The Brief Edition 2 2021

Macquarie University Law Society magazine Edition 2, 2021 (Volume 27)

n a m u HInfluence The

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Contents

The Brief Ed.2, 2021

Regulars Features

06

[What’s New in the Law?] Emma Wei

08

[Social Justice Corner] A Look into Human Rights in light of COVID-19 Fatima Arifeen

12

The Right to Repair Movement: Fighting for a New Age of Consumer Rights

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[Under the Radar] Recognising Property Rights in Human Tissue Tracy Tang

14

Stealthing – Blurring the lines of consent Matilda Byrne

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The UK Domestic Abuse Act: Campaigning for Justice Vanie Cardinio

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Silenced but not Silent: Myanmar’s military coup Rahin Badar

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Beneath the Surface: the Israel-Palestine conflict Sami Shamsi

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Influence of one media giant

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[Devil’s Advocate] Indonesian Omnibus Law Max Gale & Ilakkiya Elangovan

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[A Brief Conversation] with Dr Daniel Ghezelbash Brindha Srinivas

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[Admissions of a Law Student] Elle Woods Lied to You Anna O’Rourke

29

[Stuff Law Students Like] Notion – the one productivity app that every law student needs Angela Dela Cruz

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[A Brief Review] Coronavirus and the Law (Podcast) Emma Wei

Seren Ozdemir

Rimsha Acharya

Editor’s Welcome Dear reader, Welcome back to Edition 2 of The Brief 2021, ‘The Human Influence’. This edition examines human-powered movements and changes in the world. Now more than ever we are also seeing the influence young people are having on the world in terms of instigating change. As always, I would like to extend my gratitude for the continuous support and contributions that has allowed us to continue to bring such an exceptional collection of ideas together.

The indispensable human values most pertinent to public law are a rejection of unfairness and an insistence on essential equality, respect for the integrity and dignity of the individual and mercy. ‘The Human Influence’ goes to the core of what we comprehend humanity and the individual to be and what is likely when power is exercised by or against individuals.

Such sentiments are investigated in ‘What’s New in the Law’ (pg.6), where we see the law in its creative and flexible form drawing upon such values in accommodating and altering to society.

A critical analysis is drawn on the legal fall-out of the pandemic as presenting many challenges and raising questions relating to the relationship between human rights and the pandemic (pg.8). Further, a passionate exploration about the driving influence of the human demand for tighter laws surrounding domestic violence reveals our power as humankind to provoke greater change (pg.16).

In light of ‘Legally Blonde’ turning 20 this year, ‘Admissions of a Law Student’ judiciously dissects whether Elle Woods’ law school journey is one that is shared by Macquarie Law students (pg.28). One way to reach the heights of Elle as suggested in ‘Stuff Law Students Like’ is the life-changing productivity app that every law student needs, ‘Notion’ (pg.29).

The assortment of contemporary legal issues tackled by writers in this edition is ruminative of our evolving and complex legal landscape, urging individuals and societies to reflect on how we as humans have the ability to conduct real and positive change.

In this edition, we were fortunate to speak with Dr Daniel Ghezelbash, Associate Professor at Macquarie Law School who specialises in enhancing protections for refugees and the use of technology to build a fairer legal system. We thank Dr Ghezelbash for his incredible insight and expertise into refugee law and the not-for-profit legal sector (pg.25).

As always, the success of The Brief would not be possible without the fantastic team of writers and sub-editors who have contributed to this edition. It is incredibly fulfilling to work alongside a talented team for our second edition. We hope you enjoy ‘The Human Influence’! Happy reading!

Brindha Srinivas Editor-In-Chief

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President’s

Welcome

thebrief.muls.org On behalf of MULS, it is my pleasure to welcome you to the second edition of The Brief for 2021.

Over the past year, we have seen key examples of the human influence leading to tangible change within the domestic and global community. Whether it be through the Black Lives Matter movement, education on the Israel and Palestine conflict or issues of consent. Through the human influence we have seen our communities rise up to support those who are struggling and promote issues that affect our global community, whether they be new or institutional. Personally, I am inspired by people’s ability to use their collective power to influence change.

This issue, ‘The Human Influence’ has some great reads, which include discussion about media giants, the Myanmar situation and consumer rights. Keep an eye for a great Devil’s Advocate discussion about Indonesia’s Omnibus Law. MULS is constantly working to provide new and unique opportunities to enhance your experience whilst studying at Macquarie Law School. Keep an eye out for some exciting new competitions in Semester 2, as well as a number of Justified episodes that will be released soon. Also, make sure to become a MULS member where you will receive our fortnightly newsletter and a 10% discount from Cult Eatery on campus.

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

From all of us at MULS, we hope you enjoy this second edition of The Brief for 2021 and reflect on the importance of using our voices and education to influence change within society.

Lucy Sheppard President, Macquarie University Law Society

Edition 2, July 2021 (Volume 27) EDITOR-IN-CHIEF Brindha Srinivas

DIRECTOR OF PUBLICATIONS Matthew Lo DESIGNER Nathan Li

WRITERS (IN ALPHABETICAL ORDER)

Angela Dela Cruz, Anna O’Rourke, Emma Wei,

Fatima Arifeen, Ilekiya Elangovan, Matilda Byrne, Max Gale, Rahin Badar, Rimsha Acharya,

Sami Shamsi, Seren Ozdemir, Vanie Cardinio SUB-EDITORS

Charlotte Macdonald, Chloe Cairns, Eliza Cook, Esther Chen, Hanna Kozik, Lianne Tacardon,

Olivia Tabbernal, Rebecca Day, Rimsha Acharya, Simone Alexander, Tomas Ditton, Verneet Virk, Zoe Gleeson

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

Dr Daniel Ghezelbash, Associate Professor at Macquarie Law School.

ACKNOWLEDGEMENT OF PEOPLE AND COUNTRY The Brief acknowledges 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.

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What’s New in the Law

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Emma Wei

020 marked a year of many extraordinary events. Australia experienced an unprecedented scale of natural disaster, the spread of an infectious pandemic, vast technological advances and its first recession in 30 years. In response to these crises, 2020 saw a wealth of legislation being passed, and these are some of the most notable legal changes that have arisen:

1.

The Industrial Chemicals Act 2019 came into force on 1 July 2020. It replaces the National Industrial Chemicals Notification and Assessment Scheme (NICNAS) with the Australian Industrial Chemicals Introduction Scheme (AICIS). The new scheme categorises chemicals according to their level of risk, allowing the Australian government to focus their pre-introduction assessment on high-risk chemicals, in an effort to make the whole process a lot more efficient. Low-risk chemicals are ‘exempt’ and businesses who import or manufacture exempted chemicals do not need to inform AICIS. Under the new scheme, animal testing is also prohibited in cosmetic applications for industrial chemicals.

2.

There is currently a parliamentary review on the passing of the Surveillance Legislation Amendment (Identify and Disrupt) Bill 2020. Public submissions for the bill closed on 12 February 2021.

The Bill would give officers of the Australian Federal Police and Australian Criminal Intelligence Commission warrants for access to digital data, as well as the power to perform online disruption activities, collect intelligence activities and take over a person’s online account. The Bill is receiving a lot of backlash due to the extraordinary powers it will grant and the fact that warrants are not only issued by judges but can also be issued by members of the Administrative Appeals Tribunal (AAT). It is important that the Bill is assessed with regards to the proportionality principle to ensure that it is not overly oppressive or unreasonably interferes with an individual’s private rights.

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3.

The Treasury Laws Amendment (Enhancing Whistleblower Protections) Act 2019 commenced 1 January 2020. This legislation was passed not long after the Final Report for the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry was released criticizing regulators for their inability to identify and address workplace misconduct.

Public listed companies, large proprietary companies and trustees of registrable superannuation entities must have a whistleblowing policy in place or risk being exposed to civil penalties. Former and current employees are now eligible for protection, in addition to former and current officers, contractors, suppliers, and their family members, spouses and dependents.

Evident by this law and current law reform discourse, whistleblowing is gaining recognition for being an important process in upholding corporate accountability.

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What’s New in the Law

MULS EVENTS

Semester 2, 2021 COMPETITIONS Junior Client Interview Begins 2 August Witness Examination Competition Begins 3 August Contract Law Moot Begins 9 August Environmental Law Intervarsity Moot Begins 18 August

4.

Padraic Gibson v Commissioner of Police (NSW Police Force) [2020] NSWCA 160. NSWCA dismissed an appeal against the decision that prohibited a Black Lives Matter protest.

This was to uphold s 25(1) of the Summary Offences Act 1988 (NSW) (introduced during the Covid-19 pandemic), which prohibits the holding of a public assembly. The media argued that enforcing this provision demonstrated bias for police as other large gatherings such as the State of Origin, with a crowd turnout of 49,155 was allowed to go ahead. This case illuminates the ongoing complexities of balancing public health laws and human rights, such as freedom of political communication, during Covid-19.

5.

