The Brief Edition 2 2023

Semester 2, 2023

CAREERS

Panel with Montgomery Advisory

Date TBC

College of Law: Virtual Panel

12 October

College of Law: The Options in Law Fair

18 October

COMPETITIONS

Senior Client Interview

Weeks 2, 4, 6, 8, 10, 12 (GF)

Foundations of Law Moot

Weeks 2, 4, 6, 9 (QF), 11 (SF), 13 (QF)

Novice Moot

Weeks 3, 5, 7, 8, 10(SF), 12 (QF)

Witness Examination

Weeks 3, 5, 7, 9, 11, 13 (GF)

Contracts Moot

Weeks 4, 6, 8 (GF)

Diversity and Pride Moot

Weeks 5, 7, 8

SULS Client Interview

First Saturday of Mid-Sem Break

UTS Legal Tech Moot

Weeks 4, 5, 12 (GF)

ADR Championship

Saturday, Week 8

Margaret Cunnen Witness Examination

Wednesday, Week 9

MULS Environmental Intensive

Saturday, Week 10 and 11

EVENTS

Start of Semester (SOS) II Drinks

10 August

Intervarsity Sports Gala Day

Date TBC

Social Sport

Date TBC

Law Ball Date TBC

EDUCATION

O-Week

24-30 July

Kickstarter Stall

17 July

Uni Open Day

12 August

College of Law PLT Session

Date TBC

Therapy Dogs and Yoga for Mental Health Week

9-13 October (TBC)

JURIS DOCTOR & POSTGRADUATE

KPMG x MULS Juris Doctor and Postgraduate Careers Panel

Date TBC

SOCIAL JUSTICE

Voice to Parliament Referendum

Date TBC

Contents Contents

Features

Revolutionary Reform – A History of Law Reform through Codification Leo Chang

Striking a Balance: A Review of Religious Educational Institutions and AntiDiscrimination Laws Bruce Zhang

From Playtime to Pay Cheque: Safeguarding Child Content Creators from Exploitation

Daniel Bowtell

[What’s New in the Law?]

Proposed Constitutional Amendment: Indigenous Voice to Parliament

Amelia McCann

[Social Justice Corner] Down the Rabbit Hole: The Dangers of Artificial Intelligence and Deepfake Technology

Sarah Dawson

[Devil’s Advocate] Should international law be the main instrument for regulating nuclear technology and weapons?

Simeon

[A Brief Converation] With Dr Holly Doel-Mackaway: Involving Aboriginal Children in Law and Policy-Making

Bradley Cagauan

[Admissions of a Law Student] Is Procrastination a Bad Thing?

Zoe Gleeson

Editor's Welcome

Dear Readers

Welcome back to Edition 2 of The Brief for 2023!

This edition, ‘All of Our Future’ is an exploration of how law and policy affect young people, future generations and their interests. Do our institutions protect these interests? Are they put on the wayside? Maybe their interests are not even contemplated at all? Cost of living pressures, the right to be listened to, the future of our environment, these are just some of the concerns that will impact us and the next generation.

To begin this exploration, we look at the adoption of restorative justice disciplinary measures in schools ( p.12 ). We examine the impact of indexation on HECS/HELP loans ( p.16 ), the Willow Project in the United States and the importance of youth-led activism ( p.14 ), the balancing of religious freedoms with LGBTQIA+ rights in religious schools, ( p.20 ), the difficulty of implementing measures and ensuring child content creators are safe from exploitation ( p.22 ) and discuss the history of legal codification as a tool for reform ( p.18 ).

In addition to our features, this edition includes a concerning examination of deepfake technology used to create sexual abuse material ( p.8 ) and a debate on who should regulate nuclear technolgoy and weaponry: international law or domestic law? ( p.10 ) We also ask the burning question, is procrastination a bad thing? ( p.30 )

With the referendum expected to be held at the end of the year, we explain how referendums work, what the proposed amendment is and the major arguments for and against the Indigenous Voice to Parliament (p.6).

We are also pleased to feature an interview with Dr Holly Doel-Mackaway, senior lecturer, lawyer and social worker at Macquarie Law School, who specialises in the field of child rights with a particular interest in advocacy for Indigenous children and young people. In a six-page feature, we discuss the status of child rights in Australia, the disproportionate impact the law has on Indigenous children and a form of policy-making that empowers Indigenous children to voice their concerns (p.24). We thank Dr Doel-Mackaway for her valuable insight and expertise into children’s law and human rights.

I thank the subcommittee of writers and sub-editors who have contributed to ‘All of Our Future.’ It goes without saying that without your hard work, The Brief would not have been able to get off the ground. I would like to thank Mikaela and Brendan for their assistance and support through the development of Edition 2 in addition to my Deputy Editor, Simeon Levine, for his assistance with editorial review, and our designer, Nathan, for putting together the graphics. Finally, we extend our support to all of our readers for their support; we hope you enjoy the articles and are challenged to consider how the law can be better shaped for our children and those who will succeed them.

Bradley Cagauan Editor-In-Chief

President's Welcome

Welcome esteemed readers to The Brief’s highly anticipated second edition, where we embark on an intellectual journey through the intricate realm of law and policy. In this edition, we plunge into the depths of critical issues and their profound implications that shape our collective destiny.

Through insightful articles, thought-provoking discussions, and expert interviews, we aim to unravel the complexities of proposed constitutional amendments for the Indigenous Voice to Parliament, explore the risks and possibilities of artificial intelligence, showcase groundbreaking initiatives like the Willow Project, delve into student debt concerns, and engage in a compelling interview with Dr Holly Doel-Mackaway on her remarkable work in Indigenous communities. Hence, this edition cultivates a deep understanding of how the decisions made in law and policy reverberate through time, leaving an indelible mark on the world we are poised to inherit.

I extend my heartfelt appreciation to the brilliant minds comprising our dedicated team of editors, writers, and contributors. Special recognition goes to the exceptional Publications Director, Mikaela, and the accomplished Edition-In-Chief, Brad, whose vision and meticulous efforts have breathed life into every publication page.

To all MULS members, I implore you to actively engage with this edition of The Brief, to lend your voice, share your insights, and contribute to the ongoing dialogue surrounding these pressing discussions. Your participation is integral to fostering an intellectual environment where ideas flourish and shape the contours of our future.

Brendan Piech President, Macquarie University Law Society

muls.org

Edition 2, July 2023 (Volume 29)

EDITOR-IN-CHIEF Bradley Cagauan

DEPUTY EDITOR Simeon Levine

DIRECTOR OF PUBLICATIONS Mikaela Mariano

DESIGNER Nathan Li

WRITERS (IN ALPHABETICAL ORDER)

Amelia McCann, Bradley Cagauan, Bruce Zhang, Daniel Bowtell, Grace Drinan, Leo Chang, Rachel Justic, Sarah Dawson, Simeon Levine, Sujal Chadha and Zoe Gleeson

SUB-EDITORS

Anna Queja, Caitlin Greaves, Claire Cottrell-Dormer, Elinor BickerstaffWestbrook, Emma Horgan, Isabelle Jenkins, Jasmine Saluja, Joshua Brereton and Rachel Justic

EDITORIAL REVIEW

Bradley Cagauan, Brendan Piech, Mikaela Mariano and Simeon Levine

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 muls.org/publications-the-brief

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

Holly Doel-Mackaway

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.

Proposed Constitutional Amendment: Indigenous Voice to Parliament

The proposed Indigenous Voice to Parliament is based on the 440-word Uluru Statement from the Heart, which was constructed at the First Nations National Constitutional Convention in 2017. It has been a key point of discussion in Australian constitutional law for years and a topical political issue after Prime Minister Anthony Albanese pledged his support for the Uluru Statement during the 2022 election.

The Uluru Statement has three key objectives: Voice to Parliament, Treaty, and Truth-telling. If the referendum on the Voice is successful, it would insert section 129 — ‘Aboriginal and Torres Strait Islander Voice’ — into the Constitution. The amendment would establish an advisory body representing First Nations people from across Australia and would allow them to provide their input into federal government decisions, policies and laws that affect them. Should the

Referendum details – latest developments:

referendum succeed, laws relating to the composition, functions, powers and procedures of the Voice will be determined by Parliament.

