class during the 70s and only learning about white history, including explorers such as Dirk Hartog and James Cook. Clearly, our education and attitudes have advanced, and the deafening ‘silence’ has given way to acknowledgment of the First Nations people within our workspaces and schools. However, it is easy to ‘tick a box’ and attend educational gatherings but do we actually expand our knowledge and spirit through one-on-one conversations? Whether you are a practicing lawyer or serving the community, these connections can only enrich your life. Too often there is a focus on the ‘crisis’ within the Indigenous culture rather than their strengths. Robert French AC, noted, ‘I don’t agree with the apparently sweeping assertion of a crisis of Indigenous social and cultural disintegration.

There are many challenging issues which have to be dealt with, but there is also much strength and strength of culture among first peoples and their leaders.’

I personally witnessed this strength of culture when I produced a theatre production a decade ago. I cast ‘Billy’ as a ‘didgeridoo playing, Aboriginal man in his late 40s’, and he introduced me to the Indigenous world of theatrical and film directors including Wayne Blair and Leah Purcell. I was also introduced to actors and elders including Trevor Jamieson, Uncle Jack Charles and Uncle Lyall Munro. I was told stories about the history of the First Nations people and what was important to their culture. They told me about the extreme poverty most people had experienced within their Indigenous community, and how the fruits of Indigenous-centred programmes weren’t necessarily reaching the people at a grassroots level. Their fear Ed.3 2023

of police was starkly realised at a party with Billy and his friends at Redfern Towers when the police knocked on his door. I remember the men holding a ‘shame stance’3 and their submissive fear was palpable. It made me want to learn more about their intergenerational fear, including the Royal Commission into Aboriginal Deaths in Custody and its continued crisis.4 However, I also felt a powerful bond within the community. The door was always open, people would turn up for a bite to eat, and this would be reciprocated. This sense of community drew me in and made me see clearly what was missing within my own culture, and how lonely we actually are. I yearned for someone to pop over unannounced to have a yarn.

From my personal perspective, the concept of having input from Indigenous voices is similar to the NSW Court’s Walama List, which was established because the courts recognized that Indigenous people had a much higher incarceration rate and the existing court structure had to change. The court has elders and other Indigenous support mechanisms to ensure the court process is as supportive as possible within the concept of jurisprudence therapy.5 This is a fine example of our court system flexibly adopting a process that has responded to recommendations as a result of deaths in custody, acknowledges the experiences of First Nations people and intergenerational trauma, and may potentially reduce the incarceration rate.

The combustion of the ‘no’ vote within a fire that burned quickly and rapidly within the 2023 referendum, shows there are issues within the central depression of Australia’s political rhetoric landscape that need to be explored. Our democracy needs to appreciate differences of opinion, and the judgmentalism of the progressive or ‘passivity’ and ‘silence’ should not be part of its topography. The First Nations people have always shown resilience with the historical storms of control and shame, and it’s time we sail together in harmony with this rich culture.

As practising lawyers, advocates, or people serving our community, we need to build our knowledge and enrich our lives by connecting and building new friendships with people who identify as First Nations.

We can connect by joining an Aboriginal Legal Service, a specialist state-wide community legal centre that runs Aboriginal programs, or by simply having a yarn.

This may teach us deep lessons about ourselves.

3 Evolve Communities, ‘Ask Aunty - What is the meaning of ‘Shame’ in Aboriginal Culture?’ (Youtube, 29 June 2022).

4 Amanda Porter, ‘Quantifying an Australian Crisis: Black Deaths in Custody’, Pursuit (Web Page, 13 April 2023).

5 Judge Dina Yehia, ‘Walama List Factsheet’, Aboriginal Affairs (Fact Sheet, 2021).

muls.org | 21

International Protections Against the Forced or Coerced Sterilisation of Refugee or Asylum Seeker Women

I

Zoe Gleeson *as adapted from author’s submission at Macquarie University, Sydney

nternational law, as a soft legal system, can leave a number of questions unanswered. It is these unanswered queries that necessitate the consistent reassessment of international law’s effectiveness. Whilst the subject of refugees and asylum seekers is topical, the forced or coerced sterilisation of Refugee or Asylum Seeker Women (‘ROASW’) demands our focus.1 Examinations of current mechanisms for protection and their potential implementation for further recognition of rights are yet to be fully explored.

