The Brief Edition 3 2021

Macquarie University Law Society magazine Edition 3, 2021 (Volume 27)

Sidelined Sidelined

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Contents

The Brief Ed.3, 2021

Regulars 06

[What’s New in the Law?] Sophie Baxter

08

[Social Justice Corner] The Real Price of our Western Fashion Habits Tamika Mansell

09

[Under the Radar] Echoes of a repressive past Rimsha Acharya

10

[Devil’s Advocate] COVID-19 Restrictions Aryagayathri Sarath & Tomas Ditton

29

[A Brief Conversation] with Dr Andrew Burke Brindha Srinivas

32

[Admissions of a Law Student] The Sorting Hat of Law School Ruponti Atiq

33

[Stuff Law Students Like] Asking Questions on Discussion Forums Lachlan Cicurel

34

[A Brief Review] RBG (2018) Rahin Badar

Features 13

[Social Justice Feature Interview] Climate Consciousness and the Law – with Dr Louise Camenzuli Abirami Kandasamy and Imogen Bryant

16

Aboriginal Incarceration

18

Shadow Pandemic: Elder Abuse and the COVID-19 Pandemic Aryagayathri Sarath

20

A Bill to Protect or Neglect Vulnerable People? Amending the Family Law Act

Arjun Kumar

Morgan Graham

22

A sense of who we really are: What the 2021 census tells us about the need to better represent LGBTQI+ people Anna O’Rourke

24

Sidelined Once Again: Indigenous Peoples and COVID-19 Sarah Allouche

26

Raising the Age of Criminal Responsibility in Australia Kennedy Alt

Editor’s Welcome Dear Reader, Welcome back to our third and final edition of the year, ‘Sidelined’.

This edition focuses on how our laws do and do not adequately protect those most vulnerable in our communities. Whilst it is inherent that all people must be protected from harm, there are additional legislative and ethical considerations for protecting those often sidelined. Expect to read about amendments to the Family Law Act (pg. 20) and an analysis into what the 2021 Census tells us about the representation of LGBTQIA+ people (pg. 22).

‘What’s New in the Law’ (pg. 6) discusses the possible introduction of the Ransomware Payments Bill (No 2) 2021, recent developments in Brown v The Queen [2020] and amendments to the Australian Immunisation Register Amendment (Reporting) Act 2021 (Cth).

On par with our theme, writers examine the detrimental impact on the rights of women due to the Taliban’s sweeping military campaign in Afghanistan (pg. 9), whether it is time to raise the age of criminal responsibility (pg.26) and the consequences of Western fast fashion trends on less developed nations (pg. 8).

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Our talented writers delve into the realities of clerkship season (pg. 32), mustering the courage to ask questions on discussion forums (pg. 33), a review on the documentary ‘RBG’ (pg. 34) and much more! ‘Sidelined’ also features interviews with Dr Andrew Burke (pg. 29) and Dr Louise Camenzuli (pg. 13) experts in criminal and environmental and planning law respectively.

Through our editions this year we hope that we have given a sense that no matter what the cultural, political, economic or social divide, we are part of a global community of people who, in their own way, all contribute to strengthening the rule of law. I hope that ‘Sidelined’ also serves as a reminder that cooperation, mutual understanding, and making an effort to better understand our fellow humans is something which we should all aspire.

Thank you to all our contributors, designer and editors for your hard work and commitment. And last but not least, thank you, the reader, for your ongoing support. We hope you enjoy ‘Sidelined’, in which the range of innovative thinking and critical analysis from Macquarie law students is truly showcased.

Brindha Srinivas Editor-In-Chief

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President’s

Welcome

thebrief.muls.org Welcome to the final edition of The Brief for 2021!

Throughout 2021 we have seen in the news and on social media the highlighting of stories of vulnerable people and communities, whether it be First Nations Peoples, those with disabilities or children and elders. In our interconnected global community, it is imperative that we are aware of and educate ourselves on these issues.

This issue, ‘Sidelined’, has some really intriguing reads, that include discussions about Aboriginal Incarceration, representation of LGBTQI+ people and elder-abuse. Make sure to read the interview with Dr Louise Camenzuli from Corrs Chambers Westgarth as she imparts some amazing knowledge about Environment and Planning Law and her journey within the legal industry.

I want to extend a special thank you to Brindha for all her hard work throughout 2021. You have constantly published articles of a high calibre that engage in critical discussions and analysis of problems facing our world.

I want to also thank Matt for his leadership and tenacity in overseeing the publications team. Thank you to all the writers and editors for all your hard work in pulling this edition together.

Thank you to you as the reader for supporting the Brief and supporting MULS. As it comes to the end of our terms, I want to wish you the best of luck with your legal journeys.

Lucy Sheppard President, Macquarie University Law Society

Edition 3, October 2021 (Volume 27) EDITOR-IN-CHIEF Brindha Srinivas

DIRECTOR OF PUBLICATIONS Matthew Lo DESIGNER Nathan Li

WRITERS (IN ALPHABETICAL ORDER)

Abirami Kandasamy, Anna O’Rourke, Arjun Kumar, Aryagayathri Sarath, Imogen Bryant, Kennedy Alt, Lachlan Cicurel, Morgan Graham, Rahin Badar, Rimsha Acharya, Ruponti Atiq, Sarah Allouche, Sophie Baxter, Tamika Mansell, Tomas Ditton SUB-EDITORS

Adrienna Lim, Amelia Smillie, Aryagayathri Sarath, Charlotte Macdonald, Chloe Cairns, Eliza Cook,

Sami Shamsi, Seren Ozdemir, Simone Alexander,

Tahlisha Lombardo, Tomas Ditton, Vanie Cardinio 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 Andrew Burke, Lecturer and Director of Macquarie Law School’s Juris Doctor course.

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 Sophie Baxter

1.

Ransomware Payments Bill (No 2) 2021 (Cth) The Federal Opposition introduced the Ransomware Payments Bill (No 2) 2021 (Cth) to the Senate in August after it failed to pass through the House of Representatives earlier in the year. If passed, the Bill would require Australian business and government agencies to inform the Australian Cyber Security Centre of ransomware attacks before making a payment in response. The Bill comes in response to the 60% increase in ransomware attacks to businesses within Australia in the twelve months leading up to June 2021. Tim Watts MP, Shadow Assistant Minister for Cyber Security, has stated that the purpose of the proposed legislation is to create a coordinated government response to cyber-attacks by informing law enforcement, supporting diplomacy, and engaging in offensive cyber operations. The Shadow Minister defended the urgency for the legislation, claiming that ransomware is currently Australia’s highest security threat. If organisations demonstrate non-compliance, they could expect to face a fine of up to $222,000.

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2.

Brown v The Queen [2020] 62 VR 491 In August 2020, the Victorian Supreme Court held that a person with a diagnosed personality disorder should be treated the same as any other person seeking to rely on an impairment of mental functioning as a mitigating factor in their sentencing. Brown v The Queen [2020] overrules the previous decision in DPP v O’Neill [2015] which excluded personality disorders from such consideration, bringing Victoria’s common law in line with NSW statutory provisions. In this case, Ms Brown pled guilty to four counts of arson, for which evidence was provided that her mental functioning was impaired due to a severe personality disorder. While Judge Taft, the sentencing judge, held that he could not stray from DPP v O’Neill, he did state that if not for this precedent, he would have considered Brown’s personality disorder in her sentencing. Thus, on appeal, the judgement was reversed, due to the argument that a personality disorder could significantly impair a person’s mental functioning similar to any other such impairment.

Ms Brown was resentenced to a reduced custodial sentence with reasonable prospects for rehabilitation.

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What’s New in the Law

3.

Australian Immunisation Register Amendment (Reporting) Act 2021 (Cth) The Australian Immunisation Register Amendment (Reporting) Act 2021 (Cth), enacted in February of this year, amends its 2015 equivalent to provide stricter reporting requirements for vaccinations in Australia. The Act requires recognised vaccination providers in Australia to report information, regarding administered vaccinations, to the Australian Immunisation Register. Further, it gives the Secretary of the Department of Health the power to require this information from vaccinations providers who do not comply. Prior to this legislation, there were no statutory requirements which mandated such reporting. Currently, the legislation’s essential purpose is to track COVID-19 vaccinations in order to gauge the effectiveness of vaccines, monitor vaccination coverage, and identify at-risk communities. This new legislation has clearly assisted the Federal and State governments to manage vaccination targets and make more informed decisions regarding the distribution of the Pfizer and AstraZeneca vaccines.

MULS EVENTS

Semester 2, 2021 COMPETITIONS Junior Client Interview Grand Final 19 October Kind & Wood Mallesons Contract Law Moot Grand Final 20 October Herbert Smith Freehills Foundations of Law Moot Grand Final TBC Allens Witness Examination Grand Final 26 October Novice Moot Grand Final 28 October

SOCIAL JUSTICE Technology in the Legal Industry 21 October

CAREERS Barristers Panel 18 October Montgomery Advisory Presentation 20 October International Careers Panel 20 October

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Social Justice Corner

The Real Price of Our Western Fashion Habits

I

Tamika Mansell

n the last 20 years, global textile production has doubled, clothing consumption is up 60%, and fashion brands are overproducing by up to 40%.

Despite painting a dire picture of wasteful Western habits, shockingly these statistics only tell part of the story; fast fashion trends of the West have detrimental consequences on developing nations.

Fast fashion is inexpensive, low-quality clothing that replicates high-end styles. Garments are massproduced to maintain the demand of the ever-changing Western fashion trends. Initially, the fashion industry ran across four regular seasons. However, fast fashion has now shifted production across 52 ‘micro seasons’ per year, making it ‘customary for stores to have a towering supply of stock at all times.’

Behind the scenes, the fast fashion industry is pervaded with human rights abuses. The severe exploitation of people for commercial gain, termed modern slavery, is prevalent throughout the supply chain. In 2020, fast fashion brand Boohoo was exposed for paying workers as little as 50c per hour, employing victims of human trafficking, and forcing employees to risk their health and work during the COVID-19 pandemic without social distancing measures in place.

