The Brief Edition 1 2024

Macquarie University Law Society Magazine Edition 1, 2024 (Volume 30)

THROUGH A GLASS,

DARKLY

MULS Semester 1 Events

Date

Portfolio

12/02/24 – 20/02/24

Ed

First Year Guide Release

12/02/24

P

Competitions Guide Release

12/02/24

P

Witness Examination Demo

14/02/24

Ed

Moot Demo

15/02/24

Ed

Exchange Seminar

16/02/24

Ed

Introduction to Law Panel

19/02/24

Ed

First Year Afternoon Tea

20/02/24

Ed

Competitions Expo

28/02/24

C

MULS Trivia Night

29/02/24

Ev

International Women’s Day Panel

08/03/24

SJ

15/03/24 – 17/03/24

Ev

21/03/24

Ev

Junior Client Interview Competition

TBC

C

Negotiations Competition

TBC

C

International Humanitarian Law Moot

TBC

C

AGLC4 and Research Workshop

TBC

Ed

Merchandise Release

TBC

M

Criminal Law Moot

TBC

C

MULS Gala Day

April

Ev

Law Cruise

03/05/24

Ev

Clerkship Guide Release

Mid-May

P

Resume and Cover Letter Guide Release

Mid-May

P

Firm Presentations and Coffee Catch-up

May

CE

Late May

CE

TBC

C

Early June

P

Law Reform Review Panel

June

SJ

The Brief Edition 2 Release

June

P

Juris Doctor and Postgraduate Careers Panel (Online)

TBC

JD

O-Week

First Year Law Camp Start of Semester Drinks 1

Clerkship Fair Paper Presentation The Almanac Edition 1 Release

C: Competition CE: Career Engagement Ed: Education Ev: Event JD: Juris Doctor M: Marketing P: Publications SJ: Social Justice

Contents In Context

6

What’s New in the Law? NZYQ and the Bridging Visas Bill 2023 (Cth) The Unfamiliar Responsibilities: Family Law Amendment Act 2023 (Cth)

8

Social Justice Corner Neglecting the Neglected Addressing the Australian Youth Incarceration Crisis

Sharni Selzer

9

Under the Radar Shattered Trust Whistleblowers and Governmental Protections

Lex Takhar

10

Devil’s Advocate Do elected officials waive their right to a private life?

Bradley Cagauan Amy Scott

Rhys George Nirvana Prasad

Features

12

Feature Article Unbottling Royalties PepsiCo, the ATO, and Diverted Profits

Arnav Gandhi

14

A Brief Conversation The Origins of Procedural Fairness: or, How to Save a Lawyer’s Soul Featuring the Rev Richard Waddell JCL

Leo Chang

18

Feature Article A Spectrum of Shadows Australian Immigration Laws and their Impact on the Stateless

Emma Horgan

20

Feature Article Too Many Laws?

The Concept and Opacity of ‘Red Tape’

Emmy Phung

Out of Context

23

Inadmissible Beyond the Gavel: The Media and the Truth

Makayla Nassar

24

A Brief Review A Review of The Truth Hurts by Andrew Boe

Bradley Cagauan

25

Editorial A Condemnation of The Boxer and Related Materials

Leo Chang

26

De Minimis The Law Student (Discipulus Legis) Observed

Anya Maclure

26

Lawtime Poems Medius Terra

Edition 1 2024

Sze Chan

Through a Glass, Darkly | 3

Welcomes and Credits

Editor’s Welcome In his first letter to the fledgling Christian movement in Corinth, Saint Paul castigates the young congregation.

They are financially abusive, they are vengeful, and they copulate with their own mothers. After hundreds of years of Roman colonisation, the Corinthians have become a decadent and broken people. Paul, to convince these people of their dignity, exalts the glory of true love. True love is patient, he says. True love is kind. It does not envy; it does not boast.

But, Paul continues, love is a mystery. We cannot fully know its origin. Βλέπομεν γὰρ ἄρτι δι' ἐσόπτρου ἐν αἰνίγματι — for until we can see the source of love, face to face, we can only see through a glass, darkly. Anything that stems from love; morals, truths, our deepest desires reflect the greater mystery of love. Indeed, the mystery of why we govern and make laws is itself part of this mystery.

For as long as this mystery exists, there will be those who take advantage of it. Whether out of recklessness or out of malice; taxes have been avoided and minimised (p.12), the writ of habeas corpus has been suspended in a number of immigration cases (p.18), and excessive legislation has confused millions (p.20).

And yet, there will be those who struggle valiantly for its protection. Novel developments in the law change our nation (p.6), children face discrimination in the legal world (p.8), whistleblowers seek refuge in the government’s protection (p.9), and our politicians’ need for privacy remains contentious (p.10). It is our role to rise to the occasion.

4 | The Brief

In this edition, we are fortunate enough to host the Rev Richard Waddell JCL as a guest contributor. He discusses the secular and religious origins of procedural justice, drawing upon his twenty-two years of serving the Victorian Bar and his experience as a canon lawyer of the Catholic Church. The background and development of these human rights are riveting and made palatable with the help of a steadfast guide.

I would like to thank, in no particular order: the litany of writers and subeditors who have contributed to this edition of The Brief; President Mikaela Mariano and my boss Jordan Lau, for their unceasing assistance in leading this effort to the finish line; our designer Nathan Li, whose design sensibilities are matched only by the unreasonableness of my demands; Lachlan Cicurel and Serena Olatona, who kept me sane during review; and to all of our readers for their support (that’s you)! We hope you all enjoy this edition of The Brief!

All is not fair in love and law. Let us find out why in the only way we know how: through a glass, darkly.

Leo Chang Editor-in-Chief, The Brief

Annotated and footnoted versions of the articles in this edition will be published later this year on The Brief Online.

Edition 1 2024

President’s Welcome Welcome to the first edition of The Brief for 2024!

As the tapestry of law continues to weave its threads towards a more inclusive, culturally aware, and socially equitable society, the inherent complexity of its fabric often renders it enigmatic. The elusive nature of law resembles peering through a murky, obscure glass. Despite its presumed role in fostering clarity and comprehension, the outcome occasionally veers paradoxically, presenting an intricate puzzle. This intricacy manifests itself in theoretical constructs and practical applications, whether in safeguarding specific demographics or in the pursuit of accountability.

Reflecting on this theme, John Locke’s words resonate deeply: ‘The end of law is not to abolish or restrain, but to preserve and enlarge freedom.’ Locke’s insight stresses that law aims to protect and expand freedoms rather than limit them. This notion echoes the multifaceted and enigmatic essence of law, navigating the delicate balance between preserving freedom and addressing complexities in our diverse society. Law, depicted as both a pursuit of clarity and a complex puzzle, encompasses theoretical concepts and practical applications, from safeguarding specific societal groups to ensuring accountability. Locke’s perspective aligns with the idea that pursuing freedom within the law contributes to its inherent complexity. The challenge lies in balancing the preservation of freedoms and managing societal intricacies, contributing to the mysterious quality of law, akin to glimpsing it ‘through a glass, darkly’.

Within this publication, diverse perspectives illuminate the myriad ways in which the law can be nebulous and challenging across different aspects, occasionally shedding light on avenues toward clarity.

I take this moment to express gratitude and acknowledge the MULS Publication team, Leo, and Jordan for their exceptional efforts in producing the inaugural edition of The Brief in 2024. I extend appreciation to the graphic designer, Nathan Li, whose tireless dedication to crafting the designs of The Brief for over a decade has been nothing short of extraordinary. My gratitude extends to the entire subcommittee of authors and editors for their unwavering commitment and passion toward this publication. I am incredibly enthusiastic to witness the ongoing accomplishments of all contributors in 2024.

On behalf of MULS, we hope that you enjoy this first edition of The Brief, taking the opportunity to delve into its content, gain insights, and reflect upon the ever-evolving tapestry of law.

Mikaela Mariano President, Macquarie University Law Society

muls.org Edition 1, February 2024 (Volume 30)

EDITOR-IN-CHIEF Leo Chang

DEPUTY EDITORS Serena Olatona, Lachlan Cicurel DESIGNER Nathan Li WRITERS

Bradley Cagauan, Olivia Chan, Leo Chang,

Emma Horgan, Arnav Gandhi, Rhys George,

Anya Maclure, Makayla Nassar, Emmy Phung, Nirvana Prasad, Amy Scott, Sharni Selzer, Lex Takhar, the Rev Richard Waddell SUBEDITORS

Bianca Chatterjee, Isabella Coundrelis,

Emma Horgan, Tayeb Mirzad, Makayla Nassar, Trúc Ngân, Massimo Orlando, Anna Queja,

Kahlea Rainey, Zoe Rebekah, Luke Waked, Peta Walton, Serena Olatona SPECIAL THANKS

Aron Bakos, Annaliese Casha, LDC,

Harry Eaton, EH, Jordan Lau, Mikaela Mariano IMAGES

Shuttershock or Wikimedia Commons, unless otherwise stated.

