Peppercorn Edition 1 2020

THE ANU LAW STUDENT SOCIETY MAGAZINE

LAW

ISSUE 1 EDITION 1 2020

PEPPERCORN POLITICS

HUMOUR

LIFESTYLE

ARTIST / INSTA: @lifeofrubii

PEPPERCORN WOULD LIKE TO ACKNOWLEDGE THE NGUNNAWAL AND NGAMBRI PEOPLE AS THE TRADITIONAL OWNERS OF THE LAND UPON WHICH THIS PUBLICATION WAS 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 IN GREATER NEW SOUTH WALES’ SURROUNDING REGIONS.

The fight for sovereignty is ongoing, and racist colonial structures continue to perpetuate the power imbalance inherent within this nation’s cultural, economic and political institutions. We wish to acknowledge that paternalistic policies such as the Stolen Generation are not ‘historical’, but rather ‘a sustained history of oppression, paternalism and cruelty’.1 In just one year, 1144 Aboriginal children were placed in out-of-homecare in by the Department of Family and Community Services (NSW). It has been continually asserted that where possible, the best place for a child is at home. Yet the Department has been found to regularly ‘mislead’ courts, ‘omit’ relevant information, or even provide evidence which is ‘false or misleading’, when making recommendations for the removal of children.2 As the Publication of a law students’ society, we cannot ignore the role that our legal system plays in entrenching these systemic failures. Namely, how the complexity of the legal system and judicial court processes can serve to augment existing flaws in government policy and the child protection system.

Until there is a treaty; until retribution is provided; until we recognise the historical and ongoing pain of those whose land on which we profit from, there will be no substantive justice.

Always was, Always Will Be (NAIDOC 2020).

1 Family is Culture Report 2019, Executive Summary; More information about the Family is Culture report and the NSW Government’s response, released June 2020, can be found here: https://www.familyisculture.nsw.gov.au/__data/assets/pdf_file/0011/726329/Family-Is-Culture-ReviewReport.pdf; https://apo.org.au/sites/default/files/resource-files/2020-07/apo-nid306779.pdf.

2 Lorena Allam (2019) https://www.theguardian.com/society/2019/nov/08/nsw-child-protection-workersregularly-mislead-court-and-needlessly-take-indigenous-kids-report

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Contents 1 ARTWORK Life of Rubii Insta: @LIFEOFRUBII 2 ACKNOWLEDGEMENT OF COUNTRY 5 PEPPERCORN TEAM 6 LETTER FROM THE EDITOR 7 WHAT YOUR BARISTA IS THINKING Bella Di Mattina

8 ADVANCE AUSTRALIA FAIR Alexandra Celeste Elgue 10 CAN I TAKE MY HOUSEMATE TO SMALL CLAIMS? Aamina Sultanbawa 11 PANDEMIC OF POPULISM: RULE OF LAW IN HUNGARY Bella Di Mattina 12 LAW SCHOOL: A 1ST, 3RD & 5TH YEAR PERSPECTIVE Annie Huang, Fia Sankoorikal, Prasad Siththaranjan 13 THE STORY OF DEATHS IN CUSTODY IN AUSTRALIA AFTER THE ROYAL COMMISSION Taynissa Vakeeswaran

15 FOUR WAYS TO ENSURE YOU DON’T ‘ACCIDENTALLY’ MURDER YOUR PARTNER IN LOCKDOWN Anonymous 17 WOMEN: THE ECONOMY’S BABYSITTERS? Diva Choudhary 18 I HOLD YOU IN CONTEMPT OF SPORT Josh Amos 19 SHOULD WE AUTOMATE HUMANITY? THE USE OF AUTOMATED DECISION-MAKING UNDER THE MIGRATION ACT Andew Ray, Bridie Adams 21 ARTWORK Stephanie Vieceli 22 3,185 KILOMETERS AWAY FROM HOME Xiao Lin King 23 PMS JOKES AREN’T FUNNY. PERIOD. Mehar Chawla, Marissa Parel 25 ARTWORK Dylan Mooley 26 THE SNOWY VALLEY’S FLAMING SUMMER Caitlin O’Brien

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27 WHAT TO DO WHEN YOU’RE STUCK AT HOME DURING THE COVID-19 EVENT David Ferrell 29 MARRIAGE EQUALITY AS A MAN’S LEGACY: PLEBICITES AND REFERENDUMS Thomas Bennett 30 ARTWORK Stephanie Vieceli 31 THE AFP RAIDS: A BLOW TO FREE PRESS IN AUSTRALIA? Mehar Chawla 33 MISSING THE POINT: HOW FOCUS ON THE PRESUMPTION OF INNOCENCE IS FAILING VICTIMS OF SEXUAL HARRASSMENT Georgia Crocker

39 LOCKING AWAY THE PAST: DRIVERS OF INDIGENOUS INCARCERATION Khashif Jadwat, Mehar Chawla 41 ARTWORK Charlotte Allingham 42 BREAKING: PETITION TO ABOLISH THE AGLC GATHERING STREAM A Former Research Assistant 43 CYBERBULLYING: LIMITS OF LEGISLATIVE MEASURES Ashiq Kazi

35 STUDY WITH ME Kriti Mahajan 36 COLLUSION OR SIMPLE CONFUSION? WHY ACADEMIC MISCONDUCT RULES MUST BE REFORMED Andrew Ray 37 AM I WELCOME OR...? A CONUNDRUM OF CROSS-INSTITUTIONAL STUDIES Jibran Habib

FRONT & BACK COVER DESIGNED BY: Brennan O’Brien Insta: @Brennen_obrien

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MEET THE TEAM EDITOR-IN-CHIEF: Mehar Chawla

ART & DESIGN DIRECTOR: Stephanie Vieceli

CONTENT EDITORS: Aamina Sultanbawa Bella Dimattina Sukriti Kapoor

MAGAZINE DIRECTORS: Harry Douglas Stephanie Vieceli

SUB-EDITORS: Harry Douglas Marissa Parel David Ferrell Alexandra Elgu Jibran Habib Claudia Rowe

SOCIAL MEDIA DIRECTOR: Sissy Qin

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LETTER FROM THE EDITOR This first semester has been sort of like how I feel standing at the Bar Table in court for the first time could be like—you’ve done all the preparation; you’ve got a vision and an end goal in mind; you’re wearing your best outfit (and a matching underwear set underneath); you’ve even eaten all the almonds, walnuts and fish-oil tablets you could stomach. But sometimes, you just can’t predict a global pandemic the way you might be able to predict your opposing counsel’s arguments.

As Covid-19 changed our day-to-day lives and university experience, it also changed the entire operation of Peppercorn, and the experience that was promised to those who signed up to be part of the team. Communication was made more difficult and deadlines became an abstract concept.

There’s no sugar coating it—it’s been a bit of a shit show. The reality is that we are one of the smallest publications on campus, and therefore we have one of the smallest teams (I dare you to ask each of them whether they knew the Law School even had a publication). So, I want to take this opportunity to thank the team, the contributors, the artists, and even some friends who stepped in last minute to help pull this all together. Somehow, we’ve come out the other end with some fantastic material and incredible artwork.

While Peppercorn’s first edition of 2020 has become somewhat of a ‘Covid Special’, I’d like to think that a lot of the themed submissions are relevant not only to today: rather, I hope that reading some of these articles gives you all an insight into the way our future is changing on a grander scale, and the disproportionate impact of the pandemic on those less fortunate than us. There’s also a bunch of other material in here to help us escape this reality for a little bit, and to those contributors I would also like to extend a thank you. You’ve provided us the relief that ABC News 24 couldn’t.

I’d like to encourage anyone interested in contributing to next semester’s edition, no matter how much experience you may or may not have, to shoot us an email as lsspeppercorn@anu.edu.au.

Mehar Chawla Editor-in-Chief

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WHAT YOUR BARISTA IS THINKING BELLA DI MATTINA

My youngest colleague is fifteen, my oldest only thirty-two.

We wear colourful shirts that get brown coffee stains by 8 am. We’re fun, energetic. Frenetic, some might say. The suits arrive and queue up patiently, bleary-eyed and a little more tired than the day before. They start off slow, but their pace quickens as they try to match our cheerful conversation.

A lot of people probably think it’s fake cheer and that there’s nothing worse than a customer- facing job. But I love working with people. I start the day as bleary eyed as the rest of them, but by the fourth customer I feel like I’ve been on a rollercoaster. I love hearing about my customers’ lives—every person sharing a snippet of their day, like frames of an old news reel. Even the ones who don’t want to talk inevitably say something in their choice of tie, their facial expression or even their tone of voice as they order a ‘really really strong one today please.’

In many ways, a hospitality job is an enjoyable one. There is a pattern and a repetition to it that we can always rely on. A new task is a surprise and an excitement, a new food option a tiny challenge. You constantly meet new people from all walks of life, and you have the opportunity to make their day better by providing good, reliable service.

That said, I can’t wait to leave my milk-pouring, muffin-serving job behind me. I promise it’s not because you ordered a skim milk latte with half an extra shot and one Stevia. It’s because, while there is regularity in task and customer, nothing else can be relied on, not even my rights as a worker.

I’ve turned up for a five hour shift that’s turned into ten. A friend gets rostered for one day and works six. A two week job turns into three days. There are frantic messages late at night - “Can you work tomorrow????” There are no plans allowed for in this industry.

The bargaining power in your usual Facebook messenger planning convos like, “wanna see the new Bond film tonight?” are absent. How do you say‘no’ when the business is closed if you don’t acquiesce? These disorganised days have to be righted by somebody, lest the business go under and you’re scrambling to resurface with a new job to pay the bills. The worst bit is that, as the late night requests for an earlier start begin to stack up, you start to realise your boss knows this too. Every plan is upended by the question “don’t you want to make a bit of extra cash?” which (as all hospo workers know), is code for “can’t you see I’m trying to help you?” and “are you really going to give me a better excuse than what I’m offering you?”.

ARTWORK: STEPHANIE VIECELI

Except, there are so many wonderful plans behind every hospo worker waking up at the crack of dawn. Many of us are interned in this hospitality purgatory while seeking out other planes of existence. Some wait for visa applications, families holding their lungs full of a breath from another country. Another studies medicine or politics or nursing. Some are fresh out of school, figuring out what they want to do while they play their next round of DnD. A mere few are in it for the long run— getting hospitality certs at college and a coke habit at night (bar work only).

Because we are stuck in this holding pattern, length unknown, we have little bargaining power over our rosters. These amazing plans—medical degrees, travel overseas, family reunions or family care duties—also give our bosses amazing power.

They know we rely on them as we skill up or change our family situation. We also have little bargaining power over our pay.

While office workers bemoan their yearly reviews and let slip their well-earned promotion, reviews and raises do not exist here. There is no acceptable way to say - “hey!”.

A few of us, freed from our “casual worker” chains, get annual leave. We are owed notice if we are to be fired. This helps against the casual worker fear that any criticism or inflexibility will lead to a loss of shifts the next week.

But this does not mean you will be paid award wage. You will not sign a contract. You will not know what your award rate is.

You will not get paid for that training shift. You might have no set shifts. You might get your roster the night before. You may suddenly become manager, with no financial compensation for the added burden.

Despite our cheerful smiles and seemingly endless caffeineinduced energy, we eschew so many of the typical tropes of youth. We wake at 5.30 or 6am. We look up award wages and what they mean, and how to enforce them. We look for a better job instead. Dead on our feet by five, we dream early and hope for better careers to come.

ADVANCE AUSTRALIA FAIR

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AELXANDRA CELESTE ELGUE

Within weeks of the declaration of COVID-19 as a pandemic, thousands of employees have been stood down on ‘leave without pay’, following government measures to contain the outbreak. This sudden deluge of unemployment has caused considerable uncertainty among students—who make up at least a third of the casual workforce—and it is important that all workers be aware of their standing from a legal perspective, as well as their options moving forward.

Fortunately, some workplaces have chosen to continue to pay their employees at a base rate during this period, supported by the JobKeeper payment. Some jobs may also provide the option of working from home. While the Fair Work Commission does not yet include specific regulations regarding the obligations of employers to provide this option, employees should speak to their employers about the possibility of making such arrangements if required.

LEGALITY OF THE ACTION - THE FAIR WORK COMMISSION

Part-time and full-time workers may have more options available to them if their contract includes a requirement that their employer negotiate the terms of leave without pay. It is highly recommended during this uncertain time that you review your contract and verify what your rights may be in the circumstances.

Otherwise, it is important to note that part- time workers have access to sick leave and holidays, which can be used up to assist during this period. Part-time and full-time workers should also be aware that their leave will accrue as they are stood down, even if they are not paid during this period.

The measures undertaken by the government are indeed compliant with the provisions of the Fair Work Act (2009). The Act stipulates the conditions under which employers may ‘stand down on an unpaid basis an employee during a period in which the employee cannot usefully be employed because of one of the following circumstances’, including: ‘A stoppage of work for any cause for which the employer cannot reasonably be held responsible’.1 According to the Fair Work Commission, employers can stand down employees under this provision if they can demonstrate that: a) there is a stoppage of work; b) the employees to be stood down cannot be usefully employed; and c) the cause of the stoppage must also be one that the employers cannot be reasonably be held responsible for.2 Given the government-mandated closure of all non-essential services, many Australiansplaced on leave without pay will find that the above conditions have been met. It should be noted, however, that employers are generally not permitted to stand down employees because of a deterioration in business conditions, or because an employee has contracted COVID-19.3

YOUR RIGHTS AS A WORKER

Your individual rights regarding whether you can be stood down without pay will be largely dependent on your own contract. It is important to note that under the National Employment Standards, casual employees are not guaranteed the same benefits as part-time or full-time employees, such as paid sick or carer’s leave entitlements. This means that the high rates of casual student employees have no financial protections for the hours they cannot work.

OPTIONS MOVING FORWARD

Although employers do have legal standing when it comes to their right to dismiss employees when desired, all workers should know that they do have options regarding their financial situation. The government has announced new changes to Centrelink; Jobseeker Payments (formerly known as Newstart), Youth Allowance, Jobkeeper Payments, Parenting Payments, Farm Household allowance payment and Special Benefits payments have all been increased. The Centrelink website has also implemented new measures for newly unemployed Australians to streamline the application process and obtain access to their benefits more easily.