The Vulnerable Group While there is a sustained history of forced and/or coerced sterilisation of women worldwide, ROASW are a specific targeted marginalised group that this practice is occurring on. This issue has come to the forefront for international law policymakers within the last decade or so. Justifications for this practice usually stem from cultural perspectives and from medical and public health viewpoints. The problem lies with the ‘forced’ or ‘coerced’ component. Not only does this practice breach fundamental human rights; the right to autonomy over one’s reproductive choices, but it also suggests that an individual does not have the right to be ‘fully human’.

1 Zoe Gleeson, ‘Forced Sterilisation and Refugee/Asylum Seeking Women’ (Research Policy Proposal, Faculty of Law, Macquarie University, 3 September 2021) 1 (‘Gleeson’).

22 | The Brief

Issues surrounding consent also arise where consent was obtained under duress, or where consent was not obtained at all.2 Although most secular countries wholeheartedly consider forced and coerced sterilisation of any woman a heinous form of torture that should be outlawed globally, other countries consider that such persecutory practices aid in the best interests of women. Other governments argue that it is for the ‘good of the state’ and the prevention of sexual abuse.3 International ROASW and human rights groups remain resolutely against forced or coerced sterilisation as it is a clear human rights violation.

International Legislation Significantly, there are international conventions that exist as protections in response to the forced and/or coerced sterilisation of ROASW.4 The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) outlines that forced sterilisation 2 Open Society Foundations, ‘Against Her Will: Forced and Coerced Sterilization of Women Worldwide’ (Report, 4 October 2011) 8 (‘Open Society Foundations’).

3 Carolyn Frohmader, Submission to the Australian Civil Society Delegation to the 53rd Session of the Committee Against Torture, Fact Sheet: Forced Sterilization, November 2014, 1 [8]; Gleeson (n 1).

4 Juan E Méndez, Report of the Special Rapporteur on Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, GA Res 16/23, 22nd sess, Agenda Item 3, UN Doc A/HRC/22/53 (1 February 2013) [8] (‘Torture’); Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987) art 1 (‘CAT’).

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constitutes ‘torture’. The United Nations Human Rights Committee (UNHRC) echoes this definition.

Notably, ‘torture’ can also occur ‘even if there is no improper purpose or intent to cause severe pain and suffering.’ The delineation is explicit when this practice is being practised as a cultural tradition. Importantly, international organisations such as the World Medical Association have authored ethical limitations regarding such practices. The International Federation of Gynecology and Obstetrics published guidelines outlining that ‘only women themselves can give ethically valid consent to their own sterilisation.’5 Consequently, this practice breaches treaties, conventions, and international medical ethics.

Another treaty for examination is the International Covenant on Civil and Political Rights (ICCPR), where even the simplest interference with one’s privacy and family is considered a violation of human rights. The ICCPR mandates the protection of all persons from arbitrary or unlawful interference with privacy and family, the right to found a family on the basis of consent, and recognition of all persons before the law.

Distinctively, the Convention on the Elimination of all forms of Discrimination against Women (CEDAW) discusses protections specifically intended for women. The relevant protections are intended to protect families and access to health care services. The International Covenant on Economic, Social and Cultural Rights (ICESCR), mandates the protection and assistance to the establishment of family for all persons. Additionally, the UNHRC ‘has requested that countries report on specific measures they have taken to combat this practice.’ Parties to these conventions are required to implement the protections outlined within these conventions.

Whilst international law and the Refugee Convention state that people can apply for asylum if they can demonstrate a well-founded fear of persecution due to race, religion, nationality, membership of a particular social group or political opinion, it is poignant to note that gender is not included as a category. The UNHCR Guidelines on International Protection state that: ‘a particular social group is a group of persons who share a common characteristic other than their risk of being persecuted, or who are perceived as a group by society.

The characteristics will often be one which is innate, unchangeable, or which is otherwise fundamental to identity, conscience or the exercise of one’s human rights.’

5 International Federation of Gynecology and Obstetrics (FIGO), ‘FIGO Guidelines 2011: Female Contraceptive Sterilisation’ (Guideline, June 2011) 7.

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Recently, there have been arguments for the category of ‘membership of a particular social group’ to include gender and sexuality as subcategories under this heading. Gendered expectations, non-conforming gender identities, and sexual orientation are further classifications under this umbrella.

Due to all of these treaties and conventions being international law mechanisms, they are only regulated when states become party to them. Even then, if they are not codified within that state’s domestic law, there is not much the United Nations (UN) or International Court of Justice (ICJ) can do except for imposing sanctions upon the offending state/s. Therefore, ‘soft law’ approaches of international law, including the mechanisms aforementioned, fail to adequately protect ROASW from this persecutory practice.

