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BUT STILL, LIKE DUST, I’LL RISE.

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The Full Bench Edition Two 2017 But Still, Like Dust, I’ll Rise

Editor in Chief Ling McGregor

Editors Kiên Lê Board Liam Fairgrieve Tahniya Sheriff Maddi Turansky Vijhai Utheyan Emma Yazbek

Designers Megan Wong Rekha Dhanaram

Special thanks to Christina Knezevich (President) Katya Shliapnikoff (Vice President) Andrea Forsyth Print Portal Factory | Unit 4, 102-112 Edinburgh Rd Marrickville, NSW 2204 02 9557 6746 www.printportal.com.au The Full Bench is published triannually in Sydney by: UTS Law Students’ Society Room CM5A.01.09, City Markets Campus Cnr of Quay Street and Ultimo Road Tel (02) 9514 3448 Fax (02) 9514 3427 www.utslss.com

UTS Law Students’ Society © 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.

Acknowledgement of People and Country The Full Bench and UTS acknowledge the Gadigal and Guringgai people of the Eora Nation upon whose ancestral lands our university now stands. We would also like to pay respect to the Elders both past and present, acknowledging them as the traditional custodians of knowledge for these places.

Images and illustrations Unless provided by the designers or commissioned specifically for the purpose of this publication, uncredited photographs have been sourced from royalty-free distributors, licensed under Creative Commons Zero.

Disclaimer All expressions of opinion published in The Full Bench 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.

Want to contribute to the next edition?

Email publications@utsslss.com

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But still, like dust, I’ll rise

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Human trafficking: lives bought and sold 09

Clarifying section 42 of the Border Force 14 Act Policy or prejudice: ambiguity behind the abolition of 457 visas

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Op-ed: proposed immigration laws

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22 Family It’s not you – it’s my systemically doomed economic well being

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Not good enough: access to justice for victims of family and domestic violence

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The burden of womanhood: potential pregnancy discrimination in the workplace still the norm

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The marriage equilibrium

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33 Medical Medically supervised injecting centres in New South Wales

Medical malpractice

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42 The System RvR

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Refugee law, university and how you can help

Getting involved in social justice: Women’s Justice Network

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Editorial

Ling McGregor Editor-in-Chief

‘But still, like dust, I’ll rise’ is a line drawn The second edition of The Full Bench for from the poetry of Maya Angelou, a writer 2017 focuses on social justice. In this edition, and civil rights activist. Many of her works writers have highlighted a range of pressing are autobiographical, confessional discus- instances of inequality before the law. The sions of aspects of her personal life, often first section, ‘Movement’, brings to light centering on identity, women, racism, family issues stemming from diaspora, including and travel. Perhaps the most well known, ‘I immigration policies, visa protections, and Know Why the Caged Bird Sings’, has also “Australian values”. Tahniya Sheriff exambeen one of the most frequently banned ines human trafficking in a range of contexts books in the United States in the past three as it affects approximately 21 million people decades. around the world today. Tamim Rahimi Narratives that go against a dominant unpacks disclosure provisions under the paradigm, that are confronting simply Border Force Act, interviewing Dr Hasantha because they forefront the issues faced by Gunasekera, the Sub Dean of Education at minority groups, hold a particular strength; the Children’s Hospital at Westmead Clinical they are stories of endurance which need to School. be more widely acknowledged, prioritised, In the second section, ‘Family’, Chiara valued.

D’Ercole examines the financial realities that follow separation and divorce processes.

Their article, ‘It’s not you - it’s my systemically doomed economic well being’ challenges the misconception that women (and in particular mothers where children are involved) emerge as ‘winners’ post-settlement.

Charlotte Regan highlights the role of community legal centres in assisting victims of family and domestic violence navigating the legal system, and scrutinises inconstant government support in this area. In the wake of the upcoming postal vote on marriage equality, Diana Semaan proposes that ‘the capacity to achieve equality in Australia is a matter of simplification’, and addresses the immense personal, social and economic impacts of Australia’s current position.

The third section focuses on ‘Medical’ issues. Mariel Rufina Tan details incidences of medical malpractice, interviewing one victim of surgical error, and outlining our rights of risk warnings under common law.

Vail Bromberger examines harm reduction policies around the use of illicit substances, particularly focusing on medically supervised injecting centres in New South Wales

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from a legal and jurisprudential position.

In the fourth and final section, ‘The System’, many students provide information on numerous ways to get involved in social justice, including through initiatives run at UTS, or through valuable organisations such as the Refugee Advice and Casework Service, Salvos Legal and Amnesty International Australia’s Refugee Casework Team.

Sarah Avery details her own experience of working as Housing Support Coordinator for the Women’s Justice Network, and the way in which they got involved in assisting women in prison.

Thank you very much to all of our ­contributors for their time in researching and writing on these issues. Regardless of what we each choose to do with our legal education, it is important to recognise the privileges that we have gained just by undertaking it; there many systemic barriers to gaining education, knowledge about the legal system, and to accessing its services.

A huge thank you to our incredible designers, Rekha Dhanaram and Megan Wong, who have given each article beautiful and individual imagery.

If you would like to contribute to the next edition of The Full Bench for 2017, please don’t hesitate to contact us at ­publications@utslss.com.

- The Full Bench editors

We appreciate that some of the topics raised in this edition may be personal or distressing, and would like to provide details of the support services offered at UTS. Counselling Service Phone: +61 2 9514 1177 Email: student.services@uts.edu.au Location: CB01.6 (Level 6) Building 1, 15 Broadway, Ultimo, NSW 2007

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Editors On social justice

Vijhai Utheyan Editor Still call Australia home

As the government continues to implement harsher refugee policies, with the latest announcement confirming the cut of the last remaining financial support for up to 400 asylum seekers, Australia’s international human rights record continues to descend into the dirt. Many international human rights groups have deemed our refugee policy as one of the harshest in any OECD country. Donald Trump, while on a phone call in reference to Turnbull’s refugee policy, even said ‘you are worse than I am’.

Our offshore detention centre, which indefinitely imprison innocent men, women and children is in violation of numerous international treaties and conventions including the Refugee Convention, UN Declaration on Human Rights, the Convention against Torture and the Conventions on the Rights of a Child, just to name a few. Our ill-treatment of refugees has become common to the point that further cuts and harsher policies no longer gain the attention of national media, no longer surprise the refugee sector and no longer shock the public.

Ironically, in the midst of all this, and as the former Australian Human Rights Commissioner Gillian Triggs labels the government as ‘disgraceful’, the Australian Government headed by Julie Bishop is lobbying and is likely to succeed in their bid for the UN Human Rights Council. There is no doubt that as our country sits on the UN Human Rights Council and calls out the human rights violations of other countries around the world, our hypocrisy in running Guantanamo bay style detention centre’s for asylum seekers will be pointed out and put on the centre stage.

Without the end of offshore detention, without the return to the humane refugee policies we once had, and without the end of politicising what is clearly a human rights issue, we will continue to be a burden and black mark on our nation’s history.

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Tahniya Sheriff Editor The environment as a social justice issue Often forgotten under the vast banner of social justice issues, environmental concerns never cease to be one of the most significant social justice issues facing the 21st century. Justice for our planet and justice for our people continue to be profound topics that are discussed simultaneously but often in different tones. Yet, at this point in history, the inextricable link between daily human life and Earth is a conversation we can no longer afford to delay.

Whether it be booming infrastructure or exploiting the land of those most vulnerable, the common goal to obtain superior commercial profit in many industries continues to trump the lives of those who do not have the resources to relieve the negative impacts that it brings.

Climate change is an issue that is continuously heavily debated, and a persistent political nightmare for most governments. The uncertainty in creating and successfully applying policies to tackle the negative impacts of climate change have often come to a standstill in many cases. As such, this often threatens human rights, particularly the poor in most cases as many individuals and communities suffer the negative side effects. These can include drought and water shortages, floods, crop failure, as well as the spread of diseases such as malaria, among others.

Although these effects are not exclusive to poorer demographics, individuals in such circumstances have very limited ability to cope with the disastrous outcomes.

While there are a myriad of other reasons to push for better environmental protection, the current situation calls for immediate action. The conversation around our relationship with the environment, and the impact it has on individuals - potentially violating their human rights - is a serious issue we must address now if we are to create a future that is just for all.

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Emma Yazbek Editor Unpaid internships: CV filler or perfect storm for exploitation?

Despite what your overachieving best friend says, getting a job is hard. As a result, unpaid internships are becoming an elemental stepping stone to almost any professional career. Federal Department of Employment finds that 58 per cent of students aged between 18 and 29 have done some sort of unpaid work or internship in the last five years.1 While many students herald unpaid internships as a way to ‘get a foot in the door’ and better develop their skills, there are many internship opportunities, particularly in creative industries where unpaid internships are the norm, which open themselves up to potential exploitation.

The Fair Work Ombudsman highlights a ­difference between an internship and a work experience p ­ lacement.

An unpaid internship should be a predominantly observational role. If an intern does work that could have been done by an employee, the intern is entitled to a minimum wage, national employment standards and the terms of an applicable agreement.2 By contrast, workers completing the tasks of an employee should only be unpaid if he/she is participating in a specified work experience program.3 These rules of course turn on each individual set of circumstances and whether any agreements made between the intern and the employer can be construed as a contract.

While laws exist regarding interns, it is assumed that they are relatively unknown by employers. Peer discussions bring to light multiple examples of s­ tudents completing internships with the promise of a graduate job or even just a paid job that never comes to fruition. While some may contemplate d ­ iscussing this with their employer, most do not out of fear that they will lose their position to one of the thousands of other students wanting the role, an underscored fear that everyone is replaceable.

While it is undeniable that there are many b ­ usinesses who provide interns with highly rewarding experiences and allow them to develop their skills, there are some businesses that see interns as free labour and therefore normalise the unfair treatment that some interns endure.4 In order to combat this ‘Devil Wears Prada’ attitude,5 the Government needs to adopt better regulations to protect students and allow them to have the internship experience without the risk of exploitation.

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Liam Fairgrieve Editor Working out what it means to be “socially just” I remember when, in high school, they introduced a prefect portfolio for “social justice”. It was the first time that we had heard the term, and none of us knew what it really meant. Many years later, with the term “social justice” now ubiquitous, the concept of what it means to be “socially just” seems no less fuzzy. It is a term used to advocate everything from small acts of personal charity to radical restructurings of our civic institutions, an epithet hurled by detractors as much as it is an article of faith committed to by its proponents.

So, in preparation for this issue of The Full Bench, I consulted Rawls’s A Theory Of Justice, the seminal text in the development of modern social justice theory. Rawls posited that social justice derived from fairness in the performance of the social contract; that is, the forfeiture of absolute individual liberty in exchange for a fair and equitable social order wherein the basic welfare of all citizens was ensured while more fundamental ­individual liberties were protected. The scope of these individual liberties was only as such as to be compatible with similar individual liberties. In other words, social and economic inequalities were acceptable within Rawls’s conception of social justice provided that there was fair equality of opportunity to all in a society, and that an individual’s exercise of liberty could not compromise another individual’s ability to exercise the same liberties. Rawls’s over-arching principle was that any non-equal treatment of individuals within a society must be of the greatest benefit to the least advantaged.

Not withstanding that Rawls’s conception of social justice has been challenged by other philosophers, his framework is one by which I would encourage readers who believe in the fundamental tenets of social justice to analyse the articles ­contained in these pages. In this edition, you will find many detailed and thought-provoking ­explorations of contemporary issues that are argued to be “unfair”, “unequal”, or “unjust”. It can be difficult to bring some of these fraught and charged social issues from the emotive realm into the analytical realm, but Rawls’s formulations remain authoritative. Social justice will always be about the tension around how much we as individuals are willing to sacrifice to improve the lot of those less fortunate. This edition revolves around that tension, and we hope that you enjoy reading it.

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Kiên Lê Board Editor Putting the US in social jUStice

Social justice, as I’m reliably informed by search result number one from our friends at Google, is a noun which means ‘justice in terms of the distribution of wealth, opportunities, and privileges within a society’, and was first developed in the 1840s by a Jesuit priest. Today however, it is perhaps the most groan-inducing expression of the 21st century. Trawl through the Facebook feed of any young person (looking at you, law students) and you’ll see blog posts about racism, representation and religious intolerance, e-petitions to stop hate speech, events for an obscure yet worthy cause, guides to pronoun usage and comments on calling out culture.

With such an avalanche of impossibly thorny social issues, it’s easy to get a little cynical about it all. How am I, a 20-something with half a bachelor’s degree (nearly two thirds), supposed to stop poverty, increase child literacy, plant trees, house asylum seekers, whilst correcting my friends’ and family’s un-PC language and having powerful yet non-invasive discussions about mental health? Is it really any wonder millennials like us are seen as the most disillusioned generation ever?

Hold that thought.

About two weeks ago, I wrote a news story for an online website that I occasionally volunteer for. The story was about homelessness in Inner Sydney and the headline read ‘Tent City Showdown’. It was quite a straightforward piece which explored the predictable failure of both state and local governments to come up with a plan to manage homelessness, which ironically came to all-out Twitter spat during world homelessness week. Amidst the chaos, I met a young man named Troy. He’s 18, married with a kid on the way, and I’d like to tell you that he kept a down to earth sunny attitude to his lot in life but that would just be too good to be true. What he did do was struggle to string his sentences together and he couldn’t tell, nor would he have cared, which branch of government was really to blame. I guess its times like this that I realise that social justice isn’t a shopping list that we have to solve all at once. #Justbranchout abitandengagewhereyoucan.

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Maddi Turansky Editor A pressing issue on campus Content note: sexual assault and harassment.

University. A forum to develop knowledge and pursue ambitions. Also, an unexpected climate for sexual assault and harassment.

This year, the Australian Human Rights Commission (AHRC) led an inquiry into the prevalence and nature of sexual assault and harassment at Australian universities, returning some quite ­disturbing data. In 2016, one in four (26%) students were sexually harassed in a university setting. This includes incidents that occurred on campus, whilst travelling to or from university, at an off-campus event endorsed by the university, or at university employment. Alarmingly, these statistics infer that university students are probably more likely to be sexually harassed than to graduate with a distinction average.

The findings also illustrate those students most commonly affected as well as the likely relationships between victims and perpetrators. Women were almost twice as likely as men to experience sexual harassment, and three times as likely to be sexual assaulted. Further, just over half of victims knew the perpetrator, who was most likely a fellow student from their university, and postgraduate students were almost twice as likely as undergraduate students to have been sexually harassed by a lecturer or tutor from their university.

Of these students, a vast majority did not make a formal report or complaint to their university. This has been attributed to a range of structural and ­attitudinal barriers, particularly because affected students did not believe their experience was serious enough to warrant making a complaint or, frankly, did not know how. It follows, that only 6% of ­students believe their university adequately responds to the issue of sexual harassment and assault.

Such findings beg an unavoidable question: what can be done to remedy such an upsetting reality.

Having identified attitudes towards women, alcohol, abuse of a position of power, and easy access

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facilitated by residential settings as the most salient, contributing factors, the AHRC provided ­universities with recommendations to ensure they fulfil their legal duty of care to students. Whether such recommendations will be effective, or at least implemented, remains to be seen. Although one thing’s for sure, the report is a starting point for new conversation and has certainly brought dark and suppressed issues to light.

For support: Student Services Unit confidential counselling service Phone: 9514 1177 Email: student.services@uts.edu.au Building 1 Level 6 •

Australian Government Department of Employment, ‘Unpaid work experience in Australia Report, December 2016, <https://www.employment.gov.au/news/unpaidwork-experience-australia-report-december-2016>.

2 Australian Government Fair Work Ombudman ‘Work Experience and Internships, <https://www.fairwork.gov. au/pay/unpaid-work/work-experience-and-internships>.

3 Ibid.

4 Remy Varga ‘Student internships a ‘black market’ for free labour’, The Australian (online), 14 June 2017, <http://www.theaustralian.com.au/higher-education/ student-internships-a-black-market-for-free-labour/newsstory/8e022d3511ce02e3277a34a141616937>.

