The Brief Edition 1 2014 by Macquarie University Law Society

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The Brief | Volume 20, Edition 1

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Submissions are now being accepted for Editions 2 and 3 2014. For more information, contact Emma at thebrief@muls.org.

The Brief | Volume 20, Edition 1

One Equals Eight: The Knockout Legislation?

Pass the Leather: Today We Are All Bikie Gang Members

The Trouble with Power: Distributing Legislative Powers at a Federal and State Level

Mandela’s Legacy is Black and White

CONTENTS 20 22 TPP: The Secretive Negotiations

Our Right to Digital Privacy

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How Much is Too Much for a Litre of Milk?

5 13 26 27

New in the Law Social Justice Corner Stuff Law Students Like Crossword

Dear Reader, Please enjoy the first of three editions of The Brief in 2014. Although it is the first in some time to be presented without a title or a theme, in putting together this first edition, I have come to realise that the articles it contains, and the people who write them, are advocates of change. They have an insatiable appetite to question, with a sincere goal to consider how the law can be improved. The Brief continues to be a celebration of law students engaging in critical thinking, shedding light on a wide variety of legal issues. I encourage all students this year to seriously consider being a part of this fabulous publication, whether through writing an article or through offering editorial assistance. Particularly, I would like to draw attention to the excellent work of Valiant Warzecha on analysing the legislative measures targeting the ‘king hit’ issue. Other notable contributions include an amended version of Andrew Clark’s winning paper presentation essay from 2013, which analyses the state of freedom in New South Wales against the enactment of anti-bikie legislation. We are also excited to reintroduce some well-loved regular features such as the crossword and ‘Stuff Law Students Like’, as well as starting the ‘Social Justice Corner’, the first of which sees Community Law Australia’s National Spokesperson Carolyn Bond argue the continued need for community legal centres. Finally, I wish to thank everyone who has contributed in any capacity to this edition. Your labours have come to fruition in a wonderful first edition. Emma Grimley | Editor

The Brief | Volume 20, Edition 1

Members of MULS, Welcome to 2014! Whether you are just joining us as a first year or wandering back along Wally’s Walk for the 5th year in a row, I hope you enjoyed a fun, relaxing holiday devoid of readings, politically-fuelled tutorial arguments and assignment deadlines. This edition of The Brief marks the beginning of an improved MULS. What does this mean for you? Think bigger Careers events, higher spirited Competitions, sharper Publications, diverse Social Justice programs and louder Socials. I have committed the 2014 Executive to guaranteeing that your law student experience is unforgettable and irresistible. I implore you to hold us to this promise.

PRESIDENT’S WELCOME

That being said, keep your eyes peeled over the coming weeks for information regarding Competitions registration, First Year Law Camp, Social Sport

Registration, SOS I and much, much more. Furthermore, take a moment to visit our sponsor firms’ websites – without their generosity MULS would not be able to give you the outstanding opportunities you deserve. To close (without infringing BUPA’s copyright), I challenge each and every one of you to find a better you in 2014. Make 2014 the year of joining, the year of getting involved and the year of success. As a law student, you were predestined to be a high-achiever, hence this task should be a walk in the Central Courtyard. So play mixed netball, write for The Brief, score a few HDs, moot, get a clerkship and dance yourself crazy at Law Cruise. Session 1, 2014 is where it all starts. So why not start with MULS? Have an outstanding semester, Max Turner | President president@muls.org

summerclerks

www.hdy.com.au/summerclerks The Brief | Volume 20, Edition 1

aspire. contribute. thrive.

Volume 20 Edition 1, March 2013

EDITOR Emma Grimley DESIGNER Nathan Li SUB-EDITORS Eleanor Sanderson, Adrian Hizo, Patrick Barkachi CONTRIBUTORS Patrick Barkachi, Carolyn Bond, Andrew Clark, Tim Grellman, Connor Hogg, Nava Mostajabi, Naveen Rehmani, Luke Richards, Hannah Robinson, Valiant Warzecha EDITORIAL REVIEW Angela Voerman Manager, Student Engagement

ONE PUNCH REFORM Earlier this year NSW Parliament has passed reforms to address alcoholfuelled violence and one-punch assaults. CBD entertainment district lock outs and a mandatory eight year prison term have come into effect. See page 6 for more information.

Laura Webster Director (Publications), Macquarie University Law Society

A MATTER OF TITLES Reinstating the pre2000 law, Victoria’s Senior Counsel can again have the option to be appointed Queen’s Counsel.

IMAGE CREDITS All images courtesy of Shutterstock. com unless specified otherwise. THE BRIEF ONLINE The Brief can be read online at www.muls.org or on ‘The Brief’ Facebook page. DISCLAIMER All views expressed herein are those of the individual authors and do not reflect, in any way, the attitude of the Macquarie University Law Society. The Macquarie University Law Society does not accept any responsibility for the losses flowing from the publication of material in The Brief.

WHAT’S NEW IN THE LAW?

THE BATTLE OF SUPERMARKETS CONTINUES... ACCC Chariman Rod Sims has consented to Woolworths and Coles to redirecting their petrol discounting into groceries. What are the legal implications? See page 24 for more information. WHAT WENT WRONG? In wake of 11 year old Luke Batty’s murder, it has been discovered that there were outstanding warrants for his father’s arrest.

PROTECTING OUR PRIVACY In March this year the amendments to the Privacy Act 1988 (Cth) will come into effect, attempting particularly to safeguard data online. See page 22 for more information.

A GUILTY MAN In R v Gittany (No 5) [2014] NSWSC 49 on the 6 of February McCallum J sentenced Mr Gittany to 26 years of imprisonment with a non parole period of 18 years.

The Brief | Volume 20, Edition 1

ONE EQUALS EIGHT:

THE KNOCKOUT LEGISLATION?

Valiant Warzecha asks, how far is too far?

s it just to summarily sentence an inebriated brawler to eight years imprisonment for fatally ‘king hitting’ an unsuspecting victim? The instinctive response is affirmative and with the media’s assistance, community pressure to act has reached fever pitch. Publicity of the sentencing of Thomas Kelly’s killer late last year and most recently Daniel Christie’s death on New Years Eve has created an omnipresent climate of fear on Sydney’s streets - with most young men preparing themselves for their night out to potentially be their last. In response, NSW Parliament has instituted an eight years mandatory sentencing for intoxicated assault occasioning death and an array of other measures in an attempt to stem the growing culture of alcohol and drug-fuelled violence around Sydney’s popular nightspots.Draconian edict or well-metered policy? This article seeks to investigate the reality of the ‘king hit’ issue and the legislative measures have been implemented - without the Shakespearean drama of popular media. It will analyse the case of Thomas Kelly, the law of ‘onepunch manslaughter’ and statistical data on the number of assaults in King’s Cross to evaluate if the proposed legislative package is warranted. Or if it is a halfbaked response to a media beat up (no pun intended)?

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Context of Thomas Kelly’s case

‘One-punch manslaughters’

At 10 pm on the night of Saturday 7th July 2012, Thomas Kelly was ‘king hit’ by an intoxicated reveller near the giant Coca-Cola sign in King’s Cross, sustaining fatal brain trauma. In November last year, Thomas’s killer was sentenced to six years jail with a four-year non-parole period for pleading guilty to manslaughter. Much of the Australian community and Thomas’s parents believe this outcome to be manifestly disproportionate to the loss that was caused.

Death caused by a single punch, whilst the offender is under the influence of drugs or alcohol, usually prevents the Prosecution from adequately establishing the requisite mens rea (mental element) for a charge of murder to be successfully maintained. For a murder charge, it must be proven that the puncher was either recklessly indifferent to the consequences of his actions and/or intended the consequences of his actions which resulted in death or grievous bodily harm to the victim.

This incident has become the focal point for legislative reform and the catalyst for the O’Farrell government’s knee-jerk reaction in instituting the mandatory sentencing scheme. The throbbing temple of this case, as put by Nicholas Cowdery QC (Former NSW Direct of Public Prosecution), is that this was never a case of murder as the aggressor was initially charged. Laying a murder charge set a precedent for the case’s treatment that was not supported by law and one that created unrealistic expectations for the justice that was to be administered - that of life imprisonment.