As a constitutional amendment, the Voice to Parliament can only be passed through a referendum. Under section 128 of the Constitution, a referendum requires a double majority; that is, a majority of the population must vote ‘yes’ and a majority of voters in a majority of the states must also vote ‘yes’ for a referendum to succeed.

The 2023 referendum will be Australia’s first referendum since 1999 when the question of whether to ‘alter the Constitution to establish the Commonwealth of Australia as a republic with the Queen and GovernorGeneral being replaced by a President’ was ultimately decided in the negative: 54.87% of Australians voted ‘No’ on becoming a republic while 45.13% voted ‘Yes’.

On 19 June 2023, the bill to set up the referendum passed the Senate. In the coming months, Australians around the country will receive official referendum pamphlets, including persuasive essays from committees of politicians who voted yes or no in Parliament.

The referendum must occur between two to six months from now, at which time all Australians of eligible voting age and capacity will bear responsibility for deciding whether to enshrine this Indigenous Voice to Parliament in the Australian Constitution

Amelia McCann

The ‘YES’ argument:

One of the core arguments for the Indigenous Voice to Parliament is that it provides a permanent means for Indigenous Australians to provide input into parliamentary decisions. The Referendum Council has specifically noted that the role of the First Nations advisory body should involve legislated functions including ‘monitoring the use of the heads of power in section 51 (xxvi) and section 122’ of the Australian Constitution. According to Dr Shireen Morris, section 51(xxvi), also known as the ‘race power’, allows Parliament to make both ‘positive and adverse laws’ about the rights of Indigenous peoples. In the case of Kartinyeri v The Commonwealth, the High Court majority held that Parliament can validly repeal sections of a prior heritage protection statute under section 51(xxvi). This is because the Court found that the ‘plenary power conferred under section 51(xxvi) included the power to repeal laws enacted.’ Kartinyeri demonstrates how the race power can be used in ways that undermine the interests of Aboriginal and Torres Strait Islander communities. A constitutionally enshrined Indigenous Voice would require Parliament to consider the Voice’s advice relating to any exercises of the ‘race power’.

Section 122 contains Parliament’s plenary power to legislate for Commonwealth Territories. Given the high Indigenous population of the Northern Territory, this ‘territories power’ has had particular racial significance exemplified by the Northern Territory Emergency Response, better known as The Intervention. This policy was criticised for its paternalistic and discriminatory intervention into the lives and spending decisions of Indigenous persons, and was, in the words of Justice Kirby in Wurridjal v Commonwealth, ‘likely reliant on section 122 of the Constitution.’ It has been argued that through the legislative enforcement of a constitutional First Nations Voice, Parliament can be advised on their use of the ‘territories power’ and thus, Indigenous communities will have more input over policies affecting them

Another key argument for the Voice is that it establishes positive guiding principles for the recognition of First Nations perspectives in Parliament. These principles (as outlined by working group member Tony McAvoy) include an emphasis on ‘representative, gender-based’ perspectives, ‘community-led, inclusive, respectful’ communication, and ‘accountable, transparent’ collaboration between ATSI advisors and traditional parliamentary entities.

The ‘NO’ argument:

One major argument raised against the Indigenous Voice to Parliament is that it is potentially unnecessary, with Indigenous people already having ‘a voice to parliament’ in their individual ability to vote for local MPs and senators. It is also argued that a singular ‘Indigenous Voice to Parliament’ runs the risk of treating Indigenous Australians as a monolith, rather than a community with a wide range of differing perspectives and beliefs.

That the Uluru Statement originated from the Referendum Council, an organisation whose purpose was to progress ‘towards a successful referendum to recognise Aboriginal and Torres Strait Islander peoples in the Constitution’, is reflective of this. The Uluru Statement was always intended to set up a referendum, and not all Indigenous communities necessarily want this. A prominent example is the First Nations-led ‘No’ campaigns seen at the Aboriginal Tent Embassy in Canberra, with banners bearing the words ‘Vote No To Referendum – We Deserve More Than A Voice.’ Framing the ‘Yes’ and ‘No’ sides as being fundamentally proand anti-Indigenous advancement respectively is not only simplistic to the point of inaccuracy but unhelpful.

Another related criticism is that, by needing to fulfil the previously discussed requirements regarding constitutional principles, the Voice may constitute action that is merely symbolic. The long-standing concern is that whilst having a voice provides an opportunity to speak and be listened to, it may not provide any practical changes. Some argue that it would be a mistake to emphasise a referendum and constitutional amendment over more direct ways of addressing issues faced by Indigenous communities.

Concerns about the current referendum proposal and the possibility of it undermining constitutional democratic principles are also key arguments against the proposed Voice. Key concerns raised by the Rule of Law Education Centre about the current proposed constitutional amendment have concerned the potentially ‘unlimited scope of the subject matter with which it can involve itself’, the ‘fact that it will be empowered to make representations that reach into the executive branch of government and not just the parliament’, and ‘the fact that the High Court, and not parliament, will have the final say on whether any limits can be imposed on the scope of its subject matter, and its reach into the executive.’ These are concerns about the proposed how the Voice in its current form may potentially compromise the principle of parliamentary sovereignty and thus potentially undermine core values of Australia’s democratic constitutional system.

Down the Rabbit Hole: The Dangers of Artificial Intelligence and Deepfake Technology

CONTENT WARNING:

Article includes reference to sexual abuse material

Sarah Dawson

Artificial intelligence (‘AI’) has been hailed by many as yet another advancement made by the human race. It can simplify and nullify a number of ordinary tasks; however, unfortunately, some people are exploiting it for more sinister purposes.

Noelle Martin was 18 when she discovered that online predators had taken images from her social media and morphed them with pornographic videos and images. Of all the deepfake material in cyberspace, 96% is pornographic and non-consensual. Although this issue has the capacity to affect men and women, 99% of deepfake pornography portrays women. According to Carl Öhman in a 2020 article published in Ethics and Information Technology, deepfake pornography is ‘predominantly produced by and for a male audience’. This form of abuse operates to harass, exploit and humiliate the victims by stripping them of their autonomy.

Deepfake pornography refers to a highly realistic video or image that has been digitally altered using Deep Learning algorithms so that an individual’s face is morphed onto someone else’s body. This form of AI is so advanced that the victim’s facial expressions are manipulated to replicate the actor’s expressions in the original content. AI-generated images have existed for the last decade; however, within the last three years, they have become unnervingly sophisticated.

This form of online abuse material first emerged in 2017, when a Reddit user called ‘/u/deepfakes’ published fake intimate videos. This user morphed the faces of popular female celebrities onto adult actors' bodies. Eight weeks after the account was created, it had accumulated 90,000 subscribers.

It is impossible to completely prevent yourself from being a victim of this form of online abuse material. Unlike more traditional forms of image-based sexual abuse, deepfakes do not require the victim to have ever taken an intimate image of themselves. Rather, all that is needed to create a deepfake is an image of a victim’s face. As perpetrators face little practical limitations in relation to producing and publishing a deepfake, victims may never know that they are portrayed in this type of content.

A culture of victim-blaming continues to exist in reference to online abuse material. Victims of traditional image-based sexual abuse are generally deemed partially responsible because of attitudes like: ‘they should not have taken the intimate image at all’. Now, victims of deepfake pornography are told that they simply need to be careful about what images they upload on social media. Given contemporary society’s relationship with the internet, this criticism is unsustainable.

One of the major legal challenges posed by deepfake online abuse material is that jurisdictional boundaries limit the prosecution of these offences. Unless there is a territorial nexus between Australia and another nation-state, Australian law cannot be enforced against an overseas perpetrator. On a domestic level, there is a disparity between the legislation of the states and territories in relation to the issue of revenge porn. Nonetheless, legal remedies will be unable to completely remedy the harm caused by the image, as deepfake material is disseminated and consumed by internetusers across the globe.

We have now entered a scary new reality, one from which we cannot easily escape from.

FOR Simeon Levine

TIs international law a meaningless concept?