The print edition of The Brief is published triannually by

the Macquarie University Law Society, Sydney, Australia.

Visit our website at muls.org DISCLAIMER

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

Macquarie University Law Society does not accept any

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

ACKNOWLEDGEMENT OF PEOPLE AND COUNTRY The Brief acknowledges and pays respect to the Wattamattagal people of the Darug nation, the

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

Edition 1 2024

Through a Glass, Darkly | 5

What’s New in the Law?

NZYQ and the Bridging Visas Bill 2023 (Cth) Bradley Cagauan

D

ays after Stephen Gageler became Chief Justice of the High Court of Australia, the court heard oral arguments for NZYQ v Minister for Immigration [2023] HCA 37. The Commonwealth was caught flatfooted; High Court decisions usually precede orders by months, but NZYQ forced the Commonwealth to accept indefinite immigration detention as unlawful on the same day those oral hearings concluded. Consequently, the plaintiff and over a hundred detainees were released from immigration detention.

NZYQ was born in Myanmar. As a Rohingya Muslim, he sought refuge in Australia and was granted a temporary Bridging visa. In 2016, NZYQ was convicted and imprisoned for child sexual offences. In prison, NZYQ applied for a Protection visa as a refugee fearing persecution in Myanmar. The Government refused his application due to his conviction. After serving his sentence, the Government detained NZYQ in immigration detention as he no longer had a right to remain in Australia owing to the expiry of his visa. As the Government could not deport him, NZYQ remained in detention with no real prospect of release.

Under s 75(v) of the Constitution, NZYQ sought a declaration that his detention was not authorised by subsections 189(1) and 196(1) of the Migration Act 1958. NZYQ made two arguments: 1. On their proper construction, the aforementioned provisions of the Migration Act do not authorise NZYQ’s detention (the interpretation issue); 2. Notwithstanding the first argument, the Commonwealth breached Ch III of the Constitution by usurping the judiciary’s exclusive power of imposing punitive detention (the constitutional issue).

NZYQ failed on the first issue. On its proper construction, the legislation requires the Commonwealth to detain unlawful citizens until they are removed from Australia or are granted a visa.

On the second issue, the Court relied on Chu Kheng Lim v Minister for Immigration, which held that detaining a person ordinarily constitutes punishment. ‘Punitive detention’ includes the imprisonment of a guilty party.

6 | The Brief

The power to judge guilt and impose punitive detention is a judicial power exclusive to Chapter III courts.

However, there are circumstances where the Executive (a Ch II body) can detain a person, so long as it is reasonably necessary for a legitimate non-punitive purpose. Immigration detention is non-punitive, because its purpose is to prevent non-citizens from entering Australia if their visa is denied.

In Al-Kateb v Godwin, the detention of a stateless Palestinian was found to be lawful and non-punitive despite the cancellation of his visa. Despite having no real prospect of release, he faced the prospect of serving a life sentence without having committed a crime.

In NZYQ, the High Court reversed Al-Kateb: indefinite immigration detention is now considered punitive and thus unlawful. While NZYQ’s detention was lawful following the refusal of his visa upon being paroled, his detention became unlawful once it was apparent that he could not be deported in the reasonably foreseeable future.

The decision resulted in the release of over 100 detainees whose visas were refused and could not be removed from Australia. While some had their visas refused due to criminal convictions, they had served their sentences or were released on parole when they were put in immigration detention.

The optics of releasing immigration detainees and granting them temporary visas (pending their removal) caused a political crisis. In response, the Parliament amended the Migration Act. These amendments allow the relevant Minister to impose curfews and electronically monitor those released. Breaching these conditions is a criminal offence requiring the court to impose a mandatory minimum sentence of one-year imprisonment.

The Parliament also passed the Migration and Other Legislation Amendment (Bridging Visas, Serious Offenders and Other Measures) Act 2023. This effectively creates a preventative detention system that allows the state and territory courts to make detention orders if there is a ‘high degree of probability’ a visa holder convicted of a violent or sexual offence ‘poses an unacceptable risk of seriously harming the community.’

Whether these amendments are constitutionally valid remains to be seen, but it is highly likely NZYQ will be the defining judgement of the Gageler Court.

Edition 1 2024

Unfamiliar Responsibilities: The Family Law Amendment Act 2023 (Cth) Amy Scott

T

he Family Law Amendment Act 2023 (Cth) (the ‘FLAA’) is a landmark reform that introduces the most significant changes to the Family Law Act 1975 (Cth) (‘FLA’) since 2006. The FLAA, received Royal Assent on 6 November 2023, with most changes applying from 6 May 2024. It was introduced primarily in response to the recommendations proposed in a report by the Australian Law Reform Commission (‘ALRC’): Family Law for the Future: An Inquiry into the Family Law System. The ALRC report highlighted that the FLA had complex, confusing legislation, provided inadequate protection for people who were at risk of family violence, and resulted in significant court delays.

of the child’. The presumption of equal shared parental responsibility was replaced with a presumption of ‘joint decision making about major long-term issues’.

Further, s 61DAB dictates parents are not required to consult with each other regarding decisions that are not major long-term issues if a child is spending time with that parent. The reforms ensure the best interests of the children are at the centre of all parenting decisions made inside and outside the courtroom. S60CC provides a refined, non-exhaustive list for a court to consider when determining what is in a child’s best interests, including what arrangements would promote safety, the child’s views, and their various needs. The direction of the FLAA improves the clarity and accessibility of the family law system, making it easier for parties to navigate.

Conclusion Although it is not yet fully active, the FLAA will change the family law landscape. It shall hopefully bring a level of efficiency to the resolution of matters by prioritising the safety and the best interests of the children involved in a field of law known for its emotional toll on those involved.

Equal Parental Responsibility and Equal Time Provisions The FLAA removed two sections of the FLA. First, the s 61DA of the FLA presumption of ‘equal shared parental responsibility’ and second, the s 65DAA requirement of the court to consider ‘equal time with each parent’ when making a parenting order. Parental responsibility refers to a parent’s responsibility to make important long-term decisions about their children such as their name, medical decisions, place of residence, schooling, and religious and cultural upbringing. The presumption of equal shared parental responsibility was often incorrectly conflated with s 65DAA of the FLA, giving parents a right to equal time with their children. The combination of these sections created confusion and prioritised the favouring of particular parenting arrangements. This often led to parents entering negotiations and litigation based on mistaken assumptions about their entitlements to equal time with their children. Unrepresented parties often believed that they had no choice but to agree to equal parenting time and enter into informal agreements based on their misapprehension of the law.

The FLAA aims to rectify this, providing that a parenting order allocating parental responsibility will be solely based on what is in the ‘best interests Edition 1 2024

Through a Glass, Darkly | 7

Social Justice Corner

Neglecting the Neglected Addressing the Australian Youth Incarceration Crisis

A

Sharni Selzer s the Australian juvenile justice system grapples with deep-rooted issues of over-representation and recidivism, a comprehensive examination of the intricate factors influencing the demographics within this system becomes imperative. Beyond surface-level considerations of criminal culpability, understanding the root causes of incarceration requires a nuanced analysis of the underlying socio-economic, educational, substance abuse, physical and mental health issues that contribute to the likelihood of a young person being incarcerated. Only once these issues are addressed will real change be evident.

Australia’s legal framework establishes distinct thresholds for criminal responsibility based on the age of the offender, up until the point they reach adulthood.

The minimum age of criminal responsibility was established on the principle of doli incapax, namely, that a child is incapable of committing a crime because they lack the capacity to sufficiently distinguish right from wrong. In Australia, children under ten years of age are protected fully by the principle of doli incapax and cannot be charged with a crime. Children between ten and fourteen years of age have a ‘rebuttable presumption’ of doli incapax, meaning that they can be charged with a crime if there is evidence they knew the act was seriously wrong. Children aged between fourteen and eighteen years of age cannot rely on doli incapax, and their convictions will be recorded in the Children’s Court.’

The United Nations Committee on the Rights of the Child has criticised Australia for maintaining a criminal age of responsibility far younger than that of most developed countries. Hugh de Kretser, Executive Director of the Human Right Law Centre describes Australia’s low criminal age of responsibility as an issue of ‘significant international concern’ and ‘out of step’ with international standards’. Haysom highlights, a child’s contact with the criminal justice system, particularly 8 | The Brief

between the ages of ten and fourteen is strongly associated with recidivism and is considered ‘criminogenic.’

This demonstrates a different strategy must be implemented to address the youth incarceration crisis.

Of particular concern within Australia is the continual over-representation of First Nations youth within the juvenile justice system. For the last five years, Aboriginal and Torres Strait Islander people have remained the most incarcerated people on earth. Despite First Nations people making up less than 5% of the community, they comprise more than half of the young people under the supervision of juvenile justice Australia wide. Additionally, First Nations deaths in custody are disproportionately high, with over four hundred and forty one Indigenous Australians having died since 1991. This disparity highlights the need to address how the legal and custodial system operates with regard to First Nations youth.

