The Brief Edition 1 2021

Macquarie University Law Society magazine Edition 1, 2021 (Volume 27)

Resilience Resilience Ed.1 2021

thebrief.muls.org | 1

Activate your career.

Practical Legal Training

Cormac Foley Solicitor, Danny King Legal Graduate of the University of Wollongong

• • • • • •

Only 5 days face-to-face attendance More than 20 start dates in NSW in 2020 15 weeks full-time or 30 weeks part-time study options Emphasis on task-based, practical learning 15 days and 75 days work experience options The preferred provide to 9 of the top 10 law firms

Learn more at collaw.edu.au/PLT

The Brief Ed.1, 2021

Contents

Features 12

Stayin’ Alive: Will Australia’s Arts Sector Survive the Pandemic? Max Gale

18

Masks of Democracy: Australian Democracy and the COVID-19 Pandemic Robert Rosina

14

March on! The ongoing protest in India Rimsha Acharya

20

The Resilience of Racism in Australia Tomas Ditton

16

The value of judicial activism in promoting climate resilience Amelia Smillie

22

Doing Business with China: An Ongoing Dispute Chloe Poole

Regulars 06

[What’s New in the Law?] Australian government proposes a new regime to promote online safety Tara-Kate Taylor

08

[Social Justice Corner] The Medevac Repeal: Social Justice Politicisation at Work Lauren Forrester

09

[Under the Radar] The Legal Hurdle of the #MeToo Movement: Spotlight on the Craig McLachlan Case Vanie Cardinio

10

[Devil’s Advocate] Should there be harsher punishments for young offenders to discourage offending? Grace Dinan & Morgan Graham

25

[A Brief Conversation] With Kathryn Viegas Brindha Srinivas

28

[Admissions of a Law Student] Confessions from Macquarie’s Elite Adrienna Lim

29

[Stuff Law Students Like] What’s Your Perfect Blend? Annie Renouf

30

[A Brief Review] The Trial of the Chicago 7 Rahin Badar

Editor’s Welcome

“ The nation has

fostered resilience in upholding their fundamental beliefs.”

Chloe Poole in ‘Doing Business with China: An Ongoing Dispute’, page 22

Dear reader, Welcome back to The Brief for 2021! As always, we are extremely grateful for the continuous support and contributions that has allowed us to continue to provide a platform for the diversity of ideas of Macquarie University law students.

The past year has been unpredictable with setbacks within the social, political, legal, global and moral spheres. As such, these unprecedented events have brought with them a unique set of challenges and questions.

However, if there is anything to be learnt from the past year, it is that during times of calamity the critical function of the law in the survival of civil society and social order becomes imperative.

As such, this edition’s theme of ‘Resilience’ urges both writers and readers to reflect, engage and critique on how individuals and societies have or have not stood firm amidst turmoil and disaster. The assortment of social issues addressed by writers in this edition, is reflective of the unprecedented events which have brought with them countless distinctive and complex legal questions. The impact of COVID-19 on Australian democracy as to the degree of resilience of Australia’s liberal ideas is a remarkable example of the marriage between resilience and Australia post COVID-19 (pg.18).

In continuing the tradition of canvassing a diverse selection of contemporary legal issues, an exploration of the Australian government’s legislative reform proposals on online safety highlights Australia’s adaption to our globalising world (pg.6). Keep an eye out for our fun new segment ‘Admissions of a Law Student’ (pg.28) and our well-loved segment ‘Stuff Law Students Like’ where we discuss all things coffee (pg.29).

In this edition, we were fortunate to speak to Kathryn Viegas, a renowned immigration lawyer and President of the Immigration Advice and Rights Centre (pg.25). We thank Kathryn Viegas for taking the time to share her incredible insight and experiences into what resilience means to her and the effects of COVID-19 on immigration law.

Thank you to the fantastic team of writers and sub-editors who have contributed to this edition. It has been incredibly fulfilling to work alongside a talented team for our first edition. We hope you enjoy ‘Resilience’! Happy reading!

Brindha Srinivas Editor-In-Chief

4 | The Brief

Ed.1 2021

President’s Welcome On behalf of MULS, it is my absolute pleasure to welcome you to the first edition of The Brief for 2021!

Resilient is a word that is strongly connected to our ability to cope and deal with the many challenges and difficulties that 2020 threw at us. In this edition of The Brief, you will learn about difficult situations that individuals and groups are consistently trying to solve head-on despite adversity. With a global pandemic, a struggling local arts industry, the ongoing farmer protests in India, I’m sure that I am not the only one inspired by people’s ability to adapt, challenge and come up with solutions to problems, both new and institutional.

This issue, ‘Resilience’, has some very interesting reads, some of which include discussion about judicial activism in promoting climate resilience, racism in Australia, as well as insights into what’s new in the law. Keep an eye out for insightful Social Justice Corner, where in this edition we learn about the Medevac situation.

Over the summer, the 2021 MULS Executive have been working hard to bring you some exciting new initiatives. Whether or not you compete in competitions, network with legal professionals, enjoy a drink at Ubar, listen to the MULS podcast or drink coffee (with a 10% discount from Cult Eatery for all MULS Members!), we have something for everyone.

I want to extend a special thank you to the publications team, specifically Brindha and Matt as well as all the writers for all their hard work in pulling this edition together.

From all of us at MULS, we hope you enjoy this first edition of The Brief for 2021 and reflect on the importance of remaining resilient in the face of adversity.

Lucy Sheppard President, Macquarie University Law Society Ed.1 2021

thebrief.muls.org Edition 1, February 2021 (Volume 27) EDITOR-IN-CHIEF Brindha Srinivas

DIRECTOR OF PUBLICATIONS Matthew Lo DESIGNER Nathan Li

WRITERS (IN ALPHABETICAL ORDER)

Adrienna Lim, Annie Renouf, Amelia Smillie,

Chloe Poole, Grace Drinan, Lauren Forrester, Max Gale, Morgan Graham, Rahin Badar, Rimsha Acharya, Robert Rosina, Tara-Kate Taylor, Tomas Ditton, Vanie Cardinio SUB-EDITORS

Celine Nalbandian, Chloe Cairns, Eliza Cook,

Kyle McIndoe, Isabel Lowe, Lianne Tacardon,

Nasheeta Kibria, Olivia Tabbernal, Sami Shamsi,

Seren Ozdemir, Simranjeet Kaur, Tahlisha Lombardo, Ziyan Tejani

EDITORIAL REVIEW

Lucy Sheppard and Matthew Lo IMAGES

Shuttershock, unless otherwise stated.

The Brief’s print edition is published three times a year by the Macquarie University Law Society, Sydney Australia.

Visit our website at thebrief.muls.org.

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.

With special thanks to Kathryn Viegas, Director of Nomos Group and President of Immigration Advice and Rights Centre for taking the time to share her expertise and wisdom in an interview with The Brief.

ACKNOWLEDGEMENT OF PEOPLE AND COUNTRY

The Brief acknowledge and pays respect to the Wattamattagal people of the Darug nation, the traditional custodians of the land where the campus of Macquarie University is located.

thebrief.muls.org | 5

MULS EVENTS

What’s New in the Law

Semester 1, 2021 COMPETITIONS Professional Skills Workshop 24 February Mooting Judging Workshop 25 February Negotiations Competition Begins 2 March Mooting Workshop #1 3 March Senior Client Interview Begins 8 March Championship Moot Begins 9 March Criminal Law Preliminary Round Begins 3-4 April Grand Final Week of Competitions Weeks 10-11 SOCIAL JUSTICE Speaker Night #1: LGBTIQ and the Law 10 March Speaker Night #2: Diversity in the Legal Sector: collaboration with DWL Week 5/6 Practical Skills & Advocacy Workshop Week 8 Speaker Night #3: Indigenous and the Law Week 10 EDUCATION Meet & Greet MULS 23 February LexisNexis Research Workshop 2 March, 16 March, 23 March, 30 March EVENTS International Women’s Day 8 March aMULSing race 13 March Start of Semester Drinks Week 5 (Date TBC) Law Cruise Week 9 (Date TBC) 6 | The Brief

D

ue to the limitations of the current law and the increasing threat to the safety of individuals, the Australian Government has proposed legislative reforms intended to strengthen safety protections for Australians when operating online. Online Safety refers to protection against and the mitigation of harm that results when individuals are exposed to illegal or inappropriate content online. Although Australia has previously implemented world-leading safety initiatives, the continual development of new technologies and changes in the way users engage with online content is placing increasing strain on the existing regime.

Consequently, the Australian Government believes that further reform is necessary to allow Australians to engage safely online and maintain a connected society.

Context to the scheme The online safety reforms are a response to the independent review conducted in 2018 by Ms Lynelle Briggs, as well as the publication of violent terror content Ed.1 2021

Australian Government proposes a new regime to promote online safety Tara-Kate Taylor

in New Zealand in 2019. The review identified that due to the disparate operation of the current law and the emergence of new technologies, there are gaps in the protection afforded to individual Australians by the current online safety regime. The Online Safety Legislative Reform responds to this review and proposes to: • Replace the existing legislation with a single Act; • Increase the obligations of online service providers to prevent online harm; • Expand the powers of the eSafety Commissioner to address illegal and harmful content and implement targeted blocks of terrorist or extreme violent material during crises; and • Extend the scheme to material directed towards adults (as well as children).

