Peppercorn would like to acknowledge the Ngunnawal and Ngambri people as the Traditional Custodians of the land upon which our publications are written and distributed. We would also like to acknowledge our neighbours; the Gundungurra people to our north, the Ngarigo people to our south, the Yuin people on the south coast and the Wiradjuri people of greater inland New South Wales.
We acknowledge their Elders – past, present, and future – and the Elders and First Peoples from all nations across the continent. This was and always will be Aboriginal Land and we recognise that sovereignty was never ceded.
Statement on Historical Wrongs
Peppercorn also recognises the historical wrongs perpetrated against Aboriginal and Torres Strait Islander peoples.
We acknowledge that colonisation is ongoing, that colonial law has been used as a tool to oppress Indigenous Australians since invasion, and that racist structures continue to perpetuate power imbalances within this nation’s cultural, economic, and political institutions. Policies such as the Stolen Generations are not historical, but rather sustained oppression, paternalism and cruelty, seen in the continued removal of Indigenous children from their homes each year.
As the ANU Law Students Society’s publication, we cannot ignore the role that our legal system plays in systematically entrenching failures and injustices faced by Indigenous peoples. Namely, by incarcerating Indigenous Australians at the highest rate in the world and enforcing the continued separation of families and communities, the system in which we live and work is continuing a colonial genocide. As law students, we must all endeavour to change the racist operation of our legal systems and challenge the views which uphold them.
Until an Indigenous voice to speak on their affairs and Country is heard; until there is a treaty; until truth is told and the historical and ongoing pain of First Peoples is recognised – there is no justice in our Country.
Editor-In-Chief
Aisha Collins
Magazine Director
Anna Liu
Social Media Director
Meghan Friday
Reporting Director
Lara McKirdy
Senior Content-Editor
Mel Megale
Content-Editors
Lola Archibald
Nic Carroll
Olivia Gill
Adhina Jose
Kiran Kaur
Tabitha McDonald
Lara McKirdy
Raf Priest
Kai Tang
Oli Wiencke
With special thanks to contributors:
Sam Soar
Luke McNamara
Lewis Leow
Peppercorn Disclaimer
Peppercorn is the official publication of the ANU Law Students’ Society (LSS). The views and opinions expressed in Peppercorn are those of their respective authors. They do not necessarily reflect the views and opinions of Peppercorn, the ANU LSS, or any sponsors. Due care has been taken to ensure the accuracy of each article, and that the views and opinions of any named individuals or organisations are taken into account where relevant. Please contact lsspeppercorn@anu.edu.au if there are any issues.
by Anna Liu
Graphics
Letter from the editor
As I sit down to write this letter, the trees around campus are changing colour as we welcome colder temperatures. Golden leaves from the mighty Poplar trees line the footpaths of University Avenue and hot beverages are beginning to be clutched between fingers like a lifeline on the morning commute.
The theme for this edition of Peppercorn Magazine is ‘In Bloom’. It’s funny to consider this notion of ‘blooming’ or ‘flourishing’ alongside the tell-tale signs of an imminent Canberra winter; yet in so many ways this theme continues to capture the spirit of Peppercorn in 2024.
At the beginning of semester one we welcomed eight new members to the team. I have been particularly proud to engage more Content-Editors than ever before, as well as our inaugural Social Media Director, Meg, to help us facilitate growth. Peppercorn has well and truly ‘branched out’ this semester, becoming more visible on social media platforms, voicing a broad range of perspectives, and reaching wider audiences.
As you flick through the pages of this edition, what I hope becomes most evident is the passion it holds. I believe that this passion, more than anything, is what brings us ‘into bloom’.
Our Magazine Director, Anna, has taken design inspiration from the flora around the College of Law grounds in an homage to the beauty of this land that we are all incredibly privileged to be learning on. We have articles ranging from Nic’s guide to employment rights to Oli’s exploration of how Kant’s Categorical Imperative plays out when considering both German legal procedures in response to aeroplane hijacking and Australia’s immigration policies. Tabitha unpacks the US Supreme Court’s capacity to rule on abortion rights, while Olivia criticises the efficacy of our national environmental law-making procedures. In a Peppercorn first, one Content-Editor even attempts to write an article that will get him held in contempt of Parliament!
Behind each article and each artwork is a person creating something to share with others because it is something they care about. I can think of few things in life as beautiful as that intent, and that’s what has made overseeing this edition so fulfilling: Working with passionate people to create something together. For this honour, I send my heartfelt thanks to every member of the Peppercorn team. It has truly been so much fun. I would also like to thank the LSS for their ongoing support, without which this edition would not have been possible. In particular, I give my personal thanks to President Cian Bowes, Vice-President of Administration Bita Mahani, and Vice-President of Finance, Sam Soar, whose support and direction has been invaluable. This year, Peppercorn Magazine has been partially funded by ANU Student Media (ANUSM), through Woroni’s SCRIPT fund. The Peppercorn team would like to acknowledge this support and express our gratitude to the Woroni SCRIPT fund board for their consideration and support.
If I’ve learnt anything from this edition, it’s that being ‘In Bloom’ is not a state that has to be tethered to the seasons. I hope that reading this copy of Peppercorn brings you similar feelings to what I experienced while working on it: impassion and enlivenment. I know these are certainly the feelings I’ll be falling back on to get me through the Canberra winter!
Aisha Collins. Editor-in-Chief.
President’s Welcome to First 2024 Peppercorn Edition
I am thrilled to be welcoming you to this 2024 edition of Peppercorn, the ANU Law Students’ Society (LSS) Magazine. We are very proud to be able to bring this to you every year through the work of our incredible Peppercorn team. Peppercorn is the official ANU LSS publication for ANU Law students, giving the diverse demographics in our cohort a voice to showcase their quirks, insights, wit and eloquence through a range of text types and styles. Contained in the pages that follow you will find a mixture of interviews, articles, reports, satires and opinion pieces which we hope will have you laughing, pondering and yapping with your friends.
Theme’s have always been a struggle for me, so when I was told that the theme for this edition would be “In Bloom”, my hopes for myself were not high. However, with no small amount of reflection I have managed to come up with something somewhat coherent to say on the matter – I hope. We are often told that our adolescence is the time where we ‘blossom’, becoming the adults we will be for the rest of our lives ‘in bloom’. The way state structures operate certainly supports that, trying to get us to make our minds up about our futures as we choose our paths out of school at 17 or 18. But do we ever get to the point where we are fully in bloom? I personally feel that during my first few years at the ANU, I have changed and grown to an extent incomparable to my time in school, and I don’t think this is likely to change as I travel, figure out what I want to do with my life and continue having eye-opening experiences as I meet incredible people. I can only imagine I am not alone in feeling this. So perhaps we are never fully in bloom, but in a constant state of blossoming, and embracing that ongoing change in our lives means that in some ways we will never wilt or diminish in any way.
Before I sign off and let you get to the good stuff, it would be remiss of me not to make a few acknowledgements. First, to the Peppercorn Team under Editor-in-Chief Aisha Collins, your tireless work in writing, collecting and editing work for this has been immense and I hope you found the same satisfaction and joy in producing this as we all will in reading it. Additionally, I would like to thank our sponsors who continue to support us in all that we do and make the continued life of the society possible. And finally, as cliché as it is, thank you to those of you reading this, your engagement with the ANU LSS and its events and materials is the reason we exist and encourages us in the work we do. If you have made it this far through my little welcome, you are about to be rewarded by some far more stimulating content – I’m afraid I never really had a flare for the creative.
On behalf of the ANU Law Students’ Society, happy reading!
Cian Bowes President, ANU Law Students Society
Contents
01 | Acknowledgement of Country and Statement of Historical Wrongs
02 | Team and Contributors
04 | Letter from the Editor - Aisha Collins
05 | President’s Welcome - Cian Bowes
Community
08 | ANU Law Student’s Guide to LSS Competitions - Mel Megale
10 | Invest in women: Accelerate progress - A review of The LSS’s Women in Law breakfastAisha Collins
16 | Navigating your employment protections as a university student - Nic Carroll
Creative
20 | Which Suits Character Are You? - Tabitha McDonald
23 | ‘I Ηοld Myself in Contempt’ - Can I write an article that has me held in contempt of Parliament? - Raf Priest
26 | ‘Sketchy Verdict’ Volume 2 - Luke McNamara
28 | Outrageous Legal Loopholes - Kiran Kaur
30 | An Ode to Law Students - ChatGPT 3.5 (and Lara McKirdy)
Politics and Opinion
32 | Aeroplane Hijacking and Our Refugee Crisis: How Kant’s Categorical Imperative Unites Them - Oli Wiencke
35 | From Rhetoric to Reality: Truth in Political Advertising and Australia’s Democratic IntegrityNic Carroll
38 | How Emotion and Bias in Judges’ Decision-making: Is it truly “law all the way down”?Olivia Gill
42 | Accelerating the Inevitable: The Voice, the ‘No’ Vote, and the fate of the Inter-State Commission - Sam Soar
45 | TASCAT’s order to permit men entry to Mona’s ‘Ladies Lounge’ is the exhibit’s piece de resistance - Lola Archibald
48 | Why Roe v. Wade Had To Be Overturned: Let me Explain - Tabitha McDonald
51 | Is there space for the UN in our modern world? - Kiran Kaur
54 | Environmental law must change, but devolving national approval responsibilities is not the solution - Olivia Gill
56 | How do you say ‘access to justice’?: The Legal Language Barrier for Second-Language English Speakers - Lola Archibald
58 | The Case against Employment Agreements as Contracts: Closing Loopholes and Reversing Keifel’s Court - Raf Priest
Academic
62 | Should AI be an Inventor for the Purposes of Patent Law? A Comparative Analysis of Dr Thaler’s Case in Australia and the US - Mel Megale
68 | Learning to let go: Australia’s Journey Towards Voluntary Assisted Dying - Kai Tang
76 | A ‘Fair Use’ Scheme in Australian Intellectual Property Law - Lara McKirdy
79 | A Tale of Two IP Regimes: Protecting Indigenous Cultural and Intellectual Property in Australia vs Kenya - Aisha Collins
Community
Art by Anna Liu
ANU Law Students Guide to LSS Competitions
By Mel Megale
So you’ve finally settled into law school at ANU. Grades are (mostly) going ok, you’ve made your friends and had your first night out at Mooseheads. Now the real stresses begin – where is my paralegal job and how on earth do I even manage to get a career in law? An answer awaits you in the LSS Novice Competitions.
As part of the LSS membership, students are able to compete in a range of competitions specialising in various legal skills, all of which are sponsored by a successful law firm. At face value, it looks intimidating, and like a whole lot of work.
So what are the competitions, why do it and where do you even start? Take a look at the Peppercorn exclusive breakdown of all the available competitions, and how it might just be the next great addition to your resume.
Client Interview
Client interview is probably one of the most useful of all the four LSS competitions. No matter if you continue in the legal profession or not, establishing good relationships with work clients is something everyone will likely need. This competition involves two members of a team (which can be selected at random if you don’t have an eager buddy), interviewing a client with a legal issue to obtain information relevant to the facts. At the start of the week, you will receive a very brief prompt to guide your research and help formulate some questions. On the day, you will need to build client rapport, hear out their legal problem, extract as much information from the client as you can and offer preliminary advice. The problems are often interesting with many hidden facts and unexpected turns during the interview. The preparation time can be as low as a couple of hours a week, given most of the competition will focus on performance and ability to adapt to the scenario on the day. If you are looking to practise as a solicitor,
or just have a bit of fun with a friend in a less intense competition, I definitely recommend client interview.
Witness Examination
Were you an avid watcher of the questioning in the Johnny Depp trial? Ever wish that maybe you were the one cornering Amber Heard on the stand like you saw in your TikTok feed? Then witness examination might just be the LSS competition for you. It’s another low commitment competition that is very similar to mock trials, if you ever competed in high school. The problem is released an hour before the trial (so limited preparation needed), and you will need to examine your own witness, and cross-examine the opponent’s witness. Those who have taken and enjoyed Evidence would enjoy this competition, as all competitors must adhere to the rules of evidence law and ethical obligations. To add a bit of spice to the mix, you bring anyone to be your own witness, so if you are keen to get your friends involved and seated at the witness box this is a chance to bring them along too. If you are considering advocacy or a criminal law path in your legal career, the witness examination competition will certainly make you well-equipped.
2023
Novice and Senior Negotiation Competition Adjudicators
Negotiation
Majority of businesspeople, professionals, and of course, lawyers will need to know the bare basics of negotiating, making this competition a highly relevant experience. With a similar time commitment to client interview, you will work with a set of facts (some common to both parties, and some confidential to your client) to prepare to achieve outcomes that benefit your client during a negotiation with your competitors. Ethical obligations as legal professionals and to your client will be of key importance, and there is also an assessable reflection period during the competition. Majority of legal cases actually end in negotiation, so a competition like this is perfect for building the skills of respectfully yet assertively ensuring positive outcomes for your client while maintaining legal obligations. Whether you want to progress your legal career or simply perfect ways to convince your friends to go out instead of study, the negotiations competition will set any law student up in good stead. The facts of these problems will often be corporate in nature, so if you prefer that side of the law this is also the competition for you.
Mooting
Mooting is definitely the largest time commitment of the four competitions, but offers practice in multiple relevant skills. A moot is essentially a courtroom ‘role play’, where team members represent opposing parties as Senior and Junior counsel (with a potential third team member as a solicitor). Teams will each receive a set of facts, and prepare written submissions to be provided the day before the moot. On the day of the moot, oral submissions will be given to a judge, and teams will need to engage with the opposing counsel’s arguments. Perhaps the most nerve wracking component is the on the spot questions which can be asked by the judge, mimicking the true nature of the courtroom. You work with your team to present your case and rebuttal, citing relevant authorities and using the language and formalities of a real court. What some may view as glorified live-action role play is in reality a stepping stone to learning the crux of litigation work and oral presentation skills. If you have some high-achieving friends and a bit more time on your hands, you will get hands-on experience of what representing a client in court is truly like.
Conclusion
These law competitions each offer a set of unique skills needed in the legal profession, the type of expertise you simply can’t gain by sitting in a classroom. This tangible experience will translate into any potential law job you have, and will show prospective employers that you can apply what you have learned at university to real life scenarios. You will compete with and against other law students, a great way to meet like minded people within your degree. Perhaps the most important component though, is that you will be judged by experienced people who have more than likely paved their own way in the profession already. It is an ideal way to network, show off your skills, and maybe even land an interview if you play your cards right (trust me this has actually happened before). So give it a go, even if it is just a low commitment novice competition, and take advantage of the cheapest and easiest legal experience boost that ANU has to offer.
2024 LSS Corrs Chambers Westgarth Senior Client Interview Competition Finalists from left to right: Atputha Rahavan, Holly Wallman-Craddock, Thu Vu and Bita Mahani
Invest in women: Accelerate progress
A review of the LSS’s annual ‘Women in Law breakfast’.
By Aisha Collins
The ANU Law Students Society’s (LSS) annual Women in Law (WIL) breakfast was held on the 21st of March 2024 at the QT hotel. Not to be confused with Women In Law ANU’s International Women’s Day Breakfast [1], the LSS’s ‘WIL Breakfast’ is held annually by the LSS’s Social Justice portfolio, with Clifford Chance being the breakfasts’ long-time sponsor. The event is, in part, inspired by International Women’s Day (IWD), which takes place on the 5th of March every year.
This year, there were two themes for the day. The first, being the official IWD campaign’s slogan, was ‘#InspireInclusion’. The second was the UN’s observed theme: ‘Invest in women: Accelerate progress’. The dissonance between these two themes is, I feel, quite apt to represent the different ways in which IWD is celebrated.
Respectfully, the theme ‘#InspireInclusion’ makes my eyes roll; a hollow attempt at pretending a day intended to empower women isn’t just another marketing strategy. To boot, this hashtag is supposed to be shared by people on social media with a photo of themselves configuring their fingers to form a heart shape [2] – Look how easy it is to support women! No further action required! – It’s catchy and palatable, with no ambition to gauge tangible outcomes.
‘Invest in women: Accelerate progress’, however, tells me the UN wants us all to put our money
where our mouth is. ‘Accelerate progress’ in particular drives home how empowering women is for the benefit of everyone in society. It acknowledges the power of women, when supported and uplifted, to elevate entire communities with them.
For this year’s WIL Breakfast, $10 from every $12 ticket purchased for the event was donated to the ACT Women’s Legal Centre to support “gender-responsive financing”. This financing intends to enable women to access the support they need and deserve to navigate legal issues. A good sign, I thought, that this event aligns with the UN’s ideas of what really empowers women: financial backing, as opposed to a hashtag.
With this in mind, I rocked up to this year’s WIL breakfast keen to get behind a good cause, but with a healthy amount of scepticism. It’s become hard for me to ignore feelings of hesitancy whenever I see any sort of IWD or Womens+ empowerment event marketed alongside the logo of a corporate sponsor. Especially when the event is paired with something a little bit cutesy like “networking event” or “brunch” (both of which were tactfully underplayed in the LSS’s advertising materials for this event, to my relief).
It’s not that I was expecting the event to be uninspiring, or poorly executed – the LSS puts considerable effort in to these events, and I trust it is from a place of sincerity – but I will say that I’ve been
to quite a few events and panels claiming to champion Women in Law over the years, and a lot of the time I leave feeling a bit deflated. Networking is not my thing. Girlbossing is not my thing. And I do feel that there is often a palpable disconnect between the women in attendance: often middle-to-upper class, often able bodied, and often white (with myself included here), and the women who’s empowerment is most frequently ignored: women from low socio-economic backgrounds, women with disabilities, and women of colour.
Her Honour Justice Louise Taylor, this year’s keynote speaker, opened her speech echoing that exact sentiment. In her own words, Justice Taylor expressed that she has “largely avoided anything to do with [International Women’s Day] in recent years” due to this dissonance between who is championed and who is ignored.
Justice Taylor is a Kamilaroi woman, the ACT’s first Aboriginal judicial officer, and the first Indigenous woman to become a Supreme Court Judge in Australia [3]. She is an ANU College of Law alumna, with a background in criminal law specialising in family violence that has my utmost personal admiration. I was stoked at the opportunity to hear her speak, and decided when I saw her name attached to the event’s advertising materials that I absolutely wanted to be in attendance, my feelings about IWD aside.
Expanding on why she usually turns down opportunities to speak at “these types of events”, Justice Taylor articulated an awareness of how the waters remain “largely untested” for an Indigenous woman with her career trajectory, which has compounded a feeling of needing to be “especially careful” with her word selection and presentation.
These disclaimers at the start of her speech were accompanied by addressing another elephant in the room: a general malaise with the corporatisation and ‘feminist cheerleading’ that surrounds and stifles any actual progress made on International Women’s Day.
I sat with my cup of coffee and cute little mini pastries listening to Justice Taylor’s speech and got to wondering; how many other attendees – like myself, the housemate I’d dragged along to the breakfast with me, and supposedly Justice Taylor herself – showed up to this event sceptical, but hoping to be pleasantly surprised? What does it mean to show up to something you kind of expect to be disappointing, but to still go and hope for the best? What was it that had made me feel slightly uneasy about the event to begin with, when I had every reason to trust the care and passion of the organisers?
I was left meditating on these thoughts throughout the rest of the breakfast, but have since decided that this line of thinking is quite analogous to the way in which people interested in pursuing social justice related legal careers show up to meet the law.
The last question in Justice Taylor’s Q & A session came from an attendee who asked for Her Honours’ advice. The attendee prefaced their question by acknowledging that, as the law continues to be unkind to minorities, the attitudes starting at the bottom are of the utmost importance. With this in mind, Justice Taylor was asked: how can we, as law students, do better? How do we continue to show up with a desire to bring about change when continually faced with discrimination and injustice?
Her Honour considered how to respond, before sharing with us the words of Professor Megan Davis, who Her Honour described as having, at times, held a “glass half full” to her own learned scepticism. For all the pain and suffering the law can bring; the infliction and compounding of trauma and distress, the lack of accountability for some but devastatingly punitive measures for others, Professor Davis says “we can’t forget the power of the law to redeem.” The power of the law to inspire. The power of the law to uplift.
“You stay in the law” despite coming face to face with such injustices, Her Honour concluded, “because you have to believe it is capable of change”.
When I later asked about the levels of engagement these types of events receive, Mia Booth, The LSS’s Vice-President of Social Justice, mentioned that events tackling gender inequality often experience high levels of engagement, relative to other LSS events. According to Booth, this is “likely due to there being a high proportion of women’s+ law students at ANU and ANU students being passionate about social justice”.
We know that since 1993, there have been more women graduating with law degrees each year than men [4], and that as of 2023, 55% of Australian solicitors identify as women. We also know that while we only make up between 25-30% of Bar Associations across Australia, women account for 70% of solicitors in the community law sector [5]. The links here make themselves obvious.
Clifford Chance partner Elizabeth Richmond, who alongside Clifford Chance law graduate Yasmin Box also presented a speech and Q & A session, touched further on the sustained “thinning up the
pyramid” of women in commercial and private law firms when it comes to positions of power. While gender parity for leadership and seniority in the legal profession remains elusive, there has of course been undeniable progress made in recent years.
Justice Taylor also discussed this supposed ‘new era of change’ for women in law, and women in general across the nation. Without denying that having more women holding positions of power is a marker of a progressive society, she reminded us to keep asking: Who is being lifted up here? Who is being left behind?
To give more context to the statistics mentioned above is to see a much bigger picture. In 2020 there were only 309 female solicitors in Australia* [6] who identified as Aboriginal and/or Torres Strait Islander. That’s 309 out of 44,581, or 0.7% in comparison to the 3.8% of the national female population who are Aboriginal and/or Torres Strait Islander. Who is being lifted up here? Who is being left behind?
A weariness and understanding of how IWD events are often co-opted to satisfy tick-box corporate inclusivity quotas, while at the same time ignoring the perspectives of women further marginalised by their race, class, sexuality or disability was, I realised, on everyone’s mind throughout breakfast. If it hadn’t been before Justice Taylor’s speech, it certainly was during and after. To the credit of Booth and her two Social Justice Directors, Venni Baliyan and Hannah Benhassine, who helped organise the event, I also realised that this had likely been preempted.
In her introductory speech, Booth prefaced the event with an acknowledgement that “colonial law
has been used as a tool to oppress Indigenous Australians, including Indigenous women,” and that it’s important to use events like the WIL breakfast to “reflect on access to justice for all women, and all people”. There was more depth and sincerity to Booth’s Acknowledgment of Country than there is to be found in the official IWD Campaign’s entire theme of ‘#InspireInclusion’.
Over the course of the breakfast, the crowd at my table had gradually dispersed as people were unable to stay the whole time, needing to get to class or work. After the speeches, when the eggs benny and smashed avo came out as a godsend for my rumbling tummy, I found myself in discussion with two Juris Doctor students. They were women I’d never met before, but with whom I engaged in one of the most engrossing and passionate conversations I’d had in quite some time. We spoke about typical things: studying law and why we were motivated to do so, moving to Canberra, our families, our travels and ambitions, but there was so much joy there, coupled with genuine connection and mutual understanding.
When I asked Booth why she thinks events like the WIL breakfast are worth investing in, she said that the pay off came from “attracting some of the most dedicated and passionate students in one room, and providing them with the opportunity to learn more about […] using the law for good”. I, for one, was reminded just how special this sense of community and hope is. Recalling the words of Professor Davis, as quoted by Justice Taylor, if sustaining the belief that the law is capable of changing for the better is needed to pursue such change, then it couldn’t hurt to keep coming to these types of events every once in a while.
You can be critical of institutions that perpetuate discrimination and injustice, while still finding solace and inspiration in the people working within them trying to bring about change. In this same vein, I suppose I can remain critical about International Women’s Day, and events attempting to empower women over coffee and snacks, while still appreciating the intention and necessity behind them.