Many critics would argue that the inability of international law to enforce obligations upon nations due to the restraints of state sovereignty renders the practice trivial. However, when reflecting upon the regulation of nuclear energy and the ever-increasing reality of nuclear armament, a world without international law is fraught with trepidation.

Under international law, nuclear power was initially regulated in 1968 by the Treaty on the Non-Proliferation of Nuclear Weapons (‘NPT’), which aimed to prevent the spread of nuclear weapons. This international instrument was an important step in recognising the harm associated with allowing countries unlimited freedom regarding nuclear power. However, it did not have any practical impact on the issue. Following the treaty entering into force in 1970, five of the authorised nuclear weapons states still had over 13,000 warheads collectively, giving rise to the claim that international law had no impact, according to the International Campaign to Abolish Nuclear Weapons.

However, is this accurate when considering the nature of nuclear weapons under the law? Article VI of the NPT states that ‘each of the parties…undertakes to pursue negotiations…on effective measures… to the cessation of the arms race…and to nuclear disarmament.’ Notwithstanding the ineffectiveness of the NPT, it undoubtedly influenced nuclear disarmament by prompting the negotiation of the 2017 Treaty on the Prohibition of Nuclear Weapons. This international instrument aimed to strengthen the largely unimplemented disarmament pillar of the 1968 NPT by prohibiting states from developing, testing, producing and utilising nuclear weapons. The introduction of this new treaty reflected the ability of international law to inspire subsequent standards and correct errors present in past instruments while continuing to promote nuclear disarmament. Without this promotion, countries would

be open to expanding their nuclear powers without any restriction or fear of potential condemnation by the international community.

Furthermore, international law was fundamental to the significant reduction in strategic nuclear weapons of the United States and the Soviet Union through the Strategic Arms Reduction Treaty of 1991. This agreement effectively achieved substantial disarmament by implementing a three-phase plan to slowly reduce the permitted number of warheads and other deployed missiles. Subsequently, by 2001, 80% of the world’s strategic nuclear weapons had been dismantled, and launch facilities in both nations were destroyed to deny the opportunity for states to backtrack on their commitment. Without international law, how many nuclear weapons would be stockpiled around the world? Arguably, the proliferation race of the 20th century would have seen thousands more produced, which could have detrimental consequences for 21st century conflict.

International law is also the foundation for various mechanisms enabling compliance monitoring with nuclear energy agreements. The International Atomic Energy Agency was established in 1957 to conduct inspections of nuclear facilities around the world. Although the body lacks the required enforcement to terminate practices of non-compliant nations, it assists in strengthening global nuclear security by monitoring nations’ commitment to international cooperation. This role provides an avenue for condemnation by an authoritative body or other countries, which could increase the inclination of non-compliant states to change their policies. Therefore, this organisation continues to support the role of international law in encouraging nuclear disarmament and regulation despite restrictions in the ability to enforce standards. Without international law regulating and promoting the disarmament of nuclear weapons, the consequences for the international community would be detrimental. International law has limited enforcement, but that does not mean it is meaningless in its ability

Should international law be the main instrument for regulating nuclear technology and weapons?

to transform public opinion and encourage states to engage in behaviour that supports the greater good. International law provides the framework for a collective response, on which all of our future depends. Without it, we are left to the often skewed ideals of world leaders, who have the power to cause destruction on an unprecedented level. The only meaningless concept at that point would be our existence.

AGAINST Sujal Chadha

While many nations want a stricter standard of international laws governing nuclear programs, we must also consider how these stricter standards impede national sovereignty. Sovereignty is an essential concept in international law, being the exclusive authority of a nation to determine its own affairs within its borders without external influence. Sovereignty allows a nation to enter international relations and be recognised as part of the international community. Furthermore, research and development of nuclear energy represents an important avenue for a country’s technological advancement, energy diversity and reduction of greenhouse gas emissions, while also making them more globally independent and less reliant on fossil fuels. These are factors that a nation must consider when managing its energy portfolio without external influence from the international community.

While it is very important to have stricter control and safeguards on nuclear energy — especially given previous historical incidents such as Chernobyl and Fukushima — it is equally important for the global community to respect a nation’s inherent right to determine its energy sources, especially since geographical location, population size, energy demand, and available resources differ greatly between countries. With global concerns about climate change, countries are now, according to the International Energy Agency, reducing their reliance on existing resources like fossil fuels to meet their energy needs and are instead looking to other methods such as nuclear energy to fulfil their energy needs.

Despite that, imposing international law standards without consideration for a nations’s unique circumstances can hinder that nation’s ability to pursue the benefits of nuclear energy and address its specific energy requirements. This can impact countries like Bangladesh which is developing its first nuclear reactor to accommodate its energy needs and better meet its commitments under the Paris Agreement.

As countries strive for greater efficiency, safety, and sustainability through nuclear programs, they need the flexibility to adapt to these changes without being bound by rigid international regulations. The World Nuclear and International Atomic Energy Agency tracks recent technological advancements in nuclear energy, including the development of next-generation smaller reactors, innovative reactor designs like molten salt reactors, and improved safety standards and waste management practices. These developments hold great promise for safer and more efficient nuclear power, meaning more countries can use nuclear energy as a clean and sustainable replacement for fossil fuels. Furthermore, countries with established nuclear programs such as the USA, China and France have substantial expertise and strict regulatory guidelines to ensure safe, responsible and sustainable use of nuclear energy. Therefore, it is important to allow a country to better itself through technological advancement particularly when it comes to its energy requirements because such development is impacted if the international regulations are too strict and do not allow nations to govern themselves.

It is important to understand that advocating for the respect of national sovereignty does not disregard non-proliferation efforts in relation to nuclear weapons. The Treaty on the Non-Proliferation of Nuclear Weapons plays a vital role in preventing the proliferation of nuclear weapons and promoting disarmament by establishing stringent safeguards and non-proliferation mechanisms. However, international law should not unnecessarily impede the peaceful use of nuclear energy for civil purposes, as outlined in Article IV of the Treaty. These guidelines ensure transparency and accountability from the nations using nuclear energy. Furthermore, the international community should encourage agreements between countries to share their technology, research and development to further evolve the understanding of nuclear energy. Fostering a collaborative approach to nuclear energy allows nations to achieve their common goals of switching to clean, sustainable energy and reducing greenhouse emissions.

Therefore, a nation should be free to exercise its sovereignty in pursuing the development and regulation of nuclear energy programs, regardless of the divergent views of other nations. Applying stringent international law to a nation’s nuclear program could be an encroachment on this sovereignty, limiting a nation’s ability to exercise its autonomous decision-making and address relevant energy needs and security concerns.

The Need for Restorative Justice Punishment Strategies in the Education System

Zoe Gleeson

As adapted from excerpts of author’s submission at La Trobe University, Melbourne

In Australia, education is the pillar most regarded in a child’s upbringing. A child learns the four pillars of education; to know, to do, to live together in a society, and to be. The sheer right to receive an education falls into concern when punishments handed down by teaching professionals are incongruent with standards or best practices which should be implemented. This disputation is further prompted when the current strategies for teachers to employ are ineffective.

Avoiding international iterations of legislation and focusing on domestic examples, the Education Act 1990 (NSW) outlines the Commonwealth’s responsibilities at a state level. Additionally, the teaching profession also complies with other obligations, such as a duty of care and a standard of care, as well as further policies designated by the NSW Department of Education. Notably, the Student Discipline in Government Schools Policy summarises each person’s role within a schooling sector and their responsibilities concerning codes of conduct. The use of suspension and expulsion as a punishment strategy is entailed within its own policy. It is here where the disparity lies as less strict forms of punishment are less effective. Discourse has occurred around whether being too tolerant versus being too harsh are more effective options, and where the line between both of those exists. This, in addition to the knowledge that the Department of Education has a duty of care to protect students from a risk of harm, is concerning. If the duty cannot be performed, parents can bring a civil liability claim against the Department.

In 2009, Tomoda et al. published an article in Neuroimage. They discovered that punitive punishment strategies forced upon children established a ‘chronic, developmental stressor associated with depression, aggression and addictive behaviours … [thus,] exposing children to harsh [penalties] may have detrimental effect on trajectories of brain development.’ If brain development is affected at such a young age, could this prompt a ‘slippery slope’ argument to irreversible damage?