The US and China’s Influence The US frames forced and/or coerced sterilisation of ROASW as an ‘immigrant problem’ and financially pressures other countries that fail to address the issue.

The US also takes a protective stance on women’s rights and ‘draws a distinction between itself and China (and its coercive population control practices) as an oppressor of women’s rights.’ The US has also amended their Immigration and Nationality Act so that it defines China’s persecution of forced and/or coerced sterilisation practices as a potential reason for ROASW to claim asylum or refugee status. Notably, this claim does not allow for unmarried women, or women who have undergone ‘less severe’ versions of the practice.

The assessment processes of ROASW ask whether the individual is ‘worthy’ enough to resettle in a different country, thus breaking all ties with their home country. Nayak examines US regulations through the lens of the victim and considers victim worthiness and applies victim frameworks to refugees and asylum seekers. The author weighs the issues of immigration restriction against human rights obligations that the USA has ratified, to protect anyone who is ‘worthy’ of receiving asylum or refuge.

Conclusion As refugees and asylum seekers are at the forefront of agendas worldwide, focus needs to be shifted onto serious issues experienced by ROASW immediately.

Forced and coerced sterilisation of ROASW not only completely removes an individual’s agency, but it constitutes severe violence and abuse under international law and should be regulated further in countries that are lacking effective policy. muls.org | 23

‘Vastly Disproportionate’:

NSW Police’s Interactions with Indigenous People and Use of Force

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Sujal Chadha

he relationship between law enforcement agencies and Indigenous communities in Australia has long been a contentious and sensitive issue. In New South Wales, the police’s interactions with Indigenous people have been dissected for decades. Recently, the Redfern Legal Centre (‘RLC’) revealed alarming statistics indicating ‘vastly disproportionate rates’ of use of force against Indigenous people. This article delves into these troubling revelations through a critical examination of police searches, arrests, and detainment procedures, particularly the use of force during these stages of police interaction. This article seeks to understand the root causes, implications, and potential avenues for reform.

Historical Context Understanding the present situation requires acknowledgement of the historical context that has shaped the relationship between Indigenous people and NSW law enforcement. From the early days of 24 | The Brief

European colonisation, Indigenous communities have faced dispossession, discrimination, and systemic marginalisation. The police have often been seen as agents of colonial authority, further contributing to the distrust between law enforcement and Indigenous Australians.1 The 1991 Royal Commission into Aboriginal Deaths in Custody (‘Commission’) was a turning point in the nation’s recognition of these issues. The Commission made numerous recommendations aimed at reducing the high rates of Indigenous deaths in custody and addressing the systemic problems within the criminal justice system. However, many of these recommendations were never fully implemented, leading to continued mistrust and frustration toward law enforcement within Indigenous communities. The disproportionate rates of incarceration and use of force 1 Joshua Green, ‘The impacts of control, racism, and colonialism on contemporary Aboriginal-police relations’ (2019) 5(1) NEW: Emerging Scholars in Australian Indigenous Studies; Jens Korff, ‘Aboriginal-police relations’ Creative Spirits (Web Page, Last updated 15 September 2023); Paul Daley, ‘Police interactions with Aboriginal people are scarred

by Australia’s violent frontier history’, The Guardian (News Article, 19 March 2022).

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against Indigenous people are well-documented, but the recent findings by the RLC paint a disheartening picture of the current situation.

According to the reports released by the RLC,2 Indigenous individuals in NSW are significantly more likely to be subjected to force by the police compared to their non-Indigenous counterparts. These findings come in the wake of growing calls for police reform worldwide, with a particular focus on improving relations between law enforcement agencies and marginalized communities.

Revelations from Influential Sources The RLC’s report is a wake-up call, highlighting the urgent need for change in how we advocate for Indigenous rights and social justice in Australia.

In a recent report, the RLC highlighted ‘vastly disproportionate rates’ of use of force by the NSW Police against Indigenous people, indicating a pattern of disproportionate targeting and aggression towards the Indigenous community.