At the end of the day, for every hollow, corporatised IWD event out there, I shouldn’t forget the power of these forums to inspire and uplift, when executed in a way that prioritises intersectionality and nuance. I give my kudos to the LSS Social Justice team for managing to pull off an event that does just that.
References
[1] Women in Law ANU, or WILA, is a student-run body which aims to equip and embolden female-identifying law students at the ANU. It is not affiliated with the LSS. You can find more about WILA, and the work they do, here: https://www. facebook.com/womeninlaw.anu
[2] See the official IWD campaign website here: https://www.internationalwomensday.com/Theme
[3] Alexis Moran, Rachael Knowles. ‘Kamilaroi woman Louise Taylor will become the first Indigenous female Supreme Court judge’, NITV. https://www.sbs.com. au/nitv/article/kamilaroi-woman-louise-taylor-will-become-the-first-indigenous-female-supreme-court-judge/ndfcw047q
[6] Excluding Victoria, where no gender data was provided. see: Law Society’s Annual Profile
Photography by Lewis Leow
Navigating your employment protections as a university student: 5 rights you
should know.
By Nic Carroll
Clearly something is wrong. Though we make up only 16% of the Australian workforce, individuals under the age of 24 make up a disproportionately high 25% of all requests for support to the Fair Work Ombudsman (FWO), with over 44% of litigations made by the ombudsman concerning a youth employee [1].
While we may be used to a brief skimming over of our award, eba or contract when we get started with a new job, it can be easy to forget the hard-fought rights which employees, and youth employees in particular, deserve under Australian workplace legislation. So without further ado, let’s launch into the 5 most valuable rights that you’re gonna need to absolutely smash any job which comes your way:
1. National Employment Standards
As a casual worker it can be easy to dismiss many workplace relations laws, including the National Employment Standards, as offerings only to full and part time employees. Fortunately, many of these standards carry through to all employees regardless of their employment status [2]. Specifically, casual employees are granted:
• Paid family and domestic leave
• Unpaid carers, community and compassionate leave
• Request powers to convert from casual to fulltime status (more on this below!)
Though the conditions seem somewhat restrictive, in combination with the existing protections for casual workers under your respective award [3], the National Employment Standards provide a critical safety net to safeguard your rights no matter what job or employment status you might have.
2. Pathways to Full-time Employment
While many of us may have heard of the ‘right to disconnect’ [4] passed in a recent amendment to the workplace relations legislation providing workers the right to ignore attempted contact from their employer outside of work hours, the bundled up package also included a range of lesser-known but just as vital provisions. Specifically, the creation of a new pathway placing the power on the employee (that’s you!) to change employment status where you have been working the equivalent full time hours with the employer for 12 months [5]. This means leave entitlements, guaranteed working hours and improved consistency all round – if this doesn’t sound good, just imagine how you’ll be able to work AND make your weekly law seminar (does it get any better??).
In all seriousness though, this should be top of mind in case an unforeseen event (like a pandemic, cough cough) reduces the need for your position, thus endangering your hard-earned income stream and leaving you with the limited rights of a casual worker, regardless of the length of time or commitment you have for the role.
3. Payment for Internships
Contrary to what we may think as we trudge our way through internship application after internship application, we usually have a right to fair payment. An employer only holds the right to offer an unpaid internship or work placement where it is part of an approved job training program or vocational placement and the work completed extends only so far as the relevant program requires [6].
Additionally, an unpaid intern position may be offered by a not-for-profit organisation, provided it meets the above criteria.
So, while you cannot expect payment for anything under the ANIP or similar university-provided courses, you should definitely be taking a second look at those advertisements on seek and indeed to make sure you receive what you’re entitled to.
4. Your boss cannot cancel your visa
While the use of threats commonly result in international students being unfairly exploited, the Fair Work Ombudsman highlights it is only the Department of Home Affairs who have the right to cancel, suspend or modify visa conditions [7].
Moreover, a recent deal made with the FWO means international students can report threats and working conditions where a breach of workplace rules has occurred, even where they too have breached their visa conditions without any repercussions on their right to work, live and study in Australia [8].
5. Deductions from your pay cannot take place without informed and written permission
Whether you accidentally break a plate when running tables or find a discrepancy between your end of day earnings and money in the till, your manager is unable to deduct any funds from your pay unless you have acted with ‘wilful misconduct’ [9]. What this means is you cannot be forced to shoulder the burden for anything and everything that goes wrong at your workplace and must receive your full and total pay entitlements for every shift, provided you’re doing your job to the expected standard.
So next time the bell rings and you rush to carry food to the awaiting table, remember it’s not just food you can serve, but justice too.
References
[1] ‘Fair Work Ombudsman out to smash myths relating to young workers’, Mark Lee, Fair Work Ombudsman, 21 October 2022. https://www.fairwork.gov.au/newsroom/ media-releases/2017-media-releases/february-2017/20170213-young-worker-myths-release
[2] ‘Casual Employees - Fair Work Ombudsman’, Fair Work Ombudsman. https://www.fairwork.gov.au/starting-employment/types-of-employees/casual-employees#:~:text=Casual%20employees%20can%20request%20flexible,a%20regular%20 and%20systematic%20basis.
[3] ‘Awards - Fair Work Ombudsman’, Fair Work Ombudsman. https://www.fairwork.gov.au/employment-conditions/awards
[4] ‘Closing Loopholes: Additional Fair Work Act changes - Fair Work Ombudsman’, Fair Work Ombudsman. https://www.fairwork.gov.au/about-us/workplace-laws/legislation-changes/closing-loopholes/additional-fair-work-act-changes.
[5] ‘Becoming a Permanent Employee: Employees Requesting Casual Conversion - Fair Work Ombudsman’, Fair Work Ombudsman. https://www.fairwork.gov.au/starting-employment/types-of-employees/casual-employees/becoming-a-permanent-employee.
[6] ‘Work experience and internships - Fair Work Ombudsman’, Fair Work Ombudsman. https://www.fairwork.gov.au/starting-employment/unpaid-work/work-experience-and-internships.
[7] ‘International Students - Fair Work Ombudsman’, Fair Work Ombudsman. https://www.fairwork.gov.au/tools-and-resources/fact-sheets/rights-and-obligations/international-students.
[8] ‘Visa Protections: The Assurance Protocol - Fair Work Ombudsman’, Fair Work Ombudsman. https://www.fairwork.gov.au/find-help-for/visa-holders-migrants/visa-protections-the-assurance-protocol.
[9] ‘Deducting Pay - Fair Work Ombudsman’, Fair Work Ombudsman. https://www.fairwork.gov.au/pay-and-wages/deductions-and-related-issues/deducting-pay.
And finally, here are a few cheeky resources to have at your disposal in case you ever find yourself in a situation where you need more than just this article to get you through your workplace issues.
ANUSA Rights in the Workplace Information Page Tools and Resources - Fair Work Ombudsman
Creative
Art by Anna Liu
Which ‘Suits’ Character Are You?
By Tabitha McDonald
Every law student has watched Suits – and if you say you haven’t, I don’t believe you. In my first year, a lecturer asked us to go around the class and share why we had chosen this degree. She got to approximately the fourth student before turning to the entire class and asking, ‘how many of you chose law because of Suits?’
Another student piped up ‘I chose it because of Legally Blonde.’
No one can deny that the media we consume plays a significant role in shaping our interests. Our interests then go on to shape our passions, and so on, until a room full of first years find themselves twiddling their thumbs, wondering when they get to start dating Meghan Markle and praying they develop late-onset photographic memory.
But what separates a Louis Litt from a Harvey Spector? A Mike Ross from a Rachel Zane? Is there any difference at all? Or at the end of the day, is every law student just another boring old suit?
Find out which Suits character you truly embody with our ANU-specific personality quiz, written by someone who has only-kind-of watched the show.
1. Where do you study?
a. Marie Rae or nothing.
b. Cafes.
c. Law Library, duh.
d. Coombs.
e. Chifley basement.
f. At home.
2. How do you study?
a. Two’s a crowd.
b. With my phone in a lock box.
c. In a large study group – keep your enemies close.
d. With whoever will have me.
e. Pomodoro method and lo-fi.
f. Study?
3. How do you get to campus?
a. Uber.
b. Walk.
c. Car.
d. Electric scooter
e. Public transport.
f. Bike.
4. How far in advance do you do your essays?
a. Depends how interested I am.
b. Night before.
c. Well in advance.
d. Quickly, but to a high quality.
e. I get to it in-between my busy schedule.
f. It’s not referenced but the argument is great.
5. What did you pair your law degree with?
a. Sex appeal.
b. I don’t study law.
c. Political Science.
d. Accounting.
e. Straight law.
f. Arts.
6. What’s your favourite thing to eat on campus?
a. Bagel from Otto’s.
b. Cronut from Coffee Lab.
c. Smoothie from Milligram.
d. Lunch Bowl from Urban Tiger.
e. Sushi from Sushi Smith.
f. Pork Buns from Daily Market.
7. Where do you get your campus coffee?
a. Otto’s
b. Chatime.
c. Coffee Lab.
d. As You Like It.
e. Rex.
f. Craft Beans.
8. Would you ever jump in Sully’s Creek for a dare?
a. Already have – it’s a campus legend.
b. Not in these shoes.
c. Definitely not.
d. I got pushed.
e. No! Think of the river rats.
f. How much would you bet me?
9. Who did you vote for in Triple J’s Hottest 100?
a. Lovin On Me – Jack Harlow
b. Paint the Town Red – Doja Cat
c. Say Yes To Heaven – Lana Del Ray
d. Vampire – Olivia Rodrigo
e. What Was I Made For? – Billie Eilish
f. Back on 74 – Jungle
10. What is your university dating life like?
a. Moose hook-ups.
b. Dating apps, mostly.
c. People are too scared to ask me out.
d. I’m an ANU Crushes Top Contributor.
e. I have ANU Crushes written about me.
f. I have a tute crush.
11. What is your preferred weekend activity?
a. Afternoon schooner at Badger & Co.
b. Day trip to Jervis Bay.
c. Molonglo Valley wine tour with the gals.
d. Friend date to the National Gallery.
e. Going home to visit family.
f. Bouldering at BlocHaus.
12. What sport do you enjoy?
a. Basketball.
b. Pilates.
c. I go to the gym.
d. Tennis.
e. Running.
f. I enjoy watching sports.
13. What is your choice of Canberra bar?
a. Molly.
b. Highball.
c. White Rabbit Cocktail Room.
d. Dear Prudence.
e. Blackbird bar.
f. Badger & Co.
14. What is your favourite Canberra attraction?
a. What’s on at GIO Stadium?
b. Canberra Balloon Spectacular.
c. National Library.
d. Floriade.
e. Canberra International Film Festival.
f. Questacon.
15. Who is your favourite Suits character?
a. Mike.
b. Rachel.
c. Jessica.
d. Harvey.
e. Donna.
f. Louis.
Key:
Mostly A’s – Harvey
Congrats! You are a suave gentleman with a boyish charm. While you haven’t disappointed your mother, the same can’t be said for the other women in your life. Keep up the great work Harvey – your emotional range will develop eventually.
Mostly B’s – Donna
If self-love was an illness, you would be a terminal case! You do things your way or the highway. Sometimes this comes off as abrasive, but chin up Donna, abrasive is the new black.
Mostly C’s – Jessica
You are a Jessica! While you like a loyal group of friends, you also know how to make it on your own. You’re a girl boss and you don’t care who knows it! Keep gaslight gatekeeping your way to the top.
Mostly D’s – Louis
While you may not be ‘literally him’ you’re literally a superstar at what you do! Stay in your lane and don’t let the moves of others distract you. While socialising may not be your greatest strength, you pull through for your friends when it matters.
Mostly E’s – Rachel
Your work ethic is insane! While you may not be the best at work-life balance, your commitment to achieving your goals and aspirations is admirable. Cut out more time for yourself to enjoy the things you love. Like seriously. Please go home. Your friends are worried.
Mostly F’s – Mike
You’re a Mike, and people hate you because they ain’t you! You succeed in almost anything you undertake with low effort, and honestly, it’s bloody annoying. Work on trying to find joy in activities you aren’t naturally good at, and you might learn a thing or two.
‘I Hold Myself in Contempt’ - Can I write an article that has me held in contempt of Parliament?
By Raf Priest
In a recent Conflicts of Law class, convenor Kieran Pender took an interesting tangent - of which he is often prone to do. Mostly, these tangents involve his upcoming Euro Summer holiday (don’t worry Kieran this is not a complaint, I love the course and I love hearing about your planned european getaway).This tangent, however, was on the idea that you can be held in contempt of Parliament.
I’m sure from all of the hours spent studying the law student classics - Suits, Legally Blonde, Liar Liar, Rake etc - most readers of this article (if there are any) would have some idea of what contempt of Court is. For those who are not, it is “conduct interfering with, or tending to interfere with the proper administration of Justice”. Contempt of court can also include words or conduct that “show disregard for the authority of the court”. But have you ever heard of contempt of Parliament? I certainly hadn’t until Kieran’s tangent sent me on my own wild tangent that spawned an idea; Can I write an article that has me held in contempt of Parliament? In essence, this article is a law student’s Jackass.
But before I get to the interesting part of this article, to be in contempt of the Commonwealth Parliament you have to commit conduct
‘intended or likely to amount, to an improper interference with the free exercise by a House or committee of its authority or functions, or with the free performance by a member of the member’s duties as a member [1]’
So largely very similar to contempt of court. It is
conduct that will or is intended to interfere with either the functions of the House of Parliament or its Members. Examples of this could be disorderly conduct in Parliament (think what SALT wishes they could do if they actually left campus for once), forging or falsifying documents presented to Parliament and bribery of members.
But most importantly for this article there are two types of conduct that we should take note of; ‘intimidation of members’ and a ‘soundbite hungry Senator’.
Wait. What did you say?
Intimidation of a member. Well, in 1955 a newspaper owner (Ray Fitzpatrick) and a journalist (Frank Browne) were both jailed for two months for suggesting in an article that a Member of the House of Representatives (Charles Morgan) had been involved in ‘immigration rackets’ [2]. This article was said to have put the Member in a position to be unable to speak his mind without fear in Parliament [3].
No. Not that. A soundbite hungry Senator? What does that even mean?
Oh you aren’t interested in obscure cases of Parliamentary episodes from the 50s [4]?
No. Literally no one has ever asked that. NERD!
We want to know how a ‘soundbite hungry Senator’ is contempt of Senate?
Ah I see, so glad you asked so politely. In case you didn’t see the news recently, Senator Nick McKim of the Greens Party threatened the outgoing Woolworths CEO, Brad Banducci, with six months jail time for contempt of the Senate.
But what was the charge? Was it enjoying a succulent Chinese meal in our seat of Government? Was it storming off in the middle of an interview while cosplaying as a shelf stocker? No, it was nothing quite as interesting as that. The charge was being unable to answer a question in the Senate Committee on Supermarket Prices.
But surely this question raised real issues of substance to the committee proceedings – questions that went to the heart of the cost of living crisis that this dirty, sleazy, grimey, capitalist-in-chief was deliberately avoiding in order to hide the evil neo-liberal empire’s secrets from ‘Comrade’ McKim? No, again nothing as interesting as that. The question in question was, simply, “what is Woolworths Return on Equity (ROE)?”.
ROE is a financial metric that, as I am reliably informed by some random accounting and finance student I cornered, is only sometimes used and really not that important in the grand scheme of things. So, all of this McCarthyite outrage and a threat not invoked since the 50s was to get a soundbite of a dirty capitalist being unable to an-
swer the question, just to be posted to the favourite medium of all Greens Party Hacks, Twitter (or X for the Law/Fin Elon fanboys).
So what I meant when I said that “a twitter hungry senator” could be contempt of Senate was that you can be charged, or at the very least threatened, with contempt of Senate if you are faced with a Senator more interested in getting a soundbite to post to his economically challenged party faithful instead of engaging in thoughtful examination of an issue that has real and meaningful consequences to Australia.
What could have ‘Supreme Chairman of the 47th Oblast’ McKim asked Banducci instead? What about, “Is the Productivity Commission’s assessment of the Supermarket Industry Accurate? Is there a competitive fringe with Coles?”. Maybe even, given Banducci’s record on answering questions, a simpler one: “Does inflation affect the cost of groceries?”. Or literally anything else that probably would have been worthwhile to the debate on the cost of living crisis.
So, now comes the fun part. There was a reason that I brought up the intimidation of a member at the start of this article. Let’s see if I can get myself to be held in contempt of Parliament! I present my open letter of contempt:
Dear ‘General Secretary Beloved Leader Generalismo Secretary of the Masses’ McKim,
I write to you to express to your excellency my learned opinion that your recent Senate antics demeans the sanctity of democracy in this country. Your strange concoction of populism, Socialist Alternative level issue analysis and social media McCarthyism undermines the important function of Parliamentary inquiries.
You, and the Parliamentarians to your far left and right, threaten to turn our democratic institutions into a Trumpian-esque theatre that neither addresses the real political issues of our time nor adds to any meaningful political debate.
As such I challenge you to a debate, in the great classical style of Aristotelian debate, on the footsteps of Parliament. Present your Issue. Provide your proof. Pathos, Ethos, Logos. Not only do I dare you; I bet you won’t. You’re way too scared.
Though a first year commerce law student might be able to answer questions about ROE, can you debate with a fourth year law student whose ego was forged in the fires of the ANU Law Library, an entirely misplaced self-assurance and an arrogance that would challenge Napoleon? I’ll wait to find out.
Yours truly
That’s all folks. Stay tuned for the next episode. Which could very well be coming to you from a cold damp cell in the Goulburn supermax prison.
References
1. Parliamentary Privileges Act 1987 (Cth), s4.
2. Andrew Moore, ‘Fitzpatrick and Browne after 60 years’ (Conference paper, Senate Occasional Lecture Series, Parliament of Australia, Canberra, 29 May 2015).
3. Ibid.
4. I highly recommend having more of a read here https://www.aph.gov.au/about_parliament/senate/powers_practice_n_procedures/ pops/pop64/c01
Sketchy Verdict - Volume 2
Verdict is Peppercorn’s cartoon series
By Luke McNamara
Sketchy
Outrageous Legal Loopholes
By Kiran Kaur
Legal loopholes can lead the way for some extremely bizarre outcomes – situations which are often unpredictable until they happen! Here is a list of 5 outrageous examples, ranging all the way from the absolute absurd to the downright hilarious.
5. Never make a false promise!
The case of Leonard v Pepsico, Inc [1] is an American contracts law case which highlighted the importance for corporations to be wary of the things promised within their promotional material. In this case, PepsiCo had begun a promotional program in which a jet aircraft, valued at $37.4 million,- could be purchased by consumers for 7,000,000 pepsi points – a loyalty program designed to boost Pepsi sales. However, one man, John Leonard, found a loophole within the contract, in which he was able to purchase Pepsi points for 10c a point. Through this loophole, Leonard delivered a check to Pepsi for $700,000 attempting to purchase the jet. Although the Court would side with PepsiCo, stating no reasonable person could believe that a $37.4 million jet would go for $700,000, this case highlights the airtight ways corporations must create promotional materials.
4. Watch out for typos!
Moving now to Hungary, this case shows the importance of triple checking every single piece of writing for any typos [2]. In 2021, the Hungarian Government passed an anti-LGBTQ+ piece of legislation that aimed at “hiding” Queer literature within public bookshops. The intent of the legislation was that all books with a gay character must be wrapped in foil and sold separately from other books. However due to a missing comma, the law was interpreted as if the books were sold separately from other books, THEN they should be wrapped. This comma saved a Hungarian bookshop - Lira Ltd - from paying a 31,000 euro fine for selling Heartstopper without covering it. The entire meaning of the law was changed by just a single comma!
3. Toys ≠ Dolls
In 2003, Marvel Comics subsidiary Toy Biz utilised the finicky definition of what distinguishes a doll or toy in order to reduce the tariff rate placed upon their action figures [3]. Because tariff duties were higher on dolls than toys, Toy Biz argued that their action figures – which consisted of the X-Men and Fantastic Four – were nonhuman creatures and therefore did not fit the definition for dolls. The tariff rate was halved from 12% to 6.8%, emphasising how definitions can create loopholes for corporations.
2. Legal tax evasion??
The ‘Double Irish with a Dutch Sandwich’ is not a weird combination in some wacky European pub, but rather a way in which corporations and extremely rich individuals are able to avoid taxes [4]. Within this scheme, the profits of a corporation or individual are first sent through one Irish company, and then to a Dutch company, before finally ending up again with a second Irish company with headquarters in a tax haven. This is all possible due to a loophole in Irish laws in which companies can transfer their profits tax-free to offshore shore companies. This loophole highlights the absurd means corporations or individuals will go to to avoid taxes on growing profits.
1. Expensive houses? Not for this man!
Kenneth Robinson found a loophole within the US legal system in order to acquire a $330,000 house for a mere $16 [5]. The law of ‘adverse possession’ – also known as squatter’s rights – is a legal principle in common law under which a person who does not hold legal rights to a piece of property is able to gain ownership based on continuous occupation of the property. There is no need for permission from the owner through this law. Robinson utilised this loophole upon finding an abandoned house in Texas, setting up shop and filing the paperwork stating that he owned the property, all of which cost him $16. What a cool and unique way to beat the housing crisis!
Legal loopholes can be anywhere in our everyday life; you just have to be on the lookout (and perhaps rereading every little legal document) to find them!
References
1. Leonard v Pepsico, Inc 22 Ill.210 F.3d 88 (2d Cir. 2000).
2. news24. (2024, February 9). Hungarian bookstore evades R630 000 fine due to missing comma in LGBTQ law. Retrieved from News24 website: https://www.news24. com/news24/world/news/hungarian-bookstore-evades-r630-000-fine-due-to-missing-comma-in-lgbtq-law-20240209
3. Yglesias, M. (2011, December 29). How Trade Policy Cost The X-Men Their Humanity. Retrieved April 22, 2024, from Slate Magazine website: https://slate.com/ business/2011/12/are-mutants-human.html
4. Double Irish With a Dutch Sandwich: Definition and How It’s Used. (2024). Retrieved April 22, 2024, from Investopedia website: https://www.investopedia.com/ terms/d/double-irish-with-a-dutch-sandwich.asp#:~:text=Key%20Takeaways-,The%20double%20Irish%20with%20a%20Dutch%20sandwich%20is%20a%20tax,headquartered%20in%20a%20tax%20haven.
5. Sanburn, J. (2024). Man Gets $330,000 Home for $16 | TIME.com. Retrieved April 22, 2024, from TIME.com website: https://business.time.com/2011/07/18/mangets-330000-home-for-16/
An Ode to Law Students
By ChatGPT 3.5
And edits from Lara McKirdy
In the hallowed halls of knowledge, where the law books tower high, A student walks with purpose, beneath the scholarly sky. Their path is paved with statutes, with cases old and new, In search of justice’s essence, and what is right and true.
With every page they turn, a world unfolds within, Of rights that must be guarded, of battles lost and win. They learn of noble causes, where law and life entwine, And how a single verdict can redefine a line.
Amidst the tomes and articles, their mind begins to weave, A tapestry of principles, in what they believe. Equity and fairness, the heartbeats of the law, Guiding them like lighthouses, on shores both near and far.
The nights grow long with studying, the coffee pot runs dry, Yet in their heart a fire burns, that no hardship can deny. For in each case they ponder, in each law they dissect, Lies the power to change a life, to protect, to correct.
The classroom is a battleground, where theories clash and sing, And from the fervent discourse, new understandings spring. With every question raised, they delve deeper into the maze, Finding strength within themselves, in the midst of grueling days.