Up until this point, the charge for an intoxicated ‘king kit’ that result in death was manslaughter with sentencing matching the degree of culpability (25 years applied to the most heinous instances – as for the new offence). In sentencing, the judge must hand down a punishment that is proportionate to the crime by considering the objective gravity of the felony, the surrounding circumstances and sentencing precedent. With this in mind, Thomas Kelly’s killer entered a timely guilty plea, appeared on record to show remorse in discussion with a psychologist and it was noted that the accused also came from circumstances of ‘social disadvantage’ with a troubled family background. Similarly, Justice Campbell (the sentencing judge)

indicated that the sentence should not be onerous considering the offender’s youth so as to ‘stifle prospects of rehabilitation’. Whilst the Kelly family deserves the community’s support, these factors are conveniently given little focus in reporting where greater information would give a more holistic context to the sentence. As Cowdery points out, sentencing is not ‘some sort of market’ that dishes out vengeance proportionally to the consequences of a crime. He also poignantly notes that no sentence can possibly compensate for the loss of life, nor can it reinstate an offender to their pre-crime status. As Justice Campbell postulated, the criminal justice system operates in a more subtle and desirably objective way by taking away the freedom of offenders proportionally to the danger they pose to society with the overall goal of rehabilitation. Criticisms and Reform As this article is being written, the ‘king hit’ legislation is already being scrutinised with many parties expressing extreme discontent with what has been introduced. The NSW Law Society is deeply troubled by the law’s presumption of intoxication for aggressors with a Blood Alcohol Concentration of 0.15, commenting that it fails to account for the alcohol’s actual influence over the individual and what effect a contributing substance may have played in any intoxication. It is likely that expert toxicologists will be required to corroborate whether intoxication was a factor in the assault for the mandatory sentencing to apply – otherwise any incident would be considered common assault. Similarly, there is concern for the legislation’s exclusion of the defence of provocation, dangerously drifting towards a strict liability offence. Phillip Boulton (President of the NSW Bar Association) believes that the aforementioned issues will present many obstacles to the law’s application in the courts and is likely to cause amendment to the legislation. John Dobson, President of the NSW Law Society proposes that such reform should be judicial, in the form of a guideline judgment for sentencing from the Supreme Court. This would further clarify sentencing for this type of manslaughter, catering for the nuances and dynamics that a rigid mandatory sentence would not address. Mark Speakman, The NSW Member for Cronulla and barrister, supports this view highlighting that there is no evidence that minimum sentences reduce the incidence of crime, rather that it would ‘reduce incentive to plead guilty and lead to arbitrary and capricious results’. Whether a

Sentencing is not ‘some sort of market’ that dishes out vengeance proportionally to the consequences of a crime... no sentence can possibly compensate for the loss of life, nor can it reinstate an offender to their pre-crime status.” guideline judgement will occur, as a result of an appeal of the sentence administered to Thomas’s killer, is at the behest of the Department of Public Prosecution. Assault in King’s Cross In conjunction to the mandatory sentencing scheme, the O’Farrell government has hurriedly introduced measures such as $1100 fines for disorderly behaviour, granting police the authority to ban ‘troublemakers’ from popular nightspots as well as increasing the maximum penalty for possession of steroids from two to twenty five years. This is accompanied by restrictions on suppliers of liquors with state-wide closure of bottle shops after 10 pm, 1.30 am lockouts for King’s Cross and CBD venues with alcohol service ceasing at 3.00 am. Objectively, by removing problematic individuals and reducing the availability of alcohol, these reforms appear to comprehensively attack alcohol-related violence at its core. Professor Kypros Kypri (University of Newcastle School of Medicine and Public Health) believes that these measures will help reduce the incidence of assault considering the risk of assault exponentially increasing every hour venues are open after midnight. The example of Newcastle has been cited numerous times with a 36% decrease in the assault rate since similar measures were implemented in 2008. However, alcohol-fuelled violence in King’s Cross and the CBD has not increased, rather the incidence of its reporting has dramatically increased. The lockouts and restriction of trade are also little solace for partygoers when the most recent king hit incidents have occurred prior to the 10 pm bottle shop closures and 1.30 am club lockouts (Thomas Kelly’s assault 10 pm; Daniel Christie 9 pm).

rising trend between 2000 and 2008. Dr. Gordian Fulde (Head of the Emergency Unit at St Vincent’s Hospital) insists that the intake of assault victims in emergency departments is not increasing. Rather Dr. Fulde maintains that the severity of the cases that he sees are a frightening departure from the mild ‘biffo’ of the past. This appears to allude to the necessity of other component of the O’Farrell reform package that deals with steroid possession. It is reasonable to infer that the growing number of unprovoked and irrational outbursts of aggression are, to an extent, linked to seemingly readily available pharmaceutical enhancers used to gain muscle by an alarmingly large portion of young men who obsessively pursue a body-builder physique to attain the ‘aesthetic lifestyle.’ A Conclusion? The loss of both Thomas Kelly and Daniel Christie are tragic and the damage their unanticipated deaths have caused their families cannot be undone by some quick-fix solution to tackle alcoholrelated violence on Sydney streets. The implementation of a mandatory sentencing period for such attacks is arbitrary and undermines the collective wisdom of sentencing judges who appear to be the most objective source of just determinations, not blinded by emotion or subject to the demands of constituents and the media. There is clearly strong argument that supports its institution, for punitive and deterrent purposes. However, whether this will be effective is uncertain. As for the adjacent measures proposed for Sydney’s nightspots, only time will tell if they will have a positive impact.

Statistically speaking, the number of nondomestic assaults in the King’s Cross area since 2008 are either showing a stable or a declining trend after displaying a The Brief | Volume 20, Edition 1

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PASS THE LEATHERS:

TODAY WE ARE ALL

BIKIE GANG MEMBERS 2013 MULS Paper Presentation Winner Andrew Clark has delivered a taster of his winning paper: an examination of X7 v Australian Crime Commission & Anor [2013] HCA 29 and the state of freedom in the State of NSW.

The Brief | Volume 20, Edition 1

FACTS The plaintiff, X7, was arrested and charged with three indictable federal offences pertaining to the import and sale of illegal drugs. Whilst in custody, the plaintiff was served with a summons to appear before and give evidence to an examiner of the ACC: a statutory body charged with collecting information, intelligence and investigating ‘serious and organised crime’. Though the plaintiff initially answered questions as directed by the examiner, the plaintiff refused to answer the examiner’s questions pertaining to the subject matter of the offences with which he was charged. The examiner notified X7 that his failure to answer questions would lead to his 10

The Brief | Volume 20, Edition 1

Image by Niels-Peter @ flickr

n 26 June 2013, the High Court of Australia handed down its decision in the matter of X7 v ACC. The decision preserved, for now at least, one of the most basic privileges of our criminal justice system, the right to remain silent. Why are our most fundamental privileges under legislative assault? The NSW Government, the Commonwealth Government, and the governments of the other Australian states and territories are enacting oppressive legislation to attack organised crime syndicates, primarily motorcycle gangs. The increasing prevalence of gang violence, illicit activities including drug trafficking, prostitution and petty crime, and a culture of anti-social behaviour on roads and in nightlife hubs, has resulted in the law abiding public extending a virtually limitless mandate to their elected legislators to curb the activities of organised crime syndicates. However, the High Court of Australia has not extended the same mandate to government. This essay will examine the Court’s decision in X7 and then examine the state of freedom in the State of NSW in light of the recent enactment of the Evidence Amendment (Evidence of Silence) Bill 2012 (NSW), which introduced s 89A of the Evidence Act. The examination of X7 will provide a brief summary of the pertinent facts, identify the questions considered by the Court and the grounds for its jurisdiction. It will summarise each judgment and the outcome of the case. The examination will highlight the impact of the decision on the current law and place the case in context. Finally, this essay will address the recent changes to the Evidence Act, their impact on the state of freedom in the State of NSW, and analyse the relationship between law enforcement and liberty in light of current trends in crime and policing.

being charged with the offence of failing to answer a question as required by an examiner. The plaintiff commenced proceedings against the Commonwealth and ACC in the original jurisdiction of the High Court of Australia seeking declarative relief and injunctive relief. The High Court faced the question: does the ACC Act empower an examiner to conduct an examination of a person charged with a Commonwealth indictable offence where that examination concerns the subject matter of the offence so charged? THE MAJORITY DECISION Hayne and Bell JJ (Kiefel J agreeing) Hayne and Bell JJ’s approach to the first question was one of statutory interpretation. Hayne and Bell JJ’s approach rests on three key premises. First, they noted that the Australian Crime Commission Act was conspicuously silent on the question of whether or not the relevant sections of the Act, including ss 25A(9) and 29A(2), authorise the compulsory examination of a person charged with an offence, about the subject matter of the relevant alleged offence. The judges acknowledged the defendant’s argument that the protections

afforded to the subjects of compulsory examinations demonstrated the legislature had contemplated the examination of a person already charged with an offence, but disregarded it on the basis the language was sufficiently broad to be inclusive of such circumstances, although did not explicitly deal with them. Since the Australian Crime Commission was not explicitly empowered to act in such a way, the Justices resolved to consider which rule of statutory construction to apply. Second, Hayne and Bell JJ examined the broad nature of the accused’s ‘right to silence’ and associated privileges at all stages of Australia’s ‘accusatorial process of criminal justice’. The Justices’ ‘observation that the whole process of criminal justice, commencing with the investigation of crime and culminating in the trial of an indictable Commonwealth offence, is accusatorial’, is of key importance because it follows from this notion of a broader justice process that the privilege against self-incrimination extends beyond the accused’s trial. The privilege applies during the investigation of criminal conduct and is manifested in the caution afforded to persons under arrest. Similarly, at trial, the prosecution may not require the accused to give evidence at their own trial. Accordingly, the accused is free

reminds parliamentarians that any modification or abrogation of fundamental principles of the general system of law must be couched in explicit terms to be applied by the High Court. The principle of legality is an established rule of statutory construction and has significant positive benefits on a policy basis. The principle ensures that neither the legislature nor errant judges may construct or interpret legislation to supplant fundamental legal principles, except by obvious and clear intent, which would attract public attention. This ensures that citizens will have the opportunity to warn legislators against such amendments through the electoral process.

