The Brief Edition 1 2022

Macquarie University Law Society magazine Edition 1, 2022 (Volume 28)

Unchained

MULS EVENTS

Semester 1, 2022 COMPETITIONS

EVENTS

International Women's Day Mooting Program 5-6 March

First-Year Law Camp 11-13 March

MULS x SULS Alternative Dispute Resolution Competition 31 April International Humanitarian Law Moot Grand Final 30 May Criminal Law Moot Grand Final 31 May Senior Client Interview Grand Final 1 June Championship Moot Grand Final 2 June

Law Cruise 29 April (*unconfirmed) MULS Sport Gala Day 1 May SOCIAL JUSTICE Speaker Night, Elder Law 22 March Practical Skills and Advocacy Workshop Week 6, Semester 1 EDUCATION World Mental Health Day 10 October Juris Doctor and Postgraduate JD and Postgrad Drinks 2 March CAREERS Clerkship Fair 26 May

The Brief Ed.1, 2022

Contents

Features

Regulars

The Silver Chain Linking Women Together

06

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

14

Securing a Right to Die: But What About Aboriginal and Torres Strait Islander Peoples’ Right to Live? Maia Brauner

08

[Social Justice Corner] Coercive Control: The Shadow Pandemic Katie Walker

16

The Aged Care Crisis: Care, Dignity and Neglect Elinor Bickerstaff-Westbrook

09

18

Unchaining the Block: Crowdsourcing Jurors and Decentralising Arbitration to Resolve Disputes in the Online World

[Under the Radar] RUOK: Mental Health Access in Correctional Facilities Flies Under the Radar Josh Herschderfer

10

[Devil’s Advocate] Advocates’ Immunity: Time for Change? Claire CottrellDormer & Jackson Bradney

26

[A Brief Conversation] with Dr David Williams (AM) Tamika Mansell

28

[Admissions of a Law Student] A Zoom Reflection Terence Wong

30

[Law & Disorder] The Amusing Judge Tracey Adams

31

[A Brief Review] The Kingmaker (2019) Bradley Cagauan

12

Grace Drinan

Marie Boulougouris

20 22

Freedom: Right or Privilege? What a Vaccine Mandate Would Mean for Our Human Rights Chelsea McVay The Processing of Australia’s Temporary Protection Visas: An Industrious Scheme or Simply Insensitive? Acshaya Vijayaratnam

Editor's Welcome

Welcome Readers!

As the global response to COVID-19 evolved, it became clear to many that the pandemic holds the potential to endanger more than just our health.

National lockdowns, vaccine mandates and restrictions introduced to combat the virus intensified our need to once again confront the ever-frightening question: is our freedom on the line?

With freedom at the forefront of our minds in these uncertain times, this edition urges us to consider whether we can or cannot rely on our legal system to safeguard the power we have to act, speak and think freely. ‘Unchained’ focuses on whether the law protects our freedom in times of personal, communal, national and international conflicts and crises.

On par with the inspiration for this edition, freedom during the COVID-19 pandemic is examined throughout ‘Unchained’. This edition looks closely at how the freedoms of women have been restrained by the response to COVID-19 (p. 12) as well as how the aged care crisis has been exacerbated by the ongoing health crisis (p.16). Whether freedom is a right or privilege is questioned through the context of the vaccine mandate (p. 20).

This edition also ventures beyond the pandemic in its consideration of freedom. It casts a critical eye upon voluntary assisted dying and First Nation Peoples’ right to live (p.14), solving disputes in an 4 | The Brief

online setting and what this really looks like (p.18) as well as the processes that determine the freedom of refugees in Australia (p.22).

Many of our regular segments return once again to shed light on new legal developments, highlight neglected legal issues and encourage us to engage with a plethora of legal questions and ideas. Joining them this edition is ‘Law and Disorder’, a new segment which showcases the humorous side to the law (p. 30).

Additionally, ‘Unchained’ features an interview with Dr David Williams AM, who provides insight on working for charities and not-for-profits, with particular emphasis to the impacts of COVID-19 (p.26).

Thank you to the writers, editors and designer who contributed to ‘Unchained’ - it is through you that this first edition of The Brief for 2022 is able to come to print. Our team extends appreciation to our faithful readers who continue to support this publication and a warm welcome to new readers. We hope you all enjoy this edition and are challenged to consider the extent to which you feel unchained.

As the future generation of lawyers, judges, academics and policymakers, we must recognise and be critical of when the law does and does not afford us our liberty. Freedom is now our responsibility.

Tamika Mansell Editor-In-Chief Ed.1 2022

President's Welcome

On behalf of MULS, it is my pleasure to welcome you to the first edition of The Brief for 2022!

In recent times, we have seen major challenges to the law’s ability and responsibility in maintaining the freedoms and autonomy, of all members of the populations subjected to its rules, legislation, and framework. In this edition, the theme of ‘Unchained’ expertly elaborates on this delicate balancing act by isolating and addressing many of the personal, social, and legal consequences of national and international crises.

As we move past the COVID-19 pandemic, the shackles of restrictions to freedom have left their mark, and catalysed deep introspection of how much we value our rights and freedoms. This issue has some incredibly interesting reads, ranging from vaccine mandates, euthanasia and its impacts on the Aboriginal and Torres Straight Islander communities, the rights to safe and highquality aged care, and the dispute resolution in the digital world. Furthermore, some articles in this edition will even make you question whether the freedoms of women and victims of domestic violence are remotely adequate, and how the law could be reformed. With a range of exciting initiatives such as a Social Justice Speaker Night on elder law and the inaugural International Women’s Day Program taking place over 5 – 6 March, MULS is very passionate about further broadcasting these important questions.

The 2022 MULS Executive is incredibly excited to bring you a range of new (and returning!) events and initiatives this year. Whether your passions lie in professional skills or mooting competitions, networking with legal professionals, coming along to our range of social events or relaxing with the Justified podcast, MULS has something for everyone.

An enormous thank you is owed to Tamika and Maryrose, as well as the entire subcommittee full of fantastic authors and editors, for their hard work and passionate in creating this landmark edition of The Brief. I am incredibly excited to see what this team will continue to accomplish in 2022.

From all of us at MULS, we hope that you enjoy this first edition of The Brief for 2022, and take time to reflect on the extent to which you feel unchained following a succession of world-altering events.

Devlin Greatbatch Murphy President, Macquarie University Law Society Ed.1 2022

thebrief.muls.org Edition 1, March 2022 (Volume 28) EDITOR-IN-CHIEF Tamika Mansell

DIRECTOR OF PUBLICATIONS Maryrose Sukkar DESIGNER Nathan Li

WRITERS (IN ALPHABETICAL ORDER)

Acshaya Vijayaratnam, Bradley Cagauan, Chelsea McVay, Claire Cottrell-Dormer,

Elinor Bickerstaff-Westbrook, Grace Drinan,

Jackson Bradney, Josh Herschderfer, Katie Walker, Maia Brauner, Marie Boulougouris, Sophie Baxter, Terence Wong, Tracey Adams SUB-EDITORS

Annaleisse Searle, Ava Emdadian, Chloe Cairns, Jasmine Choy, Katherine Chapman-Paton,

Lydia-Lian Zhu, Mackenzie Day, Monique Gray, Mustafa Arifeen, Priya Rajesh, Rachelle Duffy,

Rimsha Acharya, Smeeti Prasad, Trisha Mathur EDITORIAL REVIEW

Devlin Greatbatch Murphy, Maryrose Sukkar and Tamika Mansell 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 David Williams (AM) 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.

thebrief.muls.org | 5

What’s New

in the Law Sophie Baxter

6 | The Brief

Sexual Consent Reforms in the Crimes Act 1900 (NSW) An ‘affirmative consent’ model to address allegations of sexual assault has been a proposition discussed in Australia for years, but in November of 2021, it was finally enacted in the Crimes Act 1900 (NSW).

Prior to the recent amendments, sexual assault was only legally classified as such if the perpetrator knew the victim was not consenting to the act, was reckless as to whether there was consent, or there were no reasonable grounds for believing there was consent. This raised challenges where a victim did not consent to sexual activity, but an alleged perpetrator could claim they had a genuine belief the victim had in fact consented. The November amendments provide that a person does not consent to sexual activity unless they say or do something to communicate consent.

Additional reforms introduced include education programs for judges, lawyers, and police to better assist victims of sexual assault throughout the legal process, as well as new jury directions that judges must give at trial to address common misconceptions about consent.

It is not surprising that such reforms have made their way into NSW law, particularly considering that in recent years sexual assault has been a widespread topic in the media. As NSW Attorney-General Mark Speakman stated, the reforms are simply a sign of ‘common sense and respect’.

Ed.1 2022

What’s New in the Law?

Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021

Social Media (Anti-Trolling) Bill 2021 (Cth)

Anti-discrimination legislation is an evolving area of Australian law. In the past year, legislative reform has significantly affected the protections Australians have from discrimination based on sex, as well as the responsibilities employers owe to employees to reduce sexual harassment in the workplace.