They dream of courts and council tables, where their words will someday flow, Defending truth and justice, in the ever-present glow. Of a world that’s fair and just, where the law stands tall and proud, A beacon for the voiceless, a hope for the disavowed.
So here’s to you, law student, with your head buried in a book, Your journey is a noble one, take the time to look. For within each statute written, within each case reviewed, Lies the essence of your calling, a world to be renewed.
Embrace the challenge boldly, let your spirit never tire, For you are the future’s architect, with the power to inspire. May your path be lit with wisdom, and your arguments be strong, For in the heart of a law student, justice finds its song.
Politics and opinion
by Anna Liu
Art
Aeroplane Hijacking and Our Refugee Crisis: How Kant’s Categorical Imperative Unites Them
by Oli Wiencke
Author’s note: The views expressed in this article in relation to the Popular Front for the Liberation of Palestine (‘PFLP’) are entirely separate from the author’s views on the current conflict in Gaza. The PFLP has been designated a terrorist organisation by the European Union, United States, Japan and Canada. Any condemnatory language used in relation to the PFLP is intended to merely reflect this designation, and does not convey a position on the current conflict.
I’ll start in Germany with two stories, both about aeroplanes — they weren’t boats. The first happened 47 years ago, in the so-called ‘German Autumn’ (much like the Arab Spring, but with no sense of humour and more beer). 1977, in the Federal Republic we called West Germany, was a very bad time. Emergencies, violence, and the politics of terrorism affected society in a way that no Australian government in peacetime has ever had to deal with to any comparable degree. The Red Army Faction (‘RAF’) specialised in the practice of politics by violence and killing, of a kind that should have been forever eliminated in Germany after 1945.
There had been, around 1975, kidnappings of civil officials to pressure the release of convicted terrorists. The freed terrorists were flown with money to the Republic of Yemen. One of them later came back in 1977, and kidnapped the President of the German Employers’ Associations, Hanns Martin Schleyer. It was widely publicised, without media blackout. The terrorist’s demands included not only the release of yet more convicted terrorists, but other demands which showed that there had been a magnification in the extent of political leverage available by that kind of violence. Helmut Schmidt’s government stood firm. Through the web of international terrorism, the Popular Front for the Liberation of Palestine (‘PFLP’) took on a RAF “referral job” to hijack and ransom Lufthansa Flight 181, which was ferrying German holidaymakers home from sunburnt Majorca. After killing the captain, they too publicised their usual demands to release German RAF terrorists, and for good measure, some PFLP terrorists imprisoned in Germany as well. Still the government stood firm. Schleyer’s son realised his
father was going to be killed in a manner not dissimilar to a televised ISIS beheading. He tried secretly to pay the ransom, with money that surely would have been sufficient to save his father. Inadvertent publicity scuppered that possibility. Either way, the government did not want to deal with terrorists.
So Schleyer’s son sued in a court which is superficially similar to our High Court: the Bundesverfassungsgericht (don’t bother trying to pronounce that), the German constitutional court in Karlsruhe. It’s not frightened of political questions. He said that there were various provisions of the Grundgesetz (‘basic law’) — particularly, Article 1 — that speak of the inviolable nature of human dignity [1]. He pleaded with the government to the effect of, ‘you should do more than you are doing’. Preferably, ‘you should strike a deal with these criminals, to free my father and to save his life’.
The court received the formal complaint around 1:00 pm on Saturday afternoon, convened the bench at 9:30 pm that day, and delivered a judgment at 5:45 am on the Sunday. They ruled that the government did not have to do what the grieving son sought for the father. The next day, several of the RAF convicts in Germany committed suicide (that was the coronial inquest’s finding), and the following day, on the basis that their suicides amounted to something in the nature of murder in the warped view of the PFLP terrorists, Hanns Martin Schleyer was killed by one of the PFLP terrorists who’d been freed two years before, when a bargain had actually been reached with hostage-takers.
What does this have to do with the inviolable nature
of human dignity? Kant’s categorical imperative is a starting point of ethical thinking about political and social relations: it states, fundamentally, that none of us should use any of the rest of us as instruments, or means to an end in a Machiavellian sense. Yet the PFLP hostage-takers were doing just that. To be taken hostage is to be taken as an instrument, or means, for ends — and that’s one of the philosophical explanations for why hostage-taking is a truly monstrous crime.
Much more recently, in 2006, the constitutional court in Karlsruhe received another complaint from a few different groups, including the associations of the flight crew staff, the cockpit crew staff, and a number of other groups who are each affected by the conduct of safe aviation. There was legislation (without any intended irony) called the Aviation Security Act (‘The Act’) [2]. Preceding this, in 2001, as we all know, the Twin Towers had been destroyed by the use of passenger airliners as weapons. In a gruesome argument by the constitutional court, the innocent passengers had been turned into weapons; not only physically, but for propaganda as well. And so the German Bundestag (Federal Parliament) had, by huge majority with multipartisan support, enacted legislation which had a carefully graded set of lawful responses by the military. A stage in the gradation would be actioned when something of that kind — namely the hijacking of an aeroplane within German airspace — was feared or declared to become a weapon, and the security of people in German territory was thereby threatened. The Act included an ascending set of responses, which had at their apex the possibility of the Air Force shooting the passenger airliner down. Of course, this would mean the virtually certain death of everybody on board. To support this bewildering provision, the government put forward a nuanced argument, to which my summary will surely do injustice.
It included a familiar utilitarian notion: that the 200 on the airliner were doomed anyhow; their lifespans were to be measured in hours, whereas the lifespans of the thousands in the populated areas which might have been the targets of the hijacked airliner could look forward to much more. There is an unpleasant quantitation involved. But being unpleas-
ant doesn’t make it unlawful, because part of the art of government will be dealing with the so-called ‘wicked problems’ to which there are no happy answers — but to which there must be an answer.
In 2006, upon the constitutional challenging of the Act, the court preferred the arguments of the various claimant groups, and they did so in terms which the “Sage of Königsberg” would have recognised. Kant’s categorical imperative can be seen as virtually explicit on the pages of the reasons. The state has no right to render these people, who are victims of crime, objects for state purpose. They are not to be regarded as instruments for the end of preventing whatever mayhem is intended by the terrorists to unfold on the ground. Naturally, a macabre feature of the argument the claimants brought to the court in Karlsruhe was that the death of the passengers was certain if the lawfully authorised military force was engaged, whereas the death of anybody on the ground was by no means certain, as the tremendous act of self-sacrificing heroism of the passengers on the third hijacked airliner which crashed in Pennsylvania in 2001 will remind us.
The categorical imperative comes in a primary form that we should act, in our relationships with others, on the basis of a rule or maxim that we can think should be universally applied. The English translation is ‘do as you would be done by’. We need to understand, particularly with governments who don’t always have decisions made by people who do identify with the plurality of the population, that it’s not ‘do as you would be done by’, but rather, ‘do as you would have you and everyone else done by’. It follows from this principle that you should act only in accordance with a rule that you can universalize — that you would never use fellow inhabitants of Earth, let alone your fellow citizens, as instruments for some governmental or personal aim. The familiar English rendering is that people are never a means; they can only ever be an end. In other words, the welfare interests of people, in order that they have their dignity as people, is an end. No government, organisation or regime should cause them to suffer as a means to produce some advantage for others.
It seems to me that the work of Immanuel Kant is still immensely important for not just Germanic and other continental European (civil law), but I think all legal systems in their wrestling with the normative justifications of their rules. Zooming back in on our own system of governance here in Australia, we come to ask, how did we end up with enacted legislation, executive policy, and daily administration of the system that has been (about an offshore facility) referred to in such morbid and dehumanising terms as “cleaned up”?[3] What would Kant say — what would any of the prophets of any of the Abrahamic religions say — about referring to the treatment of people who are either asylum seekers, or having been asylum seekers are now accepted as refugees with convention protection, being held in places and under conditions designed for the declared purpose of deterrence? It’s one of the most revolting and blatant instances of instrumentalism that I’ve ever witnessed from a non-authoritarian or non-totalitarian government. The idea of deterrence features heavily in criminal law. It’s not instrumental in criminal law because it’s an element in the sentencing of a person for their offending. It’s understood in contemporary jurisprudence that a civilised view of sentencing necessarily involves consideration of deterrence. That’s not instrumental because the person must be punished, and as it will be done in public, there will be something in the nature of a lesson in this punishment, maybe for that person, maybe for others. At least, that’s the hope. But the idea that a government would select people who haven’t, under the rule of law, made themselves susceptible to punishment and impose upon them adversity in order to teach some lesson and mould other people’s conduct is to use them as a means, and to desecrate their human dignity as an end. The deliberateness of that policy revealed the intellectual and moral bankruptcy of those who advised, promoted, and reinforced it. How could anyone seriously have said that it’s the right thing to make asylum seekers and acknowledged refugees suffer in order that others not undertake the same risks as that first group took on their way to being so coldly received by Australia? If we really believed this was about preventing drownings — and of course the drownings have to be prevented — then we wouldn’t be stopping boats: we’d be sending boats.
References
1. Grundgesetz für die Bundesrepublik Deutschland [Basic Law for the Federal Republic of Germany] art 1(1).
2. Luftsicherheitsgesetz [Aviation Security Act] (Germany) 15 January 2005, BGBl I, 2005.
3. Interview with the Hon Peter Dutton MP, Former Minister for Home Affairs (Barrie Cassidy, Home Affairs Portfolio, 18 September 2016).
From Rhetoric to Reality: Truth in Political Advertising and Australia’s Democratic Integrity
By Nic Carroll
As mis and disinformation continue to grow globally, Australia’s democracy hangs in the balance, teetering between integrity and deception. While the impending decision to introduce legislation regulating truth in political advertising holds the key to safeguarding this balance, whether it will emerge as a beacon of truth or another casualty of political manoeuvring remains uncertain.
Under Australian Consumer Law, ‘a person must not in trade or commerce engage in conduct that is misleading or deceptive or is likely to mislead or deceive’. This standard must be adhered to throughout all areas of one’s business, including advertising to consumers [1].
If we compare the conduct of our politicians’, however, a distinct double standard arises. Though businesses are bound to practices requiring their strict adherence to the law, it remains perfectly legal for politicians to lie in political advertising [2]. While s329(1) of the Commonwealth Electoral Act prohibits any information ‘that is likely to mislead or deceive an elector in relation to the casting of a vote’, the High Court’s interpretation in Evans v Crichton-Browne critically limits the Act’s reach [3]. Rather than extending to the preceding campaign and general campaign period, the Act’s scope is instead restricted only to the mechanical act of casting the vote, subsequently reducing its effectiveness against mis and disinformation [4]. Exacerbated by the revocation of a short-lived amendment targeting all untrue political advertising at a Commonwealth level in 1984, the introduction of legislation responding to the issue has remained mired in broken promises and ambiguous details.
In their absence, mis and disinformation throughout political advertising have continued to grow. Ranging from Labor’s 2016 “Mediscare” campaign to the Coalition’s 2019 “Death Tax” advertising and
the more recent claims of ‘Election fraud’ promoted by One Nation, Australia’s democracy has suffered as a consequence [5]. With up to 73% of the voting population impacted by political advertisements known ‘to be misleading’ in the 2022 election alone, the capacity for these ‘scare campaigns’ to inflict serious damage on parties and candidates, while detracting from core policy issues highlight the necessity for electoral reform [6].
Considering their impact alongside the overwhelming support from Australians for regulations ensuring truth in political advertising following the failed Voice Referendum, it is hardly surprising momentum has increased to resolve the issue [7].
Recently, Special Minister of State Don Farrell flagged the likely introduction of electoral reform legislation by the middle of the year. This reform would focus on imposing spending caps on electoral donations and enforcing truth throughout campaigns under a model resonant to South Australia’s long-standing Electoral Act [8].
Under s113 of South Australia’s legislation, a person is ‘guilty of an offence if the advertisement contains a statement purporting to be a statement of fact that is inaccurate and misleading to a material extent’ [9]. While the model excludes emerging areas of disinformation, including unauthorised speech and social media which cannot be considered advertising, it offers a viable framework to ensure constitutional validity.
By restricting the scope of their legislation while facilitating discourse in a manner which continues to support the ‘free and informed choice of electors’, the South Australian model remains constitutional with regard to Implied Freedom of Political Communication [10]. Determined in Cameron v Becker, the need to ‘balance’ the reach and burden of the
legislation was integral to its constitutionality, with subsequent cases including McCloy and Langer reinforcing the need to avoid excessive constraints on speech, even where it comes at the expense of fully limiting dishonesty [11].
Regardless of their scope, their benefit to improving Australia’s system of representative democracy remains clear. As one of only twenty one nations requiring compulsory voting, all Australian electors stand to benefit from the enforcement of truth in political advertising [12]. Critically, their regulation of advertising reduces the barriers to reliable information for a large swathe of the voting population while encouraging active participation in a manner which supports and encourages debate on legitimate policy issues.
Australia’s adoption of the legislation will strengthen electoral processes in a manner which protects from populist rhetoric, harmful disinformation and the leaders which use these tactics for political gain.
Further, with the ongoing emergence of technologies including deepfakes, the number and complexity of dishonest political advertising will continue to grow [13]. While traditional methods of mis and dis information have typically been combated through analysis of authorised sources and statements by individuals, deepfake technology allows interfering parties the opportunity to obscure fact from fiction. Specifically, the rapid development in a subfield of AI concerning ‘General Adversarial Net-
References
[1] ‘Competition and Consumer Act (2010) s 18 (1) (Cth)’.
[8] ‘Peter Dutton says truth in political advertising ‘probably welcome’ but criticises Labor as scare campaign ‘experts’’ , Paul Karp, ‘The Guardian Australia’, 14 March 2024. https://www.theguardian.com/australia-news/2024/mar/14/peter-dutton-truth-in-political-advertising-laws-labor-policy
works’ has dramatically improved the authenticity of deepfakes, thus making it increasingly easier for neural networks to connect our brain’s perception of the videos to their genuine creation [14].
While Federal elections to date have avoided their influence, Queensland’s 2020 state election revealed their problematic nature for future election campaigns. The distribution of a deepfake video by lobby group Advance Australia of the ex-State Premier Palaszczuk denouncing her party amassed up to one million views across platforms, reinforcing AI’s severe impacts on electoral processes [15].
Visiting Fellow at the ANU College of Law, Andrew Ray highlights the ‘very limited protections’ under Australia’s current electoral laws to deal with the threat of deepfake technology. In response, he supports legislation which increases responsibility on publishers and distributors to prevent dishonesty in political advertising to ensure the technologies proper use in future election campaigns [16].
Clearly, to safeguard Australia’s representative democracy, legislation regulating truth in political advertising that combats both existing methods of mis and dis information alongside those likely to emerge in the future must be introduced. Whether it materialises or becomes just another example of political dishonesty hangs precariously in the balance, though it remains certain that whatever decision is made will impact the integrity and honesty of Australia’s democracy far into the future.
[9] ‘Electoral Act (1985) s 113 (2) (South Australia)’. https://www.legislation.sa.gov.au/__legislation/lz/c/a/electoral%20act%201985/current/1985.77. auth.pdf
[10] ‘Joint Annotated Submissions of the First Defendant and the Attorney-General of the Commonwealth in Zhang v Commissioner’, First Defendant and Attorney General, 9 December 2020.
[11] Cameron v Becker (1995) 64 SASR 238.
[12] ‘Suffrage’, United States of America Central Intelligence Agency, 2024. https://www.cia.gov/the-world-factbook/field/suffrage/
[13] ‘Deepfake democracy: Here’s how modern elections could be decided by fake news’, Alexander Puutio, World Economic Forum, 5 October 2020. https://www.weforum.org/agenda/2020/10/deepfake-democracy-could-modern-elections-fallprey-to-fiction/
[14] Ibid.
[15] ‘Disinformation and elections in the age of artificial intelligence’, Queensland Government, 29 February 2024.
How Emotion and Implicit Bias Impacts Judges’ Decision-making: Is it Truly “law all the way down”?
By Olivia Gill
If you were charged with a serious crime, the facts of which contained some emotionally-charged details, would you rather be tried by a jury or a judge?
Perhaps the latter’s appraisal of your case is less likely to be affected by emotion as they are triers of both fact and law, tasked with the impartial exercise of judicial authority. On the other hand, a jury might more easily be swayed in a case with a certain level of emotional appeal elevated by a lawyer’s social influence and persuasion tactics. After reading several empirical studies to answer this question myself, I was surprised to learn that judges are susceptible to the same intuitive emotional reactions and implicit biases as juries are.
As highlighted in an Australian Law Reform Commission Report, there is substantial research showing that ‘emotion and cognition are inextricably intertwined’ [1], potentially leading to implicit biases, and this extends to judges’ decision-making. The High Court has cited psychological research highlighting the role of implicit biases in the courtroom [2]. Despite this acknowledgment, emotion is widely viewed reductively by legal researchers and legal professionals in this space, with concerns about its effect on reason-giving and impartiality.
There are many conceptions of how emotion is involved in understanding judges’ decision-making [3]. Three of these conceptions struck me as most prevalent: the view that reason and emotion are conflicting descriptors [4], concern that emotion will undermine impartiality [5] (a central element of the rule of law), and a regulation perspective whereby emotion is harnessed as a cognitive skill [6]. The overarching enquiry across all of them: is judicial dispassion a necessary ideal for judicial decision-making?
The Dispassionate Judge
Reason-giving is foundational to judicial decision-making. Emotion is often viewed as separate from this process by virtue of its very nature [7]. The defendant in a criminal trial is not guilty if the prosecution evidence does not prove it. It is immaterial that the judge has a gut-feeling that the defendant committed the crime. Justice Kagan of the United States Supreme Court describes this conception aptly when asked in a confirmation hearing about the role of empathy in judicial processes: ‘it’s law all the way down’ [8].
While acknowledging that judging is not a ‘robotic or automatic enterprise’ [9], Justice Kagan frames emotion as an extra-legal quality— it is irrational and ultimately distracting. From this traditional view emerges ‘the dispassionate judge’ [10], an ideal that isn’t new. In 1651,
philosopher Thomas Hobbes wrote that judges should be ‘divested of all fear, anger, hatred, love and compassion’ [11] for the proper administration of justice, a narrative which has persisted through time [12].
But is it possible to draw a sharp distinction between reason and emotion? Research now suggests that they are inextricably intertwined, with emotion having an influence on cognitive processes, including attention, memory, and effective retrieval of information [13]. Moreover, can a judge realistically achieve this standard? Judges must strive to apply the law, even when they dislike the conclusion. But are their decisions truly never influenced by their feelings about the case?
Impartiality and the Rule of Law
Impartiality is necessary for effecting the rule of law in Australia, and this is reflected in our Constitution [14]. The judiciary is tasked with holding the legislature and the executive to account. One concern about emotion in the courtroom is that judges’ personal idiosyncrasies will disrupt this essential element of the rule of law in decision-making.
A Flinders University Judicial Research Project found
that more than 90% of judicial officers rank impartiality as the most important quality to bring to the bench [15]. Emotion can be presumed to be political, therefore jeopardising judicial work. For instance, judges may empathise with parties based on their alliance with their political or cultural views, which risks implicit bias affecting decision-making. Despite this, judges and magistrates admitted in interviews to experiencing feelings towards cases they presided over as well as the individuals involved, sometimes even strong feelings. A recent study examined High Court decisions from 1995-2019
and found that the justices have distinct ideological preferences [16]. In addition, those preferences can reliably predict voting behaviour in all policy areas. Emotion in this context could be understood as being ‘partial’ to a particular view.
An Emotion Regulation Perspective
Others have called the dispassionate judge ideal into question. What if certain emotions could, if managed well, enhance judges’ decision-making? Many empirical studies propose that no judge can meet this standard, even if it was the correct approach [17]. Therefore, if emotion cannot be eliminated, the most practical option is to utilise it for the improvement of the justice system [18]. Judges do experience emotions, as all humans do. You might already be aware of the well-known study which found that the likelihood of a favourable ruling by a judge peaks at the beginning of the day, steadily declining over time, before increasing after a snack break [19].
Research from the United Kingdom and the United States also reveal that judges view the management of their own emotions, and those of other court actors, as crucial [20]. Emotion management encompasses ‘cognitive, behavioural, and expressive strategies that individuals use’ [21] to bring their emotions in line with cultural norms. For example, a judge’s display of calmness and patience can set an important emotional state in the courtroom [22]. A study found that the voice of a judge can affect the defendant’s emotions, with judges’ anger inducing defendants’ fear [23].
Emotion can also assist a judge to empathise with parties to a case, providing insight into others’ experiences [24]. Interestingly, research also indicates that ‘positive emotion can help with motivation’ [25]. Overall, this perspective
argues that controlled displays of emotion can humanise a judge, enabling them to become more than an unfeeling embodiment of— what is often viewed by non-legal experts — an impersonal and abstract law [26].
Towards a New Ideal
Jurisprudence disagrees on whether emotion is an issue for judges in the justice system. Indeed, the emotion regulation perspective suggests that the suppression of judges’ emotions might not be as helpful as we originally thought. Psychological and legal research shows that judges do experience emotions, no matter how highly they regard impartiality to their decision-making. Perhaps it’s time to dispose of Hobbes’ dispassionate judge and replace it with a new ideal, that of the emotionally well-regulated judge.
References
1. Australian Law Reform Commission, Cognitive and Social Biases in Judicial Decision-making (Background Paper JI6, April 2021). <https://www.alrc. gov.au/wp-content/uploads/2021/04/JI6-Cognitive-Biases-in-Judicial-Decision-Making.pdf>
2. Lang v The Queen [2023] HCA 29 [17−18] (Kiefel CJ and Gageler J), citing Chin, Cullen and Clarke, “The Prejudices of Expert Evidence” (2022) 48(2) Monash University Law Review 59.
3. Patricia Mindus, ‘When is a lack of emotion a problem for justice? Four views on legal decision makers’ emotive life’ (2023) 26(1) Critical Review of International Social and Political Philosophy 88. <https://www.tandfonline. com/doi/full/10.1080/13698230.2021.1893254>
4. Colette Barry et al, ‘The emotional labour of judges in jury trials’ 50(4) Journal of Law and Society 477 <https://onlinelibrary.wiley.com/doi/full/10.1111/ jols.12458>
5. Mindus (n 3) 89.
6. Terry A. Maroney ‘The Persistent Cultural Script of Judicial Dispassion’ (2011) 99(2) California Law Review 629. <https://www.jstor.org/stable/23018612>
7. Barry et al (n 4).
8. See Confirmation Hearing on the Nomination of Hon. Elena Kagan, To Be Assoc. Justice of the Supreme Court of the United States: Hearing Before the S. Comm. Judiciary, 111th Cong. 121 (2010).