5 Olivia Lambert, ‘Young job seekers are being exploited for free workers’ 2 November 2016, News.com.au,<http://www. news.com.au/finance/work/at-work/young-job-seekers-arebeing-exploited-by-businesses-looking-for-free-workers/ news-story/8a81bd9e49bc7e89a78d0372bcdef74f>.

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President’s welcome Christina Knezevich President

Katya Shliapnikoff Vice President (Education)

The role of law in justice and the role of justice in the law are interesting concepts which frame our legal education, and, hopefully, our careers as legal practitioners.

The law is intended to give legitimacy, form and process to justice. But laws are written by people, and these people have traditionally enjoyed significant privilege which shaped their under-standing of justice. The United States Declaration of Independence from 1776 proudly affirmed that we are all created equally, with equal ­freedom and independence, and that we are endowed with certain unalienable rights, including those of life, liberty and the pursuit of happiness. For those who signed the Declaration of Independence, however, this meant only wealthy, white, Christian men were afforded these ‘unalienable right’. Not their mothers, wives, and daughters who were ostracised from the polity.

Not the Native Americans whose home they took. Not the African slaves they owned as property. Their rights were not equal, but instead were put above all others.

Society has changed since then in many ways, and principles of justice have consequently updated. This can be seen in the United Nations Universal Declaration of Human Rights from 1948 where ‘all human beings are born free and equal in dignity and rights’, instead of ‘all men being created equal’ as in the Declaration of Independence. While progress has been made, there is always more to be done. We see this in Diana Semaan’s timely discussion of marriage equality for same-sex couples. Fairness is an ongoing negotiation of our values in the context of our world and we must constantly re-examine it.

Even if what we understand to be justice is indeed equitable, these are ideals. And so often, these ideal are the exception and not the rule. There is a tendency for our legal frameworks and systems to become so convoluted that they are removed from the original notion of justice they were designed to protect and pursue. Chiara D’Ercole explores this through the financial realities following divorce and how women, usually with children, are negatively impacted based on our present legal ­settlement methods. The law must keep striving to be aligned with justice and to promote justice, not impede it.

Ultimately, these innate notions of law and justice and fairness are malleable. Thankfully, we can change them.

We can fix them. We can rise.

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Welcome to the second edition of The Full Bench for 2017! This edition focuses upon a range of social and legal issues that as law students, we must all keep in mind throughout our studies and future careers as lawyers (or whatever paths we may take).

Although we have seen many leaps and bounds in the development of the law and the protections it can provide to individuals, there are still many areas that are yet to advance to ensure that everyone has the rights and protections they deserve. Whether it be the very topical discussion of marriage equality (as we are in the midst of the postal vote), the significant mistreatment of refugees by the Australian government, or the still very prevalent issue of human trafficking occurring worldwide, there are still many shortcomings in our legal system that prevent many people from being treated equally and fairly before the law. These shortcomings in our legal system block many people from reaching a just outcome that they deserve. As law students, we have a responsibility to be aware of these issues and shortcomings in our legal system and try to create change to ensure everyone can achieve the justice they truly deserve.

This publication would not be possible without the incredible UTS LSS Publications Director Ling McGregor and her wonderful The Full Bench sub-committee who have worked tirelessly to bring us this beautiful and insightful publication. We hope you enjoy this edition.

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Human trafficking: lives bought and sold Written by Tahniya Sheriff

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With an estimated 21 million trafficked people around the world, there is no denying that human trafficking is one of the world’s most profitable and widespread crimes, generating approximately $150 billion in profit.1 While many consider human trafficking as involving forced labour or sexual exploitation, it is important to note that human trafficking extends far beyond these categories and also includes things like slavery and forced marriage.

Generally, the distribution of human trafficking has been more common in areas such as central and southeastern Europe, however, rapid technological advancements in the last decade have made it much more accessible and, to an extent, even easier for traffickers to reach a greater platform of potential targets through mediums such as social media. As a result, developed countries including Australia are not immune from the dire consequences, and are also subject to being a destination country for a range of human trafficking violations.

This article will firstly aim to understand human trafficking, with an overview of what it is and the types of human trafficking

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present in the 21st century. An exploration of who is most vulnerable to trafficking and the consequences associated with it will also be discussed briefly. Finally, this article will distill the various efforts undertaken by Australian and international organisations to combat human trafficking at present and, even more importantly, in the future.

What is it?

Human trafficking is a complex crime which violates a multitude of human rights. It involves the recruitment, transportation, transfer, harbouring or receipt of a person – through means such the use of force, coercion, threats, deception, or abuse of power or vulnerability – for the purpose of exploitation. This internationally agreed definition of human rights comes from the United Nation’s Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (often referred to as ‘the Trafficking Protocol’ or ‘the Palermo Protocol’).

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Types of Human Trafficking There are several categories of human trafficking, which involve the exploitation of individuals for various purposes. Some of these include slavery, servitude, forced labour, sexual exploitation, forced marriage, debt bondage, and harvesting body organs.

Trafficking is a hidden crime and it occurs in various global industries such as agriculture, sex industries, construction and hospitality, but the full scale of this brutal trade cannot be definitively detected.

21 MILLION

Slavery trafficked around the world (est.)

Slavery in Australia can be defined as ‘the condition of a person over whom any or all of the powers attaching to the right of ownership are exercised, including where such a condition results from a debt or contract made by the person’.2 It is a crime against humanity and is prohibited under the Universal Declaration of Human Rights as well as by international treaties that Australia has ratified, such as the International Covenant on Civil and Political Rights, and the Slavery Convention 1926.3 It can involve subtle forms of control and possession, rather than the physical force or restraint we would normally expect, and may also include psychological control; measures taken (such as threats, force or coercion) to prevent or deter escape, subjection to cruel treatment and abuse, control of sexuality and forced labour. These factors were set out in The Queen v Tang [2008] HCA 39, Australia’s first case on slavery.4

$32 BILLION profits generated by human trafficking globally (est.)

Servitude If an individual does not consider themselves free to stop working or to leave the place or area where they work because they are coerced, threatened or deceived, this may amount to servitude.5 As such, to reach the level of servitude, one must be significantly deprived in aspects relating to their individual personal lives, disparate from their work.

29 COUNTRIES have not joined the Palermo Protocol to fight human trafficking 10

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Forced Labour According to the International Labour Office (‘ILO’), it is estimated that up to 21 million individuals globally are subjected to forced labour. In Australia, forced labour refers to situations where a person is not free to stop working for an employer or leave the place or area where they work because they are coerced, threatened or deceived.6 Forced labour is a serious criminal offence and can occur in array of industries extending from hospitality to agriculture and construction. Working conditions can range from mediocre to severe violations of human rights, which may involve the removal of identity documents or threats of deportation from the employer. It is important to note that forced labour can exist even if the individual is working legally, however, people with temporary visas, such as 457 work visas, student visas, or visas that do not allow worker’s rights are particularly vulnerable to exploitation in the workplace.

Some factors which may be attributed to their vulnerability include a perceived lack of legal status and protections, language barriers, limited employment options, dependency on the employer, poverty and immigration related debts, and social isolation.7

Sex Trafficking Trafficking for sexual exploitation, or sex trafficking, occurs when a person is coerced or deceived into working in conditions of servitude, slavery or debt bondage.8 Poverty is a common bondage among the countries which have the highest rates of sex trafficking, such as India, Bangladesh and Uganda, with many women and young males becoming more susceptible due to increasing unemployment and an unstable social and political environment.

It is a form of modern slavery, which most commonly exploits young women and children for the purpose of forced sex.

Commercial sexual exploitation includes pornography, prostitution and sex trafficking of women and girls, and is characterised by the exploitation of a human being in exchange for goods or money.9 Sex trafficking can occur in public, namely through street prostitution, or in private, with much

of the industry operating out of unmarked brothels and even locations such as massage parlours, spas and strip clubs.

Who is vulnerable to human trafficking?

Forced Marriage Forced marriage generally describes a marriage entered into without the full and free consent of both parties, and may involve physical, emotional or financial duress, deception, or the use of force, threats or severe pressure. Following the event of the forced marriage, it is possible that a victim may then be subject to other forms of serious exploitation, such as servitude.10 However, it is important to understand the difference between arranged marriage and forced marriage, and ensure that these terms are not used interchangeably. This is because arranged marriage is a type of marriage in which both parties consent to the assistance of their parents or a third party (such as a matchmaker) in identifying a spouse. As such, the vital human right of individual consent is negated in forced marriage.

Debt Bondage In Australia, debt bondage relates to situations where a person’s personal services are used to repay a debt, and the debt owed or claimed to be owed is manifestly excessive, or the reasonable value of the person’s services is not applied to repay the debt, or the length and nature of the person’s services are not limited and defined.11 Debt is widely considered as a tool used by traffickers to control a person they have trafficked and is often inflated or artificial.

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Human trafficking is a complex crime that may be exercised in varying degrees of sophistication. This can range from a highly organised and sophisticated criminal network to unsophisticated groups or individuals who may attack victims of opportunity or those in a vulnerable state.

In poor or developing countries, family and friends of the victims may also play a part in the process for financial gain or being threatened to oblige.

There are a range of factors that may increase one’s chances of being exposed to or involved in human trafficking and exploitation. Typically, individuals from countries with low socio-economic backgrounds, such as India and Thailand, may look to pursue a better standard of living overseas. This makes them a vulnerable target as traffickers can use the common ruse of a promise of better work or study options that are unavailable in their home country. Further, the economic hardship of an individual may make them consider riskier options, which then enable traffickers to take advantage of their personal circumstance, in an attempt to escape it.

Factors such as gender roles and expectations, existing patterns of movement, weak border and immigration controls, poor governance, the failing rule of law, corruption, and the impact of cultural practices entwined with poverty are also significant ways in which traffickers may target potential victims for their own gain.

Often those who are trafficked are unable to escape their traffickers due to the threat of violence or death to themselves or their families back home. Others may be told that they were purchased for a particular purpose and until their debt is repaid, they are unable to leave. More commonly, the removal of identity documents such as passports and ID cards are used to instil in victims that there is no possibility of return to their home.

This torturous cycle can cause extreme emotional, physical and psychological distress as victims who try to escape may be punished brutally, and those who have attempted escape consecutively often lose hope and may commit self-harm.

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Efforts to combat Human Trafficking

5.5 MILLION trafficked around the world (est.)

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The United Nations Office on Drugs and Crime estimates that people from 136 different countries are trafficked into 118 countries. The ILO estimates that there are almost 21 million people in situations of forced labour (but not all of them are trafficked) around the world, with 56% of these in the AsiaPacific region. Legislation criminalising human trafficking has been enacted by 134 countries and territories, however conviction rates around the globe are low as human trafficking remains a largely underreported crime that occurs across and within national borders.12 Currently, 154 countries have ratified the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children that ­supplements the United Nation’s Convention Against Transnational Organised Crime. Australia ratified the Trafficking Protocol in 2005, which sets out the internationally agreed definition of human trafficking. It aims to facilitate international cooperation to combat trafficking in persons and to protect and assist people who have been trafficked.13 Further, the Australian Government initiated a national response to combat human trafficking in 2003, led by the Commonwealth Attorney-General’s Department through the Interdepartmental Committee on Human Trafficking and Slavery (‘IDC’).

Some measures implemented under this strategy include ratifying the Trafficking Protocol in 2005, creating specialist teams within the Australian Federal Police, devising an Australian Policing Strategy to Combat Trafficking in Persons, drafting legislation to criminalise people trafficking and t­ rafficking-related activities, and directing funding to prosecute trafficking matters.

These measures, both domestic and international, are also aided by many not-for-profit organisations such as Red Cross, The United Nations Global Initiative to Fight Human Trafficking (UN.GIFT), A21 Campaign and Anti-Slavery Australia.

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World Vision, Child Trafficking and Slavery, <https://www.worldvision.com.au/global-issues/ work-we-do/child-slavery>.

2 s 270.1 Criminal Code Act 1995 (Cth).

3 Anti-Slavery Australia, Slavery, <http://www.anti slavery.org.au/images/stories/Factsheets/01%20 -%20What%20is%20slavery.pdf>.

4 Ibid.

5 Red Cross, Trafficking, <http://www.redcross.org. au/files/Trafficking_FAQs.PDF>.

6 Ibid.

7 Anti-Slavery Australia, Forced Labour, <http:// www.antislavery.org.au/images/stories/Fact sheets/04%20-%20Forced%20labour.pdf>.

8 Anti-Slavery Australia, Sexual Exploitation, <http://www.antislavery.org.au/images/stories/ Factsheets/06%20-%20Trafficking%20for%20 Sexual%20Exploitation.pdf>.

9 Soroptimist, Sex Slavery/Trafficking, <http:// www.soroptimist.org/trafficking/faq.html>.

10 Red Cross, Trafficking, <http://www.redcross. org.au/files/Trafficking_FAQs.PDF>.

11 http://www.redcross.org.au/files/Trafficking_ FAQs.PDF 12 Red Cross, Trafficking, <http://www.redcross. org.au/files/Trafficking_FAQs.PDF>.

13 Ibid.

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Conclusion Human trafficking remains one of the most serious violations of human rights in the 21st century. It is essential to understand that while many organisations have driven substantial law reform in this area, much more work needs to be done if we are to work towards abolishing human trafficking across the globe. Greater education is needed in areas of low socio-economic backgrounds, and public interest in this area must be heightened if we are to expose the harsh reality of these industries.

Human trafficking is not just limited to ­developing countries – it is currently occurring in Australia as well. As such, increasing ­knowledge in this area and being vigilant for any signs of this crime is essential to ensure ­justice to those affected.

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‘They’re not going to get extended legal advice, they just want to know they can speak out and reveal children being sexually abused, people being maltreated.

Doctors shouldn’t have to call their lawyers first if they witness that sort of treatment. So, this has a chilling effect.’

Clarifying section 42 of the Border Force Act Tamim Rahimi interviews Dr Hasantha Gunasekera, Sub Dean (Education) at the Children’s Hospital at Westmead Clinical School, to examine restrictions on public disclosure under the Australian Border Force Act 2015 (Cth).

Written By Tamim Rahimi

The Australian Border Force Act,1 which came into effect in July 2015, is an Act that relates to the Australian Border Force (‘ABF’), the ABF commissioner, and those employed to perform work for the Department of Immigration and Border Protection.

Importantly, among other circumstances, a person is considered an employee or ‘entrusted person’ under the Act if they are contracted or consulted to perform services for the department.2 Doctors, nurses and social workers who perform regulatory health checks on Christmas Island, Nauru, and Manus Island are usually considered employees under this definition.

At the time it commenced, section 42 of the Act made it an offence for any entrusted person to make record of or disclose protected information they obtained during their work as an employee of the department,3 and also specified a list of exceptions to this provision.4 The Act penalised those in contravention of the section with a maximum penalty of two years’ imprisonment.

The ABF commissioner can make the entrusted person aware of this obligation by requesting they take a legally enforceable oath to uphold public service professionalism, ethics and the reputation of the Department of Immi-gration and Border Protection.5 In a sense, such an oath parallels the ethical and moral

Larissa Waters, current co-deputy leader of the Australian Green’s Party, commenting on the Border Force Act 2015 on ABC’s Q&A, 6 July 2015.

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obligations (implied or otherwise) that doctors and health workers swear to abide by when entering the profession.6 A controversy arises under section 42 of the Act in the conflict of interest for professionals who are both employed by the department and yet have separate ethical and moral obligations to publicly disclose of conditions that are detrimental to the health of their patients.7 Despite the evident scope of the Act to create such a conflict, government representatives at the time were adamant that the intention of these provisions was not to ‘gag’ whistle blowers, but to protect sensitive, privileged information.8 Dr Hasantha Gunasekera, Sub Dean (Education) at the Children’s Hospital at Westmead Clinical School, suggested that the government’s argument against the presence of a conflict is disingenuous.

professionals be bound by a duty to not disclose, then why are teachers and social workers, who also have professional and ethical obligations of disclosure, yet to be exempt?12 Further, why has any change regarding exempted workers under the Act only occurred after being challenged at a High Court Level?