Additionally, 170 million children are victims of modern slavery, producing textiles to satisfy the demand of Western consumers.

Developing nations are also being impacted at the other end of the fast fashion chain; when the Western world disposes of clothing items, large amounts are exported to developing countries. In Ghana, the volume and poor quality of these exported items are the leading cause of an ever-growing waste crisis. Fast fashion is destroying these communities, filling up their landfills and ruining their local economies. Local businesses are 8 | The Brief

unable to compete with the low prices of our wastefully discarded “donations”.

In recent years, Australia has imposed legislation that, on its surface, appears to address the negative impact of fast fashion. In 2018, the Modern Slavery Act was introduced, requiring large Australian organisations and foreign entities carrying out business in Australia to report annually on the risks of modern slavery within their organisation and the actions taken to reduce such risks. Despite being a notable first step, this law provides no penalties for false reporting. Further, it only applies to the most severe forms of human exploitation like child labour, negating poor working conditions. In late 2019, Australia established the ‘Standing Committee on Industry, Innovation, Science and Resources’, which made three recommendations regarding the reduction of textile waste including the creation of a national textile waste policy. So far, no government response has transpired.

Regardless of the minimal legal and governmental response to the fast fashion crisis, individuals can still take action to fight the adverse consequences of fast fashion. As global citizens, we should demand transparency from fashion companies and hold them accountable for their actions. Furthermore, we need to start buying more vintage or second-hand clothes, repairing/altering existing clothes and ultimately wearing what we already own for longer.

The fast fashion situation holds important lessons - our actions in the West have consequences for those beyond our borders, despite being out of sight. This is a message that has been brought to our attention many times before. However, even with its pervasiveness, the question remains: when will we learn?

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Under the Radar

Echoes

of a repressive past Rimsha Acharya

T

he fall of Afghanistan to the hands of the Taliban has already had a devastating impact on the rights of women. The progress for women’s rights over the past 20 years has swiftly deteriorated. The Taliban captured the capital city of Kabul on the 15th of August, just two weeks prior to the USA’s complete withdrawal of troops from Afghanistan.

The current Taliban occupation of Afghanistan is a reminiscence of the repressive past of 1996, when the Taliban imposed rules that were a strict interpretation of Islamic law. The oppressive rules imposed removed women’s freedoms and rights by banning girls from attending schools, removing women’s right to vote and preventing women from working outside their homes. The punishment for disobedience is severe and examples include beatings, floggings and even stoning.

The Taliban takeover means that Afghanistan is likely to see the return of these harsh restrictive rules that impose on the hard-earned rights of women. While the United States’ invasion that toppled the Taliban rule in 2001 has been a subject of debate, the two decades since has seen the US invest more than $780 million into uplifting women and emancipating women’s rights.

Under the Taliban’s rule between 1996 and 2001 was a period when women were banned from attending school and universities. Since then, despite the slow and unstable progress in women’s education, significant milestones have been achieved. These include women being able to join military and police forces, women competing in the Olympics and progress made in the engineering sector which had been dominated by men.

However, since the Taliban takeover in 2021, areas under Taliban control have already seen girls being banned from attending schools, reports of forced marriages and restricted movement of females. Districts

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under the Taliban’s control have seen girls’ schools being closed. An example of this are reports from Herat in western Afghanistan, where witnesses have said that female students and instructors have been prevented from entering by guards. Since the Taliban takeover, female lawyers in Afghanistan have had to flee to protect themselves for the men they put behind bars. Women working as prosecutors before the Taliban takeover in 2021 have suggested that the progress made in educating women will be overturned. Under the Taliban ruling, women will be kept out of the workplace especially in positions of power such as prosecutors and judges as was the case in the late 1990s. Moreover, the justice system in Afghanistan no longer protects women, as the closure of courts means that they have no avenue to seek redress for abuse at the hands of their husbands or other males. The Taliban’s complete control of Afghanistan has resulted in the rights of women being limited significantly. Such rights are women’s rights for education, protection from underage marriage, protection from violence and equal rights and duties for both men and women.

The current Taliban rule of Afghanistan is likely to cause human rights violations, prompting a surge in asylum seekers fleeing the situation in search for safety.

As a signatory to the United Nations 1951 Convention relating to the Status of Refugees and the subsequent 1967 protocol, Australia needs to take measures to offer protection to asylum seekers from Afghanistan and Afghan nationals currently residing in Australia. Afghan citizens currently in Australia with temporary visas should have their visas extended. They should also be given the opportunity to submit new claims for asylum seeker claims where it was previously rejected. The situation of Afghanistan is not likely to improve in the near future.

Considering this, Australia should permanently protect Afghan citizens in Australia with temporary protection visas, providing security and protection.

The deterioration of women’s rights and the devastation of Taliban control in Afghanistan has already been treacherous, with no foreseeable improvement. Australia should open its borders to protect those in need and offer additional security to the Afghan nationals already in the country to provide some hope to the conflict.

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Devil’s Advocate

COVID-19

Restrictions FOR Aryagayathri Sarath Introduction With the new COVID-19 variants, many countries are experiencing a spike in their number of cases and hospitalisation. In efforts to control the situation, these countries have reintroduced restrictions and are working towards vaccinating a majority of their population. The Delta variant, a highly contagious SARS-CoV-2 virus strain is considered more contagious than other variants and puts unvaccinated individuals at a higher risk of being infected. This section will be arguing in favour of imposing COVID-19 restrictions, such as lockdowns and mandatory vaccination.

Herd Immunity Herd immunity gained by vaccinating the majority will avoid needless death, suffering and will make the disease scarcer.

In order to achieve herd immunity, a large percentage of the population needs to be made immune to the disease, and the most ethical method to do so is by the vaccine. Therefore, while undergoing a vaccination drive, relaxing the existing COVID-19 restrictions would be counter-productive.

Experts have stated that easing restrictions would encourage the spread of the virus, allowing the virus to adapt and evolve, this may create a vaccineresistant strain. Restrictions such as lockdowns have proven to slow down the transmission of the virus.

Easing restrictions now will lead to high infection rates, and experts warn this may allow the virus to adapt and evolve into variants that contain vaccineresistant strains.

Therefore, rolling out a vaccine drive while simultaneously enforcing restrictions is vital in achieving herd immunity and controlling the pandemic.

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The Economy The World Economic Outlook conducted a study that found the pandemic was predominately responsible for the ongoing economic recession and not the restrictions.

People have voluntarily chosen to disengage from commerce due to the fear of being infected. Therefore, if infection levels remain high, lifting restrictions is unlikely to lead to sustained economic recovery.

Taking the United States as an example, experts predict that if all states adopted tightened restrictions for three weeks, 4.5 million fewer people would be infected and, 54,000 fewer would die. The value of a life is based on the value of a statistical life. Experts predict that the economy would gain far more in net cost savings, than it would lose after three weeks of tightened restrictions. Restrictions such as mandated face covering, limiting indoor gathering, physical distancing, closing nonessential business, restricting travelling from hotspots, and widespread testing and contact tracing are generally agreed to be the most effective in controlling the spread of the virus. Experts predict that the economic value from saving lives and illness avoided will be nearly $339 billion and the economic cost would be $111 billion. When calculating the cost, the model considers costs that arise from the hospital costs, loss of productivity from missed days at work and, lost lives. The net cost savings of imposing these restrictions would be nearly $228 billion.

Imposing tightened restrictions for a short period will control the number of cases, resulting in fewer deaths and people being infected. The net cost savings will be higher than the economic cost. And will also lead to a faster economic recovery as people would feel safer and begin returning to normalcy.

Success stories Denmark imposed a full international air border closure from mid-March 2020 to mid-June 2020. They

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also imposed restrictions such as stringent social distancing measures, limiting the number of people per gathering, working from home, and controls on domestic travel. They were able to flatten the curve by mid-April. At the end of the northern hemisphere summer, they experienced a second wave and went on to impose further restrictions such as face mask recommendations, further limiting the number of people per gathering and a national lockdown towards the end of 2020.

On the other hand, Sweden chose to implement less stringent social distancing measures during the ‘first wave’ of the pandemic. For instance, they did not impose a full international air border closure during the first wave. Their initial public health measure caused the relatively poorer performance in COVID 19 cases and fatalities per capita. Later in the year, Sweden’s social distancing restrictions were the most stringent of all Nordic countries. Experts have stated that Sweden could have reduced its per capita COVID-19 cases if it had imposed restrictions like that being imposed by its neighbour, Denmark.

The new variant caused a spike in cases and both countries have responded by reimposing restrictions.

This has been successful in Denmark, which declared that the coronavirus is no longer a ‘critical threat to society’ and lifted all restrictions.

Conclusion While restrictions do have short-term costs, they are the only effective way to limit the spread of the virus.

Conducting an aggressive vaccination drive and imposing restrictions have proved effective to curb this pandemic and help reach normalcy. Governments need to take a more precise and targeted approach when creating restrictions to control the growing number of cases and deaths.

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AGAINST Tomas Ditton Introduction Australia’s Covid-19 restrictions are excessive, especially now that a vaccine is available. The lockdowns disproportionately impinge upon the human right of freedom of movement. The restrictions detrimentally affect the economy. Finally, they undermine public health.

Freedom of Movement Australia’s covid-19 restrictions are not reasonably proportionate to the infringement on the human right to freedom of movement. The lockdown laws make us prisoners in our own residences. They limit our freedom of movement, which the International Covenant on Civil and Political Rights at article 12, to which Australia is a signatory. While there is no legislative or constitutional guarantee for the independent domestic existence of this right, there should be as it is indispensable to a fulfilling existence. Any curtailment of it must only be done in exceptional circumstances. The Covid-19 virus does not meet this threshold as it is only approximately 1.7% fatal in Australia. Five things more lethal than Covid-19 include cancer, diabetes, respiratory diseases (not including covid-19), heart disease, and motor vehicle deaths. Climate change is more life threatening than Covid-19 but has not prompted the same kind of extreme government response. Accordingly, the restriction on freedom of movement is disproportionate to the risk.