9. Ibid.
10. Maroney (n 6).
11. Hobbes, T. (2009). Leviathan (White, E., & Widger, D., Trans.). Online: Project Gutenberg. (Original work published in 1651). <http://www.gutenberg. org/3/2/0/3207/>
12. Maroney (n 6).
13. Chia M Tyng et al, ‘The Influences of Emotion on Learning and Memory’ (2017) 8(1454) Sec. Emotion Science 1. <https://www.frontiersin.org/journals/psychology/articles/10.3389/fpsyg.2017.01454/full>
14. Australian Constitution s 5.
15. S Roach Anleu and K Mack ‘Impartiality and emotion in judicial work’ (2017) 29(3) JOB 21. <https://www.judcom.nsw.gov.au/publications/benchbks/judicial_officers/impartiality_and_emotion_in_judicial_work.html#ftn.feimye5>
16. Zoe Robinson, Patrick Leslie and Jill Sheppard, ‘Judicial Ideology in the Absence of Rights: Evidence from Australia’ (2022) 10(2) Journal of Law and Courts 239, 249. <https://www.cambridge.org/core/journals/journal-oflaw-and-courts/article/abs/judicial-ideology-in-the-absence-of-rights/019F7141CD41EB465BA253F586BD5E74>
17. Katie M. Snider, Paul G. Devereuz and Monica K. Miller, ‘Judges’ emotions: an application of the emotion regulation process model’ (2022) 29(2) Psychiatr Psychol Law 256. <https://www.ncbi.nlm.nih.gov/pmc/articles/ PMC9225732/>; Terry A Maroney, ‘Empirically investigating judicial emotion’ (2019) 9(5), Onati Socio-Legal Series 799. <https://doi.org/10.35295/ osls. iisl/0000-0000-0000-1089>; S Leben, ‘Exploring the overlap between procedural-justice principles and emotion regulation in the courtroom’ (2019) 9(5) Onati Socio-Legal Series 852. <https://opo.iisj.net/index.php/osls/article/ view/1070>
18. Leben (n 17) 855.
19. Shai Danziger, Jonathan Levav and Liora Avnaim-Pesso, ‘Extraneous factors in judicial decisions’ (2011) 108(17) PNAS 6889. <https://www.scientificamerican.com/article/lunchtime-leniency/>
20. Roach S Anleu, D Rottman and K Mack, ‘The emotional dimension of judging: Issues, evidence, and insights.’ (2016) 52(2) Court Review 60. <https:// heinonline.org/HOL/ P?h=hein.journals/ctrev52&i=60>; Terry A Maroney, ‘(What we talk about when we talk about) Judicial temperament’ (2020) 61(6) Boston College Law Review 2085. <http://lawdigitalcommons.bc. edu/ bclr/vol61/iss6/4>
21. A Hochschild, “Emotion work, feeling rules and social structure” (1979) 85(3) American Journal of Sociology 551.
22. Maroney (n 20).
23. Yun Song and Tianyi Zhao, ‘Inferring influence of people’s emotions at court on defendant’s emotions using a prediction model’ (2023) 14(6) Front. Psychol, 1. <https://www.frontiersin.org/journals/psychology/articles/10.3389/ fpsyg.2023.1131724/full>
24. Leben (n 17) 860.
25. Snider (n 17) 268.
26. S Roach Anleu and K Mack ‘Impartiality and emotion in judicial work’ (2017) 29(3) JOB 21. <https://www.judcom.nsw.gov.au/publications/benchbks/judicial_officers/impartiality_and_emotion_in_judicial_work.html#ftn.feimye5>
Photography by Lewis Leow
Accelerating the Inevitable: The Voice, the ‘No’ Vote, and the fate of the Inter-State Commission
By Sam Soar
The Indigenous Voice to Parliament (the Voice) was a proposed constitutional body which would have provided Indigenous perspectives [1] to federal decisionmakers. Despite advocates arguing that constitutional enshrinement would make the Voice permanent [2], the fate of the comparable and practically defunct Inter-State Commission [3] (the Commission) suggests that the ‘No’ [4] vote might simply have quickened the Voice’s death.
1. What was the Inter-State Commission?
The Commission was a constitutional body which adjudicated and mediated state-based trade and commerce disputes [5]. The Commission functionally existed in two iterations, from 1912 until 1920 [6] (although was only formally repealed in 1950 [7]) and from 1983 to 1990 [8].
Initially, the Commission held powers of ‘adjudication’ [9], although in the Wheat Case [10] the High Court decided the Commission’s adjudicative powers [11] violated separation of powers principles and were removed [12]. This decision caused the Commission to lose its ‘reason for existence’ [13] and by 1920, all its members had departed [14] and no new members would be appointed [15]. In 1950 [16], the ‘ghost’ [17] of the 1912 Commission was repealed.
In 1984, the Commission was re-introduced [18]. This iteration was a ‘shadow’ [19] of the 1912 Commission and kept a ‘low profile’ [20], holding ‘limited’ [21] investigative powers This iteration was ‘short-lived’ [22], being absorbed
by the Industry Commission in 1989 [23]. Later, the Industry Commission was absorbed into the Productivity Commission [24], where the Commission now rests.
2. Why is the Commission a robust comparison to the Voice?
Evident similarities between the bodies justify their comparison. Both the Commission and the Voice are constitutional bodies. Accordingly, when assessing the implications of constitutional implementation, they are legally equivalent. Further, the bodies are subject specific and rely on non-coercive powers. As such , the bodies share practical, not solely legal characteristics evidencing a healthy comparison.
3. Why the Commission’s reduction would have been a repeat of history to minimize the Voice.
a) Could the Commission suggest the success of the Voice?
The Commission’s loss of adjudicative or coercive powers [25] was a ‘major factor’ [26] in its demise. Therefore, coercive powers can be seen as essential to the operation of constitutional bodies. Given that the Voice does not have coercive power, once implemented it likely would have faced the same demise. Following this line of argument, the ‘No’ vote therefore only accelerated the Voice’s demise, rather than causing it from the outset. However, another argument would note the previous argument misidentifies the relationship between the Commission’s downfall and non-coercive powers. Rather, ineffectiveness, irrespective of how it manifests [27], brought about the Commission’s downfall [28].
Unlike the Commission, for the advisory purposes of the Voice, non-coercive powers are appropriate [29]. An additional counter argument would note that the Commission’s uselessness is amplified by the High Court’s contemporary interpretation of section 92 of the Constitution [30], which would intrude in the Commission’s domain [31]. There is no present alternative for the Voice, ensuring it would remain useful and thus viable. Considering these counterarguments, it is unlikely that non-coercive powers would directly lead to the downfall of the Voice. Given that the need to amplify Indigenous perspectives in federal decision making is an enduring one, the comparison with the Commission becoming redundant is not convincing. The Voice is likely to remain useful, and as such the argument that the ‘No’ vote simply accelerated its downfall is weakened, making it likely the ‘No’ vote may have acted to eliminate a potentially long-lived con-
stitutional body.
b) Why the Commission foretells the Voice’s inevitable demise.
Whilst the previous argument that usefulness may sustain a constitutional body may be correct, it assumes the public and legislature desire the body. Irrespective of whether the Voice would be effective, the legislature could employ the blueprint set out by the Commission [32] to lawfully silence the Voice. Considering the Voice’s limited support [33], a change in Government could easily result in the Voice being targeted, with the Commission providing a blueprint to practical destruction. Accordingly, irrespective of the Voice’s effectiveness, this likely sidelining of the Voice in the event of a change in government suggests an inevitability to the Voice’s downfall, which was therefore merely quickened by the ‘No’ vote.
A counter argument could note that political accountability would act to prevent the downfall of the Voice [34]. Political accountability only operates based on wide-spread support [35]. Given limited support of the Voice [36], it is unlikely to protect the Voice. Further, it’s unlikely that the wide-spread support for Indigenous issues [37] would create sufficient political accountability. A clear distinction exists between support for Indigenous issues and the Voice, ensuring political accountability is unlikely to protect the Voice. Another counter argument could argue that constitutional enshrinement allows for any interested party to protect the Voice through litigation. This ‘layman[‘s]’ [38] position fails to recognize that the Voice would still exist, just in a limited capacity [39] , handicapping the likelihood of litigious success. Ultimately, the polarized positions on the Voice lead to the conclusion that the ‘No’ vote did accelerate, rather than cause, its inevitable destruction.
4. The Inevitable Fate of the Voice
A body retaining its efficacy ought to persist. The Commission, though, provides a blueprint to eliminate the Voice that, given polarized positions on the Voice, would likely be used. The Voice, if successful, would therefore have been minimized regardless, and the ‘No’ vote only accelerated this.
References
1. The Commonwealth of Australia, ‘About the Voice’, Aboriginal and Torres Strait Islander Voice (Web Page) <https://voice.gov.au/about-voice>.
2. See generally, Dana Morse, ‘The cases for and against an Aboriginal and Torres Strait Islander Voice’, Australian Broadcasting Corporation (online, 30 August 2023) <https://www.abc.net.au/news/2023-08-30/voice-to-parliament-yes-no-cases/102788518>. See especially, Australian Electoral Commission, Your Official Yes | No Referendum Pamphlet (Pamphlet, 2023) 15.
3. See generally, Stephen Gageler, ‘Chapter IV: The Inter-State Commission and the Regulation of Trade and Commerce under the Australian Constitution’ (2017) 28 Public Law Review 205, 205.
6. Stephen Gageler, ‘Chapter IV: The Inter-State Commission and the Regulation of Trade and Commerce under the Australian Constitution’ (2017) 28 Public Law Review 205, 205.
7. Inter-state Commission Act 1912 (Cth) as repealed by Statute Law Revision Act 1950 (Cth)
8. See generally, Stephen Gageler, ‘Chapter IV: The Inter-State Commission and the Regulation of Trade and Commerce under the Australian Constitution’ (2017) 28 Public Law Review 205, 205.
9. Australian Constitution, s 101.
10. New South Wales v Commonwealth (1915) 20 CLR 54 (‘Wheat Case’).
11. Australian Constitution, s 101.
12. New South Wales v Commonwealth (1915) 20 CLR 54 (‘Wheat Case’).
13. See generally, F H Sugden and F W Eggleston, George Swinburne: A Biography (Angus & Robertson, 1931), 352.
14. Stephen Gageler, ‘Chapter IV: The Inter-State Commission and the Regulation of Trade and Commerce under the Australian Constitution’ (2017) 28 Public Law Review 205, 216.
15. See ibid.
16. Inter-state Commission Act 1912 (Cth) as repealed by Statute Law Revision Act 1950 (Cth).
17. Stephen Gageler, ‘Chapter IV: The Inter-State Commission and the Regulation of Trade and Commerce under the Australian Constitution’ (2017) 28 Public Law Review 205, 216.
18. Inter-State Commission Act 1975 (Cth)
19. Stephen Gageler, ‘Chapter IV: The Inter-State Commission and the Regulation of Trade and Commerce under the Australian Constitution’ (2017) 28 Public Law Review 205, 216.
20. Michael Coper, ‘The Second Coming of the Fourth Arm: The Present Role and Future Potential of the Inter-State Commission’ (Discussion Paper No. 2, Legislative Research Service, 1989), 3.
21. Stephen Gaegler, ‘Chapter IV: The Inter-State Commission and the Regulation of Trade and Commerce under the Australian Constitution’ (2017) 28 Public Law Review 205, 216.
22. Ibid, 217.
23. See generally, Industry Commission Act 1989 (Cth) s42
24. See generally, Productivity Commission Act 1998 (Cth)
25. Michael Coper, ‘The Second Coming of the Fourth Arm: The Present Role and Future Potential of the Inter-State Commission’ (Discussion Paper No. 2, Legislative Research Service, 1989), 9.
31. See generally, Riverina Transport Pty Ltd v Victoria (1937) 57 CLR 327, 350.
32. See generally, Stephen Gageler, ‘Chapter IV: The Inter-State Commission and the Regulation of Trade and Commerce under the Australian Constitution’ (2017) 28 Public Law Review 205, 216.
33. Australian Electoral Commission, ‘Referendum National Results’, Australian Electoral Commission Tally Room (Web Page, 25 October 2023) <https://tallyroom. aec.gov.au/ReferendumNationalResults-29581.htm>.
34. Torsten Persson, Gerard Roland and Guido Tabellini, ‘Separation of Powers and Political Accountability’ (1997) 112(4) The Quarterly Journal of Economics, 1163, 1163.
35. Australian Electoral Commission, ‘Referendum National Results’, Australian Electoral Commission Tally Room (Web Page, 25 October 2023) <https://tallyroom. aec.gov.au/ReferendumNationalResults-29581.htm>.
36. See ibid.
37. Sarah Cameron et al, The 2022 Australian Federal Election: Results from the Australian Election Study (Report, December 2022) 28.
38. J. A. La Nauze, ‘The Inter-State Commission’ (1937) 9(1) The Australian Quarterly, 48, 48.
39. See generally, Stephen Gageler, ‘Chapter IV: The Inter-State Commission and the Regulation of Trade and Commerce under the Australian Constitution’ (2017) 28 Public Law Review 205, 216, see generally J. A. La Nauze, ‘The Inter-State Commission’ (1937) 9(1) The Australian Quarterly, 48, 48.
TASCAT’s order to permit men entry to Mona’s ‘Ladies Lounge’ is the exhibit’s piece de resistance
By Lola Archibald
In April last year, Jason Lau was refused entry to Kirsha Kaechele’s Ladies Lounge, an art installation inside Tasmania’s Museum of Old and New Art (‘Mona’). Lau’s exclusion was, by all accounts, the very point of the exhibit. Separated from the rest of the museum by a green silk curtain, and manned by a concierge who refuses entry to all who do not identify as women*, the Ladies Lounge is inspired by history’s persistent exclusion of women from ‘interiors.’[1] Though the interior of the Lounge is undeniably a piece of art in itself - furnished with two Picassos and an ‘opulent black and white marbled floor’[2] - the most meaningful part of Kaechele’s piece is its participatory element: behind the curtain, women engage in the subversive act of indulgence and exclusion in an autonomous space, while men are left on the outside, wondering what it must be like inside
Despite the artistic merit of his exclusion, Mr Lau was so frustrated at being refused entry to the Lounge that he filed a discrimination complaint with Equal Opportunities Tasmania. His complaint was ultimately referred to the Tasmanian Civil and Administrative Tribunal, where Deputy President Richard Grueber decided that Mr Lau experienced ‘direct discrimination,’ consequently ordering that Mona ‘cease refusing entry to the exhibit known as the Ladies Lounge… by persons who do not identify as ladies.’[3] While this determination is potentially surprising, (upon hearing the outcome, a friend messaged me: ‘What!!! Do men want to compensate women for excluding us
Graphics by Anna Liu
for all of western human history then??’) the legislative context left little room for other conclusions. This was acknowledged by DP Grueber in his verdict, where he noted that even though the Ladies Lounge ‘may have a valid moral or ethical or pedagogical purpose,’[4] in the face of Tasmania’s Anti-Discrimination Act 1998, Mona’s conduct was impermissible.
For feminists and art-lovers alike, the outcome of Lau v Moorilla Estate is potentially disappointing. However, I would suggest that the closing of the Lounge in this way is an extension of the art itself. After all, is it not the perfect conclusion that a piece which sought to suspend patriarchal reality should be closed because a man complained?
The principal issue in Lau v Moorilla Estate was whether a ‘general exception’ applied to Mona’s conduct, rendering it permissible despite being discriminatory. Mona did not contest that refusing men entry to the Ladies Lounge amounted to ‘direct discrimination’ under section 14 of the Anti-Discrimination Act 1998 (Tas) (‘the Act). In fact, according to Ms Kaechele, the very ‘raison d’etre’ of the Ladies Lounge was discrimination based on gender. [5] She emphasised the ‘real disadvantage’ and ‘unfavourable treatment’ that Mr Lau had suffered in his exclusion from the Lounge, describing it as the most ‘significant’ artwork in the Museum.[6] Accordingly, Mona submitted that, despite being discriminatory, the Ladies Lounge was permissible under section 26 - the ‘Equal opportunities’ exception.
Section 26 of the Act stipulates that ‘a person may discriminate against another person in any area if it is for the purpose of carrying out a scheme for the benefit of a group which is disadvantaged or has a special need because of a prescribed attribute.’[7] This requires the discriminating party to show that their scheme could reasonably be capable of promoting the relevant equal opportunity, which is clearly linked to the relevant disadvantage.[8] In submissions, Mona identified two disadvantages faced by women which the Ladies Lounge could, in their eyes, reasonably be considered as rectifying through creation of an opportunity.
Firstly, Mona cited a widespread disparity in gender representation in art museums. Although he did not reference any statistical evidence, Mona’s curatorial director Jarrod Rawlins submitted that art by female artists is less exhibited than art by men; therefore, it was contended that the relevant ‘equal opportunity’ promoted by the Lounge was displaying women’s art.[9] While the Ladies Lounge is an artwork by a woman, the contention that it creates an opportunity for women to have their work displayed is tenuous. DP Grueber noted that the Lounge ‘will not assist any female artist to be displayed at Mona or elsewhere, and will not preference the display of art by female artists over that of male artists.’[10] Moreover, the exclusion of men from the Lounge does not facilitate the creation of this opportunity for women.[11] Accordingly, Mona’s first argument failed.
While perhaps unconventional, Mona’s second submission was that the Lounge promoted ‘equal opportunity to access to spaces by
women.’[12] Unlike their first submission, this ‘opportunity’ contemplates women generally as the ‘disadvantaged group,’ and not women artists specifically. This submission was championed primarily by Ms Kaechele herself, and was informed by the historic exclusion of women from spaces. In the hearing, Ms Kaechele explained that ‘[women] are so deeply embedded in the dominion of man that we do not see the myriad of ways in which we adhere to and multiply his reign. And for this reason we need the Ladies Lounge… an essential space for perspective and reset from this strange and disjointed world of male domination.’[13] She contended that, in the context of women’s historic exclusion by men, ‘section 26 [applies to the Ladies Lounge] in spades.’[14] Unhappily, this line of argument did not take favour with DP Grueber, who found that ‘Ms Kaechele’s intention was clearly to address… wrongs… by advantaging women generally as opposed to addressing or redressing current substantive inequality of opportunity.’[15] Therefore, Mona failed to identify a specific and contemporary disadvantage faced by women which the Lounge could reasonably address, and the section 26 exception could not be applied in this case.
While DP Grueber’s order requires only that Mona cease to exclude men from the Ladies Lounge, and not that it close entirely, he acknowledges that ‘the Ladies Lounge would cease to have the artistic character that defines it if men are permitted entry.’[16] Accordingly, without a successful appeal, it is likely that Mona will close the exhibit. While disappointing, this litigious finale - including both the actual decision, and the Tribunal hearing itself
- have become an extension of Kaechele’s artwork. Accompanied by an entourage of women dressed in navy pantsuits, Kaechele told media outside the Tribunal that she was ‘absolutely delighted’ that Mr Lau was suing her.[17] Inside the hearing, the group sat at the back, pointedly reading feminist literature and ‘shifting their posture in common and in unison in a coordinated manner’ before marching out to the Robert Palmer song Simply Irresistible. This conduct was criticised by DP Grueber as ‘inappropriate, discourteous, and disrespectful, and at worst contumelious and contemptuous.’[18] Instead, I would praise them for refusing to take seriously both Mr Lau’s complaint, and the paradoxical content of the Anti-Discrimination Act, which would’ve excused Mona’s conduct on the basis of ‘good faith artistic purpose’[19] if they had ‘intimidated, insulted… ridiculed… or incited hatred, serious contempt, or severe ridicule’[20] against Mr Lau instead of merely discriminating against him.
Kaechele’s Ladies Lounge was in all respects fantastical. The piece contrived for women a sense of control and power which generally does not exist for them in reality. It is fitting then, that the Lounge would be brought to a close by a male complainant, in a hearing heard by a man (even if a sympathetic one). This ending delivers the Ladies Lounge’s ultimate artistic impact, because it pulls the piece out of its own unreality to emphasise that the ‘Ladies Lounge,’ and everything it represents, was a fantasy all along.
References
1. Lau v Moorilla Estate Pty Ltd [2024] TASCAT 58, [17] (‘Mona case’).
2. Ibid [14].
3. Ibid [88].
4. Ibid [76].
5. Ibid [31].
6. Ibid [15].
7. Anti-Discrimination Act 1998 (Tas) s 26.
8. Mona case (n 1) [58]-[59].
9. Ibid [49], [52].
10. Ibid [69].
11. Ibid.
12. Ibid [72].
13. Ibid [64].
14. Ibid [63].
15. Ibid [74].
16. Ibid [84].
17. Kelly Burke, ‘Artist behind Mona’s ladies-only lounge ‘absolutely delighted’ man is suing her for gender discrimination’, The Guardian (online, 20 March 2024) <https://www.theguardian.com/artanddesign/2024/mar/20/ artist-behind-monas-ladies-only-lounge-absolutely-delighted-man-is-suing-for-gender-discrimination>.
18. Mona case (n 1) [78].
19. Ibid.
20. Ibid [8].
by Anna Liu
Graphics
Why Roe v. Wade Had to Be Overturned: Let Me Explain
By Tabitha McDonald
This May marks two years since Dobbs v. Jackson Women’s Health Organisation (2022) (‘Dobbs’) overturned the right to abortion in the United States; a right established by Roe v. Wade (1973) (‘Roe’) and upheld by Planned Parenthood v. Casey (1992) (‘Casey’). The outrage from this decision extended beyond just America, reverberating across the globe. Here in Australia, thousands publicly rallied against the outcome, with messages of both sympathy and fear being shared across social media and traditional news platforms. Articles, infographics, and headlines repeated the consequences of this decision: thirteen trigger states would immediately outlaw abortion, with more certainly to follow. While this decision significantly weakened reproductive rights in the United States, it also created a social shift in how people everywhere conceptualised the security of these rights. From the outside, a constitutionally protected right had been swiftly and unexpectedly overturned. But the outcome of Dobbs did not come without warning, and further, not without reason.
Let me explain.
Dobbs concerned a Mississippi state law drafted in 2018, which banned most abortion operations after 15 weeks of pregnancy. A case was brought by Jackson Women’s Health Organisation, Mississippi’s only abortion clinic at the time, against Thomas E. Dobbs, a state health officer. The lower courts granted an injunction on the basis that the legislation conflicted with the Supreme Court precedent in Casey, which found that states cannot ban abortion before 24 weeks. However, this legislation wasn’t an attempt to pass determinedly unconstitutional legislation with the hope everyone would be looking the other way. The Mississippi legislators had
intended to incite a legal battle. They knew that if a challenge to their law could reach the Supreme Court, there was a strong chance the relatively new Republican-elected majority would find in their favour. And as we know, that is exactly what happened. After several appeals, the majority of the Supreme Court found that abortion was not a protected right under the United States Constitution [1]. This majority consisted of the six Republican elected members. The dissent? It’s three Democrat elected members. It would be too easy, however, to attribute this ruling solely to the political views of the Supreme Court Justices - and potentially incredibly naive. Upon balanced consideration, it becomes clear that the reasoning in Roe was never particularly convincing.
In Roe, the Court introduced a constitutional ‘right to privacy’. They argued this implicit right had not yet been formally identified, but was intimated by earlier cases such as Griswold v. Connecticut (1965), which protected the use of contraception. The Court gave almost no explanation as to the breadth and width of this implicit privacy right, and made no attempt to identify a specific section of the Constitution which enlivened it. They argued that the right sprung from the First, Fourth, Fifth, Ninth, and Fourteenth Amendments, and expressed the “feel[ing]”[2] that it was the Fourteenth that did most of the work in enlivening the privacy right. Casey subsequently grounded its argument in the “liberty”[3] protected by the Fourteenth Amendment’s Due Process Clause. However, even in Casey, only two of the nine Justices vocally supported the reasoning in Roe, with the rest of the majority using the principle of stare decisis (precedent) as binding them to this judgement [4].
In Dobbs, the majority opinion written by Justice Alito returned decisions regarding this issue to the states. They rebutted Roe’s claim of a constitutional source protecting the right to an abortion under the umbrella of a privacy right. They first argued Roe had “ignored”[5] the generally accepted condition that for a right to be inferred from the Constitution it must be “deeply rooted in this Nation’s history and tradition”[6]. Backing up this argument, they went on to cite that until the latter part of the 20th century, no federal or state court had recognised a right to an abortion. Further, when the Fourteenth Amendment was first adopted, three-quarters of the States had already made abortion a crime at any stage of pregnancy. When contrasted with other implied constitutional rights, such as the presumption of innocence, the court had little difficulty deeming abortion rights unessential to the “scheme of ordered liberty”[7] protected by the Constitution.
Given this context, the Court concluded that abortion rights were not “deeply rooted’ in United States “history and tradition”[8].