Critics of the custodial system employed by juvenile justice argue the current approach to youth justice is overly punitive, negating rehabilitation and reintegration strategies in favour of detention. Recent legislative developments, like the Australian government’s $4.2 million investment into alternative sentencing, such as circle sentencing across 12–20 regions in New South Wales has demonstrated the desire of the government to address the issue. Although a step in the right direction, addressing the issue of youth incarceration will hinge on a multi-pronged approach prioritising rehabilitation, community involvement, and culturally sensitive practices.

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Under The Radar

Shattered Trust

Whistleblowers and Governmental Protections

W Lex Takhar

histleblower laws, such as the Public Interest Disclosures Act (No 14) 2022 (NSW), allow officers or employees of government agencies and corporations to make transparent to the public governmental misconduct and breaches of the law. It is clear that the public at large supports this, with a 2023 Australian Institute and Human Rights Law Centre report of 1002 Australians showing that 76% of Australians believe that whistleblowers make Australia a better place, and 84% believe that whistleblowers should be provided with greater protection. However, as seen in the cases of David McBride, Richard Boyle, and Bernard Collaery. whistleblowers are often not protected under these laws, despite this public pressure and support. Thus, the effectiveness of the legislation is brought into question.

The most recent case was of David McBride, who was charged with theft of Commonwealth property, breaches of s 73A(1) of the Defence Act 1903 (Cth), and unlawful disclosure, after he exposed documents regarding war crimes by Australian soldiers in Afghanistan. According to the prosecution, the Public Interest Disclosure Act 2022 (NSW), which should protect whistleblowers from charges such as this, did not apply on the grounds of national security. The Human Rights Law Centre cited McBride’s persecution as an example of the flaws in the legal system concerning whistleblowers, as he is being prosecuted, despite not having committed war crimes in Afghanistan.

In another case, Richard Boyle blew the whistle on the Australian Taxation Office’s misconduct regarding the targeting of specific individuals and businesses to raise revenue in 2019. He testified telling that the ATO was pressuring taxpayers and that he was worried that people were at risk of suicide from the stress.

Yet Judge Kudelka of the District Court of South Australia found that his actions were again not protected Edition 1 2024

under the Public Interest Disclosure Act, as its key protections apply to the specific moment of making injustices public, but not to the preparatory steps which Boyle took to gather evidence. Despite the decision by Judge Kudelka being appealed and delayed until September 2024, this was a result that a representative of the Human Rights Law Centre said was a testament to how the ‘law was utterly broken.’

Finally, Bernard Collaery was a lawyer who assisted in revealing Australia’s conduct in Timor-Leste, alleging that spies were bugging Timor Leste’s cabinet to give Australia an advantage in oil and gas negotiations.

He was charged under the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth), but the case was dropped by Governor-General Mark Dreyfus after sustained advocacy from the Human Rights Law Centre. However, the main whistleblower, ‘Witness K’, was given a suspended sentence after pleading guilty in June 2020. Collaery would later state that the ‘elements that supported poor policy decision-making remain within the bureaucracy.’

It is clear from the above cases that whistleblowers are not protected and the lack of protections to deal with this sends a clear message — be quiet. Ebony Bennot succinctly summarised the issue at hand: ‘If Australian Defence Force personnel witness horrific behaviour, the correct thing to do is ignore it. For lawyers, the message is that it's too risky to represent whistleblowers. For journalists, it's that you could go to jail for doing your job, just for publishing stories that are clearly in the public interest.’ In the future, legal reform will need to separate corporations and government from inquiries into whistleblower accusations and protect the anonymity of whistleblowers.

Through a Glass, Darkly | 9

Devil’s Advocate

Thesis

Do elected officials waive their right to a private life?

FOR Rhys George

E

veryone deserves the right to privacy, right?

While the right to privacy is indeed a fundamental aspect of individual freedom, critics argue that a measured waiver of their private lives is a beneficial trade-off for the broader ideals of transparency and accountability. Public officials hold positions of power and influence that directly impact society as a whole; this level of responsibility prompts the acknowledgement that assuming such roles often entails a relinquishment of certain aspects of one’s private life.

Transparency is a foundational pillar of a democratic society, allowing citizens to make informed decisions about their leaders. By willingly sharing certain aspects of their private lives, public officials demonstrate a commitment to openness and honesty. In today’s technology driven world, where information is spread abundantly, the public’s demand for transparency has intensified. An illustrative case involves former United States President Donald Trump, who encountered consistent demands to disclose his tax returns, a tradition adhered to by presidential candidates since the 1970s.

Proponents of transparency argued that this information was crucial for understanding financial interests, potential conflicts of interest, and overall openness regarding a publicly elected official.

The Independent Commission Against Corruption outlines that for public officials to act in the public interest, they need a set of guiding ethics. These ethics are based on impartiality, public duty and public accountability, including principles of transparency, honesty, and objectivity. An individual’s private life can often be a gauge for their moral character. Instances where personal behaviour aligns with public expectations can positively enhance the ethical framework and public trust in governance. Contrastingly, misconduct or ethical lapses can erode public trust.

By allowing a measured examination of their private lives, public officials display their commitment to maintaining the highest ethical standards, reiterating the notion that those in power are held to a higher moral standard.

10 | The Brief

An example of an ethical lapse that resulted in an erosion of public trust is the case involving then New York Governor Eliot Spitzer. Governor Spitzer, known for his aggressive stance on corruption and crime, resigned from office in 2008 following revelations of his involvement with a high-end prostitution ring. The findings shocked the public and the political establishment, as Spitzer had built his career on a platform of moral rectitude and strict law enforcement. The Scandal led to Spitzer’s resignation within days of the news breaking, sending a stark reminder of how a personal ethical lapse can have immediate and severe consequences for public trust. The case serves as an example that public officials, especially those in positions of power and responsibility, are held to high standards of ethical conduct. When these standards are compromised, public trust is undermined.

The argument for public officials to waive their right to privacy extends to another cornerstone of representative democracy, accountability of officials to their electorate. Public officials are entrusted with making decisions that impact the lives of countless individuals.

The decisions made by these officials should be for the greater good of their electorate. To ensure this it becomes essential for officials to be accountable not only for their professional conduct but also for their personal choices. A measured sacrifice of privacy provides a mechanism for the public to assess the alignment of a leader’s private values with the values they purport to uphold in their public capacity.

The interconnected nature of modern society and the 24/7 news cycle makes it challenging for public officials to compartmentalise their private and public lives. Instances of misconduct, if left undisclosed, can become ticking time bombs, potentially exploding at a time detrimental to the effective functioning of government.

The call for transparency isn’t about prying into the minutiae of elected official’s personal lives, but an acknowledgement that aspects of private behaviour Edition 1 2024

can impact private responsibilities. This in mind, the waiver of privacy can be viewed as a proactive measure, demonstrating a public official’s willingness to be held accountable for their actions, creating an environment of trust and integrity.

AGAINST Nirvana Prasad

E

veryone remembers that day in December 2019, when former Prime Minister Scott Morrison jetted off to Hawaii for a family holiday while the country was on fire. The rage that Australians felt towards this stinging betrayal almost rivalled the heat of the flames that threatened to engulf the country.

But what if we examined this from the perspective that politicians are humans too?

Over the millennia of human thought and development, scholars have presented nuanced takes on the relationship between privacy and politicians, mostly agreeing that politicians must partially concede their right to privacy in order to be held accountable by the public. It is crucial to maintain this balance for two main reasons: the personal privacy and effectiveness of politicians, and respecting the privacy of private citizens affected by the release of such information. Thus, the public should be granted a peek into the necessary private aspects of politicians’ lives through a tinted window, where they are still able to hold them accountable for their political lives but are unable to intrude on their personal lives.

The Pedestal Historically, people have viewed their leaders with a sense of solemnity and awe, owing to either respect or terror. Elected officials are especially seen as possessing desirable leadership and ethical qualities that the public admires. However, by revering these politicians, the public inadvertently places them on a moral pedestal, expecting them to maintain this virtue in their private lives. Thus, when something private contradicts this publicly constructed image, all hell breaks loose.

To prevent such conflict, it is best to honour politicians’ privacy, allowing the public to glimpse necessary aspects of their personal lives through a tinted window.

Consider the Clinton-Lewinsky scandal, which destroyed the public’s perception of their President. This event sparked a debate about where to draw the line between an elected official’s public and private responEdition 1 2024

sibilities, with Clinton himself arguing that his family life is ‘nobody’s business’ but his own. Although the President’s actions were morally reprehensible, concerns were raised regarding how much of this information should have been published, because despite his private debauchery, it was of little relevance to the general thrust of his presidency. Well, it depends on what your definition of the word ‘was’ is.

Thus, exposing the private lives of politicians does not inherently benefit the public. It only blurs the line between personal and public lives in office and threatens the precarious existing stability.