Macdonald & Or [2020] NSWSC 604. Following the Australian bushfires, which occurred from late 2019 to early 2020, Celeste Barber crowdfunded $51M for the NSW Rural Fire Service & Brigades Donations Fund. The trustees of the fund sought judicial advice under s 63 of the Trustee Act 1925 (NSW) regarding the proper performance of their powers and duties in applying for those monies. The court held that the monies could be used to set up or contribute to a fund to support firefighters injured on duty but could not be given to charities, other rural fire services or funds dedicated to animals affected by bushfires. This case will no doubt warn future lawyers that they must draft a trust in a way that meets all of their client’s wishes.

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Alternative Dispute Resolution; Paper Presentation Law Reform Competition; Diversity and Pride Moot; Foundational Law Moot; Novice Moot; LLM/PHD Moot TBC SOCIAL JUSTICE Justified Episode – Decolonising the Law Week 2 Speaker Night #3 (Environment and the Law) Week 4 Speaker Night #4 (Careers in Social Justice; Paper Presentation Law Reform Competition; Mental Health Initiative TBC Social Justice Trivia Night 14 October EDUCATION AGLC4 Referencing Workshop 17 August Mental Health First Aid Scholarship TBC CAREERS Montgomery Advisory Skills Workshop; Montgomery Advisory Presentation/Panel; College of Law PLT Presentation; College of Law Skills workshop; Criminal Law Careers Panel; Legal Roles in the government Panel; Judge’s Associate Panel; Barristers Panel TBC EVENTS Law Ball TBC thebrief.muls.org | 7

Social Justice Corner

A Look into Human Rights in light of COVID-19 Fatima Arifeen

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t is evident that the COVID-19 pandemic has had a profound impact on the fundamental essence of normalcy in human society. The policy and legislative measures in the management of the pandemic have arguably had some of the most significant implications for the cultural and psychosocial paradigms of civilisation, as well as for individuals and groups. Though some have been more greatly impacted than others, its challenges resonate with everyone.

The Biosecurity Act 2015 (Cth) is the legal instrument that allows the Australian federal government to impose a human biosecurity emergency period, thus granting them the power to take any necessary measures in the prevention or control of COVID-19. One such emergency measure deemed to be necessary is the enactment of an outbound international travel ban on Australian citizens and permanent residents, with the exemption of those with compelling or compassionate reasons for travel.

Notably, an emergency determination under s 477(1) of this Act, the Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Overseas Travel Ban Emergency Requirements) Determination 2020, has enabled this ban to be put in place. Moreover, the provisions under the declaration also override federal, state, and territorial legislation under the Henry VIII clause.

This widespread ban has not only considerably influenced growth contraction within the tourism and migration sectors, but it has also made the lives of dualnationals, international students, migrants, and those with family members or other loved ones overseas, unquestionably more challenging. The real-life implications of this ban are also echoed through the frequently headlined stories of people being unable to care for sick family members overseas or attend funerals of close relatives. The frustration of such circumstances is heightened by the inconsistencies in the grant of travel exemptions to individuals, where the power to make this decision is at the discretion of the Border Force, and not on the basis of relevant policy.

In addition to this, a secondary travel ban was imposed in May, that prevented Australian citizens and permanent residents in India from entering the country for a temporary period of time. It constituted that those in breach of the ban would be subjected to criminal sanctions including significant fines and imprisonment.

Concerningly, Australia’s ban on outbound travel and the re-entry of Australian citizens in India, may present 8 | The Brief

itself as a violation of the right of citizens to return to their country of citizenship, under the Magna Carta, the principles of international law enshrined within the Universal Declaration of Human Rights, and the provisions of the International Covenant on Civil and Political Rights (ICCPR) of 1966. At its core, these restrictions may also be perceived as an impingement upon a fundamental human right of every Australian – the right to freedom of movement – stipulated under Article 12(1) of the ICCPR. As Australia ratified the ICCPR in 1980, the State is legally bound by the rights of the treaty in respect to persons in Australia’s territory or jurisdiction, which must be upheld.

The ICCPR outlines in Article 12(2) that ‘everyone shall be free to leave any country, including his own’, and similarly, states in Article 12(4), that ‘no one shall be arbitrarily deprived of the right to enter his own country’.

It is also important to note that Article 4(1) of the ICCPR emphasises that during periods of an officially declared public emergency, States ‘may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.’

The discriminatory ban upon solely Australian citizens in India, and the punitive approach to the re-entry of such persons into Australia, may be a violation of Articles 12(2) and 12(4) of the ICCPR. Though Article 4(1) may allow for the derogation from the obligations outlined in Articles 12(2) and 12(4), the implementation of a travel ban that solely discriminates against Australian citizens and permanent residents in India and prevents them from re-entering into Australia for a temporary period, may be inconsistent with the provision of Article 4(1). Thus, the ban may be seen as a serious encroachment upon the very foundations of international law and begs the question of the value of citizenship.

These actions conducted by the government of Australia through their policy measures in response to the COVID-19 pandemic are just a glimpse into the ineffective implementation of the rights protected under the ICCPR. The necessity for a federal human rights bill to be issued in Australia must be explored to protect the rights under the ICCPR that have not so far been protected by the constitutional common law, existing legislation or the democratic nature of the government.

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Under the Radar

Recognising Property Rights

in Human Tissue Tracy Tang

L

ast month, the Biden administration revoked a policy imposed by Donald Trump in 2019 which prohibits medical research that uses foetal tissue. This revocation has raised questions over whether individuals’ tissue can be used in purposes and manners they disapprove of and whether theft and conversion are appropriate in the context of human tissue.

A famous American case, Moore v Regents of the University of California 793 P 2d 479 (1990) (‘Moore’) concluded that, if doctors were to take human tissue from a patient without their consent and use it to make a cell line, they have breached a fiduciary obligation to their patients. However, there are no property rights in human cells after they are excised from the human body. Moore, hence, failed the claim of conversion. He was unable to claim the severed tissue belong to him as well as profits generated from it.

Currently, in Australia, living persons are only allowed to donate their tissue. Trade or sale of human tissue for valuable consideration is prohibited by statutes, arguably reflecting the entrenched influence of Christian moral value that human life is ‘sacred and inviolable’.

The reluctance as to recognition also stems from the fear of devaluation and objectification of life. American scholar Bettina Brandt argues that ‘granting property rights in human bodies inevitably draws them into the area of commercial dealing’, a concern raised by ‘Essentially Yours: The Protection of Human Genetic Information in Australia’ (ALRC Report 96).

However, it is a fallacy to claim that the ‘noproperty’ rule creates the human body’s market dealing.

Recognising property in human tissue will doubtfully change the current world practice, as organ trafficking exists in 91 countries despite the illegality. Currently, property rights in human tissue are developed by the common law on a case-to-case basis, often regarding human tissue in dead bodies. For example, in Re Edwards, the NSW Court found that storing sperm in liquid nitrogen at minus 196°C amounted to the requisite

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work and skill involved to bring about proprietary interests. But, problematically, from a legal standpoint, the sheer effort of preserving sperm does not suggest that there has been any substantial contribution to the sperm or alteration of DNA component such that the rights essentially convert. On the other hand, Master Sanderson, in a Western Australian case, Riche v Douglas ruled that human tissue is property. Therefore, regulating the commercialisation and dealings of human tissue of both living and non-living persons from a property approach can improve the certainty and consistency of the law and provides unified reasoning for such recognition. It will also enable individuals such as Moore to seek legal remedies against unlawful interference of their proprietary rights as to the dealings of his own severed body parts, such as damages, injunctions or a claim over the profit of cell lines.

Further, there is no legislative requirement under Australian law to obtain consent for the subsequent use of tissue, organ, and body materials despite consent being needed at the time of removal. Therefore, recognising property rights in human tissue can institute an ‘ongoing control’ in case tissue is used for purposes and manners contrary to the consent when tissue is removed.

Contention over human tissue is underway and will undoubtedly increase given its growing significance and commercial utility in medicine, research and treatments.

Therefore, despite existing concerns, it is imperative that legislative authorities recognise some form of, if not full property rights in human tissue to uphold and defend individual rights and freedoms in case of misuse and abuse. thebrief.muls.org | 9

Devil’s Advocate

AGAINST Max Gale Introduction The passing of the Jobs Creation Bill (‘Omnibus Law’) in October 2020 through the Indonesia’s legislature has had a profoundly concerning impact on the economic, social, and environmental rights of the Indonesian people. Perhaps most significantly, the Omnibus Law has suppressed workers rights and crippled Indonesia’s existing environmental protections.

Labour Laws The Omnibus Law has had the effect of considerably watering down the rights of Indonesian workers and their unions, specifically with respect to minimum wages, employment contract regulations and unfair dismissal protections.

Firstly, the Omnibus Law has significantly limited the strength and breadth of minimum wage laws. For instance, minimum wages now only apply for a period of 12 months, after which workers are left to negotiate their wages on their own without any safeguards. Moreover, sectoral minimum wages, which operated similarly to modern Australian awards have been abolished.