While there is a claim that the highly infectious nature of the virus may lead to hospitals being overwhelmed if left unchecked, Sweden has not implemented hard lockdowns. Sustaining their citizens’ right to freedom of movement has not overburdened their hospitals.

Australia should have followed this approach, especially

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Devil’s Advocate

since both countries are not densely populated. Thus, the restriction on freedom of movement is disproportionate to the health risks.

Restricts Economy The corrosive effect Covid-19 restrictions have had on Australia’s economy strengthens the argument against lockdowns. Employment levels have decreased in New South Wales and Victoria.

Underemployment skyrockets during the restrictions, especially for people aged between 18-34. This means Australian’s are earning less money, even if they still technically have a job. It is projected that business investment will decrease significantly. Retail sales have already dropped by 1.8 per cent. Such economic contraction has major flow-on effects, such as increasing instances of domestic violence, especially against women. Thus, restrictions have a significantly adverse impact on the economy and must be lifted.

Damage to Public Health There are public health disadvantages to the restrictions. The home is one of the most dangerous sites of transmission, which is exactly where we are being forced to stay.

Furthermore, current restrictions adversely

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affect mental health. In Victoria in June 2021, 27 per cent of people experienced high or very high levels of psychological distress. Younger Australians (aged 18-34), were as high as 30 per cent during this period. Both of which were significantly above average. Finally, the restrictions impede people’s ability to lead a healthy lifestyle. This is particularly significant for people of lower financial means who are unable to afford to construct a home gym and even more pronounced for people who have been living in LGAs. People are encouraged to become less physically active, which in turn, has a severe impact on people’s health. 35% of Australians have gained weight during the restrictions and 21% have started drinking more alcohol.

Significantly, obesity actually makes people more susceptible to Covid-19 symptoms.

Thus, lockdowns are making us more vulnerable to the virus against which they are supposed to protect.

Conclusion The need to protect freedom of movement is not outweighed by the threat that Covid-19 poses. Lockdowns detrimentally affect the economy and have negative implications for public health. They must be ceased.

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Social Justice Feature Interview

Climate Consciousness and the Law with Dr Louise Camenzuli

Interviewed by Abirami Kandasamy (Director of Social Justice) and Imogen Bryant (Advocacy Executive Officer)

Dr Louise Camenzuli is the Environmental and Planning Partner at Corrs Chambers Westgarth. Louise has acted on some of the largest and most complex planning agreements in NSW and has advised on numerous extractive industry projects, including mining, coal seam gas extraction and quarrying projects, renewable energy projects and battery energy storage projects. She has also been an elected member of the Property Council of Australia’s Planning Committee since 2010. The Social Justice Team were honoured to interview her and have her share her incredible journey and insights on Climate Consciousness and the Law.

Could you please tell us a bit about your journey with the Law and what you do currently?

I graduated with a combined Economics (Social Science)/Law degree at the University of Sydney. I had always had a deep interest in the environment and the law, but at that time it wasn’t a popular subject, and for this reason the course did not run the semester that I chose it as an elective. Nonetheless, following graduation, I settled in the Planning and Environment Law team at Corrs Chambers Westgarth as a graduate, and I decided to go back and do a Master of Law. I decided to convert my degree along the way to a Doctorate.

I have now been with Corrs Chambers Westgarth for about 20 years. I was made a partner in 2012 and now I am the head of the Planning and Environment team at Corrs Chambers Westgarth nationally. I am also a State member of the Western Sydney City Planning Panel and an alternative member of the Sydney Planning Panels and the Joint Regional Planning Panels.

You currently work on many projects based in environment and planning law. What does that entail and what types of clients do you work with?

The great thing about environment and planning law is that it engages with all aspects of the provision of legal services; you are

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Social Justice Feature Interview

required to undertake advisory work, transactional work, and litigation work. Perhaps most excitingly, you are also fortunate enough to have opportunities to engage in and to lead the development of law and policy, which is incredibly important given the need for continuous change to keep abreast of changes in science, technology, economics, and other matters.

You only need to look at the Department of Planning and Environment NSW’s website to get a handle on the pace of change.

We also engage with clients from both the public and the private sector and experts from a lot of different disciplines, whose input is necessary to provide comprehensive legal advice.

I probably most love this area of law because it relates to tangible matters. For example, I particularly love working on strategic planning matters, such as new release areas and urban renewals. You are required to consider the infrastructure needs and environmental conservation matters that must be addressed to facilitate that development. Amongst other things, there are opportunities to engage in cutting edge sustainable development principles and consider affordable housing provision. You can feel quite proud of some of the things you have helped deliver to shape the state and the country.

What is the relationship between Environmental Law and the Commercial sector?

There are so many great opportunities as a commercial lawyer to really develop law and policy in this space. The process of assisting with the educating of corporations on the importance of responsible business practices and environmental compliance matters is in the best interests of the long-term survival of these corporations, and in the best interests of us, as individuals, and of our families and the wider community. There are ways in which you can really actively engage in this dialogue and use your skills as a commercial lawyer to develop important and workable environmental laws.

I don’t like this perception that there’s either the ‘green side’, the environmental defender side, or the commercial side, because I have a very strong love, a huge passion for the environment.

It misconceives the role of an environment and planning lawyer. Being a commercial lawyer, you learn that corporations generally want to do the

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right thing – responsible business is good business after all. In my practice of the law, I do what I can to assist corporations to be compliant as well as pioneering in their environmental performance and the advancement of their environmental agendas.

In the context of climate change specifically, in the end, we all need to work together to make net-zero happen as quickly as possible, recognising that there will need to be a transition, however time-constrained that is. There’s no real right side or wrong side, it’s the pace of change primarily that often gives rise to disagreement. However, you can be on either “side” and be a very positive contributor. Publications and engagement in panel discussions and education are key things that you can be involved with to advance the discourse on this important topic.

In your opinion, what overall role should Lawyers play in dealing with the climate crisis in Australia?

There are several important roles for lawyers in dealing with the climate crisis in Australia. In the practice of commercial law, it is important that environmental lawyers are educating boards, directors, and general counsels in respect of the interface between the climate crisis and corporate governance. I still think there is a huge lack of understanding around climate literacy, and the fact that this issue requires a multidisciplinary response means the educational role of the lawyer is quite important.

On a personal level, there are lots of opportunities to also engage in climate-conscious climate conscious lawyering, and this interview is one of those. We give our personal time because we care.

It is a really important issue, and deepening your own personal knowledge, participating in panels and webinars and other events, is a process of educating as many people as we can about this issue. There are opportunities, particularly in commercial firms, to contribute to climate-conscious initiatives, which is something that my team likes to do where we can. There are also various international task forces that are developing new global regulatory regimes surrounding climate issues, such as the TNFD, COP26, and the ICC, so there are opportunities to engage in these things also and to give presentations.

Finally, of course, as part of a law firm, there are opportunities to hold industry events and panel

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Social Justice Feature Interview

discussions, and to create various forums to engage more deeply in discussions with climate issues in a multifaceted way, e.g. engaging with scientists, consultants, environmentalists and clients, as well as lawyers, to talk about the issue more holistically.

What changes could be made to Australian Legal institutions and procedures in order to better take on matters relating to climate change?

The law is moving towards applying a climate change duty of care for consent authorities, decision-makers and prospectively company directors and officers in certain contexts. While the common law is leading the movement here, alongside proactive internal shifts within industries (e.g., global financial services sector), it would be helpful if this movement was supported by clear legislative or regulatory changes.

Effectively, reforms to law and policy need to be implemented, but not just environmental law and policy. We are talking about amendments to tax laws, property laws, planning rules, construction laws etc.

This is something that requires deep consideration – that is, how we can expedite the transition and provide certainty to allow investments to occur to facilitate that outcome.

The transition to renewables is something that is going to take some time. We need to invest in the infrastructure now, but time is also, of course, against us. There are concerns around the pace at which temperatures are rising, so I think the more certainty that we can introduce into the law, the better for everybody, because we all need to get on with achieving that net-zero objective. A robust and clear legislative framework will allow us to move forward with some certainty about how this is going to play out.

In 2021 alone we have seen several developments in environmental law, such as the creation of the Taskforce on Nature-related Financial Disclosures (TNFD), and the release of the 6th Report on Climate Change by the IPCC. Additionally, various decisions in the courts, such as the decision in Sharma v Minister for Environment, and the recent decision of Bushfire Survivors v EPA, are important judgments that explore whether a duty of care exists in making environmental decisions and the adequacy of our present regulatory framework in relation to climate change in NSW. We are also seeing a rapid uptake

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in the nature and type of climate change litigation.

While our law and policies may be lagging, courts are being used now as a forum in which to ensure that both regulators and companies are doing the right thing in terms of seeking to minimise environmental impacts and impacts on climate change. This is very much about making our governments accountable and ensuring that all that can be done is being done to ensure a sustainable future, but it does create an uncertain investment environment and community distrust/alarm, which needs to be addressed as quickly as possible.

How can law students develop a climate conscious approach? What would be your suggestions for students who wish to practice within the environmental law area?

The primary way in which law students can develop a climate conscious approach is by immersing themselves in the topic, and that means engaging in as many learning opportunities as they can, including via webinars, industry events, and not just legalbased events, but also those with climate scientists and others. It is a conversation that needs to be had at a lot of levels. When reading climate change related judgments, it is particularly interesting to look beyond the facts and the findings at what was said in obiter, because often what was said in obiter forms part of the grounds for the next litigation or is otherwise used to apply pressure for regulatory change. Often a court is confined in relation to the decision it can make, particularly in administrative law proceedings, as the court is looking narrowly at the question of whether the law has been applied correctly in that instance. It all may well have been applied correctly, and so that is what the court will find, but if the adequacy of the law is questionable, that’s what the court might comment on in obiter.