to determine whether or not he will give any evidence to contest the prosecutor’s version of events, free from any fear that an inference as to their guilt may be drawn from their silence. Third, Hayne and Bell JJ noted the protections afforded to a person subject to compulsory examination under the Act, including the obligation of an examiner to prevent the dissemination of the answers given to the prosecutors responsible for prosecuting the accused where ‘the failure to [give such a direction] might prejudice … the fair trial of a person who has been, or may be, charged with an offence’. However, they held that requiring the compulsory examination of a person charged with an offence to answer questions about that offence would amount to a statutory modification of the accusatorial process of criminal justice. Hayne and Bell JJ held that, since the defendants contended the relevant provisions of the Act abrogated the right to silence associated with the accusatorial process of justice, the appropriate rule of statutory construction to apply was the ‘principle of legality’. This is a presumption that the legislature does not intend to modify the law and fundamental rights of individuals unless no other construction of

the provisions could have been intended. Hayne and Bell JJ considered Hammond v The Commonwealth, the Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federation. Hammond concerned a compulsory examination of a person in accordance with the Royal Commissions Act 1902 (Cth). Though the relevant provisions of that Act prevented Hammond’s answers from being used against him in his upcoming trial, the Court held that such examination ‘would interfere with the due administration of justice’ and ordered that the Commissioner refrain from questioning Hammond until the conclusion of his trial. The decision in Hammond followed the decision in the BLF Case. The decision in the BLF Case established that, where an actual or real risk of interference with the justice process would occur as the result of a compulsory examination, this would ‘amount to a contempt of court’. Hayne and Bell JJ concluded that the provisions of the Act were not clearly intended to give rise to a new exception to the accusatorial process of justice. IMPACT ON CURRENT LAW This restatement of the principle of legality

Additionally, the decision has significant ramifications for legislators and police attempting to crack down on organised crime. This decision, like South Australia v Totani and Wainohu v NSW which struck down those states’ legislative attempts to regulate motorcycle gangs, demonstrates the High Court is not compromising the strictness of its interpretation of fundamental legal privileges of citizens when legislators enact organised crime centric legislation. Unlike those previous decisions, the amendments to the Act necessary to validate its operation are relatively minor; the inclusion of a section stating the relevant provisions apply to a person charged with an indictable Commonwealth offence would suffice. However, the Commonwealth government has not yet indicated a desire to enact such amendments. In summary, the decision in X7 is not ground breaking. Both the majority and minority judgements applied existing principles of statutory construction to form their views on the meaning of the impugned provisions. The Court did not depart from previous decisions, nor did it indicate any doctrinal disagreement between the judges of the majority and minority. Nonetheless, the decision is significant because it grapples, at least in obiter, with the nature of the accusatorial process of criminal justice that protects individuals from overzealous investigation or prosecution. The High Court has reached a legally sound decision that protects the privileges of persons subject to investigation by the police and Australian Crime Commission and ensures the judiciary retains a position of primacy in protecting against abuses of its criminal justice process. The decision demonstrates that the greatest threat to freedom in the State of NSW is the decisions of our democratically elected representatives. The Brief | Volume 20, Edition 1

The High Court has reached a legally sound decision that protects the privileges of persons subject to investigation by the police and Australian Crime Commission and ensures the judiciary retains a position of primacy in protecting against abuses of its criminal justice process.” EVIDENCE ACT 1995 (NSW) s 89A Section 89A of the Evidence Act was introduced in response to the difficulties faced by prosecutors who are often confronted by ‘ambush defences’ by those accused of gang-land shootings. A so-called ‘ambush defence’ is one where an accused person refuses to answer the questions of investigating officials only to adduce evidence at trial which they claim proves their innocence. The implication on the part of prosecutors and parliamentarians is that such evidence, typically an alibi, may have been concocted prior to the trial. Sub-section 1 of the new provision establishes:

(b) that is relied on in his or her defence in that proceeding.

There are many limitations on the scope of the application of s 89A. First, a negative inference may only be drawn if the relevant omission or refusal to answer a question occurred after a ‘special caution’ is given, in the presence of the accused person’s Australian legal practitioner, after the person and their legal practitioner have had the chance to privately consult about the nature of the ‘special caution’. Second, the special caution may only be given if the accused person is over the age of 18 and capable of understanding the nature and effect of the special caution, and if the investigating official ‘at the time the caution was given, had reasonable cause to suspect that the defendant had committed the serious indictable offence [to which the questioning related]’.

The recent introduction of s 89A of the Evidence pertaining to ‘[e]vidence of silence in criminal proceedings for serious indictable offences’ poses a far greater

However, the limitations do not ameliorate the effect of the legislation, which is to undermine the value of the right to silence and the privilege against self-incrimination.

(1) In a criminal proceeding for a serious indictable offence, such unfavourable inferences may be drawn as appear proper from evidence that, during official questioning in relation to the offence, the defendant failed or refused to mention a fact: (a) that the defendant could reasonably have been expected to mention in the circumstances existing at the time, and

threat to liberty than the prospect of compulsory secret examination under the ACC Act 2002. This is because s 89A is unlikely to be struck down by the High Court as there is no doubt on this occasion that Parliament has explicitly

expressed its intention to modify the accusatorial nature of the criminal justice process. More significantly, the opportunity for judges to direct the jury to draw a negative inference from an accused person’s refusal to answer the questions of investigating officials, will normalise such a negative inference in the perception of jury members and erode the willingness of ordinary citizens to exercise their right to silence when confronted by questions from police.

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Like compulsory examinations, this legislation will modify the accusatorial process of justice and inhibit the ability of defendants to freely determine their defence strategy. The accused person must instead determine their trial strategy

in light of whether or not they chose to answer questions about a particular fact when interviewed by police. This is bad law because it obliges the accused person to either make a potentially self-incriminating statement or to later be confronted by the prosecutor’s allegation that their alibi was fabricated. PASS THE LEATHERS: TODAY WE ARE ALL BIKIE GANG MEMBERS The difficulty of combating organised crime syndicates cannot be overestimated. The recent attempts by various Australian and State governments to enact legislative solutions demonstrates that no simple solution to this problem exists. However, the fact that solving this problem is difficult is no good reason to undermine the rights of ordinary citizens. The mantra that ordinary people have nothing to fear if they have done nothing wrong is unacceptable. Nonetheless, the democratically elected representatives of the people of NSW have curtailed the fundamental ‘bulwark of liberty’ enumerated in Woolmington v Director of Public Prosecutions that: ‘it is the duty of the prosecution to prove the prisoner’s guilt … [n]o matter what the charge or where the trial … no attempt to whittle it down can be entertained.’ In conclusion, the state of freedom in the State of NSW is severely depressed. Whilst the High Court of Australia has overturned legislative attacks on freedom in Wainohu and X7, s 89A of the Evidence Act will not be struck down, as its abrogation of the right to silence is expressed with irresistible clearness. This amendment should be repealed, as it presumes all NSW residents to be criminals – pass the leathers: today we are all bikie gang members.

National Spokesperson for Community Law Australia Carolyn Bond explains the importance of community legal centres and the struggles they are facing.

y first experience of a community legal centre (CLC) was as a client. In 1977 my landlord kept my bond, and I got free legal help from the Tenants Union Legal Service. I became a volunteer at the service, which was one of only a handful of community legal centres in Victoria. Little did I know at the time that I was witnessing some of the key elements which still define CLCs today.