More broadly, the centralisation of wage determination powers has meant that the Omnibus Law has vested complete control of wage determination in the federal government, rather than in regional governors, who were previously required to consider wage submissions from local wage councils, unions, and other stakeholders.

The recent changes via the Omnibus Law now requires governors to adhere to a federal wage formula which considers factors such as GDP growth, inflation, and other economic conditions, irrespective of stakeholder submissions. The trouble with this change is that the federal government now has a broad power to decide and change this wage formula, which has since been used to freeze minimum wage increases.

In addition, unfair dismissal protections have been amended to provide employers with more power to end employment relationships. Whilst previously the law required a high threshold for termination, such as serious employee misconduct, the Omnibus Law now provides a general right for employers to immediately dismiss workers for even small contraventions of their employment contract, enterprise agreement, or organisational code of conduct. Leave entitlements, maximum hours of work, collective bargaining rights, and other protections have similarly been watered down.

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Indonesian

Omnibus Law Environmental Protection Environmental protections have also been impacted under the Omnibus Law. For example, the Omnibus Law has removed the requirement for organisations seeking a business permit to first hold an environmental permit.

Under the new system, businesses are only required to attain ‘environmental approvals’, which come with less strict legal and regulatory obligations.

In addition, the specific regulations to which environmental permits and approvals apply have also been watered down. For instance, the strict liability offence created by Law No 41 1999 on Forestry which provides that ‘the permit holder shall be responsible for the occurrence of forest fires in its working area’, has since been replaced with a more general responsibility to ‘prevent and control forest fires in the working area’.

Ultimately, these changes, among others in the Omnibus Law have had the effect of fundamentally undermining environmental protections in Indonesia, whereby on a substantive level the laws have been watered down, and on a procedural level, those watereddown laws have become considerably less enforceable.

Conclusion Labour and environmental rights go to the core of what makes a society fair and just. Having the opportunity to earn fair day’s pay for a fair day’s work, be able to afford to raise a family, and be able to do so in a clean and safe environment are fundamental guarantees that any government should seek to safeguard. However, the unfortunate reality of Indonesia’s Omnibus Law is that rather than entrenching these norms and values, it has the effect of dismantling them.

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FOR Ilakkiya Elangovan It is unquestionable that the Omnibus Law greatly transforms the labour law landscape in Indonesia, significantly diminishing previous regulations designed for the protection of workers. Whilst problematic in the risk it poses to the workforce, this reform is crucial as it removes previously existing impediments to Indonesia’s growth and survival in the global economy. With great economic potential in the global context, Indonesia is expected to grow to the seventh largest economy in the world by 2030. Yet, the nation has underperformed in economic terms, often attributed to its highly regulated business environment which in turn discourages local business operations. Through the reduction of red tape, foreign investment regulation and taxation regulation, the Omnibus legislation becomes a vital reform that enables Indonesia’s position as a key player in the global economy.

In assessing the utility and impact of the Omnibus Law, it is useful to consider the two primary categories of changes to legislation; changes to labour laws under the Manpower Law, and changes to laws pertaining to business activities and investment.

The Omnibus Law encourages a more globalised approach to business operations by easing regulations in labour law, principally in areas such as work permits, contracts and outsourcing arrangements. The new law relaxes restrictions on the capacity of foreign workers in Indonesia by reducing requirements for permits, easing limits on the length of fixed-term contracts, and reducing the blanket prohibition on roles to be held by foreign workers, so that the only expressly prohibited roles are those pertaining to human resources. With the removal of the prohibition on utilising outsourced labour for main business activities, the law consequently allows businesses to rely on outsourcing companies to handle labour issues, decreasing risk and increasing flexibility Ed.2 2021

for employers. By significantly altering cumbersome regulations within the Manpower Law, the Omnibus Law encourages investment in Indonesia and promotes the utilisation of the labour force.

However, it is concerning that an impact of this labour reform is its suppression of workers’ rights.

For example, labour-intensive industries are no longer required to satisfy regional minimum wage standards, leaving workers at risk of exploitation. Further, the Omnibus Law revokes the article under the Manpower Law which enabled workers to refute the justification for their termination in an industrial relations court or agency. This shift of power disproportionately favours employers by reducing workers’ capacity to challenge unfair dismissals.

Whilst the impact of the Omnibus Law on workplace relations is damaging, the broader reforms reducing regulatory constraints on investment and business activity remain crucial to cementing Indonesia’s place in the global economy. The Omnibus Law redefines the previously convoluted licensing regime through the introduction of a straightforward risk-based system, and lowers licensing requirements for businesses in most categories of risk. By reducing red tape and significantly streamlining processes for investors and entrepreneurs, this reform creates an environment that is conducive to and encouraging of business activity.

Moreover, the Omnibus Law thoroughly expands the number of business sectors available for foreign investment, clearly stipulating the industries, such as weapons and gambling, which are closed to such investment. This expansion rectifies the formerly stringent restriction of foreign ownership in industries under the Negative Investment List, removing a key barrier to foreign investment in Indonesia. The new law also addresses an onerous taxation system that enforces high rates of personal and corporate income tax, as well as global tax regulations, which play an important role in discouraging foreign investment.

These changes recognise and address the concerning implications of excessive regulation on business activity, offering promising reforms aligned with Indonesia’s goal of prospering in a globalised world.

While concerns about the impact of the Omnibus Law on workers’ rights are valid, the necessity of its broader reforms to laws cannot be refuted. By recreating a convoluted licensing system, easing foreign investment restrictions, and streamlining a previously complex tax regime, these reforms incentivise both domestic business activity, and foreign investment in Indonesia, enabling its growth in the global economy. thebrief.muls.org | 11

The Right to Repair Movement:

Fighting for a New Age of Consumer Rights Seren Ozdemir

W

ith the impending release of the newest iPhone, an annual joke reappears about the ‘mysterious’ errors and faults that will suddenly arise with its merely year-old predecessors. However, consumers are no longer complacent with the standards and policies set by major technology companies concerning the rights to use their products. In the past decade, the right to repair movement has dominated the course of consumer advocacy – and it poses a dramatic threat to the exploitative practises in the manufacture of electronics both domestically and internationally.

The Right to Repair Movement The right to repair movement advocates for greater freedoms for consumers to repair, modify, and replace their own goods without the manufacturer’s interference. The movement originated in Massachusetts, USA in 2012 by car mechanics due to the lack of access to specialised information, tools and parts required to repair cars, therefore forcing consumers to utilise the manufacturer’s own repair

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services. Although the Motor Vehicle Owners’ Right to Repair Act is expected to be passed in the U.S requiring an open data access for independent vehicle repairers, the movement has now progressed to dominate the electronics industry globally.

Barriers to Consumer Rights and Freedoms Although this concept is relatively simple and has existed for many years, the rise of smart-technologies has popularised software-based electronics. Companies like Apple are being targeted for their exploitation of consumer reliance on their software-based products by impacting phones, computers, and other devices’ lifespan and repair process. The use of software is often utilised to manipulate product performance, such as through the mandatory download of a new update, or deliberately generate technical errors in the device’s function. In turn, the highly specialised nature of each type of software provides significant barriers to thirdparty repairers who may be unable to access such information, or order the patented parts or repairs.

The result is obvious – consumers are dependent upon the services of the manufacturer at often misquoted, Ed.2 2021

expensive, and biased prices, often encouraging for the purchase of a newer model.

The influence of small consumers against global technology industries has been driven through social media by providing a voice to independent repairs and consumer advocates. In 2017, Apple admitted, in response to relentless pressure from consumers, to reducing the speed and efficiency of their products.

This aimed to encouraged customers to replace their products with newer devices with the promise of better, smoother, and improved quality. However, the issues extend much further beyond reduced efficiency. A major advocate for the right to repair movement, Louis Rossmann, performed on his personal YouTube Channel a 10-second fix to a loose clip in a Macbook that Genius Bar repairers deemed unfixable. Evidently, companies are able to employ strategies that monopolise on the dependence of software in smart-technology devices, and essentially deny intellectual ownership of a purchased item.

E-Waste and Environmental Impact The concerns for a right to repair extend beyond consumer freedom as they now reflect consideration for the environmental impact of current practises.

The dangers of e-waste are becoming increasingly concerning and act as a driver for change to regulations, particularly highlighted by the climate change movement. The discouragement of product repair or modification creates unnecessary waste that benefits the profit-making schemes of major technology firms, and generates a cyclical production of technology parts that affect climate pollution and destruction.

The Australian Perspective In Australia, there is significant progress currently driven by consumer advocates to changing competition and consumer regulations. Apple was found guilty in 2018 for using a software malfunction named “Error 51’, which upon inspection alerted Apple repairers whether the device had been previously repaired by third-party repairers, and denying their warranty. The Federal Court in ACCC v Apple Pty Ltd (No 4) upheld that independent repair did not breach the existence of a conditional warranty under the Australian Consumer Law. However, the result was a mere $9 million fine – pocket change for the $2 trillion enterprise.