The reforms are not intended to hinder discussion or free speech, but rather are focussed on the ‘seriously harmful content’ posted online, such as death threats, revenge porn and remarks that deliberately ‘menace, harass or offend.’ Erin Molan, a news presenter who has been subjected to vicious online bullying and was instrumental in lobbying the government for legislative change, has praised the proposal as being key to save ‘precious Australian lives.’

Ed.1 2021

Penalties under the New Online Safety Regime Under the new regime, internet service providers and social media platforms will be required to remove severely harmful, abusive or bullying content within 24 hours of it being published (as opposed to 48 hours under the current regime). Companies that ignore a direction to remove trolling material will face fines of up to $550,000, whilst individuals who contravene the Act may face fines of up to $110,000. The Act will also give the eSafety Commissioner the power to reveal the identities of individuals behind fake or anonymous profiles used to spread harmful content. Consequently, there will be significantly more transparency and accountability surrounding the use of online media.

The way forward If enacted, the Online Safety Regime will not only boost the protections for individual Australians, but will also increase the responsibility on internet service providers and social media companies to protect their users. The scheme is consistent with the Australian Government’s aggressive approach to regulating the dominant media corporations and if implemented, it will be a world first.

The Discussion Paper is currently under review and submissions responding to the proposals are open until 19 February 2020.

thebrief.muls.org | 7

Social Justice Corner

The Medevac Repeal:

Social Justice Politicisation at Work

D

Lauren Forrester

ecember 2019 saw Australia’s medical evacuation legislation for refugees and asylum seekers (‘Medevac’) repealed, reverting such evacuations under the purview of ministerial discretion.

Introduced in early 2019, the Medevac law allowed doctors to evacuate critically ill refugees and asylum seekers to Australia for urgent treatment. Initially, the law significantly increased medical transfers – with figures rising from 35 in 2017-2018, to 461 from July 2018 to February 2019. For detainees on the islands of Nauru and Manus Island, this repeal means medical care will be increasingly difficult in an environment where mental health and existing medical facilities are substandard.

Media reports covering the Medevac repeal focus on politics as opposed to social justice. Specifically, a secret exchange between the Coalition and Senator Jacqui Lambie leading to the success of the repeal – with 37 votes to 35.

The discourse of politicians is inevitably linked to social justice-centred legislation, but the extreme focus within this case ignores the refugee crisis. The deterrence argument would see a decrease in refugees and asylum seekers at the prospect of insufficient medical care in detention. However, Shaun Hanns, a former Home Affairs Department official, argues the repeal is a cruel initiative masked as deterrence that will undermine what was an effective and humane system.

At the core of this repeal lies a question of social justice. By ignoring this question, we allow for a potential failure of human rights. It places Australian politics ahead of the innocent lives trapped in detention

8 | The Brief

centres. This politicisation ignores human lives- and international obligations.

Australia’s obligations are sourced from international legal instruments, including but not limited to the 1951 Convention Relating to the Status of Refugees and later 1967 Protocol Relating to the Status of Refugees, International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights. The common obligation is a responsibility to safeguard the human rights of asylum seekers and refugees.

Australia can, technically speaking, flout these commitments. Off-shore detention does not officially violate the principle of non-refoulement. Australia cannot return an individual to a place of persecution, and offshore detention does not.

However, it can be argued that human rights are being violated. The United Nations High Commissioner for Refugees statement on the repeal cited it as disappointing, with concern for the health of detainees.

Placement in offshore detention has been argued as a violation of Article 31 of the Refugee Convention, as it is based on a refugee’s method of arrival.

Medevac will place medical evacuations in the hands of a minister as opposed to trained doctors. As a result, it is unlikely well-advised and needed evacuations will take place in the numbers they once were.

By politicising what is essentially a failure of a human rights obligation, the repeal shifts focus away from those who it affects most. As parliamentary drama and politics take the forefront in the Medevac repeal, the safety and health of refugees and asylum seekers knocking on Australia's borders remain in jeopardy.

Ed.1 2021

Under the Radar

WARNING: The following article contains explicit content including sexual assault and/or violence.

The Legal Hurdle of the #MeToo Movement:

Spotlight on the Craig McLachlan Case Vanie Cardinio

A

llegations of sexual violence made against film producer Harvey Weinstein in 2017 unveiled a paradigm of gendered hierarchies and exploitation within the Hollywood industry. This reignited the #MeToo social movement which empowered people worldwide to start a conversation about their own experiences of sexual abuse, elevating the issues faced by women daily. Reporting rates for sexual assault have subsequently increased since the movement. It was found by the Australian Bureau of Statistics that between 2010 and 2018, rates of sexual assault cases recorded for Australians aged 15 and over rose by more than 30%.

However, this partial victory for sexual violence survivors does not consider the rigorous and discriminative conduct that underlies the Australian criminal justice system. With the harrowing and intense experiences of cross-examination, it is unsurprising that victims of sexual violence have lost confidence in the system and may be reluctant to initiate any legal proceedings.

Law reform is needed to dismantle these practices of brutal interrogation and to reinforce the invalidity of inappropriate questioning during the trial process.

The recent Craig McLachlan case demonstrates the prevalence of using misconstrued notions of sexual assault in order to discredit the reliability of witnesses.

Mr McLachlan was charged with seven indecent assault Ed.1 2021

charges and six common assault charges relating back to the 2014 production of the Rocky Horror Show. The four women, who were also performers in the same production, made the allegations against Mr McLachlan. While the complainants’ evidence did not meet the high criminal standards, Magistrate Wallington remarked that the result may have been different had the current consent laws been applicable.

Magistrate Wallington’s final comments in the McLachlan case highlights the ‘troubling and outdated stereotypes of sexual assault victims’ put forward by the defence counsel. Mr McLachlan’s lawyer, Stuart Littlemore, was criticised for asking ‘inappropriate

questions’ of the female complainants such as the length of the average female labia majora or whether they were proud of their figure. Under s 41 of the Evidence Act 1995 (NSW), the court must disallow a question put to a witness in cross-examination if it is ‘belittling, insulting…or has no basis other than a stereotype’. Magistrate Wallington also raised concerns relating to the line of questioning by defence that focused on the complainants’ reputation, photographs on social media and even their choice of clothing.

It is these sexist conceptions that uphold the culture of victim-blaming which in turn, discourages other survivors from actively seeking legal support. The women in this case sought justice in the legal system – only to be met with prejudiced notions that denied them the integrity of their complaints. How can Australia participate in this global #MeToo campaign when its own legal system barricades the people it seeks to empower?

The next step in maintaining the #MeToo momentum is to listen to the survivors of sexual assault and to provide constant support throughout the litigation process. The legal community must also understand the power inequalities and traumas that govern sexual violence in order to dismantle the discriminatory culture that remains present in Australian courts. As emphasised

by Magistrate Wallington, ‘Times have changed’.

thebrief.muls.org | 9

Devil’s Advocate

Should there be harsher punishments for young offenders to discourage offending?

FOR Grace Drinan arsher punishments such as increased jail sentences and fines will discourage criminal behaviour in young offenders. As young people value their liberty, the threat of jail time may significantly decrease criminal activity in the demographic. Additionally, as young people often have less means to pay fines, as they are less likely to have full time work, with only 47% of respondents to a 2017 survey having a full-time job. Because an inability to pay a fine can lead to a short period of imprisonment, large fines may discourage reoffending. These measures can act as a deterrence for potential criminal activity in the first instance, or even recidivist behaviour.

For example, serious driving offences, such as dangerous driving occasioning death or grievous bodily harm are punished by prison time, and less serious, strict liability driving offences such as speeding are punished by an on the spot fine. These fines issued by police officers would also be harsher on young people, who may not have the means to pay such a fine. This may stop them from offending in the future. Furthermore, this is also relevant in the current COVID-19 climate. In order to deter citizens from breaking restrictions, on the spot fines can be handed out by police. These were largely handed out to young people, who accounted for more than half the fines from March 17 to June 28. These fines are more likely to deter young people from going outside and breaking restrictions, than more lenient penalties, especially considering young people were more likely to lose their job in the pandemic.

Harsher punishments for young offenders will prevent recidivism, especially for summary offences.

Statistics show that young people are more likely to

H

10 | The Brief

reoffend when convicted of less severe offences such as unlawful entry. Summary offences are the least serious and as such result in less severe penalties. However, according to a BOCSAR report from 2005-2015, 90% of young offenders reoffended for those convicted of unlawful entry. This signifies that more lenient punishments for less serious offences are unsuccessful at discouraging young people from reoffending. This suggests that there should be harsher penalties for these types of crimes to deter young offenders. This is especially the case consider these young people are much more likely to commit summary offences than serious indictable offences.

Harsher punishments for young offenders will reflect community expectations. This is evident in the UK case of the death of James Bulger where community outcry at the violent nature of the crime prompted harsh punishments for the two young offenders, aged 10.

Whilst community response is not the most effective deterrent for criminal behaviour, it is something to consider as community values are so integral to the criminal justice system.