The Court then considered the cases that Roe had used as precedent for the implicit privacy right supposedly recognised by the Fourteenth Amendment. The Court distinguished abortion rights from the findings on same-sex marriages (Obergefell v Hodges (2015)), sexual relations (Lawrence v. Texas (2003)), and contraception (Griswold v. Connecticut (1965)), by arguing it does not fall into this “broader right to autonomy”[9]. They emphasised that abortion is not something which helps define one’s “concept of existence”[10] such as marriage, but is a medical procedure which will end a potential human life. They argued there is undeniably a greater gravity to abortion, especially to those who believe life begins at conception, putting it further
outside the scope of the “liberty”[11] protected by the Fourteenth Amendment.
The majority in Dobbs found the decision in Roe did not have strong reasoning. As such, they were able to overturn stare decisis. It is my belief that the decision in Roe was bad law, and while abortion rights should be protected, it is outside of the Court’s power to protect these rights without a solid constitutional source. Put by the U.S. Constitutional scholar John Ely, while he “would vote for a statute very much like the one the Court end[ed] up drafting”, Roe was “not constitutional law”, and gave “almost no sense of an obligation to try to be’’[12]. However, it is also unlikely a federal statute will be passed any time soon. The Women’s Health Protection Act [13], introduced in 2013, intended to expand upon the rights protected by Roe. It passed the House of Representatives in 2021, but failed in the Senate in 2022. Even if it had survived the Senate, many lawyers believe the Supreme Court would have found this legislation outside the scope of Congress, which is restricted to matters outlined by the Constitution [14]. Further, if Congress did find abortion laws were within its power, this would open the possibility of federal abortion laws being reversed by later Republican majorities. Nonetheless, emphasis must be placed on other methods the federal government can use to protect the interests of those seeking access to an abortion, such as protecting the constitutional right to travel between states.
Consideration of Dobbs introduces us to the argument that Roe superimposed the protection of abortion rights on a legal document that had no room for it. The implied privacy right alone was not strongly grounded in its content, and when sketched to 49
encompass abortion rights, the legitimacy of the Court’s argument became thin. While Roe single-handedly changed the projection of abortion rights in the U.S. for the better, its weak argument left itself vulnerable to being overturned by any subsequent Supreme Court wanting badly enough to do so. However, there is an argument to be made that the subjective terms used by the Constitution are a deliberate method of allowing broad judicial interpretation. As put by Millhiser, “the Constitution doesn’t tell us which rights it protects, and now the power to decide that question rests with people like Samuel Alito”[15], just as it rested with the Court in Roe all those years ago.
Ultimately, however, Roe’s weak constitutional standing made clear it was not a matter of if the decision would be overturned, but when. Paired with the republican majority in the Supreme court, reproductive rights in the United States were always vulnerable to being overturned without proactive pro-choice legislation. Nonetheless, Roe teaches us that many people, myself included, believe pregnant people should have the right to choose abortion. We believe this is the ‘right’ outcome. But this alone could not prevail over Roe’s incompatibility with a nebulous and intransigent legal document - and that is certainly a tough pill to swallow.
References
1. United States Constitution.
2. Dobbs v Jackson Women’s Health Organisation (2022) No. 19-1392, 597 U.S 215, 10 [1]. (‘Dobbs’)
3. United States Constitution amend 14 § 1.
4. Dobbs (n 1) 5-6.
5. Ibid, 3.
6. Ibid, 2.
7. Dobbs (n 1) 2.
8. Ibid.
9. Dobbs (n 1) 4.
10. Ibid.
11. United States Constitution amend 14 § 1.
12. J. Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 Yale L. J. 920, 926, 947 (1973).
13. Women’s Health Protection Act (2021)
14. Ian Millhiser, ‘The Uncomfortable Problem with Roe v. Wade’, Vox (online, Aug 2 2022).
15. Ibid.
Is there space for the United Nations in our modern world?
By Kiran Kaur
The United Nations (UN) is a household name, known as a staple of international law since its foundation in 1945. The organisation helps maintain stability and control within our changing world order, becoming synonymous with upholding human rights within the international community. When faced with breaches of human rights and humanitarian crises, as individuals we often tend to think – either consciously or subconsciously –of the United Nations as the organisation that will “fix” international law breaches per se, maintaining peace and security, and providing support and aid. However, throughout the 21st century, the role of the United Nations has often blurred the boundaries between useful or redundant, being seen as unable to uphold the same level of effectiveness and enforceability previously witnessed throughout the organisation.
The United Nations holds the slogan of “Peace, dignity, and equality”, being created in the midst of a fragmented world order at the end of World War II [1]. Within the setting of an international community that had undergone two world wars within the span of 30 years, the UN at the time of its creation held immense importance and was vital in reshaping the world order from an anarchical, uncertain community to one of stability and security. Bringing together nation states, the UN enabled for a controlled cooperative organisation in which concerns and points of interest were able to be brought up and resolved without the constant escalation or threat of intense conflict. As encapsulated by Sam Cavallaro – a NSW High School Legal Studies teacher –, when interviewed for comment, the United Nations provides “an international framework to address global problems, mechanisms to provide aid and support to nations, and a forum for
inter-state dialogue and debate is vital in supporting healthy relations between states”. Further, the roles of the UN can be summarised as “to maintain international peace and security” through the Security Council, to solve “international problems of an economic, social, cultural, or humanitarian character”, and finally, to “promote and protect human rights” [2]. The role of the UN in the international community seems clear cut: an organisation that allows for the collaboration and discussions between nation states as a means of maintaining peace.
However, outside of the desperation and turmoil that followed WWII, the United Nations has become a contentious organisation in the 21st century [3]. Varying factors behind this contention include the prevalence and impact of veto powers, the differential treatment of nation states, and the overall effectiveness of the organisation in maintaining a peaceful world order through their motions. The UN is seen to possess extremely limited agency, outside that given to it by its membership, and consequently holds the same flaws as its predecessor, the League of Nations.
In the past, the UN has held major successes in striving towards an equal and sustainable world order. Such achievements include the implementation of sustainable development goals, providing humanitarian aid in conflicts, various peacekeeping operations implemented during these conflicts, and assisting state cooperation as expanded upon earlier [4]. The Cold War effectively demonstrated the value of the Security Council within the UN as a diplomatic instrument, allowing for moments of cooperation and ensuring a continuation of discussions.
The UN can be given credit for contributing to a more stable post-war environment and for successfully dealing with rising tensions within superpower states, tying the great and small powers into systems of interdependence to reduce the likelihood of conflict. Further, when focusing on the humanitarian aid provided by the UN, there is little space for argument on the positive value and impacts of the UN’s flagship work through UNICEF, UNHCR, and the World Food Programme.
The peacekeeping missions and work undertaken by the UN to address the South African Apartheid is another example of UN efficacy [5]. The implementation of Resolution 134 was due to member state complaints criticising the South African government, imploring them to initiate measures that brought forward racial harmony. In doing so, the UN allowed for moral condemnation on an international scale. Further, there were multiple trade and economic sanctions pushed by the UN against South Africa, with a mandatory arms embargo in 1977, pressuring the government to end Apartheid and transition towards democracy. It is widely discussed and respected that the work of the UN during the Apartheid crisis was a significant and influential factor that contributed to the end of Apartheid, thus highlighting the once important role of the organisation within the world order.
However, the limitations and failures of the UN continue to overshadow these successes, questioning the importance and need for the UN within our modern world. The first and major point of contention comes from the notion of veto states within the Security Council and the power imbalances and abuses that this creates amongst the international community. There is a constantly widening ideological dissonance between the permanent members of the Security Council, which in turn limits the capacity to address growing crises. The permanent members of the UN Security Council - the P5 known as the United States, the United Kingdom, China, Russia, and France - hold ‘veto power’. Veto power has been justified through the basis of maintaining the interests of the permanent members, seen as the most powerful in the inter-
national community, and embodies the idea that global peace and security is only possible if the great powers are all working together [6].
Critics have noted that the veto is the most undemocratic element of the UN and the main cause of an inaction on war crimes and crimes against humanity, limiting the effectiveness and need for the UN, as it essentially undermines UN action against the P5 and their allies [7]. This can be seen recently manifested in the 34 uses of veto power by the US to block UN Security Council resolutions that were critical of Israel’s treatment of civilians within Gaza, backing the actions and motivations for their ally, Israel. The use of a veto power by the US halts any and all action by the UN and the countries within the Security Council to strive towards protecting civilians in times of conflict, immensely limiting the effectiveness and enforceability of the UN and brings the organisation’s relevance into question. The Guardian highlights the opinions and thoughts of China and Russia regarding the US’s current use of the veto powers, with China describing it as “nothing short of unbelievable” and Russia stating that it was an example of US double standards [8]. As observed by Cavallaro, when the foreign policy of the US and UN diverge, the dissonance “can undermine the effectiveness of the UN in its role of ensuring international consensus and cooperation”. If the UN is able to be halted in its ambitions by one country’s votes, we must question if the UN is a desired organisation in our current global climate, or if power and influence have taken over as the main principles and manipulated the original foundations of the organisation.
Despite the failures of the UN, many individuals still believe that there is a space for the UN within the future of our global world order. According to Cavallaro, the means provided by the UN to promote consensus and provide a forum for international dialogue remains invaluable.
“Giving a voice to nations, no matter their size, is vital and that the continuation of the UN is essential in ensuring that this occurs.”
However, despite the need for an organisation such as the UN in order to maintain a sense of stability and inter-state communication, the entire organisation - especially the Security Council - is in desperate need of reform [9]. In order to effectively and efficiently tackle the multitude of crises that it faces, the organisation must shift its focus away from protecting the political agendas of its member states and back towards the charter and initial motivations that underpinned the UN’s creation. Despite the convening power which allows the UN to pressure and condemn nation states – something a new organisation, or lack thereof, would not hold – , it does not reflect the multifaceted nature and complex realities of today’s multipolar world.
The UN needs to reconsider the importance that it places on certain nation states and limit the extent to which veto powers are able to be utilised. Such reforms restore the focus of civilian rights and humanitarian aid at the forefront of the organisation, as opposed to the political agendas of specific nations. Within our current world order, the capacity to bring together multiple world leaders and convene forums on global issues is a strength that the UN will continue to hold, and is one that simply needs to be moulded and reassessed for internal conflicts or contentions. If the UN did not exist in our world, we as a society would simply look to create some iteration of the organisation in a new form, in order to make any strides towards progress. There will always be a space for the United Nations in our modern world, we simply have to constantly be reforming and realigning the organisation to fit our changing world order and fix the flaws that will continue to arise within it as we go.
References
1. Nations, United. 2024. “United Nations | Peace, Dignity and Equality on a Healthy Planet.” United Nations. United Nations. 2024. https://www.un.org/ en/.
2. NADIN, P. (2019). The United Nations: A history of success and failure. AQ: Australian Quarterly, 90(4), 11–17. https://www.jstor.org/stable/26773344
3. “Failures and Successes of the UN | ACE.” 2021. ACE. August 22, 2021. https://ace-usa.org/blog/research/research-foreignpolicy/failures-and-successes-of-the-un/.
4. Ibid 2
5. “The Historic Contribution of the United Nations to the Resolution of Conflicts in Southern Africa – ACCORD.” 2011. ACCORD. August 19, 2011. https://www.accord.org.za/ajcr-issues/the-historic-contribution-of-the-united-nations-to-the-resolution-of-conflicts-in-southern-africa/.
6. Schindlmayr. (2001). Obstructing the Security Council: The Use of the Veto in the Twentieth Century. Journal of the History of
7. International Law / Revue d’histoire du droit international, 3(2), 218-234. https://doi.org/10.1163/15718050120956965
8. “General Assembly Adopts Landmark Resolution Aimed at Holding Five Permanent Security Council Members Accountable for Use of Veto | Meetings Coverage and Press Releases.” 2022. Un.org. April 26, 2022. https://press. un.org/en/2022/ga12417.doc.htm.
9. Wintour, Patrick. 2023. “US Vetoes UN’s Call for ‘Humanitarian Pause’ and Corridors into Gaza.” The Guardian. The Guardian. October 18, 2023.
10. Pham, Minh-Thu. 2023. “A UN Expert on the Institution’s Successes, Failures, and Continued Relevance.” Carnegie Endowment for International Peace. Carnegie Endowment for International Peace. September 21, 2023. https://carnegieendowment.org/2023/09/21/un-expert-on-institution-s-successes-failures-and-continued-relevance-pub-90610.
Environmental law must change, but devolving national environmental approval responsibilities is not the solution.
By Olivia Gill
On 8 December 2022, the ‘Nature Positive Plan: better for the environment, better for business’ (‘the Plan’) [1] was released by the Federal government. The Plan is a response to Professor Graeme Samuel’s 2019 review [2] of the Environment Protection and Biodiversity Conservation Act 1999 (‘EPBC Act’) [3]. It includes a ‘single-touch’ approval proposal [4] where national environmental approval responsibilities are delegated to the states and territories.
The IPPC Report indicates that it is likely global temperatures will reach or surpass 1.5 degrees Celsius between 2021-2040 [5]. It is only a matter of time until the impacts of climate change will be irreversible. The EPBC Act is deemed ‘not fit to address current and future environmental challenges, including climate change’ by Samuels [6], and rightly so. States and territories are slow to enforce national standards, as their laws are not designed for addressing matters of national environmental significance (‘MNES’). Meanwhile, with the fourth highest number of extinct and critically endangered species globally, Australian biodiversity continues to pay the price [7]. Delegating national approval responsibilities is not the solution.
Urgent timeframes may not be met
The debate about the value of unitary authority over environmental regulation is not new [8]. There is no express environmental power in the Australian Constitution, which has reinforced the traditional view that the states and territories maintain primary responsibility for protecting the environment and controlling natural resources [9]. The Commonwealth has been, as Dyson and Scanlon aptly describe, ‘generally reluctant to take a strong lead in legislating for the environment [10].’ Yet this was before the
enactment of the EPBC Act and rapid escalation of the climate emergency.
It is the Commonwealth that is responsible for implementing international treaty obligations into domestic law under the external affairs power in s 51(xxix). The expansion of this power by the High Court in the Tasmanian Dam case has given the Federal government a greater role in regulating the environment, calling this traditional view into question. The Commonwealth successfully implemented the World Heritage Properties Conservation Act 1983, enabling it to put a stop to a development project for the purposes of environmental protection, despite the project being initially authorised by the Tasmanian State Government. Australia is a party to many international treaties, such as the Convention on Biodiversity, making the external affairs head of power an increasingly broad avenue for enacting environmental protection at a federal level.
It is the Commonwealth that is responsible for implementing international treaty obligations into domestic law under the external affairs power in s 51(xxix) [11]. The expansion of this power by the High Court in the Tasmanian Dam case [12] has given the Federal government a greater role in regulating the environment, calling this traditional view into question [13]. The Commonwealth successfully implemented the World Heritage Properties Conservation Act 1983, enabling it to put a stop to a development project for the purposes of environmental protection, despite the project being initially authorised by the Tasmanian State Government. Australia is a party to many international treaties, such as the Convention on Biodiversity [14], making the external affairs head of power an increasingly broad avenue for
enacting environmental protection at a federal level.
National standards are slow to be implemented by states and territories. This is exemplified when states and territories attempt to enforce National Environment Protection Measures (‘NEPMs’). Despite their binding nature, Queensland took over three years to update its law enshrining the variation to Air Quality NEPMs in 2015 [15]. Such delays have meant that, for a long period of time, communities have not been protected by improved standards. With the irreversible impacts of climate change looming, states and territories cannot be relied upon to enforce national environmental standards in a timely manner. Thus, it is more practicable for the Commonwealth to take a strong leadership role to address environmental decline before it is too late.
National oversight constrained for proposals addressing MNES
Delegating national environmental approval powers is detrimental where state and territory laws are not designed to protect MNES. A recent example of this is the failure of the Regional Forest Agreements, made between some states and the Commonwealth in the 1990s, to protect federally-listed, threatened species. The state government-owned logging agency, VicForests, had been almost entirely self-regulated [16]. In Gippsland Environment Group Inc v VicForests, the court held that this system of operation constituted a breach of the EPBC Act [17]. It granted injunctions preventing VicForests from logging habitat set aside for protected native species [18]. Unsustainable logging occurred due to the inadequate protections in place and weak implementation of national standards by the Victorian government.
Moreover, by devolving these responsibilities to state and territories we risk the endeavour for environmental protection being co-opted on the whims of politicised decision-making, as seen in Conservation Council of Western Australia (Inc) v Dawson [19]. This case saw a Western Australian Minister publishing an approval for the Yeelirrie uranium mine despite the threat that it posed to an endangered species. There were requisites that had to be met prior to approval-making under the Environmental
Protection Act 1986 (WA) and the EPBC Act. This included consulting reports by the Environmental Protection Agency (‘EPA’) [20]. The court held that it was legally admissible for a Minister to approve a project against the EPA’s advice [21]. Crucially, the Minister’s approval was dated back two weeks before an election. This reflects the risk of state and territory approvals not being based on evidence and the national interest, but aligning instead with what officials believe will get them re-elected.
Environmental law in Australia must change, and we are running out of time. Yet environmental outcomes are unlikely to be delivered by a system of devolved environmental approval responsibilities until there is substantial legislative and governance reform. In the meantime, national leadership must be enhanced to protect the environment for future generations.
References
1. CCEEW, ‘Nature Positive Plan: better for the environment, better for business’ (‘The Plan’) Department of Climate Change, Energy, the Environment and Water, 8 December 2022.
2. Graeme Samuels, ‘Independent Review of the EPBC Act – Final Report’, Department of Agriculture, Water, and the Environment, 29 October 2019.
5. Intergovernmental Panel on Climate Change (‘IPCC’), Climate Change 2022: Impacts, Adaptation, and Vulnerability’ Contribution of Working Group II to the Sixth Assessment Report of the Intergovernmental Panel on Climate Change, 28 February 2022.
6. Samuel (n 2) 1.
7. Elissa Pearson et al, ‘Can we save Australia’s Endangered Wildlife by Increasing Species Recognition?’ (2022) 69 (October) Journal for Nature Conservation 126257.
8. Jacqueline Peel and Godden Lee, ‘Australia Environmental Management: A “Dams” Story’ [2005] 28(3) UNSW Law Journal 668.
9. Rachel Pepper and Harry Hobbs, ‘The Environment is All Rights: Human Rights, Constitutional Rights and Environmental Rights’ 2020 44(2) Melbourne University Law Review 633.
10. Megan Dyson and John Scanlon, ‘Will practice hinder principle?: Implementing the EPBC Act’ 2001 18(1) Environmental and Planning Law Journal 14.
11. Australian Constitution s 51(xxix).
12. (1983) 158 CLR 1.
13. GE Fisher, ‘External Affairs and Federalism in the Tasmanian Dam Case’ [1985] 12(1) Queensland Institute of Technology Law Journal 157.
14. Convention on Biological Biodiversity, opened for signature 4 June 1993, 1760 UNTS 69 (entered into force 29 December 1993).
16. Conservation Regulator Victoria ‘Regulating timber harvesting in State forests under the Allocation Order: Statement of Regulatory Intent’, State of Victoria Department of Environment, Land, Water and Planning, August 2022.
17. [2022] VSC 668 [184].
18. Ibid [377].
19. [2018] WASC 34 [92].
20. Ibid [15]−[20].
21. Ibid [87].
How do you say ‘access to justice’?: The Legal Language Barrier for Second-Language English Speakers
By Lola Archibald
When asked that undeniably necessary, but still dreaded question: what do you study? I’m always grateful that my seventeen year-old self had the foresight to pair Law with something a little less infamous, and maybe more conducive to polite smalltalk: Languages. Hastily, I will mention that I study Law, before emphasising that I also study Languages, and that most of my week is spent trying to memorise Arabic verb conjugations (and definitely not traipsing through Leighton McDonald’s Principles of Administrative Law).
Last year, I finished Advanced 2 Italian, and with it my formal Italian-language studies. Naturally, I now find myself reflecting on my true Italian proficiency, and the reality that you are never really finished learning a second language. Si, after all these years of study, I could talk to you about a range of academic topics: la Mafia, the myth of il bel paese, and the nord-sud divide, but still I find that, when faced with purely professional and technical language, I have no choice but to drag out Google Translate.
My own shortcomings in Italian have led me to consider the difficulties faced by speakers of English as a second language (‘ESL speakers’) when engaging with the Law in Australia, especially considering the notoriously inscrutable nature of legal texts. Linguistic analysis of legal language has attributed its inaccessibility to a tendency of lawyers to use both ‘centre-embedding,’ - the insertion of clauses into the middle of sentences (kind of like I’m doing right now!) - and infrequently used words. [1] These characteristics distinguish legal texts from other types of writing or speech, rendering them particularly difficult to understand.
Unsurprisingly, the challenge of understanding legal texts is compounded for ESL speakers. A study conducted by a group of linguists, psychologists, and lawyers coined the ‘Communication of Rights
Group’ considered the extent to which ESL speakers are able to understand the rights delivered to them in criminal trials. In their report, the group emphasised that adults who have learnt a second language process information differently in that language in comparison to their first, and that this difference can exacerbate communication difficulties. Crucially, they determined that ‘even speakers who can maintain a conversation in English may not have sufficient proficiency to understand complex sentences used to communicate… legal terms.’ [2] This finding reiterates the unique challenge that legal language, as distinct from more colloquial or everyday language, poses for ESL speakers.
Given the linguistic and cultural diversity of the Australian population, the inaccessibility of legal English should be a central concern of the Australian legal system. According to the 2021 census, six million Australians, or 23% of the population, speak a language other than English at home. In the same year, 3.4% of the population responded that they spoke English ‘not well’ or ‘not at all.’ [3] These statistics demonstrate that, without access to proper and effective translation and interpreting services, a significant proportion of the Australian population would be restricted from fully accessing and engaging with the Law at all levels.
Appropriately, the necessity of legal translation services has been acknowledged in Law both domestically and internationally. In international law, the International Covenant on Civil and Political Rights states that everyone is entitled to ‘the free assistance of an interpreter if he cannot understand or speak the language used in court.’ [4] Meanwhile, the Australian High Court held in Ebatarinja v Devland that, where the defendant does not speak the language in which the proceedings are being conducted, ‘the absence of an interpreter will result in an unfair trial.’ [5] This common law finding is
accompanied by a collection of statutory provisions in a similar vein. [6] For example, the Community Relations and Principles of Multiculturalism Act 2000 (NSW) states: ‘All individuals and institutions should respect and make provision for the culture, language and religion of others within an Australian legal and institutional framework where English is the common language.’ [7]
While these legislative and common law acknowledgements are positive developments, there is significant practical evidence to suggest that the difficulties faced by ESL speakers remain largely overlooked in Australia. In their assessment of the effectiveness of interpretation services in the NSW criminal justice system, Ian Dobinson and Thomas Chiu allude to this, noting: ‘there has been no research in NSW which has sought to analyse the use of interpreters in any aspect of the justice system.’ [8] Ultimately, Dobinson and Chiu’s study concludes that ‘the [justice system’s] goal of access and equity [for ESL speakers]... has not been met,’ citing anecdotal evidence of an insufficient number of interpreters available to meet the need, as well as the generally low standards of qualification and training of the interpreters who are available. [9] They identify the main reason for these shortfalls as being that ‘the Australian justice system itself has underestimated the importance of language interpretation.’ [10] This conclusion is incredibly deflating; how can an entire demographic be so significantly hindered in accessing the Law, primarily because the system does not wholly recognise the glaring barrier of language?