Despite the success in the Federal Court and an acknowledgment that a consumer’s right to independent repair did exist in Australian Consumer Law, many of the issues underlying the movement remain. In fact, the Ed.2 2021

decision exasperated Apple’s response by introducing patented parts and tools that were extremely difficult to access, as well as increasing the difficulty of repair by gluing and designing their products in a way that would prevent third-party repair. However, Apple attempted to disguise their motives through the recent introduction of their Independent Repair Provider Program, which allows businesses to sign up for access to information, parts and tools. Although the program suggests a willingness to promote fair consumer and competition practises, the introduction of such a program enables Apple greater control over the market and a greater generation of profits.

The future remains hopeful for change in Australia.

An inquiry has been launched titled ‘The Right to Repair’ by the Productivity Commission set for release in October 2021. The report will focus on barriers to repair, the scope existing laws and regulations on competition and consumer rights, the conduct of manufacturers, and other related concerns. Particularly, the report will highlight whether the current requirement that repair parts and tools be ‘reasonably’ available is sufficient, despite not being defined by law.

The International Perspective The global movement of a right to repair remains vigilant. The European Union released a draft report in 2020 allowing for repair rights to combat e-waste and global gas emissions by permitting the independent repair of electronics. However, rights to repair in Europe still remain weak excluding environmental considerations. Similar advancements have been made in the U.S, as the COVID-19 crisis has driven hospital workers to advocate for better access to repairing hospital equipment. In Sweden, the movement has devolved, where Apple succeeded in suing an independent repairer for selling fake iPhone screens, despite never marketing them as real products. The repairer was supported by thousands in donations, and Apple remains under heavy fire for attempting to shut down competition with small businesses.

Where is the Movement Heading?

The movement remains alive and strong in 2021, with countries all around the world responding to demands by consumers for their rights to repair their own products. Although there is a significant way to go, it is clear that consumers possess a greater power and influence than ever anticipated before to instigate change.

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Stealthing

Blurring the lines of consent

C

Matilda Byrne

onsent laws in Australia are complex with no uniform agreement across the states as to what constitutes legal consent. In NSW, the Crimes Act provides that consent involves a free and voluntary agreement between parties. However, issues of consent become contentious around the act of ‘stealthing’, which is not yet an adopted offence in Australia. Put simply, stealthing involves the deliberate damage or removal of a condom, without consent from the other party. What separates this from sexual assault, is that laws of consent focus on the sexual act, whilst remaining silent as to conditions, such as whether a condom should be worn. This creates uncertainty as to how a case of stealthing could be brought in NSW, under existing laws. However, with the recent successful conviction of stealthing in New Zealand and an ongoing case in Victoria waiting to appear before the courts, there may be an impetus for stealthing to be recognised in Australia.

Does yes mean yes?

Although a practice experienced by approximately 1 in 3 women in Australia, stealthing has only recently been the subject of public discourse. In 2018, a Melbourne study found that only 1% of victims reported incidents of stealthing to police, as many do not view it as sexual assault. Although a party may have consented in the first instance, it could have been on condition that the other party wear a condom. Ultimately, what distinguishes stealthing from consensual sex, is the lack of bodily autonomy afforded to the victim, who may risk unwanted pregnancy, sexually transmitted infections and psychological conditions such as anxiety and posttraumatic stress disorder.

There is also concern that perpetrators of stealthing do not see this as a violation of consent. In 2017, an anonymous caller to Triple J’s Hack program admitted that he practices stealthing as it “feels better” and does not break the law. Dr Bianca Fileborn, a sexual

14 | The Brief

Ed.2 2021

violence researcher at the University of Melbourne, notes that this mindset highlights the perpetrators need for power, without concern for the other party.

Ultimately stealthing is a reckless act that places the burden solely on the victim, leaving little consequence for the perpetrator. Concerningly, much of this behaviour is reinforced online with memes that brag about stealthing, and TikTok trends that encourage consent violating behaviour. There is concern that this contributes to growing rape culture in Australia.

The scope of consent With this practice going largely unchecked, this questions how current sexual assault provisions are to be interpreted and whether stealthing fits into the parameters of consent violation. Section 61HE(6)(d) of the Crimes Act provides that a person does not consent if there is “mistaken belief as to the nature of the activity induced by fraudulent means”. There has been some argument that this could justify a charge of stealthing, however, judicially this section has been narrowly applied and relates only to the physical act itself, not the nature of the act.

Instead, stealthing may have more success under s 61HE(2), under the proviso that there is no free or voluntary agreement to the sexual activity. However, there is doubt as to whether this section refers to consent broadly or narrowly as the majority of stealthing victims have consented to intercourse freely and voluntarily, without awareness that a condom has been damaged or removed. A successful case of stealthing would have to rely on the condition that protection is worn as a violation of consent, not the activity itself.

As the section specifically refers to sexual activity, this may be difficult to establish without any clear precedent justifying this approach. Due to the narrow prospects of success under current provisions, the most effective way to address this issue may be to specifically recognise stealthing as an offence.

However, the new affirmative consent laws may also see recognition of stealthing through the scope of consent. The new provisions will specifically clarify that a person can consent to one sexual act but not another. Under stealthing, it is possible that these new provisions may be applied and can be enforced but until it is implemented, little is known as to whether it will be successful.

Criminalising stealthing In September 2020, the NSW Law Reform Commission considered whether stealthing should be adopted as an Ed.2 2021

offence. In reaching their conclusion, the Commission recommended that sex with a condom be included as an activity that can be explicitly consented to. This would simplify bringing an action of stealthing, by proving that consent was not given if a condom was not worn. The basis of this recommendation was to consolidate the scope of consent, not create a new provision.

Despite this recommendation, no legislative changes have been made, with no current convictions of stealthing in Australia. Challenging this, the ACT Legislative Assembly is currently pushing to adopt stealthing as a criminal offence, the first jurisdiction to do so. In effect, the proposed reform would see stealthing as a factor that negates consent. This is a similar approach as recommended by the NSW Law Reform Commission, which may justify a push nationwide to see Australia’s consent laws address this act.

This is evident in Victoria’s first case of stealthing, which is yet to be decided by Victorian courts. First charged with both sexual assault and rape in 2018, the man knowingly removed a condom, despite express agreement from the other party that one be worn.

While currently delayed due to COVID-19, if successful the case may be the first conviction of stealthing in Australia. This will set precedent that may allow for new interpretation of NSW’s consent laws, which will uphold the autonomy and rights of victims.

Even more so, a recent conviction in NZ has also seen a greater push for Australia to amend consent laws.

In the case, the perpetrator had consensual sex with a sex worker using a condom, which was agreed to by both parties as a condition of the interaction. However, the man later removed the condom, without telling the victim until the acts were completed. In the judgment of this case, it was noted that stealthing risks both the victim’s physical and mental health. As one of the few successful convictions globally, there is significant pressure to see Australian laws reformed, to reflect this growing practice as a protected offence.

Conclusion Growing recognition of stealthing practices in Australian society calls into question the effectiveness of current consent laws in protecting women and men experiencing sexual assault and violence. With increased awareness of the way this act violates the bodily autonomy of victims, failing to legally protect victims against stealthing poses a significant risk. With the ACT pushing for reform and cases in Victoria and NZ, there is clear incentive to see this practice recognised to influence and confront Australia’s toxic rape culture. thebrief.muls.org | 15

The UK Domestic Abuse Act:

I

Campaigning for Justice Vanie Cardinio

t has become too common to hear on the news another case of domestic violence. We often see the images of flowers laid across the pavement with mourners paying their tribute to the unsuspected victim. Despite the frequency of domestic violence and abuse cases, the public has become accustomed to the details of this devastating crime: what should be considered a matter of urgency has now become an everyday occurrence.

To combat the destructive impacts of domestic violence, the United Kingdom (UK) has recently signed into law the Domestic Abuse Bill. For the first time in history, the statutory definition of ‘domestic abuse’ will extend beyond physical harm, incorporating economic, psychological, and emotional abuse as well as coercive control. The Domestic Abuse Act 2021 (‘Act’) will also recognise new offences, including strangulation or suffocation, post-separation coercive control and the threatening to disclose private sexual photographs and films.

However, law reform is only the beginning to instigating change. Introducing new laws and policies 16 | The Brief

will not automatically end domestic violence and abuse, but it can initiate the culture shift that overturns the normalised perceptions that contribute to its prevalence.

The ingrained attitudes of people have minimised the gravity of domestic violence and in turn, has barricaded victims’ chances of escaping it. The article will demonstrate the power of humans to influence change not only in policies, but also in the community’s awareness and response to social injustice.

