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6. From the UTS LSS – President and Vice President (Education) 7.Editorial 8. Editors’ Question 10. ‘Paperless Arrests’: Unjustified and Un-Australian Exclusion–Eoin McMahon 12. Comfortably satisfied: The burden of justice in sport – James McGrath 14. Dignity, democracy and the rights of the terminally ill – Lydia Grammeno 16. All are equal in the eyes of the law – Carina Lam 18. Australia’s shame – intimate partner violence against women – Francesca Elias-Arciuli 20. Ending ‘Guerrilla Lawfare’ – Bianca Balzer 22. Stopping the pirates: Australia’s own Fury Road – Ricardo Villegas 26. Secrecy in the Border Force Act 2015 – Jason Corbett 28. Spotlight on Social Justice – Sarah Maynard 30. The right to choose: The legality of abortion – Mahrukh Hamayun 32. Endorsing gender equality through International Aid – Tanith Chippendale 34. 10 words or less Lawmakers

and

Social

Changes


TFB 2015 [Edition 04] the full bench Editor in Chief Nicola Colagiuri Editors Kieran Gair Adriana Abu Abara Neeharika Maddula Bianca Newton Designer Simon Blanckensee UTS Law Students’ Society ©

With Special Thanks to

This publication is copyright. Except where permitted under the Copyright Act, no part of this publication may form or by any means (electronic or otherwise) be reproduced, stored in a retrieval system or transmitted by any process without specific written consent of the UTS Law Students’ Society. Enquiries are to be addressed to the publishers.

Vanessa Jiang, Vice President (Education), and Ashleigh Barnes, President of the UTS LSS, for their guidance, support and contribution to the fourth edition of The Full Bench in 2015.

Disclaimer

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All expressions of opinion published in TFB are not the official opinion of the UTS Law Students’ Society unless expressly stated. The UTS Law Students’ Society accepts no responsibility for the accuracy of any opinions or information contained herein and readers should rely on their own enquiries to make decisions in their own interest. Images and illustrations All images, unless provided to TFB personally for the purposes of this publication, were sourced from the photo sharing website ‘Flickr’, with attribution provided within the text to specific publishers.

With Further Thanks to

The Full Bench (tfb) is published in Sydney quarterly by: UTS Law Students’ Society PO Box 123, Broadway NSW, 2007 Room CM5A.01.08, City Markets Campus, Cnr of Quay Street & Ultimo Road Tel: (02) 9514 3448 Fax: (02) 9514 3427 www.utslss.com


The Full Bench 2015 Edition 04


Lawmakers and Social Changes Spring 2015

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6.

From the UTS LSS – President and Vice President (Education)

22.

Stopping the pirates: Australia’s own Fury Road – Ricardo Villegas

7.

Editorial

26.

8.

Editors’ Question

Secrecy in the Border Force Act 2015 – Jason Corbett

10.

‘Paperless Arrests’: Unjustified and UnAustralian Exclusion – Eoin McMahon

28.

Spotlight on Social Justice – Sarah Maynard

30.

The right to choose: The legality of abortion – Mahrukh Hamayun

12.

Comfortably satisfied: The burden of justice in sport – James McGrath

32.

14.

Dignity, democracy and the rights of the terminally ill – Lydia Grammeno

Endorsing gender equality through International Aid – Tanith Chippendale

34.

10 words or less

16.

All are equal in the eyes of the law – Carina Lam

18.

Australia’s shame – intimate partner violence against women – Francesca Elias-Arciuli

20.

Ending ‘Guerrilla Lawfare’ – Bianca Balzer


From the UTS LSS From the UTS LSS President

From the UTS LSS Vice President (Education)

6

Lawmakers and Social Changes

To celebrate the end of the academic year, the UTS LSS is proud to present to you the fourth and final edition of The Full Bench for 2015. It is often said that change is a constant. This is true of the legal profession, where individuals lobby to adjust our laws to accommodate for, or inspire, social change. We are seeing a pressing need for change in many areas of the law, including the marriage equality debate, the proposed changes to domestic violence legislation in the ACT and potential for recognition of Indigenous Australians in the Constitution. This edition canvasses these important areas and many more. As it is our final edition, it is apt to comment on 2015 The Full Bench journey. The Publication has gone through a complete redesign, there has been increased student engagement in terms of contribution and a wider distribution of the finished product. Our esteemed Faculty Members, Brennan Program participants and ‘journalists’ reporting on our Speaker Series (which have been on related themes) have all had their say and we have all learnt and become better Lawmakers because of it. I would like to thank our exceptional Publications Director, Nicola Colagiuri, who is responsible for

four outstanding editions of The Full Bench. Her passion and dedication has taken The Full Bench to new heights. Of course, Nicola was assisted by her talented team comprising of Kieran, Bianca, Adriana and Neeharika as well as our designer Simon – thank you all. Finally, I thank our incredibly efficient Vice President (Education) Vanessa Jiang, who has provided astute guidance and leadership through the year, our sponsors for this edition Henry Davis York and Clayton Utz and of course, our most valuable resource and the cornerstone of our academic publications, our contributors and our readers. I have full confidence in The Full Bench team for 2016, Bianca Newton and Richard Heng. We hope we have made a valuable contribution to your law school experience. Happy reading, happy lawmaking.

As young lawyers, we are in the best position to advocate for social change. If society becomes lethargic toward issues that are overexposed in the media or otherwise, it is left to us to drive the change that we want to see in Australian law and policy for the betterment of society. Where some draconian laws continue to prevail, it becomes increasingly critical to be proactive, and to be bold. This publication and its contributors seek to comment on the insufficiencies of existing laws to meet community standards, and in doing so, suggests paths toward improvement. Social progression is crucial, no matter how slowly it may be achieved.  I reiterate the words of Ashleigh when I say a huge thank you to all our contributors, our wonderful sponsors, our designer, and of course, our readers! Sincere thank you’s also to The Full Bench subcommittee, Neeharika Maddula, Bianca Newton, Kieran Gair and Adriana Savvy, Ashleigh Barnes, President, and Nicola Colagiuri, a dream of a Publications director. We hope you enjoy this fourth and final edition.

Vanessa Jiang Vice President (Education) UTS Law Students’ Society

Ashleigh Barnes President UTS Law Students’ Society


Editorial “Equal justice under law is perhaps the most inspiring ideal of our society. It is one of the ends for which our entire legal system exists...it is fundamental that justice should be the same, in substance and availability.” - Lewis Powell, Jr. Welcome to the final edition of The Full Bench for 2015!

Writing this final editorial was somewhat bittersweet as we say adieu to TFB for yet another year. There are no doubts that 2015 has been an exceptional year for The Full Bench. Across four editions, we’ve had 47 student contributors, four articles written by esteemed members of the UTS:Law faculty and an exclusive interview with the newly appointed and first female Crown Solicitor in NSW. TFB has delivered evocative, well-researched and seamlessly executed pieces for our readers, covering a wide range of issues, from legal liberties to human (in)securities to mental illness among lawyers and now finally, to social change. It’s safe to say that TFB has done it all this year. Of course, none of the above would have been possible without the guidance and support of a few outstanding people. To Ashleigh Barnes (President) and Vanessa Jiang (Vice President, Education), thank you for being grammatical wizards and a constant source of encouragement. To Simon Blanckensee, your creativity has transformed TFB into the polished and professional publication it has become. To the wonderful TFB subcommittee, Kieran, Adriana, Bianca and Neeharika, you have been complete assets; the unrivalled quality of TFB in 2015 is entirely down to you. Finally, to all of our contributors this year, thank you one hundred times over for your meticulous research, masterful writing and above all, your willingness to go above and beyond to investigate legal issues outside the classroom. In this final edition, ‘Lawmakers and Social Changes’, the TFB team and our contributors seek to reveal how the law is deeply implicated in our economic, political, and social worlds. In this way, the pursuit of social change invariably involves an engagement with the law. LYDIA GRAMMENO explores the legal and ethical issues that continue to compound the debate surrounding the legalisation of assisted death in ‘Dignity, Democracy and the Rights of the Terminally Ill’. ‘Australia’s Shame: Intimate Partner Violence Against Women’ is a delicate investigation by FRANCESCA ELIAS-ARCIULI into the protection currently afforded to female victims of domestic violence, and asks is it enough? BIANCA BALZER, in ‘Ending Guerrilla Lawfare’ delves into the topical issue of ‘environmental lawfare’ and assesses whether environmental interest groups are in danger of losing their standing in environmental matters. In celebration of the high calibre of legal writing produced by UTS:Law students in 2015, we present to you our swan song. As students who seek to understand how law can be harnessed for social change, or who wish to pursue careers as social change agents, we encourage you to read and reflect on the contents of this fourth and final instalment of The Full Bench. Nicola Colagiuri, Publications Director, UTS Law Students’ Society

Lawmakers and Social Changes

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Editors’ Question Earlier this year, it was proposed that the Northern Territory would achieve statehood by 2018. Some believe this ‘will never happen’ as there are significant hurdles to overcome before statehood becomes reality. If the Northern Territory does indeed become Australia’s seventh state, this would remove the Commonwealth’s power to override local laws and would also likely increase the region’s representation in the Senate. In our final edition of 2015, TFB’s Editorial Team put pen to paper to examine arguments for and against the NT becoming a state and the likelihood of this change actually eventuating.

Nicola says: The Northern Territory’s bid for statehood by 2018 has attracted considerable media attention. However, as with most oversaturated news items, it is prudent to ask: does it really matter? The short answer is, yes. At its simplest, the move to statehood would be advantageous in that the federal parliament would no longer be able to override territory laws. It has been argued that by achieving statehood and thereby abandoning its ‘second-tier status’, the Northern Territory would be more at liberty to deal with issues such as land rights protection, education, the cost of living and healthcare standards.1 This is particularly significant in light of Professor George Williams’ argument, namely that “if we’re going to recognise Aboriginal people in the constitution, because the NT has the biggest percentage population of Aboriginal people but it will get the least votes. Aboriginal people there will only get half a vote”.2 Interestingly, attributing the Northern Territory with statehood has previously been contemplated in Australia’s political history, only to be dismissed. So, what makes this time any different? Perhaps, the difference is that a date has been specified and the change has been given some urgency and purpose. Three years is not that far way. In my view, what needs to be done is to generate popular support, draft a constitution and negotiate with the Commonwealth. In the words of Chief Minister Adam Giles, it’s time to “get fair dinkum about equal footing” and recognise the Northern Territory as a state once and for all.

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Lawmakers and Social Changes

Neeharika says: What does it mean to be a ‘state’? At first glance, the step from territory to statehood for the Northern Territory may seem to be an unnecessary one. After all, they have representation in the Senate and are able to make laws independent from the Commonwealth (albeit by virtue of the power granted by the Commonwealth). However, statehood is more than its prima facie functions, it has a symbolic significance. It means autonomy and it means equal treatment. Let’s pause for a moment and take a trip down memory lane. Why is it that we even have a distinction between territories and states? In the time of the white settlers, differentiation between states and territories meant all the same things we know it to mean now: differences in citizenship, political representation and administration of justice. There is, however, the unmistakable racial dimension. Australia’s territories are also regions with a high concentration of non-white populations. Nowhere is this truer than in the Northern Territory where 30% of the total population identify as Aboriginal and Torres Strait Islander.3 This is the highest proportion of all the states and territories.4 Recently, the issues of substance and child abuse and the power of the Commonwealth to legislate for the Northern Territory led to the infamous and controversial Northern Territory Intervention. Whilst there’s been much said about the Intervention, both in light of its efficacy and legacy, it’s important to remember it now for one reason. During the Intervention, the Federal government was able to completely suspend operation of the Racial Discrimination Act 1975 (Cth).5 Just like that. There are a multitude of reasons as to why the Northern Territory should be granted statehood. Of paramount consideration is the region’s Indigenous Australian population and what the change will mean for those communities. If history is anything to go by, this is one debate where we have to play the race card.