As long as Law is encoded in language, the form of that language will create a barrier to access. This barrier is most visible for ESL speakers, but no doubt presents itself at a range of levels and degrees, depending on an individual’s proficiency in English and ability to decode infamous ‘legalese,’ which even lawyers struggle to understand. [11] To that end, it should be a primary goal of our legal culture to ensure that every person seeking legal services can fully understand and communicate within these systems, especially given the linguistic and cultural diversity of the Australian population. There are a range of policies which could be im-
plemented in Australia to make improvements; for example, the Communication of Rights Group suggests ensuring access to interpreters, developing standardised statements in other languages, and communicating in an active voice using frequently-used words and shorter sentences, among other things. Simultaneously, however, a crucial preliminary step to improving access to justice for ESL speakers in Australia could be simply recognising both the existence, and the gravity of this issue.
So, will I ever be able to leisurely skim a piece of Italian legislation? A part of me really does hope so, though I have a considerable amount of vocabulary to learn before I get there. In the meantime, I think it’s important to reflect, next time we’re trying to discern the meaning of ‘jurisdictional error’ and ‘certiorari’, on what a privilege it is to be learning all this language, and consider the ways we may be able to dismantle the legal language-barrier in the future.
References
1. Eric Martinez, Francis Mollica, and Edward Gibson ‘Poor writing, not specialized concepts, drives processing difficulty in legal language’ [2022] (July) International Journal of Cognitive Science 1.
2. Communication of Rights Group, ‘Guidelines for communicating rights to non-native speakers of English in Australia, England and Wales, and the USA’ (2016) American Association of Applied Linguistics <https:// www.aaal.org/guidelines-for-communication-rights##>.
3. Australian Bureau of Statistics, ‘2021 Census highlights increasing cultural diversity’ (Media Release, 20 September 2022).
4. International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976) art 14.
5. Ebatarinja v Devland (1998) 194 CLR 444, [26]-[27].
6. Ian Dobinson and Thomas Chiu, ‘Access and Equity: The New South Wales Court Interpreter Service’ (2005) 17(1) Current Issues in Criminal Justice 30.
7. Community Relations and Principles of Multiculturalism Act 2000 (NSW) s 3.
8. Dobinson and Chiu (n 6), 43.
9. Ibid 44.
10. Ibid 44.
11. Eric Martinez, Francis Mollica, and Edward Gibson, ‘Even lawyers do not like legalese,’ (2023) 120(23) Proceedings of the National Academy of Science of the United States of America 1.
The Case against Employment Agreements as Contracts: Closing Loopholes and Reversing Keifel’s Court
By Raf Priest
When we consider contract law, what are the fundamental principles that we associate with a valid contract? For those of us unable to remember, or those who haven’t yet enjoyed the pleasure that is LAWS1204, some common phrases would be ‘A meeting of the minds’, ‘consideration’ or ‘sufficient capacity’. Generally, when we think about the formation of a contract, we tend towards the notion that a contract is an agreement between mutually consenting parties acting in good faith with an element of quid pro quo.
But what about when it comes to the peculiar class of contract that is the employment contract? Can we really consider the majority of these agreements as satisfying this notion? Consider the following; when you have been trying to find work, at how many jobs or firms have you been able to assume the same level of negotiating or bargaining power as your employer? What about when you are offered a job, do you have any real power to change any terms in your contract? Or once you start working, how much control do you have over the performance and operation of the employment contract? At the end of the day, the majority of us as employees are relatively replaceable and are in no position to properly negotiate specific terms of our employment.
However, contrary to the logic of the above, the High Court would have us think otherwise. In 2022, the majority of the Court found that an employment contract and all of its associated obligations should be interpreted no differently to how we would interpret a contract of sale or lease for premise. In Construction, Forestry, Maritime, Mining And Energy Union & Anor v Personnel Contracting Pty Ltd [2022] HCA 1 (Personnel Contracting) and ZG Operations & Anor V Jamsek & Ors [2022] HCA 2 (Jamsek) the Court directed that where the terms of
a relationship are comprehensively committed to in writing, the rights and obligations arising from that relationship are only to be derived from the established principles of contract interpretation. In other words, unless the contract is a sham, you are to exclude consideration of the relationship in practice and the real conduct of the parties.
Now, this train of thought probably doesn’t pose many problems for the seven most in demand legal minds of the land when it comes to their employment with the Commonwealth. But what of us mere plebs at the bottom of the employment ladder, those of us working entry-level and/or low skill jobs? How does a worker in these spheres of employment negotiate the terms of their boilerplate contract? Most importantly, what about workers who are termed as ‘contractors’ in their contract for work but are, for all intents and purposes, subject to all the obligations of an employee – just without the rights of one? Think rideshare drivers, construction labourers etc. This was the principal issue in Personnel Contracting and Jamsek; workers sought the entitlements of full employment where they had operated like an employee but had not received the benefits of such – superannuation, leave entitlements etc.
The standard for a sham in contracts, per Lockhart J in Sharrment Pty Ltd v Offıcial Trustee in Bankruptcy, is a ‘disguise’ or a ‘facade’ that is deliberately constructed in order to conceal a ‘real’ transaction. Considering we are restricted to only assessing the text of the contract to ascertain the intention of parties where there is no ambiguity, this is an exceedingly difficult standard to prove in cases of employment contracting. It also sets an unreasonably high standard to achieve for the members of our workforce most vulnerable and susceptible to exploitation in the workplace.
Now this is where the proposed amendments to the Fair Work Act 2009 (FW Act) found in the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 (the Bill) enter the frame to re-balance employment bargaining. The Albanese Government has re-instigated the multifactorial test to determine if an employment relationship exists. This was the approach favoured by the Full Bench of the Federal Court in Personnel Contracting and Jamsek, as well as being the prevailing approach in disputes of this kind prior to the HCA’s intervention. The test found in Part 15 of Schedule 1 to the Bill will direct Courts to consider the ‘substance and reality’ of the relationship by assessing a variety of factors, including both the conduct of the parties and the terms of the written contract. The primary indicia which the court must consider under this amendment are;
1. Right of control over the worker – The higher the flexibility as to how work is performed will lead to an assessment that the worker is an independent contractor; and
2. Own business / employer’s business dichotomy – An employee will be serving the interest and creating assets of the employer’s business.
Other factors which will inform the Court’s assessment of the relationship include
1. Commercial risk
2. Terms and circumstances of the formation of the contract
3. A contract for services (“results contracts”) vs a contract of service (employment contract)
4. Location where work is performed
5. Provision of tools and equipment and payment of business expenses
6. Whether the work can be delegated or subcontracted
7. Uniform
8. Taxation, superannuation, insurance
9. Exclusivity
The legislature’s intervention is a welcome clarifying move that, in the opinion of this writer, is an important step in moving the law towards the position recognising the special place that an employment contract holds. As stated in the introduction to this
article, there are very good reasons why we should consider the employment contract as something other than an orthodox meeting of the minds. The employment contract encapsulates fundamental economic and social hierarchies that are not present in orthodox contracts. The employment contract for the majority of us represents more than a contract, it is a relationship which we rely on for the maintenance and improvement of our standard of living. There are few relationships that have caused such academic, social, political and real conflict as the relationship between an employer and employee; civil wars and revolutions have been fought over the relationship between capital and labour.
The courts need to be allowed flexibility to consider employment relationship and look to the intent, not the mere form. In this area of law the Courts should be focused primarily on doing justice by the employee and employer as opposed to being bound by legal orthodoxy.
Should AI be an Inventor for the Purposes of Patent Law? A Comparative Analysis of Dr Thaler’s Case in Australia and the US
By Mel Megale
I. Introduction
With scholars pinpointing this moment in time as an artificial intelligence (AI) revolution [1], the previously impossible has become tangible reality. New ideas, platforms and innovations are able to be generated without involvement of the human mind. As a result, many nations have begun to consider the actuality of what this entails for intellectual property (IP) law, and what regimes can protect the development of creations generated by AI.
However, this has been met with hesitation, and in many jurisdictions, embracing AI in IP law means overturning decades of precedent and legislative frameworks centred on human innovation. Both Australia and the United States of America (USA) have historically developed IP regimes on the forefront of key concepts, but with the growth of AI, patent law may be outdated. This paper will compare the approaches to patentability of AI inventions in both Australia and the USA, focusing on a case analysis of Dr Thaler’s patent applications, and discuss potential future implications.
II. Patent Law and AI in Australia
Australia’s IP regime is largely governed by Commonwealth Acts, which cover core concepts such as trademarks, patents and copyright. A patent under the Patents Act 1990 (Cth) (‘the Act’) gives the exclusive right to commercially exploit an invention [2] for a standard period of 20 years [3]. There are various requirements for a patent to be granted, including the need for the invention to have an ‘inventive step’[4], an ‘innovative step’[5] and novelty [6].
On the face of the law, any invention, including those developed and created by AI, are capable of
being inventive and novel, perhaps even more so than those developed by the human mind. AI systems have been capable of generating creative output that has assisted scientific and medical discovery and have been accepted as making valuable inventions which fall within the scope of patent requirements in Australia [7]. However, if all elements of the invention are fulfilled, a patent can only be granted to a patentee that fulfills the requirements of ownership under section 15 of the Act. The Act stipulates that a patent can only be granted to “a person who is the inventor”[8], a legal representative [9] or who is entitled to have the patent assigned to them [10]. The Act itself does not define an inventor and leaves the question of whether a non-human can invent for the purposes of the patent largely open to judicial interpretation [11].
III. Patent Law and AI in the USA
The USA is known for technological innovation and has become a reputable nation for new company inventions [12]. The patent law framework in the USA is governed by the Title 35 of the US Code, which most commonly offers a ‘utility patent’ for up to 20 years [13]. Despite the crux of the core requirements for filing a patent application remaining the same, in that the invention must be novel [14], useful [15] and “non-obvious”[16], the wording of the statute and the requirements for the application process are far more stringent than the Australian equivalent. The applicant must complete an oath or declaration that they made the application and believes “himself or herself” to be the original inventor [17]. The term inventor is also defined as “an individual”[18], and a patent can be granted to “whoever” discovers the invention [19]. The courts have also defined the conception of the invention as a ‘mental act’[20].
IV. Embracing the Future in Australia: Thaler v Commissioner of Patents
Dr Thaler, owner of AI system ‘DABUS’, challenged global IP jurisdictions by filing patents around the world for a food container process invented by his AI system. The case was rejected in Australia by the Commissioner of Patents, due to there not being a valid name for the inventor [21]. Thaler requested judicial review of the decision, arguing that he did not facilitate any component of the inventive process, and that the patent should be in the name of the rightful inventor, his AI system [22]. Justice Beach came to the ground-breaking decision to accept that the DABUS system could be named as a patentee, being the first of major IP jurisdictions to allow AI to be named an ‘inventor’ for the purposes of the patent regime [23].
His reasoning developed from three key lines of thinking, all of which contradicted other jurisdictions. First, that the term ‘inventor’ is an agent noun, whereby a person or a thing can invent something [24]. Second, that the AI itself can mirror the functioning and creativity of the human brain [25]. Finally, Justice Beach relied on precedent of previous patent cases concerning the concept of a ‘manner of manufacture’, which is a requirement for a patent to be granted. Historically in Australian case law, the central issue preventing patents for technological and scientific innovation has been the requirement for a ‘manner of manufacture’. Whilst initially only seeming to apply to vendible products, the concept of what fulfills a manner of manufacture has broadened significantly over recent years due to technological innovation. Justice Beach found it to be inconsistent to widely interpret such a concept, without also allowing for the term ‘inventor’ to do the same [26].
His Honour provided a series of provoking reasons, all of which seem consistent with a modern approach to the law of patents. However, the ramifications of such a decision are not to be underplayed, which may explain the swift overturn of this ruling on appeal.
V. Back to Square One: Commissioner of Patents v Thaler
Before the implications of Justice Beach’s decision could be observed, the Federal Circuit Court overturned the decision on appeal. Their Honours stated that the “language of the text of the legislation itself”[27] indicated that “only a person with legal personality could be an actual inventor”[28]. The Act states that a patent may be granted to a legal representative of the inventor who is deceased, and those who are not residents of Australia. This wording by inference construes that only natural persons capable of being deceased or residents of nations are capable of being an inventor under the Act [29].
Further, the court negated Justice Beach’s argument that the broadening of a ‘manner of manufacture’ should allow for the same response to the interpretation of the word ‘inventor’. The decision quoted a previous case where manner of manufacture required “information made by human action”, indicating the consistent need for natural persons to be inventors [30]. This decision brought Australia back in line with the stance of other IP jurisdictions [31].
VI. Stick to the Status Quo: Thaler v Vidal and the Position of the USA
The position of the USA Court on Thaler’s patent applications was substantially more straightforward in its application of patent law. Despite not explicitly stating that AI cannot be named as an inventor, their Honours resolved that the case did not require “metaphysical matters”, but rather a simple application of definitions [32]. The law maintained a key difference to Australia, in that the word inventor became inextricably linked to the word ‘individual’ within the statute [33]. The question then turned from what can be defined as an inventor, to what can be defined as an individual. It is unsurprising that the court found the definition of an individual to mean a natural person, especially considering other references in the legislation to personal pronouns when describing the inventor [34]. Further,
the legislation requires an oath to be undertaken, and for the inventor to believe they are the original inventor of the output in the patent application. Their Honours discussed how this wording contradicts the possibility of AI software to be an inventor, as there is no evidence to suggest any AI can form its own beliefs [35].
Whilst these findings are logical and consistent with the principles of statutory construction, the court refrained from any comment on the future of recognition of AI in IP law. This closed book approach to complex legal issues may hinder the ability for the law to align with technological advancements such as AI.
VII. A Comparative Analysis of Patent Law and AI Recognition in Australia and the USA
The differences in the jurisdictional responses to Thaler’s patents indicate wider discrepancies in the approach to AI recognition in patent law between Australia and the USA. Despite the overturning of the decision, it is a monumental step forward to have a judgement in judicial discourse which recognises and accepts AI as an inventor in Australia [36]. The arguments put forward by Justice Beach are consistent with ideals of innovation and progression in the IP regime and indicate the potential to develop legal reasoning to align with the inevitable rise of AI. Further, the reasoning of the majority in the appeal case disagreed with the initial arguments due to a different approach to statutory construction [37]. These reasons were clear in stating that the court does not mean to presume that an inventor for the purposes of the Act can only be a human, but that the framework is premised upon rewarding the ingenuity of natural persons [38]. The court essentially defers the matter as a question of policy for the legislature to determine [39] and stays true to the legislative intent of the Act.
The USA decision is arguably far less receptive to the potential of an inventor to refer to a non-human in any instance, likely due to the constrictive legislative framework which more closely aligns with a human requirement. The use of the term ‘individual’
to refer to an inventor in the USA legislation is taken to have its natural meaning of a human person, and the courts refrain from further comment as statute “unambiguously” provides the answer [40]. This suggests a greater hesitancy to engage in legal reasoning which may allow for AI recognition in the law and limits the potential of future precedent to build upon the current findings. In both jurisdictions, a deference to the legislature is evident, with the USA decision stating “Congress has determined that only a natural person can be an inventor.”[41] This is a clear indication that for any monumental developments to occur in the scheme of AI and patent law, the legislature would need to redefine key terms, and make the potential for non-human inventorship realised through statute.
VIII. Emerging Issues in Australia and the USA and Implications for Patent Law
Is the patentability of AI a futile cause?
The patent law framework is deeply rooted in theories which developed following the industrial revolution [42]. Many of the theories centralised on the idea of rewarding individuals for their efforts, and providing tangible incentives to continue to innovate in ways which benefit society and the economy [43]. An argument that has challenged the need for patent law to recognise AI is the fact that the entire crux of the current legal framework would be minimised. AI does not need to be incentivised, nor can it recognise and appreciate the reward for efforts [44]. This was alluded to in Thaler’s Australian appeal case, as if the patent law framework exists to “reward ingenuity”[45], it is difficult to construe that the legislation can apply to non-humans. Digital developments such as AI have seen IP regimes be challenged to shift toward a regulatory system, rather than an incentive.
The concept of joint inventors is also blurred, as in many instances such as that of Dr Thaler, humans may contribute to the AI which invented, but have no contribution to the invention in the patent application [46]. Therefore, despite a clear intent to defer the matter of AI in patent law to the legislative
arms, the courts must be prepared to dismantle current tests in exchange for new complex considerations of AI.
Benefits of AI patentability to Australia and the USA
Despite these issues, the potential benefits suggest that it may be worth accepting and working through the need to alter current ways of thinking, in the hope of reaching a feasible solution.
First, jurisdictions which begin to allow AI inventorship would position many companies within them to have competitive edge on a global scale [47]. AI commercialisation has had rapid growth and is expected to amount to billions within the next few years [48]. Having AI produce inventors also reduces cost and labour of innovation [49] and will inevitably be a more efficient choice for many commercial entities.
There are also many potential issues that can arise if AI is not able to be named an inventor. This litigation across many jurisdictions involving Thaler may encourage those seeking to patent AI inventions to be dishonest on applications, and falsely name themselves as inventors to gain the patent rights [50]. Companies and researchers may also actively avoid using automated technology such as AI to assist in furthering their innovation due to the uncertainty of patentability [51]. It is vital for legislative and judicial progression to develop in a manner which considers these benefits and responds to emerging issues.
IX. Conclusion
It is apparent that despite social discourse and steps taken towards consultation with stakeholders surrounding the need for AI recognition in patents, the legal hurdles remain difficult to overcome. Australia provided a short-lived breakthrough, but despite the backstep, there is merit in the legal reasoning which does not fully close the door to AI patentability. The USA, despite the nation’s innovative reputation, has indicated a greater hesitance to recognise AI in patent law, and is bound by
stricter legislative frameworks. There are emerging issues for both jurisdictions to navigate, however, the potential benefits of allowing AI inventions to be patentable are considerable, and the need for legal reform will likely become inevitable as AI becomes more prominent in our world.
References
1. Garikai Chimuka, ‘Impact of artificial intelligence on patent law. Towards a new analytical framework – [ the Multi-Level Model]’, [2019] (59) World Patent Information, 101926 (‘Impact of AI on patent law’).
2. Patents Act 1990 (Cth) s 13 (‘Patents Act’).
3. Ibid s 67.
4. Ibid s 7(2).
5. Ibid s 7(4).
6. Ibid s 7(1).
7. Thaler v Commissioner of Patents [2021] FCA 879, 888-890 [45]–[54] (‘Thaler v Commissioner’).
8. Patents Act (n 3) s 15(1)(a).
9. Ibid s 15(1)(d).
10. Ibid s 15(1)(b).
11. Adam Liberman, ‘One small step for ‘artificial intelligence’ and a giant leap for the Australian patent system? The Federal Court decision in Thaler v Commissioner of Patents’, (2022) 17(2) Journal of Intellectual Property Law & Practice 164, 166 (‘Liberman’s Analysis’)
12. Dustin Corbett, ‘A Premier Paradigm Shift: The Impact of Artificial Intelligence on U.S. Intellectual Property Laws’ (2023) 17(2) Liberty University Law Review 321, 326 (‘A Premier Paradigm Shift’).
13. 35 USC § 154(a)(1) (2013).
14. 35 USC § 102 (2012).
15. 35 USC § 101 (1952).
16. 35 USC § 103 (2011).
17. 35 USC § 115(b)(2) (2013).
18. 35 USC § 100(f) (2012).
19. 35 USC § 101 (1952).
20. Ernest Fok, ‘Challenging the International Trend: The Case for Artificial Intelligence Inventorship in the United States’ (2021) 19(1) Santa Clara Journal of International Law 51, 55 (‘Challenging the International Trend’).
21. Thaler v Commissioner (n 8) 879 [1].
22. Ibid 879 [5].
23. Ryan Abbott, Rita Matulionyte and Paul Nolan, ‘A brief analysis of DABUS, Artificial Intelligence, and the future of patent law’, [2021] (125) Intellectual Property Forum: Journal of the Intellectual and Industrial Property Society of Australia and New Zealand, 10 (‘A Brief Analysis of DABUS’).
24. Thaler v Commissioner (n 8) 880 [10].
25. Ibid 887 [42].
26. Thaler v Commissioner (n 8) 902 [121].
27. Commissioner of Patents v Thaler [2022] FCAFC 62, 83 [83].
31. Rebecca Currey, ‘Australian Court Overturns Finding That AI Systems Can Be an “Inventor” for the Australian Patent Regime’ (2022) 5(5) RAIL: The Journal of Robotics, Artificial Intelligence & Law 363, 363 (‘Australian Court Overturns Finding’).
32. Thaler v. Vidal, 43 F.4th 1207, 1208 (Fed Cir 2022) (‘Thaler v Vidal’).
33. Ibid 1210.
34. Ibid 1213.
35. Ibid.
36. Liberman’s Analysis (n 12) 165.
37. Australian Court Overturns Finding’ (n 36) 366.
38. Commissioner v Thaler (n 34) 90 [105].
39. Ibid 93 [120].
40. Thaler v. Vidal (n 38) 1217.
41. Ibid.
42. Impact of AI on patent law (n 1) 101926.
43. Challenging the International Trend (n 20) 67.
44. Ibid 60.
45. Commissioner v Thaler (n 34) 90 [105].
46. Devank Kumar Singh, ‘IP Laws, Innovation and the AI Based Patents: US and EU’ [2021] (4) International Journal of Law Management & Humanities 5784, 5789.
47. Challenging the International Trend (n 20) 65.
48. Ibid 64.
49. Ibid 54.
50. Enrico Bonaldi, Luke McDonagh and Plamen Dinev, ‘Artificial Intelligence as Inventor: Exploring the Consequences for Patent Law’ Intellectual Property Quarterly [2021] (1) 48, 70.
51. Challenging the International Trend (n 20) 64.
Photography by Lewis Leow
Learning to Let Go: Australia’s Journey Towards the Legalisation of Assisted Dying and the Voluntary Assisted Dying Bill 2023 (ACT).
By Kai Tang Introduction
The ethical and practical implications of assisted dying have been hotly debated topics across the world for the last forty years. The recently introduced Voluntary Assisted Dying Bill 2023 (ACT) has been championed as the most progressive instrument of its kind in Australia, serving as the next step in the nation’s long journey towards nationwide legalisation of medically assisted dying. Whilst this new legislative regime promises additional freedoms for those who are terminally-ill, several advocacy groups have expressed concern regarding whether these freedoms come at the cost of safeguards designed to protect vulnerable individuals from exploitation. This article seeks to provide context to this debate and explore the weight of arguments levied against the new bill.
The History of Assisted Dying
The Oxford English Dictionary defines ‘euthanasia’ as the ‘act of inducing a gentle and easy death’ [1]. Medically assisted dying refers to voluntary euthanasia employed in a medical context with the aim of reducing suffering for terminally ill patients. Such processes may be passive, such as withdrawal of life-supporting equipment, or active, such as the administration of a lethal substance to cause death, at the request of the patient.
The practice of euthanasia has been conceptually bound to the practice of medicine since antiquity. The first-century writer Valerius Maximus was amongst the first to detail the existence of such practices [2]. During his travels to the island of Kos, Valerius witnessed an elderly stateswoman address her fellow citizens in a brilliant oration regarding her decision to end her own life by way of poison [3]. Some 400 years prior, this island would coin-
cidentally serve as the birthplace of Hippocrates, who strictly forbade his students from administering poisons to their patients or advising upon such matters [4]. Aided by the dominant cultural influence of Christianity, Hippocrates’ position would retain its eminence in the heart western medicine for millennia. Consequently, the topic of assisted dying remained taboo for scholarly debate even until the 21st century [5].
As the years passed, individual physicians would silently and privately contemplate this difficult ethical issue. In a treatise examining medical ethics and theology, seventeenth-century surgeon Michael Boudewijns lamented how physicians would frequently encounter patients who could no longer bear the pain and beg for their lives to be shortened, advising his colleagues to galvanise their hearts against these requests [6]. Those who respected their patients’ wishes did so in secrecy, fearing prosecution, imprisonment, and capital punishment.