The Respect at Work Amendment Act (‘the Act’), enacted on 11 September 2021, amends three key pieces of Australian legislation; the Fair Work Act 2009 (Cth) (‘the FWA’), the Sex Discrimination Act 1984 (Cth) (‘the SDA’) and the Australian Human Rights Commission Act 1986. Changes to the FWA have included the insertion of clearer definitions of ‘sexual harassment’ and ‘sexual harassment at work’, extending the Fair Work Commission’s anti-bullying mechanism to allow for orders to be made to stop sexual harassment at work, and allowing for sexual assault in connection with an employee’s job to be a valid cause for dismissal.

Importantly, the Act has also expanded the scope of the SDA to ensure that all workers are protected against sex discrimination and harassment at work, and that perpetrators of discrimination are held liable. As such, the SDA now includes all members of State and Federal Parliament, public servants, judges, as well as any unpaid workers such as interns and volunteers.

Though only adopting six of the fifty-five recommendations put forward by Kate Jenkins, the Sex Discrimination Commissioner who wrote the Respect@Work Report, the Act reflects Australia’s move toward equality and safety in the workplace.

In September 2021, the High Court decision of Fairfax Media Publications v Voller [2021] HCA 2 (‘Voller’), prompted an evaluation of the way Australia deals with defamatory comments posted on social media pages. In Voller, the court decided that social media users may be liable for defamatory comments posted on their page by other social media users, even if the page owner was unaware of the comments. Further, the court held that social media services are to be considered ‘publishers’ of any defamatory comments made by users, and therefore may be liable for defamatory content.

In response, the Federal Government is seeking to establish protections for social media users from potential defamation liability on the basis that people should not be responsible for defamatory comments posted by others. Though not yet passed, the Bill proposes that where the anonymous commenter cannot be identified, the social media service may be treated as a publisher for the purpose of potential defamation proceedings. However, services which establish a complaints scheme for defamatory conduct, or comply with end-user information disclosure orders to provide victims with the identity of the commenter, will have access to a defence from this liability.

For now, the Bill is in the hands of the recently formed House Select Committee on Social Media and Online Safety, who are tasked with evaluating the effectiveness of the proposed legislation and its methods. Regardless of the outcome of the inquiry, the Bill demonstrates that social media poses a new and unique challenge to the Australian legal system, and there is no doubt that it will continue to do so in many areas of the law.

Ed.1 2022

thebrief.muls.org | 7

Social Justice Corner

Coercive Control:

The Shadow Pandemic

I

Katie Walker

n recent years, there has been increasing discussion surrounding how well the NSW justice system identifies and responds to complex cases of domestic and family violence. While domestic violence has historically been defined by acts of physical harm measured in relation to tangible injuries, the definition is expanding to recognise non-physical forms of abuse.

Coercive control is often described as a pattern of behaviours within an intimate relationship that result in the micro-regulation of the lives of victims. These behaviours can include intimidation, manipulation, surveillance, and isolating victims from others close to them. The victim/survivor is often not aware of the abuse, and once control is achieved, it is difficult to break out of.

Several jurisdictions globally have already introduced specific criminal offences responding to coercive control, including England, Ireland, and Scotland.

Across Australia, most instances of non-physical violence are prosecuted through related offences, such as stalking and intimidation. In NSW, the legislative instruments that deal with coercive control are the Crimes (Domestic and Personal Violence) Act 2007 (‘CDPV Act’) and the Crimes Act 1900 (NSW). Under Section 11(1)(c) of the CDPV Act, existing criminal offences occurring in the context of a domestic relationship can constitute an offence if they involve coercive or controlling behaviour.

The COVID-19 pandemic has had a profound impact on personal relationships and family dynamics, particularly throughout the lockdown periods. A survey of 15,000 women in May 2020 demonstrated that one in twelve experienced physical violence from their partner in the first three months of the pandemic.

Lockdowns provided ideal conditions for perpetrators of domestic violence, with many victims forced to cohabit with their abusers.

In response to growing concern, NSW is currently debating whether coercive control should be considered a distinct criminal offence, rather than expanding preexisting legislation. In June 2021, the NSW Joint Select 8 | The Brief

Committee on Coercive Control released a discussion paper finding that the current state of the law is oriented towards isolated incidents of physical abuse rather than long-term coercive conduct. The inquiry highlighted the importance of correctly framing the elements of ‘specific intent’ and the ‘reasonable person’ test in the offence of stalking and intimidation, to make coercive control a more aggravating factor in sentencing.

While there is a clear need for the justice system to better accommodate for coercive control, there are several barriers to adequately implementing this reform.

Many fear that without being accompanied by structural changes, a specific offence would not effectively provide the protection victims require. Even with the current support frameworks in place, victims will often fail to report any coercive control in fear of not being believed. As such, change should be met with increased education and funding to ensure police and frontline workers are well-resourced to respond to what are often complex cases of abuse.

With or without a specific offence, misidentification of victims as predominant aggressors is already a growing concern, particularly for vulnerable and disadvantaged individuals, such as First Nations communities and minority groups. The implementation of a coercive control offence must balance the need to protect victims with the risk of over-criminalisation.

While the NSW government’s decision has been welcomed by many, there is no quick fix to a longstanding cultural issue. Despite the diverse views on this matter, there is an urgent need for a more widespread understanding of coercive control within the justice system’s response to family violence, regardless of a specific offence being introduced. Most importantly, the law should reflect a message to the community that no form of abuse should or will go unrecognised.

For more information, or if you or someone you know needs help, call:

1800 RESPECT: Lifeline:

1800 737 732 13 11 14

Ed.1 2022

Under the Radar

RUOK:

Mental Health Access in Correctional Facilities Flies Under the Radar Josh Herschderfer

O

ver the last twenty years, there has been an undeniably positive shift in the response to mental health issues in Australia. Every September 8, Instagram lights up with the reassuring yellow glow of the “RUOK Day” banner, to encourage us all to step up in the fight against depression. While there may be those who quietly grumble about some lost sense of Australian stoicism, those voices are quickly becoming lost in the resounding cries of support for all those who need it. However, for the over 12,000 individuals currently serving custodial sentences in NSW, stoicism in the face of mental health issues may be the only viable option. With over half of this group having been diagnosed and treated for a mental health disorder in the past, this is a significant group of society who cannot be said to be OK. Prisoners deserve access to mental health support, right? This is a controversial question that may be difficult to answer. Like all law reform proposals, this issue sits at the nexus of a number of socio-legal questions. The nature and goals of the justice system, inequality of opportunity and resources between races and genders, and the role that the community should be playing in preventing issues in society must all be considered. What is clear is that the system as currently constructed is failing those within it - for example, one correctional centre in NSW has reported an average wait time of 59 days to see a GP. In this discussion, it is also important to centre the prisoners in the conversation, as

Ed.1 2022

well as to try and consider them outside of the abstract.

As of 2018, Aboriginal and Torres Strait Islander accounted for 28% of the adult prison population, despite making up only 3% of the general population.

While the 59 day wait period experienced by prisoners may seem daunting, the lack of cross-culture trained staff means that the wait time for treatment can become indefinite for over a quarter of prisoners. The reality of these people demonstrates the intersectional nature of this complex issue.

These experiences clearly highlight the need for improvement of the law, but there are a number of differing opinions on the best course of action. One voice that is gaining prominence is that of the “Jailing is Failing” campaign, managed by the bi-partisan Justice Reform Initiative. Its purpose is to raise public awareness and engage with policy makers to reduce the prison population by 50% before 2030. They argue that is the surest way to ease the strain on an overworked system and ensure proper access to services such as mental health treatment. There have also been calls for the implementation of a national framework that funds community organisations dedicated to providing culturally appropriate care to Aboriginal and Torres Strait Islander prisoners. Proponents argue that this would allow for better access for those particularly vulnerable groups. Perhaps change isn’t coming because those who grumble about the state of the world are content that there remains a place where stoicism is the sole defence against mental health issues.

thebrief.muls.org | 9

Devil’s Advocate

Advocates’ Immunity:

Time for Change?

​​T

FOR Claire Cottrell-Dormer

he Australian legal system is a chain made up of multiple linked principles that were created to protect and uphold the rights of Australians. The chain comprises metal rings including tribunals, courts, procedures, laws and legal personnel. Each ring serves a specific purpose - to achieve justice. Hence, these chains must always be fastened and tightly connected to ensure justice will be achieved and maintained.

Within the metal ring of the legal system lies advocates’ immunity, which renders advocates immune from civil wrongdoings arising from professional negligence. Such misconducts occur during the conduct or management of in court proceedings and out of court acts which are linked to the court proceedings.

Advocates are immune from proceedings involving misrepresentation or defamation, as well as immunity from criminal proceedings in fraud or defamation as a result of statements that have been made by a party or their lawyers during court proceedings. Furthermore, this immunity covers statements that have been created within unverified pleadings.

Whilst this immunity may be anomalous as it provides advocates with special protection that is not given to other professionals, it is granted because it protects the operation and integrity of the legal system.

Kirby J, within Rajski v Powell, asserted that the immunity was granted to protect the interests of society instead of merely protecting advocates. Furthermore, such immunity ensures that justice can be administered by the judges unbiasedly and independently in court 10 | The Brief

without the influence of personal consequences.

Kirby J, in Williams & Glyn's Bank v Boland, described advocates as ‘actors’ within legal proceedings as they are called to perform a public function during court proceedings – they are part of an ensemble cast.