Social Justice Corner WITH CAROLYN BOND

COMMUNITY LEGAL CENTRES –

A DIFFERENT WAY OF DOING JUSTICE

Firstly, people who would otherwise not get help, had access to legal information, advice and assistance. Secondly, because the service did a narrow range of matters, the staff – including volunteers – became “legal experts” in a short time. The legal rights of tenants, while grossly inadequate, were being legally enforced for the first time. This didn’t just have an impact for individual tenants, but for landlords and agents whose practices hadn’t been challenged in the past. For example, a number of tenants came to us for help when they found themselves facing eviction at the hands of an “eviction service” that was better suited to Dickensian times. The eviction service didn’t worry about complying with the law, but used intimidation and gave tenants less notice than their leases required. The legal service acted for some of these tenants, getting orders against the eviction service in court. Running cases led to some changes in industry behaviour, but when one large estate agent routinely retained tenants’ bonds, we staged a protest in the agent’s office, which led to media coverage of the issues. We made submissions to Government about the inadequacy of the law and the need for reform. The casework experience of the service was crucial in that it enabled us to illustrate the failings of the law, and put the need for change clearly to government and the community. Today there are many more community legal centres than there were in the 1970s, – almost 200 nationally – and they are a key part of the legal assistance sector. While there is a wide range of funding sources, most receive funding from the

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Commonwealth Attorney General, or state governments. CLCs complement the legal assistance provided by Legal Aid offices, and by the private profession (through pro bono and volunteer work). CLCs are also a conduit for much of the volunteer work done by lawyers and others. CLCs focus primarily on issues such as family violence, consumer problems, government entitlements, credit and debt, employment and tenancy. These types of problems often lead to further problems if they aren’t addressed. For example tenancy problems or debt problems can lead to homelessness, while unaddressed family violence issues can impact on the health of victims, including children.

Lawyers working in CLCs need to be able to work closely with other community services, to reach out to people who would not otherwise seek legal help, and to contribute to work which can lead to broader change and a more just society.”

CLCs help people who can’t afford to pay a lawyer, and it is not unusual for clients to have multiple legal problems, as well as health and housing problems. A large national survey of legal needs showed that legal problems are more likely to be experienced by certain groups, including people with a disability, single parents, and the unemployed. A small proportion of the population experiences a large proportion of the legal problems – for example over 12 months, 6 per cent of Australians had at least three legal problems while about half of Australians had experienced none. CLCs work closely with other community services such as health and financial counselling, and most of them are located with other services. In some cases CLCs have run innovative programs to reach individuals who may not otherwise get help. For example, the North Melbourne Legal Service has been working with staff at the Royal Women’s Hospital to increase co-ordination between law and medical staff, and to offer legal help to vulnerable women – mainly on family violence related matters - at the time they seek medical help. Lawyers working in CLCs need to be able to work closely with other community services, to reach out to people who would not otherwise seek legal help, and to contribute to work which can lead to broader change and a more just society. Salaries in CLCs can’t compete with private practice, but many staff will tell you that the work is very rewarding. The following examples of CLC work show some of the types of cases handled, and also the broader work which can prevent similar problems arising in the first place.

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The Taxi Driver Legal Service (TDLS) operated one night per fortnight at the Footscray CLC. The CLC had seen an increasing number of taxi drivers with problems relating to lack of insurance cover, and decided that it needed to be able to help more drivers, but also to identify and highlight the particular problems with the current regulation. The CLC handed out cards to drivers at the airport, and provided advice and representation. The legal work increased understanding of the structural issues behind these problems. For example, the CLC was surprised to find that in Victoria taxis weren’t insured, but relied on a Taxi Club to use its discretion to compensate the owner or driver. In some cases drivers were sued – sometimes facing bankruptcy or losing their family home. A report outlined the problems, and the CLC provided the Victorian Taxi Enquiry

with information about the poor working conditions, and vulnerable financial position faced by many taxi drivers, as well as unethical practices which left drivers with no cover if they had an accident. The CLC is confident that taxi reforms in Victoria will take into account the evidence provided by the TDLS. In the ACT, a CLC was seeing a number of clients who were losing their employment as a result of confiscation of their driver’s licence for non-payment of fines. As well as giving legal assistance to the individuals, the CLC released a report recommending changes that allowed fines to be paid by instalments, and the law was changed – ensuring that people were once again able to drive to work if they weren’t able to pay the fine all at once. In Victoria, the Consumer Action Law

SOCIAL JUSTICE CORNER: UPCOMING OPPORTUNITIES - brought to you by Jenny Tridgell, Executive Officer Social Justice Community Legal Centres usually offer internships with a one-day commitment per week. They cover a broad range of issues, so find one to suit you - http://clcvolunteers.net.au/ Social Justice Opportunities regularly updates legal employment and volunteer opportunities, no matter what stage your legal career – http:// www.sjopps.net.au The Aurora Project offers a Native Internship Program, with legal internships requiring enrolment or completion of property law. Applications for the winter intake are from 3rd March to 28th March - http://www.auroraproject.com.au/ nativetitleinternshipprogram Rural, Regional and Remote Law offers professional development and job opportunities, with the aim of recruiting and retaining lawyers in remote Australia - http://rrrlaw.com.au/

Centre helped hundreds of people who were being harassed by debt collectors. The centre had input to legislative reviews and regulatory enquiries on debt collection, but its lawyers also encouraged clients to lodge complaints with regulators in relation to their individual matters, even though such a complaint may not have any personal benefit for the client. The CLC lodged over 100 complaints with the Australian Securities and Investments Commission (ASIC) about one particular large debt collection firm. ASIC took the matter to court, and the Federal Court found that the debt collector had harassed and coerced debtors and engaged in “widespread” and “systemic” misleading and deceptive conduct in collecting debts. It was disclosed in the decision that the company held about half a million accounts – so the case had the potential

to benefit many more consumers than could get help from the CLC. Despite these clear examples of effective legal assistance at an individual and broader level, CLCs are currently facing some significant challenges. The legal assistance sector, including CLCs, is unable to help everyone who needs it. In a recent survey by the Australian Council of Social Services 63 per cent of responding CLCs were unable to meet demand, and reported an overall rate of 20 per cent of those seeking help being turned away. The Federal Government has recently announced $42million of cuts over the next four years to legal assistance services, including CLCs, Legal Aid and Aboriginal and Torres Strait Islander Legal Services.

governments, have indicated a desire to prohibit CLCs from using any funds for activities they consider to be political lobbying. Guidelines released in NSW in 2013 indicate that this would prevent a significant amount of the policy development and law reform work undertaken by CLCs – including some of the examples above. CLCs could be prevented from commenting publicly about law reform issues, including on social media. The valuable insights of CLCs and ATSILS on the impact of laws and policies on disadvantaged people, and the benefits of some of the broader preventative work described above, would be lost. A few years ago, when the Federal Government was reviewing laws relating to payday loans, community lawyers were seeing low income borrowers who were trapped in a high-cost loan cycle. While they had some success in disputing the individuals’ contracts, there was a need for better legal rights for borrowers. Consumer Action Law Centre staff joined with other community workers to spend two days in Canberra, and visited over 40 MPs and advisors to outline our concerns. The payday lending industry employed lobbyists who regularly put the industry’s view to MPs in Canberra. A ban on CLCs being involved with this work would have left payday lenders free to lobby MPs without opposition. Recent funding cuts to an already badly underfunded system will mean people won’t get the help they need. “Gagging” CLCs by preventing them from undertaking any campaign or lobbying work with government funding will undermine efficiency, not increase it. In July 2012, a campaign to highlight and seek action on access to justice was launched at the High Court of Australia. Led by the National Association of Community Legal Centres, Community Law Australia includes all State and Territory CLC associations, and is working to address the access to justice crisis in Australia through increased resourcing to meet demand for legal assistance through CLCs. Carolyn Bond AO is spokesperson for Community Law Australia. For seven years she was Co-Chief Executive Officer of the Consumer Action Law Centre, and has worked in legal centres for many years, in particular those specialising in consumer and debt issues. She is not a lawyer.

As well as reducing funds, the Federal Attorney-General, and some state The Brief | Volume 20, Edition 1

THE TROUBLE WITH POWER:

Tim Grellman discusses the debate over federalism in light of ACT v Commonwealth 2013.

At the heart of the case was the struggle between the ACT and the Commonwealth for the power to legislate, or omit from legislating, with respect to gay marriage. Australia was federated on the principle that the states and territories have the power to legislate, or omit from legislating, in all areas, unless the Constitution has clearly taken a particular power away from the states and given it to federal parliament. As AV Dicey and James Bryce proclaimed 100 years ago; ‘if a question arises as to any power, it is presumed to be enjoyed by the states, unless it can be shown to have been taken away by the Constitution.’ Section 51 of the Constitution lists the powers taken away from the states & territories and given to federal parliament. Section 51(xxi) gives federal parliament the exclusive power to legislate with respect to ‘marriage’. In 2013, the ACT legalised gay marriage through the Marriage Equality (Same Sex) Act 2013. In ACT v Commonwealth 2013, the High Court therefore had to decide whether this Act trespassed on federal parliaments exclusive power to legislate with respect to ‘marriage’. To answer this, the High Court had to define ‘marriage’, and by doing so, define the scope of federal parliament’s power with respect to marriage. Chief Justice French said the Constitution’s framer’s original definition of marriage in 1900 was ‘the union of a man and a woman to the exclusion of all others.’ French CJ said that today, however, ‘marriage’ has widened to potentially include same-sex unions. Australian lawyers have long disagreed over whether to interpret the Constitution by its original intended meaning, or to give its words life, permitting them to inflate 16

The Brief | Volume 20, Edition 1

Image by max blain / Shutterstock.com

he High Court’s invalidation of ACT gay marriages in ACT v Commonwealth 2013 has reignited the debate over federalism in Australia. Federalism causes debate because it promotes the vertical separation of power between the commonwealth and states. Such debate has been experienced in most countries at one time or another, and will continue to be significant in the 21st Century.