Adriana Says: Joe Hockey laughed off the idea (as well as his career in Australian politics), but the Northern Territory seems well on its way to becoming a State by 2018. While the effects of statehood, besides an extra star on the flag might be little understood, they are substantial. Socially, this would be more of a symbolic move than anything else. Chief Minister of the Territory, Adam Giles, has said that the move would elevate the Northern Territory from its ‘second-tier status’. How this would shape the interaction between the Commonwealth and the Territory is yet to be seen. At the same time, Giles has emphasised that there are other priorities for the Northern Territory and Statehood would have very little practical effect. While I agree with the earlier part of this proposition, the latter is questionable. Yes, a state government would be no more equipped to deal with the social and economic disadvantage facing the Northern Territory, however it would also avoid the risk of having reform proposals knocked back at the will of the Commonwealth. From a constitutional perspective, and perhaps most importantly to this discussion, the Commonwealth will lose its power to override local laws that it currently has under section 122 of the Constitution. This would limit the Commonwealth’s power to say, intervene in the territory or override legislative acts like in the 1997 Right of the Terminally Ill Act (NT). The power of the Commonwealth was found in Spratt v Hermes (1965) to be a complete power to make laws for the peace order and good governance of a territory –soit’s a pretty broad power, I’d say, and one that has evidently worked against the Northern Territory in the past. While some may find little positive effect in Statehood, disabling the power of the Commonwealth to override social and economic reform is a significant reason to make the change, and I’d even argue it is the only reason we need. Kieran says:

The Australian Leaders’ Retreat Communique began their July press release by saying “the nation’s leaders have taken the first steps towards major reform of Australia’s Federation”. But right now no one has been clear on what those first steps will be. Bianca says: Confusion regarding the meaning of statehood and a lack of trust in those responsible for the Statehood Convention process are among the reasons that the people argued against statehood in the 1998 Northern Territory statehood referendum.6 It is issues such as these that lead me to believe that it is unlikely statehood will occur in the near future. Prime Ministers Fraser and Howard declared the achievement of Statehood within their periods of power but evidently, this did not come to pass.7 This has since begged the question; what is the hold up and is success even a possibility? There are a number of issues that have and will continue to prevent the Northern Territory becoming a state. These range from the size of the territory to Constitutional roadblocks such as the availability of section 122 of the Constitution in relation to the Territory after statehood, as well as criticisms surrounding the Northern Territory Government.8 For many, the problem with not handling these obstacles is that they solidify the Northern Territory’s standing as ‘a second class citizen’.9 The key idea behind the support for statehood lies within the words ‘equal political rights’. The Northern Territory would be elevated to the standing of original states in several areas including that of removing the Commonwealth’s power to override local laws10 as well as allowing the votes of Territorians to be included in the second count within states.11 I would argue that while it is strange that this issue has been re-awoken after the arduous processes and problems created in the past, it is an issue to consider nonetheless. With the support of the people in the Northern Territory, statehood should come to pass to ensure equal political rights and a step forward for recognising the voice of Indigenous people.

17 years ago Northern Territorians voted down a referendum on statehood. The Country Liberal Party government, and its federal counterpart, supported the ‘Yes’ campaign. The opposition, the Australian Labor Party, went hard on the ‘No’campaign. The margin was narrow. Less than 4,000 votes separated what would have become one of the biggest shifts in Australia’s political structure since federation. The resulting ‘No’ vote was widely seen as a revolt against the personality of Chief Minister Shane Stone. Yet, fast-forward to 2015 and the debate over Northern Territory statehood is far from being resolved. Despite the philosophical closeness of statehood to the core of the NT’s ruling party, their fight for statehood hasn’t always resonated with Canberra. “Haven’t we heard this before?” Former treasurer Joe Hockey laughed back in July. Though Hockey was only recently turfed from the treasurer’s job, his exasperation, or even indifference to the issue, seems to be the way many are feeling about politics in general. If the Northern Territory does become Australia’s seventh state that could mean an extra 10 senators added to the two that already represent the territory. Under section 121 of the Constitution it can be done. But is Australia really prepared for more politicians? While the ruling Country Liberal Party has a Minister for Statehood, no funding has been allocated in the most recent budget. Last month in budget estimates hearings, NT Statehood Minister Bess Price paused, and then faltered, when trying to outline her party’s position on the territory’s statehood application. 1 Sarah Whyte, ǮNorthern Territory could become Australiaǯa seventh state by 2018ǯ, The Sydney Morning Herald, 23 July 2015 < http://www.smh.com.au/federal-politics/political-news/northern-territory-could-become-australias-seventh-state-by-2018-20150723-giino4.html>. 2 Ibid. 3 Australian Bureau of Statistics, Regional Statistics, Northern Territory, 24 March 2011, Australian Bureau of Statistics <http://www.abs.gov.au/ausstats/abs@.nsf/ Latestproducts/1362.7Feature%20Article1Mar%202011?opendocument#Aboriginal>.4 Ibid 5 Nick Bryant, Australia restores race discrimination act, 22 June 2010, BBC UK <http://www.bbc.co.uk/news/10374060>. 6 Nicholas Horne, ‘Northern Territory statehood: major constitutional issues’ (Research Paper No 21, Parliamentary Library, 2007-08) 8. 7 Ibid 8-9. 8 Ibid. 9Helen Davidson, ‘Northern Territory will be ‘second class’ until it is a state, says chief minister’, The Guardian(online), 23 July 2015 <http://www.theguardian.com/australia-news/2015/jul/23/northern-territory-will-be-second-class-until-it-is-a-state-says-chief-minister>.10Jared Owens, ‘C OA G 2015: NT bid to become state receives unanimous backing’, The Australian (Brisbane), 23 July 2015. 11 Davidson, above n 5.

Lawmakers and Social Changes

9


Paperless Arrests: Unjustified and Un-Australian

The controversial ‘paperless arrest’ laws allow police to detain individuals for minor offences without charging them. Essentially, they are designed to give police more powers to take ‘troublemakers’ off the streets before they commit serious crimes. Eoin McMahon examines the legal effects of this law, particularly for Indigenous Australians.

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Lawmakers and Social Changes


Since

European settlement, Indigenous Australians have faced a challenging and difficult path to equality. Legal and social reforms relating to Indigenous rights has garnered considerable support from the wider Australian community, and become a staple of importance in this nation’s history. From organisations such as Recognise, The National Aboriginal and Torres Strait Islander Legal Services, to bodies such as the Australian Law Reform Commission and the Commonwealth government, there are a number of diverse local, state and national sources that have spearheaded change in order to ensure equality for the Indigenous people in the eyes of the law and society.1 Given the changing attitudes towards Indigenous people and diverse public support for Indigenous rights, one would think that lawmakers would respond to these social changes and reform laws relating to Indigenous Australians accordingly. However, the recent ‘paperless arrest’ laws that have been introduced and are currently operational in the Northern Territory raise a number of concerning questions. Namely, we find ourselves asking; why, given the widespread support for Indigenous equality and the change in how we treat struggling Indigenous people, have laws been introduced that can be deemed as targeting and isolating Indigenous people?

The ‘paperless arrests’ The controversial ‘paperless arrest’ laws were introduced through the Police Administration Amendment Act 2014 (NT) in December 2014.2 The legislation permits the Northern Territory police to detain individuals arrested for summary minor offences for up to four hours (five if intoxicated), and within this time may question the individual.3 There is no requirement for the police to bring the individual before a court or to provide legal advice.4 The introduction of the laws in 2014 and their operation in 2015 have been rife with protest, and rightfully so for a number of reasons. Concerns of exclusion Firstly, these laws will inherently affect Indigenous people, exacerbating the cycle of Indigenous mistrust of law enforcers and a sense of alienation from the greater Australian public. In response, many Australian organisations have worked tirelessly against this. One of the law’s most important characteristics is its ability to unite or divide social groups. It can be argued that The Act is not only causing further division between Indigenous people and the Australian Government, but also serves to place Aboriginal peoples outside the rest of society. These laws can damage any positive relationships that Indigenous people may have formed outside of their own local communities (legal aid centres and volunteer programs being two examples). The contemporaneous widespread view in respect of Indigenous rights and issues has been to aid in a respectful, educational and mindful manner. In stark contrast to the accepted notion of ‘reconciliation’ towards our Indigenous population, these laws in some ways, mark a return to detention and imprisonment for minor offences, for which countless evidence suggests only causes further damage. We cannot justify these laws as a means of attending to the social issues faced by Indigenous people in the Northern Territory, such as substance abuse and youth incarceration rates. Rather, these problems need to be addressed through other means that do not impose on Indigenous liberties, such as education.5 Ultimately, the ‘paperless arrests’ increase the vulnerability of Indigenous people and create further exclusion.

Legal concerns From a legal perspective, these laws may lead to the deprivation of individual liberties. The adult prisoner population in the Northern Territory is 86% Indigenous.6 As such, these ‘paperless’ arrests are bound to disproportionally affect Indigenous people, showing that perhaps, albeit indirectly, these laws will target Indigenous Australians. As previously stated, the laws allow police to detain an individual for up to four hours (five if intoxicated) without access to the courts or legal advice. Effectively, these laws allow police to act as a judge and jury.7 Such a concept is a concerning departure from the common law and statutory requirements, which ensure that detainees are brought before a court as soon as practicable.8 These ‘paperless arrest’ laws offer little to no legal protection for individuals and neglect personal liberties. It is a common legal principle that all people have the right to liberty and freedom from arbitrary arrest and detention.9 ‘Paperless arrests’ have also been viewed ‘unconstitutional’. The Northern Australian Aboriginal Justice Agency notes that the Amendment Act undermines the integrity of the Northern Territory courts, as it is a central aspect of our criminal justice system that only the courts have the ability to detain.10 The unjust bias inherent in these laws combined with constitutional concerns should be reason enough for legislators to reconsider their application and place within the Australian judicial system. Conclusion The Northern Territory government claims that The Act is a means for police to tackle repeat offenders, violence and substance abuse.11 Further, ‘paperless arrest’ legislation has been justified as it will police to control and prevent imminent criminal activity without being restrained by ‘paperwork’. History has shown us that this ‘tough on crime’ policy has been nothing but damaging to Indigenous communities. Unfortunately, Indigenous people are still subject to segregation within Australia. Social attitudes are gradually changing and as such, the law must not fall behind. Our laws should not be used as mechanisms to target or silence particular groups within society. Rather, the law should promote equality and justice for all. In this writer’s view, ‘paperless arrests’ laws undermine concepts of fairness and justice that underlie Australia’s legal system.

1 Yang, David Yaoming. Policing Indigenous Australians in the Northern Territory: Implications of the ‘paperless arrest’ [online]. Indigenous Law Bulletin, Vol. 8, No. 18, Jun 2015: 21-25.2ǮT h e Ac t ǯ.3 Ibid, 22. 4 Ibid, 22.5Adam Giles, Pillars of Justice,Territory Stores(15 May 2013) <http://www.legalaid.vic.gov.au/about-us/what-we-do/research-and-analysis/indigenous-legal-needs-project> 6 Australian Bureau of Statistics, ͚N ation al ‘egion al Profile: Northern Territory, 7 – (Catalogue No 1379.0.55.001) <http://www.abs. gov.au/AUSSTATS/abs@nrp.nsf/Previousproducts/LGA7Population/ People12007-2011?opendocument&tabname=Summary&prodno= LGA7&issue=2007-2011>. 7ABC ‘adio N ation al, ͚High Court Challen ge to N T Arrest Powers͛,The Law Report, 5 May 2015 (Ruth Barson) <http://www.abc.net.au/ radionational/programs/lawreport/high-court-challenge-to-nt-arrestpowers/6445466#transcript>. 8Criminal Procedure Act1986 (NSW) s239. 9 International Covenant on Civil and Political Rights, Article 9, (1966) <http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx> 10Human Rights Law Centre, High Court Case against NT Government: Background Information, (27 March 2015) 2 <http://hrlc.org.au/wp-content/uploads/2015/03/Background_NTHighCourt_case_March2015.pdf>. 11 Adam Giles, Pillars of Justice,Territory Stores(15 May 2013) <http://www.territorystories.nt.gov.au/bitstream/10070/244864/1/Giles- 150513-Pillars_of_justice.pdf/>.