Until the Act specifies that all public disclosure of concerns and facts relating to living conditions, health and/or wellbeing of detainees are exempt from any criminal liability, there remains room for the argument that the government is attempting to censor discussions about the treatment of asylum seekers.

‘I have no doubt about that. That’s what they’re doing. That’s the intent,’ said Dr Gunasekera, who has publicly spoken out about his experience on Nauru several

“While Section 42 has yet to be enforced against whistle-blowers, despite several publicly describing their experiences while at the detention camps, critics of the act have argued that the mere existence of the conflicting laws about whether they can speak out or not creates hesitancy to do so, and thereby indirectly censors discussions surrounding asylum seekers.”

‘When we spoke out they did nothing – the laws would stay as it is. When there were rallies, they did nothing,’ said Dr Gunasekera. ‘Then there was a court case and suddenly, low and behold, there was, quietly, an alteration to the law to exempt doctors and nurses’.9 The court case referred to was a 2016 High Court challenge of section 42 by the medical advocacy group Doctors for Refugees. Upon mounting pressure of the case, Michael Pezzullo, secretary of the Department of Immigration and Border Protection, posted an administrative amendment to the Act on 30 September 2016, which placed a blanket exception of section 42 on all health practitioners who work under the department.10 Many, including Dr Gunasekera, believe that the amendments were passed because of the impending case against them.

‘The government absolutely doesn’t want to discuss these matters in open court,’ said Dr Gunasekera. ‘They’re absolutely ashamed of what they’re doing and they don’t want people to know’.11 The ambiguity remains however that, if the government never intended to have

times. ‘The intent is never to arrest a paediatrician. Can you imagine the headlines?

‘Paediatrician arrested for fighting for child rights’’.13 •

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Australian Border Force Act 2015.

Ibid s4(1).

3 Ibid s42.

4 Ibid s42(2).

5 Thomas Faunce, ‘Regulation Of Australian Medical Professionals And National Security: Lessons From Three Case Studies’ (2016) 23 Medical Law Reporter, 544.

6 See, for example, standards outlined in the Australian Health Practioner Regulation Agency under the ambit of the Health Professional Act 2004 (ACT) s 18.

7 For a detailed report of conditions see: Amnesty International Australia, ‘This is Breaking People’, (December 2013) <https://static.amnesty.org. au/wp-content/uploads/2016/09/Amnesty_ International_Manus_Island_report-1.pdf>.

8 Andrea Booth, Health workers exempt from immigration detention secrecy provisions, 20 October 2016 SBS News <http://www.sbs. com.au/news/article/2016/10/20/government -lifts-gag-doctors-over-speaking-out-asylumseeker-treatment>.

9 Interview with Dr Hasantha Gunasekera phone interview, 26 June 2017.

10 Department of Immigration and Border Protection, Determination of immigration and border protection workers – Amendment no.1 (30 September 2016) Australian Government Dep artment of Immigration and Border Protection < h t t p s : / / w w w. b o r d e r. g o v. a u / A c c e s s a n d Accountability/Documents/determinationworkers-c.pdf>.

11 Interview with Dr Hasantha Gunasekera phone interview, 26 June 2017.

12 For specific details of those duties, see Australian Association of Social Workers, Code of Ethics (September 2010) Australian Association of Social Workers <https://www.aasw.asn.au/ document/item/1201> and Department of Education, Professional Responsibilities NSW Department of Education <http://www.dec.nsw. gov.au/about-us/careers-centre/school-careers/ teaching/your-teaching-career/approved-teachers/ casual-teacher-induction/professional-resp onsibilities>.

13 Interview with Dr Hasantha Gunasekera phone interview, 26 June 2017.

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Policy or prejudice: ambiguity behind the abolition of 457 visas Whether it be a purely political move on Turnbull’s part or a genuine attempt at rectifying an antiquated visa system, the abolition of 457 visas in April 2017 resulted in more than just a day’s worth of media scrutiny.

Written By Kimberley Ching

While the Government plans on converting the tired system into a two-stream ‘Temporary Skills Shortage’ (TSS) visa by March next year, the media and migration­lawyers are calling the government out on these changes, as the product of burgeoning pressure from pencil-pushing conservative politicians. A significant policy innovation at the time of its conception, Turnbull’s attempt to go ahead and revamp the 457 visa is a brave and calculated move. Whether that move will pay off in the long term is the outstanding question.

carried out the review and initially realised that ‘almost no-one was happy with the current scheme’.4 Amongst many issues, one of the main areas of concern was the catalogue of occupations that temporary skilled workers could choose from. This list was infrequently reviewed by the Australian Bureau of Statistics and failed to reflect the constantly shifting nature of the Australian economy and job market.

Most of the Turnbull Government’s changes to the visa are based on this report and, in a nutshell, can be summarised as follows:

What it was and what it’s becoming The aim of the 457 visa was to address skills shortages in the Australian workforce. It enabled employers to sponsor a foreign worker for a four-year period and, in turn, provided these workers with a path to permanent Australian residency.1 The visa allowed foreign workers access to more than 650 occupations, including some industries that already have an oversupply of labour.2 Arguably, supporters of skilled migration emphasise that foreign workers are critical in order to close the gap between rapid economic growth and the training lag borne from high industry demand of domestic workers.3 In 2014, Senator Michaelia Cash formed a panel to review the 457 visa program. John Azarias

• The visa scheme is split into two-year and fouryear streams; • Applicants will now be required to have at least two years of work experience in their chosen visa occupation; • Applicants will face higher English language requirements; and • Approximately 200 occupations have been removed from visa eligibility.5

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Azarias understands these changes to be productive and effective for the scheme, however, the media and public tend to think otherwise. Whilst Turnbull continues on, heralding the changes as ‘manifestly, rigorously, resolutely conduct in the national interest’

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– ‘all about jobs for Australians’ – the overhaul has been quickly characterised as a move to satisfy liberal conservatives, with even One Nation Leader Pauline Hanson claiming credit for the changes.

Either way, the impact of the changes to the 457 visa have not gone unnoticed. People like Xianzhong Lau, a PhD scholar who was recently employed by OccuRx to start ground breaking research on blindness, is now being forced to leave the country.

Chris Lucas, a CEO of Kisume restaurant in Melbourne will now face greater problems attracting talented Japanese chefs to Australia in order to train locals.7 Even take local baker and small business owner, Andreas Rost, who is now scrambling to find local workers to start the baking at night for fresh bread tomorrow.8 Whilst a skilled immigration system that has integrity and the trust of the community is required,9 the changes to the old system should not be to the detriment of valuable workers. We should not be sending a poor message to international job markets or dissuading potential international talent from the Australian economy.10

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It seems as though no matter which camp you align yourself with, you are either cast as a native protectionist for agreeing with the changes and turning away skilled, net contributors to the Australian economy, or you’re the villain for negating the re-regulation and failing to protect the jobs of Australian workers and stand up for the visa holders being exploited by the 457 system.6

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Only time will tell as to whether Turnbull’s visa changes prove to be genuine but if we continue to place stricter standards on migrant entry and continue to turn away valuable, intelligent human resources, it won’t just be policy on the chopping board for the next round of table discussion.

Joanna Howe, ‘Is the net cast too wide? An assessment of whether the regulatory design of the 457 visa meets Australian needs’ (2013) 41 Federal Law Review 3, 443-469.

2 Stephanie Anderson (ABC).

3 Susanne Bahn, Llandis Barratt-Pugh & Ghialy Yap, ‘The employment of skilled migrants on temporary 457 visas in Australia: emerging issues’ (2012) 22 Labour & Industry: A Journal of the Social and Economic Relations of Work 4.

4 John Azarias, ‘Changes to 457 visas are about restoring public trust: migration’, Australian Financial Review (Online), 24 April 2017 <https:// search-proquest-com.ezproxy.lib.uts.edu.au/ docview/1890779428?accountid=17095&rfr_ id=info%3Axri%2Fsid%3Aprimo>.

5 David Marin-Guzman, ‘Abolition of 457 visas is more of a political stunt: entry crackdown - analysis ’, Australian Financial Review (Online), 8 June 2017 <https://search-proquest-com.

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ezproxy.lib.uts.edu.au/docview/1906440238? accountid=17095&rfr_id=info%3Axri% 2Fsid%3Aprimo>.

6 Howe, above n 1.

7 Edwin Koo, ‘Time for Peter Dutton to clean up the 457 visa mess uncertainty’, Australian Fianncial Review (Online), 22 May 2017 <http:// www.afr.com/opinion/editorials/time-for-peterdutton-to-clean-up-the-457-visa-mess-of-uncert ainty-20170521-gw9s9w>.

8 Yolanda Redrup, ‘Jobs Aussies Just Won’t Do’, Australian Financial Review (Online) 19 April 2017 <https://search-proquest-com.ezproxy.lib.uts.edu. au/docview/1888907133?accountid=17095&rfr_ id=info%3Axri%2Fsid%3Aprimo>.

9 IAzarias, above n 4.

10 “time for Dutton”

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Op-ed: proposed immigration laws Written By Sonia Khalili

In the age of supposed ‘free speech’, individuals almost feel obliged to say or act in any way they deem valid. It is no secret that Pauline Hanson is one of these individuals, with her prejudiced views towards Asians in the past and Muslims in the present.

While Hanson’s views are outlandish to most, recent changes to citizenship laws demonstrate that this is a wider view held by Australian policymakers directly impacting on foreigners through our immigration policy. On 20 April 2017, the Prime Minister announced an overhaul of citizenship laws, making it significantly harder for residents to become citizens. The new law, the Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 was introduced into the House of Representatives on 15 June 2017. Here is a quick summary of the amendments: • Increasing the general residency requirement to a minimum of four years prior to being able to apply for citizenship; • The implementation of an English test that requires competent language skills; • An altered statement upon taking the oath to become a citizen to demonstrate allegiance; • The addition of questions aimed at testing Australian values and responsibilities as a citizen; and • Applicants will be required to prove their integration into the community, and criminal checks will be undertaken.

The proposed changes to citizenship reflect the aim for a nationalistic and united front for Australians to create our metaphorical wall. One might even say that it is Australia’s ‘Make Australia Great Again’ campaign, as we continue to follow in the footsteps of America with a range of national policies.

The changes also fit within a wider context, which Immigration Minister Peter Dutton has described as ‘an increasingly challenging national security environment’. This reflects the government’s aim to mitigate public concerns over national security by essentially finding a scapegoat for the actions of terrorists.

The proposed changes seem reasonable in theory, with the aim of introducing a more Englishproficient and value-oriented society. However, there

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is a clear disconnect with some Australian citizens who arguably do not exhibit these values themselves.

This would include the woman who attacked girls who wore a hijab, who surely does not adhere to these values that the new proposed bill aims to test.

The question should therefore be asked: would (and should) these individuals who commit such hate crimes also be tested?

Also included in these proposed reforms is a language test which even has some politicians themselves questioning the thought of passing (much like a UTS student prior to an exam). These unreasonable expectations set forth by Mr Turnbull demonstrate his inability to empathise and allow these individuals to develop their English skills after becoming citizens. A permanent resident will even be affected by these changes, as they remain in limbo for four years waiting to become a citizen. This time-frame would discourage many to even attempt the journey that we will call our citizenship process.

The last proposed change reflects this ‘Australian values’ platform with the requirement of integration, as well as the sneaky addition of a criminal check.

This increase of security to the nation is a significant measure, however it feels very comparable to witch-hunting for potential terrorists. Moreover, the Temporary Skilled 457 Visa has also seen changes, with one quarter of the included professions being cut. This will undoubtedly impact on the Australian economy.

It seems as if the government is playing a game of battleship and hoping for the best with the alterations as a whole, particularly with the new proposed citizenship laws. If there is a need for change, this out-of-touch measure should not be implemented, and a more proactive approach should be taken.

No one wants to be in fear, however these changes will contradict the values of Australia as a multicultural nation due to their very time-exhausting and unachievable requirements.

Despite all this, it is relieving to know that these proposed changes have not yet been implemented, and there are still opportunities to tweak the amendments or prevent the bill from passing at all. I leave a question for those who may support these changes: would your parents or grandparents have passed these tests?

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IT’S NOT YOU IT’S MY SYSTEMICALLY DOOMED ECONOMIC WELL-BEING Written by Chiara D’Ercole

Chiara D’Ercole examines the financial realities that follow separation and divorce processes, often leaving women, especially, in dire economic situations. In considering children, property division and incidences of domestic violence, this article challenges the misconception that women (in particular mothers, where children are involved) emerge as ‘winners’ post-settlement.

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In even the most ‘civil’ of relationship breakdowns, the notion that one member of a marriage or de facto relationship can emerge as a ‘winner’ following separation is mythical, financially speaking. For even the wealthiest of former partners (though the cost may sting to a lesser degree when compared to lower income earners) the procedures necessary to neatly deconstruct the legal entity that is a marriage or de facto relationship, involve costs. These costs, manifested in legal representation and court administrative fees, are incurred alongside costs to an individual’s property ownership, superannuation and, beyond separation and divorce, concurrent or future costs such as child support payments or spousal maintenance. It is only once the legalities of settlement have subsided that the true cost to one’s financial position can be realised, and research has shown that in Australia, the cost to a woman’s economic wellbeing in heterosexual relationships is, on average, substantially more severe than it is for men in the short-medium term,1 due to several systemic factors.

This article does not seek to discredit important research exploring men’s views of unfair treatment by Australian courts about arguably interdependent issues, such as the argument that courts do not enforce parenting orders as strongly as child support obligations.2 Nor does it aim to contribute to the unproductive ‘battle of the sexes’ often proliferated in the media and popular culture. This article will focus on the negative financial consequences for women post relationship breakdown due to the reality of empirical research indicating that statistically, in heterosexual relationships, women are more likely to suffer these consequences than men3 under a legal system

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where current settlement methods are not necessarily just and equitable.

Financial standing post relationship breakdown begins with the fact that the collective marital property belonging to a married or de facto ‘unit’ needs to be divided and, often, there is simply not enough money to go around when assessing assets and liabilities. Whilst income is not an asset for the purposes of property division, it is extremely significant to post-separation proneness to poverty.

Perhaps the most widespread force working against women is Australia’s gender pay gap, which currently stands at 16% in 2017 as calculated by the Workplace Gender Equality Agency.4 Historical industry and occupation segregation between men and women,5 among other societal and cultural factors, are to blame for the enduring ‘glass ceiling’ that jeopardises women’s financial security, superannuation savings and asset accumulation.6 These capacities are further abrogated when women have children and break their workforce participation, even temporarily, to take care of children.7 Without them, women are left financially vulnerable and struggling against a gendered workforce that is not making great progress in terms of gender pay equality.

It is impossible to examine financial trends pertaining to women following a relationship breakdown with-out considering an issue that, on average, causes the death of at least one woman every week in Australia – domestic violence against women, perpetrated by either a current or former partner.8 Whilst domestic violence does not discriminate in its horror or unacceptability against persons of any sex, it is undeniably an issue that, on average, amasses more female victims in Australia

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than it does men. Though, according to 2012 data, approximately 95% of all victims of violence report a male perpetrator.10 Women are, however, at least three times more likely to experience violence from an intimate partner than men,11 five times more likely to require medical attention due to intimate partner violence,12 and five times more likely to report a perceived threat to their lives.13 In relation to the financial disadvantages for women post separation or divorce, data obtained by the Australian Institute of Family Studies indicated that victims of violence or abuse at the hands of an ex-partner reported receiving lower average property settlements than those who did not report violence and perceived their settlement arrangements to be unfair.14 Victims, in an effort to settle quickly, will often accept less favourable property settlement outcomes without realising (or where they do, compromising anyway) that they are jeopardising their economic stability.