All workers should take this opportunity to open the lines of communication with employers, join their union and discuss with co-workers where they stand regarding the rights and options available during this turbulent time.

ARTWORK: STEPHANIE VIECELI

“Hole in the Wall” ARTIST: Bad Roommate

CAN I TAKE MY HOUSEMATE TO SMALL CLAIMS?

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AAMINA SULTANBAWA

It’s a cold winter morning and you cannot wait to have your first coffee of the day. You hobble to your fridge and grab the milk only to find three measly drops. Not a splash; not enough to satisfy your craving. You stand in the kitchen, pondering actually going to the grocery store and buying milk for the second time this week or simply seeking legal advice about suing your roommates for petty theft.

Before taking any legal steps over always getting left with the crusty end of the loaf, here are a couple of hot tips to get you through the rest of your lease.

TIP #1: Assess your own personal liabilities It takes two to tango, so before sending them the letter of demand, check yourself. Be honest and think about what your part in all this is. There are weeks that you might’ve rapidly consumed an entire loaf in three days because you forgot what happiness felt like and thought you’d find it in six Nutella sandwiches. Everybody has their days, everybody makes mistakes— including you!

work out where your housemate is at and then broach the subject. The important thing is when you finally decide to chat, you can refer to a couple of times where certain types of behaviour have annoyed you or left you frustrated. This does not mean interrogation of any kind, because this makes neither party particularly comfortable. For this reason, give them a couple of situations that you were not overly happy with and see how they respond.

TIP #2: Pick your battles Litigation is expensive but milk isn’t. There are some days that the milk will get to you and other days that you may get over it. If there are bigger concerns such as cleanliness or crossing of housemate boundaries, then this is something to consider chatting about. But as always, remember that shared living is a constant balance between compromise and conducive discussion. Pick what you want to chat about carefully.

TIP #6: Make lemonade out of the lemons your housemate gave you Chats with housemates can be taken in several ways depending on the person you are living with. If the person feels offended, they are unlikely to change their behaviour because they feel attacked and it might be on you to remedy the situation. If the person acknowledges that their behaviour has just not been up to scratch, you could have a really productive conversation about making some changes and arrangements. If the person is neither here nor there and has a pretty sub-par conversation with you and you believe that nothing will change, you may have to set some boundaries yourself. No matter what the outcome of the conversation is, there are always options: get a bar fridge for your own personal milk supply; come to terms with the fact that you might just need to live with people who do things a little different to you or; accept that you might just need to move the hell out of there.

TIP #3: Drop a few hints They’ve left crumbs in the butter, so maybe you can drop a few hints too. Well-intentioned gentle reminders are not bad. Avoid harsh tones or unnecessary sarcasm because you never know if you are catching someone on an off-day.

TIP #4: Know your opponent Understand the person you are living with. You have probably been living with them anywhere between a few weeks to a few months, so it is fair to say you have a rough idea of their routine.

We’re not talking what their favourite colour is, but at a minimum, how they generally tend to function on a day-to-day basis. For this reason, maybe recognise that they froth a litre of milk for their three bowls of cereal a day and maybe make a mental note.

TIP #5: Submit all your evidence No one can read your mind, so there will come a point where being upfront will not be detrimental. The other tips recommend that you initially be passive so you can read the situation. You can

Sharing houses can often bring people with different habits, different attitudes and different values under one roof. Whether you are living with your best mates or total strangers, there are some consistent issues, petty or not, that will affect you throughout a rental agreement. Like any problem, some people might view it as a big deal and others a minor thing that is not worth talking about.

These situations are tricky and rightfully so. Take everyday as it comes and give people the benefit of the doubt. At the end of it all, don’t cry over spilt milk.

ARTWORK: STEPHANIE VIECELI

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PANDEMIC OF POPULISM: RULE OF LAW IN HUNGARY BELLA DI MATTINA

As those of us in Australia scrutinize the Coronavirus tracking app, spare a thought for those in Hungary, the central european country known for its democratic backsliding.1 Earlier in April, the Hungarian Prime Minister Victor Orban passed laws allowing him to rule by emergency decree—indefinitely.2 It’s not the first decision Orban has made in his fight against liberal rule of law, but until now there was some cause for hope. We can only speculate what this latest move means for Hungarians persecuted under Orban’s repressive regime.

In the past years, multinational Non-Governmental Organisations and intergovernmental organisations have decried Orban’s alleged ‘democratic backsliding’, which he argues are essential for the Hungarian community.

His moves have included severe gerrymandering,3 constitutional amendments, stacking constitutional courts with allies,4 and allowing cronies to slowly buy up the Hungarian press.5 This has all resulted in attaining a ‘supermajority,’ which ensures constitutional amendments pass parliament without any scrutiny. Orban sees his power plays differently—as an ‘illiberal democracy’ which prioritizes the Hungarian community over European Union (EU) interests.6 This explains why his reforms have hit Hungarian minorities—refugees, Roma and the LGBT community—particularly hard. He has rallied against the refugee crisis and used it to draw support for his racist views. Dismantling every check and balance available in order to dismantle Hungarian rule of law, institutions such as Hungarian Helsinki Committee and Freedom House have been sounding the alarm since his leadership began in 2010.

The “Draft Law on Protecting Against Coronavirus” extends the state of emergency and accentuates Orban’s already authoritarian powers, removing the last semblances of checks and balances. It allows Orban to suspend any existing laws or create new ones that will receive the de facto approval of the parliament.7 It also suspends all potential by-elections and centralises power which was previously in the hands of more moderate mayors. These changes include laws to punish those who ‘distort the truth’ with prison time. The removal of press freedoms has caused particular concern, with doctors at underfunded public hospitals now afraid to speak to Hungarian journalists.8 Overall, the laws prevent any dissent to Orban’s reign, either from the parliament, courts, executive or the press.

The laws have also continued the persecution of minorities in Hungary, and prevented positive changes from reaping rewards. One of the first new laws under Orban’s extended state of emergency prohibits changes to birth certificates for transgender Hungarians.9 His rescinding of mayoral powers will have particular impact in District 6, a quarter in Budapest with

a colourful demography, which recently elected a pro-democracy pro-LGBT mayor.10 The election was considered one of the first gains against Orban and his party, Fidesz. Further elections of democrats at a local level are now completely inhibited by Orban’s state

of emergency. This means that small local gains made in past elections cannot be repeated any time soon.

This democratic backsliding—part of a wider challenge facing many central and eastern EU member states—has finally led to some decisive action in Brussels. It currently faces proceedings under Article 7 of the EU Treaty for deviating from the core values of the EU—values which are highly scrutinised and are a condition of entry to the EU. The result of Article 7 could mean the suspension of some EU member rights. Hungary also faces continual denigration in the media, from the EU’s powerful member states such as Germany and France, and from European Parliament parties such as the Greens, Renew Europe and the Socialists and Democrats. With Orban’s view of European solidarity and liberalism as counter to Hungarian interests, it is doubtful such attacks will stop his steamrolling of Hungarian rule of law or the denigration of minority rights.

1 Matthijs Bogaards, “De-democratization in Hungary: diffusely defective democracy” (2018) Democratization 25(8) 1481 - 1499.

2 Shaun Walker and Jennifer Rankin, “Hungary passes law that will let Orbán rule by decree” (The Guardian Online, 31 March 2020).

3 Transparency International, “Hungary’s Elections: free but not fair” (Web page, 4 April 2014) <https://www.transparency.org/news/feature/hungarys_elections_ free_but_not_fair.> 4 Amnesty International, “Hungary: Fearing the Unknown - How Rising Control Is Undermining Judicial Independence in Hungary” (Web page, 6 April 2020) https://www.amnesty.org/en/documents/document/?indexNumber=eur27/2051/2020&language=en.

5 Amnesty International, “State media censors Amnesty and HRW” (Web page, 29 Novemberl 2019) <https://www.amnesty.org/en/latest/news/2019/11/hungary-state-media-censors-amnesty-and-hrw/>.

6 Yasmeen Serhan “The EU Watches as Hungary Kills Democracy” (The Atlantic, 2 April 2020) https://www.theatlantic.com/international/archive/2020/04/europe-hungary-viktor-orban-coronavirus-covid19-democracy/609313/.

7 Ibid.

8 “If we got anonymous testimony from doctors and nurses working in hospitals we would verify and publish. But now even if we know the information accurate, we have to think again as we don’t want to be accused of ‘distorting’ facts.”

Jamie Wiseman, “Crisis Point: Covid-19 intensifies challenge for independent media in Hungary” (International Press Institute, 18 May 2020) https://ipi.media/ crisis-pointcovid-19-intensifies-challenge-for-independent-media-in-hungary/.

9 Krisztina Kolos Orban, “Orban is using coronavirus to do what he’s always wanted – deny trans people their rights” (The Independent, 1 May 2020) https:// www.independent.co.uk/voices/coronavirus-hungary-orban-trans-gender-recognition-a9489576.html.

10 Valerie Hopkins, “Viktor Orban suffers blow in Budapest’s mayoral election” (Financial Times, 14 October 2019) https://www.ft.com/ content/61568722-ee01-11e9-bfa4b25f11f42901.

ARTWORK: STEPHANIE VIECELI

LAW SCHOOL: A 1ST, 3RD & 5TH YEAR PERSPECTIVE

1ST YEAR: ANNIE HUANG I’m not sure if every law student settled on their law degree the way I did, but in the weeks before my university offer expired, I sifted through almost every law article and video available online. Despite the majority of these “reliable” sources screaming a big fat NO, I clicked the accept button on my offer into ANU law and hoped for the best. Attending my lectures and seminars for the first time was both exciting and nerve-racking. I wasn’t sure what to expect and what was expected of me.

Settling into the first few weeks of university, I found that classes were very much student-driven and quite laid back. However, unlike high school, it demanded a lot more self-discipline and independent learning.

Before going into my degree, I was told that studying law involved “a lot” of reading, and I find that it is an underestimation because a) you can never run out of things to read, and b) reading it once or twice, personally, was never enough to actually develop an understanding of the judgments. I found this to be the case when I read the 97-page South Australia v Lampard-Trevorrow the night before my torts lecture, believing that I might be put on the spot to recite the ratios (which didn’t happen and hopefully will never happen over the next five years). While the case was incredibly fascinating, it also kept me awake till 3 o’clock the next morning.

Although I was initially nervous and confused as to how law school (and ANU) operates, being able to talk to teachers, staff and later-year students have helped me with adjusting to ANU. Hopefully in 2 years, I return from my European study abroad having found myself and be able to tackle the three textbook chapters and 12 cases assigned for that week with a little more tact.

3RD YEAR: FIA SANKOORIKAL At this stage in my law degree, the one thing that I am most proud of is figuring out how to study “smart” and not necessarily “hard”.

Managing the amount of readings that a law degree demands has become easier with every course that I’ve taken at uni, although, believe me—I’m still far from perfect!

Since my first year, I’ve had the great opportunity to get a glimpse into the real world outside of uni through working part-time at a law firm. From interacting with lawyers and being part of a professional legal environment, I’ve gained some valuable insights about the legal profession in the grand scheme of things. Mainly, that law school is not about cramming content into your mind and expecting yourself to recall it when you get into the workforce. When it comes to the real world, it’s your approach to problem-solving and your analytical skills that you refine whilst at uni that really counts.

Remembering the ratio in Donoghue v Stevenson, although admittedly a cool party trick, is not going to help you very much in your day-to-day professional life.

At the moment, the sheer breadth of the field of law overwhelms me and as I move further through the degree, I find myself feeling confused as to which area I want to practice in (or whether I want to practice at all!). I hope that by 5th year I’ve had a good go at some interesting and stimulating electives which guide me towards a path that I’m passionate about.

For now, I am quarantining back at home in Newcastle, hitting admin and corps textbooks instead of the beach. But hey, it’s not all bad. I’ve really mastered the art of reading with Netflix on in the background...

You know you love me, xoxo Good-faith girl.

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5TH YEAR: PRASAD SITHTHARANJAN The prestige of ‘Law School’ has definitely worn off by now. As much as us law students hate to admit it, many of us were influenced by the ‘Law School’ prestige when selecting our course preferences back in year 12. Who wouldn’t? Fast cars, sleek suits, fancy restaurants. But for many of us, what we got didn’t look like the package we ordered. For better or worse, as this image disappeared, so did many of my peers from law school enrolments.

In my personal case, would I say I regret choosing law? Probably not— I did develop a genuine interest (even if not reflected in my grades) and it had a profound impact on the way I view the world. My perception of humanity has evolved, and I often find myself relying on legal principles in my non-legal decision-making. At the same time, I accept that many other disciplines may also have shaped my understanding of the world, had I given them the opportunity.

I find happiness in seeing some of my friends on the cusp of commencing their legal careers, a feat they should undoubtedly be proud of. Some are applying their legal backgrounds to better humanity, exploring interest in areas as noble as civil justice. For others, the initial shine of being a lawyer has become tarnished, and they have developed an interest in the vast world outside the profession. Many have found greater interest outside the courtroom in areas ranging from banking to public service. In my case, I developed an interest in management consulting as a profession, as I prefer the ability to provide holistic advice beyond the legal angle.

Although the prestige of law over other disciplines has eroded, I have grown to appreciate the relevance we play in this vast world. The initial narrow focus of being a ‘lawyer’ did not do justice to the universe of professions and industries we are able to contribute to. [AS3] The shiny legal career we all once anticipated might not have eventuated, but our law degrees still provided us the tools to venture into any territory.

I may have spent the past five years complaining, yet as the end nears there is only one thought on my mind: I will miss Law School.

ARTWORK: STEPHANIE VIECELI

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THE STORY OF DEATHS IN CUSTODY IN AUSTRALIA AFTER THE ROYAL COMMISSION TAYNISSA VAKEESWARAN WARNING: The following piece mentions the names of deceased Aboriginal and Torres Strait Islander persons

The Black Lives Matter (BLM) demonstrations of 2020 began in Minneapolis on May 26, and within a matter of weeks had spread to every continent. The unprecedented universality of the movement demonstrates that, across all geographic borders, systems of justice are failing to address ubiquitous racist structures.