The primary role of a teacher is to not to teach children what to think, but how to think and how to form their own ideas as they graduate out of childhood and into adulthood. How to navigate the world with adaptive processes instead of maladaptive behaviours and equipping them with coping mechanisms. There is a clear ineffectiveness of punitive punishment systems in schooling environments as shown in the above findings.

Conversely, teachers are at the receiving end of violence from students. One would assume that a retributive punishment system would be applicable in this situation, however, as schools are inherently social institutions, restorative justice or even rehabilitative strategies must be employed. In an article published in Curr Biol in 2015 by Riedl et al. it was found that sanction-based forms of punishment were indeed more effective in deterring ‘bad’ behaviour, as these types of systems are already familiar prima facie, ‘…at an early age’ where ‘children have a sense of restorative justice centred on the welfare of harmed individuals, with implications for the emergence of third party punishment.’ Children are already acclimated to the ‘punishment versus reward’ notion, gaining gold stars for good behaviour, and experiencing a ‘time out’ or detention for unwanted behaviour. The move to alternative punishment strategies is necessary as sanctions below these foundations could serve as a more effective option.

Significantly, the NSW Department of Education Suspension and Expulsion Policy states that expulsions are permitted in ‘cases of unacceptable behaviour where it will be in the best interests of the school community and/or the student involved, for the student to be removed from the school for a period of time or completely.’ This policy document also states that ‘…suspension is not intended as a punishment. It is only one strategy for managing inappropriate behaviour within a school’s student wellbeing and discipline policies.’ Again, this demonstrates an obvious inconsistency of attitudes surrounding these punishment systems. Naming suspensions as ‘non-

retributive’ seems puerile, as being suspended affects more than just the child experiencing it. Not being able to attend school also affects the parent or guardian, as they must make other arrangements for the child to be at home or elsewhere. Missing a few days of school seems like a drop in the ocean. However, it teaches youths that they can have some time off at home or with their parents or guardians at work. Most would be left at home if old enough, and spend the time doing other things like playing video games rather than catching up on missed schoolwork, which is what the punishment is intended for. This system is simply not effective.

Whilst criminological in theory, studies have evidenced the efficacy of restorative justice models. Eliminating the grey area that exists between a child’s right to an education versus them being punished effectively, can be achieved through restorative justice models. According to Reimer, ‘For some, restorative justice is about creating an environment of and for student engagement that challenges traditional systems of discipline and facilitates learning. For others, restorative justice is simply another tool for solidifying compliance and meting out punishment, albeit in a kinder, gentler way’, to which children seem to respond more healthily. A punishment system modelled on restorative justice encourages the child to come to realise the cause and consequence(s) of their actions so they can take responsibility for their behaviour. This way accountability is the focus instead of deterrence; here accountability itself serves as the deterrent. Instead of being told what is going to happen, the child is led through a process where they can identify the behaviour that caused the issue, explore all of the consequences and even potential consequences if the behaviour continued, and then be guided into coming up with ideas of how to make the matter ‘better’. The whole aim is to restore the victim — whether it be a parent, teacher or another child — to a state before the behaviour had occurred.

Unfortunately, until a massive cultural shift in attitudes on both punishment systems and how to effectively deal with ‘problematic’ behaviour, no changes will be effectively implemented. Focus needs to shift from further educating teachers in less punitive behavioural strategies to adopting restorative models of justice, so the child can be punished in a manner that is rehabilitative and thus, more effective. Additional education and research must cover restorative justice strategies. The move to more effective routes of punishment will prompt serious reform and amendments to policies which are so desperately necessary.

What the Willow Means for the Rest of the World

Rachel Justic

Land is a finite resource, and as the global population grows, that finite resource is becoming increasingly exploited. The ability of states to uphold their international obligations and establish environmentally friendly frameworks is requisite to supporting future generations and must be actioned before it is too late.

International Environmental Obligations

The international community has developed significant international laws surrounding climate change and the promotion of climate targets. While the aims of these declarations suggest positive development within the international sphere, states are increasingly abandoning their obligations by virtue of state sovereignty.

The most substantive and prominent source of international climate law is the Paris Agreement adopted at the 2015 UN Climate Change Conference. The overarching goal of the agreement is for states to work cooperatively to reduce the increasing global

temperature to only 1.5°C above pre-industrial levels. Further, last year the Sharm el-Sheikh Implementation Plan was agreed at the COP27 summit, encapsulating a commitment for wealthier states to fund the recovery of poorer states suffering the impacts of climate change. While these codifications recognise that accelerated action is required and can expose states for falling foul of their climate targets, the principle of state sovereignty ultimately means that no state can be forced to perform certain obligations, potentially causing an avoidance of accountability.

The broken windows theory was developed in response to high crime rates in New York in the 1960s, essentially hypothesising that where smallscale crime can occur, more petty crime occurs thereby creating sites of serious crime. This theory applies to international law; as more states choose not to fulfil their international obligations, even more states follow suit. The climate concern sphere is no exception given that Morocco and The Gambia are adhering to their climate pledges without modification. Although states

can be held accountable somewhat by other states in ways such as trade tariffs or reduction in aid, state sovereignty allows for states to avoid their obligations without facing real consequences, rendering efforts to reduce global warming beyond reach.

Australia’s Environmental Commitments

Australia is a party to the Paris Agreement, yet meaningful change is emerging in a delayed manner. Australia has introduced the Climate Change Bill 2022, which offers a new target to reduce 43% of greenhouse gases. Before this, the Climate Action Tracker rated Australia’s overall approach to climate change as ‘insufficient’ but has since become ‘highly insufficient’. In order to meet 2030 goals in alignment with international obligations to the Paris Agreement, the Climate Action Tracker believes that Australia should ensure domestic reductions of at least 57% to meet this shorter-term goal. If Australia aims to practically achieve their 2050 commitments of net zero emissions, the current policy will significantly fall short of their goal.

Australia’s commitment to international public finance has been considered ‘critically insufficient’ in that its fossil-fuel-related activities are incredibly supported and contribute very little to aid climatechange-affected countries.

While Australia’s climate change action is greater than various other states, its efforts fall short of the targets established in the Paris Agreement, and by extension, their overarching international obligations. As a sovereign state which contributes negatively to the climate crisis, a shift in focus towards incentivising renewable energy as a substitute for environmentally unfriendly energy resources would advance compliance with our international obligations.

The Willow Project – America’s Climate Change Obligations

An onshore drilling project in Alaska has commenced, with the intended area expected to hold approximately 600 million barrels of oil. Approved by the Trump administration in 2020, the Biden administration has reduced the original 5 drilling pads to 3; however, this reduction will not displace the catastrophic effects on the environment both domestically and internationally. The project is predicted to generate enough oil to release 9.2 million metric tons of carbon pollution a year.

Climate change is already negatively impacting Alaska, with issues of shrinking glaciers, receding sea ice and thawing permafrost only to be exacerbated

following the implementation of the project. Biden has made a goal to achieve a zero emissions economy by no later than 2050 but it appears difficult to achieve considering the new oil rig project. Executing the Paris Agreement signifies a positive ambition towards carbon emission reductions, however absent of international consequences, government action does not indicate that the United States will meet the targets of the agreement.

Youth-led Activism

While the status quo is a largely unenforceable international framework and intergenerational equity is becoming an afterthought, youth activists have urged change, seeking governments to redress the wrongs done to the environment they must live in.

Young people have been the most vocal about the drilling operation in Alaska, with a petition on Change. org attaining more than 4,459,195 signatures. Social media now plays a pivotal role in political activism for young people, creating a more accessible and less politically filtered space for activists and organisations to advocate for their causes.

In terms of what this means for the future of the environment on a global scale, action now may still allow for the environment to be preserved. It stands to reason that previous government action has compromised intergenerational equity for political and economic prosperity. While parts of the environment are damaged beyond repair, this does not mean there are grounds to abandon the cause.