Regarding child support payments, even where arrangements are in place with the Department of Human Services (‘DHS’), domestic violence has been found to ‘negatively affect mothers’ receipt of child support’,15 involving difficulties obtaining payments from ex-partners. Manipulation of child support payments is a method by which perpetrators of domestic violence can exert control over victims16 and devastate a mother’s economic wellbeing and mental health. Interestingly, payment of child support by fathers is not likely to drive them into poverty, whilst non-receipt of payments is likely to drive mothers into poverty.17 While more so relevant for low-mid income earners, a mother’s receipt of child support is not necessarily a net gain to them18 because it may in fact reduce eligible mothers’ Family Tax Benefit A payments.19 The current Maintenance Income Test that determines this for sole parents reduces payments by 50 cents for every dollar of child support and spousal maintenance over the threshold of $1,565.85 per annum, plus $521.95 for each additional child.20 This is particularly relevant to

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women because mothers are the primary carers in most Australian families21 and more fathers report paying child support than mothers report receiving it.22 Overall, single mother households are significantly more likely to be in poverty than other households.23 Contrary to common views about welfare dependency, recent analysis by Hayley Fisher, Senior Lecturer in Economics at the University of Sydney, indicates that higher child support payments can in fact improve employment for single mothers.24 So how is a woman to remain economically self-sufficient post separation or divorce? Until the gender pay gap closes and the ongoing effects of domestic violence in property division are addressed by somehow reconciling the ‘no fault’ element of divorce and the social security system improves, it is difficult to say. Although, the United States’ National Council on Family Relations has published a study entitled ‘Women Who Remain above the Poverty Level in Divorce’ – the sole dedication to this topic suggesting that such a phenomenon is remarkable.

Research suggests that re-partnering statistically prevents long-term poverty,25 that skilled, educated X and Y generation women are less privy to poverty26 and that retraining correlates with better living standards for separated and divorced women.27 Uncertainty in either of those outcomes reflects an imbalance in the legal system that forces women to compensate for unavoidable costs, such as the true costs of children (particularly childcare), retraining, unfair pay, and the toll taken on one’s mental health. A greater light needs to be shone on women’s post-separation economic wellbeing, as legalities can cloud the systemically engendered likelihood that they will suffer once the illusory thread that has held their economic wellbeing in the balance is abruptly snipped.

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Belinda Fehlberg et al, Australian Family Law: The Contemporary Context (Oxford University Press, 2nd ed, 2015) 384.

2 Ibid 306.

3 David de Vaus et al, ‘The consequences of divorce for financial living standards in later life’ (Research Paper No 38, Australian Institute of Family Studies, February 2007) 2 <https://aifs. gov.au/sites/default/files/publication-documents/ rp38_0.pdf>.

4 Workplace Gender Equality Agency, What is the gender pay gap? (2017) <https://www.wgea.gov. au/addressing-pay-equity/what-gender-pay-gap>.

5 Ibid.

6 Belinda Fehlberg et al, Australian Family Law: The Contemporary Context (Oxford University Press, 2nd ed, 2015) 387.

7 Ibid.

8 Willow Bryant and Tracy Cussen, ‘Homicide in Australia: 2010–11 to 2011–12: National Homicide Monitoring Program Report’ (Monitoring Report No 23, Australian Institute of Criminology, 2015) 16 <http://www.aic.gov.au/ media_library/publications/mr/mr23/mr23.pdf>.

9 Our Watch, Facts and Figures <https://www. ourwatch.org.au/Understanding-Violence/ Facts-and-figures>.

10 Australian Bureau of Statistics, Personal Safety, Cat No 4906.0, ABS, Canberra, 2013 <http://www.abs.gov.au/ausstats/abs@.nsf/ Lookup/4906.0Chapter7002012>.

11 Ibid.

12 Jenny Moutzos, ‘Femicide: An overview of major findings’ (Research Paper No 124, Australian Institute of Criminology, 1999) 2 <http://aic.gov.au/media_library/publications/ tandi_pdf/tandi124.pdf>.

13 Ibid.

14 Lixia Qu et al, ‘Post- separation parenting, property and relationship dynamics after five years’ (Report, Australian Institute of Family Studies, 2014)<https://www.ag.gov.au/ Publications/Documents/Post-SeparationParentin gPropertyAndRelationshipDynamicsAfterFiveYe ars/post-separation-parenting-property-and-relationship-dynamics-after-five-years-full-document.

PDF>.

15 Belinda Fehlberg et al, Australian Family Law: The Contemporary Context (Oxford University Press, 2nd ed, 2015) 400.

16 Ibid.

17 National Council of Single Mothers and their Children, ‘A Small Investment for a Significant Gain’ (Submission to 2016 Budget) 16<https: //www.treasury.gov.au/~/media/Treasury/ Consultations%20and%20Reviews/ Consultations/2015/2016%20Pre%20 Budget%20submissions/Submissions/PDF/ National%20Council%20of%20Single%20 Mothers%20and%20Their%20Children.ashx>.

1

Fehlberg et al, above n 15, 438.

Ibid.

20 Department of Human Services, Income test for Family Tax Benefit Part A (31 May 2017) <https://www.humanservices.gov.au/customer/ enablers/income-test-family-tax-benefit-part#maintenanceincometest>.

21 Fehlberg et al, above n 15, 413.

22 Fehlberg et al, above n 15, 425.

23 Hayley Fisher, ‘Higher child support doesn’t lead to welfare dependency for single mums’, The Conversation (online), 21 March 2017<http://theconversation.com/higher-childsupport-doesnt-lead-to-welfare-dependency-forsingle-mums-73902>.

24 Ibid.

25 Joseph N Ducanto, ‘Divorce and Poverty Are Often Synonymous’ (2010) 24(2) Americ an Journal of Family Law 87 <http://search. proquest.com.ezproxy.lib.uts.edu.au/docview/ 251654095?accountid=17095&rfr_id=info %3Axri%2Fsid%3Aprimo>.

26 Teresa A Mauldin, ‘Women Who Remain above the Poverty Level in Divorce: Implications for Family Policy’ (1990) 39(2) Family Relations 141, 144 <http://www.jstor.org.ezproxy.lib.uts. edu.au/stable/585715?sid=primo&origin=crossref&seq=4#page_scan_tab_contents>.

27 Ibid.

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• References Australian Bureau of Statistics, Personal Safety,1 Cat No 4906.0, ABS, Canberra, 2013 < http://www.abs.gov.au/ausstats/abs@.nsf/ Lookup/4906.0Chapter7002012> Bryant, Willow and Tracy Cussen, ‘Homicide in Australia: 2010–11 to 2011–12: National Homicide Monitoring Program Report’ (Monitoring Report No 23, Australian Institute of Criminology, 2015) 16 <http://www.aic.gov.au/ media_library/publications/mr/mr23/mr23.pdf> Department of Human Services, Income test for Family Tax Benefit Part A (31 May 2017) <https:// www.humanservices.gov.au/customer/enablers/ income-test-family-tax-benefit-part#maintenanceincometest> de Vaus, David et al, ‘The consequences of divorce for financial living standards in later life’ (Research Paper No 38, Australian Institute of Family Studies, February 2007) 2 <https://aifs. gov.au/sites/default/files/publication-documents/ rp38_0.pdf>

can Journal of Family Law 87 <http://search. proquest.com.ezproxy.lib.uts.edu.au/docview/ 251654095?accountid=17095&rfr_id=info%3 Axri%2Fsid%3Aprimo> Fehlberg, Belinda et al, Australian Family Law: The Contemporary Context (Oxford University Press, 2nd ed, 2015) Fisher, Hayley, ‘Higher child support doesn’t lead to welfare dependency for single mums’, The Conversation (online), 21 March 2017 <http://theconversation.com/higher-child -support-doesnt-lead-to-welfare-dependency-forsingle-mums-73902> Mauldin, Teresa A, ‘Women Who Remain above the Poverty Level in Divorce: Implications for Family Policy’ (1990) 39(2) Family Relations 141 Moutzos, Jenny, ‘Femicide: An overview of major findings’ (Research Paper No 124, Australian Institute of Criminology, 1999) 2 <http://aic. gov.au/media_library/publications/tandi_pdf/ tandi124.pdf> National Council of Single Mothers and their Children, ‘A Small Investment for a Significant Gain’ (Submission to 2016 Budget) 16 <https:// www.treasury.gov.au/~/media/Treasury/Consultations%20and%20Reviews/Consultations /2015/2016%20Pre%20Budget%20submissions/ Submissions/PDF/National%20Council%20 of%20Single%20Mothers%20and%20 Their%20Children.ashx> Our Watch, Facts and Figures <https://www. ourwatch.org.au/Understanding-Violence/ Facts-and-figures> Qu, Lixia et al, ‘Post- separation parenting, property and relationship dynamics after five years’ (Report, Australian Institute of Family Studies, 2014)<https://www.ag.gov.au/Publications/ Documents/Post-SeparationParentingProper tyAndRelationshipDynamicsAfterFiveYears/ post-separation-parenting-property-and-relationship-dynamics-after-five-years-full-document.

PDF> Workplace Gender Equality Agency, What is the gender pay gap? (2017)<https://www.wgea.gov. au/addressing-pay-equity/what-gender-pay-gap>

Ducanto, Joseph N, ‘Divorce and Poverty Are Often Synonymous’ (2010) 24(2) Ameri-

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Not good enough: access to justice for victims of family and domestic violence Charlotte Regan highlights the role of community legal centres in assisting victims of family and domestic violence navigating the legal system, and scrutinises inconstant government support in this area.

Written by Charlotte Regan

â&#x20AC;&#x2DC;An effective justice system must be accessible in all its partsâ&#x20AC;&#x2122;.1 So declared former Attorney-General Robert McClelland in 2009.

Access to justice prescribes that people from a minority or an oppressed group in society have an equal opportunity to exercise their right to legal support. Women comprise 50.2% of the population,2 and yet the oppression of women manifests itself in the prevalence of violence against them. One in three Australian women have experienced physical violence since the of age of 15, and one in four have experienced emotional abuse by a current or former partner.3 Women are also three to four times more likely than men to be assaulted in relation to family violence.4 Already, 20 women have been killed in probable incidents of domestic or family violence this year.5

1 in 3 Australian women have experienced physical violence since the of age of 15

1 in 4 have experienced emotional abuse by a current or former partner

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When faced with the prospect of navigating the family law system and/or civil law system, many survivors of domestic violence turn to affordable legal services, such as community legal centres, to assist them.

Incidentally, family and domestic violence is one of the top three areas of law in which community legal centres provide support to hundreds of thousands of people every year.

These services do an enormous amount of work in assisting with: intervention orders or similar, ‘victims of crime’ applications, child protection, children living with and spending time with their parents, financial counselling, free legal advice and, in certain circumstances, legal representation for women in court. Further, many of their clients identify as Aboriginal and Torres Strait Islander, persons with disabilities, and groups from culturally and linguistically diverse backgrounds.

Despite this, legal assistance services have faced a continuing crisis of inconsistency in funding arrangements from the Commonwealth government for over two decades. In 2014,

funding for community legal centres was cut by $6 million, provoking all state and territory Attorney-General’s to write to federal AttorneyGeneral George Brandis in 2015, warning that the funding plan for legal assistance would set the fight against domestic violence back decades, and would cause delays within the court system.6 From 1 July this year, it was proposed that funding was to be cut by another 30% under the National Partnership Agreement on Legal Assistance Services 2015-2020, which again provoked warnings of ‘devastating’, even ‘disastrous’ consequence. In May, however, George Brandis announced that these planned cuts were abandoned.

While this announcement provides much needed stability for the frontline services, the impact of decades of precarious funding arrangements has been three-fold. Firstly, community legal centres have limited the eligibility of clients to the most disadvantaged in response to chronic restrictions. This means survivors in the awkward ‘middle ground’ (ineligible for community legal centres but unable to afford private legal representation) put themselves in debt to pay a private lawyer, they represent themselves, or they drop legal action against their abusive partners completely.

Secondly, the lack of funding certainty hinders the ability of community legal centres to plan ahead, avoid unexpected reversals of programs, and provide employment certainty to their staff and a consistent service to clients.

Thirdly, it increases the inefficiency of court proceedings, while the costs of not enforcing legal rights across the community are borne by other government services such as healthcare, employment, housing and child protection.

Most importantly, it undermines the safety of those experiencing family violence, thus leading to an escalation of violence. And let’s be clear – there are lives at stake. Each year, 160,000 individuals are turned away from community legal centres, and 67.3% of the time this is due to insufficient resources to meet growing demand.7 In response, these frontline services have repeatedly called for a minimum of $14.4 million per year, pursuant to the recommendations of the Productivity Commission.8 Furthermore, they have implored the federal government to commit to developing a process for determining sustainable long-term funding to the legal assistance sector.9 Why then has it taken this long for the Attorney-General to provide stability and reassurance to this vital sector?

Is it perhaps a manifestation of the systemic downplaying of violence against women?

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Is it because women and “women’s issues”, including access to justice, are simply not a priority?

Is it because there is a chronic misunderstanding of the complexity of family violence and the needs of its victims? Whatever it may be, funding the legal services sector is expensive. But so is not funding it. How much does a life cost anyway?

While many subsequent federal governments have spoken out against violence against women, their condemnations have not taken form in concrete support for the frontline services that protect and defend women. If their outrage is more than mere lip service, they must seriously commit to adequate funding once and for all.

• Access to Justice Taskforce, Attorney-General’s Department (Commonwealth), Strategic Framework for Access to Justice in the Federal Civil Justice System (2009), ix.

2 Australian Bureau of Statistics, 3201.0-Population

by Age and Sex, Australian States and Territories (December 2009) <http://www.abs.gov.au/ AUSSTATS/abs@.nsf/Lookup/3201.0Main+ Features1Jun%202009?Open> 3 Peta Cox. ‘Violence against women: Additional analysis of the Australian Bureau of Statistics’ Personal Safety Survey 2012’, (Research Report, Issue 1, Australia’s National Research Organisation for Women’s Safety, 22 October 2015) 4 Australian Bureau of Statistics, Experimental Family and Domestic Violence Statistics (July 2015) <http://www.abs.gov.au/ausstats/abs@.nsf/ Lookup/by%20Subject/4510.0~2014~Main%20 Features~Experimental%20Family%20and%20 Domestic%20Violence%20Statistics~10000> 5 Destroy the Joint 2017, ‘Counting Dead Women’ Project.

6 Naomi Woodley, Lisa Mosley and Anna Henderson, ‘States and territories unite in gifht against legal aid funding cuts’ ABC (online), 7 Mar 2015 <http://www.abc.net.au/news/2015-03-07/ states- territories-unite-in-fight-against-legal-aidfunding-cuts/6287604> 7 ‘National Census of Community Legal Centres; 2015 National Report’ (Research Report, National Association of Community Legal Centres, 9 August 2016), 10.

8 National Association of Community Legal Centres, Submission to 2017-18 Federal Government Budget, 2017-18 Pre-Budget submissions, 20 January 2017, 6.

9 Women’s Legal Services Australia, Submission No. 58 to Senate Standing Committee on Finance and Public Administration, Domestic violence and gender equality, 12 April 2016, 2.

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The burden of womanhood: potential pregnancy discrimination in the workplace still the norm

Written by Quyen Nguyen

Quyen Nguyen provides an overview of the laws which regulate pregnancy discrimination, internationally and domestically, and recommends areas for improvement.

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‘But she isn’t even pregnant yet’.

We are now approaching the fourth wave of feminism, yet this is a phrase that I hear too often, including from women I know. This is particularly sad when one considers Lady Justice, the mythical woman who champions social equality and reason, regardless of characteristics which may set us apart. There is an expectation that the law will act as a fundamental vehicle for change, establishing progressive standards that evolve and adapt with time. However, extensive studies and experiences of women demonstrate that pregnancy discrimination is a systemic and rife issue.