DISTRIBUTING LEGISLATIVE POWERS AT A FEDERAL AND STATE LEVEL

and contract alongside changes in social attitudes. If ‘marriage’ is restricted to its original 1900 definition, section 51(xxi) only gives federal parliament power to legislate with respect to opposite-sex unions, leaving the states & territories to legislate for same-sex unions. If this approach is taken, legislative power with respect to gay marriage would inevitably be decentralised to the states, as a result of the restricted scope of federal parliaments power. Instead, the High Court adopted the expanded meaning of ‘marriage’, widening federal parliament’s marriage powers to include same-sex unions. The Marriage Equality (Same Sex) Act 2013 was therefore invalidated as it trespassed on federal parliament’s exclusive power. This decision centralises the power to legislate, or omit from legislating, for gay marriage away from the states into the hands of federal parliament. Contrastingly, gay marriage in the United States of America is decentralised and is the jurisdiction of each American state. ACT v Commonwealth reflects a trend in Australia. Over the past 20 years, the High Court, through its decisions, has moved away from federalism, and centralised power to Federal Parliament. Another example is the Workchoices case in 2006, where the High Court widened federal parliaments power to make laws

concerning certain types of corporations into industrial relations. In Federalist Paper I Australia’s Federal Future, Anne Twomey and Glenn Withers point out that this trend of centralism is juxtaposed to the global decentralisation seen over the same period. In Germany, the Bundesrat (federal parliament) decentralised responsibility for education to the Länder (states) in 2006. In Switzerland, responsibility for people with disabilities was decentralised from federal parliament to Cantons (Swiss states) in 2000. In Spain, health care has been decentralised and is administered by Spain’s Autonomous Communities (Spanish states). In the United Kingdom, significant legislative powers were delegated to Scotland and Wales in 1999. Furthermore, the abiding principle of the European Union is that the responsibility for a particular function should, where practicable, reside with the lowest level of government possible. Australia’s trend of centralising power as seen in ACT v Commonwealth is unique when compared to global decentralisation and therefore triggers questions concerning our movement into the 21st Century. Should Australia move forward with one central government making the big decisions? Or should each state play a part in decision making, encouraging different policies and laws in each state?

Australia’s trend of centralising power as seen in ACT v Commonwealth is unique when compared to global decentralisation, and therefore triggers questions concerning our movement into the 21st Century.”

Many leaders have attempted to answer these questions. John Adams, the second US president, supported centralism, saying of the American colonies that ‘all 13 clocks must strike together’ if they departed from the British Empire. Adams successor, Thomas Jefferson, in contrast, preferred the decentralisation of power, saying that centralised government would ‘render powerless the checks provided of one government on another.’ Adams and Jefferson are widely respected for fathering the US revolution; their disagreement over the questions that ACT v Commonwealth generates concerning federalism, therefore suggests that there are respectable arguments for, and against, a strong central government. Centralism’s great selling point is that it encourages the uniformity of laws and institutions within a country. Uniformity of laws often creates efficiency. When NSW and Victoria had different sized train tracks forcing travellers to swap trains at AlburyWodonga, Australia’s transportation was not efficient. By uniforming transportation laws in Australia, travelling has become quicker and easier, which is important for creating an efficient and competitive economy. By centralising the power to legislate gay marriage, the High Court has ensured that marriage laws will be uniform throughout Australia; there will be no difference between the states. Marriage

creates many contractual and proprietary rights and obligations, suggesting that uniform marriage laws are more efficient. In America, where marriage laws are not uniform across the states, legal and financial problems have been sparked when couples have moved to states where their marriages are not recognized. Like John Adams, Tony Abbott prefers a centralised government to promote efficiency, and proposed in Battlelines a ‘constitutional amendment… of s 51 of the Constitution [which] would mean the national government could propose laws in all areas, not just those currently listed’. This would move away from Dicey and Bryce’s principle that federal parliament’s power is restricted by the Constitution, but would arguably promote efficiency in Australia. On the other hand, the decentralisation of power allows state governments to handle problems unique to their state. Twomey and Withers give the example of the Royal Darwin Hospital, which was built by the Commonwealth Government using the same plans that were used for Woden Hospital in Canberra. As a result, the hospital was not adapted to Darwin’s tropical climate. Furthermore, the Royal Commission into Aboriginal Deaths said the hospital was inappropriate in style for Aboriginal users, as a result of the Commonwealth Government’s one size fits all approach. Perhaps if construction was left to local government, the hospital would be more sensitive to Darwin’s climate and cultural demographic. While uniformity of laws and administration may promote efficiency, the Royal Darwin Hospital shows that one size does not always fit all. Economic efficiency through uniform laws is only one element of the debate. For the 27 couples who had their marriages invalidated by ACT v Commonwealth, a bigger issue is their ability to have the right to marry. Decentralised power can foster different policies in different states. This

permits people to ‘vote with their feet’, moving to the states that have the best policy for them. Now that gay marriage is the jurisdiction of federal parliament, Australians who prioritise the right to marry cannot move to more progressive states; their rights are subject to a single, central government. The global trend of the decentralisation of power has promoted diversity of policies within countries. Germany’s decentralisation of the responsibility for education in 2006, for example, has given Germans the opportunity to move to states that best suit their preferences; an opportunity the High Court of Australia has denied Australians with respect to marriage. Its understandable why 200 years ago Adams and Jefferson disagreed. Both the centralisation, and decentralisation of power have their benefits and disadvantages. ACT v Commonwealth typifies Australia’s centralism trend. Whether they support this or conversely decentralisation, Australians should be aware that our trend diverges from the dominant international trend. While all countries face questions over the centralisation of power, few have the perfect solution. Belgium, Ethiopia and South Africa writes Twomey and Withers, adopted federal systems in the 1990’s. The Sudan, Afghanistan and Iraq are attempting to implement federalism at present. With this increase in the number of federal countries, it is important that Australia’s approach to federalism is an example for the world. If we acknowledge the restraints and potential within our federal set up, we will be best equipped to re-evaluate our approach, especially in light of cases such as ACT v Commonwealth. Hopefully such considerations as those I have raised will help Australia improve its processes in the interest of being an exemplary country of the 21st century.

The Brief | Volume 20, Edition 1

Image by Toniflap / Shutterstock.com

colonisation have had an immense impact on indigenous populations. As their name disappeared, their symbols were lost and their language silenced; they became tuned only to the sound of their occupiers. The Indigenous peoples were no match for the colonial soldiers and their modern equipment. While some resistance was put up, the revolutionary individuals are seldom remembered in comparison to the victors. The winners after all, write history, and often its bitter moments are downplayed with the ruthless invaders becoming heroes in the eyes of many. From the midst of oppression however, there is one individual who we remember today, that refused to accept the occupier. He challenged the self-appointed masters and refused to accept them as a superior race. He demanded equal rights. As he challenged the barbaric laws that governed their land, he became a revolutionary who took the peaceful path to seek equality. He was the leader for both the rich and the poor, for both black and white. He was a charismatic individual who had a selfless approach to life. When all failed to silence him, he was banished, and shackled to the dungeon, a barren place called Robben Island. This man was Nelson Mandela.

MANDELA’S LEGACY IS BLACK A AND WHITE

rriving by tall ships, the shock and awe had begun. Their hosts were intrigued by their appearance and the way they spoke. The scene was foreign and the Indigenous peoples were at a loss for words. Before they could understand the situation, they lost ownership of their land and in the blink of an eye the world had changed. The Indigenous peoples had become trespassers on their own land.

Naveen Rehmani explores the importance of honouring the legacy of one of the world’s most revered leaders.