Overall, I think it is important that law students are really endeavouring to follow what’s happening internationally, as well as in Australia, in relation to climate change litigation, and to understand that actions are being brought in a variety of different ways and with increased frequency.

thebrief.muls.org | 15

Aboriginal Incarceration

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Arjun Kumar

In 2020 the world watched as the harrowing images of George Floyd’s death saw the Black Lives Matter protests erupt in the United States of America. Worried about similar reactions from the Australian public, our Prime Minister, Scott Morrison claimed that we are fortunate to live in a country where there has been no slavery and that we must not import American issues onto Australian shores. Despite this, on the 6th of June 2020, Sydney siders took to the streets in support of the Black Lives Matter movement.

The question must be posed, was this protest merely a sign of solidarity or are there injustices within our own system that have been ignored for too long?

Context The royal commission published a report in 1991 inquiring into deaths of Indigenous people in police or prison custody, unfortunately, in the 30 years since this report, a further 475 Aboriginal people have died in custody. When examining the reason behind this ever-rising number, the answer is clear. Aboriginal

16 | The Brief

people are incarcerated at a disproportionately high number, being the most incarcerated group on Earth at a rate of 2,346 per 100,000. Despite Aboriginal and Torres Strait Islander adults only making up around 2% of the Australian population, they account for 27% of the prison population. Three decades since the royal commission’s report, the situation regarding Indigenous Australians has only worsened.

Indigeneity and the Criminal Justice System The Australian judicial system between the mid to late 20th century had taken substantial steps towards addressing the issue of Aboriginality and crime. In the case of R v Anderson (1954) NTJ 240, Kriewaldt J reasoned that Aboriginal people, due to their more traditional mode of life, should be imposed with substantially more lenient sentences than those imposed on white people. Whilst this decision was based on the erroneous notion that ‘Aboriginals do not have the same concept of time as do white people’, it demonstrated recognition of Indigeneity in sentencing. Further development was made through the 1970s as courts viewed the disadvantages faced by Ed.3 2021

Indigenous society as a result of colonial oppression and loss of land. Here, Courts granted more lenient sentences to mitigate against the destructive effect of colonialism. The landmark case of R v Fernando set out considerations that allowed judges to take into account the social disadvantage an Indigenous person faces entirely because of their background. Although Aboriginality does not always mitigate punishment, it is an important consideration in understanding the offender’s circumstances and potential punishment as prison can have ‘unduly harsh’ impacts for Indigenous offenders. Furthermore, it recognised the close connection between societal factors such as alcohol abuse, unemployment and low education within the Aboriginal community to the high rates of crime committed by those from an Indigenous background.

Here, the recognition of the inherent difficulties an individual faces purely because of their Aboriginality was an extremely positive step in repairing the criminal justice system and ensuring fairer outcomes for Indigenous people.

Sentencing Since the 1990s However, this earlier view has shifted since the 1990s, with courts proving to be more reluctant to accept the circumstances of Aboriginal offenders as a mitigating factor. This is especially the case for more serious offences, as courts since the 1990s have limited the significance of an Indigenous background on the basis of deterrence. Due to government and media criticism of lenient sentences, the judiciary reorientated its sentencing principles emphasizing the safety of the wider community. However, this decision was made at the detriment of the Aboriginal community, as the lack of judicial support further disadvantaged a group that was already on the fringe of society. The failings of the court system to protect this community is further emphasised by an ALRC report where it is stated that there is no real evidence that proves that harsher punishments have acted as an effective deterrent in reducing violent crime in the Aboriginal community.

It has been well documented by criminologists that those from disadvantaged backgrounds have fewer opportunities to escape from an environment of crime, leading to a higher rate of criminal behaviour. Despite this, the Australian criminal system has moved to a position that resembles formal equality, showing disregard for the disadvantages within the Aboriginal community. This shift away from the principles set out in the Fernando case is epitomised in the case of Bugmy v The Queen. When deciding whether an Ed.3 2021

Aboriginal offender’s unique circumstance should be considered during sentencing, the High Court held that the deprived background of an Aboriginal offender may only be considered ‘in the same way’ as the circumstance of a non-Aboriginal offender. This completely disregards the notion that Indigenous Australians are more likely to have committed a crime as many have experienced criminogenic trauma that is unique to their Aboriginality. By applying ideas of formal equality to a society that is clearly divided, this decision intensifies issues of racial inequality and worsens the structural discrimination that is present in the criminal justice system.

Indigenous Sentencing Courts Whilst traditional courts have opted for a colour-blind approach that has led to the increased incarceration of Aboriginal people, alternative methods such as circle sentencing have proved to be a promising solution to this dire situation. The NSW program of circle sentencing is where the magistrate along with Aboriginal elders and the community operate together to determine appropriate sentences. By providing a platform for Aboriginal representation, this improves Indigenous people’s confidence in the sentencing procedure as it ensures that matters unique to their Aboriginality will be considered. The effectiveness of this in achieving both the government’s aims of deterrence and reduction of Aboriginal incarceration was showcased in a 2020 study by the NSW Bureau of Crime Statistics and Research (BOSCAR) that found that participants of circle sentencing had lower rates of imprisonment and recidivism compared to Aboriginal people sentenced by traditional courts. However, with the service only available in 12 local courts, at its current scale circle sentencing in isolation cannot solve the issue of mass Aboriginal incarceration.

Conclusion It is clear that Scott Morrison’s statement was overly optimistic, if not completely ignorant of the very evident racial injustice prevalent in Australia’s criminal justice system. In our attempt to be ‘tough on crime’, the judiciary has regressed from the egalitarian ideals that culminated in the Fernando case. Instead of progressing towards fairer outcomes, the court’s adoption of formal equality has meant that Indigenous Australians continue to be the most incarcerated people on Earth. Ultimately, the courts should learn from the success of circle sentencing and consider the complexities involved with an Aboriginal background in traditional sentencing. thebrief.muls.org | 17

Shadow Pandemic

Elder Abuse and the COVID-19 Pandemic

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Aryagayathri Sarath

ountries are implementing large-scale lockdowns and other restrictions to control the transmission of the virus and its subsequent variants in order to protect people from getting sick or worse dying.

However, the pandemic has also bought about a rise in the other darker traits of humanity. The UN has called for awareness of a product of the current pandemic, the ‘shadow pandemic’. A simple google of the ‘pandemic and abuse’ will illustrate how underreported elder abuse is. The search results would contain thousands of links about domestic abuse cases where the victims were: spouses, children, women, and other vulnerable individuals.

While there are almost no links to pages that discuss the abuse the older community face. This disparity in search results shows how elder abuse cases are often overlooked by many.

What is Elder Abuse? Why discuss it?

Elder abuse is a ‘single, or repeated act, or lack of appropriate action, occurring within any relationship where there is an expectation of trust which causes harm or distress to an older person’. This abuse can take various forms such; as financial, physical, psychological, emotional, and sexual abuse or neglect.

Apart from the simple reason that no one should suffer any form of abuse, elder abuse is also a critical social, health, and economic problem that needs to be addressed. However, in recent years the number of reported elder abuse cases are burgeoning, with damning statistics and harrowing incidents are being reported more frequently.

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Current Legal Framework Many countries such as Canada, the US, and South Africa have enacted specific legislation to protect their older population from abuse. While Australia does not have national legislation and a majority of the states, except ACT, have not passed legislation that specifically protects the wellbeing of older Australians.

States and territories have developed frameworks for inter-agency coordination that are intended to respond to elder abuse. However, these frameworks are within relatively weak policy instruments that end up doing very little to achieve their aim.

Elder Abuse and the Pandemic Elder abuse is generally under-reported. Often older people are not aware that they are being abused. Another reason is the perpetrators of elder abuse are often the adult children of the older person. This aspect makes reporting elder abuse difficult. Doing so would put the relationship between the parent and their child in jeopardy. The victim would not want to cause a family conflict by reporting the abuse. Adding to this, older persons from culturally diverse backgrounds have to face an additional hurdle to accessing services that understand and are sensitive to the older person’s culture.

There are four key barriers to disclosing or taking action in a case of elder abuse. These are the fear of negative consequences for the abuser, the fear of negative consequences to themselves, the belief that the perpetrators were not at fault for the abuse, and fear of experiencing shame and embarrassment when reporting elder abuse. These barriers illustrate the complexities of reporting elder abuse when the perpetrators are family members.

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The pandemic has bought a myriad of issues, such as a spike in the number of elder abuse cases. Reports have identified that stress, unemployment, social isolation, and the mental health of the carers are some of the factors that have led to the rise in elder abuse during the pandemic. The pandemic has isolated older Australians from their community support system. This too acts as an obstacle when it comes to reporting elder abuse.

“The National Plan” – The need for legislation Presently the prevalence of elder abuse in Australia is not clear. However, the Australian Institute of Family Studies (AIFS) has estimated that anywhere between 2% to 14% of the older Australians may be subject to elder abuse. With the advances in the medical field, life expectancy is predicted to improve. Based on this, AIFS predicts that as the Australian population continues to age, the prevalence of elder abuse is expected to rise. The current lack of a legal framework that specifically protects older Australians from abuse is problematic. The national approach to prevent elder abuse need to be prioritised.

In order to address this legislative vacuum, the Attorney-General has launched the National Plan to Respond to the Abuse of Older Australians (Elder Abuse) 2019-2023. This plan provides a timeline that outlines the coordinated action plan that will be executed across federal and state territory governments from 2019 to 2023.

The framework outlined by the National Plan is defined by five key priority areas: • Enhancing our understanding of elder abuse • Improving community awareness and access to information • Strengthening service responses • Planning for future decision-making • Strengthening safeguards for vulnerable older adults Referring to the previous section that discussed the scenario the perpetrators of the abuse were family members. Policymakers and service providers need to consider this aspect when devising the legal framework.

Older people should be encouraged to take action at an earlier stage where it is less likely to lead to adverse consequences. Policymakers and service providers must ensure the framework and policies are designed to protect older people from abuse.

An older person who has the capacity to exercise the right to self-determination should be allowed to do so.

Policymakers and service providers need to maintain a balance between legislation and policies intended to Ed.3 2021

protect older people from abuse, and those who have the capacity to exercise personal autonomy are not deprived of this right.

What can you do?