Pregnancy discrimination continues to occur in relation to career opportunities, affecting finances as well as physical and mental stress.1 This type of discrimination is a challenging area to regulate, as it capitalises on prejudices and a cultural framework of assumptions.2 Women are consistently subjected to misinformed and archaic attitudes – such as ‘trading workplace competence for warmth’ – and swiftly moved out of jobs when discussing the prospect of a child or announcing their pregnancy.3 The decision in Ansett Transport Industries (Operations) P/L v Wardley4 is a prime example, where the complainant was of child-bearing age and was rejected as a trainee pilot due to the perception of being likely to take extended leave.

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It is long overdue that we shatter the myth that our current ‘profit model’ cannot retain women because it is ‘too costly’.

The benefits gained from encouraging female workforce participation have been estimated to increase the national GDP by $25 billion a year, further extending to efficiency, performance, innovation, organisational reputation, and access to a broad repertoire of talents.5 There are also several theoretical justifications, including the ‘harm principle’ (the denial of opportunity to secure a desire benefit, infliction of psychological injury, pervasive injury and unfairness) and retributive justice.6 Rights are rights The price that women pay is heavy. Not only does the pay gap constantly weigh on our minds, but there are at least four additional areas in which we are at risk of being discriminated against: the perception of pregnancy, during pregnancy, parental leave, and when women return to work after having a child. These aren’t just violations against the rights of women, they are violations of human rights, including: • The right to access decent work; • The enjoyment of just and favourable conditions of work; • The right to equal remuneration for work of equal value; • The right to safe and healthy working conditions; • The right to health; and • The right to an adequate standard of living.

What is Australia doing to combat this discrimination?

Australia is a signatory to the Convention on the Elimination of all Forms of Discrimination Against Women (‘CEDAW’), the International Covenant on Economic, Social and Cultural Rights, and the International Labour Organisation Convention 156.8 There is also the Beijing Declaration and Platform for Action (1995), in which Australia proposed that the Beijing Conference should be a ‘conference of commitments’ in order for nation-states to adopt these principles in their national statements.9 The CEDAW has since been ratified in Australia, mostly through the Sex Discrimination Act 1984 (Cth).10 The Australian Human Rights Commission (‘AHRC’) has also initiated two inquiries into pregnancy discrimination: the ‘National Inquiry into Pregnancy and Work’ (1999) and ‘Supporting Working Parents: Pregnancy and Return to Work National Review – Report’, published in 2014.

So what can you do about it?

Currently, there are state and federal statutes under which women are able to seek legal redress. Primarily,

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they are: the Sex Discrimination Act 1984 (Cth) and the Anti-Discrimination Act 1977 (NSW).

Federal laws The Sex Discrimination Act extends to students, a person involved in workplace learning, a part-time worker, an apprentice, or a trainee.11 It operates to prohibit discrimination against women who are pregnant, may be capable of bearing children, have expressed their desire to become pregnant, or are likely to be perceived as becoming pregnant.12 The complainant bears the onus of proof to demonstrate that discrimination (direct or indirect) occurred on the ground of the aggrieved woman’s pregnancy or potential pregnancy, and were treated less favourably than in circumstances that are not the same or are not materially different.13 Direct discrimination refers to a woman being treated less favourably, and indirect discrimination occurs when there is a rule, policy requirement, or practice which puts a certain group at a disadvantage despite being prima facie ‘neutral’.14 State laws Unlike the Sex Discrimination Act, the AntiDiscrimination Act requires the individual to submit claims to the Anti-Discrimination Board (‘ADB’) or the AHRC. They are organisations (not courts) which deal with discrimination complaints.15 The affected individual must elect the jurisdiction of the complaint, and cannot choose more than one of the ADB, the AHRC or the Sex Discrimination Act. There is more incentive to conciliate, since the complainant will most likely have to pay all legal costs should they lose.16 Very few cases have progressed beyond conciliation to a formal hearing,17 which limits our understanding of the process to the very small amount of published decisions.18 Conciliation is confidential, informal and opaque, and causation is not required to be proved. The jurisdiction of the ADB and AHRC only permits them to deal with the complaint, not to determine whether there has been a breach of the law.19 Who should bear the burden?

Under the Sex Discrimination Act, the complainant bears the onus of proof to establish their case on the balance of probabilities in most instances of both direct and indirect discrimination.20 Once discharged, the respondent must demonstrate that the discrimination was reasonable.21 In Australia, the only state which imposes some kind of burden upon the respondent is Queensland.22 However, this has had a limited effect in changing the role of narrative accounts, and Queensland’s tribunal is only ‘focused on the definition of reasonableness, evidence, and the credibility of witnesses’.23 While it has been suggested to shift this burden to the respondent, allowing individuals to pursue complaints more easily, there are still technical difficulties.24 In the United Kingdom and Ireland, it is presumed that direct or indirect sex discrimination

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occurred in employment once a prima facie case has been established.25 It is then for the respondent to demonstrate that he or she did not engage in discriminatory conduct.26 However, it is difficult to satisfy the prima facie threshold, because their definitions of direct and indirect discrimination are similar to those in Australia.27 There is also the common issue of circumstantial evidence, where the court considers the cumulative effect of the evidence. Courts are generally reluctant to draw inferences because circumstantial evidence is often not considered to be ‘sound evidence’.28 For example, in Poppy v Service to Youth Council Incorporated,29 and Stanley v Service to Youth Council Incorporated,30 Justice White rejected the applicants’ allegations that their employment was terminated on the basis of pregnancy, and found that the company restructured independently of their announcement.

The loophole In certain circumstances, it is lawful for an employer to refuse to employ a pregnant woman. The Sex Discrimination Act allows the Sex Discrimination Commissioner to grant temporary exemptions from certain provisions of the Act.31 They may be granted for up to five years and may be on specified terms and conditions.32

There are also permanent exemptions, which can require a pregnant woman to provide medical information regarding the pregnancy.33 These exemptions are slightly different to those prescribed under the AntiDiscrimination Act, which relate to the number of employees and a ‘genuine occupational qualification for the job’.34 A ‘genuine occupational qualification’ refers to the need to treat individuals differently to address a perceived inequality.

Such qualifications may constitute either positive or negative discrimination. For example, Arden Anglican School has applied for a temporary exemption for a five-year period, extending to advertising, determining eligibility for enrolments, and the offering and administration of enrolments.35 They seek to achieve a substantial gender enrolment balance throughout their student cohort.36 By contrast, the Catholic Commission for Employment Relations sought to offer teacher

training scholarships to male students only, which was rejected by the AHRC.37 Moving forward: improving legislative measures against pregnancy discrimination It has been recommended that section 13 of the Sex Discrimination Act be repealed ‘to provide the same basic level of protection for the rights of women whatever state or territory they inhabit’.38 Currently, employees from state and territory government departments, statutory corporations, and quasi-autonomous state and territory bodies in the public sector do not enjoy the Act’s protections.39 However, repealing one provision does not itself facilitate the accessibility of justice for women in the long term.

As such, it would perhaps be better to harmonise anti-discrimination laws. By achieving a uniform national standard, we can reduce the complex variety of various tests for discrimination and allow individuals to claim discrimination on multiple grounds.40 It is also in our interest to explore the feasibility of methods adopted in the United Kingdom and Ireland. This may greatly assist us in improving Australia’s archaic pregnancy discrimination laws.

• Emily Bourke, ‘Human Rights Commission study finds widespread discrimination against pregnant women’, ABC News (online), 25 July 2014, <http://www.abc.net.au/news/ 2014-07-25/workplace-discrimination-againstpregnant-women-study/5623376>.

2 Australian Human Rights Commission, Pregnant and productive: report of the National Pregnancy and Work Inquiry (2000) 44.3 3 Margaret Thornton, ‘Women and Discrimination Law’ [2010] 11 ALTA Law Research Series 131.

4 (1980) 142 CLR 237.

5 Australian Human Rights Commission, Supporting Working Parents: Pregnancy and Return to Work National Review (2014) 9.

6 Anne Hewitt, ‘Can a Theoretical Consideration of Australia’s Anti-Discrimination Laws Inform Law Reform’ (2013) 41 Federal Law Review 35.

7 International Covenant on Economic Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976) Arts 6-7.

8 Susan Halliday, ‘Pregnancy Discrimination – A Growing Concern’ (Speech delivered at the IIR Diversity and EEO Conference, Sydney, 22 March 1999 <https://www.humanrights.gov.au/news/ speeches/pregnancy-discrimination-growingconcern>.

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Consie Larmour, ‘UN Fourth World Conference on Women: Planning, Setbacks and Achievements’ (Research Paper No 5, Parliamentary Library, Parliament of Australia, 1995).

10 Hilary Charlesworth and Sara Charlesworth, ‘The Sex Discrimination Act and International Law’ (2004) 27(3) UNSW Law Journal 858, 860.

11 Australian Human Rights Commission, Getting to know the Sex Discrimination Act: A guide for young women <https://www.humanrights.gov. au/sites/default/files/content/pdf/sex_discrim/getting_to_know.pdf>.

12 Sex Discrimination Act 1984 (Cth), s 4B. 13 Sex Discrimination Act 1984 (Cth), s 7(1).

14 Australian Human Rights Commission, above n 5, 17.

15 Legal Aid New South Wales, Discrimination toolkit <http://www.legalaid.nsw.gov.au/publications/ factsheets-and-resources/discrimination-toolkit/ what-you-can-do-about-discrimination/ discrimination-law-complaints>.

16 Ibid.

17 Thornton, above n 3.

18 Ibid.

19 Legal Aid New South Wales, above n 15.

20 Dominique Allen, ‘Reducing the Burden of Proving Discrimination in Australia’ (2009) 31(4) Sydney Law Review 579, 582–583.

21 Ibid, 582–586.

22 Ibid, 587.

23 Ibid.

24 Allen, above n 20, 586.

25 Ibid, 596-597.

26 Ibid, 596.

27 Ibid, 604-605.

28 Ibid, 582-583.

29 [2014] FCA 656.

30 Ibid.

31 Sex Discrimination Act 1984 (Cth), s 44.

32 Australian Human Rights Commission, Exemption applications under the Sex Discrimination Act 1984 (Cth) <https://www. humanrights.gov.au/our-work/legal/exemptions/ exemption-applications-under-sex-discrimination-act-1984-cth>.

33 Sex Discrimination Act 1984 (Cth), ss 7D, 27(2) (b), 30–43.

34 Anti-Discrimination Act 1977 (NSW), ss 25(3) (a)–(c), 31(1).

35 Sex Discrimination Act 1984 (Cth), ss 21(1) (a), 22(1), 44(1).

36 Australian Human Rights Commission, above n 32.

37 Ibid.

38 Australian Human Rights Commission, above n 2, 54.

39 Ibid.

40 Ibid, 55; Julia Mansour, ‘Consolidation of Australian Anti-discrimination laws an International Perspective’ [2014].

41 41 Griffith Law Review, 533.

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Written by Diana Semaan

The discussion of equal rights in marriage in Australia is seemingly never-ending. Currently, is centres around discussion of a “separate but equal” approach, the inherent heteronormativity of marriage, and what defines a “natural” or “healthy” family. A socio-political stagnation in a push for reform is complemented by an embarrassing history of political and legal inaction. Now, in the midst of an attempt to address the matter in parliament through a postal plebiscite, it is necessary to answer one essential question. How, in a country with overwhelming support for reform, have we not yet achieved equality?

Australia vs the world Essential to the consideration of domestic reform is the development of equality worldwide.

Internationally, same-sex marriage has now been achieved in 16 states, with an additional 14 states permitting civil unions and several others expressing intention to follow suit in the near future.1 First achieved by the Netherlands in 2001 and Belgium in 2003, amendments made to same-sex marriage, divorce and adoption laws have overturned traditionally narrow definitions involving ‘one man and one woman’. Spain followed suit in 2005 through a narrow parliamentary vote, whilst Canada and South Africa enacted federal legislation supported by a majority in parliament, following the emergence of domestic case law removing restrictions on the right to marry. In countries like Uruguay, Norway and Sweden, an incremental approach saw previously established civil union laws replaced with full marriage and adoption rights for same sex couples over periods of three to five years. Comparatively, New Zealand and France demonstrated a preference for full reform for same-sex marriage and adoption rights. At the same time, Iceland, which already granted adoption rights, later afforded equal marriage rights to same-sex couples.2 An international analysis of laws relating to same sex couples also addresses prominent concerns for

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reform in Australia regarding the potential socio-political opposition and backlash to change. Protests aimed at preventing marriage equality were common from conservative social-political and religious groups in Brazil, France, Uruguay, Norway, Ireland and the United Kingdom. In Finland, legislation passed in 2014 was challenged by a significant citizens petition to repeal the law, which was only rejected this year. Most prevalent amongst international examples however is that of the United States Supreme Court decision of Obergefell v Hodges,3 declaring marriage an inherent right of its Federal Constitution, regardless of gender and sexuality.

The well-known fierce divide in the state did not deter a five to four decision of a fundamental right to marry as a guarantee of the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment of the Federal Constitution.

The ‘sexuality’ struggle of Australia Although international developments may significantly influence Australia’s stance on achieving equality, an organic approach that best suits the needs of our LGBTQI+ community is needed to achieve successful reform. The necessary amendments would include removing the Howard government’s inclusion of ‘the union of a man and a woman’ in the Section 5 definition of ‘marriage’ in the Marriage Act of 1961. Most ironically, the initial third reading of the Act almost sixty years ago saw a motion to include a gender – specific definition defeated in forty to eight vote.4 An estimated 70-75% of Australian voters not only supported the idea of reform for marriage equality, they believed it inevitable; 57% of Christian voters also supported the reform. A vast majority of Labor voters and politicians support equality along with and a notable 97% of Greens supporters.5 The efficacy of a free vote would ensure that, as stated by long standing equality campaigner Rodney Croome ‘if a free vote was allowed, marriage equality could pass tomorrow and the nation could move on’.6

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In the alternative, of the fourth ever plebiscite in Australian history would require a national vote, which unlike a referendum would not follow a majority rule, but would guide Parliament to act accordingly.

The failure of the Turnbull-encouraged Plebiscite (Same-Sex) Marriage Bill 2016 addressed two prominent criticisms of this method. Firstly, that an estimated $122 million tax payer funded campaign would prove an impractical delay and waste of resources. Secondly, a plebiscite would give rise to a dangerous and ugly discourse from a disproportionately small faction of the community who oppose reform for religious and so called moral reasons.

The contribution of the judiciary in equality achieved in other states may also be considered in the Australian context. Could precedent first set by Toonen v Australia extend beyond reversing sodomy laws and breaches of privacy to discrimination based on social participatory rights? Australia’s heavy reliance on international human rights law makes the possibility of a determination of unconstitutionality highly unlikely.

As opposed to the United States and Canada, attempts by the Australian Capital Territory to set a precedent for achieving equality in 20137 were unsuccessful in affirming gender equality rights. The High Court of Australia unequivocally stated the law as inconsistent with the Federal Marriage Act and reform a matter for federal parliament.8 The costs of inequality Beyond statutory inconsistencies, the urgency for reform is encouraged by a frank assessment of the ongoing costs as a result of inequality. Additional considerations for parliament may include social, economic and reputational costs.

Economic and reputational costs The prohibition of marriage practices for non-heterosexual couples is estimated to cost Australia’s state and private sector of at least $700 million a year.9 In light of majority support for the practice, equality would provide much needed potential for small to medium businesses in Australia’s retail, hospitality and events management industries nationwide. It would further generate millions in state revenue funds for registration and licensing. A wide range of reforms for equality in spousal entitlements for super funds, pensions and tax, marriage equality could only prove economically beneficial.10 Furthermore, given the investment of significant resources in an attempt to gain a seat on the United Nations Human Rights Council, Australia must consider whether its

anti same sex marriage stance, at odds with many human rights obligations, is harming its diplomatic standing. Increasing criticism by the Human Rights Council may also encourage the Australian government to see the need for urgent reform, with every day of non compliance to key humanitarian principles weakening of Australia’s reputation on the world stage.