The BLM movement initially originated in 2013 in New York, as a

response to the acquittal of George Zimmerman for the murder of 18-year-old Trayvon Martin. Founded by Opal Tometi, Alicia Garza and Patrisse Cullors, the movement seeks to address state-sanctioned violence committed against Black people. Since then, the murder of George Floyd in the United States (US) sparked a new wave of protests. In Australia, similar protests have been held in each state—both to show solidarity, and to draw attention to the systematic violence committed against Aboriginal and Torres Strait Islanders. As Floyd’s death spearheaded the BLM movement in the US, the parallel death of 26-year-old David Dungay Jr similarly triggered the protests in Australia.

In Sydney’s Long Bay jail in 2015, Dungay was apprehended, held down, and chemically sedated by guards to stop him eating biscuits. He died shortly after, expressing 12 times that he could not breathe.1 Dungay’s situation is reflective of the key factors contributing to Aboriginal deaths in custody, noted in the 1991 Royal Commission (RCIADIC).2 The factors which resulted in his death are characteristic of the common practices which are often attributed to the deaths of other Aboriginal people in custody; prison guards and police officers violating protocols, the use of excessive force, and a failure to provide necessary medical attention. In Dungay’s case, officers neglected to care for his diabetes, show any concern for his deteriorating cognitive capacity, or treat those injuries acquired while in their custody. Moreover, police have rarely been held accountable after such incidents— something which isfinally attracting public criticism.3 The treatment of Aboriginal people in custody was one of the main concerns of the BLM Australian movement. Since 1989, police have fatally shot 4 Aboriginal people, including one woman and one 16-year-old.4 None of the victims carried firearms, and all had a known history of mental illness. No police officers were charged, and the police coroner declared all shootings were necessary in self-defence. 5 A further 434 Aboriginal people have died in State care in police custody since 1991 and no officers have been charged.5 Any life lost under State care is abhorrent and indicative of a failure to provide the requisite duty of care owed to prisoners. Those under police custody have already been deprived of their independent civil liberties and are completely beholden to those responsible for their supervision. In 1991, RCIADIC identified and condemned the factors associated with such incidences of State violence.6 While it is important to acknowledge that a lot has changed since the publication of this seminal (and long overdue) legal research, evidence demonstrates that rates are continuing to rise, and reform remain inadequate.

PROGRESS SINCE THE ROYAL COMMISSION Between 1990 and 1995, Indigenous people were 16.5 times—about 126%—more likely to die in custody than non-Indigenous people.7 However, after a significant drop in the rate between 1999–2000 and 2005–2006,8 Aboriginal people have been less likely than non-indigenous people to die in prison custody. Between 1991–1992 and 2015–2016, Aboriginal deaths in custody range from between 5 and 36 per cent across all states and territories, except the Northern Territory, which has an outlier of 73 per cent.9 Since 2004, the death rate of Indigenous prisoners has remained proportionally lower than non-indigenous prisoners, although the actual number of deaths may suggest otherwise. This dissonance may come from the fact that while the proportion of Indigenous deaths have lowered, the rates of arrest and imprisonment have increased.10 Further progress found by RCIADIC is that the mean age at death for Indigenous prisoners was significantly lower than that of non-indigenous prisoners. Though that gap has been closing, in 2016 there was still a large 7.5-year gap between mean ages of death.

Although this may attest to an improvement of the situation of Indigenous peoples since RCIADIC, the statistics suggest the situation has gotten worse. Between 1 January 1980 and 31 May 1989, RCIADIC found that 99 Aboriginal people died in police custody.11 However, between 2010 and 2019 this number rose to 140.12 Following the exclusion of deaths which occur in the course of police pursuit from the definition of ‘deaths in custody’, it is difficult to assert this figure with much empirical confidence.13 In 1989 the definition of ‘death in custody’ was altered to only include those which took place in institutional settings such as under arrest or detention.

What also must be considered is the cause of death. For Aboriginal people, 51% of deaths resulted from external trauma and 62% of those were sustained during motor vehicle pursuits with police. This rate was similar in non-Indigenous counterparts. However, the second largest cause of death— natural causes (21%)— showed a large discrepancy between Aboriginal and non-indigenous rates. Only 8% of non-indigenous deaths in police custody resulted from natural causes. Aboriginal deaths resulting from gunshot wounds were notably smaller than that of non-indigenous people in police custody.

These statistics closely mirror the analysis of the first Royal Commission, however the rise in rate of non-Indigenous deaths has increased at a faster rate than Aboriginal Australians. Ultimately, the statistics suggest that the situation for Aboriginal Australians is much the same as it was in 1991, and in some ways, worse.

The BLM movement in Australia is a call for awareness, public mobilisation and state accountability to save lives of future Aboriginal men, women and children. For too long, officers who have committed such atrocities have been exonerated—even those caught on camera. An officer who tripped a 17-year-old Aboriginal child, leading to him fall-face first onto concrete, underwent under no investigation and retains his job with ‘restricted duties’.14 The harrowing video then shows three additional officers pinning the minor to the ground as he moans in pain. Most recently, a fourmonth-old baby died when a 21-year-old mother was arrested at her house. Reports found that police repeatedly ignored her requests to remain with the infant, and the child was left in inadequate care.15

Once again, no officers were held culpable.

The complete disregard for our First Nations’ population serves to reflect the deeply ingrained racial targeting which has persisted through successive governments.

1 https://www.theguardian.com/australia-news/2020/jun/11/the-story-of-david-dungay-andan-indigenous-death-in-custody 2 https://www.theguardian.com/australia-news/2020/jun/06/aboriginal-deaths-in-custody-434have-died-since-1991-new-data-shows 3 https://www.theguardian.com/australia-news/2020/jun/11/the-story-of-david-dungay-andan-indigenous-death-in-custody 4 https://humanrights.gov.au/our-work/indigenous-deaths-custody-chapter-6-police-practices 5 https://humanrights.gov.au/our-work/indigenous-deaths-custody-chapter-6-police-practices 6 https://www.theguardian.com/australia-news/2020/jun/06/aborignal-deaths-in-custody-434have-died-since-1991-new-data-shows 7 https://humanrights.gov.au/our-work/indigenous-deaths-custody-chapter-3-comparison-indigenous-and-non-indigenous-deaths 8 https://www.aic.gov.au/sites/default/files/2020-05/sb17_indigenous_deaths_in_custody_-_25_years_since_the_rciadic_210219.pdf 9 https://www.aic.gov.au/sites/default/files/2020-05/sb17_indigenous_deaths_in_custody_-_25_years_since_the_rciadic_210219.pdf p 3 10 https://www.aic.gov.au/sites/default/files/2020-05/sb17_indigenous_deaths_in_custody_-_25_years_since_the_rciadic_210219.pdf p1 p 4 11 http://www.austlii.edu.au/au/other/IndigLRes/rciadic/national/vol1/67.html 12 https://www.theguardian.com/australia-news/ng-interactive/2018/aug/28/deaths-inside-indigenous-australian-deaths-in-custody 13 https://www.abc.net.au/news/2020-06-17/advocates-hit-back-at-push-to-change-death-incustody-definition/12363750 14 https://www.smh.com.au/national/nsw-police-officer-on-restricted-duties-after-incident-with-aboriginal-teen-20200602-p54yna. html 15 https://www.dailymail.co.uk/news/article-8416227/Aboriginal-mother-NT-beggedpolice-not-separated-baby-hours-child-died. html

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Four ways to ensure you don’t ‘accidentally’ murder your partner in lockdown ANONYMOUS

2020 has been a testing year,

and some of you may have made it even harder by deciding it was the perfect time to move in with your significant other/s. Whilst this may have seemed like a good idea at the time, you probably hadn’t predicted that a government-sanctioned lockdown would trap you and your partner in the house for what feels like forever. For example, I moved in with my partner this year. I did not foresee that I would have to spend all of my time in a 20 square foot studio with him. Whilst we did not break up (yay!), it was not exactly a walk in the park.

Here are my top-4 tricks not to murder your partner/s:

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1.

Write up a lockdown contract detailing who spends time in which corner of your home

I’m kidding, (although I got extremely close to drafting one). Instead, having an open and frank discussion concerning our schedules and plans for the day was what kept me sane. I was working from home during this time, so we would designate a corner of our small apartment to one another and made sure we didn’t get in each other’s way. Having things to do without each other meant that we didn’t overload on ‘couple time’. As such, we never actually got sick of each other, and appreciated each other’s company when the times got tough.

2.

Invest in headphones (for your partner/s)

There was many a time when I wanted to destroy my partner’s Spotify playlist. There’s only so much Alt-J one person can take. Instead of acting on my technologically violent thoughts, I decided to be the bigger person and get him a pair of headphones instead. He was able to listen to all the indie trash he wanted to, while I got to remain blissfully unaware of how bland my partner’s taste in music could get. Further, I got to listen to my lectures without wearing pesky headphones and he couldn’t hear them.

3.

Try to line up your sleep schedules

There’s nothing worse than becoming nocturnal and then one day waking up to the sun in your face because your partner has decided that ‘it’s bad for you’ or that ‘you need to fix your sleep schedule’. As I hissed at the sun and at my partner, I decided there’s only one solution—he needs to become nocturnal with me. I tempt him with more Netflix and ungodly bedtimes until he stoops to my alternative sleep schedule. In reality, I totally could have fixed my sleep schedule, especially because I was working 9-5 on some days. The main thing is to talk to your partner and agree on what works best for the relationship.

4.

Do not eat the last cookie in the packet

Don’t do it. No matter how tempting, do not eat the last treat. Even if there are no other snacks in your home, and this is final one, DO NOT DO IT! I assure you that your partner was also totally saving it for themselves. If they find out later that you ate it, you’re in trouble. So, get ahead of the game. Be kind to your partner, offer them the last cookie. Granted, this tip is oddly specific, but I’m sure you could replace cookie with whatever food your partner/s like. Treating each other with kindness is one of the ways to get through these hard times.

ARTWORK: STEPHANIE VIECELI

17

WOMEN: The Economy’s Babysitters?

DIVA CHOUDHARY

“Researchers have found sex differences in every tissue and organ system in the human body.”

— Caroline Criado Perez, author of “Invisible Women” Coronavirus is not just a major health issue but also a major issue for women around the world. Unfortunately, both policymakers and the society are not accepting the disproportionate effect it has had on women. Coronavirus gave new dimensions to the “work from home revolution”. For some people it is a relaxed and enjoyable time, but for others, it is filled with anxieties and practical difficulties.

According to the findings of the 2019 Household, Income and Labour Dynamics Australia (HILDA) Survey, women do most of the household chores.1 The HILDA survey also found that women in childless relationships, who earned the same money as their partner, were doing approximately four hours more household chores per week. If there are children in the house, then the women’s housework adds up to seven hours. Dr Leah Ruppanner, an associate professor of sociology at the University of Melbourne, specialising in family and gender dynamics, has said that many couples are negotiating among themselves and deciding whose career can take a hit.2 With schools and child care centres shut, the housework for couples has increased tremendously. As patriarchal norms are internalized in the societal mindset, it is the women whose careers are mostly taking the hit. According to Australia’s Gender Pay Gap Statistics, women earn on average $200 less than men per week. Also, they spend 64 per cent of their average weekly time on unpaid care work, compared to 36 per cent for men.3 Thus, from a household economy imperative, generally women have made their career take a backseat during Covid-19, to pave the way for men to be able to work uninterrupted.

This ensures easier payment of household bills.

As per data by the Australian Bureau of Statics, 82% of single parent households in Australia are headed

by women and many women in these households who have no help,4 are finding it extremely tough to cope with the new situation.

In addition to the added pressure of work and childcare, there is the rise in domestic violence concerns. Prime Minister Scott Morrison reported a 75 percent increase in google searches about domestic violence.5 France and Malaysia also reported a rise in domestic violence cases since the onset of the Covid-19 pandemic. The quarantine measures have led to increases in stress, alcohol consumption and financial difficulties.6 These are deemed triggers of domestic violence. As more women than men face domestic violence around the world, they are more vulnerable during this pandemic.

Hence, the pandemic has put the mental and physical health of women at utmost risk.

But, we as a society have to strive not to reimpose the compulsions that women faced in the past.

A number of steps can be taken to tackle the pandemic without a major chunk of the population being disproportionately affected. Policymakers and the government need to have a gendered response to the pandemic. The government needs a policy that keeps most women in the labour force. Employers need to provide support to the female staff who are juggling between household chores, home schooling, caring for the elderly and so on. The employers also need to have a realistic performance expectation from both men and women, so that both can contribute to the household chores equally.

A progressive example is our own Australian National University, which has stated that if employees can manage 25 hours per week instead of 35 hours per week, it will be considered a full working week for remuneration purposes.7 Lastly, employers should give a special consideration to primary caregivers and free them of any overly burdensome work compulsions which are likely to hinder their household responsibilities.

We should be using this experience to open up a discussion about gender differences, especially as they are heightened during demanding times like pandemics. This is especially true about government responses to issues like domestic violence.

As the famous Indian author Arundhati Roy put it, “Historically, pandemics have forced humans to break with the past and imagine their world anew. We can choose to walk through it dragging the carcasses of our prejudice and dead ideas or we can walk through it, ready to imagine another world”.

1 https://melbourneinstitute. unimelb.edu.au/ 2 https://www.abc.net.au/ 3 https://www.wgea.gov.au/ 4 https://www.abs.gov.au/ 5 https://www.lawsonlegal. com.au/ 6 https://www.ncbi.nlm.nih.gov/ 7 https://www.anu.edu.au/covid19-advice/adapting-how-we-work

ARTWORK: STEPHANIE VIECELI

18

I HOLD YOU IN CONTEMPT OF SPORT JOSH AMOS

Know nothing about sports? Have friends who love sport and insist that you become accustomed to their way of life? Had enough of being put on trial by said ‘sport-loving friends’ for not being interested in the thing they hold most dear? Fear not oh un-sporty one. This guide will walk you through the things to say—and most importantly, the things not to say—while you face trial for sports treason.

DID YOU CATCH THE GAME LAST NIGHT? Never say this. I cannot emphasis this enough. In all likelihood there wasn’t even a game last night, but what’s worse than that is that there was, and you didn’t watch.