There is a common misconception that advocates are always immune from any action that arose from their conducts and statements made in and out of court.

However, the truth is that advocates can still be liable for litigation made in bad faith – they are still liable in tort. Statements and conduct in and out of court may be used in evidence to support such a claim.

Advocates’ immunity is justified as it recognises the roles advocates play within legal proceedings, placing them in the same position as other legal participants.

Immunity resulting from the witness analogy is subject to the same limitations granted to all beneficiaries of witness immunity. Witnesses are given immunity for the evidence presented in court, despite their negligence or wrongfulness. Hence, the immunity given for the evidence completely covers witness actions within judicial proceedings, thereby protecting the rights of all legal participants.

Abolishing advocates' immunity could potentially lead to conflicting duties. Advocates must uphold their duty to the court by being impartial, honest, and present the law accurately. But an advocate’s duty to the client can override their duty to the court, which can pose serious issues. However such argument does not highlight how unfair it is for advocates who experience Ed.1 2022

competing duties and how they would cooperate with courts to resolve such conflicts to appease the client. Harper J, in Grimwade v Victoria, contends that an advocate’s duty to the court only can negatively impact the client’s interests.

For example, the advocate's duty to draw all legal authorities to the court’s attention could potentially cause an advocate to present a precedent that could adversely affect their client’s case. Hence, the immunity should be maintained to alleviate the unfairness experienced by advocates.

Additionally, it safeguards the integrity and operation of the legal system.

So why would we cut the chains of something that tightly secures our legal system?

A

AGAINST Jackson Bradney

dvocates’ immunity is a common law doctrine that seeks to preserve fidelity to the court by allowing lawyers to pursue litigation without fear of negligence claims. In Australia, this firm rationale comes from D’Orta-Ekenaike v Victoria Legal Aid (‘D’Orta’), where the primary reasons for maintaining immunity were the finality of judgements, economic efficiency, and freedom for advocates to properly serve the court. For a lawyer to be covered by the immunity, they must have completed work which affects the conduct of a case outside of court or must be ‘intimately connected’ with the work in court.

According to the finality argument, abolishing advocates’ immunity may lead to ‘collateral attack’ where cases are re-tried as negligence claims.

However, when we look at other common law or analogous jurisdictions, a different picture emerges.

The United Kingdom abolished advocates’ immunity in Hall v Simons, New Zealand abolished it in Chamberlains v Lai; and the United States and Canada have never had it. Kirby J highlights in D’Orta that Ed.1 2022

there is no general immunity for advocates in mixed systems like the European Union, Singapore, India or Malaysia. The finality argument is persuasive until other jurisdictions are considered. If the principle of finality was such a strong buttress for upholding advocates’ immunity, then by removing its protection we would expect to see legal systems rife with extrajudicial reviews of cases and a deluge of negligence claims.

But we don’t see this. The Canadian legal system functions well without it, there is no inundation of negligence claims impeding the system; the United Kingdom has not devolved into an anarchy of negligence claims. Of course, these claims exist, but they are not so widespread as to undermine the common law. Advocates may still competently carry out their obligations to the court and their client even when they are not protected by any immunity.

Another problem arises with ‘out of court’ settlements. In Australia, the relation between ‘out of court’ settlements and advocates immunity is one that has not been concretely settled. In the High Court case of Kendirjian v Lepore (‘Kendirjian’), the application of the immunity to negligent settlement advice was restricted. Previously, if lawyers gave negligent advice in settlement claims they would be immune. This was observed in Goddard Elliott v Paul Fritsch (‘Fritsch’) where Mr Fritsch settled on a figure (on the advice of counsel) $900,000 less than the figure at trial. This leaves an odd fit of a principle. On the one hand, the rationale insists that finality of court decisions is important and therefore the immunity should remain. On the other hand, there is an opportunity for advocates to make settlements out of court without judicial oversight that later lead to negligence claims.

After the decision in Kendirjian, the protection from negligence claims arising out of settlements is weak to the point of being superfluous. The immunity in relation to negligent advice on settlements no longer renders advocates immune. However, it does prime the circumstances for lawyers to give negligent settlement advice, essentially sidestepping judicial oversight. It must be noted that negligence claims are attacks on the conduct of advocates, not the decisions of judges.

As Bell J solemnly noted in Fritsch, ‘I think the capacity is covered by the immunity, a conclusion to which I am driven by the authorities and find deeply troubling.’

If all this rings true, there seems to be very little utility in advocates’ immunity. So, all that remains to be asked is why haven’t we abolished it already?

thebrief.muls.org | 11

The Silver Chain Linking Women Together

L

Grace Drinan

awmakers play an integral role in ensuring our freedom as a society, but often their decisions are coloured by the way they see the world and their role in it: either blue, red or purple. Often the decisions they make are influenced by the misogyny that is entrenched in our global society, impacting how such lawmakers restrict or dispense freedoms for their people. The role misogyny plays in making legal decisions has been evident since before the pandemic began, with women’s bodies policed in terms of their reproductive rights but also confined to social norms about how they should act. The restriction placed on the freedom of women has intensified over the last two years, as the pandemic has forced us all to make sacrifices for the health of those around us.

As COVID-19 has spread over the past two years, we have all undoubtedly had our freedoms curtailed in order to protect the wider community. Whether you see the shiny silver chain restricting us all to our homes as necessary or not, no one could predict how tight it would wind itself. Whilst it’s plainly obvious that this chain did indeed impact everyone, I do think that maybe, subconsciously, this chain wrapped itself tighter around women and those who identify as women, perhaps because women already felt its presence in many ways before the pandemic even begun. Values such as men being the breadwinner in a household, women’s bodies being policed and the undeniable fact that domestic violence is rife in Australia, became entrenched even further during the pandemic and in the response to it. Whilst there is no doubt many of us have universal experiences of life during the pandemic, such as being unable to see loved ones and losing work, the pandemic proved to women that our experiences, our freedom and our opinions are not protected or given the same worth as those of our male counterparts.

12 | The Brief

Financial safety Women have always had different experiences in terms of financial freedom in comparison to men. This is largely due to the traditional expectation of men as breadwinners and women as homemakers. During the pandemic this has been no different, and it is clear that this attitude towards gender roles is still our default setting as a wider society, even as we approach the pandemic’s end and try to unlock the key to greater freedom for all. This is explicit in the numbers of those going back to work after so many lost their job, with women making up 39% of global employment figures and yet making up 54% of all job losses. This is largely because women still disproportionately shoulder the burden of unpaid domestic work. Furthermore, as the Grattan Institute suggests, whilst the federal government issued JobKeeper support, an integral response to the pandemic, the program excluded short term casuals, who were mostly women working in industries severely affected by the pandemic. This demonstrates that, whilst we all experienced a financial burden over the past two years, the law does not protect or prioritise the financial safety of women in the same way it does men. As a result, women may become more reliant on their partners to support them financially, resulting in yet another link being added to the chain.

Reproductive rights Furthermore, women’s reproductive rights have always been politicised and curtailed in the hands of men across the world and across time, who have sought to exert yet another level of control over their lives.

However, during the pandemic, this was taken to a new level in Melbourne. Recently, there was a ban on nonelective surgeries for three months, which included IVF; this meant that women who were seeking to have Ed.1 2022

a child would lose three opportunities to do so in what may be their only window of opportunity. Whilst this ban on IVF may also impact any partners of the women undergoing this treatment, the emotional burden is primarily placed on women and represents yet another restriction placed upon their ability to control their own body. It further demonstrated the lack of respect for women and experiences that are unique to them.

In saying this, the Victorian Government did reverse this policy upon listening to societal critiques of the ban. However, the fact that the ban was put in place at all demonstrates the presumption lawmakers had that society would have no problem with the freedoms of women being curtailed.

Physical safety of women Domestic violence has, for many years, cast a dark shadow across Australia. In the years 2012-14, one woman a week was killed at the hands of their partner, and almost two in five women have experienced violence since the age of 15. During the pandemic, a survey conducted by the AIC indicated that two thirds of women who experienced domestic violence since the start of the pandemic said it had escalated by July 2020. This same survey does extrapolate that most of the women who experienced such violence had experienced it prior to the pandemic; however, 53.1% of survey participants said the violence increased in frequency or severity after February 2020. A reflection of the desperation such women felt is evident with support services increasing at one domestic violence shelter by 189%. There was also a 75% increase in Google searches for domestic violence support since the start of the pandemic. This highlights how many women in Australia have been unable to live freely due to an abusive partner, and illuminates the fact that for such women, being told to live in that same house Ed.1 2022

for the better part of two years would restrict their freedom even further.

The escalation in the need for support services for those who have fled domestically abusive homes is not exclusive to Australia, with the World Health Organisation calling the domestic violence women experienced since 2020 the “shadow pandemic”. With the introduction of COVID-19 into our community, women already in vulnerable situations became physically more at risk when they had to stay in their homes, a place that wasn’t safe for them to begin with.

For many women, the last few years have left them feeling chained in. Being outside in the community has posed an unprecedented level of risk and yet, being in their home, the one place over the past two years we’ve all had to spend more time than ever, does not bring them any relief.