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Comfortably Satisfied: The Burden of Justice in Sport

1 See https://www.youtube.com/watch?v=OXaj5xG6JPk 2Russel Goldman, ‘Lance Armstrong Admits to Doping’,ABC News (online), 17 January 2013 < http://abcnews.go.com/US/lance-armstrong-confesses-doping/story?id=18244003>. 3 ASADA, Media statement: Decision of the AFL Anti-Doping Tribunal - former and current Essendon players (31 March 2015) https://www.asada.gov.au/news/media-statement-decision-afl-anti-doping-tribunal-former-and-current-essendon-players>.4Natalie Hickey, ‘A question of proof: might an ASADA appeal have l e g s ? ’, The Social Litigator (3 April 2015) <http://sociallitigator.com/2015/04/03/a-question-of-proof-might-anasada-appeal-have-legs/>.5Chris Davies, ‘The ‘comfortable satisfaction’ standard of proof: applied by the court of arbitration for sport in drug-related cases’(2012) 14 University of Notre Dame Australia Law Review1.6Rule 16.1 of the AFL National Anti-Doping Code: “T h i s standard of proof in all cases is greater than a mere balance of probability but less than proof beyond a reasonable doubt”.7D’Arcy v Australian Olympic Committee Cas 2008/a/1574, [39]. 8 Above n 4. 9Mark Kenny, ‘Essendon drugs saga: ‘The blackest day in Australian sport’ has had the greyest outcome’, Sydney Morning Herald (online), 1 April 2015 <http://www.smh.com.au/federal-politics/political-opinion/ essendon-drugs-saga-the-blackest-day-in-australian-sport-has-had-the-greyest-outcome-20150401-1mcj7w.html>. 10Roy Masters, ‘ASADA boss gets support from anti-doping agencies around the world’, Sydney Morning Herald (online), 9 April 2015, <http://www.smh.com.au/sport/asada-boss-gets-support-from-antidoping-agencies-around-the-world-20150405-1merqm.html>.11 Dr Rhonda Jolly, Australian Sports Anti-Doping Authority Amendment Bill 2014, bills digest no. 25 of 2014–15, 10 September 2014, 3.

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Lawmakers and Social Changes


The Australian and global responses to doping have been seen as reactionary, under-resourced and ill equipped to deal with rapid medical and technological advances. James McGrath looks into the subsequent public scrutiny of ‘ASADA’ and its ability to impose meaningful legal sanctions. Is the integrity of Australian sport in trouble? The date was 6 February 2013 and a formidable union of sporting representatives, Federal Government ministers and the Australian Crime Commission had just fronted the media: ‘This is not a black day in Australian sport, this is the blackest day’.1 The nation was rocked by allegations of professional sportspeople engaging in organised crime, match fixing and performance-enhancing drugs, not one month after Lance Armstrong confessed to a decade of banned substance abuse.2 Despite the explosive claims failing to expose any systematic criminal activity, the issue of doping in sport did not dissipate quickly. If performance-enhancing drugs were undetected by the World AntiDoping Agency (WADA) during each of Armstrong’s seven Tour de France wins, how could we expect the Australian Sports Anti-Doping Authority (ASADA) to have the resources or technology to police similar substance abuse at home? The Australian and the global response to doping were both characterised as reactionary, under-resourced and ill equipped to deal with rapid medical and technological advances. Rather than leading a crusade against doping, our leaders have watched a decrease in public confidence in the power of ASADA to impose meaningful legal sanctions and, ultimately, a failure to protect the integrity of Australian sport. Essendon Football Club In 2014, ASADA made allegations against Essendon Football Club over use of the banned substance ‘Thymosin Beta-4’ (TB4). The result was a circus of evidential, jurisdictional and procedural errors that resulted in no meaningful sanction for 34 named players involved in an systemic “injection regime”.3 Although the AFL Anti-Doping Tribunal (AFLADT) was comfortably satisfied that TB4 was a banned substance, it was not comfortably satisfied that players were actually administered TB4.4 Comfortably satisfied ‘Comfortably satisfied’ is the standard of proof adopted by the Court of Arbitration for Sport (CAS) and lies between the civil and criminal standards.5 Rule 16.1 of the AFL National Anti-Doping Code states that doping charges brought by ASADA must meet the CAS standard.6 Evidence was adduced showing that the team doctor believed he imported, compounded and injected Essendon players with TB4, and that the players believed they received TB4. However, there was no valid evidence in the form of laboratory blood tests confirming TB4 was actually administered. Despite the evidence corroborating the shared ‘belief’,

since 2008 CAS (and affiliates such as the AFLADT), ‘are not bound by the rules of evidence and may inform themselves in such manner as the arbitrators think fit’.7The charges were dropped. This is in stark contrast with the US experience. When 11 witnesses testified that Armstrong abused EPO (another banned substance), the United States Anti-Doping Authority (USADA) found the evidence ‘overwhelming’.8 Armstrong then confessed and USADA was sufficiently satisfied to strip Armstrong of all seven Tour de France titles. There was no further laboratory testing and the finding was contrary to the results of all contemporaneous tests in the past. Did the AFLADT approach the comfortable satisfaction test too conservatively, more like the criminal standard? Or was the arbitration conflicted between quasi-judicial and administrative functions? This writer believes it was likely a combination of both. ASADA: protecting sporting integrity (sometimes) ASADA’s unsuccessful war against doping in sport has taken its toll on public confidence. Fans need the saga to conclude for the coherence of the games they support.9 Limited by the current legislative framework, ASADA is forced to accept the findings or to appeal to the same AFLADT. WADA, however, has conducted an independent review and exercised a right of appeal to CAS directly. Regardless, this antiquated approach to arbitration and the variety of ‘sideshow’ appeal options10 means that proceedings can be prolonged until well after a sports career comes to a natural conclusion (and salary and sponsorship earnings are no longer at risk). Nevertheless, from 1 January 2015 the introduction of the Australian Sports Anti-Doping Authority Amendment Bill 2014 enables ASADA to enforce alignment of domestic anti-doping codes with that of WADA, and gives ASADA the power for direct prosecution of support personnel involved in doping. Further, appeals to CAS may be heard de novo.11 The case of Essendon Football Club v Chief Executive Officer of the Australian Sports Anti-Doping Authority [2015] FCAFC 7 confirmed ASADA’s powers to conduct investigations, issue notices to players and to appropriate the ‘compulsory powers’ of the AFL to compel players to participate in investigations. Whether these measures will have a tangible effect on the integrity of sport is yet to be seen. Even if we fund better testing, swifter prosecution and education programs, anti-doping charges will always be a reactionary force burdening the perception of sporting solidarity in this country.

Lawmakers and Social Changes

13


Lydia Grammeno explores the rationale behind legalising assisted death in Australia and balances both sides of this complex and controversial debate.

1 Lorana Bartels and Margaret Otlowski, ‘A Right to Die? Euthanasia and the Law in Australia’ (2010) 17 Journal of Law and Medicine 532, 532.3 Australian Instit ute of Health and Welfare, Palliative Care (11 September 2015) < http://www.aihw.gov.au/palliative-care/>4 Professor George Williams, Changing Minds on the Right to Die (10 September 2015) UNSW Law < http://www.law.unsw.edu.au/news/2015/03/changing-mindsright-die> 5 Above n 1, 533. 6 For example the Consent to Medical Treatment and Palliative Care (Voluntary Euthanasia) Amendment Bill 2008 (SA), the Dying with Dignity Bill 2009 (Tas), the Voluntary Euthanasia Bill 2010 (WA) and recently the Voluntary Assisted Dying Bill 2013 (Tas) just to name a few, all of which were defeated in parliament. 7 See generally Senate Legal and Constitutional Affairs Committee, Exposure Draft of the Medical Services (Dying with Dignity) Bill 2014 (12 September 2015) Parliament of Australia <http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Legal_and_Constitutional_Affairs/Dying_with_ Dignity> 8 Helen Joyce, ‘The Right to Die’ (Speech delivered at the Festival of Dangerous Ideas, Sydney, 5 – 6 September 2015). 9 Above n 1. 10 Brightwater Care Group (Inc) v Rossiter [2009] WASC 229, at [23] per Martin CJ. 11 Ibid, at [24]-[25]. 12 A term advanced by J Savulescu, ‘A Simple Solution to the Puzzles of End of Life? Voluntary Palliated Starvation’ (2014) 40 Journal of Medical Ethics 110. 13 Ben White, Lindy Willmott and Julian Savulescu, ‘Voluntary Palliated Starvation: A Lawful and Ethical Way to Die?’ (2014) 22 Journal of Law and Medicine 376. 14 Above n 2, 550. 15 Ibid, 551 citing Roy Morgan Research, Voluntary Euthanasia

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Lawmakers and Social Changes


Dignity, Democracy and the Rights of the Terminally Ill

Nearly 20 years ago, the Northern Territory passed the Rights of the Terminally Ill Act 1995 (NT) which legalised voluntary euthanasia and assisted suicide, and permitted a terminally ill person over the age of 18 to request a doctor’s help to end their life. One year later, this law was repealed by the Euthanasia Laws Act 1997 (Cth). The debate over whether Australia should legalise assisted death has been raging ever since. Advocacy groups such as Dying With Dignity NSW assert that ‘legislative change is important for the sake of democracy, human rights and compassion for those who are suffering’1 and suggest that governments are reluctant to pass laws for fear of losing votes. The law as it stands Current Australian laws and well-established medical practices permit a doctor to provide palliative care to a patient, sometimes referred to as ‘passive’ euthanasia,2 in circumstances where the administration of lifeprolonging treatment is no longer appropriate. Essentially, this involves ‘improving the quality of life of patients with an active, progressive disease that has little or no prospect of a cure’3 by easing their pain and suffering, and in some cases, hastening their death.4 On the other hand, ‘active’ voluntary euthanasia, doctor-assisted suicide or assisted death is illegal in every Australian state and territory.5 However this is not for want of trying. There have been numerous attempts made by politicians to legislate for voluntary euthanasia,6 the most recent of which being the Medical Services (Dying with Dignity) Exposure Draft Bill 2014 (Cth) prepared by Senator Richard Di Natale of the Australian Greens.7 Legal attitudes towards assisted death Helen Joyce, editor of the Economist, recently pointed out in her speech at the Festival of Dangerous Ideas, ‘we’ve had assisted dying laws of different sorts on the books in several different countries for up to 20 years.’ She goes on to note however that most doctor’s organisations believe that palliative care can adequately control suffering at the end of life rendering assisted dying laws unnecessary.8 Nevertheless, according to recent polls, over 80% of Australians agree that terminally or incurably ill people should have the right to choose the circumstances of their death.9 As demonstrated by the case of Brightwater Care Group (Inc) v Rossiter [2009] WASC 229, judges can only go so far in recognising such a right. It was held that a nursing home would not be criminally liable for the death of Christian Rossiter, a quadriplegic patient who had requested that the feeding tube be removed from his stomach, essentially allowing him to starve to death. Martin CJ relied on a number of wellestablished common law principles including a person’s right to refuse medical treatment,10 and the right to autonomy or self-determination, which underpins the legal requirement of informed consent when administering medical treatment.11 But is ‘voluntary palliated starvation’12 the only means to achieve a comfortable death desired by a competent adult at a time of their choosing?13

The rationale for legalising assisted death As touched on earlier, notions of individual autonomy and the right for self-determination underpin the rationale for legalising assisted death, in that ‘individuals should be able to determine how and when they will die, provided this does not cause harm to others or interfere with their rights.’14 The rationale is also based on beneficence and the promotion of human dignity. Perhaps of most significance is the widespread community support of legalisation.15 It has also been suggested that the rates of euthanasia in jurisdictions where it is illegal are comparable to those where it is legal, implying that prohibition does not impact significantly on the incidence of euthanasia.16 In saying that, there is also strong opposition to legalising assisted death, based on the fear that it would be too hard to regulate, that the most vulnerable would be exposed to exploitation, that it goes against religious beliefs, and that it would harm the integrity of the medical profession and undermine the value of palliative care, to name a few. Impacts In terms of the actual impact legislation of this sort has, it is helpful to look at some of the empirical data that has been collected in other jurisdictions that have legalised voluntary euthanasia and assisted suicide. For example, in 2007 the number of deaths due to voluntary euthanasia and assisted suicide totaled 3.77% in Belgium. In 2010 the number of deaths due to voluntary euthanasia and assisted suicide totaled 3.1%. In Oregon a total of 341 people died after taking medication prescribed to assist in their suicide in the first 10 years of the relevant legislation being passed.17 Conclusion Although the debate surrounding the legalisation of assisted death is far from being resolved, it is clear that it involves a multitude of complex issues and conflicting concerns. Some commentators have noted that a ‘[r]ational engagement with law, ethics and practice can be obscured by outlandish claims and emotive language, and this has occurred in the past on both sides of the debate.’18 Is it of vital importance that if reform is to take place in this area, it be done in a carefully thought out manner with both political and community engagement. Note** Voluntary assisted dying is currently legal in Switzerland, Netherlands, Belgium, Luxembourg and four American states – Washington State, Oregon, Montana and Vermont.