Background Before discussing the significance of the Act, it is worthwhile to reflect on the process of developing the legislative amendments. On International Women’s Day 8 March 2018, the UK Government launched a nationwide consultation regarding a new Domestic Abuse Bill. This was in response to the Queen’s Speech in June 2017, which outlined the Government’s commitment to tackling domestic abuse and violence. The consultation on Transforming the Response to Domestic Abuse received over 3,200 responses from across the UK, including victims, Ed.2 2021

charities, local authorities, and professionals. During this period, many events were held in order to raise awareness and address the long-lasting impacts of domestic abuse. It was also an opportunity for victims to share their personal experiences.

In January 2019, the UK Government responded to the consultation and produced a draft Domestic Abuse Bill. The response set out 123 commitments, both legislative and non-legislative, designed to prioritise victim safety in the justice process and improve the response towards domestic violence across all sectors.

Despite the various delays, the Domestic Abuse Bill eventually passed both Houses of Parliament and received royal assent on 29 April 2021.

Significance of the Act The Act acknowledges the complex nature of domestic abuse and the inherent societal attitudes that prevent victims from accessing justice. The various campaigns initiated by the victims and advocacy groups pressured the Government to address the severity of domestic violence and the lack of adequate provisions in responding to such cases.

As an example, countless women submitted their stories to ‘We Can’t Consent to This’ detailing the killings and injuries that occurred during intimate encounters. As well as raising overall awareness, the online platform encouraged victims to speak up against the court’s position in dismissing claims of assault involving strangulation and suffocation. As a result of this movement, the UK Government introduced further amendments to remove the so-called ‘rough sex’ defence. This means that perpetrators can no longer claim that the victim consented to violence that resulted in their own injury or death. It is evident that the collaboration of these campaigns significantly influenced the changes in law, by recognising the need to improve the outcomes of victims in the criminal justice system and in bringing perpetrators to justice.

Open conversations such as these can also be critical in ensuring that victims are believed when disclosing their claims, which may often influence them to seek the necessary help.

Not only has the Act provided immediate protection and support for victims, but it also offers an opportunity to progress the wider public’s understating of domestic violence and its impacts. By expanding the definition of ‘domestic abuse’ and introducing modern criminal offences, the legislation represents a shift in culture that rejects the normalised perceptions of domestic violence.

The UK Government acknowledged that these new Ed.2 2021

measures could translate into increased reporting, more cases going to court and more successful convictions and prosecutions. Dr Nicola Sharp-Jeffs OBE, Founder & CEO, Surviving Economic Abuse said, “[l]egislation is the first essential step on the path to eradicating it and preventing future homicides.”

The Next Steps Although considered a landmark piece of legislation, the Act has failed to deliver the same safe-reporting mechanisms and ongoing support for minority groups.

For example, victims on student, visitor or work visas, and illegal migrants are currently unable to access the state-funded security schemes for domestic violence.

The Centre for Women’s Justice said, “[i]t is deeply disappointing…that the Bill does not ensure equal protection for migrant women”. Despite the consistent campaigning from organisations such as the ‘Southall Black Sisters’ and the ‘Step Up Migrant Women’, the UK Government has rejected the proposed amendments that would provide uniform specialist services and data-sharing policies regardless of a victim’s immigration status.

This demonstrates that the fight continues to ensure that equal protection is provided for the most marginalised victims of abuse. As outlined by Women’s Aid, the “Royal Assent of the Domestic Abuse Act was an important moment, but rather than being the end of Women’s Aid’s work, this provides us with a beginning”.

Delayed Justice We have the power to overturn entrenched attitudes and campaign for change. Despite the demand for stronger representation for migrant groups, the significance of the Act cannot be overlooked. The collective work from victims, charities and other advocacy groups pressured the UK Government to address the extensive and ongoing injustice faced by victims of domestic violence.

Without their consistent efforts to raise awareness and share personal stories, the idea of violence would continue as a normalised concept and any claims made by victims of abuse remain vulnerable to being silenced. However, changing the law is only the first step to eradicating domestic violence. It is important that people constantly scrutinise the current laws and to make use of advocacy programs that influence government policy. Considering that this Act was introduced only this year and is only relevant in the UK, we still have a long way to go.

thebrief.muls.org | 17

Silenced

but not Silent: Myanmar’s military coup Rahin Badar

U

nrest has gripped Myanmar, democracy has fallen at the hands of the Tatmadaw.

Myanmar has recently undergone a military coup. The current military (also known as the Tatmadaw) controlling the state has implemented many changes to the law, resulting in massive protests from citizens and the wider international community.

A brief history Myanmar (formally known as Burma) is a country in South East Asia which neighbours Thailand, Laos, Bangladesh, China and India. Its current population stands at 54 million, most densely populated in Yangon, Mandalay, and its capital city Nay Pyi Taw. Myanmar gained independence from Britain in 1948 and was ruled by military forces from 1962 to 2011.

From 1985 to 2011, the state was “governed” through a military dictatorship under the Burma Socialist Programme Party (BSPP). The main goal of the BSPP was to save the state from disintegration. Since the fall of the BSPP, Myanmar’s democracy had been fragile, creating ease for a coup d’état uprising.

What Happened You may have heard of Myanmar previously, due to the devastating Rohingya genocide.

The exodus began on the 25th of August 2017 when Rohingya Arsa militants launched attacks on more than 30 police posts. Troops, backed by Buddhist mobs, responded by burning villages and attacking civilians.

At least 6,700 Rohingya including 730 children under the age of 5 were killed in the month after the violence broke out. The refugees who fled to Bangladesh in 18 | The Brief

2017 have settled in the largest refugee settlement in the world, Kutupalong, which is home to more than 600,000 refugees. The International Court of Justice (ICJ) has ordered Myanmar to take emergency measures to protect the Rohingya from being persecuted and killed in January 2020. From the start of the conflict to now, more than 40,000 Rohingya have been killed.

Min Aung Hlaing, the current commander-in-chief of the Tatmadaw has taken power after the coup. He is receiving international condemnation for his previous roles, which involved attacks on ethnic minorities such as the Rohingya.

This coup began on the 1st of February 2021 when Myanmar’s main opposition party, the Union Solidarity and Development Party (USDP) backed by the military, demanded a rerun of the parliamentary election claiming fraud. Aung San Suu Kyi’s ruling party, the National League for Democracy (NLD) was suspected to attain another commanding victory against the USPD. The electoral commission investigated the claims of the USPD but found no evidence to support these claims.

Before the new session of parliament could begin Ms Suu Kyi, President Win Myint and other leaders of the NLD were arrested in a series of raids, and are currently held at an unknown location. The coup took place after their arrest.

Soldiers blocked roads from the main city and capital, domestic and international television coverage ceased, and internet and cell phone services cut off.

Changes so far Myanmar’s military is heavily relying on force and intimidation to deter peaceful protests all over the country. Ian Seiderman, ICJ’S Director of Law and Policy, stated that the revisions Myanmar’s military Ed.2 2021

has made ‘violate the principle of legality [and do not] excuse or legitimate the widespread violations of human rights now taking place in Myanmar’.

Since the coup, the Tatmadaw has made the following legal changes: • Suspensions to the ‘Privacy and Security of Citizens Act 2017 (Myanmar)’, removing basic protections such as the right to be free from warrantless surveillance, search and seizure, and the right to free from arbitrary detention.

• Amendments to the ‘Penal Code 1861 (Myanmar)’ expanding existing offences and creating new ones to target individuals speaking critically of the coup, military, and those supporting the Civil Disobedience Movement.

• Amendments to the ‘The Ward or Village Tract Administration Law 2012 (Myanmar)’ for the reinstatement of reporting overnight guests.

• Amendments to the ‘Code of Criminal Procedure 1898 (Myanmar)’ to make new and revised offences nonbailable and subject to warrantless arrest.

• Amendments to the ‘The Electronic Transactions Law 2004 (Myanmar)’ to criminalise the dissemination of information through cyberspace.

Public Outcry Even though retaliation against the military government is illegal under the Penal Code amendments, the people of Myanmar have not ceased protesting.

Groups such as the United Defence Force (UDF) have been established in Myanmar, who have claimed themselves as the fighting force against the military junta.

Many of the youth involved were at the front lines of the protests confronting soldiers equipped with battlefield weapons and are currently getting militarily trained under the UDF to fight against the Tatmadaw.

Protestors have adopted guerrilla tactics that mirror flash mobs as a response to the military’s response to the anti-coup demonstrations.

A three-fingered salute is used as a symbol of resistance against the military.

Protest songs from previous military uprisings are being sung such as ‘Blood Oath’ (Thway Thitsar) as well as new ones made by youth such as ‘Reject’ (the coup) (Ah Lo Ma Shi).

They are also displaying sarongs (known at htamein in Burmese), it is believed that soldiers are superstitious of sarongs as they are traditionally known to weaken their strength and spiritual power.

People around the neighbourhoods are very supportive, distributing food or protective gear for free to protestors.

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During the night, the banging of pots and pans has become a common protesting technique, traditionally believed to drive the devil out. At night, people also chant pro-democracy slogans trying to keep spirits high amid the night-time curfews. Youth are making street murals advocating for the restoration of democracy.