This includes incidents such as physical assault and using batons, tasers, pepper spray, and firearms. The over-representation of Indigenous individuals in these statistics highlights the urgent need for reforms within the NSW Police to address these disparities and ensure fair and just treatment for all. The report outlined that Indigenous people in NSW are subjected to the use of force by police at a rate 15 times higher than nonIndigenous individuals.3 The report from the Office of the Aboriginal and Torres Strait Islander Social Justice Commissioner (as part of the Australian Human Rights Commission) also emphasized that Indigenous women are particularly vulnerable to domestic violence and law enforcement is unable to help them due to their lack of cultural understanding and sensitivity which is a grave concern considering the impact of biased police interactions on the health and well-being of Indigenous communities.4 A report by UNSW further points out that during police search interactions, Indigenous individuals are more likely to be subjected to harsher searches compared to non-Indigenous individuals.5

2 ‘Data shows NSW police use force against First Nations people at “vastly disproportionate rate”’, Redfern Legal Centre (Press Release, 1 August 2023); Christopher Knaus, ‘NSW police use force against Indigenous Australians at drastically disproportionate rate, data shows’, The Guardian (News Article, 31 July 2023).

3 ‘First Nations People Bear the Brunt of NSW Police Use of Force’, Redfern Legal Centre (Media Brief, 31 July 2023); Knaus (n 3).

4 Office of the Aboriginal and Torres Strait Islander Social Justice Commissioner, ‘Indigenous Deaths in Custody 1989-1996’, (Final Report, 1 January 1996) Chapter 6.

5 Kay Harrison, ‘Excessive police power causes egregious harm for First Nations and other young people’, UNSW Sydney (Article, 23 May 2023).

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All these findings emphasise the need for greater transparency and accountability within the NSW Police.

The use of body-worn cameras, for instance, could be a potential tool to provide transparency and accountability during police interactions when used correctly during the execution of their duties. Additionally, improving data collection and reporting mechanisms to better understand the extent of the issue and implement solutions would be beneficial to further enforce NSW Police to be more accountable for their actions.

Understanding the Disproportionate Rates of Use of Force The staggering rates of use of force against Indigenous people in NSW have raised several important questions about the factors contributing to this disparity. These rates are a result of years of different types of trauma inflicted upon Indigenous people such as historical trauma of dispossession and discrimination; a lack of cultural understanding from policymakers and law enforcement; and an implicitly biased viewpoint of the law enforcement which can affect how they interact with Indigenous people resulting in over-policing of areas where there is a concentrated Indigenous population. These factors result in Indigenous people facing even more socio-economic issues, as this lack of understanding and bias can serve to further isolate Indigenous people in wider society.

These disproportionately high rates of use of force against Indigenous people have far-reaching implications, not only for the affected communities but also for broader society and law enforcement. This type of continued disparity can sow further distrust in law enforcement agencies amongst Indigenous communities, making it harder to resolve and prevent crimes in these communities. Another implication is inflicting longlasting physical, emotional, and psychological effects on individuals, families, and communities, resulting in a perpetual cycle of distrust and fear, causing further strains in the relationship between police and Indigenous people. Furthermore, continued use of excessive force is a breach of ethical, legal, and human rights that are established. Indigenous people have the same rights as any other Australian citizens and should not be subjected to discrimination or brutality.

The Need for Reform Addressing the deeply ingrained issues within the NSW Police Force requires comprehensive and sustained reform efforts. First and foremost, there needs to be a commitment to promoting cultural understanding and muls.org | 25

sensitivity and resorting to de-escalation techniques when dealing with Indigenous individuals. Mandatory training and education programs aimed at increasing awareness of Indigenous cultures, histories, and perspectives are crucial to bridging the gap, and fostering trust and more empathetic interactions. This training should also address the implicit biases that may affect police officer’s interactions.

In addition, there is a need for accurate and detailed data collection regarding use-of-force incidents. This data can then be used to identify trends, develop targeted interventions, and hold officers accountable for their actions. Establishing mechanisms like this for accountability and oversight is paramount to developing a trusting relationship between Indigenous community leaders and law enforcement organizations.

Furthermore, community engagement and collaboration are vital components of reform as they can help build positive relationships between police and Indigenous communities. Involving Indigenous people in policy development and decision-making processes can help address the specific needs, concerns, and experiences of the Indigenous population in the development of trust-building initiatives. Officers who are familiar with the communities they serve are better equipped to respond effectively and address concerns in a nonconfrontational manner.

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Another way we can see reform happening is through restorative justice programs. By exploring restorative justice programs that are specific to Indigenous people, we can provide an alternative to traditional punitive measures. These programs would aim to repair harm, promote reconciliation, and involve the community in the resolution process.

Further, advocacy for legal reforms such as changes to the arrest and detainment procedures, can help reduce unnecessary interactions with the criminal justice system. Policymakers must prioritise diversion and rehabilitation programs and alternative measures to incarceration for minor offences.