While climate change cannot be stopped, it can be slowed to prevent its worst consequences. This can be achieved by attaining a global ‘net zero’ of carbon emissions by 2050. As young people are unable to activate governmental change, youth activism has served the most effective role in projecting the voices of young people.

Conclusion

While the global warming crisis becomes increasingly concerning, in the absence of more robust forms of international compliance, governments remain unwilling to comply. Climate agreement targets will inevitably not be met, but youth activism has the potential to intervene and encourage governments to better uphold their symbolic agreements. If intervention occurs soon, there will be time to ensure the environment can continue to support our growing population.

Student Debt and Our Fiscal Future

Grace Drinan

In November 2022, the Greens introduced the Education and Other Legislation Amendment (Abolishing Indexation and Raising the Minimum Repayment Income for Education and Training Loans) Bill 2022. Under this Bill, indexation for all study loans would be immediately frozen and the current minimum repayment threshold for HECS/HELP debt would move from $48,361 to the median wage, which is approximately $62,400. This Bill would have helped ease the burden of the current cost of living crisis, given inflation has risen to a 32-year high. It would have seen all Australian students, of which there are approximately 3.2 million, free from the burden of indexation on their student debt. Additionally, it would have allowed students to access more of their salary to combat the cost of living.

Since the Bill was not passed, all student debt has been subject to indexation at the rate of 7.1%, based on the inflation rate of the last 2 years. That rate means an extra $1,759 will be added to the average student debt of $24,770. Indexation increases the time it takes for students to pay off their debt, impact the future economic prospects of young people starting their careers, and leaves students with even more debt. This article will take a closer look at the history and position of student debt in Australia compared to the United States and the United Kingdom.

HECS/HELP in Australia

HECS was implemented on 1 January 1989 after the Committee on Higher Education Funding recommended that higher education students should pay off their

student debt through income tax obligations. The HECS/HELP scheme changed throughout the years, from when tertiary education was free in 1974, to the establishment of the income threshold at which students have to begin repayments. In 1989, the year HECS was introduced, the repayment threshold was an income of $22,000. The income threshold at which repayments must be made fluctuates every financial year. For example, in the 2018-2019 financial year, the minimum income threshold for compulsory repayments was $51,956, and in the 2019-2020 financial year, it was reduced to $45,880. Once an individual’s taxable income surpasses the income threshold for that financial year, they are required to pay back a flat percentage of their total income, which increases as taxable income grows. This system has continued to function because those who graduate from university tend to earn higher wages, and thus have the capacity to repay their debt.

Data from the Australian Government shows that since 2005, the average time to pay off HECS/HELP debt completely has grown by 2.2 years, currently sitting at 9.5 years, reflecting the increasing size of debts students have been taking on. In the 2021-2022 financial year the people with the most amount of student debt were women 20-29 years of age, with men in the same age demographic following closely behind. Policies implemented which change the income threshold or amend the repayment system will predominantly impact young people who are establishing their careers and finances. The high inflation rate for this financial year will affect young people who have a limited capacity to pay off the debt

and they may end up paying this debt for many more years to come. Furthermore, it will have implications on the capacity of young people to enter the property market, due to the impact the increasing debt will have on their borrowing power in conjunction with the existing barriers to entry. Those who can afford to pay off their HECS debt or have parents who can therefore have an even bigger advantage than ever before.

To put Australia’s student debt crisis in perspective, let’s compare it with the systems in the United States and the United Kingdom.

United States

As of September 2022, about 48 million United States borrowers collectively owe over $1.6 trillion in federal student loans. In 2020-21, graduates of a four-year bachelor’s degree in public and private colleges finished their degrees with an average debt of roughly $43,000 AUD. Data has shown the average student took on 25% more debt from 2009 to 2021 in the United States because tuition has increasingly become more expensive. Furthermore, students have an incentive to borrow more as pursuing higher education generally equates to a higher income. For example, in the United States, a person with a bachelor’s degree earns 1.8 times the amount a person with a high school diploma does.

In the United States, student loans are either taken out through a federal loan or a private loan from a bank and can be used for any expense associated with college. For undergraduates with a federal loan, the interest rate set by Congress in 2022-2023 was 4.99%. In the United States, financial experts and the US Department of Education

say that 10 years is the ideal timeline for paying off loans, according to the Education Data Initiative. However, on average it takes students 20 years to repay their debts.

United Kingdom

The United Kingdom has a similar income-based style repayment system to Australia. A student will start making repayments when their income is at $46,947 AUD, at which point they pay 9% of their income towards their student debt. Depending on the loan plan a student is on, their debt is written off after 25 to 30 years. United Kingdom students graduate with the highest rate of student debt in the world, at approximately $70,000–90,000 AUD. In the United Kingdom, payments are collected for up to 30 years, after which time any remaining amount is forgiven.

Where this leaves us

This comparison demonstrates two things. Firstly, what we all knew: it is expensive to be a young person in today’s world, although this is certainly the case for some more than others. Secondly, the student debt policy in Australia is comparatively better than in other countries. Australia’s income tax system is acknowledged by experts to be one of the better systems of student debt. While indexation of HECS/HELP loans in the context of a cost of living crisis in Australia is disheartening, to say the least, and perhaps the system could undergo reform to mitigate the impact on young people in the future, it may be helpful to acknowledge that in comparison to other systems in the world, we can be considered to be in a better position.

Should the law be subject to reform? The natural answer, one would think, is yes. One may go even further, demanding rapid and rigorous legal change with a revolutionary ethos. The issue with reform, the revolutionist claims, is that change under a corrupted system is a fool’s errand — whether the corruption is prejudicial, financial, or administrative. Ineffectual reforms initially seem benign, appearing to the observer as a mere inconvenience. However, as legal systems are enveloped in vast, contradictory sources and muddled interpretations, the protest against the law develops thus:

‘Our law has grown in its complexity to the point of self-sufficiency — to maintain the law, working lawyers require assistants (lawyers) to interpret the law written by legislators (lawyers). The law more closely resembles the classifieds of a legal newspaper rather than a mechanism for justice. Therefore, let us demolish our corrupt laws and replace them with what is true and good.’

Or, with the brevity of Voltaire:

Revolutionary Reform

A History of Law Reform through Codification

‘Do you want to have good laws? Burn yours and make new ones.’

Naturally, owing to a justified dislike of the way that lawyers operate, many have found this sentiment appealing. This has been attested to throughout history. Let us assess two of these cases.

The Law to Surpass all Laws — Constantinople, AD 529 Roman law is a unique beast. Although her first laws — the Twelve Tables — appear simple to the modern student, one must not forget the phrase prima facie (at first sight) comes from Latin. The reach of Rome’s borders, the multitudes of local and customary legal codes, and the collapse of her western half each mounted a challenge to lawyers in the monolithic Byzantine East and the newly fashioned barbarian kingdoms of the West. By the sixth century, Byzantine jurists had over a thousand years of contradictory pagan, Jewish, and Christian laws to reference when deciding on cases.

It was at this point that Justinian, the Byzantine Emperor, formed a commission to establish the Corpus Juris Civilis: the Body of Civil Law. Comprising a codex, a jurisprudential encyclopaedia, and a textbook, the

Leo Chang

Corpus claimed to be complete; commentaries and sources not found within the Corpus were held to be illegal interpretations of the law. However, Justinian soon found the rigidity of the code to be a boon to effective leadership, and new laws were published as the Novellae Constitutiones; the fourth arm of the Corpus.

Above the reconquests of Rome and Carthage, Justinian’s rule is remembered for his unprecedented consolidation of a thousand years of law and jurisprudence into one body of work. Requiring almost no external sources, the Corpus provided a revolutionary basis for civil law — it alone would stand as a basis of Western law for a millennium.

The Law to Surpass all Laws (to Surpass all Laws) — Paris, AD 1804

As time went on, elements of the Corpus rubbed jurists the wrong way. Some scholars found Justinian’s dependence on Catholic Christianity anathema to their own ways of life. Others questioned the authority of man before God to make universalist laws. The rebellious barbarian kingdoms of the west had proven their might as Byzantium was relegated to Ottoman territory.