Witnessing any form of abuse can be distressing and upsetting, but your intervention can create a positive difference for someone who has suffered from abuse.

As part of the national plan, the Elder Abuse Action Australia (EAAA) has created the Compass website.

This website aims to raise awareness of this growing social issue and provides information to the general public on services and information to tackle elder abuse.

The Compass website has outlined the following five steps you can take: 1. Identify if abuse is taking place Be aware of signs that indicate abuse. Ask questions and gather information 2. Provide emotional support Listen to the older person and give them a safe place so that they can share their experience.

3. Plan for safety If you believe that the older person and or others are in immediate danger take reasonable steps to ensure their safety. Your safety and the safety of an older person and others should always come first. If it is an emergency, call 000.

4. Call 1800 ELDERHelp (1800 353 374) This toll-free number will direct you to a phone service near you. They are available to help and guide you and the older person.

5. Write it down Note down your concerns and actions. Try to include dates, locations, and what was said. If the elderly person refuses to accept your assistance, record this in your notes.

Conclusion For many years elder abuse has been overlooked.

However, in recent years this critical issue is being recognised as an issue that needs to be addressed. The current legal framework is relatively weak and unable to effectively protect older Australians from being abused.

The National Plan is a start in the right direction, however, there is much that is still to be done.

As discussed, several complex barriers cause elder abuse to be under-reported. It is important to promote awareness of the thoughtless, exploitative, cruel, and sometimes criminal behaviour older people face. We as a community need to stand together and protect the older population of Australia from elder abuse. thebrief.muls.org | 19

A Bill to Protect or Neglect Vulnerable People?

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Amending the Family Law Act Morgan Graham

he Family Law Amendment (Federal Family Violence Orders) Bill 2021 (Cth) (‘the Bill’) does not adequately protect victim-survivors from family violence.

It allows listed courts to make federal family violence orders where necessary, intending to offer stronger enforcement against family violence.

Additionally, it intends to increase the consistency and efficiency of seeking protection for vulnerable parties by allowing them to access protections through one federal court proceeding. However, there are substantial issues with the Bill which impacts its effectiveness which this article will examine.

The amendment to the Family Law Act 1975 (Cth) strengthens the available protection for vulnerable people against perpetrators of family violence by establishing a Federal Family Violence Order (FFVO).

The Bill allows a listed court to make an FFVO where the court is satisfied that a person has been, or there are reasonable grounds to suspect that it is likely that they will be subjected to family violence.

Additionally, an FFVO may be ordered where children are at risk of being subjected or exposed to family violence. Under the FFVO, a person is required to comply with specific conditions which may prohibit certain behaviours, communications, and movements in relation to the protected person. The penalty for breaching the FFVO can amount to two years imprisonment, 120 penalty units or both. The Second Reading speech outlines the main aims of the Bill, including to send a strong message that family violence is unacceptable, acknowledge the public concern regarding family violence and to provide effective outcomes for vulnerable families.

This Bill’s explanatory memorandum indicates that it aims to offer stronger protection from family violence 20 | The Brief

than the existing civil penalties which require victimsurvivors to bring an application for contravention of a personal protection order. Criminal punishment acts as a greater deterrent than civil injunctions for personal protection which are less effective, costly to pursue and can escalate conflicts between the parties by comparison. The National Domestic Violence Order Scheme would ensure that the state police have the authority to enforce breaches of FFVOs, retrieving the burden of enforcement from victim-survivors.

However, the states and territories have only agreed to the involvement of police in principle, and has not been mandated in the Bill.

This Bill intends to create consistency across state and territory jurisdictions while operating concurrently with their civil protection orders. This is of particular relevance in response to COVID-19 which has magnified the ‘insidious and ubiquitous problem of family violence on a national level’ according to Dr Jacoba Brasch Q, President of the Law Council of Australia. Further, it acknowledges that existing state family violence order provisions, such as the Crimes (Domestic and Personal Violence) Act 2007 (NSW) may not adequately protect victim-survivors from further violence. In this sense, the Bill aligns with Australia’s international obligations to protect women and children who are not the only victim-survivors of family violence, but remain the majority, affecting 1 in 6 women (17%) and 1 in 16 men

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(6.1%) according to the Australian Bureau of Statistics 2016 Personal Safety Survey.

Additionally, victim-survivors may seek this protection in conjunction with other family law matters to which they are already a party to. This reduces the need for initiating multiple court proceedings between the same parties. Vulnerable parties can have their needs met in one forum and avoid the risk of retraumatisation from sharing their experiences of family violence at the hands of their perpetrator on multiple occasions. It also saves time which reduces the risks associated with prolonged exposure to violence, as well as the stress, confusion and costs experienced by litigants. Furthermore, these experiences may be relevant for other aspects of the family law proceedings and should be disclosed accordingly.

However, while the Bill is designed to make achieving protection easier for vulnerable people, interested stakeholders including the Law Council of Australia, have identified considerable concerns regarding its application in practice. The Bill only allows a protected person experiencing family violence to seek a final FFVO rather than an interim order. This means that a vulnerable person who needs urgent protection will still need to seek more immediate remedies from a state court. In this way, the Bill fails to fulfil its purpose to provide victim-survivors with timelier, streamlined protections. Stakeholders have concerns as to how the Bill will interact with existing state family violence order provisions in practice, as this is currently unclear.

Additionally, the Bill orders do not assist victim-survivors of family violence who are appearing before the court solely for property-related proceedings. Furthermore, it is not clear how a protected person would apply for an FFVO and when it may come into force.

The Bill may inadvertently allow for system abuse by perpetrators who delay the determination of family violence and other associated family law issues, by increasing the complexity and length of the one proceeding in the listed court. This may allow for further family violence against vulnerable parties, as the perpetrator continues to exert control and coercion over their victims. The Law Council of Australia recommended that the Government consider implementing explicit safeguards to constrain this, but these have yet to be implemented. The increased complexity will also require judges to be adequately trained in trauma-informed family violence matters, to handle the matters which come before them.

Additionally, the introduction of this new protection order will likely increase the workload of courts that handle family matters. In order to accommodate for the additional pressure, the proposed measures need to be accompanied by adequate resourcing, training, infrastructure, and support services. The Federal Government allocated $1.8 million in the 2020-2021 budget to support necessary changes to this system, but this may not be enough for successful implementation.

Without these measures, further delays in the resolution of family law matters may arise. Family law courts are already overworked with extensive delays, causing limited additional capacity to manage any greater workload. This has recently been exacerbated by the challenges of COVID-19 and the recent merger forming the Federal Circuit and Family Court of Australia (FCFC) on September 1. This merge has also created its own concerns regarding the protection of vulnerable people which are outside the scope of this article. The merger also limits access to FFVOs for vulnerable people in regional and remote communities, as the listed courts are limited.

In conclusion, the Bill does not adequately protect victim-survivors from family violence. While it is filled with good intentions, further amendments are required to effectively protect vulnerable people. If you need domestic violence support, please contact any of the following services.

• The National Sexual Assault, Domestic Violence Counselling Service 1800RESPECT (1800 737 732) • DV Connect – Domestic Violence helpline 1800 811 811 • Women’s Legal Service for free legal advice 1800 957 957 • Mensline for confidential counselling, referral and support for men 1300 78 99 78 • Lifeline for 24-hour crisis support and suicide prevention 13 11 14

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thebrief.muls.org | 21

A sense of who we really are

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What the 2021 census tells us about the need to better represent LGBTQI+ people Anna O’Rourke

n 1828 the Australian census was taken for the first time. Since 1961, once every five years, Australian households have answered questions about where they’re living, what they’re doing and who they are. In administering the Census, the Australian Bureaus of Statistics (‘ABS’) collects important data that helps our government understand: critical issues, how our population is changing, and a picture of who we are.

This information critically shapes government policy and programs, but much like a puzzle, we cannot form a complete picture without all the pieces. This incomplete picture is what we are now facing with the absence of key questions for LGTBQ+ people in the 2021 Census.

Under the Census and Statistics Act 1905 (‘CSA’) the Australian Statistician is granted the power to collect data under the Census of Population and Housing, whilst the Census and Statistics Regulation Act 2016 lists the categories of statistical information that may be collected. There is no explicit mention of gender or sexual orientation within the categories, however, the statistician is armed by the CSA with discretionary powers to collect any statistical information they consider appropriate. This discretion indicates the absence of a legal barrier to including questions on gender and sexual orientation. In 2018, after public consultations on questions that the Census should 22 | The Brief

include, the ABS announced the testing of eight topics for the 2021 Census including non-binary sex, gender identity and sexual orientation. However, these were ultimately dropped and did not appear in this year’s Census. Despite excluding these questions, documents tabled in the Senate show that the ABS noted that the proposed questions on sexual orientation had ‘no alternative data source’. Indicating that there are no other accurate means of collecting information about Australian’s sexual orientation. However, it is well documented that LGBTQ+ people continue to experience stigma related harm and a multitude of social and health challenges, such as increased mental health issues, suicidality, discrimination, and homelessness. This is data we do not lack. The data we do need lies in gender and sexual orientation. Data that can have a positive and tangible impact upon addressing these social issues and inequities.

Without the inclusion of these questions in the Census, we simply won’t capture the lives of these Australians at all. It is important to acknowledge that it is imperative that when these topics are included in the Census, that the right questions are asked. These questions will require careful framing to ensure they are able to effectively gather the relevant data. The ABS must be cognisant when designing questions of how the choice of response options and the wording used will shape the data collected. It is as much about Ed.3 2021

providing the opportunity to answer questions on gender and sexual orientation, as it is ensuring that the questions asked can produce data that can tangibly inform policy and programs. However, between 2018 and 2021 there may have been inadequate time to consult members of the LGBTQ+ community to help construct the right questions. No first attempt at any question will be perfect, but if we opt to ask no questions at all, this does an immense disservice to every LGBTQ+ person. If the data collected does not accurately represent the LGBTQ+ community within our population, this directly diminishes the opportunities for policies to be made that can address issues facing queer people such as mental health and stigma. Furthermore, this data has implications beyond its impact on policies and programs. If the Census does not represent these people, it provides the impression they simply do not exist.