Survey – Summary Findings (2002), and Sikora J and Lewins F, ‘Attitudes Concerning Euthanasia: Australia at the 21st Century’ (2007) 16 Health Sociol Rev 68. 16 Ibid, citing Otlowski M, “The Effectiveness of Legal Control of Euthanasia: Lessons from Comparative Law” (2002) Recht der Werkelijkheid 137 (Journal of the Dutch/Flemish Association for Socio-Legal Studies) Special Issue, “Regulating Physician-negotiated Death”). See also Kuhse H et al, ‘End-of-life Decision-making in Australian Medical Practice’ (1997) 166 Medical Journal of Australia 191. 17 Ben White and Lindy Willmott, ‘How Should Australia Regulate Voluntary Euthanasia and Assisted Suicide’ (2012) 20 Journal of law and Medicine 410, 433 citing Schüklenk U et al, ‘End-of-Life Decision-making in Canada: The Report by the Royal Society of Canada Expert Panel on End-of-life Decision-making’ (2011) 25 S1 Bioethics 1 at 38-45. 18 Ben White and Lindy Willmott, ‘How Should Australia Regulate Voluntary Euthanasia and Assisted Suicide’ (2012) 20 Journal of law and Medicine 410, 433.

Lawmakers and Social Changes

15


All are Equal in the Eyes of the Law

Carina Lam reflects on the evocative address given by Chief Justice French at UTS earlier this year, particularly with respect to the Constitutional recognition of Indigenous Australians.

Australia’s social history is a short one in comparison to other westernised countries, but is by no means any less compelling. Like many colonised nations, the British occupation left remarkable consequences on the indigenous population. This article aims to consider laws and factors that have affected and continue to affect the Aboriginal and Torres Strait Islander (‘ATSI’) population, and the campaign for Aboriginal recognition and proposed amendments of the Constitution.1 The first Prime Minister Edmund Barton was a driving force in the campaign for federalism and in his success was highly involved in the drafting of the Constitution. In 1898 Australia has a changing social and political landscape and population. Colonies were converging, Aboriginal people becoming displaced and immigration was steadily increasing. During parliamentary debate Barton addresses the notion and perceived issue (and threat) of race. He pushes for white Australia agenda and succeeds; ‘I do not think that the doctrine of the equality of man was really ever intended to include racial equality. There is no racial equality. There is that basic inequality. These races are, in comparison with white races… Unequal and inferior.’2 The notion of white superiority was the major view taken at the time. Barton believed the race power was a necessary means to ‘regulate the affairs of the people of coloured or inferior races who are in the Commonwealth (Cth)’. More specifically, it allowed parliament to ‘…localise [coloured races], restrict migration, confine them to certain occupations or give special protection and secure their return after a certain period to the country whence they came.’3 This referred to non-white people and did not include Aboriginal Australians. At its inception, the Constitution contained sections that deliberately excluded the Aboriginal ‘natives’. In the Constitution: Section 254 allows for States to disqualify people from voting in elections on the basis of race. •

Section 51(xxvi) allows Parliament to legislate on the people of any race, other than the aboriginal race in any State, for whom it deemed necessary to make special laws. Section 127 up until its deletion in 1967, explicitly states that Aboriginal natives are not to be counted as part of the people of the Commonwealth.

With the exception of the latter, the two former provisions remain operational today. Barring the amalgamation of former colonies the preamble makes no mention of the founding of Australia, fundamental rights or the values of Australians in the form of aspirations or character.5 It makes no mention of the prior occupation of Australia by its Indigenous peoples, before the British occupation. In recent times, the Constitution has been deemed a document negotiating areas of trade and commerce, rather than a constitution for the people.6

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Lawmakers and Social Changes


Lawyer and academic George Williams considers our supreme legal document to be out-dated and misaligned. He describes its uses as one of uniting colonies, with more comment on the powers of States, rather than any comment on citizenship and the relationship between the people and government.7 The common law in recent decades has been powerful in the way it has provided interpretation on the subject matter. Judges have been seen to depart from addressing these issues supposing they are marginally peripheral to the decision, while others have not. Kartinyeri v The Commonwealth,8 also known as the Hindmarsh Island Bridge Case is considered a landmark decision in constitutional law on the issue of the race power. The High Court held by a 4:1 majority that the race power did not require laws to be only for the benefit [of a race]. The sole dissenter, Justice Kirby, referred to the 1967 Referendum to highlight the support of the Australian people to remove such discrimination against Indigenous Australians, and advocated for the requirement of significant alternation for the power to be exercised for positive or benign discrimination.9 In her judgment, Justice Gaudron reaffirmed the scope of the power as ‘wide enough to authorise both advantageous and disadvantageous laws’.10 The experiences of ATSI people involving incidents of systemic abuse at the hands of past governments, without any present and tangible commitment to remediation continues to leave grave and long-lasting repercussions. In 2003 the Hon Robert French AC addressed the subject matter and in doing so, distinguished Aboriginal and Torres Strait Islanders from all others. He describes changing laws in this areas as being ‘based not on race but on the special place of those peoples in the history of the nation.’11 More recently, his Honour’s guest lecture at UTS focused on principles of equality before the law and equal justice. Like many legal professionals, Chief Justice French saw the 1967 Referendum as a beneficial change to the law, as it promoted the underlying doctrine of equal legal treatment.

It is important to recognise that the principle of equality before the law, does not necessarily equate to ‘same treatment’. Justice McHugh is noted for his explanation of this idea: ‘discrimination can arise just as readily from an act which treats as equals those who are different as it can from an act which treats differently persons whose circumstances are not materially different.’12 In cases before the High Court, Justice French has tendered that Aboriginality is not used itself as a mitigating factor, but as a means of identifying potential mitigating factors. Following this reasoning, the inclusion of Aboriginals could only bring about positive social change. Essentially, the recognition of Indigenous peoples would mean that the Constitution excludes no Australian. The more complex question to be addressed is whether constitutional change would be enough? Justice French touched on the idea of introducing a Bill of Rights in Australia, arguing that this would not make the constitutional race power redundant, but rather, would promote the use of the power in such a way as to benefit racial groups, and particularly, Indigenous Australians. It need not be stated that political, social and legal challenges still face Australia’s Indigenous population. In light of the long history of Indigenous displacement and unequal treatment, it is this writer’s view that it is simply not enough to provide recognition alone. It is high time to alleviate the harm done in years past. The Australian Constitution ought not disadvantage any group based on race. Rather, it should be a document that cements the protection afforded by the federal parliament to racial groups and more specifically, Aboriginal Australians. This would be in line with the reflections of Justice French, the important concept of equality before the law and the integral Australian value of equal justice and a ‘fair go’.

1 Commonwealth of Australia Constitution Act 19012 Commonwealth, Parliamentary Debates, 26 September 1901, 5233 (Edmund Barton).3 Williams, George. ‘Race and the Australian constitution.’ (2013): 4. ‘Race and the Australian Constitution’ (2013) 28 Australasian Parliamentary Review 4. 4 Commonwealth of Australia Constitution Act 1901, s25. 5 Williams, 4. 6 Ibid. 7 Ibid. 8 Kartinyeri v Commonwealth [1998] HCA 22. 9 Williams, 10[1]. 10 Kartinyeri v Commonwealth [1998] HCA 43. 11 The Hon Justice Robert French, “The Race Power: A Constitutional Chimera”, chapter 8 in HP Lee and George Winterton (eds), Australian Constitutional Landmarks (2003, Cambridge University Press) 180 at 208 12 Waters v Public Transport Corporation (1991) 173 CLR 349 at 402.

Lawmakers and Social Changes

17


Australia’s Shame – Intimate Partner Violence Against Women Domestic violence continues to be an issue of paramount importance, claiming a number of victims each year. Francesca Elias-Arciuli dissects the legal protection currently afforded to victims of intimate partner violence. Is it enough?

On 10 September 2015, two women were killed as the result of intimate partner violence. Their names were Tara Brown and Karina Lock. Both women had taken out domestic violence orders against their former partners. These shocking incidents highlight that, even with prominent anti-violence campaigns and vocal opposition by our nation’s leaders, intimate partner violence (‘IPV’) still occurs despite victims having accessed legal frameworks that should have protected them. In citing these stories I am not seeking to advance the notion that women are exclusively the victims of IPV, or undermine the experiences of men or other genders that are also victims in these circumstances. However, the disproportionate rate of women harmed and killed by men in intimate relationships indicates why current legislative measures and proposals target male-to-female violence, and seek to protect female victims. What legal protections exist for victims? The main legal protection for victims is a civil protection order system that seeks to provide future protection to victims of IPV.1 The names of these orders vary between jurisdictions, although they essentially have the same effect. In NSW, they are known as an Apprehended Domestic Violence Order (ADVO). The Court, being the Local or Children’s Courts,2 have the power to make these orders under s16 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) upon the application for an order by someone who has or has had a ‘domestic relationship’ with the person against whom the order is placed (‘the defendant’).3 Provisional orders made by senior police officers are also taken to be applications for ADVOs under s29.4 The matters to be considered by the Court under s17 place particular emphasis on the impact of the order on the ‘protected person and any children’, including their safety and any hardship they may experience. Section 35 provides a list of orders that the court can impose at its discretion when making an apprehended violence order, including but not limited to prohibiting or restricting the defendant from: • • •

approaching the protected person; accessing any premises occupied or frequented by the protected person; possessing firearms or prohibited weapons;

Under s14, where a defendant knowingly contravenes a prohibition or restriction specified in the ADVO, they are guilty of an offence and liable for imprisonment for 2 years or 50 penalty units, or both. Criticisms of current protections One criticism of the civil protection order system is that it further privatises the nature of IPV by treating the problem with a civil, rather than criminal, remedy.5 However, the very public nature of deaths in recent years as a result of IPV, which received extensive media coverage, arguably firmly plants this issue in the public sphere. Further, the civil regime also has a number of potential benefits over a criminal regime, including its ability to respond to a wider range of facts and look beyond discrete incidents of violence. Another criticism is that these orders do not, and cannot, ensure compliance – they merely encourage it. It is true that the legislative regime provides for a penalty upon contravention of an order. However, the evidence of this proposition lies in the deaths of too many women in recent years. An ADVO that prescribes a penalty following a breach is not much use to a victim that dies as a result of subsequent violence. The inability of these orders to protect victims is compounded by the fact that they may not have a safe place to go, particularly following the failure of the federal government in the 2015 Budget to fund new domestic violence initiatives, including refuges and other frontline services.6 Although the newly appointed Prime Minister, Malcolm Turnbull, told Australians to ‘watch this space’ in regards to new government funding,7 the fact remains that there are still no mechanisms that guarantee the safety of victims. Going forward It appears that governments across jurisdictions have been shocked into action by recent public violence. Victoria has launched an inquiry into Family Violence, NSW announced plans to create a register of domestic violence offenders8 and the ACT has announced that it will introduce legislative changes that would ‘make strangulation an offence and allow prosecutors to use victims’ initial police statements as evidence in court’.9 However, it has been highlighted that proposed legislative reform fails to address the underlying causes of family violence, and that education, counselling and support services focused on prevention would be more effective.10 It is beyond the scope of current legislative frameworks, and chronically underfunded frontline services, to protect victims of IPV completely. As a ‘global health crisis of epidemic proportions’,11 there is no easy solution. However, one fact is certain – we cannot let these women turn into mere numbers and statistics, allowing their experiences to fade into the private sphere and out of the public consciousness. We need to talk about the issue so as to discourses surrounding intimate relationships and normative violence. We need to call upon our leaders to allocate funding to vital services. We need to ensure that we do not let IPV become normal.