Conclusion The revelations of vastly disproportionate rates of use of force against Indigenous people by the NSW Police, as uncovered by the RLC, underscore the urgent need for systemic reforms. To ensure fair treatment and justice for Indigenous Australians, it is imperative to address historical injustices and biased policing practices. By implementing comprehensive reforms that focus on cultural competency, accountability, and community engagement, we can move toward a future where Indigenous people are treated with the respect and dignity they deserve.

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Admissions of a Law Student

Should We Use AI? Rachel Justic

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W

hen we were in high school, most of us did not have access to AI software such as ChatGPT. For those of us who did, it had the potential to be helpful, but we did not know how to use it effectively. I found the transition into university difficult as I was used to the familiarity of high school — I was hit like a truck with the workload.

The amount of readings, lectures, and independent studies required in a law degree was a shock and it was difficult to keep up with it all.

The use of AI really kicked off in my first year; not only was it able to write whole essays, but AI could read through academic papers and summarise them into concise notes. What starts as pushing back a single reading to the next week’s ‘to-do list’ builds up quickly, and so summarising my notes became a real quick fix to get me back on track. For someone who was trying to balance studies, working, and having a social life, this was the solution. Within a couple of hours, I had gone from being six weeks behind on readings to seemingly being up to date. However, when it came to that midsemester essay writing period, I struggled to understand what I needed to write about. These summarised notes missed crucial parts of information that left my knowledge with gaps. However, just because there are limitations to using AI, it doesn’t mean that it can’t be helpful in some capacity.

In writing assignments, AI can be beneficial in providing initial guidance. A lot of the time we receive an assignment and become incredibly overwhelmed, not knowing where to start. Although at this stage, AI does not seem to be AGLC4 compliant, the tool recently passed four different law exams at the University of Minnesota, performing at C+ average, which while not perfect, is a passing mark that ultimately outranks many students.1 Further, ‘Law ChatGPT’ has now emerged, able to ‘generate high-quality legal text output that is both accurate and natural-sounding’.2 The platform allows you to produce legal documents within a matter of seconds and even allows the user to select the country of their jurisdiction to ensure the content produced is suitable.

Further, AI can ensure that grammar and tone is correct, and dependent on the instructions that you’ve given, the software can ensure that the reading level is that of a particular demographic. As a student, losing marks for your analysis being incorrect is difficult to 1 Sam McKeith, ChatGPT is putting the future of grad lawyers under the microscope (Web Page, 23 March 2023).

2 Law ChatGPT (Web Page).

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handle, but losing marks for simple grammar issues is arguably more disappointing.

While most of us have used ChatGPT by now, I think I can speak for a large majority of students when I say we’ve been scared to use it for assignments. We’ve all heard the horror stories (and I don’t use that word lightly) of people using the software for the assignments and being caught for cheating. While not necessarily illegal, students who have cases of academic misconduct against them run the risk of being refused admission as lawyers.3 The high risk and low reward of plagiarising an essay often makes us students overly cautious, avoiding the software altogether. I think that plagiarism has been something that markers have been harsh about for a long time, but now that ChatGPT is used in a more widespread fashion, there does seem to have been a strengthening in how vigilant markers are on plagiarism.

As someone who has never been called out for plagiarism (fingers crossed moving forward), I think I have mastered the art of using AI as much as I can to gain the most benefit but without crossing the line for it to become plagiarism. My key piece of advice that I have in this regard is to not depend on the software too heavily and to really understand that it does only have a base level understanding of what you need to write about. Again, although it passed Michigan law exams, it was only able to pass four exams, and even then, it barely scraped by. AI provides information by recognising patterns and learning from them, and so a lot of the time when essay questions haven’t been asked before, or there’s a hypothetical scenario that isn’t reproduced anywhere, it can become difficult for the software to understand what is being asked of it. Often there will be phrases that the software understands, and so it focuses on these without answering all parts of the question. Hence, if you depend on the software wholly, then often you focus on the wrong parts of questions and lose marks in terms of breadth.

At the end of the day, the avoidance of the software altogether out of fear of plagiarism means you are missing out on an incredibly time-saving tool. AI has incredible benefits if you know how to use it effectively.

However, to genuinely succeed at law school, it is important to ensure that we rely on independent research over AI. It is only then that we can utilise the effectiveness of the tool while also ensuring that we are absorbing information. This, in turn, will allow us to become effective lawyers.