On a personal level, I have the immense privilege of visibility as a white heterosexual woman. I grew up seeing people who look like me in every sphere.

I acknowledge that for many queer individuals, their lived experience is the opposite. In order to address key issues such as LGBTQ+ mental health, it is imperative that their community is represented. If they cannot expect to see themselves represented in a statistical tool designed to capture the lives of everyone in this nation, where can they?

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Ultimately the Census aims to understand our changing nation, and to do so effectively will require the inclusion of questions that reflect social changes.

As a diverse nation, it is important, we recognise and represent this properly and without the fundamental data, the Census can provide we are failing to do so. Existing questions already speak to elements of diversity. It is seen when it asks individuals about their religious identity and cultural background. In doing so it recognises that not every Australian is a Christian, and not every Australian is white. We are a nation of people from vastly different backgrounds, but together we make up this country. If we only had one or two prevalent religions as options to select in the Census, we would minimise the visibility of those who identify otherwise. In failing to ask any questions about gender identity or sexual orientation we do not just minimise visibility we enable active erasure because when the 2021 Census data is released, we will not see a picture of all Australians. I know that when I read the data, I will not see my sister, and many of you will not see your friends or family represented. It is far time to ensure that when the next Census rolls around in 2026 we allow everyone to answer questions that will allow their full identity to be represented, and their needs to be best addressed.

What the 2021 census fails to show is in its very name itself – us. thebrief.muls.org | 23

Sidelined Once Again:

Indigenous Peoples and COVID-19

A Sarah Allouche

t Macquarie University we recognise Aboriginal and Torres Strait Islander Peoples as the First Australians and acknowledges their deep spiritual connections with the land and water; their relationship with the past, present and future; and the diversity of cultures and customs across the hundreds of Aboriginal countries that make up this landscape. The impact of colonisation, government policies (past and present), and the racism inflicted on Aboriginal Australians is also acknowledged.

Despite such acknowledgement, Aboriginal and Torres Strait Island peoples are at risk of being sidelined, yet again, amongst the spread of COVID-19, and its variants. Health inequity emanated from colonisation and racism has meant Indigenous peoples face a preeminent risk of contracting and facing severe illness, or fatality as a result of COVID-19. The effectiveness of the Federal government’s vaccine rollout amongst Indigenous communities has come under scrutiny, however other elements influencing stagnate vaccinations include mistrust of government policy and circulating misinformation, prominently by Kris Schlyder, the owner of ‘Australian Indigenous Prayer Network’.

The Federal government’s national implementation of the COVID-19 Vaccination Program Implementation Plan: Aboriginal and 24 | The Brief

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Torres Strait Islander Peoples has led to only 30.9% of the Indigenous peoples receiving one dose of the vaccine, and what’s more worrisome, only 16.2% are completely vaccinated. This insignificant percentage of vaccinated people of the Indigenous population is alarming considering The Australian Technical and Advisory Group on Immunisation has determined that Indigenous peoples possess an increased risk of acquiring and developing severe illness from COVID-19 compared to non-Indigenous Australians. The increased risk is multifaceted, the risk is amplified by social determinants of health, the remnants of colonisation on Indigenous health and a limited access to health care, especially considering that 65% of Indigenous peoples live in regional, remote and very remote communities.

Therefore, intensified factors such as poor housing infrastructure, widespread illnesses, and a struggle to access healthcare, remote Indigenous communities attribute a higher risk of severe infection. A prime example is the town of Enngonia, 30km from Bourke QLD, where 30% of the [Indigenous] community has been infected with COVID within just 3 weeks.

Despite the implementation of the Federal government’s COVID-19 Vaccination Program, there are still major concerns regarding the efficiency of the vaccine rollout, and its potential impacts on the Indigenous peoples after the lockdown restrictions ease.

The easing of COVID-19 restrictions once the 7080% vaccination target is reached most significantly affects Indigenous peoples, who are threatened to be left behind. First Nations Australians were aimed to be prioritised throughout the vaccination rollout; however, first dose vaccination rates stagnate at around 20% lower than the national average, and 30% lower in some areas of Queensland and Western Australia. Experts attribute the discrepancy of vaccinations rates to the problems during the commencement of the vaccine rollout, and distrust for government policy.

As the vaccine rollout for Indigenous peoples began, Europe simultaneously made a decision to suspend the use of AstraZeneca due to increased cases of blood clots (it has since been determined by regulators there is no causation exists between AstraZeneca and blood clots).

The commencement of the strategy also encompassed that in remote communities, people didn’t have a choice of which vaccine would be administered, which only fuelled fear and distrust within Following this, misinformation relating to the vaccine swiftly spread, most notably by Kris Schlyder, a Christian pastor. Kris was found to have shared a series of communications throughout the community claiming that that the Ed.3 2021

vaccines were “digital devices” or chips to “monitor” people; and that Indigenous communities were being used as social experiments. These events unfortunately have intensified the hindrance of Indigenous communities. Donna Chee, the Central Australian Aboriginal Congress CEO has said the religious groups’ influence has deterred Indigenous people who were initially on board to receive the vaccine. It is important to note the above theories are absolutely false, and multiple Christian pastors have condemned these theories and the actions of Kris Schlyder.

Fortunately, there is hope moving forward to ensure the safety and longevity of Indigenous communities through vaccination. The town of Warmun is a prime example, where 76% of its Indigenous peoples were vaccinated in the first two days of the vaccine’s arrival to the town. This successful campaign was due to months of disproving and debunking misinformation through effective communication.

Local leaders and medical professionals established a transparent relationship with the community elders, to communicate an informed understanding of the vaccine. This campaign based on mutual respect and cooperation could be used as a blueprint for Indigenous vaccination campaigns nationally.

Nevertheless, the alarmingly low vaccination rates, yet elevated risks of severity are similar to many colonised First Nation and Indigenous communities internationally. A prime example is the Indigenous peoples of Alaska, where the vaccination rate remains at 3%, converse to the non-Indigenous Alaskans vaccination rate of 49.73%. These statistics are and concerns reflective of many Indigenous communities who continue to be sidelined, including the Indigenous peoples of Australia.

The Australian government must not again sideline the very people, of whom they sustain a responsibility toward. Without reservation, they must be ensuring the longevity of health and community within the Indigenous peoples. In addition, this issue demand international intervention to establish an improved strategy to better the effectiveness of the equitable approaches of prioritisation, the importance of limiting [Indigenous] community spread, and increasing vaccination rates in First Nation and Indigenous communities worldwide. It is clear in Australia’s circumstances, mutual respect and effective dialogue is imperative to improve the relationships and trust between Indigenous communities, and the governments in order to safeguard the health and best interests of Indigenous peoples. thebrief.muls.org | 25

Raising the Age of

Criminal Responsibility in Australia

Kennedy Alt

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acebook requires all users ‘to be at least 13 years old before they can create an account’. Qantas declares, ‘a child under 12 to be an unaccompanied minor… [who] may not be accepted to travel alone and may be denied travel at the airport’.

To get a body piercing in New South Wales (NSW), you need to be 16 years of age or have parental consent. Yet in all Australian jurisdictions, the Minimum Age of Criminal Responsibility (MACR) is currently 10 years old. This means that when a child reaches their tenth birthday, they are susceptible to, and at risk of; being arrested, placed in handcuffs, interviewed by police, subject to strip searches, charged with criminal offences and incarcerated.

The existing legislative framework in NSW, namely the Young Offenders Act 1997 (NSW) and the Children’s (Criminal Proceedings) Act 1987 (NSW), recognises children as having a distinct legal status, which differentiates them from adults. The operation of 26 | The Brief

designated Children’s Courts, the presumption of doli incapax, and the prevailing principle of rehabilitation, aims to divert young offenders away from the full force of the criminal justice system (CJS). However, the current age of criminal responsibility, at which a child can be legally prosecuted for a crime, treated as a ‘criminal’ and punished with detention, is in direct conflict with this ideology. In 2019-2020, NSW had 1,413 young people aged 10-17 in youth detention facilities: the highest number across all Australian States and Territories. Placing children in handcuffs, courtrooms or prison cells takes away their basic rights as children to thrive, learn and grow – thus, there is a need to adequately respond.

Over recent years and following the Report for the Royal Commission into the Protection and Detention of Children in the Northern Territory, the pressure to raise the MACR in Australia has intensified. Significant concerns have been raised that the MACR in Australia is inconsistent with developmental evidence and Ed.3 2021

international standards. It fails to acknowledge the over-representation of Aboriginal and Torres Strait Islander (ATSI) children and the criminogenic effects that incarceration has on a child’s life trajectory.

Subsequently, in 2018, over 93 submissions were made to the Council of Attorneys-General by key stakeholders comprising the ‘Raise the Age’ campaign, urging the Australian Government to raise the age of criminal responsibility to 14 years. As of 2021, the MACR in all Australian States and Territories remains unchanged.

Developmental Arguments It is well established that children and young people are less developmentally mature than adults. Substantial neurobiological research has shown that the developing and constantly evolving brain of adolescents means that they are prone to impulsive, irrational and sensationseeking behaviours. It is suggested that human brains are not fully developed until a person’s third decade, or early twenties. Interestingly, the last area of the brain to fully develop is the prefrontal cortex, which is responsible for coordinating cognitive processes and executive functioning. With age, the necessary skills grounded in the prefrontal cortex mature. Evidence has shown that impulsivity tends to decrease in a linear fashion between the ages of 10 and 30. A lack of development in the prefrontal cortex can undermine decision making, judgement and capacity for reflection, before action.

As such, children who lack the necessitated maturity and established capacity to gauge the consequences of their actions are fraught with the CJS at an age that precipitates their criminal intent. The current age of criminal responsibility should be raised, alongside interventions that support neuro-developmental evidence that indicates children do not have sufficient ability to refrain from criminal behaviour.

International Standards Australia’s MACR is considerably low compared to other jurisdictions; one of the lowest in the world.