Although non-legal mechanisms are also recommended to deter young people from committing crimes, such as education, harsher punishments are the best way to deter young people from criminal behaviour. Harsher punishments can directly impact their liberty, a commodity that young people value highly. While young offenders should not face the same punishments, as adults as it has been recognised, they have decreased cognitive function and ongoing brain development, harsher punishments are necessary. Harsher punishments will prevent young offenders from perpetuating a life of crime and are effective deterrent measures.

Ed.1 2021

AGAINST Morgan Graham arsher punishment for young offenders should not be implemented as this does not discourage offending. Harsher punishments would be ineffective in discouraging offending as young people are distinctly different from adults.

Young people have a reduced capacity for selfregulation and recognising the consequences of their actions because their cognitive structure and function is still developing. As a result, they are more susceptible to peer pressure and more likely to engage in impulsive, risk-taking behaviours. These symptoms of youth are exacerbated by social factors such as maltreatment, trauma, mental health issues, developmental delay and community exposure. Their developing cognitive function means that they will not be deterred from offending by the threat of punishment in the same way that most adults are.

Additionally, harsher punishments for young offenders are unnecessary as children are more open to reform due to their ongoing cognitive development.

Strategies focusing on rehabilitation and reintegration can be significantly more effective than harsher punishments, allowing young people to ‘grow out’ of criminal behaviour. Rehabilitation schemes, such as drug and alcohol rehabilitation, counselling or anger management practices, can respond to the underlying causes of offending while allowing the young person to remain within their community. These programs facilitate early intervention and can reduce re-offending by addressing behavioural issues through education and skill development. Rehabilitation programs encourage the young offenders to take responsibility for their actions while providing them with effective services which facilitate their reintegration into greater society.

H

Ed.1 2021

Unlike prison, which adopts a one size fits all approach, community rehabilitation schemes provide programs and services which address the specific needs of the individual. For example, Aboriginal youths are disproportionately overrepresented in the population of incarcerated young offenders. Programs which allow Aboriginal children to remain in their communities while still facilitating their rehabilitation are more effective than lengthy prison sentences. Instead of imposing harsher sentences, further investment should be made in community support services, including case management and mentoring programs, which reduce the risk of offending.

Harsher punishments in the form of longer incarceration sentences, increases the risk of recidivism, making such punishments ineffective in discouraging offending. Exposure to the criminal justice system in this overwhelming way subjects young people to negative behaviours, rather than teaching them how to become functioning members of the community. While imprisonment may be necessary for some serious offences, particularly where the young person is a repeat offender, this strategy of harsh, lengthy sentences will not reform offenders on its own and is inappropriate for some crimes, particularly summary offences. While the criminal justice system itself is not directly responsible for offending, it often exacerbates the causes of offending rather than addressing these causes candidly, leading to increased recidivism.

Additionally, the cost of incarceration (approx. $300 per young person per day) is significantly higher than that of community programs (approx. $23 per young person per day) making harsher punishments a less economical choice.

While addressing community concern around youth offending is important, appropriate punishments for young offenders must be determined based on the evidence of what is going to most effectively lead them away from criminality, not just community expectations.

Simply increasing sentences will be unlikely to make the community safer. It is important to address the needs of the specific young person and the causes of offending to truly discourage offending effectively. thebrief.muls.org | 11

Stayin’ Alive:

Will Australia’s Arts Sector Survive the Pandemic?

Max Gale

T

he coronavirus pandemic has decimated Australia's arts sector. When state and federal governments-imposed restrictions on public gatherings, cultural venues across the country immediately ceased to operate. Live music venues, movie theatres, and art galleries across Australia have only recently begun to open their doors again.

All of this has caused significant disruption to an industry which was already teetering on the brink due to successive funding cuts, ineffective workplace relations policy, and a highly impractical regulatory framework. Many arts organisations have been forced to downsize or otherwise go under. With tens of thousands of arts sector jobs lost and JobKeeper largely unavailable to arts workers, creative professionals have been forced to generate new income streams just to survive.

Ironically, with the Australian arts sector facing an existential crisis, 2020 was the year when we needed art the most. During the lockdowns, many of us turned to the arts to escape from the realities of the world around us. As we emerge from 2020, and with a recent study finding that 98% of Australians engage in the arts, we must acknowledge the immense value of cultural institutions to the Australian way of life. If the arts are not only going to survive, but also thrive, the law must be reformed in three key areas: workplace relations, public funding, and industry regulation.

Workplace Relations Australia’s rigid workplace relations system has 12 | The Brief

proven largely unfit for purpose in the modern arts sector. At the start of the pandemic, there was hope that the crisis would inspire a new era of workplace cooperation. For example, the Sydney Symphony Orchestra began consulting in good faith with their staff and their union, the Media, Entertainment and Arts Alliance (MEAA). By working cooperatively, both parties were able to reach a collective agreement under the Fair Work Act 2009 (Cth), which ensured all musicians retained their employment.

However, this outcome is a rare example of workplace cooperation during the pandemic. When employers and unions have both been unwilling to take a similarly cooperative approach, Australia’s rigid industrial relations framework has failed to achieve satisfactory outcomes. For example, Opera Australia dismissed over a quarter of their workforce without consulting their staff or the MEAA. These terminations, which continue to be litigated before the Federal Court, reflect the enormous cost of breakdowns in workplace cooperation for both parties.

Whilst the federal government has responded to this new dynamic with their proposed Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Bill 2020, it is unlikely this move will result in greater workplace cooperation. As the Bill seeks to suspend the Better off Overall Test for 24 months, water down the enforceability of the National Employment Standards, and reduce opportunities for protected industrial action, it is unlikely the unions will support the changes. Moreover, most of the changes Ed.1 2021

monthly incomes through monthly payments. The French government justifies this spending on the basis that the economic and cultural value that artists create far exceeds the costs of the policy. As it has long been acknowledged by economists that arts funding provides a significant multiplier effect, initiatives like the ‘intermittents du spectacle’ program could become a key part of the policy framework for Australia’s recovery from COVID-19.

are unlikely to excite arts employers, who seem more interested in addressing funding shortfalls, including the $250m grant pool announced last year, but is yet to be delivered.

Funding In order for our creative industries to thrive into the future, we must reform Australia’s arts funding model.

Whilst many may have the perception that the arts sector receives bloated amounts of government funding, it is actually the opposite that is true. In 2017, a federal government report found that the arts contributed to 6.4% of Australia’s GDP. At the same time, arts funding only made up just over a quarter of 1% of the 2018 federal budget. This is reflective of a broader trend in federal arts funding which has declined by 19% per capita since 2007-08.

Moreover, the little funding that does exist has been criticised for being poorly targeted. This has drawn criticism from the industry, including the MEAA, which has argued that to make the arts more accessible, the federal government should consider adopting a new national arts strategy which places a greater emphasis on investment in smaller community and regional arts organisations.

These recommendations would bring the Australian model closer to the approach taken by other OECD nations including France, which provides all arts workers with a direct wage subsidy. This is under the ‘intermittents du spectacle’ system which guarantees all artists a living wage by making up shortfalls in Ed.1 2021

Industry Regulation The failure of the law to keep up with technology also hurts artists. For instance, with the development of music streaming services such as Spotify and Apple Music, new complexities have arisen in the enforcement of licencing laws. This was recently demonstrated in Australasian Performing Right Association Ltd v Escape Bar & Night Club Pty Ltd [2017] FCCA 2690, where Escape Bar & Nightclub was fined $83,000 for breaching the Copyright Act 1968 (Cth) by streaming music they did not have a licence to use for commercial purposes. Although the outcome of this case is promising, it has become impossible for regulators to successfully litigate the extraordinary volume of cases where a nightclub, retail store, café, or other venue unlawfully streams music.

Moreover, due to the complex nature of Australian copyright law, there is considerable confusion in the artist community regarding their licencing rights and responsibilities. For example, if an artist wants to livestream their own music, they would generally be required to register it with APRA AMCOS and ensure they hold a current licence to use their songs every time they want to stream. By updating and simplifying industry regulation and providing regulators with the necessary resources to combat copyright infringements, a valuable income source for artists can be secured.

Conclusion Throughout the pandemic, arts organisations and creative professionals have demonstrated considerable resilience in overcoming the challenges presented to them by COVID-19. Although these disruptions are beginning to subside, profound structural issues remain, threatening the ability of Australia’s arts sector to continue providing the same cultural and economic value it always has. Ultimately, if our creative industries are to survive, policymakers must reform the law, particularly in the areas of industrial relations, public funding, and industry regulation.

thebrief.muls.org | 13

March on!

The ongoing protest in India Rimsha Acharya

T

he three farm acts passed by the Parliament of India in September 2020 have ignited a tidal wave of anger resulting in farmers' protests across states of India. Farmers have mobilised at Delhi's borders, bringing traffic to a standstill. The ongoing farmers' protest has garnered support across the country with people marching on the streets and demonstrators blocking highways and railway lines in various states. The three farm acts that have been passed are as follows: The Farmers' Produce Trade and Commerce (Promotion and Facilitation) Bill, 2020, The Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Act, 2020 and The Essential Commodities (Amendment) Act, 2020. The main point of contention with these bills is that it creates a free market in the agricultural sector meaning farmers no longer have to sell their produce at designated markets.

The bills also remove the Minimum Support Price (MSP) which means that there is no longer fixed price for certain produce that the farmers sell.