To communicate freely due to the restrictions on cyberspace, people from Myanmar are using software such as ‘Bridgefy’, which bypasses the internet and uses Bluetooth to send messages to other users of the app wirelessly.

Since the start of the coup, over 700 civilians had been killed amidst the protest. However, people are continuing to fight for the sake of the future of Myanmar.

International Reactions Activists across Asia have held rallies to support the protesters in Myanmar, emerging from the #MilkTeatAlliance. Activists in Bangkok, Melbourne, Taipei and Hong Kong and many more countries held protests advocating for democracy in Myanmar.

The international community has been silent about this issue. Western countries have openly condemned the military coup, but surrounding countries in Asia are more nuanced. ASEAN is divided in their reactions.

Singapore, Malaysia and Indonesia expressed their concerns about the injustice the coup has instigated.

However, Thailand, Cambodia and the Philippines stated that this was Myanmar’s ‘internal affair’.

The Myanmar coup is a recent example of how individuals worldwide are able to unite in solidarity against particular issues. Our influence as people with working bodies and evolving minds is considerable, not only in our own lives but the lives of others. In introspection, an individual holds thousands of ideas and thoughts; it’s only when these ideas and thoughts come into action that we can influence others and make a collective change.

In Myanmar, people are growing more confident.

Individuals continue to fight for their sovereignty and freedom in their military-controlled country. Despite ethnic classes or religions, people can come as one and fight issues head-on.

Change in the world is always driven by the collective action of people; it’s the outcome of our human influence. Inevitably, it’s what makes us so human.

I ponder, in this unjust world, our freedom is so vulnerable. Could our collective power be stronger than that of authority, if so, how do we free ourselves from the wrath of injustice?

thebrief.muls.org | 19

Beneath the Surface:

the Israel-Palestine conflict Sami Shamsi

T

he escalation of hostilities between Israel and Palestine has captured the attention of the international community. For many of us scrolling through social media, we are confronted with pictures and videos of the deteriorating situation abroad, all showing the undeniable presence of suffering within families and communities.

It serves as a stark reminder that the human influence should not instinctively be associated with positive social change, rather, underlying the adverse impacts of individuals upon their broader world. The intricate nexus of events transpiring in Palestine can be separated into three key areas: the Sheikh Jarrah neighbourhood, the Al-Aqsa mosque in Jerusalem, and the Gaza Strip. a) Sheikh Jarrah neighbourhood The current tension in Sheikh Jarrah between Palestinian families and Israeli authorities reflects an ongoing property dispute.

Political conflict caused 700,000 Palestinians to flee their homes during the period known as al-nakba (‘the catastrophe’) in 1948, relocated to Jerusalem by the United Nations. Israel’s earlier annexation of East 20 | The Brief

Jerusalem means the land may be considered Jewish property, thereby granting a proprietary right to settlor groups. Believing Palestinians were illegally occupying the area, Israeli authorities evicted families through the Absentee Property and Legal and Administrative Matters Laws. This represents a severe breach of international humanitarian law, specifically Article 49 of the Geneva Conventions.

The legal proceedings determining this issue have continued over years, but the Israeli Supreme Court was expected to rule in the Jewish claimants’ favour soon. In anticipation of the eviction order, settlor groups and Israeli police began ordering Palestinian families to leave their homes. Families within the neighbourhood held sit-ins in protest, ignoring official orders and remaining steadfast in their homes until the Supreme Court ruled otherwise.

The protests transformed into a widespread movement, with young Palestinians uniting across Jerusalem to lead campaigns despite clashing against authorities. Social media amplified the efforts of these young people by broadcasting videos of crowds protesting on various platforms, initiating a global conversation regarding the tensions in Sheikh Jarrah.

Ed.2 2021

228 others hospitalised. These figures underrepresent the number of casualties by omitting the masses who were unattended to, as medics were unable to enter the mosque. This is a glaring violation of international humanitarian law contained in Articles 13, 14 and 32 of the Fourth Geneva Convention, which protects civilians in areas of armed conflict.

b) Al-Aqsa mosque As protests continued in Sheikh Jarrah, the Al-Aqsa mosque in Jerusalem soon became the nucleus of conflict between Israeli police and Palestinian protestors. The mosque is established in a compound considered as the third holiest site in Islam and the holiest site in Judaism. On Friday 7 May, the mosque held the final Friday prayers of the holy Muslim month of Ramadan, with over 70,000 congregating in total.

Afterwards, Palestinians peacefully protested against the evictions in Sheikh Jarrah outside the mosque.

Israeli authorities responded by dispersing crowds of protestors, many of whom retreated into the mosque for safety. On Friday night, Israeli police attempted to disperse any residual protestors by entering the mosque with tear gas, rubber-coated steel bullets and stun grenades. This occurred an additional three times across the four-day period from Friday to Monday 10 May, with police firing at civilians and hurling projectiles at the mosque’s exterior. Protestors retaliated by throwing sharp rocks and bottles at officers, but there was little hope of Palestinian resistance once the Israeli Police Commissioner sent in further reinforcements.

Palestine Red Crescent reported 305 Palestinians were injured from the numerous raids, with another Ed.2 2021

c) Gaza Strip The violent raids of Al-Aqsa mosque led Hamas, a Palestinian militant group occupying Gaza, to issue an ultimatum. On Monday 10 May, Hamas threatened to launch rocket attacks from Gaza if Israeli forces were not withdrawn from both Sheikh Jarrah and Al Aqsa by 6pm local time. Israel’s non-compliance prompted Hamas and other militant groups to fire rockets from Gaza into Israel. These attacks struck numerous cities including Tel Aviv, the nation’s commercial capital, injuring Israeli civilian masses. In retaliation, Israel conducted hundreds of airstrikes over Gaza, destroying 9 multi-storey buildings and over 184 commercial and residential properties, including media offices for The Associated Press and Al Jazeera.

A ceasefire was called at 2am local time on Friday 21 May, with the Israeli PM announcing the proposal was accepted following Egypt’s assistance and pressure from the US. This underlines the significance of international cooperation in advancing a peaceful outcome between groups. The ceasefire marked the end of an 11-day period of persistent attacks across Gaza and Israel, causing thousands of Palestinians to spontaneously celebrate across east Jerusalem. The ceasefire has enabled humanitarian aid to enter the Gaza Strip, providing food, fuel and medicine to civilians.

However, the physical and emotional wounds sustained by both groups cannot be neglected.

According to the Palestinian Health Ministry, the Israeli airstrikes in Gaza took the lives of at least 243 Palestinians, including over 100 women and children.

In addition, over 4000 rockets were fired by Hamas and other militant groups towards Israel, claiming the lives of many Israeli civilians. This has culminated in over 72,000 Palestinians being displaced according to the UN, mirroring the devastation caused during al-nakba.

These events paint a picture of engrained division between Israel and Palestine, built upon centuries of historical scars and political tensions bubbling underneath.

It demonstrates how human-powered movements do not automatically contribute to societal progress, instead creating a blood-stained image of trauma and suffering experienced by numerous families and communities. thebrief.muls.org | 21

one Influence of

media giant

T

Rimsha Acharya

he significant influence of Rupert Murdoch on the opinions of the public through his enterprise shows his reach and power. The influence of media in politics is a major factor for the concentration of media ownership. The increase in media ownership concentration has meant that media moguls, such as Murdoch, have held vast ownerships of newspapers, television networks and magazines.

The cross-media reforms meant that companies could control both television and newspaper which has led to Murdoch’s ownership of 70% of print readership in Australia. Undeniably the Murdoch press plays a significant role in limiting diversity of news. This diversity in media ownership allowed for different opinions to be voiced therefore enabling public debate and safeguarding democracy. The coverage of the Iraq war, Kevin Rudd and Julia Gillard’s time in the office show the effects of concentration of media ownership.

While The Australian is not a right-wing news source, it reflects beliefs and ideologies Murdoch favours. His partisan support of right-wing philosophies is evident in the articles and opinion pieces published by The Australian in 2003 as well as the push for economic liberalism into the political agenda of governments.

The 2003 cover of the Iraq conflict exhibited repeated coverage from media owned by the Murdoch press 22 | The Brief

pushing for Australia’s involvement in the Iraq war.

The Australian owned by the Murdoch Press was one of the main sources of this coverage. The articles published between 21 February 2003 to 21 March 2003 illustrate that The Australian, in comparison to the Sydney Morning Herald, was more ‘pro-war’. In this context, The Australian utilised phrases such as ‘weapons of mass destruction’, labelled the allies in Iraq as ‘military action’ rather than ‘invasion’ and when describing the result of the Iraqi war ‘collateral damage’ was used rather than ‘civilian casualties.’

Furthermore, The Australian rarely mentioned the oil supplies in Iraq which was frequently quoted by critics as the main motivation behind US-led intervention. In this context, there was standardization of the news which prohibited a balance in opinions. Pro-war sentiments were heavily quoted, and the news was framed in the lens of intervention for 9/11. With the polling prior to the hostilities and the increasing sentiment towards the war ever-present in the media, 54% of Australians were opposed to military conflict at the time.