Therefore, whilst living with COVID-19 has undoubtedly affected each and every one of us, it has not affected us all in the same way. Just as there are discrepancies in the experiences of individuals in different countries, the discrepancies between the experiences of men and women, which pre-date the pandemic, have been emphasised throughout the past two years. COVID-19 did not create gender inequality.

It did not create the chain holding women back; it merely exacerbated it, with new links being added as the pandemic goes on. As society begins to open back up again and issues surrounding women’s freedom are arguably discussed more openly than ever, hopefully the patriarchal ideas that have shaped our personal and collective beliefs and attitudes will fade away, empowering women to become unchained. The sociopolitical climate in which we are living will likely help women break free from the chain that has been holding them back.

thebrief.muls.org | 13

Securing a Right to Die:

But What About Aboriginal and Torres Strait Islander Peoples’ Right to Live?

Maia Brauner

T

he quickest way to sour the mood at any form of social gathering is to talk about one of three things: religion, politics or money (and if you want to be really ambitious I suggest going for the full trifecta!). To that list, I would add euthanasia – involving a complex array of legal, ethical, medical, philosophical and theological questions, this highly contentious topic represents the perfect storm that is sure to ruin any dinner party. Having polarised Australians for decades, the debate ultimately can be distilled into a few key arguments. On the one hand, proponents of euthanasia frequently invoke the importance of personal autonomy, human dignity and the prevention of suffering. On the other hand, critics routinely emphasise the sanctity of life, the ‘slippery slope’ effect and the need to prevent vulnerable persons from undue influence and duress. In regards to the latter, arguments concerning the scope for abuse and exploitation have routinely focused on the elderly, and persons with disabilities or cognitive impairments such as dementia. As such, only limited attention has been drawn to the potential impacts of euthanasia on Aboriginal and Torres Strait Islander peoples, who are arguably one of Australia’s most vulnerable groups, under both our legal and healthcare systems.

14 | The Brief

What Is Voluntary Assisted Dying? What Is It Not? The term ‘euthanasia’ has Greek origins, deriving from the words ‘eu’ and ‘thanatos’, which roughly translate to ‘good death’. An umbrella term, it encompasses four distinct categories: • Passive involuntary euthanasia; • Active involuntary euthanasia; • Passive voluntary euthanasia; and • Active voluntary euthanasia.

Voluntary assisted dying (‘VAD’) falls within the scope of active voluntary euthanasia and involves consensual medical intervention in the form of a lethal substance administered to end a patient’s life. VAD can be distinguished from the right to request the withdrawal or withholding of life-sustaining medical treatment, such as not attempting resuscitation during cardiac arrest or terminating life support, which are forms of passive voluntary euthanasia, and are already guaranteed under Australian common law. Further, VAD is legally distinct from suicide, and thus healthcare professionals and other persons present or involved in the process are protected from liability.

Current Legal Framework VAD is already legal in several countries around the world, including Western nations such as Canada, New Ed.1 2022

Zealand, parts of the USA and Australia. In fact, as of 2022, NSW is the only Australian state (excluding the territories) in which VAD remains illegal, with the Voluntary Assisted Dying Bill 2017 (NSW) failing to pass the Upper House by one vote. This however may be about to change, with the passing of the Voluntary Assisted Dying Bill 2021 (NSW) (‘Bill’) in the Lower House in late November last year, 52 votes to 32.

Accordingly, given the seemingly inevitable enactment of the Bill, it is imperative to consider the views of Aboriginal and Torres Strait Islander peoples in response to the euthanasia debate, and to explore the potential implications of the legalisation of VAD in NSW for Indigenous communities.

A Right to Die: But What About a Right to Live?

As members of the human race we all, purportedly, have a right to life, and this right is enshrined within international instruments such as the Universal Declaration of Human Rights and the International Convention on Civil and Political Rights. Yet one only has to cast a cursory glance at the statistics of the lived experiences of Aboriginal and Torres Strait Islander peoples to appreciate that this supposedly universal and inalienable right is not equally valued and protected for all. For example, Indigenous peoples’ average life expectancy is 8–9 years shorter, rates of infant mortality are 2.1 times higher, suicide rates are double, and the likelihood of dying in custody is 6–10 times greater than for non-Indigenous Australians. Further, Aboriginal and Torres Strait Islander peoples face an overall burden of disease that is 2.3 times higher than the majority of Australians, with 67% of Indigenous peoples suffering from at least one chronic health condition, and rates of diabetes, circulatory diseases and kidney disease at 1.5–3 times higher than for non-Indigenous Australians.

As such, for many Aboriginal and Torres Strait Islander peoples, the championing of the right to die a more dignified death at a time where Indigenous peoples’ right to life is still not adequately protected, is nothing short of a slap in the face and is arguably reflective of a choice to privilege the rights of some over others.

Furthermore, there are fears amongst outspoken Indigenous advocates, such as Senator Patrick Dodson, that the legalisation of VAD will further impede the protection of Aboriginal and Torres Strait Islander Ed.1 2022

peoples’ right to life by creating an additional barrier to healthcare. Amongst many Indigenous communities there is already extensive distrust of ‘whitefella medicine’, with Western medical institutions such as hospitals often being equated to places of death. In particular, many Indigenous peoples’ harbor specific angst and suspicion towards Western forms of pain medication, fearing that they may hasten the dying process, and in this regard euthanasia is viewed in Aboriginal and Torres Strait Islander cultures as a practice of sorcery, and is in direct contravention of customary laws. As such, community leaders such as Senator Dodson have expressed concerns that the legalisation of VAD, which to many Indigenous peoples represents yet ‘another avenue to death’, may intensify existing fears and distrust of Western healthcare services amongst Indigenous peoples, who may consequently choose to delay or refuse to obtain necessary medical treatment, thereby exacerbating existing healthcare disparities. Thus, as Mackinolty argues, the legalisation of VAD ‘poses an unacceptable risk to the health’ of Aboriginal and Torres Strait Islander peoples, and thus threatens to further undermine their right to life.

Conclusion Whether VAD will be legalised in NSW remains to be seen. It is clear though from considering the views of Indigenous advocates like Senator Dodson that if the Bill is passed, additional funding and resources will need to be injected into education and training policies and greater service provision, to ensure that VAD does not become an additional barrier to healthcare access for Aboriginal and Torres Strait Islander peoples, and does not therefore create a further impediment to the protection of their right to life. More importantly, however, the Bill can be seen as symbolic of a deeper problem which extends far beyond the issue of euthanasia itself; it is reflective of the ongoing and repeated history in this country of the privileging of the rights of some, at the expense of the rights of Indigenous peoples, which forms the very bedrock upon which the Australian nation was built, and which will continue to undermine reconciliation attempts until properly addressed.

thebrief.muls.org | 15

The Aged Care Crisis:

Care, Dignity and Neglect Elinor Bickerstaff-Westbrook

Introduction The COVID-19 pandemic has brought into question how far we are willing to restrict our freedoms for the sake of public health. As we emerge from lockdown and COVID-19 cases skyrocket, our highly vaccinated population has started returning to normalcy. However, a crisis that has been brewing for years is exploding during the country’s rapid reopening – and that crisis is the aged care sector.

Glaring problems besetting the aged care sector include the highest COVID-19 death rate in our population, extreme staff shortages and staff exhaustion, lockdowns spanning weeks to months, inconsistent and unprepared implementation of COVID health mandates, and inadequate funding.

However, these issues reveal more significant and systemic problems in the sector – our society and government’s disregard for our elderly population, resulting in severe restrictions to their rights and freedoms. This begs – demands – the question: are Australians in aged care protected from the detrimental impacts of extreme restrictions to their mental and physical health, especially when these restrictions aim to protect their health?

16 | The Brief

The Overall COVID-19 Impact Our elderly community is one of the most vulnerable populations to COVID-19. Since December 2021, over 80% of deaths in Australia were of those over 70 years old, and those older than 90 made up 24% of deaths.

Despite this, 34% (some 80,000 aged care residents) have not received a booster shot.

While Australia re-opens, aged care facilities continue to experience cycles of lockdowns lasting weeks to months. Residents are confined to their rooms and cannot receive any visitors. Despite these restrictions, COVID-19 continues to spread through facilities, with at least 1,198 aged care facilities experiencing outbreaks in January 2022.

A vital issue pertains to aged care workers who bear the brunt of caring for our vulnerable elders. In the last month, around a quarter of aged care shifts (140,000 shifts a week) went unfilled due to workers contracting COVID-19 or being close contacts. Those aged care staff who can work frequently work double shifts, every day of the week. Staff shortages are so severe that workers’ unions have requested army support.

Meanwhile, aged care and personal care workers are paid abysmally, receiving an average wage of $22 an Ed.1 2022

hour, 10%-15% less than health care workers. These exhausting conditions and low wages have led to aged care workers fleeing the sector. A recent survey by The Australian Nursing and Midwifery Foundation details that 36% of aged care workers plan to leave their positions in the next one to five years. Without drastic intervention by the government to improve pay and working conditions, workers will continue to leave, increasing strain on remaining aged care staff and further impacting aged care residents’ quality of care.