Who played? Who won? What was the score? A thousand questions you almost certainly don’t have the answer to. Do not perjure yourself, the jury will not look kindly on this kind of behaviour.

ALWAYS ROOT FOR THE UNDERDOG. I find that in most situations, there will be friends supporting both teams. So unless you need to appease a specific juror, a safe bet is always to support the team deemed least likely to win, or the least hated team. Everyone loves an underdog. Now obviously this requires you to know who is playing and what the odds are, information you likely don’t have on hand, but lucky for you the wonders of modern technology mean that this information is only click away. Never go to trial without exercising your due diligence.

GREAT TOUCHDOWN IN THE SCORE ZONE. The worst thing you can do is pretend you know what’s happening. Any good sports prosecutor worth their salt will see straight through that. There is nothing more infuriating than the casual sports fan trying to engage in the technical jargon of a particular sport. Having said that, there are a few generic lines you can throw out when your back’s against the wall in a cross examination that may fool even the most diligent of juries. He’s been doing it all day ref! C’mon he’s plumb, you’d have to be blind not to see that! Surely that’s a foul! No need to know what any of these mean, just be confident in delivery. Fake it till you make it. Objection! Sustained.

never show up to court without a suit, so what makes you think its ok to show up to a sporting event without the proper fan gear. Ditch the shirt and tie and pick up the jersey and hat. Whilst not completely masking the fact that you are out of your depth, it’s all about putting your best foot forward.

First impressions matter, so make sure you buy the merch of at least one of the teams playing. And worst-case scenario, you’ll have great mug shots.

DRINK. AND CONFESS TO YOUR CRIMES. This is it. The last hurrah. The final stand. Your sporting Alamo.

All your other efforts are to no avail, the case is all but lost. This is the court you die on. With your fate all but sealed, grab a beer, or wine, or cider—really any alcoholic drink of your choosing— and make your plea. You don’t know sports, and you never will. You have committed sports blasphemy and that’s ok. So raise a glass, have a drink, and hope the alcoholic tendency of all your sporty friends reduces your sentence. It’s just a game after all.

DRESS TO IMPRESS. Just as important as what you say is what you wear. A lawyer would

ARTWORK: STEPHANIE VIECELI

ANDREW RAY & BRIDIE ADAMS

SHOULD WE AUTOMATE HUMANITY? The use of automated decision-making under the Migration Act

ARTWORK: STEPHANIE VIECELI

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While machine learning algorithms possess the potential to increase efficiency in government decision-making, the rigid nature of automation creates difficulties for accessibility and transparency of government. Automation also challenges traditional conceptions of the role of decision-makers, especially in the case of compassionate, discretionary decisions, such as migration cases. Automated decisions, as in a ‘computerised process which uses coded logic or algorithms to make a decision’,1 have been implemented widely in the public sector.2 With the Department of Home Affairs wanting 90% of all visa applications to be ‘fully automated’ 3 and the Migration Act currently allowing for automated decision-making systems,4 it is crucial that we ensure that any use of machine learning algorithms (or automated decision-making tools more broadly) is reviewable, through both judicial and merits review before it is further utilised in the migration law context.

Considering the volume of visa applications received every year, having an automated process in place to decide whether a person satisfies the requirements of a specific visa promotes faster, more efficient decision-making in the migration context. In turn, this reduces costs and allows the Department to better focus resources where they are needed. It has also been argued that automation makes decisions fairer and more consistent, due to the neutral and unbiased nature of the program, however care needs to be taken in developing appropriate training data sets to prevent embedded or hidden bias.5 This is particularly critical as the bias may be hidden from the public and government and could potentially impact hundreds of thousands of individuals.

JUDICIAL & MERITS REVIEW REQUIREMENTS & MACHINE LEARNING ALGORITHMS Both the judicial and merits review processes require original decision-makers to provide a statement of reasons for the initial decision.6 This highlights the need for transparency in how the decision was made via a statement of reasons from the algorithm, so the decision can be adequately challenged and reviewed. However, this generation of reasons is problematic for a self-learning (or data-driven) program, as the so-called “black box effect” prevents external observers from viewing and subsequently understanding the process followed by the decision-making algorithm.7 In this way, as it currently stands, machine learning algorithms likely cannot provide sufficiently detailed statements of reasons, meaning that decisions made by such a system would not be reviewable under either judicial or merits review. Significant technological developments must be made so a machine-learning system can provide reasons for its decisions. Until such technological development occurs, machine learning algorithms should only be used to provide recommendations to human decision-makers.

A NEED FOR HUMANITY IN MIGRATION ACT DECISIONS? Additionally, automated decision-making has no room for exceptional cases, compassion or discretion. Whereas, migration cases typically require value-based judgements, such as deciding whether a person is a ‘danger to the Australian community’ or is ‘of good character’.8 These value judgments may require (or in any event possibly should require) decisions to be made only by human decision-makers, who can balance inherently human considerations of compassion and mercy when assessing migration matters.

This would be of even greater importance in the case of humanitarian visas, where denial of an application could potentially lead to loss of life. This is a further consideration that should be factored in by government when assessing whether decisions under the Migration Act should be automated, and if they are automated, whether certain types of decisions should remain in the hands of human decision-makers.

CONCLUSION AND RECOMMENDATIONS FOR REFORM However, once developments in technology allow the production of a statement of reasons, machine learning algorithms can be employed for executive decision-making (noting that these authors would argue that at least in the case of humanitarian visas, decisions should remain in the hands of humans). However, where an automated decision is successfully challenged, it should be remade by a human decision-maker. This is because if a decision was challenged and then sent back to the original automated decision-maker to redecide, it would likely reaffirm the original decision due to the same algorithm being employed.9 solution to this problem would be the inclusion in the authorisation provision section 495A(1) of the Migration Act (or generally in the authorisation provisions of all government acts) a requirement for a human the decision when the court orders the decision to be remade.10

* This piece reflects the view of the authors and does not necessarily represent the view of their employers.

1 Justice Melissa Perry, ‘iDecide: Digital Pathways to Decision’, Law Council of Australia, 2019 CPD Immigration Law Conference, Canberra, 21-23 March <https:// www.fedcourt.gov.au/digital-law-library/judges-speeches/justice-perry/perry-j-20190321#_ftnref2>.

2 Some examples include mobile phone detection cameras and security systems at airports.

3 Justin Hendry, ‘DIBP searches for partner to process 90 percent of visas’, IT News, (Web Page, 25 September 2017) <https://www.itnews.com.au/news/dibp-searches-for-partner-to-process-90-percent-of-visas-474050>.

4 Migration Act 1958 (Cth) s 495A(1) (‘Migration Act’).

5 Monika Zalnieriute, Lyria Bennett Moses and George Williams, ‘The Rule of Law and Automation of Government Decision-Making’ (2019) Modern Law Review 1. See generally Andrew Ray, ‘Implications of the future use of machine learning in complex government decision-making in Australia’ (2020) 1(1) ANU Journal of Law and Technology 4.

6 Administrative Appeals Tribunal Act 1975 (Cth) s 28; Administrative Decisions (Judicial Review Act) 1977 (Cth) s 13. 7 Ray (n 5) 11.

8 Migration Act 1958 (Cth) ss 36(1C)(b), 501(6)(c); Justice Melissa Perry, ‘iDecide: Digital Pathways to Decision’, Law Council of Australia, 2019 CPD Immigration Law Conference, Canberra, 21-23 March https://www.fedcourt.gov.au/digital-law-library/judges-speeches/justice-perry/perry-j-20190321#_ftnref.

9 Ray (n 5) 10.

10 This approach has been adopted in the EU see Ray (n 5) 10.

ARTWORK: STEPHANIE VIECELI

3,185 KILOMETERS AWAY FROM HOME XIAO LIN KING

I have long been conscious of Aboriginal socio-economic disadvantage, but

it was not until I was on the ground working with Aboriginal clients in Kalgoorlie, Western Australia that I could see what that disadvantage actually looked like and its consequences in the legal system.

On the first day of my five-week Aurora internship with the Aboriginal Legal Service (ALS) in Kalgoorlie, I went to the Magistrates Court in Western Australia. I was shocked by the volume of cases the ALS had in one day. Every 15 minutes they were representing a different client, often having only received instructions 30 minutes prior to their court appearance. I came to realise this was normal practice. Many of the ALSâ&#x20AC;&#x2122; clients live in remote communities that are more 1000 km away from Kalgoorlie. Without access to reliable transport and mobile phones, communication between the ALS and their clients can be difficult.

In addition to these logistical barriers, there are significant language and cultural barriers to legal justice for Aboriginal people. At the Circuit Court, I noticed how culturally disconnected and uncomfortable many Aboriginal people felt in the western legal system. Clients frequently turned up unsure if they had court, unaware of what they had been charged with or its consequences.

During my internship, I was given more responsibility than I expected. One of my main tasks was disclosure reviews, which involved summarising and evaluating all of the evidence that the prosecution relied on in cases. This included reviewing police interviews and paying attention to whether caution was administered and understood by the accused properly. From this, I was able to gain a deeper insight into the power imbalance between an Aboriginal accused and police office.

This insight was further developed through tasks including prison visits, parole applications, taking instructions from clients and even a few procedural appearances in court. Before my placement, I had mainly thought about legal justice in relation to the adversarial court system. After seeing the absence of mental health resources ARTWORK: STEPHANIE VIECELI

in prison, the general lack of advocacy for prisonersâ&#x20AC;&#x2122; rights and assistance applying for parole, I was encouraged to think critically about how post-conviction institutions further impede Aboriginal prisoners from accessing justice.

I found the work at the ALS extremely fulfilling because it brought humanity into the law. Helping clients at the ALS was a confronting but rewarding experience that challenged me in many ways, because it involved understanding their specific socio-economic and cultural circumstances. I had the opportunity to know clients personally, build meaningful relationships with them and apply the legal skills that I have gained in law school. During the last week of my placement, I got a phone call from a client I had been assisting with a parole application. His parole had been denied, but he rang me to thank me for caring about him. Experiences like this at the ALS confirmed that I want to work directly with the people that I am advocating for. I believe that when thinking about solutions to Aboriginal social justice, it is crucial to include Aboriginal people in the conversation as equals.

If you are interested in Aboriginal social justice, I encourage you to gain experience at an Aboriginal Legal Service.

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ARTWORK: STEPHANIE VIECELI

PMS Jokes aren’t funny. Period.

Mehar Chawla & Marissa Parel

I was in primary school the first time I heard the term, when Katy Perry sang “You PMS like a bitch” in her hit song ‘Hot n’ Cold’. I remember being so preoccupied by the fact that the ‘b-word’ hadn’t been bleeped out, to take much note of what the phrase on the whole actually meant. That is, until it popped up again—this time by a classmate explaining the likely reason for why our teacher gave us more homework than usual. Then it came up again, when another student was explaining how his mum had yelled at him the night before.

For years, the acronym has been used cheaply in pop culture to describe a woman* expressing emotions some would view as commonplace: anger, irritability, sadness. In our social, economic and political structures, it has even been used as a justification for characterising women on the whole as emotionally unstable and unpredictable. Notably, as people have become aware of the derogatory nature of the phrase, its use in day-to-day culture has died down significantly. The issue with this, however, is that our outrage surrounding the use of the term has unintentionally discouraged further consideration of what it actually means. I guess “pre-menstrual syndroming like a bitch” doesn’t have as much of a ring to it.

PMS is a combination of emotional and physical symptoms that affect approximately 90% of women, usually after ovulation and before menstruation.1 Such symptoms can include, but are not limited to, cramping, bloating, headaches, fatigue, sore breasts, acne and various impacts on mood. These symptoms are usually mild or moderate. However, if symptoms become severe enough to the extent that they interrupt daily activities, women are encouraged to seek medical assistance. Some conditions, such as IBS, hypothyroidism, and pregnancy, have similar symptoms to PMS, making its identification all the more difficult.

Although problematic, the use of the term PMS meant that most people (even if superficially) knew it was a thing that existed and was related to the menstrual cycle.

In contrast, the related term ‘PMDD’ (post-menstrual dysphoric disorder) is rarely spoken about at all. This is unfortunate, because both are common medical conditions with varying levels of misinformation surrounding them.

PMDD is a chronic condition that can have a continuous, adverse impact on a woman’s quality of life. Although the cause of PMDD is unclear, it is understood as an extreme response to the changing hormone levels that occur during a woman’s cycle—essentially, the rise and fall of estrogen and progesterone levels. Symptoms of PMDD usually present 7-10 days before the start of a period.

These can include the physical symptoms of PMS but can also include stronger feelings of sadness or despair, tension or anxiety, lasting irritability or anger, panic

attacks, strong mood swings and trouble focusing. 2 For women with this severe ‘hormone sensitivity’, the impact on serotonin levels is so high that it almost mirrors other conditions like major depressive disorder, bipolar, or perimenopause (the years preceding menopause).3 As with PMS, this has implications for diagnosis and treatment.

A key difference in the symptoms is that women with PMDD have a complete resolution of symptoms when their period commences. If you are presenting physical and/or behavioural symptoms of PMDD but are unsure of whether you have it, medical experts recommend recording symptoms in a journal, along with the dates of when the symptoms started for the length of two full menstrual cycles. While there is no clear test to diagnose for PMDD, the timing of symptoms can be useful for medical practitioners to distinguish between PMDD and other medical conditions with similar symptoms.

In the modern era, we can imagine why it’s no longer feasible for a woman to simply ‘check out’ for a week every month. While many women just ‘deal with it’ in their own way— carrying around a heat pack on the train; popping a paracetamol or ibuprofen every few hours; sneaking a cheeky cry in the staff kitchen—the reality is that PMS and PMDD will undoubtedly interrupt their personal and professional life. Antidepressants are the most commonly prescribed method for reducing the impact of the emotional symptoms of both PMS and PMDD, but the results are mixed.

It is important to distinguish between the two conditions.