Only within the last forty years has this narrative seen any change. In 1984, the Dutch Supreme Court ruled in favour of Dr. Schoonheim, who having administered a lethal morphine injection at the request of his 95-year-old patient, raised the defence of ‘noodtoestand’ (emergency) against the charge of mercy killing [7]. In their judgement, the court clarified the scope and operation of the defence by balancing the conflicting duties of the doctor to abide by the law and render assistance to their patient, ruling that the latter would prevail in the context of medically assisted dying provided the patient’s autonomy is sufficiently protected [8]. Consequently, the Netherlands became the world’s first jurisdiction to bestow legal sanction upon the
practice of medically assisted dying, with Schoonheim sounding the starting pistol for a worldwide push towards legalisation. Today, assisted dying schemes are available in nine countries, allowing thousands of people to approach the end of their lives with dignity [9].
What is Voluntary Assisted Dying?
The term Voluntary Assisted Dying (‘VAD’) is used to describe the form of active euthanasia available to terminally ill individuals enabled under Australian legislative frameworks. The term encompasses the process from the patient’s first request for assisted dying to the administrative processes following their death, and should rightfully be distinguished from foreign assisted dying programs which involve substantially different procedures and eligibility criteria. However, many legislated assisted dying schemes operate according to the same core principles.
For example, the Dutch voluntary euthanasia/assisted suicide (VE/AS) legislative scheme functions as an protection against criminal liability under the Dutch Penal Code, reflecting its origins in criminal law [10[. These protective provisions were introduced into the Dutch Penal Code through Termination of Life on Request and Assisted Suicide (Review Procedure) Act 2002 (Netherlands) (‘Review Procedures Act’), and lists a series of ‘Due Care Requirements’ that doctors must follow to avoid prosecution:
“(i) The patient’s request to die must be voluntary;
(ii) the request is well-considered;
(iii) the request is durable and persistent;
(iv) the patient’s pain is unbearable with no prospect of improvement;
(v) a second doctor must be consulted; and (vi) euthanasia or assisted suicide is performed with due medical care.”[11]
Reflections of these core principles have been identified in assisted dying legislation from jurisdictions across the world, arising both independently of or taking inspiration from the Review Procedures Act [12]. In Australia, these principles have been adopted into the colloquially-termed ‘Australian model’
for assisted dying, which involves:
• “Strict eligibility criteria, including that a person must be suffering unbearably from a terminal illness, disease or condition;
• thorough request process: three requests, including one in writing, with accessibility options, witnessed by independent witnesses;
• provision of support and information through a government-run Care Navigator Service and pharmacy service;
• two health professionals, who meet training and eligibility requirements to independently assess a person’s eligibility, at least one of whom is responsible for ensuring the person is informed and supported regarding all of their end-of-life and care options;
• strict requirements for prescription, management and administration of a VAD substance with criminal offences for mismanagement;
• health professionals and health services may object to being actively involved in facilitating VAD, as long as they do not hinder access; and
• an independent oversight body monitors compliance, records data, and exercises other oversight functions.”[13]
All VAD frameworks currently exist as some variation of this model, owing to Australia’s long and tumultuous history in attempting to legalise assisted dying over the last 25 years. To understand why VAD exists in its current form, we must first examine the history of VAD in Australia.
History of VAD in Australia
The global community’s first foray into establishing a statutory VAD program was pioneered by the Northern Territory in 1995, with the passage of the Rights of the Terminally Ill Act 1995 (NT). This act permitted terminally ill patients experiencing unacceptable degrees of suffering to request assistance from their medical practitioner to end their own lives [14]. Despite public opinion polls showing significant support for VAD at the time, the conservative administration became horrified at this development [15]. In response, the Euthanasia Laws Act 1997 (Cth) was passed, which functionally removed
the Territories’ power to legislate in respect to euthanasia [16]. During the 9 months where assisted dying was legalised in the NT, 7 individuals accessed the scheme and 4 people died under the act; all were terminally ill and suffering from the latter stages of metastatic cancer [17].
Despite repeated and persistent attempts to legalise VAD, no Australian jurisdiction was able to successfully establish a legislative scheme until the passage of the Voluntary Assisted Dying Act 2017 (Vic) (‘Victorian Act’) by the Victorian Government. The Victorian Act was developed with the vision of establishing a ‘safe and compassionate framework’ to provide those suffering from terminal illnesses to ‘choose the timing and manner of their deaths’[18]. The scheme became operational in June 2019, and since then 912 Victorians have been allowed to die in this dignified manner [19].
However, the establishment of this framework was not without controversy. In the leadup to the development of the Victorian VAD Bill, the Australian Medical Association issued a position statement opposing the proposed legislation, stating that doctors ‘should not be involved in interventions that have as their primary intention the ending of a person’s life’[20]. Additional safety concerns regarding potential abuse of vulnerable individuals were raised during the public consultation process [21]. Despite these concerns, no instances of non-compliance regarding patient eligibility have ever been identified [22]. The Victorian VAD scheme is widely regarded as safe, effective and successful, prompting many other Australian jurisdictions to enact similar provisions legalising VAD.
Following Victoria, Western Australia was first to develop its own VAD scheme, passing the Voluntary Assisted Dying Act 2019 (WA) [23]. Tasmania, South Australia, Queensland and most recently New South Wales followed suit, each gradually enacting more progressive provisions [24]. Public discourse in each state was inundated by personal experiences of those who had witnessed loved ones endure brutal suffering at the end of their lives. This overwhelming public support served as the main
driving force behind a wave of legalisation efforts. Currently, all Australian states have operating VAD frameworks.
In 2022, the Federal Government passed the Restoring Territory Rights Act 2022 (Cth), which served to repeal the Euthanasia Laws Act 1997 (Cth). For the first time in 25 years, Territorians were free to decide for themselves whether to establish a VAD scheme. Following this, the ACT was the first to develop a legislative instrument providing for VAD, which is expected to be passed into law later this year [25]. The NT Government has recently concluded community consultations to determine the feasibility of a VAD bill, and the expert advisory panel responsible for collating the gathered information is expected to provide its report by July 2024 [26]. It is currently uncertain whether the NT will align with other Australian jurisdictions and re-establish its VAD framework.
Procedures for Accessing VAD
Slight variations exist in the administrative processes of each VAD scheme in Australia, but all frameworks operate under similar principles, seeking to support and respect terminally-ill individuals in relation to their end-of-life choices whilst placing their wellbeing and safety as the paramount priority and consideration [27].
As a general rule, all Australian VAD procedures involve the following steps:
1. First request
In all Australian States, the VAD procedure formally starts when a patient makes their first request to a medical practitioner. Such a request must be voluntary, autonomous and made unambiguously with the intention of accessing VAD [28].
The context in which this discussion takes place is strictly regulated by each state. In Victoria and South Australia, all healthcare workers are strictly prohibited from initiating conversations substantially relating to VAD. In all other states, registered medical practitioners can discuss VAD in the context of providing comprehensive information about
treatment and palliative care options [29]. In some states, other registered health practitioners may also initiate such discussions, provided they also advise the patient to discuss this with a registered medical practitioner [30].
2. First Assessment
Upon receiving a patient’s first request, a medical practitioner may choose to accept or refuse to assist the patient in accessing VAD. If the medical practitioner chooses to accept the request, they become the patient’s ‘Coordinating Practitioner’ (although specific terminology may differ in some states)[31]. If the practitioner chooses to refuse the request, they may do so upon one of two grounds;
a) The practitioner is not sufficiently qualified to serve as the coordinating practitioner. Many jurisdictions have specific qualification and training requirements for medical practitioners seeking to facilitate the VAD process. All states currently require interested medical practitioners to undergo approved VAD training, and some additionally require practitioners to possess a certain number of years’ work experience post specialisation and/ or expertise relating to the condition(s) the patient may be suffering from [32].
b) The practitioner conscientiously objects to participating in VAD. In most states, the practitioner must refer the patient to another healthcare provider who they believe to be likely able to assist, or provide them with the contact details of the state’s VAD Care Navigator Service/other prescribed information. In Victoria and South Australia, the practitioner is not obligated to take any additional steps following refusal [33].
The Coordinating Practitioner is responsible for conducting a ‘First Assessment’ to determine the patient’s eligibility for accessing the VAD. In all states, an eligible patient must have been diagnosed with “at least one disease, illness or medical condition that is:
a) advanced, progressive (or ‘irreversible’ in Tasmania), and will, or is expected to, cause death;
b) incurable (in Victoria, South Australia and Tasmania only);
c) expected to cause death:
a. within 12 months in the case of a neurodegenerative disorder; or
b. within 6 months for other conditions, illnesses or diseases (except for Queensland where a person can apply for voluntary assisted dying if they are expected to die within 12 months); and
d. causing suffering that cannot be relieved in a way considered by the person to be tolerable.”[34]
Additionally, the patient must meet certain residency rules within the state, be of a minimum age and maintain decision making capacity throughout the VAD process [35]. If the Coordinating Practitioner deems the patient as eligible, they must refer the patient to another independent medical practitioner for a ‘Consulting Assessment’.
3. Consulting Assessment
The ‘Consulting Practitioner’ is responsible for Consulting Assessment to independently determine the patient’s eligibility for VAD. The Consulting Practitioner is similarly bound by qualification and training requirements. Neither the Consulting or Coordinating Practitioners may be related to the patient or receive any material benefit from their participation in the VAD process [36].
In cases where the patient may be suffering from a complex series of ailments, the Consulting Practitioner may be unable to identify whether the patient meets the statutory eligibility criteria. Under such circumstances the Consulting Practitioner may seek the specialist opinion of additional medical practitioners regarding the patient’s conditions [37].
If the Consulting Practitioner also determines that the patient is eligible for VAD, the patient may subsequently make their second and final requests for the administration of the assisted dying medication.
4. Second & Final request
All current jurisdictions require eligible patients to make a second and third (Final) written request for VAD to their coordinating medical practitioner follo-
wing their Consulting Assessment. Depending on the state, either one or both requests must be witnessed by an independent third party. Often a statutory ‘cool-down’ period of 5-9 days is implemented between the first and final requests to ensure the patient’s decision is enduring and voluntary, with exceptions in place for patients in acute situations [38]. Following the patient’s final request, the Coordinating Practitioner may apply for a permit to prescribe a VAD substance.
5. Dispensing and administration of substance
The VAD substance consists of certain medications which cause painless death upon consumption or intravenous injection. Due to its dangerous nature, VAD substances must be distributed by authorised suppliers and stored in locked boxes after being dispensed. Most states have established specialised dispensing services for individuals seeking to access VAD in rural and remote areas. Patients seeking VAD must also nominate a contact person to return any remaining unused substance upon the patient’s death [39].
Most Australian VAD frameworks mandate self-administration of VAD substances through an oral route when possible. For individuals unable to swallow or digest the substance, they may request medically assisted intravenous administration of VAD medication by a medical practitioner (or in some jurisdictions, nurse practitioners or registered nurses). In some jurisdictions, the process of administering the VAD substance must be witnessed by a third party [40].
6. Mandatory reporting & Oversight
Each state has established oversight bodies to ensure legislative compliance in the clinical administration of the VAD scheme. Each Coordinating Practitioner is required to notify the State VAD Board of each substantial progression in a patient’s journey towards accessing VAD, generally within 2-7 days of each step occurring [41]. Subsequently, it is the responsibility of the State Boards to review such reports and determine whether legislative requirements have been met, and to publish compliance data in annual reports.
Select Committee on the Voluntary Assisted Dying Bill 2023, Legislative Assembly for the Australian Capital Territory, Inquiry into the Voluntary Assisted Dying Bill 2023 (Report, Feb 2024), 7. 72
The Voluntary Assisted Dying Bill 2023 (ACT)
Work on establishing a new VAD framework for the ACT began immediately following the passage of the Restoring Territory Rights Bill 2022 (Cth) [42].
In June 2023, the ACT Government published a Listening Report which consolidated the findings of a two-month community consultation period, commencing February that year [43]. Community submissions showed that much of the ACT public stood in favour of a new assisted dying framework, largely owing to the demonstrated success of the ‘Australian Model’ of VAD [44]. In light of this success, the Voluntary Assisted Dying Bill 2023 (ACT) (‘ACT Bill’) was introduced on the 31st of October by Labor MLA Tara Cheyne, the incumbent ACT Minister for Human Rights [45].
The ACT Bill proposes an access pathway which, while largely synchronous to the Australian Model, aims to address many unnecessary barriers to access by omitting several strict statutory restrictions present in other VAD jurisdictions. Expectedly, this progressive approach has been subject to extensive criticism. Public submissions in response to the ACT Legislative Assembly’s Inquiry into the operations of the ACT Bill highlighted several major safety concerns associated with the expansion of eligibility criteria and streamlining of administrative processes.
In response, the Select Committee on the Voluntary Assisted Dying Bill 2023 (‘Select Committee’) formulated 27 recommendations to the ACT Government, advocating for amendments to be introduced to protect all individuals involved in the VAD process from exploitation and/or unintentional statutory non-compliance [46]. Of these, four warrant particular attention;
1. Allowing all health workers to initiate discussions relating to VAD. Section 152(2) of the ACT Bill permits ‘relevant health professionals’ such as social workers, counsellors or ‘health practitioners’ to initiate conversations about VAD with patients, provided the patient has been informed of other palliative treatment options and advised to speak to their treating doctor
[47]. This provision has been celebrated as a ‘compassionate and common sense approach’ towards regulating how VAD conversations should be conducted, allowing individuals interested in accessing the scheme to receive early support [48].
However, concerns regarding the removal of this ‘crucial safeguard’ protecting the patient from the power imbalance inherent in clinician-patient relationships were raised by numerous pro-life organisations [49]. Additionally, the term ‘health practitioners’ was not defined in the ACT Bill, which caused confusion regarding which professions had a statutory obligation to refrain from initiating discussions about VAD [50]. Consequently, the Select Committee recommended for the ACT Government to introduce amendments setting out the specific obligations for health practitioners in initiating VAD conversations.
2. Removal of 6/12-month life-expectancy requirement for VAD eligibility.
The current ACT Bill substantially departs from the conventional Australian model by intentionally omitting the 6/12-month ‘life-expectancy’ eligibility requirement adopted in almost all other states. Instead, the Bill requires individuals seeking eligibility to have an advanced progressive condition and be in the ‘last stages of their life’[51]. As submitted by the ACT Government, the choice to omit a timeframe of death was inspired by approaches adopted by international jurisdictions (Netherlands, Belgium, Canada etc.), and that requirements examining the patient’s levels of function and quality of life may serve as more effective indicators of eligibility [52]. This makes the ACT the first jurisdiction to effectively abolish a systemic barrier unfairly preventing individuals with certain neurodegenerative conditions for which life-expectancy is difficult to estimate from accessing VAD.
However, the ambiguity of the term ‘last stages of their life’ was subject to significant criticism. Public submissions highlighted how this term could be misconstrued as ‘being of advanced age’ or as re-introducing a life-expectancy requirement where clinical opinion would replace the 6/12-month
restriction [53]. In response, the Select Committee has recommended for this term to be amended in a clarifying manner, a need which has since been acknowledged by the ACT Government [54].
3. Absence of ‘cooling off’ period between consultations and requests.
Several Australian jurisdictions require ‘cooling off’ periods between successive requests and assessments; for example, Western Australia imposes a 9-day period between the first and final request, implemented with the intention of ensuring that the patient’s decision was voluntary, constant and well-considered [55]. The absence of such a period in the ACT bill was due to two factors; first, that the VAD process naturally takes a number of days, making the implementation of a ‘cooling off’ period redundant; and second, that many exceptions to the period were being granted in other states [56]. However, community submissions were unilaterally in favour of the implementation of some form of waiting period between requests as a minimum safeguard, fearing some individuals would be ‘hurried through’ the process by overzealous actors. Ultimately, the Select Committee’s recommendation reflected Go Gentle Australia’s suggested 48-hour period between a patient’s first and last requests [57].
4. Proposed amendments in the 3-year review
Section 159 of the Bill foreshadows a parliamentary intention to open the proposed scheme to non-residents and children, in addition to a potential embedment of the scheme into advanced care plans following a 3-year review period [58]. This highly contentious aspect of the bill attracted substantial attention in a number of submissions; although non-resident, pediatric and advanced care VAD are available in many international jurisdictions, they have all been staunchly rejected in Australia, and will likely form the cornerstone of much future debate [59]. It remains unclear how this will be addressed by the ACT Government going forward, although it has been anticipated that any proposed changes will likely be implemented after 2030 [60].
Summating the Select Committee’s findings, it can be ultimately concluded that the current ACT Bill is not sufficiently mature to administer a fully-fledged VAD scheme. The ACT Government is expected to draft a report in response to the Select Committee’s recommendations in June 2024; following the implementation of suggested amendments, the ACT public can expect to receive a VAD framework which will better serve and protect community interests.
Conclusion
The long-anticipated arrival of VAD has brought comfort and peace to thousands of terminally-ill Australians, allowing our loved ones to approach the end of their lives with dignity and agency. Existing barriers in state VAD frameworks may serve to protect vulnerable individuals, but such protections are afforded at the expense of participants forced to endure suffering under unnecessary administrative burdens. Whilst immature, the ACT Bill remains a future-orientated adaptation of the Australian model, taking inspiration from the success of both domestic and international assisted dying schemes to formulate a considered approach towards enhancing access without compromising safety. The success of the ACT model will likely inspire legislative reform in other Australian jurisdictions, serving as the next step in Australia’s journey towards developing a safe, effective and internationally exemplary assisted dying framework.
References
1. Oxford English Dictionary (online at 15 April 2024) ‘euthanasia’.
2. Michael Strolberg, ‘Active Euthanasia in Pre-Modern Society, 1500-1800: Learned Debates and Popular Practices’ (2007) 20(2) Social History of Medicine 205, 207.
3. Valerius Maximus, Memorable Doings and Sayings, Book II in DRS Bailey (ed) Memorable Doings and Sayings, Volume I: Books 1-5 (Harvard University Press, 2000) 171.
4. Hippocrates Ancient Medicine. Airs, Waters, Places. Epidemics 1 and 3. The Oath. Precepts. Nutriment. tr WHS Jones (Harvard University Press, 1923) 299.
5. Australian Medical Association, ‘AMA Position Statement - Euthanasia and Physician Assisted Suicide’ (2016).
8. Margaret Otlowski, Voluntary Euthanasia and the Common Law (Oxford University Press, 1997) 400-401.
9. Katharina Bucholz, ‘Where Assisted Suicide Is Legal’ Chart: Where Assisted Suicide Is Legal | Statista (Webpage) < https://www.statista.com/chart/28133/assisted-dying-world-map/>.
10. Kumar Amarasekara and Mirko Bagaric, ‘The Legalisation of Euthanasia in the Netherlands: Lessons to be Learnt’ (2001) 27(2) Monash University Law Review 179. 11. Ibid 185.
12. Death with Dignity Act, 127 ORS §§1.01-5.01 (1997).
13. ACT Government, Voluntary assisted dying in the ACT: report on what we heard, June 2023, 3-4.
14. Rights of the Terminally Ill Act 1995 (NT) s 4.
15. Tracee Kresin et al, ‘Attitudes and Arguments in the Voluntary Assisted Dying Debate in Australia: What Are They and How Have They Evolved Over Time?’ (2021) 18(12327) International Journal of Environmental Research and Public Health 1, 4-6.
16. Stephen Duckett, ‘The long and winding road to assisted dying in Australia’ (2019) 54(4) Australian Journal of Social Issues 386, 387.
17. DW Kissane, Annette Street and Philip Nitsche, ‘Seven deaths in Darwin: case studies under the Rights of the Terminally Ill Act, Northern Territory, Australia’ (1998) 352 The Lancet 1097-1099.
18. Second Reading Speech, Voluntary Assisted Dying Bill 2017 (Vic).
19. Voluntary Assisted Dying Review Board, Annual Report July 2022 to June 2023 (Annual Report, June 2023).
20. Australian Medical Association (n 5) 3.1.
21. Victorian Government, Ministerial Advisory Panel on Voluntary Assisted Dying: Final Report (Final Report, July 2017) 80, 89, 92.
23. Kerstin Braun, ‘Looking back to look forward—the history of VAD laws in Australia and future law reform in the Australian territories’ (2024) 32 Medical Law Review 42, 49-50.
24. Ibid.
25. ACT Government, ‘Voluntary assisted dying laws in the ACT’ Voluntary assisted dying laws in the ACT – Justice and Community Safety Directorate (Webpage) <https://www.justice.act.gov.au/justice-programs-and-initiatives/voluntary-assisted-dying-laws-in-the-act>.
26. Northern Territory Government, ‘Voluntary assisted dying (VAD) in the Northern Territory’ Voluntary assisted dying (VAD) in the Northern Territory | Have your say and help us develop the Northern Territory framework for Voluntary Assisted Dying (Webpage) <https://haveyoursay.nt.gov.au/vad>.
27. See Voluntary Assisted Dying Act 2022 (NSW) div 2, Voluntary Assisted Dying Act 2021 (Qld) div 2, Voluntary Assisted Dying Act 2021 (SA) s 8, End-of-life Choices (Voluntary Assisted Dying) Act 2021 (Tas) s 3, Voluntary Assisted Dying Act 2019 (WA) div 2.
31. Ibid 14; see also End-of-life Choices (Voluntary Assisted Dying) Act 2021 s 5 (definition of ‘PMP’).
32. ACT Government (28), 21.
33. Ibid 26.
34. Ibid 7, 8.
35. Ibid 10-12.
36. Ibid 22.
37. See Voluntary Assisted Dying Act 2021 (SA) s 36, End-of-life Choices (Voluntary Assisted Dying) Act 2021 (Tas) s 32.
38. ACT Government (28), 17.
39. Ibid 18.
40. Ibid 18, 19.
41. Ibid 33.
42. Select Committee on the Voluntary Assisted Dying Bill 2023, Legislative Assembly for the Australian Capital Territory, Inquiry into the Voluntary Assisted Dying Bill 2023 (Report, Feb 2024), 2-3 (‘Select Committee’).
43. ACT Government (n 13).
44. Ibid 3-4.
45. ACT Legislative Assembly, Minutes of Proceedings, No. 104, 1493.
46. Select Committee (n 42).
47. Voluntary Assisted Dying Bill 2023 (ACT) s 152(2) (‘ACT Bill’).
48. Dying with Dignity NSW, Submission No 77 to Select Committee on the Voluntary Assisted Dying Bill, Inquiry into the Voluntary Assisted Dying Bill 2023 (14 December 2023) 4.
49. Select Committee (n 42) 26-27.
50. Ibid 24-25.
51. ACT Bill (n 47) s 4 (definition of ‘advanced’).
52. Select Committee (n 42) 11.
53. Ibid 12-14.
54. Ibid.
55. Ibid 35.
56. Ibid 35-36.
57. Ibid.
58. Ibid 41.
59. Ibid 43.
60. Ibid 42, 44.
A ‘Fair Use’ Scheme in Australian Intellectual Property Law
By Lara McKirdy
Central to the development of copyright schemes in Australia and other WIPO [1] countries is balancing the protection of the exclusive rights of copyright owners and their works with the public interest in access to copyrighted works, as a means to encourage innovation and development [2]. Australia has two IP schemes attempting to address the underlying goal of achieving this balance: Fair Dealing and Fair Use. Fair Dealing in Australian legislation lists specified exceptions for copyright without seeking an owner’s permission, while its US equivalent, Fair Use, provides for broader exceptions. With the rise of the technological age, the greatest challenge of Fair Dealing, and its weakest application, is in addressing and adapting to the development of electronic resources and the digital economy. Compatibility with the digital economy is arguably Australia’s chief issue in copyright as it has transformed the way information is accessed and used, especially within the education sector [3]. In 2014 the Australian Law Reform Commission (ALRC) suggested that the implementation of a ‘Fair Use’ scheme seeks to address these issues [4].