Right to Health Under Article 12(1) of the International Covenant on Economic Social and Cultural Rights, which Australia is party to, everyone has ‘the right to the enjoyment of the highest attainable standard of physical and mental health’. This enjoyment is especially relevant to aged care residents, as the primary focus of aged care facilities is to provide care and maintain health.

Residents’ ability to exercise this right is dependent on these facilities. Through Australia’s Charter of Aged Care Rights, made under the Aged Care Act 1997, consumers also have a right to ‘safe and high-quality care and services’.

The COVID-19 pandemic has severely compromised this right to health. During facility lockdowns, medical and allied health practitioners are unable to visit aged care residents. Consequently, residents go without treatments, leaving them in pain and with weakening health, unable to live their lives normally and with dignity. The problem is compounded by skeleton crews of stretched-thin workers struggling to do essential tasks, leading to residents waiting hours for help going to the bathroom, getting dressed or receiving medicine, food, and water. With only the space of their rooms to obtain daily exercise, the health of many residents is quickly declining – which is precisely what restrictions and lockdowns were designed to avoid.

Freedom of Movement and Private Life The Charter of Aged Care Rights also gives consumers the right to ‘have control over and make choices about [their] care, and personal and social life’ even in cases of personal risk. This right is relevant to both the physical lockdowns on aged care residents and banning of visitors. While government-sanctioned lockdowns are legal, the complete lockdowns and ban of visitors by aged care facilities, independent of government mandates, could be a violation of this right.

Ed.1 2022

Australia is also party to the International Covenant on Civil and Political Rights, which in articles 12 and 13 outlines the human right to freedom of movement.

This right can be restricted by article 12(3) in certain circumstances, such as on the grounds of public health.

However, if such restrictions heavily compromise the health of those whose movement is restricted, is this still a valid exception? The Human Rights Commission flagged one of its major concerns during the pandemic as whether restrictions are ‘proportionate to the benefit it achieves in combatting COVID-19’. As aged care residents continue to suffer, the appropriateness of such restrictions must be addressed.

The Royal Commission and Possible Change In October 2018, a Royal Commission was established to investigate the quality and safety of aged care services, with its final report published in March 2021. The Royal Commission identifies multiple systemic problems in the aged care sector in the final report. Notably, the report offers a comprehensive plan for improving and fixing these issues, which essentially involves a complete overhaul of the current aged care system.

To date, the federal government has agreed to most of the Royal Commission’s recommendations, including introducing a new Aged Care Act and urgent legislative reform. Yet, so far, these legislative changes are still being developed, and the implementation of concrete recommendations has been lackluster. The federal government promised an additional $18 billion in funding to the aged care sector over the next five years, but this is a fraction of the Royal Commission’s recommendation and is yet to be allocated.

Conclusion While we have all foregone freedoms during the pandemic, those in aged care continue to suffer extreme lockdowns while the rest of Australia returns to normalcy. The horrendous death toll in aged care raises critical questions about the efficacy of harsh lockdowns in preserving our seniors’ lives, freedoms, and dignity, and whether the severity of these restrictions could have been avoided. Until serious government action is taken to fix this crisis, living and working conditions in aged care facilities will continue to deteriorate, and our elderly will continue to die.

thebrief.muls.org | 17

Unchaining the Block:

Crowdsourcing Jurors and Decentralising Arbitration to Resolve Disputes in the Online World Marie Boulougouris We’re approaching a new form of justice that uses the same technologies that Bitcoin and NFTs rely upon. Its aim? To revolutionise the legal system and hand more freedoms and power to the people as they seek to resolve disputes in the digital age – but what does this look like, and how will it shape the legal profession moving forward?

18 | The Brief

S

ince ancient Athenian times, the law courts have been a fundamental organ of democratic governance. In a quote often attributed to Aristotle, it is said that ‘Whoever controls the courts, controls the state’. But as our commercial, transactional, and social landscapes shift towards the digital realm, so too do our disputes and conflicts.

Underscoring these digital disputes are matters of practicality – when parties to a transaction reside in different jurisdictions, a number of additional issues come into play. This is because there are significant disparities across different nations about how online transactional disputes are regulated and attitudes towards them. Unbound by the control of the states, and by extension, the courts, the issues associated with settling cross-jurisdictional disputes exemplify the problematic nature of regulating commercial activities via the internet.

Facilitative and practical shortcomings exacerbate pre-existing deficiencies in national hard laws and international soft laws. Whilst law-making bodies rely upon antiquated and prevailing policies to regulate e-commerce transactions, more effort is required to confront such matters in a specific, binding, and well-informed manner. With these ‘centralised’ laws, the individual is only protected to the extent that the transaction fits within existing policies and precedents.

Hence, contemporary laws lack the legal, monetary, and institutional backing that traditional financial services employ.

Take for example, a purchaser in Australia orders an item or service online from a seller in Sweden. The seller however, has failed to send the goods, or performed an obligation as specified in the agreement.

The subsequent basis of a court exercising its jurisdiction can either rest in the location of the seller, buyer, or the cause of action. A foreign company operating mainly outside Australia can be engaging in conduct in Australia or carrying on business in Australia, and vice versa, even if it didn’t have a physical office in that particular overseas jurisdiction.

With regards to contractual disputes, questions arise as to where the contract was formed: was it where the consumer ‘clicked a button’ to complete the transaction? Or was it where the seller produced a receipt for the transaction upon its completion.

Our current legal system in Australia is thus unreliable as it fails to provide certainty when dealing with our freedoms to exact remedies when Ed.1 2022

engaging in e-commerce transactional failures on an international scale.

In attempting to ‘fit a square peg in a round hole’, efforts by governments to centralise the vast, formless, and pervasive machinations of cyberspace is inherently restrictive. As the internet becomes more and more decentralised in this manner, existing uncertainties both directly and indirectly imposes economic, social, and technical constraints upon e-commerce participants.

However, perhaps solutions to the issue of ‘decentralisation’ lies in the notion itself. Moving away from the ‘centralised’ laws of national governments, resolutions can be found in decentralising arbitration.

Decentralised arbitration is a form of online dispute resolution (a subset of alternative dispute resolution), wherein disputes are adjudicated in a simulated online court, and outcomes are determined by crowdsourced jurors. This aspect of decentralisation means that decision making is removed from a centralised entity (ie the government and the laws upheld within a particular nation or state). In theory, this hands more power to the people as they can resolve disputes based on the rules embedded in their own agreed upon contracts under private law.

Furthermore, decentralised arbitration operates as an extension of existing online dispute resolution (‘ODR’) systems and enables the settling of disputes in an accessible, self-manageable, and efficient manner.

It changes how people interact with each other, particularly in international matters, as jurisdictional boundaries are removed to facilitate the secure resolution of disputes. It also simplifies the remediation process in a cost and time effective manner.

Decentralised arbitration is enabled through blockchain technology - this is a digital system of recording information by embedding it into lines of code that can never be altered or changed. These lines of code are then made accessible across all computer networks which utilise the same blockchain system.

Remedies and associated costs are then dispersed using cryptocurrencies, such as Bitcoin and Ethereum.

Currently, several decentralised arbitration ‘courts’ exist, but the most prominent are Kleros Court and Aragon Court.

Generally, these decentralised courts operate in an asynchronous courtroom setting. This means that it doesn’t need to operate in real time, allowing for parties to engage in the resolution process at different times. Contracts must first 'opt-in' to designate the decentralised court as their arbiter in the event that a Ed.1 2022

dispute arises in the course of a contract's fulfillment.

The process of contracting these soft principles into a contracted agreement imparts a legal obligation between the parties in a binding manner, regardless of jurisdiction. When a dispute arises, the infringed party must notify the decentralised arbitration service to engage the ‘court’.

The users of the protocol, who may be knowledgeable about the specific topic pertaining to the case, stake their respective token for the chance to be selected as a juror on this dispute. Randomly selected jurors then analyse the evidence that the parties of the dispute provide for the case.

Upon a ruling being made regarding the dispute, the jurors whose votes aligned with the majority verdict are financially rewarded for their work and paid the arbitration fees by the losing party as part of their ‘costs’. Jurors who voted in the minority lose their stake. Regarding the parties in dispute, when the jurors give a verdict, remedies to the injured party will automatically be dispersed by way of smart contract if their claim is successful.

Looking towards the future of law and technology, decentralised arbitration is marked as a disruptive innovation. Hence, practitioners may fear that the capital efficiency of these disruptive innovation systems may substitute the labour of lawyers. However, ODR should be viewed as a technology which will assist practitioners in facilitating ‘more efficient and cost-effective methods of resolving matters through alternative dispute resolution (‘ADR’).

In consideration of Aristotle’s statement that he who controls the court, controls the state – perhaps it is best moving forward to view the future of law and the courts as a dispute resolution mechanism, rather than an instrument of control and domination. Though linguistically paradoxical in nature, it can be said that unchaining these blocks of control is possible through blockchain technologies.

Acting as a host for these decentralised online courts, blockchain technologies enable the enhancement of accessible and efficient forums, to solve disputes, away from the rules and laws of existing governments around the world. Finally, withstanding the disruptiveness of this new innovation requires legal practitioners evolve alongside new technologies, utilising their own human insight and judgement skills alongside digital automation to provide efficient, competent, and ethical legal services.

thebrief.muls.org | 19

Freedom:

Right or Privilege?