The Farmers' Produce Trade and Commerce (Promotion and Facilitation) Bill, 2020 creates a free agricultural market whereby farmers are no longer restricted to sell their goods within the designated APMC trade areas. Under this legislation, state governments prohibit imposing a market fee, cess or levy outside the APMC market.

14 | The Brief

The creation of a free market in the agricultural sector enables big farmers to sell at higher prices and sell to private corporations. However, the high transportation cost, especially for rural farmers limits their ability to find buyers who might yield them a better price for their produce. Moreover, should there be an increase in the cost of cultivation but a low selling price for products due to low demand, farmers, will be susceptible to fluctuations in the market where they will not receive a subsidy or MSP. The creation of the free market in the agricultural sector also means that the corporations are no longer required to honour the MSP. Farmers are able to sell outside of the APMC and enter into contracts with firms to sell their harvest. The Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Act, 2020: The act's primary purpose is to create a contract farming framework.

It is a legal means by which a farmer and buyer can have a legal agreement before production or rearing farm produce. Chapter III of the Act provides a dispute settlement mechanism between farmer and the buyer: the conciliation board, Sub-Divisional Magistrate and Appellate Authority. The Act enables the buyer to set conditions for producing, delivery, and many other matters. Farmers have noted that large companies are likely to curtail the product's price by rejecting the majority of the produce for not meeting their Ed.1 2021

specifications. Moreover, due to the need for loans, farmers are desperate to sell their crops during harvest time to ensure they can take new loans for the new planting season. Farmers fear that they will no longer be able to negotiate with big corporations and clauses may be added to the legal agreement resulting in an increase in farmers' exploitation.

The third Act is The Essential Commodities (Amendment) Act, 2020. The act allows the central government to regulate the cost of certain food items under extraordinary circumstances such as war, famine, high price rise or natural calamities. Staple produces will no longer be placed under essential commodities meaning that big corporations can stockpile commodities, thus dictating these goods' cost. It can directly affect the farmers as it could lower the farmers' bargaining powers and raise the cost of goods for the general public.

To understand the ongoing farmers' protest, it is crucial to look at India's agriculture history, starting at the Green Revolution of 1960. Until the 1960s India was a food deficit country; however, the introduction of Green Revolution technology-enabled advances in food productions and food security. The Green Revolution technology required farmers to use high-yielding seeds, fertilisers and vast amounts of water instead of their own crops for seed. The Agriculture Produce Marketing Committee (APMC) was created as designated wholesale markets, where Minimum Support Price (MSP) is offered directly to farmers to assure a fair price for their harvest with the new technology. Establishment of APMC aimed to eliminate farmers' exploitation by intermediaries and creditors where they were forced to sell at low cost due to distress. The creation of APMC restricted farmers to sell their harvest at the designated committee, which enabled the government to purchase a supply of grain for the public distribution system to supply staples to the poor at subsidised rates.

One point of contention has been the lack of consultation with key stakeholders such as the farmer unions when the Lok Sabha (lower house) enacted new legislation. Moreover, the government passed the controversial bills without allowing discussion on important issues presented by the opposition. The BJP is the Ed.1 2021

ruling party in India and holds the parliamentary majority. The hast way in which the bills were passed using the BJP parliamentary majority is the reflection of the character of Prime minister, Narendra Modi's critical decisions such as the policy of demonetisation in 2016, hasty rollout of goods and services tax in 2017 and the nationwide lockdown with 4 hours' notice to contain COVID. The agriculture sector contributes to approximately 18% of India's GDP and employs nearly 60% of the population in India. The majority of the agriculture sector workforce comprises the rural population who have very few options other than agriculture. In the farming sector, majority of India's farmers own farms smaller than three acres and mostly engage in subsistence farming. Only when available is the surplus sold to private traders, resulting in these farmers' income to remain just over $1000 a year, making them highly sensitive to market fluctuations. The stagnating agricultural productivity and the lack of job creation in the manufacturing sector have created job security fears, especially with rural farmers. Technology contributes to approximately 8% of the country's GDP; however, it employs less than a third of 1% of the population. There is a growing fear that the enactment of new laws will make family-owned farms unviable.

The enactment of new legislation promises benefits to the farmers on the surface; however, the agricultural sector's complete deregulation is likely to do more harm than good, especially to rural farmers. A decrease in farming incomes is expected to contribute to the increasing farmer suicide epidemic. Further, the introduction of high-yielding rice and wheat varieties in the 1960s has led to a drop in groundwater to critical levels. Farmers have resorted to digging their bore wells deeper and using vast amounts of chemicals in their fields to fend off increasing pest attacks. The high cost of agriculture has led to farmers taking on more debt and crop failures has seen the destruction in generations of rural families. Despite several talks between the farmers and the government, the deadlock persists; however, it is vital for the government to recognise the importance of farming to India's labour market. thebrief.muls.org | 15

The value of judicial activism

in promoting climate resilience

I

Amelia Smillie

t is an incontestable fact that climate change will have a substantial impact on the global environment, and consequently, society. This is already being felt, with an increase in the frequency and intensity of natural disasters such as droughts, flooding, storms and bushfires.

Other symptoms are of longer duration, including a rise in sea levels and an increase in temperatures causing variations to local ecosystems and impacting the liveability of many cities. Climate resilience is the ability to anticipate, prepare for, and respond to extreme weather events and/or natural disasters caused directly or indirectly by the change in climate. In Australia, it is imperative that the government at every level understand these risks and adapt their decision making to become more climate resilient. However, if the most severe effects of global heating are to be avoided, other institutions, including the judiciary, have a role to play.

The Land and Environment Court of NSW is leading the way in promoting climate change resilience, prompting consideration of the value of judicial activism.

16 | The Brief

Traditionally, the norm of judicial interpretation in common law countries has been strict formalism. Sir Owen Dixon, an eminent High Court Chief Justice, famously stated ‘there is no other safe guide to judicial decisions in great conflicts than a strict and complete legalism’. The value of black letter legal decision making is strong. The principle of responsible government is predicated upon the notion that decisions are made by democratically elected who have been democratically elected. The safeguard to prohibit their tyranny is that if they make disagreeable decisions, the people vote them out. As unelected representatives, this protection does not exist at the judicial level. Further, it is necessary for the integrity of the institution of law that the judiciary be seen as a political, unbiased adjudicator, a notion threatened by ostensible activism.

Judicial activism is a highly contentious practice in Australia, often polarised linear to political factionalism.

Whilst most note with approval the activism of the High Court in Mabo v Queensland (No 2) that overturned the prevailing legal fiction of terra nulllius, judicial Ed.1 2021

activism remains the subject of extensive criticism, especially from conservative commentators. The recent High Court decision in Love v Commonwealth of Australia held that Indigenous Australians cannot be considered ‘aliens’ even if they are born overseas and have never sought Australian citizenship. The Australian, a Murdoch publication, described this decision as ‘a legally bogus exception based on race’ that was made with ‘scant regard to the law’. More persuasively, current High Court Chief Justice Susan Kiefel, in her dissenting opinion, rejected the decision of the majority as ‘antithetical to the judicial function since they involve an appeal to the personal philosophy or preference of judges’. The developing trend in the Australian Courts of legal activism is clearly not uncontroversial or settled.

This leaves society with a significant problem in the field of climate litigation and the ability of the courts to promote climate resilience. Without judicial activism, judges are required to strictly interpret the law that exists. However, in Australia, and specifically in New South Wales, the legislation regarding climate resilience is grossly inadequate. Australia obtained the lowest ranking possible in the 2020 Climate Change Performance Index prepared by a group of reputable international thinktanks. Rather than create policy promoting climate resilience and reducing the contribution of Australia to anthropogenic climate change, Australia continues to support the fossil fuel industry and seeks to avoid meeting the Paris Agreement targets. It is therefore necessary for judges to look beyond the legislation when considering cases in which the impacts of climate change are relevant, or risk creating outcomes that are unjust and inconsistent with the values of contemporary society. Judicial activism is not only inevitable in these circumstances, but necessary and should be encouraged.

The landmark Gloucester Resources Ltd v Minister for Planning (‘Rocky Hill’) case brought to the attention of the nation this tension between strict legalism and the promotion of climate change resilience. After the Department of Planning refused to approve a new coal mine which would produce 21 million tonnes of coal over 16-years, Gloucester Resources Ltd (‘GRL’) appealed to the Land and Environment Court of NSW. The mine was to be located in close proximity to the idyllic town Gloucester, and close to world heritage listed Barrington Tops National Park.

Preston CJ refused to allow the merit appeal in a decision celebrated by activists, environmental scientists and environmental lawyers globally. His Honour found Ed.1 2021

that the proposal would be contrary to the public interest for a number of reasons. Uncontentious amongst those are the negative visual impacts, negative noise impacts and loss of social amenity including the reduction in the tourism and agri-tourism the region attracts due to its status as pristine and untouched. It is common for development proposals to be rejected on these grounds. What makes this decision significant is that Preston CJ held that the greenhouse gas (‘GHG’) emissions of the coal mine and its coal product ‘will increase global total concentrations of GHGs at a time when what is now urgently needed… is a rapid and deep decrease in GHG emissions’. This is the first time that an Australian court has rejected a proposal to harvest fossil fuels on the grounds that the Scope 3 emissions, being emissions that are produced through the use of the mined product, not necessarily in proximity to the mine itself, will be harmful to the environment and consequently contrary to the public interest.