What’s Wrong with Fair Dealing?
Fair Dealing in Australia and Fair Use in the US have both had their share of difficulty with approaches to “purpose” for the ‘fairness’ of a ‘dealing’ in case law and in legislature, highlighting a common weakness in the practice of both schemes. Both schemes list specific or broad “purposes” for which copyrighted material may be used. Any “purposes” of the use falling within the defined “purposes” will be exempted under the schemes, but any falling outside the described “purposes” will amount to copyright infringement. For example, Fair Dealing has struggled to keep up with technological advancements. These advancements notably include significant developments in the widespread availability of elec-
tronic texts (e-texts) in the form of books, textbooks and journal articles. To better cope, the ‘research or study’ exception for copyright was introduced in a 2000 amendment [5] to address such developments, particularly prevalent in the education field [6]. ‘Research’ or ‘study’ are given ordinary meanings [7]. However, the ALRC suggests that parts of the scheme are still behind in addressing modern technology uses. For example, the ‘research or study’ exception and other educational exceptions do not extend to the provision of copyrighted readings for classroom use, such as listing on course webpages or photocopying library books, as these are not typically captured within the ordinary meaning [8].
What’s wrong with Fair Use?
While Fair Dealing’s ‘purpose’ threshold may be impacting access to the scheme and impacting copyright owners’ protection, further developing the broad scope of Fair Use’s “transformative purpose” may affect owners’ rights. Transformative Fair Use potentially ‘eviscerates the author’s exclusive right to ‘transform’ their own work.’[9] If the test in Campbell v Acuff-Rose [10] is interpreted broadly, this could lead to all derivative works being authorised under Fair Use. Consequently, where a defendant has made a derivative work that is deemed a Fair Use, original authors could miss out on compensation and acknowledgement, rendering copyright ownership meaningless. It would perhaps have been beneficial for Australian courts to have followed a similar broad approach to the US courts with “transformative purpose”, to include ‘education’ purposes within the ‘research and study’ exception to capture overlooked practices. However, a rigid Fair Dealing scheme that is beneficial for legal certainty will ultimately require further significant Commonwealth Government investments. These
investments are needed for developing and implementing relevant, effective and adaptable copyright legislation, as technological developments will continue to further impact ‘research or study’ dealings.
Disadvantages of Fair Use in Australia
The combined strengths and weaknesses of Fair Use and Fair Dealing indicate that the best approach to a Fair Use scheme in Australia is a ‘twostep’[11] combination approach to implementation. The ALRC has devised two main approaches to implementing a Fair Use scheme in Australia [12]. The first approach suggests entirely replacing Fair Dealing with Fair Use, while the second approach suggests adding a general ‘fair use’ exception [13]. This approach would mean that while the existing prescribed purposes would be retained, an ‘open-ended’ Fair Use would be introduced as an alternative permissible exception. However, leading US academic Matthew Sag argues that ‘transformative use’ or ‘transformative purpose’ remain highly litigated issues in the US, and if not resolved in an Australian scheme, associated ambiguity and confusion may overwhelm Australia’s legal system. Also against Fair Use in Australia, Johnson et al. (2018) [14] argue that it is highly unlikely that Fair Use would be implemented within a ‘short-term’ period. Citing that Fair Use poses risk to artists and creators ‘being cheated of fair compensation for their creativity’[15], the authors refer to a PricewaterhouseCoopers report commissioned by the Copyright Council, which found against establishing Fair Use in Australia on the basis that a similar scheme in Canada ‘resulted in the loss of many millions in royalty payments to content producers’[16]. The report, which could not verify its figures, was given little weight by the Australian Productivity Commission submission to the ALRC. Furthermore, there is no substantial evidence of how, and even if, the change in laws affected Canada’s publishing industry [17].
Advantages of Fair Use in Australia
One of the main arguments for implementing a Fair Use scheme in Australia is to keep pace with tech-
nological developments, especially the digital economy. To cope with technological innovations such as online texts and online information sharing, the Copyright Amendment (Digital Agenda) Act 2000 introduced the “fair dealing” exception for ‘research and study purposes.’ The nature of the applicable case law and the dealing of ‘research and study’ is constantly changing with technological advancements altering the way information is accessed, conveyed and communicated [18]. An Australianised ‘fair use’ scheme is being considered in Australia following the US’s flexible response to ‘challenges of the expanding digital economy’[19] which saw greater innovation and economic benefits for copyright owners and consumers alike [20]. One of the main arguments for adopting elements of a ‘fair use’ scheme in Australia is to allow for greater innovation, in allowing creators to focus more on creating works rather than protecting their works [21]. The ALRC argues that Fair Use in Australia means ‘consumers will develop an understanding of what sort of uses are…permissible…and will not need to wait for the legislature’ to determine scope of exceptions [22]. This has been evidenced in US jurisprudence where the Fair Use general exception has allowed for significant developments in dealing with technological advancements [23].
Conclusion
While Fair Dealing provides a comfortable level of certainty for copyright users and owners with its exception-based scheme, the Fair Use scheme is more adaptable to technological developments without the need for significant amendments. This is a compelling argument for introducing a general Fair Use exception in Australia, and practice in the US has demonstrated broad applications with “transformative purpose”. A ‘two-step’[24] approach for implementing Fair Use is preferable in Australia, as it seeks to balance the benefits of having certainty in defined exceptions, while providing a more flexible and adaptable general exception to address further technological developments.
References
1. World Intellectual Property Organisation (‘WIPO’).
2. Renee Hobbs, The Routledge Companion to Media Education, Copyright and Fair Use (Taylor and Francis, 2018) 8.
3. Nadia Caidi, Alissa Centivany & Pam Samuelson et al., ‘Envisioning How Fair Use and Fair Dealing Might Best Facilitate Scholarship’ (2015) 52(1) Association for Information Science and Technology 1-2.
4. Australian Law Reform Commission, Copyright and the Digital Economy (Discussion Paper 79, June 2013).
5. 131 Amendment (Digital Agenda) Act 2000 (Cth).
6. Anwar Khan & Phillip Hancock, ‘Copyright Law in Australia – Fair Dealing for Research or Study Purposes’ (2001) 30(3) Journal of Law & Education 505, 518.
7. De Garis v. Neville Jeffress Pidler Pty Ltd (1990) 18 IPR 292.
8. Australian Law Reform Commission, Copyright and the Digital Economy (Issues Paper No. 42, August 2012), 66 [250]; De Garis v. Neville Jeffress Pidler Pty Ltd (1990) 18 IPR 292.
9. Jane C. Ginsburg, ‘Does ‘transformative fair use eviscerate the author’s exclusive right to ‘transform’ her work?’ 2022 17(9) Journal of Intellectual Property Law & Practice 687, 687.
10. Campbell v Acuff-Rose (1994) 510 US 569.
11. Australian Law Reform Commission, Copyright and the Digital Economy (Discussion Paper 79, June 2013).
12. Ibid.
13. Ibid 133.
14. Making Copyright Work for the Asian Pacific: Juxtaposing Harmonisation with Flexibility (ANU Press, 2018).
15. Ibid 195.
16. Ibid 177.
17. Ibid 177.
18. Mark J. Davison, Ann L. Monotti & Leanne Wiseman, Australian Intellectual Property Law (Cambridge University Press, 4th Ed., 2020) 507.
19. The ‘digital economy’ refers to the use of information technology to create and sell goods and services.
20. Australian Law Reform Commission, Copyright and the Digital Economy (Discussion Pap No. 42, May 2013) 245 [11.114].
21. Ibid, 218.
22. Australian Law Reform Commission, Copyright and the Digital Economy (Final Report No. 122, November 2013), 22.
23. Sony Cope of America v Universal City Studios Inc. 464 US 417; Field v Google Inc 412 F Supp 2d 1106 (D Nev, 2006); Authors Guild Inc v Google Inc. No 05-08136 (SDNY, 2013).
24. Australian Law Reform Commission, Copyright and the Digital Economy (Discussion Paper 79, June 2013).
A Tale of Two IP Regimes: Protecting Indigenous Cultural and Intellectual Property in Australia vs Kenya.
By Aisha Collins
In the 2019-2020 financial year, international tourists visiting Australia spent more than $78 million on Indigenous-style artwork[1]. A draft report on Aboriginal and Torres Strait Islander Visual Arts and Crafts, developed in response to the 2018 Report on the Impact of Inauthentic Art and Craft in the Style of First Nations Peoples, found that up to 75% of Indigenous-style products sold in Australia are fake[2]. Inauthentic Indigenous-style arts, imagery and consumer products that are sold with no connection to Aboriginal and Torres Strait Islander creators results in both direct and indirect economic, cultural, and social harm to Indigenous peoples and communities. These products disrespect and misrepresent culture [3], and deprive Aboriginal and Torres Strait Islander artists of income by misleading customers and undermining public confidence in the market.
Despite a number of proposed international frameworks drafted to encourage Indigenous Cultural and Intellectual Property (ICIP) protections within existing Intellectual Property (IP) frameworks, Australian IP laws remain limited when it comes to protecting Indigenous ICIP. A dissonance between colonial perceptions of property and ownership with Indigenous understandings of custodianship and shared cultural responsibility has been regarded as a significant limitation to the scope of protection available for ICIP in Australia. These gaps mean that unless Aboriginal and Torres Strait Islander people can fulfil the requirements of the colonial Intellectual Property regime, such as copyright law, their ICIP rights are unprotected and vulnerable to exploitation.
It would be remiss, however, to assume that cultural dissonance remains the only roadblock to incorpo-
rating comprehensive ICIP protections within Australia’s IP regime. The need to protect Indigenous knowledge and cultural expressions is an imperative being faced by jurisdictions across the world, as globalisation renders ICIP more and more vulnerable to commercial exploitation and appropriation. As we will see through exploring Kenya’s IP regime, incorporating concepts of communal and perpetual custodianship is neither unheard of, nor impossible. It therefore remains that, in a tale as old as colonisation, the problem lies with the absence of sufficient attempt to reconcile Australia’s legal regimes to be inclusive of such concepts.
But first: What is ICIP?
ICIP is a multifaceted concept encapsulating Traditional Knowledge (TK) [4], Traditional Cultural Expression (TCE), and “all resources and knowledge systems developed by First Nations peoples as part of their identity, law, lore and culture” [5]. TCE can further be defined as “any form of artistic and literary expression, tangible and/or intangible, in which traditional culture and knowledge are embodied” [6]. Various international organisations, including WIPO and UNESCO, have recognized the importance of protecting ICIP. Subject to the respective IP regimes of different jurisdictions, ICIP is offered a certain degree of protection under areas of IP law including Copyright, Performer’s Right, Patent Right and sui generis IP laws.
Protections available to ICIP through Australian copyright law.
When seeking to protect ICIP through copyright law, many deficiencies within Australia’s current IP regime have become apparent. Issues arise
regarding concepts of collective ownership and authorship, the copyright law requirement of originality and an identifiable author, as well as a requirement for IP to be expressed in a material form, and the limited duration of protection copyright offers. Each of these copyright law concepts will now be briefly explored in turn:
a. Ownership
In conventional intellectual property regimes, copyright is vested in the individual owner of the IP. Copyright is a proprietary right which affords holders the right not to exploit their materials, and is thereby something that can also be traded. There is a presumption held within contemporary IP regimes that Copyright will be infringed, which provides a means through which the copyright owner can receive returns and compensation for their creation(s) [7]. As such, the likely exploitation of this copyright serves as a motivation for establishing IP rights in and of itself. This does not so much offer proactive protection to prevent IP from being misappropriated, but allows copyright holders to access compensation once it has been. Not only might this vesting of copyright to an identifiable author be incompatible with Indigenous notions of community-vested custodianship of TK[8], but we can also see how this assumed motivation for seeking copyright protection is at odds with a desire to protect ICIP from being exploited in the first place.
In the Bulun Bulun Case, Von Doussa J explored that s35(2) of the Copyright Act 1968 (Cth)[4] (‘the Act’) “effectively precludes” any notion of group ownership of IP for an artistic work if the group does not accord with the definition of “joint ownership” per s10(1) of the Act [9], which is insufficient to accommodate communal custodianship of Indigenous holders of TK. Further, the court seemed aware of its own inability to reconcile the colonial law with what it recognised as obligations Mr Bulun Bulun owed to the Ganalbingu people under traditional custom, which could only be recognised as a “fiduciary responsibility” to protect the Traditional Knowledge he expressed in his artistic work, as opposed to binding law.
b. Duration, authorship, and originality
The inability of Australia’s current IP regime to recognise a community-vested IP right is directly tied to another issue undermining the protection of ICIP – the duration of Copyright. While there is some variation depending on the type of work, copyright in Australia generally lasts 70 years after the death of the creator, or after the first year of publication[10]. There are no current means endorsed by the court to grant perpetual copyright protection which recognises the enduring existence of ICIP. The requirement of an identifiable author to qualify for copyright also presents fundamental challenges for protecting ICIP, as TK and TCE are communally and continually developed, and the pool of contributors to this ICIP predate any requirement to identify creators under present colonial law. Identifiable authorship is therefore a difficult threshold to meet for TCE in Indigenous communities world-wide[11]. For many of the same reasons, the copyright law requirements for the novelty and originality of a work in order to qualify for protection are equally challenging.
c. Material form requirement – the Ex pression / Idea Dichotomy
The material form requirement dictates that only specific expressions of ideas in the form of a material work will be protected as IP, rather than the idea itself. This dichotomy is a foundational tenet of copyright law, but severely limits the capacity for ICIP to be eligible for protection. TK that has been cultivated and communicated through oral traditions will thereby not be eligible for protection under copyright law [12]. Conversely, as was the case in Bulun Bulun, TK expressed visually through artwork will be protected under copyright law, however it is the individual artist who will be vested with the copyright, rather than offering legal recognition of the whole community. Another implication of this material form requirement is that non-Indigenous people are able to commercially exploit TCE and Indigenous artistic styles to produce their own art, which will in turn be eligible for protection under copyright as original works [13], despite
misappropriating the ICIP of Aboriginal and Torres Strait Islander peoples.
IP regime in Australia: conclusion
The current Australian IP regime remains inadequate to provide protection for Indigenous knowledge and cultural practices. In particular, the facets of Australian copyright law which render it ill-suited to protect ICIP include the material form and originality requirements, as well as the lack of recognition of the perpetual and communally-vested nature of ICIP. In the absence of a top-down legislative approach to protecting ICIP, the onus of protecting Indigenous knowledge and cultural expressions is largely being fronted as a non-enforceable endeavour by individual organisations[14]. In 2022 the Australian Government conducted a study exploring the potential of stand-alone legislation to offer protection to Indigenous Knowledge[15]. The study concluded that both Indigenous and non-Indigenous stakeholders consulted during the study expressed support for stand-alone legislation to better adapt Australia’s IP regime to protect ICIP. While this remains a potential next step, indication of an intent to implement such legislation is yet to be seen from the government.
3. Protections available to ICIP in Kenya
On the other hand, and on the other side of the world, Kenya is miles ahead of Australia when it comes to incorporating legislative protections for ICIP. At a regional scale in Africa, The Swakopmund Protocol on the Protection of Traditional Knowledge and Expressions of Folklore (‘the Swakopmund Protocol’) [16], within the framework of the African Regional Intellectual Property Organisation, has been used alongside international IP model laws as a basis for policy and legislation protecting TK and TCE. The protocol recognises the need to protect TK for the preservation of traditional culture, and cites the protection of TK custodians from the infringement of their IP rights, and the prevention of misappropriation and unlawful exploitation of ICIP as its’ primary purpose. While several African countries have enacted legislation adhering with some components
of this protocol [17], Kenya remains the only country in Africa to have adopted a specific IP regime on TK and TCE [18].
An amendment to the Kenyan constitution in the wake of the Swakopmund Protocol requires the state to protect the IP rights of the TK custodians in Kenya.[19] Stemming from this constitutional obligation, the National Policy on Traditional Knowledge, Genetic Resources and Traditional Cultural Expressions (‘the Kenyan Policy’) was adopted by the government in 2009 [20], establishing a sui generis (unique, or ‘of its own kind’) IP regime wherein TK and TCE is better able to be protected.
The Kenyan Policy was largely driven by misappropriation of TCE and TK held by the Maasai people of Kenya and Tanzania [21]. After TK of the Maasai were used to develop successful foreign shoe brands using “Maasai barefoot technology”[22], the Maasai people pioneered the national IP policy shift in Kenya by advocating for a right to receive returns from products marketed with their name and image. This resulted in the creation of the Maasai Intellectual Property Initiative Trust (MIPIT), the body responsible for representing the interests of Maasai TK and TCE in legal procedures involving IP [23].
Introducing protections for TK and TCE through the Kenyan Policy largely necessitated a setting aside of the criteria previously used to justify protection under the conventional IP system. S6 of the Kenyan Policy provides for instances where IP protection will extend to TK, including criteria that the TK is “either individually or collectively generated [24], is distinctly associated with or belongs to a community [25], and is integral to the cultural identity of a community that is recognized as holding the knowledge through a form of custodianship [26]”.
This sui generis approach can be seen to be at odds with contemporary notions of the requirements for ownership and identifiable authorship that we see in the Australian IP regime. Additionally, the Kenyan Policy also confronts the incompatibility of traditional IP regimes with fixed term protection, extending the duration of protection offered to TK and TCE to
be perpetual, as long as the criteria provided for in s6 of the act qualifying the TK and TCE for protection remain intact [27]. In this sense, Kenya’s IP regime provides both proactive and reactive protection to ICIP.
Additionally, anyone seeking to use TCE from an Indigenous group or community in Kenya for commercial purposes is required to first obtain the authority to do so from the Kenya Copyright Board [28]. This prevents non-Indigenous people or outsiders from the community from appropriating the TK which, as a result of not satisfying the material form requirement of Kenya’s IP regime, may not otherwise be protected by copyright. This protective approach empowers Indigenous communities to promote and control the way their TK is used and prevents people outside of the community from acquiring IP rights over TK and TCE[29].
In this way, the IP policy adopted by Kenya protects Indigenous groups, such as the Maasai, from exploitation. It also provides for a degree of self-determination, empowering Indigenous communities to control and govern the use of their ICIP by establishing a new IP right that can be vested in the community, as opposed to the individual.
4. IP regimes in Australia and Kenya: conclusion.
The current IP regime in Kenya models a proactive approach to safeguarding ICIP, while retaining the aspects of a contemporary IP regime allowing ICIP holders to profit and receive returns when their TK and TCEs are used commercially. This can be contrasted with Australia’s IP regime which, under copyright law, provides only reactive protection to ICIP. Even once ICIP has been misappropriated or misused, custodians of TK and TCE in Australia face significant roadblocks to receiving copyright protection which would allow them to profit from the use of their ICIP.
In their 2022 study into the exploitation of ICIP, the Australian Government identified a need to implement legislation reforming our IP regime to protect
ICIP. Kenya’s example provides a valuable starting point. Expanding our legal understanding of authorship to be inclusive of the enduring and community-vested nature of Indigenous Knowledge is one valuable Australia can take from Kenya’s approach; which would help to address the difficulties custodians of ICIP face when trying to satisfy the identifiable author requirement for copyright protection. Australia could also follow Kenya’s example of implementing a protective approval granting process for ‘Indigenous style’ art and consumer products through consultation with the custodians of this ICIP. This would prevent the exploitation of TK and TCE by non-Indigenous creators, even in instances where ICIP is not granted copyright protection as a result of not meeting the material form requirement.
There’s many things Australia could do to protect Aboriginal and Torres Strait Islander creators and communities from having their traditional knowledge and cultural expressions exploited and misappropriated. Now that the need for reforming our IP regime to do so has been recognised, this author is of the opinion that the remaining question is not ‘what is there to be done?’, but ‘what are we waiting for?’.
References
[1] Australian Government Productivity Commission. (2022) Aboriginal and Torres Strait Islander visual arts and crafts - Study report. [2] House of Representatives Standing Committee on Indigenous Affairs. (2018) Report on the impact of inauthentic art and craft in the style of First Nations peoples. [3] Ibid.
[4] As defined by Word Intellectual Property Organisation (WIPO). https://www.wipo.int/tk/en/folklore/. [5] Ibid.
[vi] [6] Kearney, Jean, Aurora Intern, and Janke,Terri, 2018, Rights to Culture: Indigenous Culture and Intellectual Property (ICIP), Copyright and Protocols [7] Githaiga, Joseph, “Intellectual Property Law and the Protection of Indigenous Folklore and Knowledge” [1998] MurdochUeJlLaw 13; (1998) 5(2) Murdoch University Electronic Journal of Law
[8] Puri, Kamal, “Cultural Ownership and Intellectual Property Rights Post-Mabo: Putting Ideas into Action”(1995) Intellectual Property Journal, 293, p310.
[9] Hardie, Martin, The Bulun Bulun Case: John Bulun Bulun & Anor v. R & T Textiles Pty Ltd (1998). 4(16) Indigenous Law Bulletin 24, 1998.
[10] Copyright Act 1968 (cth), S 33.
[11] Mogos, Abiyot. 2021. “REVITILIZING INTELLECTUAL PROPERTY RIGHT PROTECTION FOR TRADITIONAL KNOWLEDGE AND CULTURAL EXPRESSION IN ETHIOPIA: A LESSON FROM KENYA.” Oromia Law Journal 10 (1): 120-159.
[12] Puri, Kamal, N8 p315.
[13] Gray, Stephen, “Aboriginal Designs and Copyright: Can the Australian Common Law expand to meet Aboriginal Demands?”, (1991) 9 (4) Copyright Reporter, 8, at 15.
[14] Melbourne University, “How to protect Indigenous Knowledge and creative IP from exploitation”, 2023. available at;https://study.unimelb.edu.au/study-with-us/professional-development/blog/how-to-protect-indigenous-knowledge-and-creative-ip-from-exploitation.
[15] Delwyn Everard, Boyd Blackwell and Tim Acker, commissioned by IP Australia: Scoping study on standalone legislation to protect and commercialise Indigenous knowledge, 2022. [16] SWAKOPMUND PROTOCOL ON THE PROTECTION OF TRADITIONAL KNOWLEDGE AND EXPRESSIONS OF FOLKLORE, ARIPO Swakopmund, Namibia 2010.
[17] Paul K. Challenges in the African Region to Protecting Traditional Knowledge, Genetic Resources and Folklore, available at: https://communitylegalresources. files. wordpress.com/2014/04/challenges-in-the-african-region-to-protecting-traditional-knowledge.pdf
[18] Ibid.
[19] The Constitution of Kenya, 2010 (n18) art 69(1)(c) & (e).
[20] National Policy on Traditional Knowledge, Genetic Resources and Traditional Cultural Expressions, Government of Kenya, July 2009. (The Kenyan Policy). [21] n19, art 11(3)(a).
[22] Brindle, M, & Florman, N, ‘The Maasai Intellectual Property Initiative: a 20th-century model for turning assets into income’. Journal of Fair Trade, 2(2), 2021, 5–12.
[23] Ibid.
[24] The Kenyan Policy, n22, S6 (b).
[25] Ibid, S6 (C).
[26] Ibid, S6 (D).
[27] The Kenyan Policy, n22, Arts 13 & 17.
[28] Kenya Copyright Board, ‘A Guide to Copyright In Kenya’, p 9, available at: https://copyright.go.ke/sites/default/files/downloads/A%20Guide%20to%20Copyright%20 in%20Kenya%202018%202PRESS0.pdf
[29] The Kenyan Policy, n20, Art 8.
“A peppercorn does not cease to be good consideration if it is established that the promisee does not like pepper and will throw away the corn”.