Globally, the median age of criminal responsibility is 14 years. Over recent decades, there has been a trend for countries to increase their MACR. In Canada and the Netherlands, the minimum age is 12 years. In Austria, Germany and Italy, the minimum age is 14 years. In Denmark, Finland, Norway and Sweden, the minimum age is 15 years and in Belgium and Luxembourg, the minimum age is 18 years.

As a signatory to the Convention on the Rights of the Child, Australia is required to establish and/or Ed.3 2021

maintain a ‘minimum age below which children shall be presumed not to have the capacity to infringe the penal law’. Section 5 of the Children’s (Criminal Proceedings) Act 1987 (NSW) codifies the MACR in Australia – 10 years old. This means that any child or young person under the age of 10 years is conclusively presumed not criminally responsible. The Committee on the Rights of the Child indicated in 2005, 2008 and 2012 that Australia’s age of criminal responsibility should be raised to an ‘internationally acceptable level’, as any age below 12 is unacceptable by international standards.

Notwithstanding this, Australia’s MACR has remained the same since 2000. The inconsistent application across jurisdictions of the minimum age, can result in an ‘ad hoc and procedurally questionable’ system. As emphasised by the Beijing Rules (the Administration of Juvenile Justice), where legal systems recognise an age of criminal responsibility, ‘the beginning of that age shall not be fixed at too low an age… if the age of criminal responsibility is fixed too low… the notion of responsibility would become meaningless’.

The Over-Representation of ATSI Children and Effects of Incarceration The disparity between ATSI children and non-ATSI children involved in the CJS is characteristically stark.

In 2018, ATSI children aged 10-17 years were 26 times more likely than non-ATSI children to be in detention on an average night. Alarmingly, the number of ATSI children between the ages of 10 and 12 making their first contact with the CJS is between 30 and 56 times, compared to non-ATSI children. Whilst the reasons for the disproportionate impact of Indigenous people’s contact with the CJS are complex and multifaceted, it is not a new phenomenon.

The proven negative ramifications for those who engage with the CJS is exacerbated when children are detained. Trauma, mental health problems, gang membership, substance abuse and entrenchment in the CJS are lively issues for young offenders. To reduce the likelihood of life-course interaction with the CJS, rehabilitation and age-appropriate holistic methods must be prioritised.

Raising the age of criminal responsibility in Australia is an issue of acute national importance. The desirability of raising the current minimum age to at least 14 years, to adequately support the rights of the child and their engagements with the law, is strongly urged. A failure to acknowledge the detrimental effects that the current MACR has on children and young people, will result in young offenders being sidelined. thebrief.muls.org | 27

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A Brief Conversation

with

Dr Andrew Burke Brindha Srinivas

Dr Andrew Burke is a Lecturer and Director of the Juris Doctor course at Macquarie Law School who specialises in criminal justice and the sentencing of environmental crimes. Many students have had the pleasure of having Dr Burke as a tutor for Criminal Procedure and would know of his incredible passion and expertise on Australia’s criminal justice system.

The Brief would like to thank Dr Burke for his invaluable commentary and advice on Australia’s various criminal law issues, developments in artificial intelligence and his research interests.

During the COVID-19 lockdown, did the government adequately abide by health orders whilst taking into consideration the interests of minority communities? Have police appropriately used their discretion when issuing fines?

In the coming years there will be a lot more studies that will give us harder data. However, for the moment I feel it would have been better to see the government have a little bit less of a punitive approach and a little bit more of a cooperative approach. We know that whenever more police discretion is enabled there is a potential for greater abuse of that discretion and police have been given extraordinary powers during COVID-19. On police discretion more broadly, it is early days, and we need more studies but some of the information I have seen shows that a disproportionate number of the fines have been given to Aboriginal people in NSW.

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A lot of people who have been fined, for example, are Aboriginal people from towns that have never had a case. So, what is the utility in fining somebody who is already not very well off in an area where there’s zero COVID cases? It’s a case of the police exercising discretion against somebody they dislike or somebody they want to move on in some other way. The outcome of police having wider powers is the resentment towards the police by the public. This may then lead to people not following the rules and having less respect for the rules. The 9pm to 5am curfew is an example of how a punitive approach can engender resentment. I do understand how people felt that resentment when there seemed to be different rules for those who were going to the beaches and those in Western Sydney. I think it would have been smarter if we had the same rules for everybody, a less punitive approach and less focus on individual rulebreakers.

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There have been fierce debates in Australia on whether coercive control should be criminalised, especially after a NSW parliamentary committee in June recommended it. However, one of the key concerns is how a criminal offence could affect First Nations women who are much more likely to experience domestic violence than non-Indigenous Australians but are less likely to report abuse.

Many advocates fear criminalising coercive control would lead to Aboriginal women — who police frequently misidentify as perpetrators — becoming even more enmeshed in the criminal justice and prison systems and even less likely to seek help.

How do we strike this balance?

Coercive control and domestic and family violence are a big problem. However, it doesn’t necessarily follow that more criminal laws and more involvement of police is the solution to every problem. We know that in some cases it’s absolutely not. What we need to do is listen to and elevate the voices of Indigenous women and we know that the trust of police by Aboriginal communities in NSW is low. Aboriginal women are disproportionately high victims of domestic violence in NSW but what is being said is that involvement of more police will make things worse not better. Indigenous women saying that they are unlikely to involve the police and trust the police and if the police do become involved it is likely that there will be a misunderstanding or bad treatment.

I think we need to give a lot of weight to that rather than assuming that a carceral approach (that is, locking people up) is the right approach.

I do think that elements of progressive politics in Australia are a little bit confused and incoherent on this question. Getting the police involved doesn’t fix every problem. All forms of domestic and family violence are a deep-rooted problem and we have been trying now for decades to solve the problem with more punitive criminal laws and more involvement of police. However, there is little evidence that it’s working, and I think we have to be honest enough to say that what we’re doing isn’t working and then be brave enough to try new approaches. Even if at first it seems counterintuitive or a bit scary, there needs to be greater focus upon rehabilitation of offenders and understanding why people offend and what can stop that. Studies have shown that domestic violence offenders tend to get relatively short prison sentences which makes little or no difference to their future offending. What we’re doing is not working and it seems to me that criminalising 30 | The Brief

coercive control is doubling down to a degree and there’s no logical reason to think that would work either.

Earlier this year there were discussions surrounding raising the age of criminal responsibility from 10 years old to a minimum of 14 years. By raising the age how will this adequately protect children in Australia’s criminal justice system and more specifically ATSI children?

Raising the criminal responsibility age from 10 years old to 14 years old is a start and a big step forward.

Perhaps, later down the track we can have the debate about raising the age from 14 years to higher, but I think it is important to be realistic about it. Will it fix every problem? No, of course not. Young people under the age of 14 who are acting out and committing crimes often have some very serious underlying issues in their lives. Those underlying issues are not going to go away just because the age of criminal responsibility changes, but nonetheless it would be much better because the focus is taken away from punishment and towards a more welfare intervention. The disproportionate impact on Aboriginal people in New South Wales in that 10 to 14 age range is high; it fluctuates over time but usually over half are Aboriginal that are in custody age 10 to 14. Raising the age of criminal responsibility would be a big step forward and from there we can have further discussions if the age needs to be raised higher.

In the past, artificial intelligence and its algorithms have been somewhat difficult in identifying people likely to commit a crime and as I understand, you are working alongside Professor Hannah Harris on constructing a robust roadmap for the usage of artificial intelligence in policing and law enforcement. What will this look like and how will it tackle issues such as errors leading to injustice?

Australian police forces are starting to use artificial intelligence more and more and this can be seen in other jurisdictions such as in the United States and in Britain.

We have also been able to see some of the problems that have happened there. Artificial intelligence using algorithms to read big datasets to identify patterns is obviously changing every aspect of our society and economy, and it is not going away, it is here to stay.

Inevitably artificial intelligence will start to be used in the criminal context as well and the possible applications are enormous. For example, police might use artificial intelligence to identify a likely suspect for a crime. In that Ed.3 2021

way, there are benefits in terms of identifying and solving crimes faster. However, every system is only as good as its design and the quality of the data that goes in and if the police officer is getting wrong outcomes, then that not only will lead to the wrong person being arrested but it will lead to the guilty person going free. In that sense it is very important we get this right because we’re not just talking about how effective Google searches are, we are talking about whether an innocent person is arrested and charged for the crime.

In terms of safeguards, we can see some very well publicised disasters from overseas such as in Chicago.

Chicago police were targeting street-level drug crime and studies in the States show that Black Americans use illicit drugs at approximately the same rate as white Americans. However, because Chicago police had historically gone to Black neighbourhoods to look for street-level drug crime, when they put their historical data into the computer system AI said unsurprisingly to target those neighbourhoods. What they have done there is just reinforce the historical racism and biased practises. Advocates of AI hope that new safeguards might overturn bias with a more objective policing system because computers are obviously not inherently biased but if the data that they start with is biased then it will produce a biased outcome. It is imperative that these algorithms in AI be transparent and explainable so that the public can understand what the police are doing and police can be held to account for it.

Some of your other research areas have been analysing the need for suppression orders in the digital era, the sentencing of environmental crimes in the land and environment court. Would you say there is an area of interest for you that you haven’t been able to tap into just yet?

One area that I have always been fascinated by are juries and how they work.

In criminal jury trials, each side can knock out three potential jurors without having to give a reason.

All they know about the person is what you can see such as their age, gender, race, how they dressed, haircut etc. When I was a practicing solicitor, it always fascinated me to consider what basis do they make these challenges on and there were all these theories surrounding it. The research paper I’m doing discusses this and I’m interviewing various defence barristers (who will all be de-identified so they can speak openly) who run jury trials regularly to ask them about their strategy.

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The next topic I would love to research is that anecdotally people tell me that they believe that Aboriginal people in New South Wales are grossly underrepresented on juries. From personal experience I strongly suspect that to be the case but there is no data. If that is the case, then we would need to work out why Aboriginal people are not adequately represented on juries. As we know, individuals are supposed to be tried by a jury of peers and Aboriginal people are grossly over-represented in the criminal justice system. They are over-represented as accused but under-represented as jurors so it can be argued that it’s not really a jury of their peers. That’s something I would love to tackle if I can work out the right research methodology and the right way to go about it.