What a Vaccine Mandate Would Mean for Our Human Rights

I

Chelsea McVay

n the last twelve months, there has been widespread debate surrounding whether certain businesses and workplaces should be allowed to implement a COVID-19 vaccine mandate, with the result that only vaccinated staff are able to keep their jobs. This raises many questions regarding our freedoms, particularly about the lawfulness of such mandates.

Firstly, what does freedom mean? It is the state of being free through the enjoyment of various social, political, or economic rights and privileges. There is, however, a difference between a right and a privilege.

The latter connotes that only certain groups may enjoy these freedoms.

One of the main concerns about a vaccine mandate is that it could create a ‘two-tier society,’ engendering a divide between vaccinated and unvaccinated people.

Already, we saw a glimpse of this with the introduction of vaccine passports following New South Wales’ most 20 | The Brief

recent lockdown in 2021: freedoms that were once considered basic rights, such as frequenting cafes, bars, restaurants, shopping centres and the cinema, became privileges that only the vaccinated could enjoy.

The vaccine mandate for employees currently applies to workers in education, aged care, healthcare, disability services, airport, quarantine, and transport.

Each State and Territory in Australia has its own anti-discrimination law. In NSW, this is the AntiDiscrimination Act 1977 (NSW). However, under this Act, differential treatment that results from a restriction, such as the requirement to be vaccinated to work, is only considered discrimination if it is unjustifiable.

Thus, businesses and workplaces could argue that a mandate would be justified on the grounds of public health and safety.

Another point to consider is that some people may be unable to get vaccinated due to a medical exemption, such as a disability. The Disability Discrimination Act Ed.1 2022

1992 (Cth) (‘DDA’) renders it unlawful to discriminate on the grounds of disability, including in areas such as employment. As such, excluding all unvaccinated people from a workplace (including those with a medical exemption) due to their unvaccinated status, could constitute discrimination.

On the contrary, s 48 of the DDA states that it is not unlawful to discriminate against a person with a disability if that disability is an infectious disease. By extension, an employer could then potentially argue that this exemption may include the potential to acquire an infectious disease, and, as a result, exclude those with a medical exemption who remain unvaccinated.

Senior Research Fellow at the University of Oxford, Dr Alberto Guibilini, compares the vaccination pass to a driver’s licence. He suggests that minimising the risk of harm from one driver to another by passing a test is akin to the goals of the vaccination pass. Therefore, the same could be said of the vaccine mandate, the aim of which would be to protect the health and safety of others.

Furthermore, many people have turned to the slogan, ‘my body, my choice,’ which has been popularised by the reproductive rights movement. However, this has been criticised for undermining the reproductive rights of women and having the potential to spread to other crucial public health measures, such as wearing a mask in public settings.

Now let’s examine some instances in which attempted vaccine mandates have been scrutinised.

The first attempted mandate was imposed by BHP, which saw approximately 50 workers at the Mount Arthur coal mine stood down without pay. Under the Work Health and Safety Act 2011 (Cth), employees must be consulted about site access requirements. In this case, the Fair Work Commission held that lack of consultation meant that the vaccine mandate was not ‘a lawful or reasonable direction.’

In contrast, Qantas Group is awaiting a trial expected to be heard in March for their attempt to mandate vaccinations across its company for all employees. Pending the trial, some employees attempted to apply for an injunction that would prevent employees from being stood down because of their vaccination status. However, Justice Kylie Downes held that the employees failed to indicate the extent of ‘damage that would be suffered’ should the injunction be refused, and thus, it was not granted.

Whilst employees will be arguing that Qantas Group’s vaccination policy contravened the Fair Work Act 2009 (Cth) and privacy laws, Qantas will be defending its Ed.1 2022

policy, maintaining that they adequately consulted their employees before implementing the mandate.

A recent headline that is pertinent to this discussion of vaccine mandates is the deportation of World No. 1 tennis player, Novak Djokovic. Although Tennis Australia and the state of Victoria assure that Djokovic was not given any ‘special treatment,’ there was public outcry over the fact that he was still given an exemption even though Victoria had made it clear that the vaccine mandate to which all staff and fans would be subject at the Australian Open also applied to professional athletes.

Additionally, whilst Djokovic obtained a medical exemption to play in the Australian Open, he did not, in fact, obtain a valid medical exemption to enter the country. The two criteria for a medical exemption include (a) suffering from an acute medical condition or (b) having contracted COVID-19 within the previous six months. Djokovic, however, did not have an acute medical condition and he allegedly contracted COVID-19 well over six months before his application.

Djokovic was eventually deported from Australia to Dubai, mainly on the grounds of being a risk to Australian public health, but also because he was found to have lied on his visa application. It was the personal ministerial powers of Immigration Minister Alex Hawke that overturned Djokovic’s many appeals to the Federal Court of Australia. The government was also accused of double standards for sending Djokovic home for being an ‘icon for anti-vaccination groups,’ whilst there remain many members of parliament who object to vaccine mandates. Opposition to vaccine mandates may not necessarily equate to an antivaccination stance, however.

The situation surrounding Djokovic raises serious questions about the rule of law. Before his eventual deportation, many Victorians expressed outrage over the fact that Djokovic was allowed into the country without being vaccinated and was granted permission to play in the Australian Open. Meanwhile, Melbournians had suffered through multiple gruelling lockdowns and were not permitted to go to cafes or restaurants without a vaccination pass.

Our basic freedoms under the law, such as the right to bodily autonomy under the Human Tissue Act 1983 (NSW), should be equal and consistent, and this is exactly what is at the heart of the debate surrounding vaccine mandates. The question we must then ask ourselves is to what extent should these freedoms be available to all when there is a significant risk to public health and safety in the community? thebrief.muls.org | 21

The Processing of Australia’s Temporary Protection Visas:

An Industrious Scheme or Simply Insensitive?

Acshaya Vijayaratnam

22 | The Brief

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O

vertime, people can become statistics; a percentage, a number in a fact sheet, a third person in someone’s cautionary tale. It is so easy to develop an insensitivity towards the fact that every single person’s story is uniquely significant. For a refugee, the chance at a new lifestyle is chained to the laws of immigration, it is chained to an amass of words dictating their experiences, it is chained to an hourlong interview that they are given a week to prepare for. It all amounts to a piece of paper that determines their fate: a visa.

The visa is a gateway, a prize after a lifelong battle and ultimately a shelter that provides hope for many that they will indeed return to their homeland someday, as survivors.

It is safe to say that attaining a visa is extremely pivotal for a refugee, and so the process of determining whether a refugee requires a visa must be executed in the most civil form.

According to s 5J of the Migration Act 1958, a refugee is someone who has a nationality but is outside the country of his or her nationality, experiencing a ‘well-founded fear of persecution’, and is unable or unwilling to obtain protection measures from their country. Refugees without a nationality can also exist, but for the purpose of this article, I will be focusing on refugees with a nationality. Within the same act, a person is said to have a ‘well-founded fear of persecution’, if they fear being persecuted for reasons regarding ‘race, religion, nationality, membership of a particular social group or political opinion’.

Additionally, there must be a real chance that, if the person returned to their said country, they would be persecuted for one or more of the reasons mentioned.

It is this concept of ‘well-founded fear of persecution’ that creates the grounds upon which a refugee’s need for protection is determined. Therefore, the determination of whether a person is a refugee, and if so, requires protection is entirely within the powers of Australian authority; a task that requires heavy responsibility, resourcefulness, and consideration.

Recently, Australia’s main medium of providing refugees with protection from persecution is through the Subclass 785 Temporary Protection Visa (‘TPV’). TPV’s are issued to persons who apply for refugee status after making an unauthorised arrival in Australia. Refugees are required to reapply for this visa after three years in the case of conditions changing in their homeland. It should be noted that TPV’s are also the most common type of visa Ed.1 2022

issued to refugees when released from immigration detention facilities.

In Australia, visa applications are regulated by the Department of Foreign Affairs and Trade (‘DFAT’). More specifically, the Immigration Assessment Authority (‘IAA’) determines a refugee’s need for TPV’s using a fast-track process whilst the Administrative Appeals Tribunal (‘AAT’) deals with more complex appeal cases of rejected visa applications.

The IAA was recently introduced to manage a large amount of pending visa applications through speedy review strategies. It is the processes in which the IAA determine the need for such protection that is under question – specifically for its accuracy, reliability, and adequacy. The main mediums through which the IAA handles such refugee cases involve reliance on country reports, mid-ocean transfers and conducting fast-track interviews.

Considering country reports first – Country information reports are prepared by the DFAT for the determination of protection status purposes only.

They provide a ‘snapshot in time’ of the occurrences within a country. This supposed ‘best judgement and assessment’ provided by DFAT, is available to the IAA or any other decision-maker, to consider when making their determination of whether a refugee requires Australia’s protection. However, upon reviewing such DFAT reports, it is clear that there are discrepancies between the findings within these reports and the real situations in certain countries.