1 Jane Wangmann, ‘Incidents in context: How does the NSW Protection Order System understand Intimate Partner Violence?’ (2012) 34 Sydney Law Review 695, 695.2 Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 91.3 Ibid, s 15.4 Ibid.5 Wangmann, above n 1, 696.6 Rachel Olding, ‘Budget 2015: “Government failed domestic violence test”’, The Sydney Morning Herald (Sydney), 13 May 2015.7 9 News, ‘”Real men don’t hit women”: Malcolm Turnbull says government will tackle famiy violence’, 9 News (online), 21 September 2015 http://www.9news.com.au/national/2015/09/21/08/56/malcom-turnbull-says-real-men-dont-hit-women 8 ABC News, ‘NSW Government pushes ahead with proposed domestic violence disclosure scheme’, ABC News (online), 21 May 2015 http://www.abc.net.au/news/2015-05-21/nsw-pushes-ahead-with-domesticviolence-scheme/6485982. 9 Megan Gorrey & Michael Inman, ‘Domestic violence law reforms a “knee-jerk reaction”, Canberra defence lawyers say’, Canberra Times (Canberra), 3 April 2015. 10 Ibid. 11 World Health Organisation, ‘Violence against women: a “global health problem of epidemic proportions”’ (Media Release, 20 June 2013) 1.

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Lawmakers and Social Changes


â&#x20AC;&#x153;The inability of these orders to protect victims is compounded by the fact that they may not have a safe place to go, particularly following the failure of the federal government in the 2015 Budget to fund new domestic violence initiatives, including refuges and other frontline services.â&#x20AC;?

Lawmakers and Social Changes

19


Ending â&#x20AC;&#x2DC;Guerilla Lawfareâ&#x20AC;&#x2122;

20

Environmental groups rejoiced at the recent success of the Mackay Conservation Group in challenging the approval of the Adani Carmichael coal mine. While this may symbolise a win for the environment, Bianca Balzer reveals that it may also serve to the restrict the ability of environmental interest groups to gain standing to review future decisions. Lawmakers and Social Changes


Two months ago, Australia saw a formidable display of legal advocacy by grassroots social groups – notably the success of the Mackay Conservation Group in reversing the Australian Government’s approval of Adani’s Carmichael coal mine. Plans for the mine threatened ecological welfare a number of significant Australian sites, including the Great Barrier Reef, Doongmabulla Springs, as well as two Australian endangered species. The success of the Mackay Conservation Group demonstrates how public interest in the environment can so effectively shape the law. However, with more recent developments, we see how political influence can just as easily try shape it back, with Federal Attorney-General George Brandis announcing plans to quash future attempts by green groups seeking judicial review of environmental approvals. Section 487 – to repeal or not to repeal? A Bill to repeal s 487 the (‘the Act’) has been introduced to Parliament, threatening to end the ability of environmentalist groups to have standing on matters which fall under the Act.1 Section 487, as it stands, extends the class of persons able to sue to include not just those directly affected, but any Australian citizen that has been engaged in environmental conservation or research at any time within the preceding two years – that can range between any involved scientist, famers’ union, and environmental organisation, such as the Mackay Conservation Group. Indeed, laws are naturally subject to change, however changes made must not be made in contravention of fundamental principles of law, including especially the rule of law. In this case, the intervention of the Government based on an aggressive political agenda could topple the scales of justice, with the voice of public interest wrongly losing out. In instances of national environmental significance it is crucial that this voice be protected. Undeniably, a valid political concern may be a fair cause for change. Minister for the Environment, Greg Hunt, commented in relation to the Bill, “a major threat to the administration of the EPBC Act has emerged recently… the use of litigation to “disrupt and delay key projects and infrastructure” within Australia.”2 Of course, if this were the case, it may seem reasonable for the Government to remove the s 487 – the truth, however, is that it’s not. The review requested by the Mackay Conservation Group related to the Environment Minister’s failure to consider the fate of two endangered species with the introduction of the mine – a breach of the Act. It was not a trifling matter, but one which concerned a miscarriage of the law, and contravention of substantial public interest. His deflection of the issue onto environmentalist groups, who are the wrong target, shows a lack of respect for the judicial system as well as the rule of law.

of powers, and the function of democracy. These groups act as Government watchdogs, however, in response key members of the Government antagonise them, comparing them to terrorists, and describing their work as “lawfare”, “sabotage” and “vigilante litigation”.5 It is clear that the Government has a (closed-minded) economic agenda to protect, and this agenda is arguably not sincere enough to justify legal change to the extent proposed. One can wonder whether the Government’s stance would be more convincing if the Carmichael mine was likely to live up to expectations. With 800,000 Australians currently unemployed, the promise of 10,000 jobs from the development of the mine is a fair consideration. However, in reality, only 1,500 jobs will actually be created. Even so, the fact still stands that silencing opposition by taking away their standing is not a valid exercise of power. After all, these environmental groups are not making the law themselves – but asking for it to be enforced. Is our environment in danger? At a time where climate change, resource struggles, and technological advancements such as fracking pose significant risks to the environment, it is crucial the public be allowed to keep its Government in check, especially where that Government wants to extend the reach of its power. The Bill before Parliament is a threat to the rights of Australians to stand up and protect the environment, as well as enforce already standing law. All Australians have an interest in the health of our environment and the protection of iconic places such as the Great Barrier Reef. To turn back the law to how it was in 1974 would be backward step to further endanger our environment. Though, it is predicted Malcom Turnbull’s recent takeover as Prime Minister could end the nightmare – however the Cabinet’s reshuffling has not affected Brandis nor Hunt’s positions. We can only hope that the Bill be dismissed and the rule of law protected to ensure that the law responds to public interest, and not political agendas.

But, who will ‘stand’ for the environment? It is crucial to note that s 487 does not cause for frivolous intervention on behalf of social groups. Director of the Environmental Defender’s Office, Jeff Smith highlights that any attempt to bring a case must be founded on a proper cause of action. He adds, “you cannot go to court without a meritorious set of arguments and you cannot go to court without reasonable prospects of success.”3 This is reflected statistically in the reach third party merit appeals has made. Since the Act commenced in July 2000, out of the 5500 projects launched under s 487 most have only undergone office review, with only 0.4% ever making it to court.4 These statistics show that the part played by third parties in enforcing public rights is very restricted. By allowing environmental groups to stand the law protects the separation

1 Environment Protection and Biodiversity Conservation Amendment (Standing) Bill 20152 ABC, ‘Govt looks to remove section of environment law, critics say it’s a step backwards for courts and the environment’, The World Today, 20 August 2015 (Greg Hunt) <http://www.abc.net.au/worldtoday/content/2015/s4296820.htm>. 3 ABC, ‘Panel debate: Michael Roche, Executive Director of the Queensland Resources Council and Jeff Smith, Executive Director of the Environmental Defenders’, Lateline, 19 August 2015 (Jeff Smith) <http://www.abc.net.au/lateline/content/2015/s4296571.htm> 4 The Australia Institute, The 0.4% (18 August 2015) <http://www.tai.org.au/content/04>. 5 Attorney-General (Cth), ‘Government acts to protect jobs from vigilante litigants’ (Media Release, 18 August 2015) <http://www.attorneygeneral.gov.au/Mediareleases/ Pages/2015/ThirdQuarter/18-August-2015-Government-acts-to-protect-jobs-from-vigilante-litigants.aspx

Lawmakers and Social Changes

21


Stopping the Pirates: Australiaâ&#x20AC;&#x2122;s own Fury Road

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Lawmakers and Social Changes


Ricardo Villegas investigates newly introduced copyright regime, led by our very own ‘Mad Malcolm’, and assesses their effectiveness in regulating online piracy in Australia.

In the post-apocalyptic Australian wasteland of the Mad Max movies, our hero, Max, squares off against pirates and scavengers that swarm around their victims, surround their prey with bestial cars full of spikes, blades and flame-throwers and take whatever they want without any consideration.1 This description of the post-apocalyptic world depicted in the Mad Max films could also describe the federal government’s view of online piracy in Australia where internet pirates swarm around copyright material located in bit torrent sites, download it and never pay a cent. The Honourable Malcolm Turnbull, Minister for Communications, now the Prime Minister of Australia, decided to don the leather jacket and crank up the Nitrous Oxide System to mount a two-pronged attack against these online pirates. First, our hero, ‘Mad Malcolm’, issued an ultimatum to the Internet Service Providers (ISPs) to develop an industry code by 8 April 2015.2 The Communications Alliance Ltd3 responded with the Copyright Notice Scheme (CNS).4 Second, he spearheaded the amending of the Copyright Act (Cth) ß5 to allow owners of copyright to petition the Federal Court of Australia to grant an injunction for Internet Service Providers (ISPs) to block websites that allow copyright infringement.6 This article will analyse why most of ‘Mad Malcolm’s’ attempts to bring order to this anarchic world through increased regulation are largely ineffective.

Education Notice, which is sent via email to the Account Holder (AH) whose Internet Protocol (IP)13 address has been reported to the ISP as an alleged infringement of copyright by the Rights Holder (RH). The second strike is a Warning Notice informing the AH that a further notice may result in court proceedings.14 The third strike is a Final Notice which requires an acknowledgement of receipt and includes a statement that the AH may challenge any of the notices via the adjudication panel.15 If twelve months elapses between the first or second notice, the record is wiped clean and the process resets.16 After a Final Notice has been issued (barring any successful challenges), their IP address and corresponding infringements are placed on a Final Notice List. The rights holder can use the information in the Final Notice list to apply for a Preliminary Discovery order from the court. If granted, the ISP must release the AH’s details to the RHs. The RHs can then use the Copyright Act to file motions against the AH in court.17 Other governments have already instituted these types of schemes against their respective pirates. However, research demonstrates that GR schemes have not been overly effective. The Gyro Captain: ‘How do we know [it’s] not a dud?’

Piracy is as pervasive in the Land Down Under as Mrs. Mac’s beef pies. A study by UMR Research found that 21% of respondents were ‘pirates’ that had engaged and were continuing to engage in illegal downloads.7 In April 2014, Australian pirates swarmed over the Season 4 premiere episode of HBO’s Game of Thrones and had a higher share of the illegal downloads (11.6%) than either the USA (9.3%) or the UK (5.8%).8 Another study has shown that Australians illegally downloaded more songs per capita in 2012 (19 million downloads) than any other country.9 The pirates in Australia are young10 and tech savvy,11 ready to bypass detection by going underground on the ‘deep web’.12 It is into this anarchic world of online piracy that ‘Mad Malcolm’ ventured into with his CNS in one hand and his Amendment in the other.

Dr. Rebecca Giblin has conducted an in-depth peer-reviewed study of these schemes and concluded that; ‘there is scant evidence that the law actually reduces infringement’.18 Additional research in New Zealand by Waikato University did see drops in P2P traffic after the introduction of GR but they occurred simultaneously with a rise in technologies to help bypass detection.19 In fact, a follow up study concluded that there had been a significant move from easily detectable bit torrent downloads to virtually undetectable HTTPS traffic from foreign seed boxes, transferred through a Virtual Private Network (VPN).20 The effectiveness of GR schemes has been repeatedly affirmed by RHs but meticulous scrutiny by academics and scholars has shown that these claims are not supported by evidence.21 Perhaps the RHs hold on to the notifications with the same tight grip that Curmudgeon22 has on his postcard of the Sunshine Coast. And just as Mad Max knows that Curmudgeon’s paradise is just a fantasy, ‘Mad Malcolm’ realised that sending notices would not be enough.