The Brief | Volume 20, Edition 1

History tells us that some parts of the world never existed until discovered by the colonial powers. Victoria Falls did not flow until seen by David Livingstone. Australia was nameless and had no human footprint until Cook landed. North America was a barren land until discovered by the Europeans, and the continent of Africa had no concept of ownership prior to their European invaders. The quest for discovery is a great achievement for some, but for the indigenous peoples, it had disastrous consequences. The tragedies of

Madiba, the Indigenous name Mandela was more fondly called by his people, has become a symbol of freedom and equality throughout the world. Once a man who sat on Robben Island, labouriously cutting stone, Mandela challenged the discriminatory apartheid laws and demanded equality between all races and genders. In an attempt to silence him, he was isolated through imprisonment. But even this failed to extinguish his dream of freedom. Twenty-seven years later, Mandela walked free, and the world watched as he helped topple the old regime, and became the President of South Africa. On the 5th of December 2013, his death was mourned and his legacy honoured by people around the world, including leaders who ‘aspired’ to be like him. It was not difficult, however, to notice the irony in the speeches of leaders from the Western world as they praised the noteworthy qualities of Mandela. Perhaps, this was because they are the leaders of nations, which are guilty of the same crimes similar to those committed against the Indigenous population of South Africa. Mandela has undeniably left behind a legacy that is unparalleled by any other national leader in the modern world. The

onus, however, is on the leaders who gathered at his funeral, to truly honour Mandela’s legacy by turning words into actions. Throughout history policies and laws have, in most cases, worked against native populations. The possibility of providing compensation has been ignored, and thus, similar protectionist policies have been adopted. Unlike Mandela’s vision for harmonious relationships between black and white, a gap has been created: ‘us’ and ‘them’. Indigenous groups like the Native Americans and Indigenous Australians form a very small percentage of their countries’ population, and yet today they are still exploited.

Mandela has undeniably left behind a legacy that is unparalleled by any other national leader in the modern world.”

Despite the establishment of the United Nations, the paternalistic attitude of European countries continues to exist. Protectionist policies have not ended, and the huge socio-economic disparity between Indigenous and non-Indigenous populations has not been bridged. A ‘sorry speech’ does nothing for reconciliation, if words are not followed up by actions.

Men and women, both black and white, love Mandela because, despite obtaining the powerful position of President, he never envisioned exiling the men who brought injustice and oppression upon his people. Rather, he looked towards reconciliation, and building mutual understanding between both parties, whilst still maintaining a cultural connection to the land, a lesson that leaders today need to learn.

In the weeks leading up to the election, Tony Abbott repeatedly addressed Indigenous issues. Amongst comments made by him, was a promise to spend his first week as Prime Minster on indigenous land. He also promised that he would establish a proposal for a referendum that would seek to recognise Aboriginals in the constitution. It was also suggested that $45 million would be spent on an Indigenous employment scheme, as well as establishing an Indigenous advisory council. However, while Abbott has been vocal on his opposition to refugees since his appointment as Prime Minister, we are yet to hear him actively address Indigenous affairs. What differentiates people like Abbott from Mandela, is that Mandela was not only a man of words, but a man of action. The United Nations Special Rapporteur on the Rights of Indigenous Peoples, James Anaya, has repeatedly pointed out the need for Australia to focus on reconciliation with their Indigenous population through providing a stronger focus on self-determination. This should be achieved by allowing Aboriginals to be active contributors on policies regarding them. However, the opposite seems to be occurring. In a recent government publication on child protection policies in Australia, it was pointed out that Aboriginal children were more likely to be the subject of child protection and placed in the ‘wider community’ for their ‘safety’. Statistics provided by the Australian Institute of

Health and Welfare indicate that between 2011 and 2012, approximately 10,058 Indigenous children were subject to child protection, eight times more likely than non-Indigenous children. Whilst children are taken away from their families, promises remain unfulfilled concerning Aboriginal self determination.

The same culture of genocide, practised in the era of colonisation, still exists today. The United Nations has not actively asserted international law on nations who are guilty of crimes. During apartheid in South Africa, the Apartheid Convention was introduced, which declared apartheid a crime against humanity. Yet, even after the collapse of South Africa’s apartheid regime, no individual has been convicted of this crime, suggesting a weakness in international law. There are activists who argue that there are many similarities between the apartheid regime of South Africa, and the situation of Israel and its occupation of Palestine. Mandela himself was passionate about the Palestinian cause, and is often quoted saying: “We know too well that our freedom is incomplete without the freedom of the Palestinians.” What then, are we to make of the speech Barack Obama delivered on the death of Mandela, knowing well that the America is one of Israel’s strongest allies? Every year, America sends $3 billion dollars to Israel for foreign and military aid, indirectly contributing to the ongoing occupation of Palestine. One questions, are Obama’s words just another display of political rhetoric, whereby the concept of ‘justice’ is merely invoked to liken his values to that of Mandela’s? If this is the attitude that is fostered by leading

members of the Security Council, then the laws which dictate Palestinian lives – restricting movement (through the construction of what some call the apartheid wall), reporting at checkpoints, confiscating Palestinian homes, operating prisons for Palestinian political prisoners – will become unquestionable, and Israel will continue to grow as an apartheid state without challenge. Moreover, the ‘land of the free’ operates one of the most brutal prisons in which many human rights abuses occur. Guantanamo Bay is a military prison located in Cuba, owned by the United States of America. There are many similarities between the isolated prison camp and the cells in Robben Island where Mandela spent a large portion of his life. Like Mandela, prisoners of Guantanamo are indefinitely detained in small cells, in less than habitable conditions, and often undergo torture. There have been repeated calls for the closure of Guantanamo as it violates many international laws, including the Geneva Conventions, which America is conveniently not a party to. Despite Obama’s promise during his presidential campaign in 2008 to close Guantanamo, it still operates today. In Guantanamo, there is no concept of justice. Ironically, in his speech delivered after Mandela’s death, Obama said: “It took a man like Madiba to free not just the prisoner, but the jailer as well – to show that you must trust others to that they may trust you; to teach that reconciliation is not a matter of ignoring a cruel past, but a means of confronting it with inclusion and generosity and truth. He changed laws, but he also changed hearts.” Perhaps it is time that the leaders of today do the same. As Mandela helped bring down apartheid in South Africa, he liberated many of the black African’s from the shackles of Western imperialism. But he wasn’t just a leader for them. He was also a leader for the whites; an advocate for equality. For those who wish to carry on Mandela’s legacy beyond words, it is there in black and white.

The Brief | Volume 20, Edition 1

TPP:

THE SECRETIVE NEGOTIATIONS

ince 2010, the United States has been negotiating a “secret” trade deal, the so-called Trans- Pacific Partnership (TPP). It is one of the most ambitious free trade agreements ever attempted. The negotiations involve 12 countries which account for 40 per cent of the world’s GDP. Participants include Australia, Japan, Brunei, Malaysia, New Zealand, Singapore, Vietnam, Canada, Chile, Mexico, Peru and United States. The TPP is aimed at deepening economic ties between the 12 nations with countries welcome to join the pact in the coming years. It is expected to reduce tariffs and even eliminate them in some cases between member countries and help

The Brief | Volume 20, Edition 1

Nava Mostajabi outlines the dangers of the closed door negotiations of the Trans-Pacific Partnership.

open up trade in goods and services. It is also expected to boost investment flows between the countries and further boost their economic growth. Like many free trade agreements, there are fears over the impact the TPP may have on certain products and services in member countries. Concerns have been raised about the impact such a wide-ranging agreement may have on intellectual property laws and patent enforcement. The fear the deal may extend the scope of patents in sectors such as medicine and prevent the distribution of generic drugs. The biggest criticism has been of the secretive nature of the negotiations. The delegates have not been forthcoming about the details of the issues

that they have been discussing, what the scope of the agreement in those areas is likely to be and how it will impact trade. In Australia there have been growing calls for the talks to be more transparent with fears the agreement could have some negative implications. According to Greens Senator Peter Whish-Wilson: “What is really unusual about the TPP deal is it goes way beyond what we would call the traditional trade in goods and services and breaking open market access. It straddles enormous areas of public interest and public importance, like for example internet usage, intellectual property, food labelling, quarantine standards…The nature of the negotiations is you don’t get something unless you give up something.”

The biggest criticism has been of the secretive nature of the negotiations. The delegates have not been forthcoming about the details of the issues that they have been discussing, what the scope of the agreement in those areas is likely to be and how it will impact trade.” leading their people into the unknown. This agreement poses a demand for trust, with no opportunity to verify.