First, because discourse which seeks to find a ‘cure’ for PMS is ostensibly problematic: periods are a natural biological phenomenon for many people who menstruate, and if as a society we learn to accept this, we may be better able to cater for its ancillary effects in the school or work environment. Second, because a lack of understanding surrounding PMDD can lead to a misdiagnosis and improper treatment involving medication. Ultimately, no matter which is experienced, the varying severities of symptoms can often feel like ‘one week of hell and three weeks of cleaning up’.4 *The use of the word woman/women here refers to all people who menstruate 1 Sharon A Winer and Andrea J Rapkin, ‘Premenstrual disorders: prevalence, etiology and impact’ (2006) 2 ‘Premenstrual Dysphoric Disorder’ https://www.womenshealth.gov menstrual-cycle/ premenstrual-syndrome/premenstrual-dysphoric-disorder-pmdd 3 Robert F Casper, Patient education: Premenstrual syndrome (PMS) and premenstrual dysphoric disorder (PMDD) (Beyond the Basics) (2019) 4 ‘What is PMDD?’ https://iapmd.org/about-pmdd

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ARTIST: DYLAN MOONEY INSTA: @dylanmooney__

THE THE SNOWY SNOWY VALLEY’S VALLEY’S FLAMING FLAMING SUMMER SUMMER CAITLIN CAITLIN O’BRIEN O’BRIEN

The Snowy Valleys also endured COVID-19 like the rest of the world, but this is on the back of a horror summer filled with terror and raging flames. December-January in 2019- 20 was a chilling time to be a resident of the Snowy Valleys area. My family have lived in this area for two decades. I grew up there, did my schooling and socialising there, and will always call it home.

But this summer almost took all of that from me any many others. For some unlucky ones, it succeeded. A lot of the region is bushland or pine forests, perfectly dried from lack of rain and a scorching few months, allowing the fires to span across huge areas. I listened to the Rural Fire Service dispatch until the early hours of the morning from Chengdu, China— where I was travelling—just waiting to see if my house and beloved pets had perished this night or not. My family evacuated everything two separate times, with only hours to pack up their lives and find the cats. The winds kept changing, the temperatures rising, and the crews were tiring.

Some themselves had lost their property.

My valley was said to be doomed. If the wind changed, the flames would engulf the whole area and my Mum’s house would be inaccessible, let alone protectable. My Dad’s house in the neighbouring town of Adelong was said to be undefendable not long after the region’s fruit-bowl, Batlow, suffered the same fate. Meanwhile, my Grandma’s farm in East Gippsland had been battling fires for the better part of three months. For me, the majority of my family were faced with losing their homes, livelihood and animals—all while I prepared to embark on my once in a lifetime exchange semester.

We were the lucky ones. We did not lose our home, property or pets. The fire-front stopped two kilometres from my front doorstep, and five kilometres from Dad’s house. Others were not so lucky. I am still amazed at the strength of my community, who pulled together in the most frightening summer the region has ever seen.

Even though I was half a world away, I felt a part of it and appreciated the support of my community. I am grateful for the help of all engaged community members, the guys on the front line, and everyone running the show. would not have any place to call home without you. Although we lost many beautiful places, the people are what make the region so special in my heart. Rebuilding will take time, but I am proud to be a girl from the Snowies. I think that from now on, every summer will be approached with the knowledge learnt from 2020, and I don’t think the coming year will get any easier unless a radical change is made to prevent the devastating impacts of climate change.

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WHAT TO DO WHILE YOUâ&#x20AC;&#x2122;RE STUCK AT HOME DURING COVID-19 EVENT DAVID FERRELL

Well, it’s happening. We’re flattening the curve. Fighting the good fight.

Winning the war. Hiding at home with the lights off and the curtains drawn.

Crawling on the floor like church mice and pretending no one’s home when Corona comes a-knocking.

Uni’s gone digital, the lucky among us are working out of their inboxes, and, at the emphatic suggestion of the government and health authorities, we’re all staying at home. Beating Covid-19 by self-isolating seems like the easiest thing we’ve ever done by doing nothing. But nothing is a hard thing to do when you don’t know how long you’ll have to do it for. What can we do to fill the hours between the next Mad Max style raid on the toilet paper stash in the suburb over?

I mean, our subjects are still chugging along online, but most of us had forgotten lectures were physical events in the first place. These days if you’re not banking on a frantic week 10 catch-up, you get funny looks.

So what are we to do? Here are some suggestions from myself and your fellow Law-student hermits: Bust open the old textbooks and do some light reading. The old FAL textbook, Laying Down the Law, actually has really interesting sections on all sorts of things about law school and the law. Maybe work on your legal problem solving (p. 577, 10th edition). Brush up on your common law history (p. 17, 10th edition). Or maybe your principles of statutory interpretation (p. 339, 10th edition). If you’re doing Admin law, this might sooner or later come in handy.

Skim read the Wattle page of that subject you haven’t looked at since you signed up for it. Couldn’t hurt to survey the field before the hard mid-sem dash. Wait— tutes didn’t start till week 4… right?

Reading! Somewhere along the way a lot of us fell out of the habit of reading for pleasure. Novels, non-fiction, whatever. Pick up those books you’ve stockpiled and finish them off once and for all. Not only will you then be able to display them unashamedly, but you’ll come out of isolation with a new developed and cultured verbiage, as logorrheic as it is circumlocutory.

on YouTube and follow along with some old Jazzercise video from the 70s, or just check Google for what works? And if you’re a heavy lifter, don’t fret. An intense callisthenic routine could be a real surprise to the muscles— a jolt from a different kind of pressure to push them out of that plateau. Youtuber Athlean-X has just released a video workout plan for this very scenario!

Tap into your artistic side. One the easiest ways to stay engaged and driven is to have a project to occupy your mind. Something challenging and technical— a task that a lesser version of you would fail due to sloth or inattention. Try picking up the paints or a pencil and use a notebook to create a new portfolio; challenge yourself to come up with a unique style, or just generally spend some time creating.

Teach yourself something like a language or an instrument. With a daily 15-minute commitment of directed attention, it’s surprising how much you can get done. Make use of the wealth of tutorials available on the internet to pick something and learn it!

Give a go to writing as well! We spend so much time writing for other people in our degrees, why not take the time to write for ourselves? A story, a poem, a journal. If you have something to say or a topic you want to investigate why not write an article? Send it through to any of our editors at Peppercorn and we’ll be eager to see it published! From helping people to answer the question ‘which section of the Constitution are you?’ to deep diving into the academic rigour of your topic of choice, if that’s the way your energies flow, let them out!

In all seriousness, study and uni form the structure for many of our lives, and while the falling away of that structure can seem at first like a like a bit of a holiday, pretty soon it can take its toll. It’s important that we all take the pandemic measures seriously, no matter our age and supposed susceptibility. As Director-General of WHO, Tedros Adhanom Ghebreyesus, warned us on recently, “You are not invincible, this virus could put you in hospital for weeks or even kill you. Even if you don’t get sick the choices you make about where you go could be the difference between life and death for someone else.”

Have a group study session with your friends across the magical space of the inter-webs. No, seriously. This is a surprisingly effective way to stay on-task, purposeful, and meaningfully social while stuck in the confines of our homes. I say, call up a digital DJ stream and have an isolation rave. On the subject of digital connection—

But while we’re keeping ourselves and others safe by staying inside, let us work to keep ourselves safe from staying inside. If you’re ever feeling a little lost in the cavernous jungle between those same 4 walls, there are some places you can go:

Be creative with your remote relationships! Video calls are a great way of being with people without risking infection. Ben Yates recommends reaching out to old friends. After all, everyone is a bit bored now, so take the opportunity to reconnect with people you’ve lost contact with.

Andy Jin suggests a virtual wine night with the gals, a COD warzone sesh with the boiz or just binging your fav TV series together!

For distress or immediate assistance, call the ACT Mental Health Assessment and Treatment Team on 6205 1065 or 1800 629 354 or contact Lifeline on 13 11 14.

If it is an emergency, please call 000. Or for afterhours support for ANU Students and Staff you can contact the University Crisis Line (5pm-9am / 24 hours on weekends and public holidays) Phone: 1300 050 327 or SMS text 0488 884 170.

Headspace is available physically and remotely via email, phone, their website, and appointment to help with mental health and wellbeing, physical and sexual health, alcohol and other drug services, as well as work and study assistance. There’s the Canberra Headspace centre for those still in town, and for those elsewhere the nearby centres can be found on the Headspace website.

Streaming. Is this one even worth mentioning? This is what was keeping me at home in the first place. But for something new, Max Claessens suggests Broadway HD, a website providing 7-days of free streaming from the Broadway Theatre in NYC straight to your quarantine shelter! Gather some digital folks and watch it in parallel. Mayhaps I smell a drinking game…?

Crack open your Wattle and get working on your courses. Watch those lectures. Re-watch them to be sure. Make up a checklist and do all that reading you mourned powerlessly as it came, slid past, and went.

Do some extra research even. Get to know the field. And if you’ve got some assignments coming up soon get a head start on them. Never hurts. (Whether this one was a joke or not is up to you.)

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Work out at home! Many of us mourn the seemingly inevitable loss of our gym seshes. And with good reason. Regular exercise is very important for mood, mental health, and lifestyle in general. Knowing that Covid can stay active on surfaces for 9-days, we whisper a quick prayer to Zyzz and brave the risk in our Sisyphean struggle for gains.

Every day is immune-system day. But there is an alternative. Exercise at home can satisfy light and heavy demands. Yoga and stretching, 10 minutes of jump-rope or star jumps, handstand pushups. Why not hop

ARTWORK: STEPHANIE VIECELI

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MARRIAGE EQUALITY AS A MAN’S LEGACY: REFERENDUMS & PLEBISCITES CW: Homophobia, Mental Health, Mentions of Suicide THOMAS BENNETT

When marriage equality was achieved in the Republic of Ireland, the scenes of jubilation were striking. Crowds at Dublin Castle cheered, cried and embraced. The world took note. Not because Ireland seemed, at last, to be embracing its place as a contemporary European nation, but because those seeking change—an overwhelming majority—had been to hell and back to ensure the ensuing public debate was as painless as possible for the mental wellbeing of Ireland’s queer community.

Governments and activists worked for hand in glove to attempt to pass the legislation without the need for constitutional change. Ultimately, Cúirt Uachtarach na hÉireann—the Irish Supreme Court— provided clarity. The Irish Constitution did not cater to same-sex marriage. The bill could only be brought through a public vote at a referendum.

Crestfallen, advocates for change began the process of asking all of Ireland’s citizens for permission to marry the person they loved.

It was often a humiliating process, with the usual comparisons thrown around: If two men or two women, why not three men, or a horse? If a boy has two mothers, who’ll teach him to kick a football? The scare campaign didn’t amount to much at the ballot box. The thirty-fourth amendment to the constitution was passed with a majority of over sixty-two percent. All counties but one said yes to change.

So when the Turnbull Government announced they would be sticking to their conservtive guns and holding a public vote on a couple’s right to marry, Irish advocates were baffled.

I was working in parliament at the time, as a staffer for former Greens leader Richard Di Natale. I remember the Irish campaigner, Teirnan Brady, being one of the first voices against the move.1 Firstly, he noted that Australia does not have a constitutional barrier to achieving this reform as his homeland did. In a mere afternoon, the matter could be debated and passed in the parliament.

Secondly, and more starkly, was the impact the vote would have on those that had the most to gain. Same-sex couples in Ireland, said Brady, had been asked to go to their friends and families, their communities, their counties, and ask for permission to marry.

This was a luxury that heterosexual couples are given freely. The process had been demoralising, and they could not simply have this addressed in the parliament as Australians could and were entitled to. What’s more, it had given opponents a megaphone to preach unhinged hatred. They denigrated the work of same-sex parents and questioned their capacity to love their children. Imagine, implored Brady, that you are a teenager discovering you’re same-sex attracted in this climate? 2 It’s hard to read Malcolm Turnbull’s memoir, A Bigger Picture, and not look back on the days of that campaign with sadness.

ARTWORK: STEPHANIE VIECELI

It’s harder still not to feel angry as he takes credit for ‘getting it done.’ It’s hard to hear him accuse MPs and senators that opposed a public vote as trying to ‘bring down [his] government,’ rather than protect the mental health of people that would be left most vulnerable. It’s hard to hear him say he’s a ‘friend’ of the LGBTI+ community. It’s hard to forget how much the Irish example influenced us in parliament. How raw it was in our minds. It was never hard to say no to this tactic. Turnbull was betting it all. And while it may have led to his preferred outcome, it equally may have failed. Turnbull wasn’t just gambling with a policy, he was gambling with people’s lives, love, and mental wellbeing. Since when were human rights about popularity?

At the time, we were being lobbied by advocates, community members, and allies alike not to allow the floodgates of hate to be opened on Australians who had been through enough. ‘We would rather wait than be told we’re disordered’ or ‘broken’ or ‘wrong’ or ‘deviant’ the correspondence said. Letter after letter, email after email. This shows that Turnbull did not make marriage equality happen, the Australian public did. He gave up on his responsibility to govern. He put marriage equality into the ‘too hard’ basket. He didn’t just prove himself to be weak, but he undermined the entire legislative process. He made a mockery of our democratic system and threw our LGBTI+ community to the wolves. Thanks to Turnbull’s memoir we know that he pursued this policy after facing his own mental health issues, including thoughts of suicide. It’s hard to imagine that someone with such an intimate knowledge of the darkness could have so little empathy for what our queer community was also facing.

I left parliament one week before the results were announced, convinced the system was broken, my faith in our democracy in tatters. How could a free and respectful society force one community to fight yet another painful battle, instead of being granted their rights when no constitutional barrier existed? How could Turnbull be so reckless with his responsibility, then brag about how marriage reform was ‘his achievement?’

Yes, we fought for and won marriage equality. But at an unnecessary cost to our democratic faith.

1 https://www.smh.com.au/opinmarriage-the-irish-experiencecg58.html 2 https://theconversation.com/ cast-tiernan-brady-on-theriage-showdown-82005

ion/same-sex20170907-gypolitics-podsame-sex-mar-

30 ARTWORK: STEPHANIE VIECELI

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THE AFP RAIDS:

THE USE OF SCARE TACTICS TO UNDERMINE FREE PRESS MEHAR CHAWLA

Earlier this year, the High Court ruled that the warrant used by the Australian Federal Police (AFP) to raid News Corp journalist Annika Smethurst’s property was invalid.