3 Ugur Nedim, ‘Lawyer struck off for cheating during uni’, Sydney Criminal Lawyers (Web Page, 8 August 2015)

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A Brief Review

‘The Wigs’ Grace Drinan

A

iming to communicate to a broader audience what the law is and how it ought to be, the podcast ‘The Wigs’ was created in 2019 by three practising barristers, Felicity Graham, Stephen Lawrence, and Emmanuel Keryasharian, alongside host Jim Minns. The podcast is an informative panel discussing an array of legal issues and concepts in an accessible manner for practising lawyers, law students, and lay people alike.

Published in May 2023, ‘Kathleen Folbigg – serial killer or grave miscarriage of justice?’ is an episode that I found to be thought-provoking and educational. The hosts lay out a brief overview of the facts of the case; namely, the death of Folbigg’s 4 children in the late 1980s and early 1990s, each of whom died between 19 days and 18 months of their birth, and the imprisonment of Folbigg in 2003 for their deaths. There was no physical evidence of fatal injuries on the children. They then discuss the two inquiries that were conducted into the deaths in 2018 and 2022, due to doubt that had been raised regarding Folbigg’s guilt. This was due to a genetic finding in two of the children, predisposing them to fatal cardiac events which would explain their sudden deaths. This finding was not available at the time Folbigg was convicted in 2003, causing doubt as to whether all four of Folbigg’s children actually died of natural cases. Folbigg was eventually pardoned in June 2023 on the basis of this finding. The episode does not

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discuss all the facts of the case in detail, however, due to the prolific media coverage about this case, this isn’t necessarily a limitation of the podcast.

The strength of this podcast lies in the discussion about principles in the criminal justice system that should undergo reform. In an interview with Dr Robert Cavanagh, the barrister acting for Folbigg, he provides an interesting commentary, specifically as it relates to his condemnation of the use of Meadow’s law in Folbigg’s trial, and its use in the justice system at large.

As Dr Cavanagh explains, Meadow’s law treats infant deaths in one family according to the principle that ‘one is a tragedy, two is suspicious, and three is murder.’

The doctrine has been criticised globally, because it fails to take into account genetic conditions, such as that in Folbigg’s case, which may change the statistical probability of multiple infant deaths. However, as Dr Cavanagh points out, NSW has been slow to condemn the principle, prompting one to consider the ways in which the justice system needs to be updated to ensure cases are prosecuted based on scientific developments.

Although the episode does not spend a long time detailing the facts of Folbigg’s case, the prolific media reports provide such context so this absence does not detract from the podcast. The discussion the hosts had with Dr Cavanagh about the place of outdated legal concepts in our justice system and their effect was an informative and important one.

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The Law Student

The Boxer Semper Ubi Sub Ubi Issue 304, 2023

Editor's Welcome Welcome back to Issue 304 of The Boxer for 2023! Our circulation numbers have continued to increase since our switch to this daily format. In this issue, we'll cover the latest news, letters, and a few local postings. Hope you enjoy!

Letters to the Editor Dear Editor, P. Sincerely, Dr. Inker.

News Ibid most frequently cited scholar of 2022 MELBOURNE — A meta-study commissioned by the University of Melbourne has found that Ibid was the most cited scholar in peerreviewed legal articles of 2022. A controversial figure, the originality of his work has been disputed in many fields. Ibid cannot be reached for comment.

Constitutional grammar referendum date revealed CANBERRA — Prime Minister Anthony Albanese has announced that a constitutional referendum on grammatical correctness will occur in January. The 418 proposals include eliminating Oxford commas and replacing all semi-colons with em-dashes. Independent Bob Katter is further petitioning for the removal of the letter H.

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NSW Supreme court rules SYDNEY — The Supreme Court of NSW has found that it rules. The judgement of Bell CJ expressed ‘a sense of relief ’ in having 'stated for the record, once and for all, how cool we are.' The Supreme Court of Queensland is seeking to challenge this finding in the High Court, citing State of Origin scores.

'Funny accents' invalidate NZ precedent in Australia.

CANBERRA — A recent ruling of the High Court has invalidated the use of New Zealand case law on the basis of 'funny accents'. The landmark decision was praised by the Law Council of Australia.

The Consulate-General of New Zealand has since lodged an incomprehensible complaint.

They get degrees! ~ Ed Dear Editor, H. Yours, Not Bob Katter.

Classifieds PERSONAL — 23, studying law/commerce at MQ, on stable Centrelink payments. Seeking acquaintance for long-term relationship. Address: 18WW, Sleeping Pod A. URGENT ADVICE NEEDED: how to escape from metro tracks. Rapid response preferred.

Platform 2, Macquarie University Metro Station.

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