By the nineteenth century, a bourgeois revolution against the French monarchy had succeeded in causing unfettered chaos. Napoleon Bonaparte, soldier and first consul of the French Consulate, sought to remedy this outburst with legal reform. Viewing the piecemeal local and customary law of France as insufficient, and having read the textbook portion of the Corpus, Napoleon sought to create a new code — the Code civil des Français; or the Civil Code of the French. It experienced a similar reception to the Justinian code: initially promulgated as a self-sufficient legal code with prohibitions on commentary and external sources, with later amendments demonstrating the folly of such claims.

Following its promulgation in 1804, Napoleon’s Code would become the legal basis of modern France and its overseas territories. It remains active in these territories to this day.

The Lessons of the Past

As Voltaire quipped, the old laws went up in a blaze, and two codes replaced them. However, this fire was not destructive but rather purifying. Both parties saw certain values embodied in the laws of the past: capable jurists, respectable opinions, and a coherent philosophy. But both sought to tie what had come to pass to a higher philosophy: Justinian had discovered Jesus of Nazareth, and Napoleon had discovered Caesar of

Rome. This was no creation of law from the ground up; it was the import of an ancient truth.

There are countless examples of revolutions attached to an ancient truth: the Jews under Josias recognised the supremacy of the Temple and the attached laws as Moses did; the founders of the United States desired freedom and its corollaries; and the Soviets and Nazis found the object of their affections in the manner of Narcissus.

Each revolution is founded on a philosophy, and every law comes from a revolution.

The Law to Surpass all Laws to Surpass all Laws (to Surpass all Laws) — Australia, AD 1986

It is here that the English-speaking tradition of common law makes its great debut. For what is common law but a wholehearted acceptance of revolution; an unparalleled trust in populations to govern through democracy and novel precedent? Our legislators, the laws’ executors, and those who judge the laws — each group is composed of revolutionaries. They bring with them their philosophies and their claims to reality, and they seek to set the law aflame with that same Voltairean spark.

Under the first Australian legal case — Kable v Sinclair — prisoners were found to possess rights under the rule of law. Governor Arthur Phillip wrote memoranda detailing his desire to abolish slavery in Australia, contrary to the law of the greater British Empire. Royal assent was granted to locally written constitutions. Following Federation in 1901 and the excision of future British law in 1986, Australia became a de facto independent state. The laws in Australia have broken away from our civil law antecedents, and the heightened roles of the parliament and judiciary has been affirmed time and time again.

The changeable legal institutions and the common law of Australia entrusts the power to shape the law to its citizenry; powers once held exclusively by emperors. The purpose of the law has never been as relevant to as many people as it is today.

Justinian was an Illyrian peasant, who was raised in the boonies of a dying empire and secured his polities for a thousand years. Napoleon hailed from the backwaters of Corsica and leapt into the thick of revolutionary Europe. Both believed in something greater than themselves and left a legal legacy a thousandfold greater than their contemporaries could have ever imagined. With the revolutionary powers of emperors in our hands — what is to be our common legal legacy in Australia?

Striking a Balance: A

Review of Religious Educational Institutions and Anti-Discrimination Laws

Bruce Zhang

Daniel Cash’s article in the Sydney Morning Herald (published 18 April 2023) about his experience as a gay student in a private, Anglican grammar school is a timely reflection on the Australian Law Reform Commission’s (ALRC) ongoing review of anti-discrimination laws in Australia. This article aims to briefly describe and discuss reform proposals made by the ALRC in its Consultation Paper released in January this year.

The current anti-discrimination legal framework

In Australia (except Victoria and Australian Capital Territory) there is no Bill of Rights at the Commonwealth, State or Territory level. This is notwithstanding that section 116 of the Constitution of Australia enshrines the right of free exercise of religion.

Since the 1970s, the Commonwealth, State and Territory parliaments have passed several antidiscrimination legislations. At the Commonwealth level, there are the Racial Discrimination Act 1975, the Sex Discrimination Act 1984, the Disability Discrimination Act 1992, and the Age Discrimination Act 2004. In addition, each State and territory has its own anti-discrimination acts. For example, in New South Wales, the AntiDiscrimination Act 1977 provides a framework of antidiscrimination measures covering aspects of race, sex, sexual orientation, age, HIV status, and so forth.

Although these statutes have been reformed on multiple occasions in response to social and economic changes as well as the growing acceptance

of LGBTQIA+, these statutes do not strike a delicate balance between equality and religious freedom, particularly in the context of religious and educational institutions. The demand for such a balance has proliferated and attracted attention from diverse stakeholders such as governments, the legal profession, education administrators, and human rights advocates.

The Australian Government responded to this by committing to amend the Sex Discrimination Act and other Federal legislation if necessary. As outlined in the Terms of Reference to the ALRC, their policy basis is to ensure that an educational institutiton conducted by the doctrines, tenets, beliefs or teachings of a particular religion or creed:

• Must not discriminate against a student based on sexual orientation, gender identity, marital or relationship status, or pregnancy;

• must not discriminate against a member of staff based on sex, sexual orientation, gender identity, marital or relationship status, or pregnancy;

• can continue to build a community of faith by giving preference, in good faith, to persons of the same religion as the educational institution in selecting staff.

ALRC Inquiry and Preliminary Findings

Due to the fact that any anti-discrimination law reform in schools with religious backgrounds must respect religious beliefs and practices and uphold human rights and equality, the ALRC must assist the Australian Government in fulfilling its policy commitments. As

part of its mandate, the ALRC inquires about changes to the Sex Discrimination Act and the Fair Work Act 2009 (Cth). As stated earlier, the ALRC released its Consultation Paper in January 2023 and will provide the Final Report to the Commonwealth Attorney-General by 31 December 2023.

The ALRC consulted with various stakeholders, such as school principals, students, legal professionals, and the human rights commission. The Inquiry includes an examination of foreign jurisdictions such as England and New Zealand. The ALRC also examines Australia’s international obligations regarding human rights to ensure the recommended legal changes align with those obligations.

According to the Consultation Paper, the Sex Discrimination Act falls behind state and territory antidiscrimination legislation in regards to narrowing exemptions for religious discrimination. The ALRC made four general propositions requiring reforms and 14 technical proposals (i.e. recommending changes to specific provisions of the Sex Discrimination Act) for reform. The propositions and recommendations aim to line the Commonwealth with its international obligations and are as follows:

• Proposition A: discrimination against students on the grounds of sexual orientation, gender identity, marital or relationships status, or pregnancy

• Proposition B: discrimination against staff on the grounds of sex, sexual orientation, gender identity, marital or relationships status, or pregnancy

• Proposition C: preferring staff involved in the teaching, observance, or practice of religion on religious grounds

• Proposition D: ongoing requirements on all staff to respect the religious ethos of the education institution.

Amendments in these proposed areas to the Sex Discrimination Act will impact religious educational institutions’ management. Some crucial points identified by the ALRC include:

• extending the prohibition of direct discrimination to indirect discrimination so that a religious, educational institution could no longer impose policies or practices that can disadvantage students with characteristics of LGBTQIA+, who are unmarried, or are pregnant;

• a school could no longer refuse to enrol a student who is LGBTQIA+;

• a school could not refuse to register a student because their parents were in a same-sex relationship;

• outside the remaining narrow exceptions, a religious, educational institution could not treat staff members (prospective or current) less favourably because they were (among other things) of a particular sex, LGBTQIA+, divorced or in a de facto relationship, or pregnant (direct discrimination);

• a university could not refuse to consider a lecturer’s application for promotion because they were gay and in a same-sex relationship;

• a school could not require, as a condition of appointment, any staff member or prospective staff member to sign a statement of belief by which they had to affirm that homosexuality is a sin (because this would be discriminatory against an LGBTQIA+ applicant);

• a religious school could not take action against a staff member for supporting an LGBTQIA+ student or attending a Pride rally because it undermined the school's religious ethos.

Overall, the ALRC is trying to harmonise the need for holding religious beliefs freely with the acceptance and protection of LGBTQIA+ students and employees.

Limitations of the ALRC’s Inquiry

The ALRC explicitly states in the Consultation Paper that it ‘is not tasked with assessing the relative importance of religion and equality, nor related human rights such as the rights to privacy and freedom of association’. Instead, the Inquiry looks at whether the interference of these rights with other rights is justified. In other words, the ALRC is tasked to work out a legal pathway to acknowledge and respect all these fundamental rights and preserve human rights to the maximum degree possible.