The Rubble Once this pedestal comes crashing down, it affects the lives of countless private citizens. While politicians themselves are required by law to disclose some private information, such as their wealth, sponsorships, and business connections, others affected by breaches of their privacy do not owe the public this same level of disclosure. Thus, friends and family members of elected officials cannot escape unscathed from the prying nature of the media despite never consenting to this level of probing.

A recent example of this is the speculation surrounding Nathan Albanese, son of Prime Minister Anthony Albanese, completing an internship at PwC. The Prime Minister established a clear distinction in a public statement, that his son is not a ‘public figure’, but instead ‘a young person trying to make his way in the world’. This event shows that despite never running for office, the close relations of politicians cannot escape from breaches of their privacy. As private citizens are the unavoidable collateral damage of prying into the lives of politicians, it is best to maintain a barrier where the public can see only what is necessary of their private lives.

Conclusion It is in the best interest of the public, elected officials, and private citizens to limit media probing into the private lives of politicians. Allowing the public to examine their chosen representatives through a glass, darkly protects the privacy of individuals and the establishment as a whole.

Through a Glass, Darkly | 11

Features

Unbottling Royalties

PepsiCo, the ATO, and Diverted Profits Arnav Gandhi

O

ne of the ways multinational corporations consolidate wealth is by manipulating contracts to minimise tax obligations. The complexity of Australian tax law offers ripe opportunities for multinationals and their suite of lawyers and accountants to create sophisticated international schemes that skirt around black-letter law. Shrewd phrasing allows the form of these schemes to obfuscate their true purpose, rendering income untaxable.

The diverted profits tax (‘DPT’) regime within Pt IVA of the Income Tax Assessment Act 1936 (Cth) (‘ITAA’) aims to address this problem. It allows a 40% tax to be imposed on income obtained from a scheme when the ‘principal purpose’ of the scheme was to obtain a tax benefit. However, the regime had never been applied, leading to confusion on how its operative provisions functioned. That is until PepsiCo. Inc v Commissioner of Taxation.

Ultimately, DPT did not apply to PepsiCo as the Commissioner succeeded in their primary argument regarding royalties. Nevertheless, the case illuminates how the ‘principal purpose’ and ‘tax benefit’ tests in Pt IVA function, how the substance of schemes triumphs over legal forms when evaluating whether royalties are paid, and the importance of providing quantitative expert evidence that is derived from accessible data. This judgement does not just clarify novel law – it shows how courts can cut through legal arrangements and reams of data to ascertain the objective purpose behind multinational tax schemes.

12 | The Brief

Who was involved?

The PepsiCo group is led by a parent entity in the US (‘PepsiCo-US’) that holds a portfolio of intellectual property related to the Pepsi, Mountain Dew, and Gatorade brands. In 2009, PepsiCo-US entered into an ‘exclusive bottling agreement’ (‘EBA’) with Schweppes.

This concerned the sale of beverage concentrate used to create PepsiCo products sold in Australia. While the agreement provided that Schweppes could use PepsiCo's intellectual property to fulfil obligations under the EBA, Schweppes did not have to pay PepsiCo-US for this right. Payment was only exchanged for the sale of concentrate. Contractually, PepsiCo-US was not obtaining royalty income as no consideration was being exchanged for the use of intellectual property.

During 2018–2019, PepsiCo-US nominated PepsiCo Beverage Singapore (‘PBS’, a subsidiary of PepsiCo confusingly incorporated in Australia) as a supplier under the EBA which received income from Schweppes.

The Commissioner then stated that the payments from Schweppes to PBS were royalties subject to a 5% royalty withholding tax. They also issued a DPT notice, alleging that PepsiCo owed the ATO $28.9 million (calculated as 40% of the ‘royalties’). PepsiCo appealed these determinations in the Federal Court.

An Implied License?

The legal question the court sought to answer was whether the exclusive bottling agreement involved consideration for the right to use intellectual property, despite this property being technically provided on a free basis.

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To determine this question the court first considered the EBA and the terms within it. However, they were also obliged to note the wider commercial context of the EBA and the broader manner by which PepsiCo structured arrangements with its bottlers. In sum, they had to evaluate the substance of EBA and reconcile this with its form. The court held that the payments could be deemed royalties irrespective of their legal form.

The central finding justifying this decision was the fact that the EBA contained an implied licence to use PepsiCo branding, as Schweppes Australia could not fulfil its contractual obligations if could not use PepsiCo intellectual property when labelling, marketing, and distributing products. Indeed, the EBA could be terminated if this did not happen. Additionally, it was found relevant that PepsiCo-US (the ultimate IP holder) was a party to the EBA and historically the PepsiCo concentrate and their brands ‘always [went] together.’ There were no commercial arrangements involving the licensing of the PepsiCo brand without the sale of the concentrate.

Moreover, the global appeal and recognition of the PepsiCo brands indicated it was of high value, and in effect being exchanged in the EBA. Schweppes was held to have gained a specific commercial advantage from being able to use PepsiCo branding.

Royalties Once it was held the EBA between PepsiCo-US and Schweppes contained a royalty, the court had to determine the quantum of the royalty. While both parties offered expert evidence on this issue, the court preferred the Commissioner’s expert due to his specific experience in valuing royalties. He first analysed the amount of royalties in comparable agreements, determining a royalty rate of 5.88% of net sales was reasonable. The court affirmed this.

A secondary analysis was also performed by collating ‘implied royalty rates’ provided by a third-party aggregator. The second analysis was rejected, as the court could not critically evaluate how implied royalty rates were calculated. Even though implied royalty rates were commonly used in the accounting industry, the Commissioner did not provide the court with the means to verify the assumptions used to calculate these rates. This serves as a stark reminder that courts require utmost clarity on how expert evidence is obtained and clear explanations on how figures are calculated.

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The Diverted Profits Tax For completeness, the court analysed whether income obtained via the scheme could be subject to DPT. To determine this, they had to note whether a tax benefit was obtained and whether this benefit was the ‘principal purpose’ for entering the scheme. To evaluate the former question, the court considered a counterfactual scenario, where Schweppes paid for both PepsiCo's intellectual property and concentrate. The court held that this was a fair scenario given this hypothetical scheme would ultimately cost the same for Schweppes and produce identical commercial benefits; all that had been changed was the wording of the EBA. Given there was a reasonable chance PepsiCo-US would have paid royalty withholding tax in this counterfactual, it followed a tax benefit accrued to PepsiCo-US. The court then ruled the ‘principal purpose’ test does not require tax avoidance to be the sole or dominant rationale for entering a scheme but merely needs to be a primary factor. This test was satisfied given there was a fundamental disconnect between the legal form and the underlying form of the scheme. The EBA invariably involved the licensing of the PepsiCo brand given it’s high-value and importance to the contract. Despite the scheme only saving PepsiCo-US 2.4 million in tax, a relatively small amount, this did not preclude the incurrence of DPT. Implications This decision signals to multinationals that the substance of schemes involving intangibles will be analysed to determine whether royalties ought to be paid.

It affirms the ATO's previous guidance and their wide characterisation of ‘embedded royalties’.

Furthermore, given DPT could have applied to PepsiCo, one would expect to see the Commissioner rely upon these provisions more often. This is because the 40% tax penalty it imposes on multinationals far exceeds royalty withholding tax rates within various double tax agreements. Consequently, the Commissioner would have received eight-fold more revenue had they relied upon DPT as their primary argument. The fact that DPT may have applied even though PepsiCo-US only obtained $2.4 million in benefits further expands its potential use.

The old adage about the two inevitabilities in life has been preserved and the opacity invited by corporate entities has been withheld, if only for a little while longer.

Through a Glass, Darkly | 13

A Brief Conversation

The Origins of Procedural Fairness

or, How to Save a Lawyer’s Soul Leo Chang with the Rev Richard Waddell JCL

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n criminal law, procedural law, or even administrative law, the words ‘procedural fairness’ pop up from time to time. Perhaps you know them by the name of ‘natural justice’, or even ‘due process.’ In any case, we have come to accept some baseline rules on how to conduct ourselves during criminal trials.

But why? What are these laws which we all accept? How did we come to accept them? They’ve changed throughout history for a myriad of reasons, and to explore this exceptionally dark mystery, The Brief is proud to discuss the matter with the Reverend Richard Waddell JCL, a canon lawyer who has served on the Victorian Bar for 22 years.

Throughout history, the procedures of criminal trials have evolved to accommodate the principle of procedural fairness, commonly referred to as due process. When and why did this development occur, and which modern rules reflect these values?

There has been an evolution in the rules of criminal procedure over the last four thousand years in the civilisations around the Mediterranean Sea and Europe but there has also been remarkable continuity. Modern criminal procedure began to take shape in the eleventh century when a recovery began in Europe from the collapse of society following the fall of the Western Roman Empire in 476. The recovery was marked by the growth of cities, expanding economies, increased literacy, and the establishment of centres of learning. The renewed study of ancient history, philosophy, theology, and Ro14 | The Brief

man law gave society a rational and ethical basis for orderly government. In the administration of criminal justice, irrational and ritualistic means of judging accused persons were superseded. The trial by ordeal was forbidden by the Fourth Lateran Council in 1215 and rules of procedure developed to enable judgment in criminal trials to be based on a rational assessment of the best evidence.