Whereas after the hostilities and the standardisation of media in supporting Iraqi intervention, 57% supported Australia’s involvement in the war. The role of the media as an independent watchdog, financially and politically independent, to keep a Ed.2 2021

check on the state is evidently hindered by Murdoch’s monopolisation of the media.

Elections occurring on the international stage such as those in the United States and the United Kingdom are a further exemplar of Murdoch’s role in influencing politics. The media is used extensively by Murdoch to pursue his own corporate interest; to attack and intimidate politicians, rivals and his critics. Recent evidence given in February 2021 senate inquiry into media ownership highlights the power of the Murdoch press into influencing politics. Former Prime Minister Kevin Rudd’s petition for a Royal Commission into Australian media ownership has shone a light on media influence on Australian politics, especially regarding the Murdoch press. Rudd has consistently been vocal about the negativity fostered by News Corp which led to the downfall of his leadership and then of Julia Gillard after him. This is evidenced by his tweets and the interviews he has given regarding the Murdoch media.

The media coverage of Julia Gillard’s time in the office as Prime Minister was focused largely on her appearance and gender which constantly undermined her position in power. Gillard, also being the first female Australian Prime Minister, challenged the political status quo. Murdoch’s hostility towards Gillard was evident in the manner he tried to undermine her position in power by providing negative, even misogynistic Ed.2 2021

coverage in his newspapers. The Sydney Morning Herald report alleging she assisted and benefited from her then-boyfriend’s embezzlement of union funds, was baseless and later was redacted through an apology in The Australian. Being an unmarried, child-free atheist woman at crossroads with Murdoch’s conservative and traditional views, her time in the office saw multiple headlines where her then-rightful title as Prime Minister was not used, or where there was endless commentary about her appearance rather than her policies. This was exhibited in the constant ‘ditch the witch’ imagery used by the Murdoch media, which resultantly influenced the public and became one of the well-known phrases defining Gillard’s time as Prime Minister. The media positioned her as someone who tricked her way into the position of power and placed doubts in the minds of the public of whether she was a competent leader for Australia. Furthermore, the Daily Telegraph and much of the press owned by Murdoch pushed for Tony Abbott as the rightful contender to be the Prime Minister and constantly called for the election.

Moreover, Rudd’s comment on the Murdoch press being ‘a cancer on democracy’ echoes the negative coverage of Malcolm Turnbull during the leadership spill.

The media saw commentators such as Peta Credlin and Andrew Bolt shift their tone and content to back Peter Dutton. This is further evidenced by the Australian Financial review and ABC’s report that Murdoch had advised billionaire Kerry Stokes that he intended to remove Turnbull from power. This is further backed by a report published by the Guardian stating that Stokes had called to warn Turnbull that Murdoch and News Corp wanted him to be removed. The intentions of Murdoch clearly reflected in the coverage by News Corp media highlights the power he holds to influence the public through media by planting seeds of doubt or by turning against those who no longer align with his ideals.

The senate inquiry into the Australian media saw both Kevin Rudd and Malcolm Turnbull attributing their fall in leadership to the influence of the Murdoch press. Both Rudd and Turnbull have publicly stated that they feared the Murdoch press and Murdoch during their time as Prime Minister. Turnbull during the senate enquiry has gone as far as to describe News Corp as a ‘mafia gang,’ wielding incredible influence to promote their own interests without any accountability.

Media is a key tool in influencing citizens in their political views. Without a balance in the news presented to the public, citizens are easily swayed and influenced in supporting corporate interests purported by media moguls such as Murdoch and the Murdoch press. thebrief.muls.org | 23

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Ed.2 2021

A Brief Conversation

with

Dr Daniel Ghezelbash Brindha Srinivas

Dr Daniel Ghezelbash is an Associate Professor at Macquarie Law School who specialises in enhancing protections for refugees and harnessing technology to build a fairer legal system. He is the founder and Director of the Macquarie University Social Justice Clinic, an in-house law clinic which runs in partnership with the National Justice Project and the Refugee Advice and Casework Service.

Much of Dr Ghezelbash’s research has centered around comparative refugee and immigration law and the diffusion of restrictive asylum policies around the world.

The Brief would like to thank Dr Ghezelbash for his time and invaluable insight into Australia’s asylum seeker policy and the wonderful work of the Clinic.

Dr Ghezelbash, you played a key role in the ‘Kids off Nauru’ campaign and are the founder and Director of Macquarie University’s Social Justice Clinic.

Your passion and contribution to justice in the legal landscape demonstrates your embodiment of this edition’s theme, ‘The Human Influence’. How have you personally witnessed the impacts of human movements?

What does ‘The Human Influence’ mean to you?

Ed.2 2021

Despite working in a very hostile policy space – I am still an optimist at heart.

While we will experience blips along the way, the overall trend is towards a more just, equal and free society – and that has only happened through co-ordinated and concerted efforts from passionate individuals committed to progressive social change.

Winning the hearts and minds of the public is key to any progressive social change – this will take different approaches in different contexts, but one of the most important elements is connecting with people on an individual level. That is what ‘The Human Influence’ is all about for me.

thebrief.muls.org | 25

Regardless of the pandemic, it has always been difficult for asylum seekers to make their way to Australia. Amidst COVID-19 restrictions would you say that this is an opportunity for Australia to re-examine our asylum seeker policy?

Absolutely! The evolution of our asylum policy over the last few decades has been reactionary – with specific changes (almost always restrictive) policies introduced in response to the arrival of specific cohorts of asylum seekers. With the COVID-19 related travel restrictions (and ongoing boat pushbacks at sea), we have completely shut off access to Australia for asylum seekers. This is not an approach that we can maintain in the long-term. How can we expect other countries with fewer resources, particularly those in our region, to provide access to protection, when we do not ourselves?

We should be using this pause in arrivals to have a conversation about how we can redesign our asylum system from the ground up to be fit for purpose in the 21st century, and how we can better work with the countries in our region to ensure that those in need of protection can access it.

I understand you are also a Special Counsel at the National Justice Project and Board Member at the Refugee Advice and Casework Services (RACS). Both organisations are an exemplary example of providing solutions that advance access to justice. What have been some of your highlights working across both organisations? How can the use of technology build a fairer legal system?

26 | The Brief

Both the RACS and NJP are organisations that are very close to my heart. I’ve been involved with RACS since I volunteered there as a university student, and I’m honoured to now be the VicePresident of their management committee. RACS is the biggest provider of free migration advice to asylum seekers in NSW – we have provided life changing assistance to thousands of asylum seekers. It is also one of the most trusted voices nationally when it comes to advocating for policy change in this space and has played a key role in the major campaigns in this space in recent years.

One of my biggest highlights was my contribution as a volunteer lawyer in assisting asylum seekers, who were part of the so-called ‘legacy caseload’, to meet the arbitrary submission deadline imposed by the government in 2017. These were a group of 30,000 people who had arrived by boat but had not been allowed to apply for protection for many years - the government suddenly announced they would all need to apply within a matter of months. It was widely viewed as a cynical move to overwhelm the free migration advice services like RACS. However, with a groundswell of volunteer support, and donations, RACS was able to rise up to the challenge and provide advice to every asylum seeker from the cohort that approached us.

My affiliation with the NJP goes back even further, predating the creation of the organisation.

I was fortunate to do my Year 10 work experience placement with George Newhouse, who later set up the NJP and is its director and principal solicitor. I worked with George on a whole range of high profile, high impact strategic litigation over the years, and was thrilled when he joined Macquarie as an Adjunct Professor. The NJP’s litigation with regards to securing medical evacuations for children and adults from Nauru and Manus Island played a key role in laying the groundwork for the Kids off Nauru campaign, and the Medevac legislation. More recently, they succeeded in stopping the government from taking mobile phones away from people in immigration detention in Australia – a huge win that has meant

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that detainees can continue to contact supporters in the community, and broadcast information about the conditions of their detention. One of the areas I have been most directly involved in myself is the NJP’s work representing First Nations people who have had their visas cancelled on character grounds after committing criminal offences.

I’m thrilled that both NJP and RACS have partnered with the university to be part of the Social Justice Clinic. Students were involved in assisting with many of the cases I have discussed above.

We have a number of other exciting new clinical placements starting this year, including with the immigration team at Legal Aid NSW. My most recent focus has been on the transformative power of technology to increase access to justice. Legal technology can improve the efficiency and ease of access to services provided by the not-for-profit legal sector. The demand for services generally far outstrips the capacity of the sector, so any efficiency improvements that save time for lawyers and allow clients to self-help can play a big role in closing the access to justice gap.

That is the key principle behind two new exciting clinical placements available at Macquarie Law School. The first is Wallumatta Legal, a new law practice on campus in collaboration with DLA Piper, that is using legal technology to provide low-cost family advice to the so-called ‘missing middle’.