The Copyright Notice Scheme

“Here they come! Close the gates!”23

The CNS is Australia’s version of Graduated Response (GR), an approach to battling online piracy with the ISPs’ cooperation. The Communications Alliance decided to follow a ‘three strike’ version. The first strike is an

The Copyright Amendment (Online Infringement) Act 2015 ß is the other key part of Malcolm’s plan to reduce, and hopefully end, the scourge of online piracy. It amends the Copyright Act by adding section 115A. This

Australian Online Pirates: Some of the Best in the World

1 Mad Max (Directed by George Miller, Kennedy Miller Productions, 1979); Mad Max 2 aka The Road Warrior (Directed by George Miller, Kennedy Miller Productions, 1981); Mad Max Beyond Thunderdome (Directed by George Miller and George Ogilvie, Kennedy Miller Productions, 1985); Mad Max: Fury Road (Directed by George Miller, Kennedy Miller Productions, 2015). 2 Karen Anne Hayes & Mary Huang, Addisons Law Firm, Australian Solution to Piracy – Industry Code for Internet Service Providers (2015), 1. 3 It is the primary telecommunications industry body in Australia, Communications Alliance Ltd., Leading our Industry into the Future (May 2015), <http://www.commsalliance.com.au/home>. 4 Communications Alliance Ltd, Industry Code C653:2015, Copyright Notice Scheme, 9 April 2015. 5 Copyright Amendment (Online Infringement) Act (Cth) 2015 6 The Copyright Amendment (Online Infringement) Act (Cth) 2015 commenced on 26 June 2015 when it received the Royal Assent. <https://www.comlaw.gov.au/Details/C2015A00080>. 7 UMR Research, ‘Online Behaviours: An Australian Study’ (Research summary, commissioned by the Australian Home Entertainment Distributors Association et al, 2013), 3. 8 Ernesto Van Der Sar, Game of Thrones Triggers Piracy Craze, 7 April 2014, Torrent Freak, < http://torrentfreak.com/game-of-thrones-premiere-triggers-piracy-craze-140407>. see also Fig. 1 in APPENDIX. 9 Bernard Zuel, ‘Australians World’s Worst for Illegal Music Downloads’, The Sydney Morning Herald (online), 19 September 2012 < http://www.smh.com.au/entertainment/music/australians-worlds-worst-for-illegal-music-downloads-20120918-2643a.html> citing a study by MusicMetric. 10 see UMR Research, ‘Online Behaviours: An Australian Study’ (Research summary, commissioned by the Australian Home Entertainment Distributors Association et al, 2013), 10 that shows that 44% of pirates are under 30 and 69% are under 50. 11 Julian Fraillon et. al., ‘Preparing for Life in a Digital Age’ (International Computer Information Literacy Study, Australian Council for Educational Research, 2014), 96. 12 Tyrone Dalton, ‘Pirates Aim to Outwit Code’, Sunraysia Daily (Online), 6 March 2015 < http://www.sunraysiadaily.com.au/story/2925530/pirates-aim-to-outwit-code/>. 13 See Russ Smith, ‘IP Address: Your Internet Identity’ (29 March 1997) on National Telecommunications & Information Administration <http://www.ntia.doc.gov/legacy/ntiahome/privacy/files/smith.htm> that defines an “IP address” as something similar to a telephone number or street address containing personally identifiable information that is automatically captured by another computer when any communications link is made over the Internet. 14 Communications Alliance Ltd, Industry Code

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section permits owners of copyright to make an application to the Federal Court of Australia for an injunction requiring the ISPs to disable access to an online location that infringes, or facilitates infringement, of copyright.24 It would close the gates and not allow passage of Australian internet users to websites registered outside of Australia which contain indexes to infringe copyright.25 In the second reading speech, Malcolm asserted that this type of provision is working well in other countries.26 In fact, as of May 2015, the UK High Court has blocked more than 100 bit torrent and streaming sites27 with the help of motivated ISPs (such as BT) who act on their own initiative to block websites not yet Court approved.28 Dr. Poort29 led a study on the effectiveness of court ordered ISP blocks of the Pirate Bay for more than 90% of Dutch internet subscribers.30 The surveys showed that after the block more than half (56.1%) of the respondents expected to keep their illegal downloading rate unchanged and around a quarter (28.8%) of respondents expected to decrease their downloading.31 In 2014, The Hague Court of Appeal, overturning that block of the Pirate Bay, had evidence before it that demonstrated piracy had actually increased since the blockade.32 While the courts, RHs and ISPs manoeuvre the bureaucratic maze to block websites, pirates are busy finding tunnels around government imposed blockades.33 These tunnels come in the form of mirror sites (or proxies). The proxies are established on an almost daily basis.34 In fact, despite all the blocks by various countries, Pirate Bay’s traffic has doubled since 2011.35 Almost 10% of this traffic emanates from countries where the ban has been imposed, indicating the use of proxies, and the other 90% stems from countries with no ban on the Pirate Bay.36 Additionally, a VPN would give the user another IP address.37 For example, an Australian internet user with a Dutch VPN would have an IP address from the Netherlands; rendering any Australian block ineffectual.38 Additionally, the CNS would not affect this user since his IP address is now Dutch, not Australian. As evident in New Zealand, once a GR scheme is enacted, the use of these types of technologies becomes more widespread.39 However, ‘Mad Malcolm’s’ struggle against pirates is not as bleak as Mad Max’s. In contrast to the scarcity of oil and water in the irradiated wastelands, the digital economy is seemingly one of abundance and infinite supply.40

Nux:41 ‘Feels like hope’ Recent regulations and attempts to curtail of online pirating seem to have only emboldened pirates to find new methods of circumvention. Research sponsored by the Communications Alliance42 has indicated that if content was cheaper (66%)43 and simultaneously available as in other markets (60%),44 people wouldn’t download illegally. The Pirate Bay45 has cited studies that show expansion of streaming services delivering legal content were linked to reductions in bit torrent traffic in Canada,46 Norway,47 Sweden48 and the United States.49 However, while piracy may decrease when legal and cheap alternatives become available, the reality is that piracy is here to stay. A YouGov study, sponsored by TDC Group,50 found that 45% of Danes were subscribed to a premium streaming service in 2014 (compared to 32% in 2012) but the illegal downloading rates had not significantly changed in that time.51 Just as the heavily indoctrinated “war boys” will never change their ways52 neither will the dedicated online pirates. ‘Mad Malcolm’ and his successor’s best hope is to facilitate the entry of legal choices for online streaming with prospects of converting more moderate pirates.

C653:2015, Copyright Notice Scheme, 9 April 2015, 16. 15 ibid, 17. An adjudication panel is defined as the independent body appointed by the Copyright Information Panel to adjudicate on Challenge Notices by Account Holders, 5. 16 ibid, 14. 17 Communications Alliance Ltd, Industry Code C653:2015, Copyright Notice Scheme, 9 April 2015, 23. 18 Rebecca Giblin, ‘Evaluating Graduated Response’ (2014) 37 Columbia Journal of Law & The Arts 147. 19 Shane Alcock & Richard Nelson, ‘Measuring the Impact of the Copyright Amendment Act on New Zealand Residential DSL Users’ (2012) <http://wand.net.nz/sites/default/files/caa.pdf>, 2. 20 The Impact of the Copyright Amendment Act: Update for September 2012, WAND Network Research Group (Oct. 25, 2012), <http://wand.net.nz/content/impact-copyright-amendment-act-update-september-2012>. 21 Rebecca Giblin, ‘Evaluating Graduated Response’ (2014) 37 Columbia Journal of Law & The Arts 147, 209. 22 Curmudgeon is an optimistic elderly man who lives in the oil refinery with the other survivors. see Mad Max 2 aka The Road Warrior (Directed by George Miller, Kennedy Miller Productions, 1981), 1:00:32. 23 This is shouted by the guard on the lookout tower when he sees Lord Humungus’ gang of pirates and scavengers rolling up to the oil refinery. see Mad Max 2 aka The Road Warrior (Directed by George Miller, Kennedy Miller Productions, 1981), 28:39. 24 Copyright Amendment (Online Infringement) Bill 2015 (Cth), s115A (1) (a – c) and (2). 25 Copyright Amendment (Online Infringement) Bill 2015 (Cth), s115A (5)(b). 26 Commonwealth, Parliamentary Debates, House of Representatives, 27 March 2015, 3591-94. (Malcolm Turnbull), 3592. 27 Lucy England, ‘The UK has Blocked One of the World’s Most Popular Torrent Services for Free Movies’, Business Insider Australia (online) 1 May 2015 <http://www.businessinsider.com.au/court-orders-uk-isps-to-blockpopcorn-time-2015-5>. 28 Dave Neal, ‘UK ISPs Close a String of Torrent Sites Following Court Order’, The Inquirer (online) 28 November 2014 <http://www.theinquirer.net/inquirer/news/2383910/bt-blocks-a-swatheof-private-torrent-sites>. 29 Professor of Microeconomics at the University of Amsterdam 30 Poort, J. et al., ‘Baywatch: Two Approaches to Measure the Effects of Blocking Access to The Pirate Bay’, (2014) Telecommunications Policy, <http://dx.doi.org/10.1016/j.telpol.2013.12.008>. 31 ibid, 5. 32 Samuel Gibbs, ‘Pirate Bay Ban Lifted in Netherlands as Blocking Torrent Sites ruled “ineffective”’, The Guardian (online), 30 January 2014 < http://www.theguardian.com/technology/2014/jan/29/pirate-bay-ban-lifted-in-netherlands-as-blocking-torrent-sites-ruled-ineffective>. see also Gerechtshof Den Haag [The Hague Court of Appeal], ECLI:NL:GHDHA:2014:88, 28 January 2014. 33 “The Feral Kid” is a 10 year old boy who was born after the collapse of civilisation. He has dug a series of tunnels from within the besieged compound to the outside. He uses these tunnels to go outside, throw his sharpened boomerang at the post-apocalyptic pirates and quickly scurry back to the compound. see Mad Max 2 aka The Road Warrior (Directed by George Miller, Kennedy Miller Productions, 1981), 33:35. 34 ‘Online Copyright Infringement’ (iiNet Response to Australian Government Discussion Paper, 5 September 2014), 20. 35 Liat Clark, ‘Pirate Bay Traffic has Doubled Post-ISP Blocks’ Wired (online), 18 July 2014 <http://www.wired.co.uk/news/archive/2014-07/18/pirate-bay-traffic-doubles>. 36 Ernesto Van Der Sar, Pirate Bay Traffic Doubles Despite ISP Blockades, 17 July 2014, Torrent Freak < https://torrentfreak.com/pirate-bay-traffic-doubles-despite-isp-blockades-140717/>. 37 Andrew Tarantola, VPNs: What They Do, How They Work and Why You’re Dumb for Not Using One, 26 March 2013, Gizmodo <http://gizmodo.com/5990192/vpns-what-they-do-how-they-work-and-why-youre-dumb-for-not-using-one>. 38 James Brandes, ‘Shiver me timbers! Is the torrent site blockade working or have those pesky pirates circumnavigated their way around it?’, ORG Zine (online), 2013 <http://zine.openrightsgroup.org/features/2013/blocking-orders>. 39 The Impact of the Copyright Amendment Act: Update for September 2012, WAND Network Research Group (Oct. 25, 2012), <http://wand.net.nz/content/impact-copyright-amendment-act-update-september-2012>. 40 Simon Frew et. al., ‘Submission to the Attorney-General’s Department on the Online Copyright Infringement Discussion Paper’, (Pirate Party Australia 2014), 6. 41 Nux is one of the central characters in the film. He begins the movie as a very indoctrinated “War Boy” who attempts, and fails (several times), to sacrifice his life for Immorten Joe. Eventually, through contact with Max, Furiosa and the wives of Immorten Joe, he converts to their side and helps them to escape from the clutches of the deranged pirates. see Mad Max Fury Road (Directed by George Miller, Kennedy Miller Productions, 2015), 1:32:24. 42 JWS Research, ‘Online Copyright Infringement Research Report’ (Prepared for the Communications Alliance, November 2014). 43 Ibid, 5. 44 Ibid, 5. 45 Simon Frew et. al., ‘Submission to the Attorney-General’s Department on the Online Copyright Infringement Discussion Paper’, (Pirate Party Australia 2014), 2. 46 ‘Netflix Canada: Piracy Down 50 Per Cent Since Service’s Launch’, The Huffington Post Canada (online), 18 September 2013 <http://www.huffingtonpost.ca/2013/09/18/netflix-canada-piracy-down_n_3947633.html>. 47 Sophie Curtis, ‘Spotify and Netflix curb music and film piracy’, The Telegraph (online), 18 July 2013 <http://www.telegraph.co.uk/technology/news/10187400/Spotify-and-Netflix-curbmusic-and-film-piracy.html>. 48 Ernesto Van Der Sar, ‘Music piracy continues to decline thanks to spotify’, TorrentFreak (online), 28 September 2011 <http://torrentfreak.com/musicpiracy-continues-to-decline-thanks-to-spotify-110928/>. 49 Leo Kelion, ‘Netflix studies piracy sites to decide what to buy’, BBC (online), 16 September 2013 <http://www.bbc.com/news/technology-24108673>. See also Ernesto Van Der Sar, ‘Netflix is killing BitTorrent in the US’, TorrentFreak (online), 27 April 2011 <https://torrentfreak.com/netflix-is-killing-bittorrent-in-the-us-110427/>. 50 Denmark’s leading telecoms company 51 Andrew Norton, ‘Pirates Like Streaming, But Don’t Completely Abandon Ship’, Torrent Freak (online) 5 June 2014 < https://torrentfreak.com/pirates-like-streaming-but-dont-completely-abandon-ship-140605/>. 52 The “War Boys” is the name given to the young males who serve Immorten Joe, a warlord who hoards the water supply and uses that power to subjugate the people. The “War Boys” are so heavily indoctrinated that they will spray chrome paint on their mouth before sacrificing their life in a shiny and chrome death at the whim of Immorten Joe. see Mad Max Fury Road (Directed by George Miller, Kennedy Miller Productions, 2015).