The Rocky Hill decision is clearly within the parameters of existing law, despite being a landmark case. The State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 s 14(2) mandates that downstream GHG emissions must be taken into consideration and the Environmental Planning and Assessment Act 1979 s4.15(1)(e) mandates that the court is required to consider the public interest, which has been taken to include the principles of ecologically sustainable development. Further, Preston CJ pointed to many cases, some decided in Australia and others in other common law jurisdictions, that hold that indirect, downstream impacts are a relevant consideration in fossil fuel planning proposals. His Honour provided detailed legal justification for the decision.

Despite the clear legal basis for the decision, it has been criticised by National Party MP Michael Johnsen as ‘smack[ing] of judicial activism’. In response, the CEO of the Environmental Defenders Office, argues that Preston CJ wasn’t being an activist, as ‘(he doesn’t) accept that using the laws as they exist is a radical or activist thing to do’. Even if the result of activism, the decision was consistent with public sentiment regarding the need to respond to climate change, and necessary to ensure that the law remains consistent with societies changing values. Despite the risks discussed above, the Rocky Hill case elucidates that judicial activism should be encouraged when it serves to promote climate resilience, provided that judges stay within the parameters of the law.

thebrief.muls.org | 17

Masks of Democracy: Australian Democracy and the COVID-19 Pandemic Robert Rosina

E

xtreme measures to mitigate and combat the coronavirus disease 2019 causing virus SARS-CoV-2 (‘coronavirus’), including severe restrictions on movement and the right to work, have been implemented worldwide subsequently prompting accusations of tyranny within Western democracies. By examining historical precedent, federal and state legislation, socio-political power dynamics, and proportionality, this article explores whether Australian democracy–the inviolable principles of constitutionality, the rule of law, and liberty–has proven resilient enough to survive the coronavirus pandemic.

Although Australia’s coronavirus response seems like a departure from traditional governance, some policies such as those concerning lockdowns do have historical precedent. Examples include schools being closed occasionally due to the flu, Sydney being declared a quarantine zone in 1913 after a smallpox outbreak, and the 1918-19 Spanish Flu pandemic necessitating restaurant closures. Following 70 years without institutional change due to a lack of outbreaks, Australia’s quarantine policies began to incrementally adapt in recent decades, moving toward ‘broader measures’ and social distancing following several outbreaks. Current policy has been peculiar in that stay-at-home orders have confined not just the sick, but also those who are not sick and have not been exposed to the sick. Additionally, open-ended business closures, mandatory mask wearing, and state border check points are similarly unprecedented.

It is these points of difference that cause concern and raise questions as to the constitutionality and proportionality of recent measures.

18 | The Brief

The predominant federal instruments affecting policy are the Australian Constitution and the Biosecurity Act 2015 (Cth). Although non-statutory executive powers allow for the executive to act without statutory authority, Parliament can only make laws using the express powers delineated in the Constitution which makes two mentions of public health: once within Section 51 (ix) granting the power to ‘make laws for the peace, order, and good government of the Commonwealth with respect to… quarantine’, and within Section 69 requiring states to transfer quarantine services to the Commonwealth.

The meaning of ‘quarantine’, undefined by the Constitution, has led to some confusion; although federal action may appear outside the colloquially understood meaning ‘isolating the sick from the healthy’, it is the alternate meaning— ‘a strict isolation designed to prevent the spread of a disease’—which correctly frames Parliament’s quarantine intervention.

Contrasted against this narrow constitutional power is the Biosecurity Act 2015 (Cth), which purportedly derives its legitimacy from a host of Commonwealth heads of power; the instrument empowers Parliament to combat an ‘unacceptable biosecurity risk’ beyond mere quarantining in a broad range of circumstances.

Yet federal legislation has been quite conservative, with more aggressive interventions left to the states.

Although later decisions have since expanded federal power, the contemporary approach is perhaps informed

by High Court jurisprudence which has historically restricted attempts by Parliament to legislate in relation to non-quarantine aspects of public health, such as in the 1945 ‘First Pharmaceutical Benefits’ case which established a prohibition on requiring citizens to ‘submit to vaccination or immunisation’.

Ed.1 2021

States, on the other hand, have aggressively made use of their expansive legislative powers granted by the Australian Constitution. Essentially, subject to the provisions of the Australian Constitution, states are typically empowered by their respective constitutions to make laws ‘in all cases whatsoever’. During the coronavirus pandemic emergency measures have been enacted by states through reactive lawmaking, passing legislation establishing directives such as stay-at-home orders and mandatory mask wearing—legislation often reliant on state public health acts whose enforcement provisions demonstrate a near-unconstrained power to deal with public health risks. To be clear, although such actions go beyond the powers of the Australian Constitution, state-wide non-quarantine measures do not offend the federal Constitution but merely fall outside federal powers; as there is no inconsistency of laws, they are prima facie constitutional.

In spite of this, the coronavirus pandemic has induced social and political power changes that could nonetheless tangentially undermine Australian democracy. Shifts in economic power, for example, may have undermined democracy in a pragmatic sense, with billionaires worldwide increasing their wealth (and therefore influence) by over a quarter due to the pandemic. With regard to state power, Parliament has ensured emergency legislation contains sunset clauses—provisions automatically repealing the legislation—which should somewhat reassure sceptics claiming the virus is being used as a tyrannical power grab. However, economic historian Bob Higgs’s ‘ratchet effect’ thesis on incremental government growth suggests that governments, regardless of constraint in the form of temporary measures, do in fact retain a degree of powers amassed during an emergency.

Insofar as how this intersects with coronavirus policy, justifications within emergency legislation have cited a requirement for a ‘risk to public health’, the grounds for which being that people have contracted the virus, that there has been a response to the virus by public health authorities, and that the virus is potentially fatal and highly contagious. As this justification could just as easily be used every flu season, it is concerning from the perspective of proportionality.

Given the low risk of fatality for the general population, and the uncertainty of the effectiveness of extreme measures versus other approaches, the coronavirus response may not be proportionally justified. Constrained by their respective constitutions prohibiting more aggressive countermeasures such as Ed.1 2021

lockdowns, countries including Sweden and Japan– the latter having one of the lowest coronavirus death rates per capita from coronavirus–demonstrate a more proportionate response to the coronavirus outbreak.

Alternatively, Australia’s most draconian ‘police state’ response, Victoria, has attracted criticism worldwide for its illiberal and highly-publicised authoritarian treatment of its citizens, including hypercautious lockdown measures and aggressive police responses.

Government incompetence and power avarice, and mass hysteria exacerbated by irresponsible reporting, can foster irrational responses to an indefinite number of ‘public health risks’ in accordance with the justifications provided in the emergency legislation. These dangers must be tempered by increased scrutiny in the form of objective criteria; without this level of vigilance and accountability Australian democracy can be subverted with ease in the interest of purportedly combatting anything threatening public health—a ‘war on’ racism, domestic terrorism, or climate change, and so on.

Australian democracy has shown surprising resilience during the pandemic, but public policy has not been beyond reproach. Federal quarantine measures have been similar to historical policies and do not seemingly offend the Australian Constitution, and although the constitutional justifications for the Biosecurity Act 2015 (Cth) are dubious, non-quarantine measures have nevertheless predominantly fallen to the states whose actions, even if oppressive and authoritarian, evidently fall within expansive state legislative powers. In spite of political constraint, the socio-political power changes which have transpired during the pandemic have empowered governments and influential elites, potentially resulting in covert, long-term democratic backsliding. Most importantly, extreme coronavirus policies undermine Australian democracy when proportionality is considered, and when appeals to a ‘risk to public health’ or an ‘unacceptable biosecurity risk’ are essentially unconstrained. It is incumbent on the democratic citizens of Australia to recognise that disproportionate, authoritarian lawmaking, federal or state, regardless of legal justification, constitutional or otherwise, is nonetheless an infringement on liberty; a mere mask of democracy. The enduring resilience of Australian democracy is therefore contingent on legitimate public health policy achieved through proportional responses, not simply legally justifiable ones, and establishing objective and clearly defined limits on our governments’ ability to declare public emergencies. thebrief.muls.org | 19

The Resilience of

Racism in Australia Tomas Ditton

D

o Black Lives Matter?

While Covid-19 restrictions were coming into force, the Black Lives Matter movement was out in force. The protests have made Australians confront the resilience of racism against Indigenous Australians and the legacy of colonisation.

Origins The hashtag ‘Black Lives Matter’ that spawned the original American movement first appeared in July 2013 on Twitter in response to the acquittal of George Zimmerman in the shooting of Trayvon Martin.

References to the phrase ‘Black Lives Matter’ appeared in Australia during protests following the August 2014 death of Ms Dhu, an Aboriginal woman, in police custody. The movement fully emerged in Australia with a dedicated Black Lives Matter rally in Melbourne in 2016. The movement was awarded the Sydney Peace Prize in May 2017.