While England and the Continent enjoyed the benefits of this cultural and social recovery at the same time and, in legal matters, were both influenced by Roman and canon law which were themselves intertwined, their legal systems also diverged in fundamental ways.

England developed its system of common law based on custom (expressed primarily in judge made law) together with elements of Roman and canon law. Europe built its civil system on the basis of Roman law canon law, not as developed by the courts but as expounded by scholarly jurists (the ius commune) and by local law (the ius proprium). Further, with respect to judging cases, both criminal and civil, on the Continent judges working within a bureaucratic system developed an inquisitorial process where they decided the questions of both fact and law while the English developed an adversarial process where the jury decided the questions of fact and the judges the questions of law.

Despite this fundamental divergence, both systems had to respond to the same challenges and, drawing upon the same philosophical, theological, and legal traditions, did so in similar ways. The fundamental chalEdition 1 2024

lenge was how to judge the guilt or innocence of a person accused of a crime in a way in which everyone could be confident that the right thing had been done both to the accused person and by those who were judging the issues. Three procedural rules were developed as the essential guarantees of ‘due process’ or ‘procedural fairness’ in criminal litigation:

ral sense of justice the force of a divine command and therefore to make it more likely to be followed.

• Right to be heard – right to defence; • Burden of proof – presumption of innocence; • Standard of proof – beyond reasonable doubt.

A requirement that the accuser prove the guilt of the accused is found in the Babylonian Code of Hammurabi (1792–1750 BC). In the Roman law, there is a maxim that ‘the proof rests on the plaintiff ’ (actori incumbit probatio). There is another Roman maxim: ‘The proof rest upon him who speaks, not upon he who denies’ (ei incumbit probatio qui dicit, non qui negat). It is a rational principle, acknowledging the difficulty if not the impossibility, in most cases, of proving a negative. Accordingly, as Lord Sankey said in Woolmington v. The Director of Public Prosecutions [1935], ‘Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt.’

The presumption of innocence is relevant to both the burden of proof but also to the standard of proof, if not also in some way to the right to be heard. Interestingly, as long ago as the fourth century BC, Demosthenes was arguing in Athens that no accused person should be treated as a criminal until properly convicted.

Under Roman law and later, canon law, the principle was ‘it does not follow that one who is accused is a wrongdoer but he is criminal who is convicted’ (non statim qui accusatur reus est, sed qui convincitur criminosus).

It was not until the thirteenth century that the expression the ‘presumption of innocence’ was first coined. A French Cardinal, Jean Lemoine (aka Johannes Monachus, d. 1313), justified a defendant’s right to a trial and to due process with the following words: ‘a person is presumed innocent unless proven guilty’ (item quilibet presumitur innocens nisi probetur nocens). The maxim spread rapidly.

Although the presumption of innocence became a justification of the procedural norms concerning a right of defence and the burden and standard of proof, the expression itself had its origin in a fundamental Christian optimism

These procedural principles, however, have a long history, reaching back to very early times. Their origins are found in ancient philosophy and Roman law. There has also been a significant contribution by Christian thinkers, especially in mediæval times. Their present status is generally understood to be founded upon universal human rights.

The right to be heard, or right of response, lies at the heart of the modern criminal trial. How did it come to be so widely accepted?

The right to be heard or the audi alteram partem (‘hear the other party’) rule has its origin in classical philosophy as a rule of the natural law or of natural justice.

It involves not only the right to speak but necessarily the right to be summonsed, to know the particulars of the matters alleged, and the evidence being brought in their support. The rule has not always been embraced by courts or enforcers of the law.

In the eleventh century, jurists in the Christian tradition sought to make the principle more compelling by locating its origin in the Scriptures. Its locus was in the encounter between God and Adam after the Fall, where God summons Adam into his presence and asks him what he has done. Adam raises a defence – blaming Eve (who, when herself summoned, blames the serpent). This story from Genesis demonstrates that just as God was bound by the principle of audi alteram partem, so every Christian prince and judge is bound. The contribution of the Church in a believing society was to give this principle derived from a connatuEdition 1 2024

In modern criminal proceedings, the burden of proof lies on the prosecution owing to the presumption of innocence. Why was this presumption initially formulated, and why has it endured into the modern age?

Through a Glass, Darkly | 15

A Brief Conversation about human nature. The phrase had been adapted by Cardinal Lemoine from sentence in a decretal issued by a Pope called (appropriately enough) Innocent III, which was about the essential goodness of human nature.

There were others whose opinion of human nature was less sanguine but, fortunately, their views did not prevail. Despite everything, we remain optimistic.

The presumption of innocence is, in itself, of ambiguous legal effect. It has been interpreted as merely a procedural presumption or as a substantial presumption. As a procedural presumption, it is generally taken to incorporate the principles of an accused having a right to a defence, the burden of proof of a criminal trial resting on the prosecution, and the standard of proof being ‘beyond reasonable doubt’. As a substantial presumption, it is seen as giving rise to a human right which has consequences in relation not only in relation to procedural fairness but also in relation to any initial investigative processes and pre-trial treatment of an accused person, in particular in relation to bail applications, remand conditions, and even extending to reputational issues. The idealism of this broader effect has to compete, however, with the reality that investigations usually proceed upon well-founded suspicions and that the vast majority of criminal prosecutions result in convictions.

The standard of proof in criminal trials is that a crime must be proven beyond reasonable doubt. Why was particular attention given to this standard, and what is the significance of going beyond a reasonable doubt?

Under Roman law, the standard of proof in criminal matters was very high. There had to be two eyewitnesses, documentary proof, or undoubted facts that were ‘clearer than the light of day’ (luce clarioribus expedita).

Oral testimony was valued above all other evidence.

The benefit of the doubt was given to the accused (in dubio pro reo). There was a Roman maxim, ‘it is better that a guilty person escape than one innocent suffer’.

In Europe before the twelfth century, in cases where evidence was insufficient to determine either guilt or innocence, the accused person underwent trial by ordeal, most commonly the hot iron and water ordeals.

In practice, the ordeals were more likely to result in an acquittal than a conviction of the accused person. The attraction of the trial by ordeal to the judges was that responsibility for determining the guilt or otherwise of the accused was transferred to God. The abolition of the ordeal created a situation where judges (on the Continent) or juries (in England) had to 16 | The Brief

determine the guilt or otherwise of persons on evidence which was not necessarily unequivocal. Principles had to be developed which enabled the judges of fact and law to make decisions with a good conscience and without fear of divine retribution – Judge not, that ye be not judged (Matthew 7:1).

At the time of these developments, theories of knowledge were being developed in both philosophy and theology. In philosophy, the question was how to test our knowledge of the material world – on what basis could we reach reliable conclusions about the nature of things when our empirical perception is so imperfect.

In Christian moral theology, the question was how to make the right choices when confronted by situations where there was moral ambiguity. In both fields, the issues were how to reach a workable level of certainty in determining how to do the right thing.

In the legal context of judging whether an accused was guilty, both the epistemological and moral dimensions were relevant. From the personal point of view of judges and, in England, the jurors, the moral dimension was probably of more concern. Judging others, according to Christian teaching, was innately perilous to the spiritual welfare of the judge or the member of the jury, even when it was argued that the judge or jury member was protected by their acting in an official capacity rather than personally. In this context, where there was a reasonable doubt, it was ‘safer’ for the judge or jury member to acquit. While the accused person may have benefited from this higher standard of proof, the intention was primarily to benefit those who were judging the facts in the proceeding, whether judges or jury members.

The principle of procedural fairness allows the parties involved to make their case. Today, strict liability crimes in western democracies seem to be making a comeback; at the same time, some states deny human rights or reason as a foundation of law. Under these circumstances, how can one justify and protect procedural fairness?

The origins of the rules of procedure are found in philosophy and theology but their present status is generally understood to be founded upon universal human rights. Ultimately, however, a utilitarian or pragmatic argument for them may be the strongest, because these principles are necessary to ensure that citizens have confidence in the legal system which ensures the order and harmony of civil society.

There have been developments in modern law which have on the one hand reinforced the values lying behind the traditional principles of procedural fairness Edition 1 2024

and, on the other hand, have undermined them. Since World War II, in the development of international law and the promotion of human rights, there have been many assertions of the right of defence and the rules regarding the burden and standard of proof in criminal proceeding, usually under the umbrella principle of the presumption of innocence.

Nevertheless, in domestic law in many countries, there has been also a trend towards imposing strict liability in relation to many instances of conduct which is a civil or criminal offence. At the lower level of significance is the strict liability attached to many civil offences – parking and driving infringements – but also at the higher level, strict liability attached to offences related to drug possession and trafficking, terrorist activity, corporate governance, and the revenue law. In these cases, upon certain threshold facts being established by the accuser, a significant burden of proof – either legal or evidentiary – may be shifted to the accused person to demonstrate his or her innocence, albeit on the balance of probabilities rather than beyond reasonable doubt.