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CANâ&#x20AC;&#x2122;T WAIT TO CU!

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Secrecy in The Border Force Act 2015 (Cth) By Jason Corbett ‘Power is in tearing human minds to pieces and putting them together again in new shapes of your own choosing.’ – George Orwell, 1984.

1 Border Force Act 2015 (Cth) s 42(1)(a).2 Ibid s 42(1)(b).3 Ibid s 42(1)(c).4 Ibid s 4(1) (definition of ‘entrusted person’ para (c)); Ibid s 4(1) (definition of ‘Immigration and Border Protection Worker’ para (e)(i)).5 Ibid s 4(1) (definition of ‘protected information’).6 Open letter from John-Paul Sanggaran et al to Tony Abbott, Peter Dutton & Bill Shorten, 1 July 2015, 1 <http://www.scribd.com/doc/270132364/Letter-to-Prime-MinisterTony-Abbott>.7 Above n 1 s 48.8 Fact Check, Fact Check: Are staff working in detention centres protected by whistleblower laws if they speak out? (4 August 2015) ABC News <http://www.abc.net.au/news/2015-08-03/ whistleblowers-offshore-detention-fact-check/6633168>.9 Ibid.10 Ibid.11 George Orwell, 1984 (Penguin Group (Australia), 2011) 31.

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The most seminal qualities of Orwell’s writing often involved his thematic concerns with the dangers and evils of tyrannical governments, masquerading as protectors, developing irrevocable control over the lives, voices, and (in egregious particularity) knowledge of its subjects. Freedom of speech or, more relevantly to Australia, freedom of political communication, has become an integral quality in many western nations of modern society. Any attempts to restrict such freedom is met is vicious criticism, and it is of no surprise that the recent (Cth) (‘the Act’), which passed with bipartisan support, has become subject to harsh scrutiny. Application Much of the controversy surrounds section 42(1) which imposes a 2 year imprisonment sentence on an individual who ‘is, or has been, an entrusted person’,1 and who ‘makes a record of, or discloses, information,’2 and ‘that information is protected information’.3 Within the Act, ‘entrusted persons’ includes, among others, people who are generally employed as a consultant or contractor to perform services for the Department of Immigration and Border Protection,4 and ‘protected information’ are those which are obtained by a person in the person’s capacity as an entrusted person.5 This would subsume security workers, doctors, counsellors, and the like who work in immigration detention centres within the ambit of the Act. In application, section 42(1) clearly seeks to restrict the flow of information regarding the operation of detention centres. This creates a very genuine concern for ‘whistle-blowers’ working in detention centres, to whom we owe much of our knowledge of the harrowing conditions asylum seekers are subjugated to. As more than 40 current and former medical, educational and humanitarian workers on Nauru and Manus Island have said, the section ‘strengthens the wall of secrecy which prevents proper scrutiny’.6

prevent or lessen a serious threat to the life or health of an individual; and the disclosure is for the purposes of preventing or lessening that threat’.7 Furthermore, it would also appear that the ordinary protections for whistleblowers are provided for under section 42(2)(c), which is a generalist section protecting disclosure where other laws of the Commonwealth, State, or Territory require or authorise it. Despite these exceptions, Associate Lecturer Khanh Hoang of ANU noted that a person seeking to rely on any of these bears the onus of proof of defending their actions in court8 (though this of course does not differ from any normal circumstances of raising defences in court). However, whilst disclosure itself may not lead to imprisonment, whistle-blowers risk losing their employment. Furthermore, despite Australia having the most comprehensive whistle-blowing laws for public sector workers compared to other countries,9 George Newhouse, Special Counsel for Shine Lawyers Social Justice Department, warns that the complexity of the scheme is such that an average worker would struggle to make the legal judgements required to ensure their own protection – there is little actual guidance in the whistle-blowing schemes to provide certainty to workers.10 Conclusion Collectively, these difficulties emphasise that imprisonment is not necessarily the intent or focus of the secrecy provision. Rather, it is an insidious intention to strongly deter workers from informing the public of the operation and conditions within detention centres. They shatter any real prospect of transparency, and replace it with a façade that is not only subject to the government’s control, but is also manifestly a heinous abuse of its own power. But why do such a thing? Perhaps because, after all, ignorance is strength.11

Exceptions The section of course does not operate as a blanket ban on disclosing information – there are various exceptions contained between sections 42 and 49, perhaps the most comforting being an exception for an entrusted person who ‘reasonably believes that the disclosure is necessary to

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Spotlight on Social Justice

Sarah Maynard comments on the intricate and changing relationship between women and the law in response to the Women in Prison and Women in Law Seminars run by the UTS LSS earlier this year.

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Lawmakers and Social Changes

Women’s Empowerment: from the Ground up

Women in Prison There are 746 women in NSW prisons today. Almost 50% of them will return to prison within two years of being released. Our criminal justice system claims to be rehabilitative however, there is a severe lack of resources to aid these women reintegrate and become functioning members of society. Professor Juanita Sherwood and Kat Armstrong scrutinised the issues faced by women in prison, particularly indigenous women, at the recent UTS LSS Women in Prison: Colonisation, Incarceration and Ways Forward Seminar. Kat is the co-founder and president of the Women in Prison Advocacy Network (‘WIPAN’). WIPAN run a mentoring program for female inmates and draft submissions to the government on policy issues affecting women in prison. It is a small NGO with very limited public funding, heavily relying on volunteers and donations. If you are interested in volunteering please visit the website at: https://www.wipan.net.au/. Professor Juanita Sherwood is the academic director of the Centre for Cultural Competence. They work to ensure that individuals and groups develop a deepened understanding of the impacts of culture, and implement initiatives to improve educational, economic, cultural and social outcomes throughout society. It is based at the University of Sydney. The plight facing these women after their release was a major focal point of the seminar. Upon release, these women are dressed in the clothes they wore when they entered. If they do not fit, they are forced to pay for their prison greens in order to have something to wear. They are released being marked as a criminal, not a person who has paid their dues. They are also given $213.00 as a crisis payment, intended to last two weeks. They have no food, no clothes, and nowhere to stay. Centrelink cannot help them if they do not have ID, and the crisis accommodation provided by the Department of Housing often means that recovering addicts and criminals are placed next door to the people they once were.


“Women’s disempowerment is systemic throughout all experiences, lifestyles and social classes. At present, four of the High Court Justices are women. However, this kind of equal representation has not yet filtered throughout the entire profession.”

These women are heaped with fines for the legal costs awarded against them, when many women are in prison for unpaid fines. We release them, while simultaneously drawing them back. The first five days out of prison are said to be the most isolating. It is the time when many overdose, missing the structure and comfort of their fellow sister inmates. It is almost impossible for these women to get a job, as educational opportunities in prison are limited, and their criminal records hinder their employability post-release. This means they often resort to the same criminal behaviour, and/or a reliance on social security. Without even realising, we may be judging these women. It is easy to say that our taxes may be better spent elsewhere. However, we owe the most disadvantaged in our communities the opportunity for redemption. These women are mostly victims of various kinds of abuse: domestic, sexual, and physical. They are often recovering addicts from low socioeconomic demographics with behaviours they learned from their parents as the only reasonable way to survive. Many have poor parenting skills because they don’t have someone to emulate, or are a victim of the lasting impacts of the stolen generations. The impact of the stolen generation and the systemic discrimination against Aboriginal and Torres Strait Islanders is not to be denied, and is evident in the vast overrepresentation of them in NSW prisons. To date, ATSI people make up 3% of the overall Australian population, but 30% of incarcerated women are Aboriginal. For these women, their pathway to prison has been wholly or partially dominated by the impacts of Indigenous dispossession, frontier violence, the stolen generation, and continued institutionalised discrimination.

Many women question whether it is possible to have children and be successful in law. It was encouraging to hear of the experiences of two impressive female legal professionals. Jane Needham, President, NSW Bar Association, and Jeanette Hoogstad, Partner at Banki Haddock Fiora, both worked part-time for extended periods while raising children and have been extremely successful. They are proof that women lawyers can in fact, have it all. Jane, Jeannette, and Mary Konstantopoulos, a Financial Services Lawyer with leading law firm Clayton Utz presented at the UTS LSS 2015 Inaugural Women in Law Seminar about the diversity of opportunities becoming available for women in the legal profession. Women are being increasingly recognised as a growing demographic in law, as they are just as intelligent and capable as their male counterparts. Many leading law firms have come together recently to challenge gender bias and the underrepresentation of women in partnerships and leading positions in the profession. It is clear that there is a way to go to achieve gender equality within all spheres of the profession. In some areas, there has been genuine progress but there is still a long road ahead to ensure that women are offered equal opportunities for professional growth and more importantly, that they do not feel as though they must choose between career and family.

Women in Law Women’s disempowerment is systemic throughout all experiences, lifestyles and social classes. At present, four of the High Court Justices are women. However, this kind of equal representation has not yet filtered throughout the entire profession. 61.4% of law graduates, and 46% of all practising lawyers are female. Yet, in 2010 93.5% of SC’s and QC’s were male. Women also represent only 20% of the bar and have considerably shorter appearance times than men. However, the legal profession is gradually changing with a greater acceptance of part-time work and shorter hours for women with children, but there is still a long way to go, particularly in corporate law.