Further, the Inquiry is limited to the Sex Discrimination Act and Fair Work Act. However, students with LGBTQIA+ backgrounds can also have other attributes, such as race and disability. The Sex Discrimination Act limits its applications to discrimination against persons based on sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy or breastfeeding. The Fair Work Act aims to provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians. Considering the limited scope of the two statutes, additional inquiries are needed to address complex issues at the intersection of sexual orientation, race, disability, and other attributes.

From Playtime to Pay Cheque: Safeguarding Child Content Creators from Exploitation

Daniel Bowtell

As social media continues to rise in prominence, we are witnessing a burgeoning trend: child content creators. This unique demographic has stormed the virtual world, becoming influencers on platforms such as Tiktok, YouTube, and Instagram. Although this rise presents novel opportunities, it also ushers in complex ethical and legal considerations that require careful scrutiny. The surge in child content creators has exposed the limitations of existing legislation that is primarily designed to safeguard children in traditional entertainment industry roles. Although, should legislative reform be introduced, it will face challenges with enforceability in domestic settings.

Parent-Directed vs. Child-Directed Content Creation

The domain of child content creation primarily embraces two paradigms: parent-directed and childdirected content. The primary difference between these two paradigms is whether or not parents pressure their children to produce social media content. Parent-directed content creation involves children (‘kidfluencers’) as the protagonists, whilst their parents direct the child behind the scenes instructing the child what to do and say. On YouTube, parent-directed content is dominated by child-led toy reviews, like Ryan’s World or nuclear family video blogs. Parents

commonly will upload videos of their child playing and acting to generate revenue through affiliate programs or brand sponsorships. Conversely, child-directed content creation generally involves a child protagonist who posts and manages their own social media accounts of their own volition, without their parents pressuring them to create social media content. Child-directed content lacks a parent providing direction behind the camera (akin to a Hollywood set). Instead, it frequently exhibits children engaged in everyday recreational activities such as video gaming, engaging with viral trends, and video blogging their life adventures. These activities may appear spontaneous and unscripted, providing viewers with an authentic, relatable, and engaging experience.

The Deficiency of the Current Legislative Framework

The Children’s Guardian Act 2019 (NSW) (‘the Act’) and the Children’s Guardian Regulation 2022 (NSW) (‘the Regulation’) provide the foundation to protect children from exploitation in the workplace. Part 7 of the Regulation covers the legalities of child employment in New South Wales from private employers. The Regulation effectively protects children employed in the entertainment industry, including film, television, photography, and modelling. However, r 53 of the Regulation (as empowered by s 91 of the Act) does not extend to protect child content creators on social media as the social media company nor their parents

are considered to employ them. Instead, for a child’s employment through social media to be recognised, there has to be either an employment contract, an agreement to pay a sum of money for participating in an activity, or an individualised declaration from the Children’s Guardian stating that a child is employed. Hence, the existing regulations’ limitations allow child content creators to circumvent legislation designed to safeguard them from exploitation. Subsequently, the enforcement of essential child working rights, such as the provision of a minimum wage, restriction on employment hours, and assurances of minimum rest breaks, becomes infeasible as no party to the child content creator owes a duty to comply with child employment legislation.

An Intensifying Barrage of Predicaments

The growing prevalence of child content creators presents an intricate problem, interlacing various complex issues such as precarious financial management, potential exploitation, and the worrying absence of assured employment rights. On one hand, the digital age has empowered children to tap into their creativity and reach an audience of millions, far exceeding the viewership of ABC News or Nine News. However, the children’s unprecedented fortune growth through excessive online virality raises critical concerns about their financial protection.

The involvement of parents poses a financial dilemma. While they often play an integral part in a child’s escapade into content creation, concerns arise about handling the income generated, especially in parent-directed paradigms. Unlike forms of child actor protection in the United States, known as the Coogan Law, where a mandated proportion of earnings are held in trust for the child until they turn eighteen, the digital sphere internationally offers no such protection. Generally, in parent-directed paradigms, parents will have complete control over the financial transactions associated with their child’s content creation, leading to a potential avenue of misuse or misappropriation of the funds intended for the child. Without concrete legal safeguards providing checks and balances on child content creator accounts, children may be exposed to potential exploitation or receive no financial benefit from their labour.

Attempting to Solve the Unsolvable Riddle

Internationally there are limited laws regulating child content creators beyond user policies implemented by social media companies. In 2020, France was one

of the first jurisdictions to pass legislation affording the same protection given to child models and actors through their earnings being held in a separate bank account until they turn sixteen. However, concern remains about the child’s privacy and their consent to have footage of themselves uploaded online in the parent-direct paradigm. In 2023, France is considering introducing laws to forbid parents from sharing videos and photos of their children to earn money without the child’s consent.

Moreover, irrespective of the efforts to protect child content creators, the legislation alone is not the panacea to safeguard children in parent-directed paradigms. Should legislation in New South Wales be enacted which provides a minimum wage, restricts lengths of performing and assures breaks, its enforceability would topple its effectiveness. Concerns with enforceability raise various critical questions; for instance, how can a child as young as three distinguish whether it is inappropriate to be compelled by their parents to function in front of the camera? How can we differentiate between a child’s ‘play’ and ‘work’ when they are the protagonist of the social media account? Henceforth, enforcing any newly enacted legislation becomes incredibly challenging in the privacy of a home, where monitoring compliance with laws is problematic. Should parents be asked to track and report hours spent in content creation as if it were an official job? Would this not run the risk of the State infringing upon family life and privacy? Furthermore, if a dispute arose concerning the child’s working conditions, how would it be resolved? This dynamic is further complicated when considering the potential power imbalances between parents and children.

Conclusion

The ascension and prevalence of child content creators mark a seismic shift in our digital landscape. As we navigate the growth and influence of social media, it is imperative to protect and promote the well-being of these ‘kidfluencers’. The Regulation in New South Wales, established in a pre-digital era, must evolve to grapple with the unique challenges posed by this rapidly growing social media age. Child content creators have been operating in spaces unanticipated by existing laws for numerous years, with vital reforms necessary to ensure a safe and nurturing environment for child content creators.

With Dr Holly DoelMackaway

When we decided this edition would explore questions relating to the law’s impact on children, we needed to explore ways we can remedy the disproportionate impact the law has on Aboriginal and Torres Strait Islander children.

Involving Aboriginal Children in Law and Policy-Making

Children are often used as political footballs thrown to force quick change. There is a reason why The Simpsons scene of Helen Lovejoy crying ‘Ohohoho, won’t somebody please think of the children?’ is a classic meme. In 2007 claims of endemic child abuse in the Northern Territory led to the Northern Territory Emergency Response (commonly known as ‘The Intervention’), a set of laws that quarantined welfare payments, banned alcohol, acquired native townships and increased police presence in ‘prescribed communities’. There was no attempt to consult with the communities or their children prior to this legislation coming into force.

I discussed the Intervention with Dr Holly Doel-Mackaway, who conducted field research with Aboriginal children and young people to seek their views about the measures. She highlighted that the Intervention exacerbated violations of Aboriginal children’s human rights: ‘During the Intervention, Aboriginal children and young people were removed from their families and from Country through the child protection and juvenile justice systems at a far greater rate than during the period known as the Stolen Generations.’ A year after the Intervention’s implementation, the government apologised to the Stolen Generations; during the Intervention, disproportionate numbers of Aboriginal children were placed into juvenile detention or out-of-home care, often hundreds of kilometres away from their communities.

Bradley Cagauan

A Bitterly Cold Climate

Dr Holly Doel-Mackaway is a senior lecturer at Macquarie Law School, researcher, lawyer and social worker specialising in the field of children’s rights. With over 25 years of experience, Dr Doel-Mackaway is committed to working toward positive social change and social justice. She started her career as a social worker with women and children who had experienced sexual abuse and domestic violence.