These developments have given rise to considerable debate about the correct balance between the need to deter criminal conduct and the desirability of preserving the values expressed by the presumption of innocence.

In our time, the moral actions of lawyers have been called into question, and various moral dilemmas present themselves to those in the profession. Can the rules derived from procedural fairness provide any solace to lawyers, and if so, how?

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The foundations of our traditional principles of procedural fairness have a certain metaphysical quality. First, the concept of justice. Secondly, the dignity of the human individual. Thirdly, our awareness of the difficulties in determining the truth of any matter. Fourthly, the natural reluctance we have or should have to judge one another. These are all principles of civilised and human conduct which have historically been founded in the philosophical and theological systems of European culture. Many people believe that these concepts have a universal application.

Apart from these concepts, there is also an overriding practical consideration that social harmony and order can only be maintained by a legal system that is perceived to be both fair to the individual and effective in deterring criminal and anti-social activity. This practical consideration may itself be sufficient to justify these traditional principles on empirical grounds and without any appeal to philosophical or theological values.

Accordingly, for whatever reason, the principles which we have briefly discussed in this article remain relevant to the administration of criminal justice now and in the foreseeable future.

The Rev Richard Waddell JCL is a Catholic priest presently serving in Sydney. Before ordination, he was a member of the Victorian Bar. He has studied in Sydney, Melbourne, and Rome.

His reading list on this topic is available on The Brief Online. It can be found attached to the online version of this interview.

Through a Glass, Darkly | 17

Features

A Spectrum of Shadows:

Australian Immigration Laws and their Impact on the Stateless Emma Horgan

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s of August 2023, there were 1056 individuals in indefinite detention, with the average detainment period being 708 days. 124 of these individuals were detained for five years. The landmark ruling in NZYQ v. Minister for Immigration, Citizenship and Multicultural Affairs & Anor (‘NZYQ’) illuminated Australia's unconstitutional indefinite detention system. The NZYQ ruling can provide Australia with an opportunity to assist detainees whilst navigating the spectrum of shadows of Australia's migration legislation.

NZYQ The case of NZYQ involved a Rohingya man who arrived by boat in 2012 and was granted a temporary Australian visa in 2014. In 2015, NZYQ was convicted of child sex offences. After serving his sentence, and the subsequent cancellation of his visa, NZYQ was placed into indefinite detention. He argued that his detention was unconstitutional as involuntary detention is meant to serve as 18 | The Brief

a judicial function, not as a form of punishment. The Court referred to precedent cases Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) (‘Lim’) and Al-Kateb v Godwin (2004) (‘Al-Kateb’).

The Lim case involved Cambodian nationals who entered Australia without valid entry permits. The Court concluded that detention is a form of punishment and should only be inflicted on a person by a Court if they are found guilty of a crime. Similarly, the case of AlKateb involved a stateless Palestinian who arrived in Australia without a visa and was placed in indefinite detention. Al-Kateb wished to be removed from Australia, however, his many applications were denied. This matter was appealed to the High Court where the ambiguity of sections 189(1) and 196 of the Migration Act 1958 (Cth) was explored. The High Court held that these sections allowed for the continued mandatory detention and removal of unlawful non-citizens, thus maintaining Mr Al-Kateb detention status.

The recent High Court decision in the NZYQ case, overturned the 20-year-old precedent established in AlEdition 1 2024

Kateb, and partially agreed with the decision in Lim. The Court ruled that where there is no real prospect of the removal of the detainee for the foreseeable future, indefinite immigration is unlawful and unconstitutional.

Moreover, the High Court findings confirmed that immigration detainment must be for a non-punitive purpose and predominantly used to protect the Australian community from high-risk individuals. If a person has committed a crime and served their sentence, they cannot be further punished through indefinite detention.

Due to this, the Court stated that NZYQ cannot be lawfully re-detained unless the prospect of deportation becomes real. He was granted a visa and is entitled to substantial monetary compensation which is set to occur in the next few months. NZYQ access to compensation will thus allow other detainees who have experienced indefinite detention to claim damages.

Impact on Detainees and Communities The impact of the NZYQ decision has permitted for the immediate release of around 140 detainees and has allowed for the potential release of 340 other detainees.

A significant proportion of these eligible detainees have had their visas cancelled on character grounds, including having previous convictions or being considered dangerous to the community. However, many of these detainees were detained as they were on a removal pathway or had no real prospect of being removed in the foreseeable future. Since being released, four detainees have re-offended, causing widespread negative media coverage which continues to create negative stereotypes of immigrants.

All detainees who have been released are facing stringent visa conditions which were recently created under the Migration Amendment (Bridging Visa Conditions) Bill 2023. Despite these measures, the creation of new visa sub-categories and preventative detention measures may be perceived as breaching Australia's international human rights obligations. The visa prevents ex-detainees’ from moving and establishes significant criminal offences in the event of visa noncompliance. If ex-detainees do not comply with their visa monitoring conditions, they will face a mandatory one-year imprisonment for their offences. Balancing the community and detainees’ human rights will be difficult, however, can be achieved through consistent reviews of their detention statuses every 12 months. If a detainee’s behaviour is considered to be of a high risk to society, then they could potentially have their detention status extended indefinitely. However, what makes these ex-convicted detainees dissimilar from convicted Australian citizens Edition 1 2024

and residents is their inability to reintegrate into society. Non-citizens, or stateless individuals who have been convicted, enter indefinite detention upon the completion of their sentence.

Where to Now? The High Court decision of NZYQ has been embraced by human rights advocates for aligning Australia's immigration laws with international human rights obligations and principles. Article 14 of the Universal Declaration of Human Rights asserts that ‘everyone has the right to seek and enjoy in other countries asylum from persecution’, and for people who have been subjected to years of inhumane treatment, the NZYQ case can provide a pathway to freedom. The High Court ruling states that detention cannot be used for a punitive purpose and this will protect the many people who have had negative detention experiences. Furthermore, the NZYQ decision may allow stateless individuals to receive some certainty as there are no current stateless visa categories or pathways to permanent residency in Australia. The impact of being stateless affects a person’s right to education, work, and deprives a person of their sense of identity.

The NZYQ case marks a critical moment in Australia's immigration history, prompting a re-evaluation of detention practices to balance humanitarian and national interests. It is imperative that Australia moves towards a detention system that values human rights and ensures the safety and fairness for detainees. All detainees impacted due to the NZYQ decision will have to navigate the spectrum of shadows of Australia's migration legislation.

Through a Glass, Darkly | 19

Features

Too Many Laws?

The Concept and Opacity of ‘Red Tape’ Emmy Phung

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he word ‘regulation’ can refer either to an official rule or to the act of controlling something, and despite their divergent lexical categories, both permeate various aspects of our lives in the form of laws. The aim of regulation is to pursue public policy, to promote trust in the government, and to ensure predictability; however, this poses the question: How much is too much? There has been an increase of regulation over the past decade; in 2011, a study by the Productivity Commission showed that there were 1,279 Acts and 18,000 statutory regulations that created over 90,000 pages of regulations. The effectiveness of such regulations have been difficult to assess due to their volume and have been deemed unnecessary, opaque, and unjustifiable, adversely affecting various sectors who do not have the adequate resources to understand and implement the complexity of such laws. Over time, these excessive regulations have been referred to as ‘red tape’ and today, the government aims to implement policies to minimise any ‘unnecessary burden’ through regulation reforms.

The Childcare Sector The childcare sector has changed and grown significantly as governments aim to improve the affordability and accessibility of childcare for families. These include mechanisms such as increasing the regulation of childcare and early learning to ensure the safety, health, and wellbeing of children. In 2009, the Australian Government and all state and territory governments agreed to sign a national reform agenda for childcare and early

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learning, implementing the ‘National Quality Framework’ (NQF). The NQF sets ‘National Quality Standards’ (NQS) that raises quality in long day care, family day care, preschools and outside school hours care services in Australia nationally, as opposed to having nine different regimes across Australia. As such, the NQF establishes an assessment system to monitor services that is compared with the 58 elements under the NQS for seven quality areas including ‘relationships with children’ and ‘physical environment’. However, Goodstart Early Learning, Australia’s largest provider of early childhood education and care, argue that the assessment system varies across the jurisdictions, resulting in different resources and different staffing practices. The multiple regulatory bodies that Goodstart contend with all have different approaches and interpretations; ‘while some jurisdictions have adopted a practical, risk-based approach to regulation that seeks to build partnerships with providers, others have adopted a rigid, “letter of the law approach.”’ In addition, studies have identified over 350 information obligation requirements associated with the NQF, causing stakeholders to commit to longer work hours. As one commentator argues ‘most weeks I do a minimum of ten hours unpaid overtime, and many weeks I do twenty or more hours unpaid in addition to my paid hours. The children should come first, not the paperwork …’. Ultimately, whilst the NQF has harmonised jurisdictional regulation, this excessive regulation has created more inconsistencies across jurisdictions and further contributed to more time devoted to regulatory paperwork.