Costs to wellbeing Further socio-economic and cultural implications of inequality exist when considering Australia’s alarming rates of mental illhealth and suicidality. Unarguable causal links between inequality and wellbeing were crucial to the decision between a free vote and plebiscite. Prior to federal reform in the United States, mental health statistics commissioned by John Hopkins University and the Trevor Project indicated a rate of suicide four times higher in LGBTIQ+ youth than heterosexuals.11 Likewise in Australia, reports by Beyond Blue estimate rates of mental ill-health and suicidality for gender minorities as between 2 and 14 times higher than heterosexuals. Particularly, trans minorities experience amongst the highest rates of self - harm, with a 50% rate of suicide attempts for individuals 16 years and older.12 Conclusion The capacity to achieve equality in Australia is a matter of simplification; to return to the historical and gender-irrelevant definition of marriage, and to reconsider a parliamentary vote where majority support is clear. Worthy considerations for parliament should not include mere concerns of protest, but rather should focus on the ongoing costs of inequality. With an efficient parliamentary vote overruled as an option, support has shifted toward a postal plebiscite to align the law with Australia’s long standing socio-cultural ideals. The question of when to enact reform remains to be considered with respect to Australia’s diplomatic and social legacy.

For support: Student Services Unit (SSU) confidential counselling service Phone: 9514 1177 Email: student.services@uts.edu.au Building 1 Level 6 •

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Mary Anne Neilsen. Parliament of Australia. ‘Same sex marriage’.

2 Ben Winsor. ‘Same sex marriage is now legal in 22 states, and here’s how it happened’. SBS News. 1 June 2017.

3 James Obergefell et al., Petitioners v Richard Hodge, Director, Ohio Department of Health, et al. 576 14-556 (U.S. S. Ct. 2015).

4 Deidre McKeown. Parliament of Australia. ‘Chronology of same sex marriage bills introduced into the federal parliament: a quick guide’. 15 May 2017 5 Australian Marriage Equality <www.australianmarriageequality.org> 6 Michael Kozoil. ‘Marriage Equality would pass in both houses of new Parliament in free vote’. Sydney Morning Herald. 22 August 2016 7 Marriage Equality (Same Sex) Act 2013 (ACT).

8 The Commonwealth of Australia v The Australian Capital Territory [2013] HCA 55.

9 Australian Marriage Equality <www.australianmarriageequality.org> ‘The benefits to the economy’.

10 Succession Amendment (Intestacy) Act 2009 (NSW), Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status Act (2013) (Cth).

11 Australian Marriage Equality <www.australianmarriageequality.org> ‘The benefits to the economy’.

12 Gabi Rosenstreich. National LGBTI Health Alliance ‘LGBTI People Mental Health & Suicide’ Briefing Paper, 2nd ed. (2013), 4.

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References Primary James Obergefell et al., Petitioners v Richard Hodge, Director, Ohio Department of Health, et al. 576 14-556 (U.S. S. Ct. 2015).

Marriage Equality (Same Sex) Act 2013 (ACT).

Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status Act (2013) (Cth).

Succession Amendment (Intestacy) Act 2009 (NSW) The Commonwealth of Australia v The Australian Capital Territory [2013] HCA 55, <https://www.australianmarriageequality.org/faqs/10-the-benefits-to-the-economy/>.

Secondary Australian Marriage Equality, <www.australianmarriageequality.org>, ‘The benefits to the economy’.

Ben Winsor. ‘Same sex marriage is now legal in 22 states, and here’s how it happened’. SBS News. 1 June 2017. http://www.sbs.com.au/news/article/2017/06/01/same-sexmarriage-now-legal-22-countries-heres-how-it-happened Deidre McKeown. Parliament of Australia. ‘Chronology of same sex marriage bills introduced into the federal parliament: a quick guide’. 15 May 2017. http://www.aph. gov.au/About_Parliament/Parliamentary_Departments/ Parliamentary_Library/pubs/rp/rp1617/Quick_Guides/ SSMarriageBills Gabi Rosenstreich. National LGBTI Health Alliance ‘LGBTI People Mental Health & Suicide’ Briefing Paper, 2nd ed. (2013). https://www.beyondblue.org.au/docs/ default-source/default-document-library/bw0258-lgbtimental-health-and-suicide-2013-2nd-edition.pdf?sfvrsn=2 Mary Anne Neilsen. Parliament of Australia. ‘Same sex marriage’.http://www.aph.gov.au/About_Parliament/ Parliamentary_Departments/Parliamentary_Library/pubs/ BriefingBook44p/Marriage Michael Kozoil. ‘Marriage Equality would pass in both houses of new Parliament in free vote’. Sydney Morning Herald. 22 August 2016 http://www.smh.com.au/federal-politics/political-news/ marriage-equality-would-pass-both-houses-in-free-votestudy-finds-20160822-gqxzlr.html The Trevor Project www.thetrevorproject.org http://www.pbs.org/newshour/rundown/same-sex-marriage-fewer-youth-suicide/, https://www.cdc.gov/mmwr/ preview/mmwrhtml/mm6408a1.htm

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Medically supervised injecting centres in New South Wales Written by Vail Bromberger

Vail Bromberger examines harm reduction policies surrounding the use of illicit substances, particularly focusing on medically supervised injecting centres in New South Wales from a legal and jurisprudential position.

This paper is not written from a statistical or a ­medical perspective. While it draws on findings in the available academic literature, the primary purpose of this paper is to consider the jurisprudential and philosophical underpinnings of medically supervised injecting centres (‘MSICs’), especially in a context where legislative drug policy continues to polarise the community and the harms of drug addiction continue to evade a holistic solution. It is the position of this paper that, while a great deal of drug policy can be fairly described as having bases in sound, rational data and scientific u ­ nderstanding, an unacceptable amount is premised in fear and outdated or subjective opinions of addiction as a medical condition. The designation of substances as ‘illicit’ is not determinative of a substance’s objective danger, either to a user or to other stakeholders. But equally, it would be intellectually dishonest to suggest that such a designation would be anti-persuasive.

Such clarifications are essential to a productive debate about the role of medically supervised injecting centres, as they serve to establish a few crucial propositions: first, that the lives of persons who inject illegal substances are worth preserving; second, that the status of injecting drugs as a ‘criminal’ act generally ought to come second to the status of substance addiction as a health concern; third, that social narratives which disparage drug use ought to not interfere with the ability of the state to render

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assistance to those who are addicted to drugs (be they illicit or legally available).1 This paper will examine MSICs in New South Wales from a legal and jurisprudential position. It is argued that the current position of the only such facility in New South Wales (and Australia) is wellfounded in lawful measures executed in the interests of public health.

Medically Supervised Injecting Centres (‘MSICs’) ‘MSIC’ is a general term for premises designated by law as places in which persons can self-administer illicit substances (such as heroin or methamphetamines) by injection, without the threat of criminal sanction, and under the supervision of medically-trained staff.

Different MSICs operate under different policies founded in differing principles, as they are generally run by non-profit organisations under a licence from a government. However, it is generally the case that an individual will present at the MSIC possessing their own drugs and equipment, and will be directed to a designated area where they are able to selfadminister by way of injection. Staff on the premises will render medical care where patients overdose or present with other ill-health effects as a result of use of illicit drugs.2 MSICs often integrate other harm-reduction policies, such as counselling, clean needle exchanges, or the distribution of fit packs.3 Australia’s only MSIC is located in the Kings Cross

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district of Sydney, and has been run by the Uniting Church (under the auspices of their organisation ‘Uniting’) since 2001.4 The premises are authorised by part 2A of the Drug Misuse and Trafficking Act 1985 (NSW) (‘the Act’), the same act that criminalises most drug offences. This part provides for one licence to be issued by the Commissioner of Police and the DirectorGeneral of the Department of Health,6 both ‘responsible authorities’,7 to achieve four objectives: to reduce the number of deaths from drug overdoses, to provide a gateway to treatment and counselling, to reduce druginjecting and the discarding of needles in public places, and to assist in reducing the spread of blood-borne diseases.8 The issuance of the licence in 2001 was contingent upon Uniting’s satisfaction of the requirements in section 36F of the Act, requiring satisfactory internal management protocols, sufficient community and local government acceptance, and suitability of the proposed premises.9 Even though the initiative was only a ‘trial’, it was clearly intended that the facility have the capacity to service the community in the long term.

Perhaps noting that only one licence would be issued, Uniting prepared a large application. The application enclosed a service manual with medical protocols and staff proposals, an appendix annexing letters of community support, and documents from a building surveyor regarding the proposed premises. The organisation also nominated proposed premises to lease, with consent for use as a medically supervised injecting facility from the lessor. Rather contrary to some stereotypes of MSICs as sleazy drug dens or shooting galleries,10 the Kings Cross MSIC was intended to be an austere and functional medical facility, with the interests of both ‘clients’ and the broader community in mind.

In 2001, the Uniting Church of Australia Property Trust, the Director-General of the Department of Health for New South Wales, and the Commissioner of Police for New South Wales were sued by the ‘Kings Cross Chamber of Commerce and Tourism Inc’.

The suit concerned the decision-making process taken by the Director-General of Health and the Commissioner of Police – listed as ‘responsible authorities’ under part 2A of the Act – and argued that they had either failed to form the opinion that there was sufficient community support for the premises, or, in the alternative, that they formed this opinion without regard to relevant material, or, in the alternative, that

they formed this opinion unreasonably.11 Justice Sully rejected each submission by the plaintiff, finding the facility to be lawfully established and by a decision-making process that was exhaustive and appropriately considered.12 A key observation made by His Honour was distinguishing between the arguments of law raised by the plaintiff, and its the political and philosophical opinions and advocacy. While the plaintiff was entitled to advocate ‘implacable opposition’ to the licensing, especially at the premises in question,13 His Honour noted it fell short of justifying the Court’s intervention.

In addition to assent provided by the Supreme Court, the Kings Cross MSIC has been the subject of numerous internal reviews, which have generally posited that the centre is reaching its targets in servicing drug users and the broader community. As of writing, the MSIC has never had an attendee die on premises.14 This, and ­comparative outcomes in other MSICs around the world, are credited with the ability for medical staff to intervene, and to do so effectively.

Furthermore, interim reviews have indicated community and local government support years after its introduction.15 Harm-Reduction Principles It must be acknowledged that the concept of a facility in which the use of illicit drugs is not prosecuted, but rather acknowledged (and, in some opinions, facilitated),16 is for many laughable and for others condemnatory. However, to view MSICs in such basic terms is to underestimate the complexity that is required of legislative responses to the use of illicit drugs. Perhaps more problematically, it evades the nuance underpinning the philosophy behind MSICs. MSICs are one of a few examples of policies that are premised on ‘harm-reduction’. Harm-reduction jurisprudence considers that certain activities or behaviours are likely to be ineradicable, with legislative policies that are aimed at total prohibition seemingly always destined to fail. Policies that can mitigate the harmful outcomes either on primary or secondary stakeholders are prioritised based on pragmatism. Individual MSIC organisations, drug decriminalisation or legalisation advocacy groups, and drug policy scholars proffer differing conceptions of the tenets of harm-reduction philosophy. In the Kings Cross case, the available ­evidence supports the following propositions:

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First: injecting drugs can be a very dangerous activity It is unlikely to rankle most reading this paper to say that the intravenous self-injecting of substances, done for a non-medicinal effect,17 is a radical activity in which to participate, even by the standards of recreational drug use.18 Data indicates that the vast majority of recreational drug users in New South Wales do not administer by means of injection. Furthermore, drugs that are commonly injected are, by their very nature, drugs of dependency – the administration by injection disseminates the relevant chemicals into the bloodstream far quicker, delivering a quicker and more intense ‘high’.19 MSICs recognise this logic, and treat drug-injecting as a uniquely serious issue.

As injecting is sometimes reflective of a higher seriousness of drug addiction, MSICs hold that persons addicted to substances either cannot be forced or else ought to not be forced into treatment for their addiction.20 This axiom is unique in a discourse where suggestions of forced medical care, in place of imprisonment or monetary fines, are considered by some as a compassionate option.21 This paper does not wish to conflate the experience of a drug addict in forced medical care as with forced incarceration; rather, it is suggested, as demonstrated by some data in the academic literature, that forced medical care for addiction has limited prospects of success.22 Second: those that inject drugs are deserving of medical care for the resultant ill-health effects It is not unheard of that proponents of prohibition criticise the provision of medical care to those addicted to illicit substances.

Arguments rooted in bootstrapping or blame for self-imposed outcomes, and the alternative prioritisation of medical care for ‘law-abiding citizens’, are abundant. It ought to be noted that these arguments support the suffering or death of persons with addictions to substances, primarily because the addiction is to something that the legislature has prescribed as illicit. This is an important characterisation to create – no comparative discourse criticises sufferers of addictions to alcohol or tobacco; substances deemed by the legislature to be legal, but which cause comparative or greater ill-health effects to those addicted and secondary harms to society.

It is probable that the considerable distance between the average citizen and a

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person addicted to an illicit drug helps to provoke distrust and sever compassion where it might otherwise exist. When considering the very real and significant dangers that certain drugs which are injected can have on those around a person addicted (for example, methamphetamines, which can make users violent and paranoid),23 it is understandable why this barrier might exist. It is for this reason that resources such as MSICs ought to exist, as they provide persons addicted to drugs with a resource that is rarely the product of a populist policy.

Third: it is socially beneficial to maintain addicted persons’ connections to societal amenities MSICs further serve to maintain connections between users of illicit drugs and resources that they might ­otherwise not seek, perhaps due to their use of an illicit drug. For example, MSICs often work with community health programs that are directed at assisting those on the ‘fringe’ – the homeless, those engaged in sex work (especially where it is criminalised), and those who are regular or heavy users of illicit drugs.

This ensures that a connection, however tenuous, remains between persons who inject illicit drugs and healthcare that they might otherwise not seek.

Avoidance such as this is almost always caused by the criminality of a person’s actions in injecting drugs. While some consider this to be a just punishment for those committing a criminal offence, the practical outcomes are significant. For example, those who are addicted to drugs would struggle to get treatment for their addiction, given that to do so would be to admit the commission of multiple criminal offences, alongside the social stigma surrounding the use of illicit drugs. This is compounded by the tendency of various injected drugs to cause paranoia or associated psychiatric illness in users. A conviction for a drug offence can have serious consequences on one’s ability to find meaningful employment or access adequate healthcare for addiction.

These anecdotal examples are not provided to argue that all treatment of drug use as a criminal matter is jurisprudentially indefensible. Rather, it is to say that, in matters involving addiction to ­substances, it is far more productive to treat the matter with some nuance. Harm-reduction policies, such as the introduction of MSICs, seek to do this.

Indeed, they are in principle more capable of doing so, as they do not need to adhere to the rigour of criminal law.

an effective outcome in terms of harm reduction. At this point, it is difficult to appropriately evaluate the veracity of this claim; while a plethora of studies into various elements of drug prohibition are existent, the nature of prohibition being so multifaceted renders some evidence limited in its scope.24 Weatherburn’s article on drug prohibition evaluated much of the recent academic literature.25 The author argued that the data supported the conclusion that drug prohibition deserved some credit for constraining the aggregate use of illicit drugs. That it constrains the aggregate use of drugs is relevant, as the article is premised on the axiom that heavy users of illicit drugs cause the majority of drug-related harms.26 This is not to say the article is determinative, as the article inspired at least one directly responsive article refuting its claims and its statistical conclusions – subtly titled ‘The abject failure of drug prohibition’.27 This paper does not seek to parse the academic literature on drug-prohibition, nor to provide the relevant and necessary critique of the various studies.

More importantly, it is not strictly relevant for present purposes, as MSICs are premised on providing a compassionate response to a challenging problem, rather than a response that has been processed and determined by academic literature. Furthermore, even in a circumstance where drug prohibition could be evidentiarily established as being as close to the most effective response to drug addiction as is possible, it is simply factual that people with drug addictions who damage themselves and those around them still exist within society. MSICs serve as a solution for that population of people, however few drug prohibition has rendered it.