A key example of such an instance is the DFAT report for Sri Lanka – a country with a 26-year civil war history between the Sri Lanka Armed Forces and Liberation Tigers of Tamil Eelam. Upon reading the report, one of the main predicaments that was overlooked was the amount of torture faced by certain minority groups within the country. Particularly, there is little to no acknowledgement of the torment, imprisonment, and disappearances amongst those that are sent back to Sri Lanka after their visas have been rejected by Australia or various other countries. With up to 100,000 people vanishing since the late 1980s, Sri Lanka is said to have one of the world’s highest number of disappearances. Most victims are believed to have been abducted, brutalized, and killed by government security forces – and are predominantly of the Tamil minority descent within the country. There have also been numerous reports of mistreatment and torture inside Sri Lankan detention facilities, which Human Rights Watch has described as a ‘widespread problem’. Such claims of returned Sri Lankan asylum thebrief.muls.org | 23

seekers from Australia being tortured in prison have been reported to the Australian Federal Police Station in Colombo, who often declined to interview or take any action towards such allegations.

Regardless of such stories, the DFAT assess that ‘Sri Lankans face a low risk of torture overall’ as only ‘a few reports of torture are verified’. Furthermore, they justify this assessment by addressing that there is a ‘lack of investigative avenues’ to ‘determine the exact prevalence of torture’. However, it should be noted that the IAA relies on this same DFAT report to reject refugees seeking asylum as a result of torture and mistreatment in Sri Lanka. The irony remains in the fact that such authorities reject Sri Lankans seeking a TPV based on a lack of evidence of their torture whilst simultaneously acknowledging their inability to source evidence of torture themselves. Therefore, in terms of DFAT reports, the IAA must realise that the lack of evidence highlighting the prevalence of mistreatment does not equate to a lack of existence of such mistreatment.

Ultimately, the DFAT must take further investigative measures to form a more accurate portrayal of the situation within countries, or the reliance on DFAT reports must be diminished altogether and the testimonies of refugees must be the only source of information taken into consideration when providing TPVs. Whilst on the topic of refugee testimonials, fast-track interviews and enhanced screening processes are another popular method through which the IAA determine a refugee’s need for protection. The fast-track interview is a process that was introduced in 2014, which entails refugees wishing to enter Australia being interviewed by an IAA officer for an hour. However, in many instances, 10 minutes is all the IAA seems to need to reach a verdict. This was the case with Sri Lankan refugee Priya Nades from the Biloela family, whose application for a TPV was rejected via a fast-track interview. Priya was eight months pregnant and had just been discharged from the hospital after suffering a migraine when she was interviewed by the department over the phone.

It was found that inaccurate information had been provided by the interpreter during the interview, which ‘formed the foundation of the refusal’. It was apparent in the interview transcript that the interpreter had dropped out when Priya was explaining the torture and violent mistreatment that she had experienced in Sri Lanka – after which the interpreter was re-connected but refused to ‘take up the opportunity’ to conduct the interview again. Priya also communicated to her lawyers that she did not fully comprehend the interpreter and was unsure if he fully understood her either.

24 | The Brief

The IAA refused to find a person to be a refugee needing protection in about 87% of cases, using such fast-track interview processing. Upon viewing such a case as Priya’s, these numbers are concerning as it is clear that the fast-track interview process is arguably flawed and provides an inadequate form of review that prefers speed over justness.

Australian laws need to recognise that refugees are not an entity who all have the same intentions, experiences, and forms of hardships. The mass of refugees at detention centres and pending visa applications has resulted in Australia adopting a more industrial, clear the deck approach to visa processing, which has put our nation’s sensitivity towards the refugee situation in jeopardy. It also means refugees are losing their sense of individuality, enchained to a narrative against their will.

To improve this situation, Australian authorities need to reconsider the resources that they rely on when determining the need for the protection of refugees.

Resources such as the DFAT reports either need to be modified so that they are more accurate, reliable and adequate, or the IAA must be allowed to consider a wider range of resources that is not limited to country reports and information provided by the DFAT. In terms of the fast-track interview processes – the DFAT must realise that a lot hangs on this one interview with the department official. Therefore, such an interview must be conducted in prime conditions; meaning an adequate amount of notice is given to refugees prior to the interview being conducted, the competency of interpreters must be thoroughly assessed and the refugees themselves need to be given the opportunity to state their claims of protection fairly and thoroughly.

A mandatory 1-hour time allocation to interviews may also help, meaning the ‘fast-track’ side of interview processes needs to be put to rest.

Australia’s immigration laws could provide more opportunities for refugees to share their stories in a more personalised manner that gives them the power to voice their rights for freedom. Currently, the reliance on preconceived, under-researched resources has much more prevalence in determining the fate of refugees than they do themselves – and even the processes that do let refugees justify their needs, aren’t doing justice as they should. These largely defective processes and resources can be the very reason a refugee loses their chance for freedom, a new life, and must be amended immediately in order for refugees to reclaim their voices, individuality and right for protection.

Ed.1 2022

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thebrief.muls.org | 25

A Brief Conversation

With Dr David Williams (AM)

Tamika Mansell

‘I

f a lot of people do a little, it works out to be a lot’ Dr David Williams (AM) remarked with a smile. As for David himself however, he is one person who has done more than just a little. Less than 10 minutes into our Zoom conversation, the list of his experiences had swallowed my page of interview notes.

As David spoke to me about himself, a picture of a busy professional and personal life emerged, each achievement adding a new stroke of colour. David has owned his own business in Wollongong, worked as an academic in both NSW and Victoria, chaired the Illawarra Olympic Fundraising Committee, directed the Illawarra Business Chamber, instigated and acted as a mentor in the Illawarra Leadership Program and was awarded a Member Order of Australia (AM) for his contribution to the Illawarra area. Throughout our interview, he weaved in stories about the time he ran a marathon in Greece, the comic books he writes and illustrates with his grandson, and the beach photos he takes at sunrise every morning, creating a library of shots that he uses to gift unsuspecting strangers with young children; a unique way to commemorate the day of their child’s birth.

Above this, David has been involved with the Salvation Army for over 30 years. Since 2001 he has

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been Chairman of the Salvation Army Illawarra Red Shield Appeal and for the past eight years, the Chairman of the Salvation Army Advisory Board for the Illawarra.

Through this position the Board offers recommendations to the Salvation Army and advises them on major issues in the Illawarra region.

Today, David is also the CEO of MWLP - a notfor-profit ‘linking youth to business and community’.

MWLP sources work placement opportunities for Year 11 and 12 students from the Macarthur region through to Canterbury-Bankstown. In response to a shortage of work placements, David created a social enterprise business hub for students to participate in and complete their mandatory work placement requirements. The first hub led to the collection of over 10,000 nappies over a six-week period for the Salvation Army to distribute to those in need. The success of this first social enterprise has led to many others, including collecting money for farmers during the drought and more recently food for international students - the latter addressing an inherent struggle of COVID-19.

Another component of the global health pandemic were the challenges felt by businesses and organisations, including not-for-profits and charities.

David confirmed that many charities and not-forprofits had been hit hard financially but also that the Ed.1 2022

social distancing restrictions had in fact placed new limitations on these entities, preventing them from conducting their usual initiatives and events. He used the Red Shield Appeal as an example - the annual program which usually requires volunteers to go doorto-door to collect money was no longer permitted under the changing COVID-19 laws. To overcome these types of challenges not-for-profits and charities must be creative, David explained. Whether it is using technology to host events or flexibly changing longheld processes. In the case of the Red Shield Appeal, static donation sites were increased to capture more donations. ‘It’s really up to the organisation to come up with ideas - to shift their thinking’.

As someone who holds so much experience in working for not-for-profits and charities, I was interested to learn what David perceived to be the impact of the law in this area. ‘I suppose in terms of not-for-profit, they have to work within the law’ David commented, elaborating that like all businesses, the law was something that they are aware of. We discussed the amendments made to the financial reporting thresholds of not-for-profits and charities. These changes were implemented to save charities both money and time but in practice, David is unsure that they will make much difference as he hopes that most charities and Ed.1 2022

non-for-profits already had systems in place to ensure no problems arose from financial reviews. I also asked David about the proposed change to Governance Standard 3 in the ACNC Regulations 2013. Although subject to a disallowance motion in late 2021, this amendment was at the centre of significant media attention as it would have allowed the Australian Charities and Not-for-profits Commission (‘ACNC’) to investigate entities involved in lower summary level offences and possibly de-register them. However, David believed that the ‘majority of not-for-profit and charities would have accepted the amendment’ returning to the idea that it is the responsibility of each not-for-profit organisation and charity, by their definition, to always act within the law regardless of the size of an offence.

In these ever-changing times I asked David what he thought the future of not-for-profit organisations and charities looked like. ‘This not-for-profit area is a growing area’ he remarked and continued that many changes implemented in response to COVID-19, like increased use of technology and the ability to work from home, were here to stay. Personally, David is working to provide not-for-profit MWLP with a more sustainable future. ‘It’s coming up with new ideas that don't rely on the current funding to generate income for ourselves…

The real future of not-for-profits is to be able to become far more sustainable.’

As our interview closed, I asked David what advice he had for those wanting to get involved or begin a career with charities and not-for-profits. ‘Just do it’ David laughed, but he continued to explain that identifying a particular interest or skill you have is a great starting point. ‘And then, try and connect with people in that area because people are looking for people. People are looking for people to help.’ Being sector specific is a great way to identify where you can really make a difference, he concluded.