This occurred against the backdrop of the ABC challenging a similar assault—raids that the AFP had conducted at their Sydney headquarters just a day after.1 Both concerned alleged breaches of national security, both were deliberately timed, and both have brought Australia’s understanding of the right to a free press under scrutiny. They also raise some questions as to the rationale behind the raids: why were they conducted at Ms Smethurst’s home and not her workplace? How long had the AFP been carrying out investigations and surveillance? For a matter of national security, why did the raids take place a year after Ms Smethurst’s story was published, and over 6 years after the ABC’s story?

There are also implications for our democracy. Our right to vote is premised on an exercise of free will and a free flow of information. But are we actually exercising an ‘informed’ vote if the rationale behind policy, or the overseas activities of our governments, are obscured?

BACKGROUND On 3 June 2019, the AFP obtained a warrant to search Ms Smethurst’s home, on the basis that she had breached s 79(3) of the Crimes Act with the publication of a memo she had released a year earlier.2 Smethurst’s alleged dissemination of ‘official secrets’ claimed that the government was planning to expand the role of the Australian Signals Directorate (the Directorate)—a Defence agency responsible for gathering signals intelligence, translating data sets, supporting military operations and countering cyber warfare.3 An expansion of the Directorate’s ‘spying’ powers would, as a corollary, increase the amount of our personal information available to domestic agencies.4

The next day, the AFP raided the ABC’s head office over the release of the ‘Afghan Files’—an exposé on war crimes committed by Australian soldiers in Afghanistan over 6 years ago. This story was published back in July 2017 by journalists Dan Oakes and Sam Clark, using documents leaked by a Defence Force official—David McBride.5 In separate proceedings, the ABC and News Corp asserted that the raids breached the implied freedom of political communication, emphasising the ‘fundamental importance of investigative journalism’.6 WHAT DID THE COURTS FIND? Ms Smethurst and News Corp went straight to the High Court, emerging with an unsatisfactory ‘victory’.7 By determining that the search warrant ‘lacked clarity’,8 the Court declared it invalid while avoiding the crux of the debate—the implied freedom of political communication (IFPC) and its relationship to nebulous notions of ‘national security’. They also circumvented the issue of a breach of personal privacy, despite the invasive search extending to Ms Smethurst’s bedroom and her underwear drawer.9 Moreover, the ruling did not actually grant the injunctive relief she was seeking, which was to have the seized phone and computer data returned. Until May 2020, when the AFP declared that they would not be laying charges, the threat of prison time was therefore left looming over Ms Smethurst.10 The ABC took to the Federal Court with several arguments, the most promising being that the granting of the search warrant itself was void, due to a misapplication of the law. Section 3E of the Crimes Act prescribes there must be ‘reasonable grounds for suspecting’ that the premises contain information which will aid in the ‘detection and prosecution’ of the criminal offence alleged.11 However, McBride had already been charged—first in 2018 for theft of Commonwealth Property,12 then again in 2019 for communicating Defence Force information and distributing a Commonwealth document while occupying the position of a Commonwealth officer at the time of disclosure.13 Moreover, the warrant was vague and imprecise in its wording.

It requested acess to in-

formation ‘relating to the ABC,’ and any ‘military information’ they held, essentially allowing for unfettered access to all ABC material which fell within this scope. 14 Given that the informant had already been charged, the heavily public nature of the raids suggest the AFP were attempting to showcase their power.

Ultimately, the Federal Court deemed the warrant valid, and the ABC decided not to appeal the matter further.

IMPLICATIONS Free press is the cornerstone of any democracy,15 and Australia’s approach has long needed reform. In the United Kingdom, law enforcement agencies can only access the confidential material of journalists for the purposes of investigating terrorism.16 The past year has been concerning not only for those targeted journalists, but for their informants, and for Australia’s democratic integrity.

The raids on Ms Smethurst were personal, invasive and in many ways, foreboding. Indeed, the impact on her sense of privacy and security led her to move houses almost immediately after the raid. But further to this, the experience ‘rocked [her] faith in journalism’, and curtailed the ‘zest and drive’ she once had for her career.17 Discouraging journalists from reporting on sensitive political issues, especially when it comes to covert government activity, ‘corruption or misconduct’,18 also has consequences for the public’s political awareness. Our constitutionally protected right to vote necessarily implies a free flow of information—one which relies heavily on media outlets for its dissemination.

The reality remains the same regardless of the justification: the AFP has sent a clear message to publishers and whistleblowers. The willingness of informants to come forward is integral to the ability of investigative journalists to carry out their function. Relying on those on the inside for their ‘scoops’, a journalist’s vow to protect their confidential sources is not only their most powerful tool but also their most sacred ‘ethical responsibility’.19 Without protection, whistleblowers face a myriad of potential consequences—personally, professionally and legally. McBride, the ‘Afghan Files’ informant, is still undergoing a legal battle which could see him face life despite following protocol—he first took his information to internal structures, then the AFP, before resigning to the media after no action was taken.20 This situation is not novel, and reinforces the value of a free press in operating as an external check on the exercise of government power.

SO WHERE DOES THAT LEAVE US? There may have been an apparent failure by the judiciary to grasp a seminal opportunity to rule on IFPC, national security, and press freedom. But at least these issues have been brought into the purview of the general public, forcing governmental response: Attorney-General Christian Porter has pledged an additional safeguard against the indictment of journalists by directing law enforcement agencies to seek his approval before laying any formal charges.21 Notably, Peter Dutton made this exact undertaking last

year, 22 and the same counter-argument applies now as it did back then: it is difficult to imagine the utility of such ‘safeguards’ when they are beholden to the interests of the government itself. Every country has the need for national security protections—some which would be severely compromised should they be prematurely broadcasted. However, the disclosure of public interest information should never be censured, especially when done just to avoid a damaged reputation or ‘embarrass[ment]’.23 This case still had an impact. Two parliamentary inquiries into press freedoms were instigated in response to the raids and the Courts’ non-engagement with the IFPC. The first focuses on the relationship between law enforcement agencies and the media,24 while the second more broadly analyses Australia’s existing disclosure frameworks for ‘sensitive and classified’ information.25 The future of press freedoms in Australia is on shaky ground, and the recommendations of these inquiries hold the potential to shape its future.

1 Peter Greste (April 2020), https://theconversation.com/the-high-court-rules-in-favour-of-news-corpbut-against-press-freedom-136177.

2 Crimes Act 1914 (Cth) s 79, repealed by the National Security Legislation Amendment (Espionage and ForeignInterference) Act 2018 (Cth).

3 This section was repealed from the Crimes Act and inserted into Chapter 5 of the Criminal Code 1995, although there is no substantive changes: https://www.alrc.gov.au/publication/secrecy- laws-andopen-government-in-australia-alrc-report-112/3-overview-of-current-secrecy-laws/general-criminal-offences/ 4 https://www.asd.gov.au/about 5 David Wroe (June 2019), https://www.smh.com.au/politics/federal/intelligence-agency-could-beused-for-offensive-cyber-operations-in-australia-20190614-p51xst.html 6 Australian Broadcasting Corporation v Kane (No 2) [2020] FCA 133. https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2020/2020fca0133 7 Rebecca Ananian-Welsh (June 2019), https://theconversation.com/explainer-what-are-the-mediacompanies-challenges-to-the-afp-raids-about-119382 8 Ibid.

9 Crimes Act 1914 (Cth), s3E(5).

10 Rebecca Ananian-Welsh (June 2019), The Conversation.

11 Jordan Hayne (May 2020), https://www.abc.net.au/news/2020-05-27/afp-will-not-lay-charges-annika-smethurst-raid/12291238.

12 Australian Broadcasting Corporation v Kane (No 2) [2020] FCA 133, [110].

13 Criminal Code 1995 (Cth), s131.1(1).

14 Defence Act 1903 (Cth), s 73A(1); Crimes Act 1914 (Cth) s 70(1).

15 Australian Broadcasting Corporation v Kane (No 2) [2020] FCA 133, [90]-[91].

16 Human Rights Committee, General Comment No 34: Article 19, Freedoms of opinion and expression, 102ndsess, UN Doc CCPR/C/GC/34 (12 September 2011) [13].

17 Rebecca Ananian-Welsh (June 2019), The Conversation.

18 Meet the Author with Annika Smethurst–On Secrets. https://www.youtube.com watch?v=rPxkFJ8uo4E 19 Rebecca Ananian-Welsh (June 2019), The Conversation.

20 Mark Maley, Manager of Editorial Policy for the ABC, University of Queensland’s 2019 Submission to the Senate Standing Committees on Environment and Communications; Clause 3 of the MEAA Code of Ethics.

21 https://www.smh.com.au/politics/federal/what-i-ve-done-makes-sense-to-me-the-complicated-colourful-life-of-david-mcbride-20190621-p5204h.html 22 Brett Worthington (September 2019), https://www.abc.net.au/news/2019-09-30/attorney-general-grants-journalists-limited-protection/11560888.

23 Jade Macmillan (August 2019), https://www.abc.net.au/news/2019-08-09/peter-dutton-orders-afp-press-freedom-investigating-journalists/11401108.

24 Paul Karp (May 2020), https://www.theguardian.com/media/2020/may/27/afp-rules-out-chargesagainst-news-corp-journalist-annika-smethurst-after-raid.

25 https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Environment_and_Communications/PressFreedom.

ARTWORK: STEPHANIE VIECELI

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MISSING THE POINT: HOW FOCUS ON THE PRESUMPTION OF INNOCENCE IS FAILING VICTIMS OF SEXUAL HARRASSMENT GEORGIA CROCKER CW: sexual assault

Apparently, no one is surprised that former High Court Justice Dyson Heydon has been exposed as a sexual predator. Former Howard government minister Amanda Vanstone, amongst many other commentators, argue his behaviour was an ‘open secret’ among legal professionals, and yet it took seven years after Dyson’s retirement for confirmation his sexual harassment to come to light.1 This lack of formal reporting is not unusual; a 2019 survey found that 61% of female legal practitioners have experienced harassment, and that 81% of these incidences went unreported.2 Predatory behaviour is so endemic within legal circles that it is not uncommon to receive warnings from previous generations of lawyers, passed down like old textbooks – who gets handsy at work functions, who not to be alone with, whose jokes aren’t as harmless as they might want you to think. There are, of course, countless barriers to overcoming workplace sexual harassment, but it seems to me that the Heydon case highlights a cultural obsession with the presumption of innocence.

The presumption of innocence is a straightforward legal standard which requires a court to treat a person accused of a crime as innocent until the prosecution can prove guilt ‘beyond reasonable doubt’. This burden of proof is set so high to uphold a staple of liberalist legal theory: Blackstone’s ratio, or the idea that our justice system will sooner acquit ten guilty people than convict one innocent person.3

This caution comes from a rational place— the State should not deprive someone of their liberty unless it is certain of their guilt. However, our reliance on Blackstone’s ratio biases the criminal justice system in favour of the accused and, as the Heydon scandal shows us, judges are fallible.

Surely then, there is too much ambiguity in the presumption of innocence. If there are 10 guilty people walking free for every innocent person, must we just accept the group of predatory men whose behaviour is accused but not charged, charged but not convicted, reported but not punished, or never reported at all? Their reputations are protected by the denial of this ambiguity, by our society’s insistence that a person is ALWAYS innocent until proven guilty.

these men.

These are the people that women worry about. Their continued presence in the workplace forces women to assess the personal risk of being alone in a room with a man, of drinking with him, or of taking a taxi home with him.

Women must balance the danger of harassment with the importance of maintaining a professional relationship, ultimately protecting the reputations of

I am not advocating for criminal justice reform that would see every one of these men in jail. Casting the net of guilt wide enough to encompass all of them would compromise the most basic principles of our criminal justice system. The problem is not that these men walk free, but that we are unwilling to engage in any discussion of their behaviour unless they have been proven guilty.

Take, for example, George Pell. Bolt defended Pell by attacking the character of Witness J, the only person whose allegations made it to trial. His unwavering belief in Pell’s innocence led him to describe the charges as a ‘truckload of mud thrown at him’, even suggesting that Pell’s accusers were simply ‘looking for someone to pay for some past trauma’.4 These attacks on the character of survivors are not a natural or proper consequence of the presumption of innocence.

Belief in the veracity of a survivors’s claims, and whether the perpetrator is ultimately convicted, are two separate issues. Conflating the two reinforces a dynamic wherein a complainant must withstand all manner of attacks on their character in the name of the presumption of innocence. While the presumption is used to protect the reputation of the defendant, no such protection exists for a complainant.

For Witness J, there was no hand-wringing concern that the relentless allegations that he was lying could taint a jury’s assessment of his character. He had entered a game where he had to either ruin or be ruined, and the other side had been given a head start.

Kate McClymont’s exclusive on Dyson Heydon presents another option to journalists when dealing with sexual harassment.5 McClymont began investigating Heydon in 2017, after receiving a tip-off while investigating other high-profile sexual harassment claims.6 In 2019 an independent inquiry was established by the High Court as a response to allegations against Heydon. It wasn’t until June this year, following the inquiry’s findings, that McClymont and the Herald released their full investigation.7 Chief Justice Kiefel, who initiated the High Court’s inquiry after hearing from two of the judge’s former associates, responded in a statement, ‘we are ashamed that this could have happened at the High Court of Australia.’8 The complaints of Heydon’s former associates have been substantiated by an internal investigation, with findings made on the balance of probabilities— the standard burden of proof in a civil case. Despite the lack of criminal

charges or convictions against Heydon, Kiefel apologised to the victims, saying ‘their accounts of their experiences at the time have been believed.’9 These investigations into Heydon’s behaviour demonstrate that it is possible to take allegations of sexual harassment seriously, and to report them, without compromising the presumption of innocence. McClymont’s restraint in reporting this story, allowing it to break only after the High Court’s investigation had been concluded, ensured that the victims’ accounts were believed. By apologising to the surivivors, Kiefel recognised that it still is appropriate to believe them, and to take action to protect them, absent any criminal conviction of Heydon.

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The presumption of innocence does not require us to reflexively disbelieve accusations of harassment.