Movement in Australia in 2020 The protests in America over the death of George Floyd in May of 2020 inspired Australian protests to Aboriginal deaths in custody. Simultaneously, Covid-19 in Australia was spreading like the bushfires. The concomitant public health order restrictions meant that the planned protests on 6 June would occur in defiance of the orders.

In New South Wales, the Supreme Court initially ruled that the protests could be stopped under the Summary Offenses Act 1988 (NSW) because the organisers had not complied with the notice requirements for a public assembly under s 23(1). However, this was overturned on appeal due to the Court finding that the protest organisers had complied with the notice requirements and that the Commissioner of Police had not satisfied the statutory steps needed to oppose the public assembly. Tens of thousands of people then lawfully marched in Sydney alone.

The movement itself brought attention not only to black deaths in custody across the world but brought

20 | The Brief

home the severity of systemic racism. In Australia, the movement has profound significance for Aboriginal and Torres Strait Islander experiences of violence, trauma and discrimination. Indigenous Australians constitute approximately 3% of the Australian population but comprise 29% of the national prison population.

Such disproportionate detention itself undermines the resilience of Indigenous communities to thrive as autonomous cultures free from discrimination and the pernicious effects of criminalisation. Moreover, since the 1991 Royal Commission into Aboriginal Deaths in Custody report, which recognised the effect of detention rates on the high death in custody rate of Indigenous Australians, there have been at least 455 Indigenous deaths in custody in total, including the more widely publicised deaths of Ms Dhu, David Dungary, and Tanya Day. There were a further 7 deaths in 2020.

A salient cause in Indigenous detention rates is historical. Australia’s history as a colonial possession is also a history of Indigenous dispossession. But Aboriginal and Torres Strait Islander people have not only been deprived of their land, they have been deprived of their culture, their liberty, and even their lives. The fact that aboriginal people are detained so disproportionately evinces that this oppression continues today. Unfortunately, racism is resilient.

The State’s Response While the initial protests were unable to be stopped in Sydney, subsequent protests and Court challenges were less successful. Amid growing concerns over the transmission of the virus in Melbourne and the threat of Covid-19 to public health, the Supreme Court found that the Commissioner of Police had satisfied the statutory requirements to oppose the public assembly and the implied freedom of political communication could not overcome the interest in public health. Thus, the Sydney protests on 28 July were stopped by police.

Based on the Melbourne protests, there were many claims from people, including Deputy Prime Minister Michael McCormack, that it had spread Covid-19.

Ed.1 2021

However, there was no evidence to support such claims.

Even where attendees of the protests tested positive after the event, they likely contracted the virus from a source other than at the protest.

McCormack’s views represent the dismissive attitude of the government to the movement. Rather than engage with the protestors demands, the state’s response was to crack down on the protests themselves.

Such an attitude either intentionally or unintentionally endorses the suppression of Indigenous people’s voices and strengthens the resilience of racism.

Broader Cultural Reckoning The movement inspired an examination of perceptions of race within Australian society more broadly. Indeed, the movement resonates with refuges in Australia.

Statues of historical figures associated with slavery or colonisation were pulled down across the world. Due to requests from either streamers or makers, shows featuring blackface were removed from digital platforms including four of Chris Lilley’s programs. Gone with the Wind was also removed from streaming, and white voice actors of non-white characters were forced to step down from The Simpsons and Family Guy. Collectively, these actions reveal the unfortunate resilience of racism within our domestic and global culture. Domestic popular culture generally reflects an image of Australian society as white, such as the white cast of Home and Away. It is a white face that black people are forced to see when they look in the cultural mirror.

The 2020 Australian Reconciliation Barometer Summary Report found that 60% of Aboriginal and Torres Strait Islander respondents agree that Australia is a racist country compared to 43% of the general community.

Ed.1 2021

52% of Aboriginal and Torres Strait Islander respondents reported having experienced an incident of racism in the last year. Thus, despite actions taken to remove racially controversial material, the disparity between perceptions is suggestive of the general community having a distorted view on race relations in Australia. Moreover, acts of censorship are tokenistic. It is legal, social, and economic reform that is needed.

2021 While the alteration to the National Anthem of ‘young’ to ‘one’ suggested some symbolic hope, such a gesture ultimately does little to address Indigenous discrimination without other actions such as justice system reforms. Furthermore, on 12 January 2021, Michael McCormack compared Trump’s supporters storming the US capitol in January to the Black Lives Matter protests. When criticised for making such a comparison, McCormack responded that ‘[a] ll lives matter’. This comment is problematic as it is associated with opponents of the Black Lives Matter movement. As such, McCormack’s comments attempt to undermine the legitimacy of the movement.

Moreover, McCormack’s comment is redundant because the Black Lives Matter movement calls for race equality, not race supremacy. Such comments signal the resilience of racism in Australia and its influence on the top levels of government.

On Australia Day in 2021, invasion day protests across Australia echoed the calls of the Black Lives Matter movement. The day represents a traumatic remainder of a violent past to Indigenous people. Yet, it also represents a violent present. A present in which racism is resilient. thebrief.muls.org | 21

Doing Business with China:

T

An Ongoing Dispute Chloe Poole

he outbreak of COVID-19, diplomatic disputes, economic coercion and trade restrictions continue to characterise the growing tensions in Australia’s relationship with China. Amidst the shaky political climate, the feud has created new laws, restrictions and perspectives for both nations. What has been emphasised amidst this climate is Australia’s perseverance in decision-making, reasonable exercise of sovereign powers and protection of its people. This article will discuss the ongoing feud between Australia and China which has highlighted Australia’s resilience.

How Did the Tensions Arise?

Following the establishment of a diplomatic relationship with the People’s Republic of China in 1972, the Australian embassy in Beijing was constructed. Upon the foundations of mutual interests, economic exchange and strong trade complementarities, the bilateral relationship between Australia and China was formed. Fast forward to the current complex strategic partnership, China has quickly become Australia’s largest two-trading partner in goods and services worldwide. Although the 22 | The Brief

bilateral relationship has yielded beneficial outcomes for both nations, it has come to a halt owing to the disagreement between nations.

Following the outbreak of COVID-19 around the globe, Australian Prime Minister Scott Morrison proposed a thorough investigation into the origins of the pandemic. Defying China, Morrison pursued the inquisition labelling it as an entirely reasonable and sensible course of action. China then responded to Australia’s conduct by introducing an 80% tariff on Australia’s imports from China. Consistent with the deteriorating bilateral relationship, in August of 2019, Australian Treasurer Josh Frydenberg declared that a proposed $600 million acquisition with a Chinese company was contrary to national interests. Adding further to the withering relationship, renowned Australian-Chinese journalist Cheng Lei was detained in China under unknown circumstances, fuelling the growing political pressure.

Why Isn’t Australia Enforcing Its Own Trade Restrictions?

If Australia were to establish trade restrictions against China, a large portion of global support would decrease.

Ed.1 2021

Due to the mutual interests and respect of international law, increasing practical blockades retaliating against China would not favour Australia’s Government. Also, appeals by the Australian Government to the Chinese administration would ring hollow and not appear as genuine. Additionally, it should be reiterated that China’s capability to exact economic damage upon Australia is much greater than Australia’s ability to inflict economic damage upon China.

International Law Obligations Amidst the current political climate, Australian Government representatives have demanded that China’s authorities make their conduct very clear and honour their commitments to the World Trade Organization (WTO) and Chinese-Australia Free Trade Agreement (ChAFTA). In response, a Chinese foreign ministry spokesperson hoped that Australia could do more to enhance mutual trust and bilateral cooperation… and bring the bilateral relations back to the right track as early as possible. In relation to the World Trade Organisation rules, Australia has repeatedly stated that China may also be in breach of certain provisions. Emphasising this point, Australian leaders have asserted that the Chinese government’s lack of engagement has prevented China’s adherence to the WTO and ChAFTA obligations. The continued feud between China and Australia has emphasised notable legal obligations which remain subject to dispute.

The 2020 Proposed Bill In September 2020, the Morrison government proposed Australia’s Foreign Relations (State and Territory Arrangements) Bill 2020 conferring the Foreign Affairs Minister the power to veto international agreements reached by any Australian state and/or territory government. The 77-page bill outlined the specific review power necessary to ensure foreign agreements did not adversely affect Australia’s foreign relations.

Consistent with the levels of potential impact, the provisions range from deliberately broad to extensively narrow. Reiterating the 2020 proposed bill, the law is relevant to all arrangements between state and/ or territory entities and foreign entities, irrespective of whether the arrangements are considered legally binding. The forms of agreements including – inter alia, memoranda of understanding, contracts and other legally binding agreements. Enumerated within the bill, entities have the ability to notify the Minister about future plans to enter into an agreement. As a response, the Minister is allowed a maximum of 30 days to Ed.1 2021

ascertain whether the agreement will adversely affect Australia’s foreign relations.

The Australian government has frequently argued that the new powers are not targeted at any particular country. Published explanatory notes confirm this position by noting that the new framework is countryneutral and does not target any particular foreign state, but is concerned with protecting and managing Australia’s foreign relations across all levels of Australian government. In response, China has urged Australia to adopt constructive China policy instead of a destructive one.

Legal Implications From December 2020, the Foreign Minister of Australia became a whole lot more powerful. Why? Because the Federal Parliament passed the Government’s proposed bill in full. This conferred to the Commonwealth the power to veto any agreements with foreign relations that are inconsistent with Australian foreign policy.