Conclusion In every population, society must reckon with the problems that its laws create, and the solutions that the law cannot provide. While it is unlikely that New South Wales will solidify the harm-reduction philosophy espoused by its single MSIC, the Kings Cross MSIC establishment and its continued existence should serve as pillars of hope for the future for those invested in the challenge of drug policy.

Fourth: denying drug addiction the treatment of an issue of health will not mitigate its effects or adequately minimise its presence This proposition is perhaps the most controversial of the four herein provided, and has been the subject of intense debate in the drug policy literature. In essence, this premise questions the underlying philosophy behind drug prohibition at its most fundamental point, and denies that the prohibition of drugs has

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See, e.g., alcohol and tobacco, which are examples of illicit substances.

2 See, e.g., “At Uniting MSIC, registered nurses and counsellors/health education officers supervise episodes of drug injecting … There is immediate access to emergency medical care in the event of an overdose or other health issue.” https:// uniting.org/who-we-help/for-adults/sydneymedically-supervised-injecting-centre/what-theuniting-sydney-msic-does 3 Fit Packs are an Australian product that contain various items that are commonly used in the administration of drugs that are injected, for example clean needles, sterile water, alcohol swabs and plastic spoons.

4 The legal character of the body running the Kings Cross MSIC is relatively complex; see especially Kings Cross Chamber of Commerce and Tourism Inc v Uniting Church of Australia Property Trust (NSW) and ors (2001) 160 FLR 300, [20]-[49].

5 See, eg, s 10 ‘Possession of prohibited drugs’, s 11 ‘Possession of equipment for administration of prohibited drugs’, s 12 ‘Self-administration of prohibited drugs’, s 13 ‘Administration of prohibited drugs to others’, s 24 ‘Manufacture and production of prohibited drugs’, s 36ZF ‘Offence of supplying or manufacturing psychoactive substances’, s 39 ‘Seizure and forfeiture of cannabis plants and certain prohibited drugs’.

6 Drug Misuse and Trafficking Act 1985 (NSW), s 36A(1).

7 Drug Misuse and Trafficking Act 1985 (NSW), s 36D ‘responsible authorities’.

8 Drug Misuse and Trafficking Act 1985 (NSW), s 36B(a)-(d).

9 See also subsections (3)(a)-(b) regarding adherence to relevant building codes.

10 See, e.g., Andrew Clennell ‘Crazy bid to open heroin room to children and pregnant mums’ [emphasis added], 25 July 2016 <http://www. dailytelegraph.com.au/news/nsw/insaneproposal-to-open-heroin-room-to-children-andpregnant-mums/news-story/08de05723e4d45 dc5c9d168c2ded5c92>; Kate Bastians, ‘Kings Cross businesses unite against drug injection centre’ 19 May 2016 <http://www.dailytelegraph. com.au/newslocal/kings-cross-businesses-uniteagainst-drug-injection-centre/news-story/aa50d 22c119eea30e18c288e71c636d6>; Susie O’Brien ‘Safe injecting room for addicts are a good idea but we should not pretend drug users are heroes’ 29 August 2017 <http://www.heraldsun.com.au/ news/opinion/susie-obrien/safe-injecting-roomfor-addicts-are-a-good-idea-but-we-should-notpretend-drug-users-are-heroes/news-story/7cfc12 2045b8b7f6ca4745daded14731>.

11 The summons also sought declaration that the Uniting Church was incapable of holding the licence. While it did occupy a great deal of the judgment, it is not materially relevant for present 1

purposes. See especially Kings Cross Chamber of Commerce and Tourism Inc v Uniting Church of Australia Property Trust (NSW) and ors (2001) 160 FLR 300, [20]-[49].

12 ‘… The commissioner took as in my opinion he was plainly entitled to do, appropriate police and other professional advice; but at all relevant stages of the profess of the application he himself considered the advice … The advice has not been shown … to have made a hasty, or a haphazard, or a biased assessment of the compliance of the application … I am not satisfied that the plaintiff has established … unreasonableness on the part of the commissioner … The conclusions which I have expressed in the case of the commissioner, are my conclusions, mutatis mutandis, in the case of the Director-General.’

Kings Cross Chamber of Commerce and Tourism Inc v Uniting Church of Australia Property Trust (NSW) and ors (2001) 160 FLR 300, [91], [95].

13 Kings Cross Chamber of Commerce and Tourism Inc v Uniting Church of Australia Property Trust (NSW) and ors (2001) 160 FLR 300, [91](3).

14 Marianne Jauncey ‘Why Australia needs more supervised injecting centres’ 11 February 2017 <http://www.smh.com.au/comment/whyaustralia-needs-more-supervised-injecting-centres20170210-gua5ch.html>.

15 ‘In 2005, nearly 70% agreed with the establishment of the centre which was an increase from 63% in 2002…’ ‘Fact Sheet: Supervised Injecting Facilities’ The Salvation Army <http:// www.salvationarmy.org.au/en/find-help/Alcoholand-Other-Drugs/Fact-Sheets/SupervisedInjecting-Facilities/>. Cf ‘The Kings Cross Injecting Room’ Dalgarno Institute < https://www. dalgarnoinstitute.org.au/images/resources/pdf/ injecting-rooms/DFA_Injecting_Room_Detailed_ Research.pdf>; this report is poorly researched and partisan in substance and authorship.

16 Tom Elliott ‘Injecting rooms are at odds with our laws’ <http://www.heraldsun.com.au/news/ opinion/tom-elliott/tom-elliott-injecting-roomsare-at-odds-with-our-laws/news-story/3e6604c8 6d21db89f8463256d8176a04> 17 The author, for this argument, distinguishes between the habitual use of drugs for recreational purposes, and the use of drugs to satisfy a medical addiction to that substance.

18 See especially Alex Wodack ‘The abject failure of drug prohibition’ Australian & New Zealand Journal of Criminology 2014 47(2).

19 Anne-Noël Samaha ‘Snorted, injected or smoked?

It can affect a drug’s addictiveness’ 2 September 2015 The Conversation <http://theconversation. com/snorted-injected-or-smoked-it-can-affect-adrugs-addictiveness-45281>.

20 See, eg, ‘The Uniting Medically Supervised Injecting Centre (MSIC) Kings Cross is a

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compassionate and practical health service that seeks to connect with people who inject drugs and welcome them in a non-judgemental, person-centred way.’ ‘The Uniting ‘Saving Lives: Uniting Medically Supervised Injecting Centre’ <https://uniting.org/who-we-help/for-adults/ sydney-medically-supervised-injecting-centre>.

21 The full story... (2017). http://www.abc.net.au/ worldtoday/content/2010/s3012338.htm.

22 Nicole Lee ‘Forcing ice suers into rehab won’t solve the problem – here’s what we need instead’ 12 August 2015 <https://theconversation.com/ forcing-ice-users-into-rehab-wont-solve-theproblem-heres-what-we-need-instead-45946>.

23 Brecht, Mary-Lynn, and Diane Herbeck.

“Methamphetamine Use and Violent Behaviour: User Perceptions and Predictors.” Journal of drug issues 43.4 (2013): 468–482. PMC. Web. 31 Aug. 2017.

24 See especially Alex Wodack ‘The abject failure of drug prohibition’ Australian & New Zealand Journal of Criminology 2014 47(2); Cf Don Weatherburn ‘The pros and cons of prohibiting drugs’ Australian & New Zealand Journal of Criminology 2014 47(2).

25 Don Weatherburn ‘The pros and cons of prohibiting drugs’ Australian & New Zealand Journal of Criminology 2014 47(2).

26 Ibid 178.

27 Alex Wodack ‘The abject failure of drug prohibition’ Australian & New Zealand Journal of Criminology 2014 47(2).

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Mariel Tan investigates a local story of medical malpractice.

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In 2011, Olivia Kanosvamhira was admitted to Canterbury Hospital to surgically remove a cyst in her right ovary.

However, she woke up from surgery to a nightmare. Instead of a 40-minute keyhole surgery, doctors had mistakenly removed her fallopian tubes. The consequences of this surgical error left her unable to fall pregnant without the use of IVF. Ms Kanosvamhira’s ordeal did not end there. After surgery, she demanded to see doctors and surgeons, but none of them wanted to speak to her. When she spoke to health staff, she was told, erroneously, that ‘they had to remove the fallopian tubes because there was too much bleeding and it was the only way to save her life’.

Luckily, Ms Kanosvamhira was a registered nurse and requested to see the operation sheets. In doing so, she found out that the explanation she had received was false. Ms Kanosvamhira was mortified that a in developed country, such as Australia, doctors would make such an irreversible, medical error.

‘I had so many questions. Why, God? How can this happen? I would understand if it was going to happen when I was back in Zimbabwe (Ms Kanosvamhira’s place of birth). If this mistake was going to happen back there, I would say: “okay, it’s a thirdworld country.”’

‘But this happening here was mindblowing. And I needed answers. But I realised: I am the answer.’

Ms Kanosvamhira found that she had the procedure for the next patient performed on her. She underwent the removal of her fallopian tubes, while her cysts remained.

This was a substantial medical error with significant consequences. To make matters worse, the hospital did not contact her for five weeks following the surgery, despite numerous attempts by Ms Kanosvamhira to contact them. She reported the matter to the Health Care Complaints Commission (HCCC), who initially dismissed the case.

Ms Kanosvamhira then wrote to the management at the HCCC and threatened to notify the Health Minister. It was only

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then that her complaint was reinvestigated, and Ms Kanosvamhira was able to take the hospital to court.

In 2015, after four years of fighting, the case was settled and Ms Kanosvamhira was awarded compensation. However, as she says, ‘the damage was done’. She is still waiting for a formal apology from the hospital.

Yet, Ms Kanosvamhira has decided to use her horrific experiences to make a positive change. She founded the Clinical Skills Academy (‘CSA’) in 2014, which holds workshops to develop the practical skills of nurses, with a focus on upskilling graduate nurses and nurses returning to the workforce. Such practice has identified a need for services to coach clinical skills in a relaxed and safe environment, which has led to the development of simulation labs. These complementary practical lessons build confidence and develop expertise in students, who are often denied adequate time and support in university labs.

Ms Kanosvamhira has also established Best Clinical Practice Australia, a not-for-profit advocacy group which supports victims of medical malpractice and

negligence, and facilitates professional development for clinicians. Through advocating for the prevention of harm in healthcare settings and thus, to promote patient safety, the organisation hopes to improve professional standards. Their provision of support networks further advocate for the rights of patients, but also bring to light the importance of responding to causative factors of medical incidents. Where such malpractice results in ongoing physical and psychological trauma, Best Clinical Practice Australia hope to reinforce current evidence-based best practice to protect vulnerable patients.

After having endured so much, yet to be so influential in the prevention of similar injustices, Olivia Kanosvamhira is an inspiration to us all.

Clinical Skills Academy • Website: www.clinicalskillsacademy.com.au/ • Contact: 1800 45 50 58

Best Clinical Practice Australia • Contact: 1800 45 50 58

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Our Rights of Risk Warnings under the Law The High Court of Australia has developed the law of negligence over the years.

Medical negligence is not a discrete area of the law but, as with Olivia’s case, allegations of negligence against a medical practitioner are often difficult to prove. However, this was challenged by the landmark decision in Rogers v Whitaker (1992), which answered the legal question pertaining to the duty of care owed to the patient when advising about treatment.

In the case of in Rogers v Whitaker (1992), the patient had injured her right eye in an accident. The ophthalmic surgeon advised that operating on her eye would not only improve its appearance, but would also substantially restore her eyesight. However, the operation was unsuccessful. As a result, the patient suffered sympathetic ophthalmia, which caused severe inflammation and substantial loss of sight in the left eye, leaving her almost completely blind.

In Australia, it had been accepted that the standard of care to be observed by a professional person is that of the ordinary skilled person exercising and professing to have that special skill, noted within the Civil Liability Act (2002). The question in this case was whether the observance of that standard of care required information regarding the risk associated with the aftermath of surgery be given to the patient.

The High Court found that all patients must be informed of ‘material risks’. This requires consideration as to whether a reasonable person in the patient’s position

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would be likely to attach significance to it or the doctor should be aware that this patient would do so. Where the Court found that, in the context of an elective procedure, it would be reasonable for a person with one ‘good’ eye to be concerned about the possibility of injury, the patient has the right to exercise a personal choice in taking the risks of a surgical procedure. As such, the ophthalmic surgeon, in failing to mention the risk of sympathetic ophthalmic to the patient and the consequent risks attached to the surgery, was found to be negligent.

The Civil Liability Act, provides that a professional person does not incur liability in negligence ‘if it is established that the professional acted in a manner that was widely accepted in Australia by peer professional opinion as competent professional practice’, so long as the practice is not ‘irrational’. However, the Act does not define what ‘widely accepted’ is. As in this case, where a failure to alert the patient of the risks of the surgery was not widely accepted by peer professional opinion, this question must be answered on a case by case basis.

It is important to note our rights as patients are to be informed by the medical staff. Where such rights are breached, we are entitled to claim a civil action under the Civil Liability Act and claim for compensatory damages.

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RvR Written by Nicholas Ruff

The age-old debate has been reignited: rehabilitation or retribution – which works to decrease crime in society? The short answer, both. The long answer depends on what sort of decrease society desires.

The Criminal Justice System is erected upon four pillars, firstly to deter the offender and any prospective offenders from committing like offences. Secondly, punish the offender for the crime (retribution).

Thirdly, incapacitate the offender from committing further crimes. Lastly, rehabilitate the offender in order for the offender to be able to be reintegrated into society.1 Recent political stances powered by the media have promoted a shift towards a more ‘tough on crime’ mentality, pushing through tougher bail conditions, minimum mandatory sentencing, continued detention and the like. Although such reforms inevitability lead to an initial decrease in crime rates, rates of recidivism still remained relatively high over the last five years. Of the prison population released in 2013, 40 per cent have returned to prison, while 46 per cent have returned to corrective services.2 Prison population rates continue to exponentially increase across both the developed and developing world, costing Australia alone $2.6 billion per year.3 The average prisoner costs $292 per day – which is more than the average earning of an Australian.4 Australia continues to deplete the rehabilitative services offered to prisoners in order to keep up with the cost of the ever expanding prison system.

Increasing prison populations is obviously not sustainable in the long term as Australia’s population is expected to skyrocket in the next 50 years. Moreover, studies have found that prisoners exposed to prison-like environments leads to an

increase in criminal behaviour. The Stanford Prison Experiment showcased that psychologically healthy individuals could become sadistic or depressed when placed in a prison-like environment.5 This is exacerbated when accounting for other factors such as solitary confinement, substance abuse, physical and sexual violence, and racial segregation. Another theory exists that suggests that prisoners that are forced to ‘mingle’ with other prisoners will consciously or sub-consciously learn the ‘tricks of the trade’ and may become more proficient in their chosen criminal field or increase the severity of criminal acts.

Prisons quite often reflect society’s most disadvantaged groups, and continuing or increasing incarceration will not resolve the underlying issues that these individuals face.

A variety of factors exist which attempt to explain why offenders commit crime such as mental health issues, social and economic conditions, substance abuse, as well as geographical and political factors. In addition, there are several theories that suggests that some offenders are ‘born’ with the criminal instinct. These factors are for the most part avoidable or at the very least have the capability to be minimised.

The aim of rehabilitative and preventative programs is to attack these factors rather than attacking the offender. These programs attempt to enable offenders with the tools needed to be able to reintegrate into society. A Queensland study found that when prisons participated in a VET education program their recidivism rate decreased to 23 per cent.6 On a national level, Sweden has begun to focus on rehabilitation, and as a result has been able to decrease their prison population by 21%, while decreasing rates of reoffending by about half when

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compared with the UK and most European nations.7 So the next time we consider how to get tough on crime, consider decreasing expenditure on the prison system and increasing budgets for rehabilitative or preventative programs to target the factors that influence criminal behaviour.

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• H.R De Luca et al, ‘Punishment vs. Rehabilitation: A Proposal for Revising Sentencing Practices’ (1991) 55 Fed. Probation 37.