Finally, I asked David to summarise working for charities and not-for-profits in three words and waited patiently, reflecting upon the lessons he had shared.

Working with charities and not for profits taught David that when you hit a roadblock or when something seems impossible, it can in fact be done through connections and asking for assistance, advice, and ideas from others. Interrupting my thoughts, and much to my surprise, David requested four words. Of course, I obliged. So, how did David encapsulate his experience?

With four simple yet empowering words – ‘There’s always a way.’ thebrief.muls.org | 27

Admissions of a Law Student

A Zoom

Reflection Terence Wong

T

wo years of the COVID-19 pandemic has provided us with many opportunities to complain about the dreaded Zoom classes. Whether we like it or not, the initial emergency public health response has fuelled a permanent paradigm shift in tertiary education.

During the past two years of sudden and unanticipated stay-at-home orders, the Zoom format has lingered and evolved. The abrupt onset of the pandemic spawned the first series of awkward online classes in March 2020, which should still be fresh in the minds of those who survived. The moment has arrived for us to review the opportunities and issues of the currently quasi-permanent Zoom format. I hope my first-hand experience grants me a veneer of ostensible authority to comment on the matter.

The Initial Shock A complete overhaul of any university assessment is a daunting task. The administrative staff undoubtedly deserve some credit. Converting classes that are traditionally conducted on-campus to an online format

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within weeks would be far more difficult than it may appear. This list of questions must have been on the meeting agenda: Can the content be delivered virtually?

How can we ensure people will show up? Will tutors have adequate equipment? Can participation be properly assessed? This list is perhaps only the tip of the iceberg.

Apart from administrative hurdles within the faculty, there are also very real technical challenges arising from online classes. With our 20/20 and 2021 hindsight, we are now aware that online classes would inevitably entail crackling audio input, intermittent loud echoes, lagging video feed, sudden disconnection, silent breakout rooms, and the dreaded ‘forgot to mute’ gaffe. We should acknowledge some of these issues are inherent to online classes and may not have immediate solutions.

It may take some time for both technology and human behaviours to catch up to our desire for more coherent virtual interactions.

The impact of online classes is not limited to the way we consume the law school syllabus. Outside the now virtual classroom, the once vibrant campus life

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health crisis, while many other industries such as tourism and performing arts are forced to shut down.

Moreover, virtual classes can now be conducted practically anywhere with a stable internet connection.

I see enormous potential to revive the 1980s ‘globalisation’ buzz. With travel restrictions gradually easing globally, we should not be limited to our suburban dwellings. Whether it be a Bryon Bay hostel, grandpa’s rural Queensland farmhouse, or a superyacht in Monaco, they are now equally appropriate venues for our virtual law school classroom. Never has there been such a liberating opportunity to access quality education in our preferred part of the world. Akin to Henry Ford’s achievement in mobilising the people, Zoom has also eliminated our diurnal commute. My ‘commute time’ is now reduced to approximately three seconds, i.e., the time it takes to roll my body to the bedside table. With more time on our hands and the flexibility to attend classes anywhere, the accessibility of tertiary education has reached a new peak.

is now on life support. Although some may disagree, many students consider campus life an integral part of university life and arguably a separate institution of ‘The University of Life’. Whether you are there to find soulmates or to build a diverse portfolio of extracurricular activities, the spectrum of on-campus activities simply cannot be fully substituted by its pixelated counterpart. It is with much regret that Ubar benders, club social events, and the odd thrill to sit in random lectures are no longer socially acceptable excuses to make a trip to Macquarie Park.

The Resulting Good Before my inner pessimist proceeds to create a database of virtual class memes and gaffes for a fun game of Zoom Bingo, it would be a breach of natural justice to conclude without allowing my inner optimist to voice. In a parallel universe without the enabling technologies, universities would likely cease all teaching in response to the pandemic back in March 2020.

Therefore, on a positive note, Zoom has enabled us to continue our studies despite the concurrent global

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Moving Forward It is becoming apparent that some changes to our education are to remain post-pandemic. The next important task to ask is how we can better position ourselves for the future. While Zoom has liberated us from physical attendance, virtual classes still need some calibration. The issues with virtual classes are multi-faceted. Some involve a technical component, while others depend on ourselves, our tutors, and our classmates. Therefore, coming up with a universal solution applicable to any context is a challenging endeavour.

In my opinion, the optimal strategy to approach Zoom classes involves being adaptive. For example, it is foreseeable that we will inevitably run into a silent breakout discussion room. These unexpected changes usually catch us by surprise and require us to alter our behaviours. Therefore, we ought to plan in preparation for them as much as we would for the course syllabus.

In the case of the silent breakout room, we may need to prepare to crack a few jokes or possibly improvise a dramatic monologue to convince our classmates to unmute and turn their cameras on.

thebrief.muls.org | 29

Law & Disorder

The

Amusing Judge Tracey Adams

H

umour is alive and well within the judicature and can often be revealed in the form of the amusing judge. With a humour that is often very dry, irreverent, and ironic, their Honours have formed a loyal following on social media.

Their subtle humour can be found as ‘puns’ discovered in catchwords of headnotes that are intended primarily for the legal fraternity or performed as witty repartee within the intimate theatre of the Court.

It is within the seclusion of the judge’s chambers where they quietly retire and summarise a judgement, revealing their playfulness and jocosity via catchwords within the case headnotes. Justice Hamill is well known for his amusing collection of catchwords, which lawyers applaud as entertainment within their premium box seats. In a recent forensic matter in Attorney General for New South Waves v Mailes (Preliminary), his Honour was open in his views on the size of exhibits put before him with a headnote that read: 'excessive volumes of material – screaming into the void'. In Woolworths Ltd v Howarth Justice Hamill delivered to his audience yet again, when deciding compensation for a shelf packer, with a headnote that read: ‘Civil law – work related injury – crumpets’.

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His Honour's catchwords also have a following on social media, including Twitter.

Michaela Whitbourn, legal affairs reporter, is a self-declared 'Connoisseur of fine puns'. Her latest published catchwords, entertaining the followers of Justice Hamill, reads: 'prize for providing written submission on recklessness that made sense – prize not claimed'.

It is almost a sin not to laugh in the Court when a judge displays their wit, even if it is not particularly funny. Former Justice Kirby describes one of the deadly courtroom sins as ‘failing to laugh appropriately at judicial humour, injected deftly to relieve the tension or tedium of the court’. In an hilarious exchange in Joslyn v Berryman, members of the bench engaged in a debate over correct terminology. Justice Hayne considered whether 'drunk', 'hammered' or 'well and truly hammered' should be used.

Justice Kirby retorted with, 'I do not know any of these expressions', to which Justice McHugh countered sharply with, 'No, no.

Justice Hayne must live a very different life to the sort of life we lead'.

It appears that the amusing judge has a captivated audience within the judiciary, and humour does have a stage within the sound discretion of the Court.

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A Brief Review

The

Kingmaker (2019)

Bradley Cagauan

I

melda Marcos, the former First Lady of the Philippines, kisses the glass coffin of her husband, Ferdinand Marcos. Since 1989, she has fought to bury him in Manila’s revered Cemetery of Heroes, a burial banned by subsequent administrations.

This scene opens Lauren Greenfield’s 2019 documentary The Kingmaker (available on Stan), an examination into Ferdinand Marcos’ presidency and legacy in the Philippines. In first-hand interviews, Imelda tells the stories of a man who represented ‘sovereignty, freedom, justice, [and] human rights’.

Throughout the film, Greenfield challenges Imelda’s statements with archival footage and interviews to paint a bleaker image of Ferdinand’s 21-year administration as an iron-fisted dictatorship tainted in blood. In 1972, responding to a threat of communist insurrection, President Marcos placed the entire archipelago under martial law, ushering in a 14year period of authoritarian rule.

Greenfield illustrates the harrowing, firsthand effects of authoritarian rule. We hear the accounts of women molested under the guise of interrogation, the families’ of the extrajudicially executed, teachers tortured by their own students who worked undercover as government spies. With due process Ed.1 2022

suspended, thousands were killed, tortured, went missing, and incarcerated. A system of fairness was replaced with a system of fear.

Despite this, Greenfield exposes the resurgence of Marcos-type strongmen who promise quick and dirty solutions to complex crises, showing us the results of the newly inaugurated administration under President Rodrigo Duterte: corpses strewn in Manila’s slums and children orphaned in the ‘national cleansing’ of the Philippine’s drug epidemic.

With 30,000 extrajudicially killed in the administration’s first four months, it reeks of Marcos’ spectre.

The Kingmaker documents the history of a legal system that leaders are too eager to abuse and circumvent to offer band-aid solutions to complicated crises.

The consequences to the individual are unconscionable. As law students, we must recognise these authoritarian patterns early, and challenge the state at every turn before it’s too late.

Closing the film, President Duterte authorises a hero’s burial for Imelda’s husband. ‘There are so many things in the past we should forget,’ she says. She smirks into the camera one last time. The past? ‘It’s no longer there’. thebrief.muls.org | 31

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