Research Fellow at the Asia Institute of the University of Melbourne, Ms Melissa Conley Tyler, expressed that the proposed veto power created another trigger for the relationship to deteriorate. Framing this bill as a matter of principle, rather than a targeted legislative instrument, has left significant ambiguity regarding the nature and scope of this bill. Additionally, the Government’s ability to construct and pass a bill within 4 months has been the subject of criticism by several opposition leaders.

What Happens Now? In comparison to other Western nations, Australia has attempted to take a more strident approach, endeavouring to honour international law standards and mutual respect for the rule of law. However, these attempts of reconciliation and compromise have been ignored and repudiated on numerous occasions.

Despite Australia’s historical feuds with China, the nation has continued to promote flexibility and adaptability throughout its conduct. The Australian Government has remained transparent, acting in the nation’s best interests and putting its people first.

Despite accusations of premature decision-making, Australia has maintained its sense of responsibility and commitment to nationhood. The nation has fostered resilience in upholding their fundamental beliefs, maintaining political and social conversations and ensuring that all decisions have been met with reason and logic. Ultimately, allowing China to make the next move. thebrief.muls.org | 23

Activate your career.

Practical Legal Training

Cormac Foley Solicitor, Danny King Legal Graduate of the University of Wollongong

• • • • • •

Only 5 days face-to-face attendance More than 20 start dates in NSW in 2020 15 weeks full-time or 30 weeks part-time study options Emphasis on task-based, practical learning 15 days and 75 days work experience options The preferred provide to 9 of the top 10 law firms

Learn more at collaw.edu.au/PLT 24 | The Brief

Ed.1 2021

A Brief Conversation

with

Kathryn Viegas Brindha Srinivas

K

athryn Viegas is the Director of Nomos Legal and is an Accredited Specialist in Immigration Law, an accreditation which only 41 immigration lawyers hold in New South Wales. A migrant herself, Kathryn’s immense passion for advocating for the rights of the most disenfranchised has allowed her to encounter individuals in their most vulnerable states. Boasting a wide portfolio, Kathryn balances her passion for her practice with other noble pursuits including holding positions as the President of the Immigration Advice and Rights Centre, as well as Secretary of Diverse Women in Law. I spoke to Kathryn about her encounters of resilience and the challenges of working in immigration law post COVID-19. I am truly honoured to have had the chance to speak to Kathryn whose commitment to social justice has never wavered. The Brief would like to thank her for her time and incredible insight into the ever-changing landscape of immigration law.

Ed.1 2021

Throughout your career you have advocated for the rights of the most marginalised within Australia’s immigration program, including asylum seekers and people living with HIV and other medical conditions. How have you personally seen acts of resilience from individuals and/or communities?

What does resilience mean to you?

In my work as an immigration lawyer anyone I encounter who is going through some form of migration process, whether that be applying for a temporary visa, permanent residency or pursing judicial review, all of them are required to demonstrate some form of resilience. It is a daunting process which is amplified for those who are asylum seekers or people with medical conditions. One of the things I learnt pretty early on in my career when I worked at the HIV/Aids Legal Centre was that these particular cohorts of clients have additional barriers to face when applying for a visa. For them, the process is more stressful and takes longer.

There is an element of resilience required for anybody who is looking to migrate but particularly so where there is a complication in their case. I have had clients who have been physically tortured and are survivors of trauma. One client in particular faced a 10year process before he finally got his visa. When compounded with all of his physical and medical conditions there was that continual sense that this could be the day that the Department or Minister would tell him that he would have to pack up and go. Every time I think of clients like him, I have tremendous respect and admiration for their resilience.

Towards the end of last year, we saw that France rewarded COVID-19 frontline immigrant workers for their service to the country with fast-track citizenship. Australia has also flagged temporary concessions for those who are not able to travel offshore to be granted visas due to COVID-19 related border closures. In your opinion how has the Australian government supported or not supported visa applicants and the greater immigrant community during the COVID-19 period?

The French decision to reward frontline workers was a fabulous one. Here was a country in a desperate situation who acknowledged the role that visa holders and migrants played in working towards resolving the pandemic and what better way to reward them than with the stamp of approval for citizenship. I thought it was a really generous and welcoming gesture. thebrief.muls.org | 25

Australia's response has been a little bit different.

There have certainly been some attempts to try and make things more straightforward for visa applicants.

With the uncertainty of the pandemic, we are sitting here 12 months later almost in the same position as we were in March of last year. I can appreciate that for the government it is very hard to make effective decisions when you have no end in sight. A lot of the decisions that were made early last year I imagine were made with the view of the pandemic lasting for maybe six months and then we would perhaps go back to normalcy. Now that we're 12 months down the track the reality of how the pandemic has actually affected people is starting to hit home and the government is having to deal with questions that perhaps they haven't thought about in March of last year.

As advisers we have struggled with trying to navigate this system. There is a great deal of uncertainty and coupled with this is trying to reassure a client who is already stressed and anxious. I am glad to see that finally we have some sort of movement in terms of concessions for people experiencing COVID-related complications that perhaps we could not have foreseen last year. One example is changes to where you have to be to be granted a visa. We are starting to see some practical steps to tackle this such as allowing a certain cohort of people to be able to be granted their visas onshore. It might not have been timely enough for some people, but it is progress.

The other aspect of how visa holders have been treated through the pandemic are issues to do with JobKeeper and JobSeeker. We have all seen the 26 | The Brief

coverage where temporary visa holders were denied access to JobKeeper. This has not only impacted the visa holder but their employers.

It has been a mixed bag for visa holders through the pandemic, but I am glad that we are seeing a bit of reason and some practical strategies to try and at least help people who are stuck in limbo trying resolve their status.

I definitely support how France has smoothly handled their frontline immigrant workers. What are some difficulties/challenges that come with working in immigration law?

In terms of the legal issues, the Migration Act 1958 is a massive piece of legislation and it has associated regulations, policies and instruments that you have to be familiar with in order to properly advise clients.

Immigration law is also a quickly changing environment.

Sometimes the changes are unexpected and other times we are given some warning in order to prepare clients. For example, in 2017 when Prime Minister Turnbull made the announcement that they were going to abolish the Subclass 457 Visa, the work visa that most foreign nationals used to come and work in Australia, the timing of that announcement took us all by surprise. Many people only became aware of it via a Facebook post. Within half an hour of the announcement being made we had phone calls and were scrambling for information to assist our clients.

In the last few years, we've had a lot of information being disseminated to us and the public by way of media release or announcement and then quite often Ed.1 2021

the substantial law comes afterwards, so staying on top of these is vital. The rapid changes in this environment are difficult to keep on top of but in many ways, I enjoy that challenge.

Another difficulty is the fact that the cause is politicised quite often, and it can be hard to reconcile yourself as a practitioner to some of the laws and policies that are being enacted.

For me, this has been particularly relevant in the asylum seeker space where questions about the government's policy on offshore detention and how we treat asylum seekers is prevalent. I try and bring myself back to the client’s experience and I focus on tangible steps I can take to assist them, because I think that's ultimately what my purpose is.

The other thing that sometimes makes it challenging, certainly when I first started and in fact was the very thing that attracted me to immigration law was that it is entirely based around people. Everything that you do is related to one individual, a family group or sometimes a business. This can sometimes also be draining when you're really passionate about their case.

It can be difficult to maintain a professional boundary. In that way it is hard to navigate your own resilience.

I wanted to be able to help people through my law degree and it's lovely to sometimes get an email from somebody who I haven't seen in 10 years, but they just wanted to tell me that they were thinking of me. Moments like that remind me of the power that we can have in somebody else’s life and I think that is a true privilege.

I understand that you are also the President of the Immigration Advice and Rights Centre, which is a community legal centre that provides free information, legal advice and representation to vulnerable migrants. I note that IARC is actively involved in policy development and law reform, having made submissions on temporary migration, family, domestic and sexual violence as well as the Migration Amendment (Prohibited Items in Immigration Detention Facilities) Bill 2020.

Why is law reform integral to immigration law?

Law reform is pertinent in this area because we're talking about the administration of government power. I think it is really important for organisations such as IARC to be involved in Ed.1 2021

the process of making submissions as the staff are on the frontline of dealing with the reality of people in vulnerable positions. It is critical for us to be making submissions as there is often a gap between theory and practice. What we often find in many of the committee hearings is that solicitors will speak about the issues that they've raised in their submissions and a Senator for example might not have heard of that sort of experience. They might not have turned their minds to a particular issue because they are operating at a completely different level, the theoretical level. They understand the law, but they cannot always foresee the impact of that law on the community. For this reason, I believe that making policy submissions and being a voice for a number of people who may otherwise be voiceless is one of the most important things IARC does.

What advice would you give to students who have a particular interest in immigration law and pro-bono work? How can they get involved?