What advice would you give to law students in various stages of their law degree?

Be a joiner! Get involved in mooting for starters but also join whatever club or society activity that you are interested in. Make the most of the experience and the social and professional networks that you make in university are very important. I still know people from university now who are practising, and I know I can email them, and they know who I am and there is still a connection there. In terms of your career, I think being in your 20s can be difficult because you may not know yet what you want to do, but you do have to think about what’s most important to you and there’s no right or wrong. It’s different for different people and everybody’s individual preference is valid. Is your motivation money?

If so, that’s fine. For some people the most important thing is money. Other people would say the more important thing is variety or making a difference. Some really prefer the idea of working by themselves or in a small firm or being a barrister. There is no right or wrong but think about what’s important to you because the choices that you make quickly after graduation will set you in those directions. Once you’ve been practising for five years in a particular area you will be seen as that kind of a lawyer, and you can still change but it will be a bit harder and may involve a little bit of a setback. Uni is a great opportunity to discover what’s most important to you and what sort of experience and job you want to have. Most of the time you won’t know what you like until you try it, and you may surprise yourself when finding your niche.

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Admissions of a Law Student

The Sorting Hat of Law School Ruponti Atiq

C

an you keep a secret?

I dread it - I absolutely, completely, and utterly dread the clerkship season.

Don’t get me wrong, all the different law firms out there fascinate me. But if I wanted to have an existential crisis in my young adult years, I would’ve just painted a lightning-shaped scar on my forehead, befriended an unusually shaped elf and called it a day.

Except there’s no pale noseless man helping me procrastinate my way out of this one.

The clerkship season itself is a bloodbath - not with each other, but with ourselves. Yes, you heard me right. Penultimate year brings the looming existential questions of ‘What? Where? Which?’. Instead of being a time of opportunities that we desperately wish to grab, the clerkships begin to feel like cornerstones to a fail or a pass in a legal career.

I remember the first time I went to one of the firm seminars. The presentations - impeccable. The speakers - so successful, it was intimidating. Don’t even get me started on the graduate speakers! I’m sure my fellow students were as desperate as I was to be where they are. Seeing the amount of work that went into organising the two-hour seminar itself filled me with both appreciation and dread.

The key to surviving one of these seminars is trying to make a lasting impression. What does this mean? It means I had to actually make an effort to look presentable for once. Unlike Harry Potter, I couldn’t simply wave a wand and repair the glasses I should’ve fixed, instead of spending money on my Campos Coffees. Introduce.

Smile. Ask a question. Repeat. It felt like an endless cycle of battling my inner imposter syndrome - do I have the potential to apply? How do I present myself as the ‘chosen one’ in the eyes of these firms?

Then, comes the Clerkship Fair. The Triwizard Tournament for law students, if you will. It was like a Russian Roulette of “Which Law Student Will Add You On LinkedIn?”. It is quite entertaining to watch. All of these 32 | The Brief

Macquarie Law students wandering around in ties and heels; nervous and ambitious, yet quietly hopeful. I took home more brochures than the names of the actual firms.

It was both an overwhelming and exhilarating experience.

These feelings propelled me to start the application process in the month that followed. While I enjoyed using old Suits episodes as procrastination, I knew the guilt of delaying the applications would eat me alive.

The holy grail to my motivation was making the process seem more enjoyable than it was- a little push was all my self-esteem needed. The stage of applying started with existential questioning, trying to figure out where I could see myself in 3-5 years’ time. This is a difficult question for someone who can’t even decide what they want for breakfast in the morning.

But to say the least, I tried. Venn diagrams. Online career exercises. Vision Boards. You name it. But I felt so conflicted – should I apply to all 20+ law firms that were offering clerkships? Or just my top five that appealed to me the most? With each application I submitted, I was left questioning- was I ready to live up to the expectations of these clerkships? Now would’ve been a good time to get some advice from a certain lovable half-giant but I guess I had to figure this one out on my own.

Clerkships show you that a lot about working in the real law world is learnt on the job. That’s a fact.

But what isn’t a fact is that you can only survive the clerkship process (or a career in law) by only applying to the most glamorous. You should pick the clerkships you think you will most enjoy, not the ones that sound like you’ll be pulling your hair out for on a daily basis. It is this wisdom (or what I told myself was wisdom, I’m no Professor Dumbledore), that gave me the strength to grind through those clerkship applications. I may not be the “Boy Who Lived”, but if you follow my advice, you’ll be ready to take on the clerkship process with confidence (somewhat).

Now, you better keep that all secret or I’ll send Moaning Myrtle after you. And she’s definitely not fond of lawyers. Off you go!

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Stuff Law Students Like

Asking Questions on Discussion Forums Lachlan Cicurel

I

t was my first day in university and I was as fresh as they come, eighteen years old and keen to embark on the 2000-day journey to finish my law degree. The content was clear, and everything was beginning to feel organised. Each class began with an introduction to ‘iLearn’, the key to our education.

From lectures, readings, unit guidelines and assessment details, iLearn had it all. In the final moments of class, the professor announced one last feature of the platform. Our ears pricked up, eager to discover what else the platform could do. With shaking hands and a tremor in his voice, the professor murmured, “this is the discussion forum”.

Professors in other faculties would never understand the pain felt by law professors when revealing the discussion forum. When students from other faculties hear about the forum, it goes in one ear and out the other. This was certainly not the case for law students. Excitement washed over us students, an immense curiosity filled the room. Class came to an end, but the echo of students remained, their voices trailing down the corridor, “I can’t believe we can ask anything on that forum”.

Students spent that same night exploring the magical capabilities of the platform. At 4:37PM, a brave individual of the student cohort, Sally, took the leap and christened our discussion forum with its first question. It was something like “where are the lectures?”, an easy question, but still a question. Only minutes later, a very helpful peer came to the rescue, providing an ample answer. Moments later, another peer answered. And then another and then another. Suddenly more questions and more answers appeared on the discussion forum and within hours, 128 questions and answers clogged the forum. There’s no way this trend could continue, I thought to myself. Perhaps this is just because it’s the beginning of university. I texted my new Ed.3 2021

mate, Tommy, who had an older sister also studying law.

“Apparently this is how it is in law units according to my sister,” said Tommy. “My sister also said we will be asking questions in no time too”, he added. No way, I thought to myself, not me.

It would not be absurd to think that this is the case with all student discussion forums. I thought it too at first, until I decided to investigate the unit discussion boards from other faculties and my non-law units. They didn’t ask nearly as many questions, and when they did, it was usually from a law student doing a double degree. There is nothing quite like a law unit discussion board. Questions that one would never have thought of, are asked. In copious amounts they flood the discussion board, testing the unit convenor’s breaking point. And this was before the peak-assessment period had even arrived!

I thought this was the height of confusion and query within the student cohort. Until a pandemic struck.

Everything went online and the forums began to glitch, with student interaction taking off like Ubar on a Friday afternoon. I grew restless at the tsunami of questions that flooded my mind. I had resisted the urge to ask them for so long. My phone beeped; it was Tommy.

“Don’t you dare succumb to the pressures mate, you’re better than this”, the message read. But it was too late. I had already conformed.

Part of me felt like I had let down my mate, or even worse, like I had lost sense of who I really was, not staying true to my word and all. The other part of me was in a state of euphoria from the overwhelming relief. Anyway, two weeks later they got Tommy.

I knew that if they could get him, they could get anyone. It’s a law student’s academic hobby. Or perhaps it’s just an inevitable addiction. Reading it all? Well, that’s another story.

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A Brief Review

RBG

(2018)

Rahin Badar

I

nspired is the only word I can think of as this incredible documentary comes to an end. An incredible surge of inspiration.

The documentary directed by Julie Cohen and Betsy West is a tribute to the United States of America’s (USA) Supreme Court Justice Ruth Bader Ginsburg’s life and accomplishments. The documentary opens with a voice-over of the various criticisms she has received during her career, but by the end, we are convinced of how untrue they are.

This documentary tracks her extremely impressive academic achievements and legal career, highlighting her fight for gender equality and women’s rights. Through notable cases such as United States v. Virginia, 518 U.S. 515 (1996), which allowed women to be admitted to the Virginia Military Institution and, Obergefell v. Hodges, 576 U.S 644 (2015), which helped legalise same-sex marriage in every state in the USA, she changed the course of women and minority groups in America.

To put it simply, Ginsburg was an intelligent, witty, and powerful woman. She dedicated her entire life to do what she did best and fight for what she believed in. Ginsburg was known to be a small, shy woman who famously didn’t do small talk, but this documentary shows a lively side of from, her comical humour to her love for opera (she even acted in a few!).

I recommend having some tissues by your side as RBG makes a tribute to Ruth’s husband Marty throughout the documentary. Marty was at the time was known as one of New York’s finest tax lawyers, and also her biggest support system. Marty died in 2010 from cancer. Ginsburg honours him by reading the sentimental letter he dedicated to her, which she found on his bedside table in the hospital during his last days.

There are so many lessons and life experiences to be learnt from just watching this documentary, many of which Ginsburg dotes by. Let me tell you a few: 34 | The Brief

Editorial credit: j.Daly/Shutterstock.com

Now in the words of Ginsburg’s mother herself, ‘Act like a lady and be independent, even if you meet Prince Charming, be able to fend for yourself.’

‘The way to win an argument is not to yell, it will often turn people away, more so than bring them to your table.’

And finally, ‘Real and enduring change happens one step at a time.’

As law students, we often forget the priceless knowledge we have and the power we hold. By studying the rules which govern and shape this country, and understanding the way they are applied, we are the catalyst for change.

As we come to the end of probably the most unpredictable and toughest semester we may ever face, I ask myself, who do I want to be? How do I make a positive change in the world?

And, in the ‘notorious RBG’s’ wise words I remind myself, ‘Fight for the things that you care about, but do it in a way that will lead others to join you.’

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