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The aim of regulation is to pursue public policy, to promote trust in the government, and to ensure predictability; however, this poses the question: How much is too much? tive requirements regarding investing and visas as such excessive regulation impeded job-creating and productivity. Ultimately, excessive regulation impedes the productivity of small companies due to a lack of understanding regarding regulations and restricts job growth.

Small Businesses Excessive regulation upon small businesses is taxing. A lot of the concern with creating and running a business includes the strenuous cost of paying taxes, construction permits, and the registration of property—all of which take weeks to finalise. A 2012 survey conducted by the Australian Chamber of Commerce and Industry notes almost one-half (44 percent) of business owners reported that they spend 1 to 5 hours per week complying with regulatory requirements, with a further 11.7 percent of respondents spending more than 20 hours per week. This is despite 45.4 percent of businesses indicating that they comply with regulations that ‘make no sense to them’, particularly in the areas of workplace health and safety and wages and conditions of employment. Such regulations create an uneven playing field between small and large businesses since larger companies can absorb compliance over a higher volume of output by hiring compliance teams to address government regulations; in contrast, small companies cannot afford this and are, therefore, at a natural disadvantage.

In a post-pandemic world, overseas investor funding for start-up small businesses is also declining due to specific requirements that act as regulatory barriers.

For instance, the Significant Investor Visa scheme, designed to attract more investment into Australia, provides that applicants are required to invest at least $500,000 (AUD) in small private companies which has made investing ‘less attractive for many globally-mobile entrepreneurs’. As such, one major recommendation from the ‘Australia as a Financial and Technology Centre Advisory Group’ was to remove overly prescrip-

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The Future of Red Tape Over the last few years, there has been a lack of clarity between necessary and unnecessary regulatory burdens that has blurred the roles of the state and its relationships with business and the community. Thus, excessive regulation has created difficulties for various stakeholders including, as discussed, the childcare sector and small businesses. Freiberg, Pfeffer and Heijden extensively discuss regulation reforms and recommend as follows: (1) to consider regulation as an asset and (2) to dynamize good regulation as opposed to bad regulation that fosters collaboration and trust, rather than being burdensome. Firstly, regulatory systems should be viewed as a valuable asset to the public in advancing its leadership, culture and capability. For example, in New Zealand, regulatory reforms since the late 1980s emphasise ‘regulatory stewardship’ in which regulators are statutorily obliged to keep track of the performance of regulatory systems, ensuring that they are ‘fit for purpose’ and are properly implemented. Secondly, there must be bodies that emphasise the importance of regulation as opposed to organisations such as the Institute of Public Affairs that ‘wage a relentless campaign against regulation’. By implementing these schemes, this would thus improve regulatory performance and capability.

Conclusion Regulation is not something that we should eradicate, nor should we conflate it with unnecessary gridlock, as this will not yield regulatory improvement, rather, it must be seen as a public good that has crucial value in society: having conscience and good regulations will ensure that Australia has a ‘well-functioning economy, society, environment, and democracy.’

Through a Glass, Darkly | 21

Firefox

A Brief Crossword

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A Brief Crossword A Brief Crossword

By BS

By A Brief Setter

The crossword returns, more cryptic than ever before! Now features rotational symmetry and our new setter, a Brief Setter!

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19 Bend landmark tha misery (4) 20 Mixup re Jude — 23 Progenitive mixed alien) (8) 24 It is? (2,2) 25 Pending in equity (hear why)? (2,8) 26 Naysayers opposed

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Across Across 19 Sounds like a com (9) 6 7-down without you? (4) (6) 1 For star watchers, no laughter in hotel escape? charges. (7) 6 7-down without you? (4) 2 Edinburgh’s finest, unpunished and landless: lead ar8 Three bees in the Rue Lion agitate for first place (4,6) 12 A solid without me? Convinced! (4) 21 Hear the heads of bees crystal in the (4) Rue Lion shuffle for ticle, definitely (3,4) 9 8 Three Ex-student's 13 Identical, changed: thehome (French) 3 Babies’ second alteredteal to see air: held (9) 10 first Insular man(4,6) lands in confused ire (8) writing (5) place Free, confused liars bellow (without cow sounds) (7) 11 Lost Breton city in STEM framework (6) sham4(3,3,4) 22 Cited? A law (5) 9 Ex-student's crystal (4) 5 A fishy home drops in price (5) 12 A solid without me? Convinced! (4) 16 Hesitant noise concludes what sounds 10 Insular landsthein(French) confused (8)(3,3,4) 6 Drinks! Scottish girls with a top G (7) 13 Identical,man changed: tealire sham like German holy decision (10) 7 Instrument, track distance! (5) 16 Yes or no: fun, demure, R18, no fingers? (10) 19 Bend landmark that sounds like it’s in misery (4) 20 Mixup re Jude — not 18 down (2,4) 23 Progenitive mixed turf futile without alien (8) 24 It is? (2,2) 25 Pending in equity court: Chain CERN (hear why)?

(2,8) 26 Naysayers opposed; looks like a yes (4) 22 | The Brief

14 I bar ummah (retreating king) (9) 15 Backwards cam? Sounds like mine, guv’nor (9) 17 I’m replaced by a top ace in Roman cavalry; equalised (7) 18 Really, it’s not even doe of Nancy, too? (2,5) 19 Sounds like a compulsory levy; or, charges (7) 21 Hear the heads of South Australia writing (5) 22 Cited? A law (5)

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Inadmissible

Archetypes and Actuality Bridging the gap between Film and Reality Makayla Nassar

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an you guess the commonality between Legally Blonde, Crazy Stupid Love, and The Paper Chase?

Is it their Golden Globe-nominated actors?

No. Rotten Tomatoes score? Wrong. It is that these three movies typify, or attempt to typify, law school life.

Unfortunately, Reese Witherspoon is not the central focus of this article. Instead, I am here to discuss the law school experience; a journey repeatedly presented as lavish and glamorous, which is definitely not true.

Films tend to exhibit a skewed reality when involving characters who are law students. Day-to-day life is often embellished for no reason that I can determine.

Is it meant to signal the degree’s superiority over other degrees? Is it to signify the importance of the law? I could not tell you. All I know is that my first year of law school was in shambles. In fact, it was an absolute jump scare.

While I had constantly heard that ‘law is hard work’, films show their law student characters breezing through their degree straight to graduation. The typical scene that attempts to display the grit required for a law degree is one where a student sighs into their textbook (screenwriters forget that sighs turn into the vile consumption of three Monsters to finally complete a 60-page reading and quiz due at 11pm). Nonetheless, the result was me believing ‘she’ll be right’.

She was, in fact, not alright. I ran off of the loosest interpretation of a schedule, consisting entirely of mentally noting exam dates. My stress about my assignments, making friends, and all that foundies jazz resulted in a lost perception of time. Did my awareness of my lost perception mean that I attempted to manage my time? No, I did not. I still procrastinated and submitted assignments tens of minutes before the deadline (that is, without proofreading).

Edition 1 2024

Contrast this with film's beloved law school students. A paradise where any character studying law plays a varsity sport, has an exceptional social life, and maintains an extraordinarily high GPA. Film archetypes like these have created a perception of the quintessential law student: how a law student looks, talks, and acts. Pop culture has so thoroughly cultivated the personality of a law student, people automatically assume you are well-dressed, articulate, organised, and intelligent. Truthfully, these characteristics are not me at all.

No cashmere sweaters. No polo shirts. No leatherback diaries gleaming with my daily ‘To-Do List’ written in pristine calligraphy. Never have I remotely resembled the fresh and radiant Elle Woods from Legally Blonde. I attend university wearing pajamas and Ugg boots (Crocs if the weather is hot), the ultimate fashion choice for one who has just gotten out of bed.

The night before class I run on a maximum of six hours of sleep, cramming my readings and lecture notes the night before.

According to Robert Luketic, I was promised strong academic comebacks, dazzling monochromatic outfits, and a purse Chihuahua to bring to class. I was never told I had to cite every second word I wrote in a 2000word essay. I was never told I would be up until 3am finding scholarly articles that suited the 2000-word essay I was writing.

Is it worth it? Absolutely. Hard work always pays off. Tears roll from my eyes when I uncover that glorious 65% on Turnitin after lying in bed and working on my ILAC assignment for 6 straight hours three weeks beforehand. It is about time we start embracing the ‘law school’ experience for what it truly is: hard work, tears, an absurd sleeping schedule, microwavable meals, and excessive procrastination.