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Lawmakers and Social Changes


The Right to Choose: The Legality of Abortion

Mahrukh Hamayun explores the issue of abortion law reform in Australia and the ethical concerns presented by pro-life supporters that continue compound the issue.

stress on women facing emotional, mental and physical pressure that surrounds the process of an abortion. However, female advocates have a reason to rejoice for the time being as Victoria recently announced the introduction of ‘buffer zones’ to prevent pro-life activists from protesting directly outside abortion clinics within the state.8 The Australian Sex Party, who developed it in conjunction with the Department of Justice, initially introduced the Bill. It aims to exclude pro-life activists from being within a 150m radius of an abortion clinic, with penalties for violations of this ‘buffer zone’.9 The Bill was introduced into Victorian parliament after a series of complaints from women and medical staff at clinics who were constantly being heckled and harassed by pro-life activists. However, the introduction of ‘buffer clinics’ is yet to be nationalized. At this stage, Tasmania is the only other state to adopt ‘buffer zones’ around abortion clinics.10 The Law and Abortion

The vexed question of abortion law reform has been one of much public debate over recent decades since the first fertility and reproductive clinic appeared within the suburb of Surry Hills, NSW. The discourse surrounding the legality of abortion has been the focus of feminists, legal commentators, philosophers and the wider community.1 Through a feminist lens, abortion should be decriminalised in accordance with the Crimes Act.2 Similar to any other medical decision a woman undertakes, the choice to undergo an abortion is grounded in multifaceted personal values and differing social contexts. Different people possess different viewpoints on the issue of abortion, compounded by their religious, political and cultural backgrounds. The question is whether the law is playing a proactive role in providing for necessary protection for women who wish to exercise their individual choice, in light of shifting social attitudes. Recently, the debate has re-surfaced with the conviction of a medical practitioner under section 83 of the Crimes Act for unlawfully procuring a miscarriage.3 The case coincides with the introduction of a series of Bills into parliament by the Christian Democratic Party who seek to make it difficult to seek an abortion legally.4 Women in NSW can access abortion under the 1971 district court ruling (‘Levine ruling’),5 which found abortion was legal if there were economic, social or medical grounds to avoid a serious threat to the woman’s physical or mental health.6 The 1971 ruling by Judge Aaron Levine of the District Court was the foundation of legal access to abortion until 1995, when Justice Michael Kirby, then of the NSW Court of Appeal, reaffirmed and somewhat widened it to include consideration of whether a woman’s mental or physical health might be endangered by the pregnancy or by the birth of the child.7 Pro-female advocates state that if the Bill introduced by the Christian Democratic Party is to be successfully passed, this will only mount more

Abortion in NSW is still prohibited by provisions of the Crimes Act that are more than a century old. More recent judicial interpretations of these provisions have allowed for terminations of pregnancy to be widely available to those who can find a service and pay the cost. Abortions are only legally permitted in NSW if the pregnancy impacts the mental or physical health of the woman at risk.11 Additionally, if the woman’s circumstances present impending danger then an abortion is justified at law. Abortion services are available up to weeks 18 to 20 of a pregnancy. A woman under 16 years of age can give informed consent for an abortion if a doctor deems her mature enough to do so.12 The Fine Balancing Act Pro-life supporters justify their actions by asserting that the Bill limits their right to freedom of speech and the right to protest. Conversely, doctors at reproductive and fertility clinics have testified that these activists have taken it a step too far and in some cases, physically obstructed women from entering the premises. The legalisation of abortion and the surrounding debate requires a delicate balancing act. Mutual tolerance and understanding should be promoted in order to accommodate changing societal values, which now privilege a woman’s right to lawfully terminate her pregnancy. As Australian citizens we do possess the right to exercise our individual opinions and protest in response to political issues, however this should not occur at the cost of the rights and liberties of others.

1 Natasha Cica, ‘Abortion Law in Australia’ (Research Paper No.1, Parliamentary Library, Parliament of Australia, 1998) 3.2 Crimes Act 1900 s 82, 83 and 84.3 R v Sood [2006] NSWSC 1141. 4 Anne Summers, ‘Future of abortion hangs on landmark hearing’ The Sydney Morning Herald 11 August 2005, < http://www.smh.com.au/news/opinion/future-of-abortion-hangs-on-landmark-hearing/2005/08/10/1123353380425.html>. 5 R v Wald [1971] 3 DCR (NSW) 25. 6 Crimes Act 1900 s 82. 7 Ibid. 8 Anne Summers, ‘Future of abortion hangs on landmark hearing’ The Sydney Morning Herald 11 August 2005 < http://www.smh.com.au/news/opinion/ future-of-abortion-hangs-on-landmark-hearing/2005/08/10/1123353380425.html>. 9 Ibid. 10 Ibid. 11 Crimes Act 1900 s 82.12 Crimes Act 1900 s 83.

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Endorsing Gender Equality through International Aid Tanith Chippendale assesses the capacity of the newly introduced International Aid (Promoting Gender Equality) Bill 2015 to affect social change and diminish inequalities between men and women on a global scale.

The International Aid (Promoting Gender Equality) Bill 20151 was introduced by the federal parliament on 5 March 2015. This Bill has the potential to be an integral proponent of social change on an international spectrum as it seeks to ameliorate heinous gender injustices on a global scale by ensuring that Australian Aid is given with a strict purpose to alleviate gender inequality. It will be concluded that Australian laws have the ability to action social change not only in a domestic context, but also throughout the world. In order to understand why this Bill is important it is necessary to comprehend the context in which it resides. International Aid Bill The operation of this bill is summarised as requiring ‘any use of official development or humanitarian assistance to have regard to reducing gender inequality; and the minister to present an annual report setting out how the Commonwealth used international aid to promote general equality in recipient countries’.2 Gender Inequality Internationally There are numerous authorities that testify to the gross injustices relating to gender inequality across the world. Australia primarily gives aid to the countries that are geographically close, namely in the Asia Pacific region. This article will focus on examples of gender inequality that have arisen here. The UN suggests that as many as two out of three women in the Pacific have experienced some level of physical or sexual violence against them.3 Furthermore, there are 774 million women across the globe that lack basic literacy skills.4 What does this mean? Women are more likely to have their needs ignored if they are unrepresented. In fact, Greens Senator Lee Rhiannon suggests that male dominance and domestic barriers prevent women from actually benefitting from aid.5 Therefore, Australia should not be susceptible to an assumption that merely giving funds to governments may ‘trickle-down’ and inevitably positively impact on gender equality throughout the world.

Australia needs to take active steps to ensure that Aid will reach women who are experiencing injustices. Senator Rhiannon predicts that a starting point would be to distribute aid towards education for women, wherein the estimated gender gap in education in the Pacific region is up to $30 billion per year.6 This Bill is a step forward to recognising that Australia can do more with its powers of foreign aid, but its effectiveness is yet to be practically seen. Currently we have a flawed policy, where Julie Bishop merely assumes that trade between nations will help the ‘economy’ and therefore trickle down to these gender inequalities that need addressing.7 Senator Rhiannon however, suggests that this may overlook individuals of lower socio-economic status. How does this affect change in Australia? Notwithstanding whether such a Bill, regardless of its imposition of extra responsibilities may actually effect the substantial gender inequalities that persist throughout the world, there is scope to examine whether Australia, in distributing Aid pursuant to this Bill has the ability not only to affect change in low income countries, but also to promote gender equality in Australia itself. This Bill has the capacity to increase Australia’s reputation as an advocate for egalitarianism. Further, it has the ability to strengthen the global socio-political ties and promote legal benchmarks of equality around the globe.8 Australia, as a developed and democratic nation has certainly not achieved an ideal state of equality between men and women. For example, one in three women in Australia continue to experience physical violence and nearly one in five have been sexually assaulted. Further, women are still over-represented in low-income jobs.9 Perhaps then, if Australia wants egalitarianism, we should reform our own laws to achieve gender equality. Although Australia does have the ability to initiate social change on an international level through the ambit of international aid and its implementation, arguably, domestic governments have greater authority to affect such change. Australia’s power to promote gender equality overseas is not without limitations – there is only so much that can be done before Australia encroaches on the sovereignty of other states.

1 (‘The Bill’).2 Explanatory Memoranda, International Aid (Promoting Gender Equality) Bill 2015 (Cth) 13 National Committee Australia, Ending Violence Against Women, 15th September 2015, United Nations Entity for Gender Equality and the Empowerment of Women <http://www.unwomen.org.au/focus-areas/ending-violence-against-women> 4 Australian Government Department of Foreign Affairs, Australia’s Assistance for Gender Equality, 15th September 2015, Australian Department of Foreign Affairs and Trade, http://dfat.gov.au/aid/topics/investment-priorities/gender-equality-empowering-women-girls/gender-equality/Pages/ australias-assistance-for-gender-equality.aspx 5 Commonwealth, Parliamentary debates, Senate, 5 March 2015, 1288 (Senator Rhiannon) 6 Ibid 7 Ibid p.1289 8 Australian Government Department of Foreign Affairs, above n 3 <http://dfat.gov.au/aid/topics/investment-priorities/gender-equality-empowering-women-girls/gender-equality/Pages/australias-assistance-for-gender-equality.aspx> 9 The National Council to Reduce Violence against Women and their Children, The cost of violence against women and their children (March 2009), p 4.

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Lawmakers and Social Changes

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10 Words or Less By Keiran Gair

What do the Australian Border Force and ‘Gayby Baby’ have in common? The comic case of #Borderfarce feels like Donald Trump’s campaign for the Republican nomination; something sinister undone by predictable stupidity. The hallmark swagger of this government was matched by a grovelling policy backflip as the illegality of the proposal to “speak with any individual we cross paths with”, became clear. A few hours after the announcement, the arsesaving swung into full gear and it was revealed that in fact, no one had even read the press release. Naturally, the next day Peter Dutton boldly proclaimed Fairfax and the ABC was waging a Jihad against the government. Enter ‘Gayby Baby’. Often, politicians claim to be acting in the public interest. Adrian Piccoli, NSW Education Minister, personally stepped in to stop a planned screening of ‘Gayby Baby’. Piccoli proceeded to send a ministerial memorandum to all NSW school principals: “Gayby Baby must not be shown in school time so that it does not impact on the delivery of the planned lessons.” Strangely, Piccoli’s urgent concern to use every drop of class time as effectively as possible only translated to the specific banning of one film. One wonders why he didn’t just issue a comprehensive directive targeting the screening of all non-curricular films? Maybe next time someone tells you religious freedom is under threat remember the NSW government banned every public school in the state from screening a documentary about children with gay parents. It appears ‘Gayby Baby’ equals banned by the state but scripture equals protected by law. So, my question to you: Do you agree these events were undertaken for a purpose other than the one publicly stated, with the result of each being to magnify difference and division in our community? And by extension does this kind of governmental behaviour prevent social change?

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Lawmakers and Social Changes


“The government should reflect the views of the populace.” - Nicola Colagiuri

“When will politicians really justify their actions.” - Henry Chen

“I only need two words – embarrassing and insulting.” - Vikki Calgaris

“Seriously? Our politicians should promote education, not restrict it.” - Giselle Capacchione

“Acting in the public interest? Perhaps they should ascertain exactly what that is.” - Paige McDonald

“With Australia lagging behind on the same-sex marriage debate, this is hardly surprising.” - Maxeem Mikha

“Evidently, we need to get better at balancing religious and social concerns.” - Jackson Kang

“Censorship should not be part of the government’s agenda.” - Amelia Nater

“First and foremost, Australia needs to legalise same-sex marriage. Hopefully education will follow.” - Grace Hart

“A culture of ‘silence’ seems to have infiltrated the Australian Parliament.” - Prudence Graham

“Unfortunately, for social change to occur, it must have government approval.” - Sarah Punter

“Religion and sexuality. Will the two concepts ever exist harmoniously?” - Nick Manning

Lawmakers and Social Changes

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THE FULL BENCH 2015 Thank you to our contributors for Edition 4 and all other editions this year! Thinking about writing for The Full Bench in 2016? Keep an eye on our Facebook page or email the Publications Director at publications@utslss.com with your interest.

2015 The Full Bench Ed 4  

This is the fourth edition of The Full Bench published in 2015 by the UTS Law Students' Society.

2015 The Full Bench Ed 4  

This is the fourth edition of The Full Bench published in 2015 by the UTS Law Students' Society.

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