It does not require us to test the character of the complainant before their matter reaches trial. It does not require us to remain silent about uncharged acts of harassment. The role of a court is to decide who should be punished for crimes they have committed. The rest of us must engage in discussion with good faith and trust, to seek truths that the courts cannot always provide.

1 Amanda Vanstone, ‘Dyson Heydon: who knew and turned a blind eye?’ SMH (28 June 2020) https://www.smh.com.au/national/dysonheydon-who-knew-and-turned-a-blindeye-20200626- p556jo.html.

2 Victorian Legal Services Board and Commissioner, Sexual harassment in the Victorian legal sector (2019).

3 Blackstone’s Ratio; https://www.cato.org/policing-in-america/chapter-4/blackstones-ratio.

4 Andrew Bolt, ‘The Wrong Verdict?’ The West Australian (Perth, 27 February 2019) 7.

5 Kate McClymont & Jaqueline Maley ‘High Court inquiry finds former justice Dyson Heydon sexually harassed associates’ SMH (22 June 2020) https:// www.smh.com.au/national/high-court-inquiry-finds-former-justice-dyson-heydon-sexually-harassed-associates-20200622-p5550w.html.

6 Natassia Chrysanthos, The stakes are so high: Inside the two-year Heydon investigation SMH (25 June 2020) https://www.smh.com.au/national/ the-stakes-are-so-high-inside-the-two-yearheydon-investigation-20200625-p55666.html.

7 Kate McClymont; Jaqueline Maley ‘High Court inquiry finds former justice Dyson Heydon sexually harassed associates’ SMH (22 June 2020) https:/ www.smh.com.au/ national/high-court-inquiry-finds-former-justice-dyson-heydon-sexually-harassed-associates-20200622-p5550w.html.

8 Michaela Whitbourn, “We’re ashamed: the Chief Justice and the High Court’s #MeToo moment’ SMH (26June 2020) https://www.smh.com.au/national/ we-re-ashamed-the-chief-justice-and-the-high-court-s-metoo-moment20200623-p555hd.html; 9 Chief Justice Susan Kiefel, ‘Statement by the Hon Susan Kiefel AC’ (High Court of Australia, 22 June 2020).

ARTWORK: STEPHANIE VIECELI

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STUDY WITH ME STUDYMAHAJAN WITH ME KRITI KRITI MAHAJAN

Studying with friends, or even simply in a quiet library surrounded by other people, tends to rub off on you. It has a habit of making you study in more efficient way than you would alone in your bedroom, just three clicks away from switching on Netflix.

But there are some moments, particularly at night, when it’s not practicable to rely on others for motivation.

You might suddenly find yourself on the well-trodden path to YouTube, falling down a familiar rabbit hole of mindless content. Fear not—there may be a solution.

“Study With Me.” Type these three words into the search bar and you’ll find a whole world of vlog channels and livestreams of students and young professionals doing exactly the kind of thing you’re so deliberately avoiding.The appeal of Study With Me videos could be likened to workout videos that pepper the internet, where trainers seek to motivate the audience, enthusiastically encouraging viewers to follow their movements.

In contrast, Study With Me videos encourage and motivate the audience to study in almost the opposite manner— quietly and calmly, while upholding the same upbeat momentum.

Study With Me videos are often filmed in real time, with some bloggers even livestreaming themselves studying in their homes. While these videos vary greatly, they generally include aes-

thetics of soft lighting and clutter-free organised desks. The YouTuber usually takes beautiful, even artistic notes, with several different coloured pens and pastel highlighters. They induce focus through soft instrumental music or even the natural sounds of pen on paper or the soft patter of fingers typing. Often the student offers tips to study for exams and even hosts giveaways of iPads, stationary, and other things that students may regularly use in the course of their studies.

Watching these videos and maybe winning one of those giveaways can be a sort of reward for studying. More than that, however, it’s the sense of community that comes from being able to study with others without constantly having to motivate yourself to study.

For many students, studying is something we just have to do. Procrastination, particularly through the internet, is a common experience of students all over the world, at all levels of education. YouTube and similar platforms have enabled an unexpected community to form across demographic and geographical borders.

There has been a somewhat forced embracing of all things virtual during the Covid-19 Pandemic, and the growth in popularity of Study With Me videos is no exception. Young people have created a place where random strangers across the internet motivate one another to do what many teachers and parents struggle with— study. Self-motivation has become ARTWORK: STEPHANIE VIECELI

even more difficult for those who are both working and studying from home, and these videos are serving their community now more than ever.

It might simply be the fact that while you’re watching a Study With Me, you can’t be watching another YouTube or Netflix video. It might also be that the soft music actually does induce focus. However, there is something to be said about the effect of having someone else working with you— even virtually. Two strangers worlds away, but connected through the internet, are quietly working on separate tasks, with no real interaction between them. Many viewers seem to see this odd company as a cure for loneliness that they feel while begrudgingly studying.

The calm aesthetics of the videos are a large part of their appeal, which could be enjoyed without studying along with them. It is likely that many people can watch these young people studying without doing the same.

That would be the ultimate procrastination; to delay one’s own study by simply watching that of others. Still, for the most part, Study With Me has cemented itself as one of the many communities on the internet taking a mundane activity and making it a bit more enjoyable— one quiet, aesthetic video at a time.

COLLUSION OR SIMPLE CONFUSION?

Why Academic Misconduct Rules Must be Reformed ANDREW RAY

The ANU College of Law’s (‘the College’) academic misconduct policy, and refusal to allow students to collaborate on assignments, is hurting future employability while also harming student wellbeing. Namely, the policy punishes a small number of students who are caught for actions that a large part of the student population regularly engages in. This piece argues that the existing academic misconduct scheme is unfair, shrouded in unnecessary secrecy and is harmful to students. It proposes a new model, allowing for more open discussion on assessment items while maintaining the existing plagiarism rules at a College and university level.

We all know a ‘friend’ who has helped someone or received help on an assessment item. Indeed, if you walk through an ANU library during a take-home exam you can occasionally see groups of students working on a problem question together.

These individuals are, at least in theory, being advantaged over their peers, but are rarely (if ever) caught. While collusion is certainly an issue and academic integrity is an important goal to aspire to; existing rules are often inconsistently applied, and the outcomes of any disciplinary action taken are not reported. This lack of transparency and accountability reduces the deterrent effect of the existing rules—after all, if you don’t think you are going to be caught, you have little to fear from the potentially ruinous consequences an academic misconduct finding may have on your future employability. This creates a situation where students may be incentivised to engage in these practices.

A secondary issue is the lack of clarity about the actual meaning of misconduct. If we look at the definition of misconduct contained in r 6 of the Academic Misconduct Rule 2015 it is not clear what is and is not permissible (especially what would constitute an unfair or unjustified advantage under r 6(a)(vii)).1 6 Academic misconduct It is academic misconduct if a student: (a) in relation to an assessment: (i) cheats; or (ii) engages in plagiarism; or (iii) improperly colludes with another person; or (iv) acts, or assists another person to act, dishonestly or unfairly in or in connection with an examination; or (v) takes a prohibited document into an examination venue; or (vi) fails to comply with examination or assessment rules or directions; or (vii) engages in other conduct with a view to gaining unfair or unjustified advantage; or (viii) submits work that is not original; or (b) in relation to research, commits research misconduct.

For example, if we ask the following series of questions, we see that the boundaries are far from clear, and may, in some cases, operate harshly on those individuals caught engaging in these practices.

1. Is it academic misconduct to ask a friend to proofread your citations?

2. Is it academic misconduct to tweet a citation question to @AGLCtweets?

3. Is it academic misconduct to take a past set of exam notes into an exam?

4. Is it academic misconduct to compare your exam notes against those of a past student?

5. Is it academic misconduct to complete tutorial problems in a group where there is a mark for tutorial participation?

ARTWORK: STEPHANIE VIECELI

6. Is it academic misconduct for colleges to offer proofreading services through academic mentoring or tutoring services.2 Although perhaps what constitutes academic misconduct could be resolved by the law school publishing examples of what is and is not acceptable behaviour, this only resolves part of the problem.

Namely, that a certain (and as this author would argue not insignificant) proportion of the student population is engaging in these practices, regardless of the potential consequences. Indeed, it is perhaps not in the College’s interest to catch everyone who may fall within the broad definition contained above, as it could tarnish the reputation of the College or the university. Additionally, given the importance of collaboration in the workplace, 3 greater facilitation of group discussion/work on certain types of assignments at the College could help strengthen graduate employability while simultaneously remove the unfair advantage currently gained by students engaging in these practices.

While certainly not all types of assessment are open to group discussion (i.e. it would be inappropriate for a multiple choice exam to be opened up for discussion by students), for take-home assignments completed over multiple days it is likely that students are already engaging in some form of discussion around the issues/ ideas they will discuss. Therefore, allowing this practice (but not allowing people to share written answers) should be something the law school should at least consider allowing under its own assessment framework.4 Simultaneously, the law school should consider publishing what it considers to actually constitute misconduct (including addressing the questions posed above). This approach would better strike the balance between preventing plagiarism and encouraging appropriate collaboration between students. *The views in this piece reflect the personal views of the author and may not reflect the views of their employers.

1 Collusion is defined in r 8(1) to mean ‘the involvement of more than one person in an instance of academic dishonesty’.

2 Including, for example, colleges compiling a central database of course notes/materials to be distributed.

3 Collaboration was recently listed as the third most valued skill by employers according to LinkedIn job ad analysis: Abigail Hess, ‘The 10 most in-demand skills of 2019, according to LinkedIn’, CNBC (online, 6 January 2019) <https://www.cnbc.com/2019/01/04/the-30-most-indemand-skills-in-2019-according-to-linkedin-.html>.

4 A similar approach was taken for the final take-home assignment in Financial Markets and Takeovers in semester two 2019.

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AM I WELCOME OR...?

A CONUNDRUM OF CROSS-INSTITUTIONAL STUDIES JIBRAN HABIB

ARTWORK: STEPHANIE VIECELI

38 Cross-institutional study, a concept unbeknownst to the ordinary ANU student. A weird one too.

No one would have thought that the ANU would allow a UC student within its ranks. After all, ANU is for the elite, and clubs and societies whose names are dangerously deceptive. At least that was my perception as an outsider, before setting foot on campus. I took a leap to do an elective I was passionate about—an elective not offered at my university.

With just the standard International Law and Human Rights Law courses at UC, cross-institutional studies gave me the opportunity to further expand on my knowledge by studying Advanced International Law at ANU. A hike, a marathon — call it whatever makes you think of a challenge of both mental and physical toughness — my experience at ANU has been anything but uneventful.

Each day is a challenge. I finish UC classes and bus to ANU amid the resurgence of the bushfire smoke and threat of coronavirus. Very quickly it starts to rain—the unpredictable Canberra weather deciding to play its tricks again. On the way, my mind wanders to what today will hold. Maybe this time only one group of people will try (and fail) to hide their judgemental looks when they see the UC books in my hand. Maybe today I’ll be able to dodge an onslaught from the Socialist Alternative, committed to making me repent for my capitalist complicities. I am quite confused by them: do they not study at an institution? Do they not make purchases and live the way liberals live? Even an actual socialist may not be welcomed by them—a group so distinct, it does not even fit its name.

There are stalls up today, similar to the ones from market day. Maybe if I stole a free pen and gave it to someone needier, the Socialist Alternative would leave me alone. After I grab my free pen and lollies, I remember the time a club executive at market day scorned at the mention of UC. I couldn’t even finish my sentence to explain I was a cross-institutional student. It is okay, against this show of elitism at least the socialist alternative will support me. No, that was a mistake, as the flashbacks of prior visits to ANU show. Only the fittest may survive. An odd contradiction of sorts when people are considered ‘equal’, but who am I to say… I am not from ANU. That painful memory fades quickly though, as someone from a stall comes up to me and tells me to write stuff! Writing— now that sounds like

me. At least that is what I think… if that is not the case maybe a trip to Europe will help me find myself. At least this club does what it says it will do—writes when it says it will write, so I could give it a try. Writing is powerful, it is a tool that can change the world and I will try to improve my writing.

ANU’s research focus was something unique, given UC’s more practical aspects that I am used to. Using an elective(s) for my cross-institutional studies is definitely very empowering at the ANU. I would say the same for ANU students considering any UC electives— particularly for law students. UC’s Work Integrated Learning courses really encompass what a student would need to experience in a professional workplace environment.

As I reflect on those opportunities, I take a step back from my perception of the world. ANU has a vein of elitism, but it somehow still finds a balance. Much like those I do not get along with, there will be another group of people right for me.

I have learnt a lot at ANU. I have expanded my International Law knowledge through all the discussions about territories and State responsibilities in class. However, along the way I have made new friends who do not care about the UC or ANU tag.

From the outside I never thought that may have been possible— I thought I would just walk into class and back out.

Hopefully, more students will come and experience ANU the way I am. That is not to say that one university is better than the other. After all, there is more to the ANU’s social scene than exclusionary elites and overly tenacious society representatives; it is a highly prestigious institution centred on learning.

JADWAT LOCKING AWAY THE PAST: &KHASHIF MEHAR CHAWLA

Drivers of Indigenous Incarceration

According to the Australian Bureau of Statistics (ABS), Indigenous Australians account for 27% of the Australian prison population, despite Indigenous Australians (aged 18 years and over) only representing around 2% of the Australian population.1 The Australian Law Reform Commission (ALRC) finds that the key drivers towards Indigenous incarceration are external to the justice system. Namely, Australia’s colonial legacy continues to plague Indigenous communities through intergenerational trauma. This is exacerbated by an inherent discontent between the ‘intent’ behind government policy and its ‘execution’.2 However, there are also failures within the justice system which compound these factors. First, institutionalised prejudice sees the imposition of harsher penalties and over-policing. Secondly, there are barriers to Indigenous peoples’ access to justice, which non-Indigenous peoples do not face.