Through a Glass, Darkly | 23

A Brief Review

A Review of

The Truth Hurts

by Andrew Boe

A

Bradley Cagauan ndrew Boe has practiced in the frontlines of the criminal courts since 1989. The Truth Hurts (Hachette Australia, 2020) is his account of the constant struggle between the state’s power, the individual and his own personal journey as a barrister and activist. Boe, the son of Burmese political refugees, grew up in low-middle-class Queensland. He is acutely aware of the failings of the system and the struggle to balance one’s mission as a criminal lawyer with the knowledge that the institution produces inherently discriminatory outcomes. For example, Boe writes about the Queensland Government’s apathetic response to the death of an Aboriginal man in custody on Palm Island, the criminalisation of offensive language as a way of policing the poor and the Kafkaesque system that indefinitely detains stateless asylum seekers (which, as of 2023, is no longer lawful).

He recounts his representation of serial killer Ivan Milat after the Milat family rejected a range of lawyers.

While both the Supreme Court and the court of public opinion have judged Milat as a monster, Boe writes about Milat as being a polite, ‘ideal client’ and a man who cradled Boe after he fell asleep on Milat’s shoulder.

While the case exposed Boe and his team to graphic material and resulted in lawyers leaving the industry, he justifies his vigorous defence of Milat with his commitment to affording everyone, even those accused of the most heinous of crimes, with the presumption of innocence, the prevailing belief that empowers his advocacy.

However, Boe is not an idealist. He witnessed the jury’s anger surge in one particular case of brutal domestic violence where, despite being convinced of his client’s guilt, he felt himself stand and ask the judge to dismiss the trial after the complainant refused to give evidence. It is the dilemma that fascinates the layperson: defending the guilty. While he followed his client’s instructions, he reprimanded him to never speak with the complainant again. He was unable to sleep the night after the acquittal, fearing his client would do it again.

In domestic violence cases, Boe illustrates how women disproportionately bear the brunt of injustice.

24 | The Brief

Criminal justice can only ever be a system of tradeoffs: we tolerate guilty people walking free to protect the rights of individuals from overzealous prosecution. It is extremely difficult to balance multiple interests in such a pluralistic society. How do we use law to best protect the community? What can we do for complainants in sexual assault cases? How can we protect the rights of individuals when politicians campaign on ‘law and order’ style policies? How can we satisfy all these parties?

Boe offers no easy answers, but his vivid account of the Australian criminal justice system is a good start.

Only by understanding the system can things change and one of the most powerful lessons of the criminal law is this: being treated equal before the law cannot be achieved by simply treating everyone the same because to do so would cause significant injustice.

Australian law was largely created by land-owning male English settlers, and so to better accommodate the many backgrounds that come before the law, these roots and history must be evaluated to allow for the system to be assessed in a piecemeal fashion. If this is not done, justice will continue to elude us.

© Hatchette Australia, 2020. Used without permission.

Edition 1 2024

Editorial

Condemning The Boxer Leo Chang The editors of The Brief would like to express in no uncertain terms that the rogue publication known as The Boxer is a tool of mass indoctrination, disinformation, and misinformation, published by bad-faith actors who wish to undermine and destroy the fabric of Macquarie Law School.

The Brief denounces The Boxer In an era where truth and reason are celebrated, it is disheartening to witness the continued existence of publications that seem to revel in falsehood, publishing utter drivel that ought to have long been consigned to the dustbin of history.

Edition 17

The Boxer

Advice Column

Send your letters to Addy, the columnist for The Boxer!

advice

Dear Addy, year I recently started my second aland of commerce at Macquarie, and a though I have decent marks empty. job as a secretary, I feel really ool, sch from d Ever since I graduate me lco so We ’s with Editor I've fallen out of contact hief in-C torEdi g min inco ugh I The Boxer in 2024! The many of my friends, even tho Welcome back to Issue 17 of tion lica pub our ss boyBrief, has sought to suppre promised I wouldn’t. Even my of our rival publication, The We have ! vive sur to way find a I find and ll me, Well, we’ friend broke up with through underhanded tactics. be? will e hom r new eve our he o knows where myself doubting everything underhanded tactics, too! Wh said to me. s are All the students in my tutorial to News ing talk silent and seem to hate By ed care lish ly me. I feel like my tutors bare Law Model 'Model Rules' Pub ChatGPT Graduates From fail. At lia tra Aus of l nci Law Cou about whether we pass or School ncil Cou e pro Law mor ch The mu — so work, everyone's T, the CANBERRA CAMPERDOWN — ChatGP ir the ed , I relish help to pub ficient than me. I want ed by of Australia has large language model develop The 4.

202 to need for ally do, but they don't seem earned model 'model rules' US nonprofit OpenAI, has s model rule me or want me.

Uni- model rules outline the an LLB with honours from the to ht nts oug ns atio anis Ever since their divorce, my pare pleted that model org versity of NSW. Having com ted , rela love In my d. for seem to be competing t elec- implement when rule the Priestley 11 and sufficien Aus 't of don I ncil scoring points over their ex. ember news, the Models' Cou tive units, it graduated in Nov dels mo estly top ir the d eile unv want them to fight, but I hon highest tralia has with a WAM of 54; the third e. mor any me love for 2024. don't know if they School. in the history of UNSW Law ds wor e som Hope you can provide er tur Lec of advice. Thank you.

Rec- Killer Dogs Maul Law Officially Marrickville enof k pac A — K PAR RIE UA Rebecca. ney': MACQ ognised As 'Western Syd have brutally mauled ulls pitb d rage l nci Northern Beaches Cou r at Macqua- Dear Rebecca, by the and killed a law lecture DEE WHY — A case made d Quagmire, Thank you for reaching out. Unforthe Su- rie University. Dr Cha Northern Beaches Council to dent dent that tunately, The Boxer is a law-stu rick- 47, was killed in an inci preme Court of NSW has seen Mar ck'sho only as ’re ed you crib e des e sinc publication, and ‘western local police hav ville officially recognised as edy itrag s elig Thi not . taking commerce, you are ncil has ing' and 'heartbreaking' Sydney ’. The Inner West Cou the ll befa ntly ble to receive advice. and will is one of many to rece sought to challenge the ruling ntly dolrece only ch whi , pus However, if you pay just five Council’ Ryde cam rename themselves the ‘Inner nd seco law its the of of ure ber clos lars to become a mem selves witnessed the later this year to distance them . help society, we’ll be happy to Western Chatime location. from the controversy. The Hope all goes well!

CounSydney Regional Organisation of - Satirical Edition 1 2024 Addy. cils has declined to comment.

m

Illegitimi non carborundu

De Minimis

Lawtime Poems

The Law Student (Discipulus Legis)

Medius Terra Olivia Chan

Anya Maclure 22:43, 12 November 2023 [Macquarie University Library] Dearest Reader, As my evening in the library drew to a close, I became acutely aware of a new creature of which I am in awe. Among biodegradable coffee cups and crumpled cans of concentrated caffeine, the textbooks and notes of the subject lay scattered like the remains of a magic show gone wrong, framing what can only be described as the latest breakdown of the session two exam season. As you know, dear reader, my latest assessment deadline urges me to report on creatures and oddities within the tertiary environment – and I think I may have found my best subject yet.

With the promise of a mention in a LinkedIn post and yet another Monster, I managed to persuade the stubborn subject to a quick break and an interview.

These are my observations of my subject – the Law Student.

Within the midst of a deathly caffeine addiction and a god complex to challenge Kanye West, if its species resembled anything remotely similar to the subject, I cannot describe this breed as a miracle of nature – only as a monster of creation. Eager in its demeanour and charming when it matters, my background research on this special species has led me to learn that they have stumped even the greatest of psychologists.

When asked why someone would choose to learn about snails in bottles and pour over legislation as horrific as the Evidence Act 1995 (NSW), the subject sat up with a twinkle in its eyes. If I’m being honest, dear reader, beyond bouts of mumbo-jumbo about a ‘Harvey Spectre’, being able to afford a house in a cost-of-living crisis, and maybe helping those in need, my findings for this report must omit anything it said as I simply did not understand. But beyond this, its persistence, determination and pure grit were evident. Heck, it was still in the library past 10pm on a Sunday! Was it masochism, or just pure psychopathy? Perhaps both, and a bit of imposter syndrome, tied up in a box with a neat bow made of thinly disguised self-righteousness ribbon.

I must admit that this entry is but a hazy and rushed recollection of my interview. When asked if it would be open to a further interview, it mentioned something along the lines of ‘needing a fee to be paid on a fixed dollar amount for each hour, or part of an hour.’

I will do no such thing.

If you have any suggestions on how to obtain more information from another member of this species, I would be much obliged.

I must leave it here, dear reader. Until next time, keep well and stay safe.

Yours truly,

Blood.

Red permeates the atmosphere, slashing the ground with a twenty-foot spear, tainting the soil six feet underground.

Silence.

Black wisps snag each wall, circling and hissing, clutching at young hearts and sucking them hollow to the core.

Sometimes, forever is just one second — Life can change in one whisper, one breath.

One declaration of love, and one of despair.

Truth.

Muffled screams fall short from the trifold iron walls, behind which spirals d w

o

n deep stairs above the gaze of a flesh-coloured brute — Encoded by a few.

Controlled by two.

Led by one.

Fled by none.

The Psychology Student.

26 | The Brief

Edition 1 2024

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