If a student is definite that immigration law is an area that they want to pursue I would suggest contacting immigration law firms and asking for opportunities whether that be through placements, internships, legal assistant or paralegal roles. Now, with LinkedIn as a platform it becomes much easier to connect to people and I think that it is an excellent way of being proactive and trying to put yourself in that space if that is your area of preference. Additionally, getting involved with organisations such as Diverse Women in Law (DWL) where we have a mentoring program allows individuals to network with professionals who may be in the field that they are interested in or to have a discussion about career progression. Another great starting point would be to contact community legal centres (CLC) if you’re keen on pro bono work and see if they are running their volunteer programs. That’s what I did, I made a list of accessible CLCs and asked if I could do my PLT with one of them and was fortunate enough to be offered 2 different placements. I learnt more in those roles than I would ever have imagined in terms of the different clients and their stories. We all get letters of rejection or silence, but I think simply putting yourself out there can sometimes open up a door that you might otherwise not expect. thebrief.muls.org | 27

Admissions of a Law Student

- SATIRICAL -

Confessions from Macquarie’s Elite Adrienna Lim

G

rowing up, the Upper East Siders have always had Gossip Girl to keep them honest…but what about law students? From being caffeine addicts, argumentative and possessing an ability to present themselves as an expert in any topic, law students have carefully curated a certain persona to be displayed to the masses.

Do not be fooled. When a law student complains of their mountain of readings, chances are they have no clue what’s going on in classes. When you walk past a moot, the confident speaker secretly wants to retreat back into the safety of a blanket fort. To all students, both present and future, fear not! Your predecessors are more of a mess than they may lead you to think. So for now, let’s pull back the curtains and observe the law student in its natural habitat.

I suppose it is only fair for us to begin with the first and most obvious admission; law students do not complete their readings. Now, this doesn’t start as a dive off the deep end immediately, but like anything else it sneaks up and attacks when least expected. In the first week, running on the motivation of a New Year’s resolution, a law student will diligently make summaries of the 300 (or so) pages of content. However, as the semester progresses their caffeine-dependent brain arrives to the conclusion that an open-book final means that all work can be staved off to the week before exams. Then, the law student will sit through the remainder of the semester without touching their textbook before finally learning the entire unit in the three hours they have before exams.

The second admission is that the law student will adopt a ‘lawyer’s voice’. This voice awards the student the appearance of being highly informed of all topics, whether it be about criminal negligence or composting. In reality, this couldn’t be further from the truth. The student appears informed and eloquent because of their practice in dressing up the most nonsensical thoughts into some resemblance of knowledge. So, the next time you see a person sell the idea that coffee is water with a high concentration of roasted bean essence, that’s a law student.

In their everyday lives, the typical law student presents a cold icy persona and a default disdain for social interaction with those they view as ‘less than’ (particularly Arts students). However, do not be fooled, as their air of importance and indifference is a behavioural adaptation 28 | The Brief

learnt from their predecessors. In actuality, the law student will battle an urge to refrain from breaking down into tears at the slightest inconvenience; for example, accidentally closing a Google tab. This astonishing discovery can be best observed during presentations or mooting when the law student is required to rely on their own capabilities rather than the internet or overly detailed notes. They adorn their armour of choice, a black blazer, and march into the moot with a perfectly polished shield.

Despite the resident law society boasting a strong reputation for hosting the most unforgettable social events at university, the natural habitat of the law student is in fact the library. Most of these fascinating creatures are vulnerable to predators when busily citing sources or completing a quiz. This has led the species to instinctually congregate en masse at the library, where they feel sheltered amongst the company of their kin. It is not rare to see a law student downing their fourth cup of coffee before proceeding to highlight the pages of their textbook with every colour under the sun. They may seem crazed, but this particular species is usually harmless.

The Brief was fortunate enough to study some of these fascinating creatures and asked them to admit to the actual realities of law school. Names have been changed to protect the safety of these elusive beings, and their admissions have been exaggerated to give them a glimmer of personality.

Emily: Honestly, my law school experience is entirely characterised by buying $300 worth of textbooks each semester just to sell them afterwards with the protective plastic still on.

Jason: On their first day of medical school, my friends were told all about how they would change the world. But my first day of law school involved the lecturer telling us: to disregard the stereotypes surrounding lawyers and that we were already behind in our readings.

Michael: Hearing ‘Donoghue v Stevenson’ is the law school equivalent to the Winter Soldier’s trigger words. But instead of turning into assassins, we eye any cloudy drink with a look of apprehension and fear.

Welcome to law school, you’ll love it.

XOXO, Gossip Girl

Ed.1 2021

Stuff Law Students Like

What’s Your

Perfect Blend?

Annie Renouf

C

offee is to law students what honey is to bees, we just can’t live without it. It can be argued that your favourite coffee order says a lot about you and your study style in law school. Whether you are all about a well-structured hypothetical or the kind of person that turns up to a 9am tutorial barely functioning. Here, we break down what the campus baristas think of you.

The Long Black You love a black letter law approach. Your day usually starts with a series of perfectly constructed case notes and a long black from Cult Eatery (that you got a 10% discount on with your MULS membership). The same way you don’t dispute precedent, your advocacy for legal precision makes you aim to ensure that everyone in your tutorial knows the well-established rules. You keep an organised collection of unit-based hypothetical scenarios with supporting case law, so you never go into an exam unprepared. You definitely don’t plan to be like your procrastinating predecessors and suffer from the errors of the Ghosts of Law school’s past. You’re efficient and set in your study strategy, which is rooted in tradition and has proven to be successful every time.

The Eager Espresso You like your coffee strong and value the certainty that comes from knowing that it will give you the right motivation to survive the long day ahead . You’re an undeniable textual approach fan, seeking to enforce what the law actually says rather than adopting an interpretation of what it should say. The sentiment that judges have no right to subvert the law because they Ed.1 2021

disagree, is something you stand by in law school.

When it comes to life beyond university, you have established clear boundaries and work just as hard as you play.

The Latte Lover You enjoy a latte because there are so many ways to experience it. To be fair who doesn’t love a coffee with caramel or vanilla syrup? Variety is so important to you that you don’t limit yourself to a common construction of legal theory because the strict mechanics of adjudication doesn’t appeal to you at all. You’re the kind of student to assess the background of a case and have a detailed breakdown of each judge’s approach, while being a friend that tries to consider valid points brought up in tutorial discussions. This unwavering support for legal realism often finds you learning beyond the prescribed legal rules and principles, initiating tutorial discussions about the development of the law.

The Mocha Machine Mocha isn’t really a coffee, though we can give it credit for trying to sell itself as one when you see it on a menu. Just like any law student who gets made fun of for their coffee order, you’re all about promoting justice and working towards change. You’re a true judicial activist that focuses on a contextual approach to adjudication, not accepting the limitations prescribed by the application of clear and relevant legal rules.

There’s no dispute of your belief that courts should accept change is the norm and you know that you deserve friendships where you can challenge each other through healthy debate. thebrief.muls.org | 29

A Brief Review

The Trial of the Chicago 7 Rahin Badar

T

he ‘Trial of the Chicago 7’ (2020) follows the trials of Abbie Hoffman, Jerry Rubin, David Dellinger, Tom Hayden, Rennie Davis, John Froines and Lee Weiner. They were charged for conspiracy for starting riots in 1968 related to the antiVietnam and countercultural protests in Chicago. A This Netflix Original (available on Netflix), directed by Aaron Sorkin takes us back to the US in the 60s, introducing the plot and characters of this film by integrating news reports and footage from the 1968 riots.

This brilliant take on a courtroom drama, featuring acclaimed actors such as Sasha Baron Cohen, Eddie Redmayne and Joseph Gordon-Levitt, engrosses the audience in the trial’s details.

Through this film, Sorkin allows audiences to acknowledge the risk associated with freedom of speech. This introduces the main concept of the film which was based around the idea of a ‘political trial’. Initially, we are told the Rap Brown law would be inaugurally used to indict and arrest the Chicago 7. Despite the Chicago 7 not explicitly breaking the law, the Attorney General and the court create a trial to advance their interests. Sorkin depicts the Chicago 7 as a threat in the eyes of the US Government. The influence of the Chicago 7 created widespread support for

30 | The Brief

anti-Vietnam views, prompting Americans to criticise President Nixon and his handling of the US’ involvement in the Vietnam war.

Through the trial, Sorkin indicates that the freedom of the Chicago 7 and the extent of their ideas were subjected to the authority of the government.

Sorkin’s film exposes loopholes in the law, and how the law can be manipulated against situations and individuals to create a desired outcome. He highlights how our right to freedom of speech is limited to what is considered a threat by figures in authority.

Sorkin depicts the Chicago 7 as revolutionaries standing up for their beliefs, not compromising their ideas for their freedom. He encourages audiences to acknowledge the power of the law and the judiciary in constructing today’s history with the outcome of ‘yesterday’s’ trials.

As the movie came to an end, I pondered about the role of lawyers, our justice system and our rights as civilians.

And so, I am left with many questions. The protesters harnessed their right to free speech to express their opinions about the Vietnam War, but were met with harsh consequences. Sorkin’s film forces you to think about our freedom of speech.

Is it only enabled when it resonates with ideas held by figures of authority? If so, are we really free?

Ed.1 2021

Sponsors Platinum Sponsors

Gold Sponsors

Silver Sponsors

Supporting Sponsors

Find Find us us online online

Access Australia’s Best Law Student Publication.

Anytime. Anywhere.

thebrief.muls.org facebook.com/thebriefmuls issuu.com/muls

32 | The Brief

Ed.1 2021