Australia’s colonial legacy as a vehicle for intergenerational trauma

Since the arrival of European settlers in 1788, governments’ successive policies have served to reinforce and entrench the power imbalance between white Australians and Indigenous Australians; a colonial hierarchy ‘apparent in almost every area of white–Aboriginal relations’.3 The ideology of Western superiority, which perceived Indigenous culture as inherently violent and inferior,4 culminated in one of Australia’s most detrimental and shameful federal policies to date: forced assimilation and the infamous ‘Stolen Generation’.5 The forcible removal of Indigenous children from their families resulted in the loss of fundamental components of their culture, such as language and traditional customs; causing a loss of identity.6 Importantly, any attempts by Indigenous peoples to push-back and assert their non-conformity was met with ‘various legal and social consequences such

as imprisonment, social alienation, violence and death.’7 However, this practice is not merely historical, with Indigenous children increasingly being removed from their families and placed in outof-home care—this time as part of the child protection services system.

The psychological effects of forced assimilation, and colonial abuse more broadly, continue to operate and are seen as the main external driver of Indigenous incarceration today.8 Both the historical and ongoing disruption of Aboriginal cultural practices undermines family and kinship structures, preventing Indigenous elders from passing on traditional social norms.9 The impact of the ‘Stolen Generation’ upon the cultural psyche has inculcated Indigenous communities with the fear that to chastise or discipline their children would result in legal prosecution or the taking away of their children.10 The Royal Commission into Aboriginal Deaths in Custody described this as ‘a legacy of the feelings of powerlessness built up by the oppressive supervision and control of Aboriginal families in the past.’11 This has created ‘a situation where…children and grandchildren are exposed to more violence’,12 propagating a cycle of intergenerational antisocial behaviour, which catalyses involvement in crime.13

The Justice System

Just as oppressive legislative controls have hindered progress in many aspects of Aboriginal development, 14 the judiciary and law enforcement agencies tasked with enforcing these policies have propagated inequitable treatment. Institutionalised prejudice sees our justice system impose harsher punishments on Indigenous offenders compared to non-Indigenous offenders.15 This is consistent with the ‘negative discrimination hypothesis’, which predicts that a person’s aboriginality, or Indigenous status, directly impacts their sentencing, resulting in harsher punishments for Indigenous offenders.16 For example, in 1991, the

ARTWORK: STEPHANIE VIECELI

likelihood of an Indigenous Australian being incarcerated compared to a non-Indigenous Australian was 13 times higher.17 Today that figure has risen to 15.5 times higher.18 Some have argued that the impacts of the ‘Stolen Generation’ should be recognised as a valid mitigating factor during sentencing.19 This argument was made in the dissenting judgment of Eames J in R v Fuller-Cust,20 where this was seen as an indispensable step in the achievement of real substantive justice. A neglect by our courts to consider the Aboriginal experience when sentencing further contributes to the overrepresentation of Indigenous Australians within Australian prisons.

Entrance into the justice system in the first place, and this disproportionate rate of criminalisation, is also a necessary consideration. The impact of over-policing—essentially, confrontation initiated by law enforcement—often results in criminal charges against Indigenous Australians which would otherwise not be laid against non-Indigenous Australians.21 The poor relationship between Aboriginal people and police continually sees the exercise of police discretion being used inordinately and with a lack of understanding.22 Namely, when making arrests or using ‘moveon’ powers, police demonstrate indifference as to disproportionate levels of Indigenous homelessness and a disregard of Indigenous use of public space.23 Moreover, barriers to access to justice, including communication difficulties and a lack of legal representation, further contributes to overrepresentation of Indigenous population in our justice system. For many Indigenous Australians, English is not their first language, and an understanding of legal proceedings is unattainable without an interpreter.24 But the most pressing issue is the lack of sufficient legal representation. Given the remoteness of some Indigenous communities, the availability to legal assistance is greatly limited.25 Without sufficient legal representation, a defendant is vulnerable to giving an improper guilty plea, or they may be unaware of available defences or pleas in mitigation.26

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The atrocities Indigenous Australian’s faced under colonialism continue today; haunting successive generations and subjecting young Indigenous Australians to ‘regular, repeated and distressing mistreatment’. 27 Not only has integenerational trauma impaired parenting practices, led to substance abuse and behavioural issues, but our law enforcement institutions continue to exacerbate these issues. Both the police and our judiciary employ heavy-handed approaches in a way which systematically reinforces the cycle of disadvantage.

1 Australian Bureau of Statistics, Prisoners in Australia (7 December 2017) 2 Reaaport of the Royal Commission and Board of Inquiry into the Protection and Detention of Children in the Northern Territory, Volume 1 (2017).

3 Henry Reynolds, ‘Aborigines and European Social Hierarchy’ (1983) 4 Chris Cunneen, ‘Punishment: Two Decades of Penal Expansionism and its Effects on Indigenous Imprisonment’ (2011) 5 Alfred Michael Dockery, ‘Culture and Wellbeing: The Case of Indigenous Australians’ (2010) 6 Shelaine I. Zambas and Jennifer Wright, ‘Impact of Colonialism on Maori and Aboriginal Healthcare Access: A Discussion Paper’ (2016) 7 Zambas and Wright, ‘‘Impact of Colonialism on Maori and Aboriginal Healthcare Access’ 8 Sigrid Herring et al, ‘The Intersection of Trauma, Racism, and Cultural Competence in Effective Work with Aboriginal People: Waiting for Trust’ (2013) 9 Donald J Weatherburn, Arresting Incarceration: Pathways out of Indigenous Imprisonment 10 Commonwealth, Royal Commission into Aboriginal Deaths in Custody, National Report (1991) vol 5 11 Commonwealth, Royal Commission into Aboriginal Deaths in Custody, National Report (1991) vol 5 12 Report of the Royal Commission and Board of Inquiry into the Protection and Detention of Children in the Northern Territory, Volume 1 (2017).

13 Richard Howitt et al, ‘Australian Indigenous Health: What Issues Contribute to a National Crisis and Scandal?’ (2005) 14 Report of the Royal Commission and Board of Inquiry into the Protection and Detention of Children in the Northern Territory, Volume (2017).

15 Ellen Baldry and Chris Cunneen, (2012) ‘Contemporary penality in the shadow of colonial patriarchy’. In: Proceedings of the 5th Annual Australian and New Zealand Critical Criminology Conference 5.

16 Samantha Jeffries and Christine Bond, Indigenous disparity in lower court imprisonment decisions: A study of two Australian jurisdictions, 1998 to 2008 Report No 447 (2008) 6.

17 Chris Cunneen and David McDonald, ‘Indigenous Imprisonment in Australia: An Unresolved Human Rights Issue’ (1997) 18 Australian Bureau of Statistics.

19 [2002] VSCA 168.

20 [2002] VSCA 168.

21 Mark Findlay, ‘Justice for the Vulnerable? - Debating the Relationship between Aboriginal People and Australian Criminal Justice’ (2006).

22 Helen Punter, ‘Move-on powers: New paradigms of public order policing in Queensland’ (2011).

23 Mark Findlay et al, Australian Criminal Justice.

24 Matthew Corrigan, ‘Aboriginal justice: Major Report Makes Key Access to Justice Recommendations to Reduce Indigenous Incarceration’ (2018).

25 PricewaterhouseCoopers, Indigenous Incarceration: Unlock the Facts, Report No 1 (May 2017) 5.

26 Corrigan, ‘Aboriginal justice: Major Report Makes Key Access to Justice Recommendations’.

27 Report of the Royal Commission and Board of Inquiry into the Protection and Detention of Children in the Northern Territory, Volume 1 (2017).

ARTIST: Charlotte Allingham INSTA: @Coffinbirth

ARTWORK: STEPHANIE VIECELI

BREAKING: Petition to Abolish the AGLC Gathering Steam A (Former) Reasearch Assistant In breaking news this afternoon, a petition to abolish the AGLC is gaining traction after law schools around the country slash research assistant and publications office budgets in response to COVID-19. Staff are concerned they will now actually have to open the AGLC for the first time, admitting that they have no idea how to cite in accordance with the complex system which has tormented law students for decades. One staff member working in international law commented, “I have absolutely no clue how to cite a UN doc, that’s what my RA was for”. Another academic commented, “what on earth is the difference between a hyphen, an en-dash and an em-dash and why does it even matter?”

Leading journal editors expect that fewer articles submitted will reach their high standards for academic citation, although noted that without students to work in publications offices, it might not really matter as they will be unable to process the usual number of articles. One editor of a Sydney-based journal mused that they may need to expand the role

of voluntary student editors, knowing that the loss of research work available means they will be desperate for anything to put on a CV to impress the top-tier firms currently hiring clerks.

The petition has been opposed by peak bodies representing casual workers, claiming that any changes to the AGLC will lock in job losses in the sector.

University law student societies have also been involved in preliminary discussions around launching a class action against marking over the past decade. Speaking on the condition of anonymity, one ANU LSS representative stated, “it is now clear that no ANU academic actually understands the AGLC citation requirements. If they can’t do it themselves, how can they penalise students for making simple mistakes which, as it turns out, may not even be mistakes”.

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CYBERBULLYING: LIMITS OF LEGISLATIVE MEASURES ASHIQ KAZI

WHAT IS CYBERBULLYING? To this date, there is ongoing debate amongst researchers concerning the actual definition of cyberbullying. This is mostly because researchers often tend to look into different aspects when studying it.

That being said, one of the most widely cited definitions explains cyberbullying as ‘an aggressive act or behaviour that is carried out using electronic means by a group or an individual repeatedly and over time against a victim who cannot easily defend him or herself.’1 Additionally, the following acts are also included in the categorisation of cyberbullying: harassment, cyberstalking, denigration, happy slapping, exclusion, outing and trickery, impersonation or masquerading of the victim and indirect threat. 2 It is quite different from traditional forms of bullying, since the victim can be targeted virtually anywhere regardless of the time and place. There is a greater audience for them as well, potentially making it more embarrassing for the victim, despite it not being physical. Furthermore, there is an option to preserve anonymity which makes it harder to track down the preparator and also raises the frequency of the attacks. Due to this, law reform is required to combat these problems.

WHAT ARE THE EXISTING LAWS? Existing laws can be divided into the following categories; (1) Laws that place liability on individual preparator Although, neither Commonwealth nor State legislations explicitly criminalise ‘cyberbullying’, some acts that resemble cyberbullying are criminalised with penalties attached to them – that can range from two years up to 10 years. These include: 1. Accessing a carriage system to threaten, harass or offend to another person.3 2. Accessing telecommunication network with the intention to commit serious offence.4 3. Intimidating or threatening conduct.5

4. Inciting or counselling a person to commit suicide.6 5. Accessing or modifying restricted data.7 6. Defamation (respective state criminal codes)8 7. Stalking (respective state criminal codes) (2) Laws that shift liability on third parties The duty of care found in Tort Law is critical to finding liability for third party. Since, a majority of victims of cyberbullying are minors,9 schools are one of the most important players in combatting cyberbullying amongst children. Following precedents from cases concerning bullying,10 it is reasonable to say schools could be liable for incidents occurring inside the school premise. The major enquiries would be the foreseeability of risk, and if it was reasonable to take precautionary steps to prevent it, considering the probability of it happening and burden of taking the relevant precaution.11 That being said, there would be a very limited set of circumstances where the liability could be traced back to respective school, given the low level of school’s control over how a student uses internet.

Additionally, there is the eSafety Commission which emphasises maintaining the safety of Australian children on cyberspace.12 The commission can ask platforms to take down content if it is determined to be cyberbullying material. Non-compliance with the removal notice- could result in penalties being imposed on them.13 That being mentioned, most of the popular IT companies are based off-shore (mostly in the United States) and it has been accepted by Australian courts that their Australian subsidiary has very little to no control over their parent company and subsequently over the content that is displayed on their websites. This makes it nearly impossible to hold the companies liable for any cyberbullying material on their website or platform.

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POSSIBLE IMPROVEMENTS & THEIR FEASIBILITY 1. The eSafety Office has been quite effective in combatting cyberbullying amongst minors. However, it should be recognised that adults are victims of cyberbullying too. Hence, inclusion of adults under the statutory scheme which establishes the office, could be one of the possible improvements.

2. Since, the majority of cyberbullying victims and preparators are minors, there has been suggestions of extending the existing criminal provisions to minors, possibly with a lesser penalty. However, traditionally, children have hardly had to face criminal charges for acts resembling bullying and so, extending the criminal provisions might be rather a harsh step. 14 A better measure would be to raise further awareness.

3. Drafting legislation making IT companies or their Australian subsidiaries legally liable for failing to prevent certain materials, which could potentially be cyberbullying material, from being uploaded. If not, at least the failure to remove such material within a reasonable timeframe after it is found or reported should be penalised.

CONCLUSION The internet is not solely a place for bullies; it is a platform for people to convey information and express their thoughts. Here I have highlighted some of the existing gaps in the law, and the reasons for their persistence. While some such gaps may be filled, there are limitations of the resolution of others. While there is certainly room for improvement, it simply might not be practical to impose such measures. Furthermore, stricter laws cannot be the sole safeguard in combatting such a problem. Respecting the limitations of the law, importance should also be given to education and development of social standards to prevent those limitations from being exploited.

1 P. K. Smith, Mahdavi, J., Carvalho, M., Fisher, S., Russell, S. and Tippett, N. ‘Cyberbullying: Its Nature and Impact in Secondary School Pupils’ (2008).

2 Colette Langos ‘Cyberbullying: The Shades of Harm’ (2015).

3 Criminal Code Act 1995 (Cth) s474.17.

4 Ibid s474.14.

5 Ibid ss 474.15 and 474.16.6 Ibid s474.29A 7 Ibid s478.

8 Dow Jones & Co Inc v Gutnick 210 CLR 575 9 Shona Bates, Ilan Katz, Matthew Keeley, Barbara Spears, Carmel Taddeo and Teresa Swirski, Research on Youth Exposure to, and Management of, Cyberbullying Incidents in Australia (Synthesis Report, 2014).

10 New South Wales v Lepore (2013) CLR 511.

11 Aashish Srivastavao, Roger Gamble & Janice Boey ‘Cyberbullying in Australia: Clarifying the Problem, Considering the Solutions’ (2005).

12 Enhancing Online Safety Act 2015 (Cth).

13 ESafety Office, Submission no 13 to The Senate, Legal and Constitutional Affairs References Committee, Adequacy of existing offences in the Commonwealth Criminal Code and of state and territory criminal laws to capture cyberbullying (March 2018) 6.

ARTWORK: STEPHANIE VIECELI

PHOTO: RICHIE SOUTHERLAND