WikiLeaks in November 2013 did what the delegates had failed to do and shared portions of the intellectual property rights chapter which validated the worst fears many have had - that TPP is a corporatist power grab. The United States proposes extending copyright to life plus 95 years for corporate-owned copyrights with some calling it a Hollywood wish list. Rather than heed the outcry, the US doubled down on secrecy, refusing to disclose more details. You know there is a transparency problem when citizens of a democracy need to rely on WikiLeaks for details on changes to laws on internet use, labour, environmental and food-safe standards, and cost and availability of drugs. Doesn’t the scale and complexity of the potential deal require that it be properly scrutinised with the public having a say in what is under negotiation? A big question is why so many of Asia’s promising democracies, including Indonesia, the Philippines, South Korea, Taiwan and Thailand, have avoided the treaty? A good answer is perhaps that their leaders realise truly “transparent and accountable” governments, to ironically borrow John Kerry’s words, should not be

Negotiations over the TPP intensified in 2013, as trade delegated from the 12 participating countries aimed for and missed a year-end target for completing the agreement. Although the secretive nature of negotiations means the public cannot really know how far along it is, both leaked position documents and public statements indicate that there are major unresolved areas of disagreement in the 29-chapter deal. According to the Washington Post, some of the most interesting information in the leaked chapter identifies those who are proposing or opposing particular provisions. The US often with Australia and sometimes Japan has taken extreme hard-line positions. For example, only the US and Japan oppose the objectives in treaty that mention economic and social development. United Steelworkers president Leo Gerard observed that a key problem with TPP is the definition of "domestic product": "We're supposed to compete with countries that are getting their parts from China... and exporting materials to here, when if they have 35 per cent of material from their country they're called a domestic product. In other words, a country such as Vietnam could get the majority of their material from China, assemble it in Hanoi, and then ship it to the US as a "domestic product" - even when most of the content came from China.”

could complain to your council. However what if the company could claim millions of dollars in damages if the council said no? Well, this free trade agreement can bring this to the table. The agreement will more than likely contain secretive Investor State Dispute Settlement (ISDS) clauses, allowing foreign companies to sue national governments when changes to domestic laws affect the company's investments, and so limiting governments in the regulations they can make to protect the public. Frighteningly, all of this is happening in secret. We do not know exactly what the TPP will contain. Whatever you may call it, a corporatist power garb, a Hollywood wish list or an ambitious agreement; trade agreements should not tie the hands of government and prevent them from regulating in the public interest. Governments should not be making agreements which require changing domestic laws about things like medicine or copyright, which is done in secrecy in the case of the TPP. Rather than secret negotiations, these things should normally be decided through an open, parliamentary process. In the history of trade agreement negotiations, most have been undertaken in secret, justified on the grounds that the governments’ negotiating positions would be weakened if they became public. But this justification is losing credibility as trade agreements increasingly deal with regulatory issues normally determined through public democratic and parliamentary processes.

Under the secretive Trans-Pacific Partnership agreement, Australia could be forced to pay foreign corporations not to dig up or destroy its coastline or native forests. Imagine if you had an international company that has decided to stick a toxic waste dump next to your house. You The Brief | Volume 20, Edition 1

With an overview of the Privacy Act 1988 (Cth), it is clearly stated that private information should not be collected unless necessary. It can only be used for its primary purpose of which the individual whom owns the information is aware. Sensitive information must not be disclosed under any circumstance and data security is held in high regard, as an organization must protect the information it holds from any misuse and loss from unauthorised access. Although the Act is very explicit in proclaiming the importance of privacy, it still remains a grey area in practice, as revealed in the recent US National Security Agency (NSA) scandals and their link with Telstra Australia. Under the blanket term of ‘national security’, the NSA created a deal with Telstra in 2001 known as the ‘network security agreement’ which required Telstra to route communications to a US data storage facility on US soil. This information included any phone calls, emails and online messages with any US point of contact. Telstra at the time of agreement was majority owned by the Australian Government. Codenamed PRISM, the surveillance program created by the NSA also continues to have direct access to data stores for Google, Facebook, Apple, Microsoft, Skype, Yahoo!, AOL and Paltalk. The personal data of millions of Australians is still being mined and stored without warrant. These secret actions of surveillance create suspicion around how the information is used. As these actions are on foreign soil, the only opportunity for redress of the issue we have would be diplomatic efforts. Since both our major political parties aren’t willing to compromise longstanding agreements with the US, such action would never see bipartisan support, and so the mass breach of privacy of our citizens is swept under the rug. PRISM falls under our UKUSA Agreement, an alliance for signals-intelligenceoperations. This agreement is classified. It encompassed Australia without knowledge of the Prime Minister at the time of creation 22

The Brief | Volume 20, Edition 1

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rivacy has and always will be imperative to living in a free nation. Our privacy rights in Australia are well legislated, with statutes allowing individuals to protect the flow of personal information both in their private lives and in the workplace. However, it is not an absolute right if it is decided on a case-bycase basis.

OUR RIGHT TO DIGITAL PRIVACY

This is a crucial time to reassess the right to digital privacy, Patrick Barkachi explains. in 1941. Further, it was only disclosed in 2005. Such an agreement is unlikely to be repealed or altered, reinforcing the idea that Telstra’s systematic breach of privacy laws will not be prosecuted, as they acted under agreement with the US government. With these events being uncovered to the Australia public, it’s very timely that reforms under the Privacy Amendment (Enhancing Privacy Protection) Bill 2012 are now coming into effect. Reforms seek to consolidate and harmonise existing privacy principles under the blanket Australian Privacy Principles (APP), replacing the National Privacy Principles and the Information Privacy

Principles that apply to corporations and governments respectively. One of the most important changes made, is that the sending of data overseas in a more objective and direct manner than was previously instilled. These reformed principles place the onus on the organisation collecting private data to take ‘reasonable steps’ and ensure adequate privacy protection. Timothy Pilgrim, our Information Commissioner, points out that ‘reasonable steps’ is an objective standard that requires evidence and backup from the entity in question to justify it’s actions. Along with this, APP s 1 requires the ‘open and transparent

As these actions are on foreign soil, the only opportunity for redress of the issue we have would be diplomatic efforts. Since both our major political parties aren’t willing to compromise longstanding agreements with the US, such action would never see bipartisan support, and so the mass breach of privacy of our citizens is swept under the rug.”

management of personal information’. Organisations must now update their privacy policies and show reasonable steps towards implementing new practices and procedures to ensure compliance. New principles also strengthen the right to access personal information from private entities, since under the Freedom of Information Act 1982 (Cth) organisations have the flexibility of responding to requests in a “reasonable amount of time” under APP this is now 30 days for most situations. Through such reforms some of the regulations are significantly different

from existing principles and previous ambiguities with privacy laws have been addressed. However this is only a small step in the right direction for Australian privacy laws especially digital privacy, where a much more work is necessary. Recently there has been a surge in international support for privacy as a human right, following the whistleblowing efforts of Edward Snowden, who was responsible for global surveillance disclosures which detailed NSA’s top secret operations with it’s international partners. This information brings forth many questions regarding the status of privacy laws. How can privacy laws

protect us when data centres are based overseas? Who holds a government accountable for privacy breaches? Any approach to the issue must begin with international agreement and subsequent national ratification. In a major step forward, the UN in past weeks has put forth a resolution titled ‘Right to Privacy in the Digital Age’. The statement ‘human rights should prevail irrespective of the medium and therefore need to be protected both offline and online’ resonated during the opening of the sixty-eighth session. The draft would have the General Assembly call upon member states to review their practices and legislation on surveillance and the collection of personal data. The aim of such an agreement will be to uphold the right to privacy under international human rights law. Such a development is a clear reaction to the US Government’s electronic surveillance activities. Cynthia Wong, senior researcher at Human Rights Watch applauds the UN’s actions as a ‘critical first step that puts mass surveillance squarely on the international agenda’. She emphasises the importance of the internet as a tool for advancing human rights, and makes it clear that unchecked, secret surveillance can become corrosive to society. However, as a major roadblock in this issue, neither the U.S. nor the UK is willing to recognise the privacy interests of those outside their jurisdiction. President Obama’s defence of the NSA scandal was that it only targets non-Americans, therefore overlooking the rights of over two billion internet users outside the U.S. To compound the problem further, vast technological improvements leading to falling costs of data storage and computer processing, ease capacity for online surveillance. Currently a government agency could create a detailed description of someone’s day, just through one request to a mobile phone company. The right to privacy is universal and the Internet defies geographical boundaries by design. Being online creates issues for jurisdiction that can only be solved with international agreement. We look to the UN and progress of the ‘Right to Privacy In The Digital Age’ drafting, for the future of international digital privacy laws.

The Brief | Volume 20, Edition 1

HOW MUCH IS

TOO MUCH

FOR A LITRE OF

MILK?

Hannah Robinson looks at the manifestation of the supermarket duopoly in Australia.

ustralia purports itself to be the land of the fair go; a land of equal opportunity, where everyone, every farmer and business, every producer and consumer, has the same chance to prosper and an equal right to access life’s essentials at a reasonable price. However a mere glance at Australia’s supermarket duopoly demonstrates that, in the consumer world at least, the notion of the ‘fair go’ is a far cry from reality. In the last decade the domination of Coles and Woolworths has led to Australia having one of the most concentrated retail grocery sectors in the world. These two supermarket giants provide a massive 80% of the grocery market. Comparatively, in the United Kingdom the top three supermarket chains make up 60% and in the United States the top four only make up 55%. That’s right, believe or not, Coles and Woolworths are both bigger than Walmart! But so what? The competition between Coles and Woolworths means that the costs of our groceries are “down, down and staying down”. That must be a good thing, right? And furthermore, it means that we only have to pay $1.00 for a litre of milk. A bargain, if ever I’ve seen one.