These are people who are often going through the family law system without legal representation, as they earn enough not to be eligible for Legal Aid but cannot afford commercial rates. The second initiative is the TECH4JUSTICE Lab (in collaboration with the NJP), which is run like a legal tech start-up on campus at the law school. It is currently working on building chatbots that assist users in preparing and submitting discrimination complaints to the Australian Human Rights Commission.

Thanks so much! I’m so thrilled about the opportunity. As flagged already, all my work is geared towards advocating for progressive social change and winning the hearts and minds of the public is so crucial to that goal. I’m really grateful for the opportunity to work alongside Australia’s most respected journalists, develop my media engagement skills, and to showcase the findings of my research to a broad audience.

What advice would you give to students who have a particular interest in refugee law or not-for-profit legal sector work? How can they get involved?

Get involved with the incredible opportunities available to you on campus through the Social Justice Clinic! Otherwise, contact organisations you are passionate about to explore volunteer opportunities. You need to cast your net wide and try and get exposure and build connections with as many different organisations as possible. Also, remember that there is no ‘right’ pathway to work in this space. There are many lawyers who work for commercial firms for a number of years, and successfully shift into the not-for-profit space.

Also, remember that it does not have to be an all or nothing proposition. If you work in the commercial space, there will be pro bono opportunities as well.

At RACS, for example, we have had quite a few of the graduates of the Social Justice Clinic do 6 or even 12-month secondments with us from various commercial law firms. Be agile, be open minded, and seize opportunities as they arise!

Congratulations as well on being selected for the 2021 ABC TOP 5 Humanities Media Residency! How will this role allow you to progress social change and policy reform?

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thebrief.muls.org | 27

Admissions of a Law Student

Elle Woods Lied to You Anna O’Rourke

I

have a confession to make. My Instagram bio once contained the famed words of my favourite lawyer ‘what like its hard?’ I also may have kept my hair blonde so I could authentically hashtag #legallyblonde at graduation. But the truth is, Elle Woods lied to you. Law school IS kind of hard. Now don’t get me wrong, it hasn’t all been crying over my $300 textbooks or reaching my final year and realising I still don’t know ALGC4 by heart. For the most part, my JD has been hard but in the best way possible.

When we think of law school it’s safe to say we might think of Suits? Law and Order? A little bit of Judge Judy? However, I think it can safely be said that for every law student, what we may have imagined law school or indeed being a lawyer would be like, is not quite what they show on TV. For me, law school has looked very little like what I imagined when I first thought about pursuing a career in law. I graduated high school in 2015, intending to start law and be out the door in 5 years, somewhere in a courtroom, ideally dressed in a power suit. Instead, I finished my undergraduate degree with a major in Anthropology and an even stronger passion for law. Now as I approach the end of my studies, I could not be more appreciative of the experience the JD has given me.

As a JD student, I have had the benefit of learning alongside peers my own age and those who’ve returned to study after careers in other fields. For me, this has been an invaluable experience my high school self never imagined. Admittedly, amongst the glorified suits fantasies of law school, at times before I embarked upon my studies I sometimes worried if I’d be able to do it, would I make it through ALL those readings? *spoiler alert, I did, not least thanks to drinking my weight in coffee* These worries certainly have materialised at times when I’ve been drowning in readings and trying to remember which AGLC4 rule applies here again? However, despite these frantic moments and the occasional tear shed, the good 28 | The Brief

moments have far outweighed the moments of selfdoubt and assignment panic.

Whilst we’re all individuals, with different personalities, likes and dislikes, I feel that a common theme amongst most law students is we like structure.

We like organisation and we like to know what comes next. As someone who is very much a type-A personality, I originally saw one path to getting a law degree, and in my mind, it was that or nothing.

Initially I didn’t know about the JD and even if I had I’m not sure I would have thought that three years of an undergraduate degree and then another three in postgrad sounded like a path for me. But like many things in life, the path I didn’t even know I could take let alone would take, has been the best decision.

Macquarie has offered me the opportunity to experience learning as both an undergraduate and postgraduate student. From this I’ve gained unique learning experiences and now prepare to enter the real world as best equipped to begin my career as I could hope to be.

Now as I confessed at the beginning, Elle Woods got it wrong about law school being easy. It’s been challenging, often stressful and overall a learning curve as steep as Everest, but through every challenge, I came out better for it. Ultimately, if you’re interested in pursuing a career in law, I think it’s important to know that just like law school isn’t what they show on TV, here are many paths to a law degree. Whether that be a slightly quicker paced journey as an undergraduate student, or the slightly more scenic route taking up law as a post-grad. As my studies come to an end I am still just as excited as I was on day one about the prospect of appearing in Court and hopefully one day donning that barristers’ wig and robe. However, whilst that may be the end goal for me, the journey has undoubtedly been just as rewarding. I may not have gone to Harvard or rocked a pink outfit to every class, but I sure am ready to live my best Elle Woods life.

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Stuff Law Students Like

Notion

the one productivity app that every law student needs Angela Dela Cruz

Imagine you could combine your Google Drive, calendar, planner, notebook, and personal diary all into one app...

N

otion is an ‘all-in-one workspace’ that allows anyone to plan, track, and write. Before Notion, I personally had all my planning scattered across a variety of planners, journals, calendars, and random post-it notes. Having a central system allows me to build consistency and ensures that nothing slips between multiple planning systems.

The main issue with most productivity apps is their limited application. Unlike other digital productivity apps, users are not limited to a one-size fits all approach to planning with Notion. The intuitive user interface allows for the customisation of pages according to preferred methods of planning. Broadly speaking, one can use Notion as a digital planner, project manager, and personal wellbeing tool.

Employing the use of a ‘to do’ page can operate as a main landing page. As this will be the most visited page, it works as a clear overview of all the deadlines and events that a person may be juggling. This page allows any user to think about their daily tasks holistically, by splitting them into monthly and weekly sections. Additionally, linking to existing pages allows users to streamline their workflow and guard against procrastination. For example, I can link to an existing page that contains all the necessary information needed to complete a task on my to-do list.

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Notion is perfect for project management as one can set up databases to organise and sort through large amounts of information. With the ‘View’ setting, multiple ways of viewing this data can be set up, for example, as a table, board, calendar, gallery, or timeline. By doing so, one can create master lists that can be filtered, depending on specific needs. For example, tasks can be filtered into stages, which in turn, helps with overwhelming amounts of information.

Furthermore, being able to keep pages within pages helps to keep information organised and easy to access.

Finally, Notion is a game changer for keeping track of personal goals separate from studies and work. Having it in the same place can help anyone to take their personal goals just as seriously. For example, I usually keep track of my long-term goals and create pages for each goal. I can construct detailed plans of how I will achieve my goal and can track my progress. This is a great way to set SMART goals that anyone can hold themselves accountable for.

If you are a busy law student like myself, I would highly recommend downloading Notion. It has elevated my time management and organisational skills. It is available for both your phone and desktop, meaning that you will never be without your planner again. By using your Macquarie University email, you can get the ‘Personal Pro’ plan for free! What more could you ask for in a productivity app? thebrief.muls.org | 29

A Brief Review

Podcast

The Coronavirus and the Law Emma Wei

W

e all know how COVID-19 has impacted businesses, relationships, mental health and the economy but how has it impacted the legal sector?

Lisa Higgins, a final year law student at Victoria University launched a 10-part podcast, called ‘Coronavirus and the Law’, answering this question.

She proposed the idea to the College of Law and Justice and shortly after, was given a grant through the Student Services and Amenities Fee. Her podcast series, featuring interviews with her teachers and legal experts, discusses how the pandemic has affected courts, law students, future legal job opportunities and different areas of law. Each episode varies from 10-15mins in length and law students are welcome to submit questions on the topic.

Unlikemost legal articles and news headlines that broadcast new laws to follow, Lisa delves into broader questions of COVID’s influence on legal frameworks.

Some interesting concepts are raised in the podcast, such as the use of federal emergency powers in conflict with state and territory governments, along with some hard-hitting questions such as how asylum seekers and refugees in Australia are being looked after during the pandemic.

30 | The Brief

My favourite episode of the podcast is ‘Human Rights & COVID19 with Bill Swannie, a lecturer in the College of Law & Justice at Victoria University.

Mr Swannie explains how Australia does not have a national Human Rights Act and therefore our human rights can be overridden. He explained that the State of Victoria has a Charter of Human Rights and Responsibilities (‘the Charter’) but it adopts a dialogue model so that parliament merely has to consider the human rights listed in the Charter when enacting legislation. Therefore, so long as parliament gives reasons qualifying why an overriding of a human right is important then they may pass legislation that imposes on our rights. Such a legislation was seen during COVID-19 when restrictions were imposed on Australian’s freedom of movement.

It would be greatly beneficial for law students to listen to Lisa’s podcast and explore these emerging issues so that they can be aware of the direction of future legal discourse. ‘Coronavirus and the Law’ gives an insightful summary of the current legal issues arising in a post-pandemic world.

Her podcast series can be accessed via this link.

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