2 Australian Government, Australian crime: Facts & Figures (25 February 2016) Australian Institute of Criminology < http://www.aic.gov.au/publications/current%20series/facts/1-20/2014.html>.

3 Jason Thomas, ‘How much does it cost to keep people in Australian jails?’, SBS (online), 2 February 2015.

4 Ibid.

5 Etienne Benson, ‘Rehabilitate or punish?’

(2003)23(7) American Psychological Association, 46.

6 Australian Government, Reducing recidivism through vocational education and training programs (25 June 2009) Australian Institute of Criminology <http://www.aic.gov.au/publications/ current%20series/crm/61-80/crm065.html>.

7 Erwin James, ‘Prison is not punishment in Sweden. We get people into better shape’, The Guardian (online), 26 November 2014.

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Refugee Law, university and how you can help The UTS Law Faculty possesses one of the strongest, most vibrant social justice communities among any campus in Australia. Thanks to initiatives such as the Brennan Justice Program and the Justice Action Committee, countless students have immersed themselves in emergent human rights concerns, including refugee law, offshore processing, gender rights and youth homelessness. Lately, refugee law has taken on significant importance due to the unjust legal framework and processes facing asylum seekers needing protection in Australia, as well as the need for volunteers and helpers in organisations seeking to lighten this process. If youâ&#x20AC;&#x2122;re looking to become involved for the first time or are simply eager to further your experience of (and passion in) refugee rights and law, it is strongly recommended that you give these three organisations a look.

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Refugee Advice and Casework Service (RACS) There is an image doing rounds on social media that those interested in the rights of asylum seekers in Australian immigration law will no doubt be aware of. On an ordinary office floor, a worker at the Asylum Seeker Resource Centre (ASRC) lies flat, arms stretched above her head, next to a spread of 40 pieces of A3 paper.

The papers in question is the application form needed to be filled in by those seeking asylum in order to be granted protection by our government, often without interpreters or lawyers.1 This stage, however, comes relatively late in the application of asylum for refugees.

Not only do those seeking asylum require interpreters and legal representatives to fill in these applications (chiefly for two visas: A ‘Temporary Protection Visa’ or a ‘Safe Haven Enterprise Visa’),2 but they also require interpreters and legal assistance for stages before and after form-filling to successfully seek asylum.3 This process, the writing of a coherent statement of claim and visa application is further aggravated by the recent ‘fast track’ program forcing refugees

Salvos Legal

Written by Tom Brennan

to apply for visas within a short span of time or risk losing their claim.4 The Refugee Advice and Casework Service (‘RACS’) is one of the main bodies which tirelessly work to alleviate the burden imposed by this process on asylum seekers.5 Through its main office in Randwick,6 as well as two outreach offices in Parramatta and Auburn,7 RACS has overseen cases of successful legal aid and representation for asylum seekers in circumstances where it may have been difficult to procure otherwise. The pressures of cut government funding and the ‘fast track’ program have put increased strain on the core staff, PLTs and volunteers who help RACS function.8 If you’re looking to get involved and assist, evening clinics run in Building 5B at UTS will give you the opportunity to prepare statement of claims for asylum seekers in future meetings as well as chances to watch (and possibly document) lawyers and interpreters providing clients with aid for their statement of claim or ‘prelodgement advice’ (PLA) just before their final application is sent to the department

of immigration. These clinics are run on Monday and Wednesday every week from 4.30pm to 9.00pm and can be signed up for using the email provided below.

From this, you can also take part in significantly larger statement-taking and PLA days organised twice a year at Canterbury Girl’s High (with a waiting list of 100 clients spread across two 9-11am and 2-4pm sessions) as well as a proof-checking of client’s individual stages.

These opportunities and the evening clinics are a great way to become engaged with refugee law and develop volunteering skills alongside other passionate, active individuals.

notably, Articles 3 and 14 which outline ‘Everyone has the right to life, liberty and security of person’ and ‘Everyone has the right to seek and enjoy in other countries asylum from persecution’ respectively.11 By advocating for the rights of refugees and providing free legal counsel, Salvos Legal can assist with upholding the human rights attributed to refugees and the core principles of just law and procedural fairness.

In its humanitarian division, Salvos Legal provides free legal advice, assistance and representation from lawyers at their Advice Bureaus in NSW and QLD.12 Providing advice to hundreds of clients every week and with over 36,000 hours of pro bono work in 2016, Salvos Legal assists numerous refugees in immigration matters.13 Providing one-off advice and occasionally full representation (based on a means and merits test)14 for issues of social injustice, this law firm is focused on upholding human rights and social justice for all members of society.15 Volunteers are always welcome at their Headquarters in Parramatta and ensure that legal representation can be provided to the most disadvantaged in society, promoting human rights and humanitarian ventures.16

Students and staff can get involved as solicitors, interns, law clerks, paralegals, interpreters and administrative assistants by applying through their website. Positions are also advertised on SEEK, LinkedIn and Facebook. It is the vital assistance that volunteers provide which ensures the ongoing operation of such organisations in the continued promotion of human rights. As social justice pioneers, working alongside Salvos Legal is an enriching opportunity to develop legal skills and be active in promoting refugees and the global community.

Refugee Advice and Casework Service – Contact details • Website: http://www.racs.org.au/ • Phone: 02 8004 3348 • Email (Legal Help): admin@racs.org.au • Email (Volunteering):racsvolunteer@racs. org.au

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Just imagine the plight of a refugee who has survived countless hurdles and upheaval from their own home and country, all that they have known, to travel for days across the open and rocky seas with hope in their hearts for a new start. In 2017, it is no longer ‘the American dream’ of large backyards and white picket fences, but simply the safety and security of Australia for individuals with no other option. However, upon arrival, this dream is obliterated, with refugees finding themselves in detention and attempting to navigate the complex legal procedures that define Australian immigration.

This is an issue faced by the thousands of refugees who seek asylum every year, and continues to present difficulties for such individuals seeking to harness the law and reside in Australia. With time in detention averaging at approximately 450 days,9 it is pro bono organisations that internalise the vast, expensive and complicated applications to assist refugees in being released from detention earlier.10 Organisations such as Salvos Legal aim to ensure basic human rights are afforded to all individuals, highlighted in the Universal Declaration of Human Rights (1948). Most

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Salvos Legal – Contact Details • Website: https://www.salvoslegal.com.au • Phone: (02) 8202 1555 • Email: enquiries@salvoslegal.com.au Salvos Legal Humanitarian Division – Contact Details • Website: https://www.salvoslegal.com. au/expertise/humanitarian-free-legal -service/ • Phone: (02) 8282 1500 • Email: enquiries@salvoslegal.com.au

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Amnesty International Australia: Refugee Casework Team Written by Ravi Dutta Although most of us are aware of the current barriers faced by helpless refugees fleeing war-torn countries in pursuit of a better life, are we truly aware of the systemic and complex requirements that the Government imposes on those seeking asylum?

Imagine if you were a refugee. You have just come from a war-torn country, have been stripped of fundamental human rights, and have fled your home country to seek refuge in a foreign one. You know no one, and it is likely that you do not speak the native tongue. All you want is a new life for yourself and your family. However, upon arrival, you are faced with immense paperwork and processes which you cannot even understand. Where do you even start?

How do you even complete the paperwork?

Essentially, this is a major concern that refugees face. The incredibly intricate and daunting process of attaining a protection visa is extensive and inefficient.

The process imposed by the Australian Government is burdensome, expensive and altruistic in meeting the needs of helpless individuals and families seeking asylum in a country full of opportunity and wealth.

Luckily, there are numerous organisations which aim to better the treatment and process of refugees.

Amnesty International protects and empowers marginalised people,17 and when people’s dignity and fundamental freedoms are under threat, they aim to continually campaign relentlessly, and give a voice to those who have had theirs taken away.18 Specifically, the Refugee Casework Team of Amnesty International Australia, supports asylum seekers though this expensive and convoluted process by offering casework assistance and preparing supporting information for Protection Visa Applicants.19 This process is done after their protection claims have been assessed by the Australian Government.20 Although the Amnesty Refugee Casework Team does not provide legal advice for individual cases, the organisation provides an avenue to refer to RACS.21 Essentially, it provides an initial ‘step in the right

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direction’ for attaining a protection visa. This section of Amnesty International provides greater support for particularly vulnerable cases, by lobbying the Government in relation to these specific instances.22 Further services that this team provides include, but are not limited to, intervention case reviews for the Refugee Review Tribunal and Ministerial,23 as well as supporting with applications.24 The team plays a holistic role in ensuring that refugees are able to receive help which is desperately needed.

It is a division which has significantly improved the treatment of and advanced the rights of many refugees seeking asylum in Australia.

The Amnesty International Refugee Casework Team is a fulfilling and highly rewarding experience, one which develops knowledge and understanding of the issues surrounding those seeking asylum. If you are looking to get involved, internships are advertised on Amnesty’s website which are six and a half months in duration, requiring two to three days per week.

Amnesty International – Contact Details • Internships (Refugee Casework Team): https:// www.amnesty.org.au/work-with-us/internships/ • Phone: 1300 300 920 • Fax: 02 8396 7663

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Jane McAdam, This is the application form people seeking #asylum in Australia must complete, potentially without lawyers or interpreters (25 May 2017), Twitter, < https://twitter.com/ profjmcadam/status/867715067428560896/ photo/1> 2 Refugee Advice and Casework Service, Fact Sheet: Temporary Protection Visas (TPV) and Safe Haven Enterprise Visas (SHEV) (December 2015), 1 < http://www.racs.org.au/wp-content/ uploads/2016/10/RACS-FACT-SHEET-TPV-andSHEV-22.12.2015.pdf> 3 Refugee Advice and Casework Service, An Overview of the Current Legal Situation for Asylum Seekers (February 2015) <http://www. racs.org.au/wp-content/uploads/2015/11/ RACS-FACT-SHEET-An-overview-of-the-currentsituation-for-asylum-seekers-RACS-Feb-2015.pdf> 4 Ben Doherty, ‘Thousands of Asylum Seekers Given Days to lodge Complex Applications or Face Loss of Rights’, The Guardian (online), 27 February 2017, < https://www.theguardian.com /australia-news/2017/feb/27/thousands-of-asylumseekers-given-days-to-lodge-complex-applicationsor-face-loss-of-rights> 5 Refugee Advice and Casework Service, Outreach < http://www.racs.org.au/outreach/> 6 Refugee Advice and Casework Service, RACS Brochure: Website Version < http://www.racs.org. au/wp-content/uploads/2017/03/RACS-brochurewebsite-version.pdf> 7 Ibid, 11 8 Ben Doherty, ‘” This is Breaking People”: Visa Deadline Stress Strains Asylum Services’, The Guardian (online), 09 March 2017, < https:// www.theguardian.com/australia-news/2017/ mar/09/this-is-breaking-people-visa-deadlinestress-strains-asylum-services > 9 Stephanie Anderson, ‘Immigration detention times on Nauru and Manus Island blow out to 450day average under Liberals’, ABC News (online), 13 Jan 2016 (online) <http://www.abc.net.au/ news/2016-01-13/immigration-detention-timesblow-out-to-almost-450-days/7085264>.

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Claire Higgins, ‘How our refugee policy has changed since Fraser’, ABC News (online), 27 March 2015 < http://www.abc.net.au/ news/2015-03-27/higgins-how-our-refugee-policy-has-changed-since-fraser/6349610>.

11 Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, 3rd session, 183 plen mtg, UN Doc A/810 (10 December 1948).

12 Salvos Legal, Humanitarian, <https://www. salvoslegal.com.au/expertise/humanitarian-free -legal-service/>.

13 Ibid.

14 Salvos Legal, Means & Merit Test <https://www. salvoslegal.com.au/expertise/humanitarian-free -legal-service/means-merits-test/>.

15 Salvos Legal, Getting Advice < https://www.salvos legal.com.au/expertise/humanitarian-free-legal -service/getting-advice/>.

16 Salvos Legal, Volunteering <https://www.salvoslegal.com.au/careers/volunteers/>.

17 Amnesty International, What we do <https:// www.amnesty.org.au/what-we-do/>. 18 Ibid.

19 Ibid.

20 Refugee Advice and Casework Service, Fact Sheet: Temporary Protection Visas (TPV) and Safe Haven Enterprise Visas (SHEV) (December 2015) <http://www.racs.org.au/wp-content/ uploads/2016/10/RACS-FACT-SHEET-TPV-andSHEV-22.12.2015.pdf> 21 Asylum Seeker Resource Centre, National Directory of Asylum Seeker and Refugee Service (August 2013), 4 https://www.asrc.org.au /wp-content/uploads/2013/07/National-Directoryof-Asylum-Seeker-and-Refugee-Service-ProvidersAugust-2013.pdf>.

22 Ibid.

23 Asylum Seeker Resource Centre, National Directory of Asylum Seeker and Refugee Service (August 2013), 4 https://wwwasrcorg.au/wp-content/uploads/2013/07/Nation al-Directory-of-Asylum-Seeker-and-Refugee-Service-Providers-August-2013.pdf>.

24 Ibid.

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Getting involved in social justice: Women’s Justice Network Sarah Avery is a UTS law student who currently works as Housing Support Coordinator at WJN.

Written By Sarah Avery

My love affair with the Women’s Justice Network (‘WJN’) began in my first year of university when Kat Armstrong, the Co-Founder and President, spoke at a Brennan Justice and Leadership Program seminar.

Kat spoke passionately about her experience as a woman who had spent 10 years in and out of prison, stuck in a cycle of drug use and poverty, much like many of the 1000 women in NSW prisons today.

This was set to be her life until she started a law degree inside gaol, and later established a mentoring program for women in prison in the few years after she was released to afford women the opportunities and support they needed to make positive change. I walked up to Kat at the end of seminar and asked her, inspired and in awe, if little old first year me could do anything to help. Kat smiled and assured me that she’d find me something. I started writing government submissions two weeks later, and working on ad hoc projects with them for over 18 months. Fast forward two years and I’m in a three day per week paid position as the Housing Support Coordinator at WJN. In my role, I regularly visit women in custody across NSW, to support them into safe and affordable accommodation. I also support women in the community with any ongoing housing concerns or instability. It’s no picnic. These women have years of trauma, abuse, addiction, mental health, legal and child custody struggles, and often next to no personal community support. I have learned so much from these women as I’ve been able to stand alongside them and provide the support that they deserve to get back on their feet. It’s an absolute privilege to be able to do so and I am constantly inspired by their capacity for redemption and desire for change.

I would encourage any law student to think about what kind of opportunities they want, or what kind

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of causes interest them, because this is one small example of how putting your hand up, and having a conversation with a person much smarter and more impressive than you can lead to you making a positive difference and gaining an extraordinary learning experience. This experience has impressed upon me the enormous privilege that a law degree carries, and the power and responsibility that it gives to contribute positively to our community.

The Women’s Justice Network, formerly the Women in Prison Advocacy Network runs a formal mentoring program for criminalised women both in prison and the community across NSW. WJN regularly recruits volunteer mentors to be matched with the women on the mentoring program. For anyone interested in getting involved in any capacity with WJN, please visit their website https://womensjusticenetwork.net.au/

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Staying true to your direction is what defines Clayton Utz. We’ve built a culture that’s unlike any other law firm, but don’t just take our word for it. A good lawyer needs compelling evidence so meet our people and judge for yourself.

STAY TRUE.

claytonutz.com/graduates

Academic brilliance certainly counts, but graduates who thrive here have something extra – a natural passion for connecting with people and a strong sense of self. That’s what staying true is all about. If you have these qualities, Clayton Utz is for you.

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But Still, Like Dust, I’ll Rise.

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Edition Two 2017 But Still, Like Dust, I’ll Rise.

The Full Bench Like ‘The Full Bench’ on Facebook for all things TFB related. For those interested in contributing, tri-annual callouts for submissions are made to members via social media, email, and our weekly newsletter, ‘The Buzz’.

For more information on how to contribute, or for any other queries, please contact the 2017 Publications Director, Ling McGregor, at publications@utslss.com.

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