The Brief | Volume 20, Edition 1

However, when the curtain falls at a packed theatre, or a sportsman pulls off a miraculous win, the applauding crowd never thinks about the sacrifices made behind the scenes. And the same applies in groceries. When consumers pick up their $1.00 home brand milk carton, they tend not to think of the local Australian farmers who suffers because they cannot compete in the price war. They fail to think of the subsequent strategies implemented, at a cost to them and society, to account for the fall in profit margins of the major stores. And they fail to realise that their choice of groceries is dictated by giants who decide whose products will be stocked. Ultimately, Coles and Woolworths have complete control over which food producers will make it and which will not; and subsequently there is a much higher price associated with buying a litre of milk. The real cost of the $1.00 for a litre campaign has, to some degree, been realised. As early as November 2011 an investigation was launched by the Australian Competition and Consumer Commission (ACCC) into whether the strategy employed by Coles and Woolworths, in dramatically reducing the price of milk, constituted predatory pricing. This was followed by a Senate enquiry

on the effects of the private label milk campaign on the Dairy industry. Yet despite questions being asked, the 70% of Australians who choose to buy private label milk are still only paying $1.00 per litre. And small retailers, who are competing with the giant supermarket chains, ultimately, miss out. Nothing has been done to level the playing field. Perhaps, as concluded by the ACCC, there is no anti-competitive purpose to the milk war. Perhaps the big two have a legitimate desire to reduce prices for the benefit of consumers. And perhaps they are merely trying to foster competition between each other. However by taking a broader look at the structure of Australia’s supermarket duopoly, it becomes clear that this is very unlikely. Now, it is universally recognised that competition is an essential part of any consumer based industry; and the grocery sector is no exception. Genuine competition encourages effective production. It calls for creativity and ingenuity from retailers and producers; and ensures that consumers receive a fair deal and have the greatest choice of products. Competition drives economic growth.

As such it is unsurprising that the United States, the world’s largest economy, fosters a competitive and un-concentrated retail grocery sector. Walmart, their biggest grocery franchise, provides for only 20% of the sector. Resultant of heavy regulations, a corporate entity’s power is limited. In the United States, genuine competition is ensured. It is important to note that it is this same genuine promotion and protection of competition which the ACCC purports to be its aim. As stated by ACCC Chairman Rodd Simms, at the Australian Food and Grocery Council’s forum in October last year, the role of the ACCC is “to protect the competitive process … [which] is vital for the success of our market economy”. However this is not being done. As mentioned before, the concentration of the Australian grocery sector is considerably higher than that of the United States, with Woolworths holding 43% of the market and Coles at 37%. When combined with IGA and Aldi, 98% of Australia’s grocery market is accounted for. So what does this mean? Essentially, these top supermarket chains have almost complete control over the industry. They have the power to set prices, often to the

detriment of those at the bottom of the supply chain. They decide whether to stock local or overseas products. They decide who can enter the market. Coles and Woolworths control the competition. It doesn’t stop there. As if controlling the country’s basic groceries wasn’t enough, both Coles and Woolworths have continued to spread their power, becoming dominant petrol suppliers, acquiring liquor stores and even making their way into the insurance market. The duopoly is expanding; and the greater the duopoly the greater the detriment to Australia’s economy. The milk war demonstrated this. Whilst temporary rewards may be reaped for consumers, such dominance is not economically sustainable. Local businesses and industries miss out. Competition is stifled as price discrimination takes root and it provides a gateway to the misuse of market power. So if the duopoly is so bad, you ask, why does it exist? The answer, Australia does not have a comprehensive regulatory framework to control each entity’s market share. All we have is section 46 of the Competition and Consumer Act.

On first glance, it looks sufficient; sustainable in fact. Essentially, it states that “a corporation that has a substantial degree of power in a market”, such as Coles and Woolworths, “shall not take advantage of that power” to damage a competitor, prevent entry of a competitor into the market or to prevent or deter a person from entering into competitive conduct. Its aim: to protect competition in the grocery sector; exactly what is needed. However, the problem is the ACCC. No matter how many investigations are launched, no matter how many examples of anti-competitive behaviour occur by the supermarket duo, the ACCC refuses to classify it as a breach of section 46. Instead all that is received is the continued mantra that the ACCC is only there to “protect the competitive process”. And yet it fails to do so. Fortunately reform is on the way. The Abbott government has announced a ‘root and branch’ review of Australia’s competition policy to occur within the next twelve months. And we can only hope that such a review will restore the notion of a ‘fair go’ to Australia’s grocery sector. In the meantime, just remember that there is a much greater price being paid for a $1.00 carton of milk.

When the curtain falls at a packed theatre, or a sportsman pulls off a miraculous win, the applauding crowd never thinks about the sacrifices made behind the scenes. And the same applies in groceries.”

The Brief | Volume 20, Edition 1

KINGDOM OF CHAIRS Law students are sitters. We may jump-up in the moot court or stand for the odd speech, but our true happiness lies in a good sit, in a good chair. But our unassuming legal companion is under threat. Techno-coloured poufs now litter the dominion of the chair kingdom. Where once there were proud four legged bastions of bottom-embracing comfort, now reside hard fluorescent-cubes of Teletubby coloured torture. Where in times gone by there was a place to sit and study, now there is a ‘space’ with beanbags. Groovy. The prospect of reclining like a Victorian prostitute on a chaise longue in the middle of exams may be titillating to some, but I am just not as exotic as a librarian. I am a law student – give me a chair.

LAW STUDENTS

LIKE by Luke Richards

OUR DRUG CHOICE Caffeine has been the drug choice of law students since the Great Lachlan Macquarie sipped his first bitter brew aboard the HMS Dromedary. Whilst this great man has passed, his caffeine addiction lives on in all of us. Whether your preferable delivery system is coffee, tea, red bull, or that 4am intravenous deadline-drip – caffeine has become the patron saint of law students, or as she is better known ‘caffeinus studiorum’. The U.S. National Institute of Health states “caffeine can make you restless, anxious and irritable.” Which, by a strange coincidence, are identical symptoms for those diagnosed with advanced on-set law degrees. So give a cheer! (Or a bleary-eyed grumble). Long live our caffeine dependence!

The Brief | Volume 20, Edition 1

A TEXTBOOK UPBRINGING We love our textbooks. They are our children. But like children they are temperamental and perilously expensive! They consume our time with irrelevant questions, they demand constant attention and they never let us sleep! But we love them still. We complement them, we bath them in a sea of nurturing highlighter ink and we mend their spines when all their insides have spilled out onto the floor. Yes just as it is with children, being a textbook-parent is tough, but it is also worth it. Until the new edition anyway.

CROSSWORD

NORMAL CLUES

by Connor Hogg

3 4 5 6 9

Down

4. Acronym for a German company with limited liability often found in textbooks

1. The seat of the judge in court

8. The name of the rights read out to criminals in American crime shows

5. An undecided jury

9. To sully one's reputation with untruths

Across

11. Author of the Pure Theory of Law 18. Breaking Bad lawyer with a new spin off series (4,7) 19. A method of capital punishment

20. The type of performance sometimes required in contractual disputes

12 13

3. Every law student's favourite Harvard Law fraud (4,4) 6. Home of the ICJ 10. The percentage of referendums that have been successful in Australia 12. An intrinsic human quality all lawyers supposedly lack 14. The lethargy one feels after drinking a bottle of Stevenson's ginger beer 15. Dying without a will 16. Document calling you to court CRYPTIC CLUES Across 13. Inquiry the twisted, dumb mason must face

! N E OP

W NOMACQUARIE UNIVERSITY

SPATIAL EXPERIENCE

A GODDESS WHO PRESIDES OVER THE ARTS & SCIENCES TO BE ABSORBED IN THOUGHT

4. Twisted tornado king, Alexander the Great's intricate legal problem (7,4) 17. Letting a horse trot backwards on another's land Down 2. Discovers Decision 7. Staple of the commercial firm, the buying and selling businesses between them and another (1,3,1)

STUDENTS ONLY Building C7A (old Library) Levels 1 & 2 - personal study space - group spaces - 900+ powerpoints - WiFi & LAN connection plus lots more!

Studentbriefed Design

Social Learning Space Experiment

Featuring

www.mq.edu.au/muse

Student Connect

- your student services and support destination

The Brief | Volume 20, Edition 1

CAN’T WAIT TO CU! Want the inside scoop on landing a role at Clayton Utz? Find it on Facebook!

The Brief | Volume 20, Edition 1