She reflected on this time:

‘I saw how the law impacts children and women with respect to their experiences of violence, abuse and neglect. I didn’t see the law working very well for women and children at all. I saw women and children cross-examined in criminal proceedings and retraumatised in the process, I saw them disbelieved and their credibility and competence questioned. In my career as a sexual assault and domestic violence counsellor I saw very few convictions for crimes against women and children.’

Frustration with how the law failed to uphold the rights of women and children lit a fire for Dr DoelMackaway. After practising social work she studied law in the hope of fighting for reparations for women and children as a barrister. Upon graduating, she instead worked as a Children’s Rights Legal Advisor for UNICEF Pacific. ‘I worked across 15 Pacific Island countries supporting the implementation of the Convention on the Rights of the Child (‘CRC’) into domestic legislation, policy and practice,’ she said, ‘It was during this time that I became deeply interested in the role of international human rights law, and I developed a solid understanding of the Convention.’

Dr Doel-Mackaway’s research seeks to ‘interrogate ways in which the law protects, empowers and also negatively impacts the lives of children and young people’ to highlight the need for institutional reform. She does this by engaging children and young people in field research seeking their views about legal issues impacting them.

Having advised governments and NGOs on international children’s rights, I asked her about Australia’s compliance with the CRC. Despite Australia being a party to the CRC, Dr Doel-Mackaway is critical of successive Australian governments’ poor commitment to advancing children’s rights nationally, especially Indigenous children’s rights. Quoting Professor Laura Lundy, Dr Doel-Mackaway said, ‘it’s a cold climate for children’s rights’ globally.’ She added that ‘it is bitterly

so in relation to the rights of Aboriginal and Torres Strait Islander children and young people.’ She described the context for Aboriginal children’s rights as an ‘absence of rights.’ She said Australia lacks both a federal children’s rights act and a constitutionally enshrined bill of rights. Without a national framework to support the realisation of children’s rights, Dr Doel-Mackaway said the absence of rights ‘has extremely harmful impacts on Aboriginal children and young people.’

She pointed to the violations of Indigenous children and young people’s rights in Australia, including the extraordinarily high rates of Indigenous youth incarceration — approximately 25 times higher than non-Indigenous youth — and the fact that Indigenous children are being removed from their families and from Country through child protection systems at 10 times the rate of non-Indigenous children. She said: ‘We’ve got to really be thinking what on earth we are doing incarcerating children, especially disproportionate amounts of Aboriginal children?’

Dr Doel-Mackaway said incarcerating children rarely leads to positive outcomes. During the Royal Commission into the Detention and Protection of Children in the Northern Territory (NT Royal Commission) Dylan Voller, a young person incarcerated at Don Dale Youth Detention Centre, testified about the personal impact of incarceration. He said: ‘We are being further punished while in prison. Being sentenced by the judge to do the time for our crime is our punishment, not the continued mental and physical abuse that we continue to cop while here.’ Throughout our interview, Dr Doel-Mackaway described the treatment of children in youth detention as ‘torture.’ Quoting evidence from the NT Royal Commission, Dr Doel-Mackaway painted a picture of children held in solitary confinement for 17 continuous days, for 22 hours a day, being denied basic needs, subject to physical violence, strip-searched, caged in cells without air-conditioning in the Australian summer and sprayed with tear gas.

‘There’s a critical problem in this country regarding the torture and abuse of children in juvenile detention,’ said Dr Doel-Mackaway, ‘Incarcerating children is ineffective, punitive, draconian and it’s inconsistent with the rights of children and should only ever be used as a measure of absolute last resort.’ The incarceration of children is facilitated by the very low age of criminal responsibility in all Australian states and territories, set at 10 years old. This means that ‘very young children are being locked up in prison-like conditions in contravention of their human rights.’ This was the case with Dylan Voller who was first incarcerated at 11.

Dr Doel-Mackaway stressed that while the low age of criminal responsibility permits the incarceration of 10-year-old children, ‘these laws predominantly facilitate the incarceration of Aboriginal children not non-Aboriginal children. This is seen in the extraordinarily high rates of Indigenous young people being channelled into the judicial system, something non-Indigenous young people do not experience to the same degree. Thus, the very low age of criminal responsibility is used almost exclusively to imprison Aboriginal children.’ When I asked Dr Doel-Mackaway how high the age should be set, she said the Committee on the Rights of the Child recommends at least 14 years old (ideally 16 years old) because ‘non-judicial methods to address youth crime are the most effective globally.’ Dr Doel-Mackaway believes that increasing the age would not only improve outcomes for all children but also remove a key means by which the law directly discriminates against Aboriginal children.

Of course, increasing the age is not the only way to address the absence of rights for Indigenous children. Dr Doel-Mackaway, who teaches constitutional law, said, ‘it’s important that we acknowledge that our Constitution anticipates and permits racial discrimination.’ She gave the example of section 51(xxvi) — the power of Parliament to make special laws for any race — as a power that had ‘been used against Indigenous peoples such as the building of the Hindmarsh Island bridge on sacred land in the Kartinyeri case.’ ‘Constitutional transformation,’ she said, ‘is necessary to overcome so many forms of racial injustice that permeate the very foundations of Australia’s legal system.’

Law and Order and the Northern Territory

Earlier this year, major news outlets reported on alcohol-fuelled crime sprees by young people in Mparntwe (Alice Springs). These stories featured interviewees demanding the return of alcohol bans. I asked Dr DoelMackaway about the political effectiveness of law and order narratives and the ‘unruly

Aboriginal youth stereotype’ in implementing coercive policies.

‘This goes to the very core of how Aboriginal children and young people are stigmatised and perceived in the broader community,’ she said. ‘There is no overarching federal legislation or constitutional provision that enshrines at the domestic level the comprehensive body of international human rights law to which Australia is a party. This is a major deficiency in Australia’s legal framework. The absence of a human rights charter in our federal legislation and a context where racially discriminatory law and policy persists creates a ripe environment where assimilationist rhetoric can flourish and be legitimised.’

She drew a parallel to the Little Children are Sacred Report. Dr Doel-Mackaway said: ‘The first recommendation [of the Report], which was to “consult with Aboriginal communities” was ignored. Instead, the Report was used as a catalyst to bring into place the Intervention, in contravention of Australia’s human rights duties under the Convention on the Elimination of Racial Discrimination.’ To justify this contravention, the government suspended the Racial Discrimination Act under the ‘special measures provision’ by declaring the Intervention was an ‘emergency.’

Dr Doel-Mackaway said the Intervention was not about protecting Aboriginal children. ‘The words “children” and “young people” were used so few times across the Intervention legislation,’ she said, ‘that was one of the indicators that demonstrated that children were not at the centre of the Intervention.’ She referenced a 2011 artwork by Vernon Ah Kee called intervention invention which implied the Intervention was an emergency invented in response to troubling reports of abuse but used as pretext to control remote communities.

‘When you have an emergency and nonIndigenous legislators are rushing around in a moral panic — much like what happened in Mparntwe (Alice Springs) — this can legitimise a body of law-making that is inconsistent with human rights provisions.’

Dr Doel-Mackaway said that in relation to Aboriginal children, moral panic tends to promote interventionist law-making where governments intervene in Aboriginal people’s lives and control Aboriginal children. ‘We really need to counter these narratives and reject colonialist “policy on the run,”’ she said. ‘That’s what happened with the Intervention: it was policy on the run with some very sinister undertones about the real intentions of what this legislation was going to do.’ Dr Doel-Mackaway was exasperated when she told me about the impact of the Intervention: ‘What a disgusting outcome for laws that were supposedly about the kids.’

In relation to the situation occurring in Mparntwe (Alice Springs) Dr Doel-Mackaway said:

‘Everyone has a right to be safe. Crime must be addressed, that goes without question but punitive laws such as alcohol bans or “tough on youth” laws don’t work. Children have told me, top-down “whitefella law,” doesn’t work. Collaboration and seeking solutions must take place. Measures like those seen in the Intervention do not improve outcomes; instead, it legitimises the increase of racism in communities.’

When I asked her what she believed was the cause of unrest in the NT, she said.

‘The real problem is persistent governmental failures to uphold Aboriginal young people’s human rights. Defunding youth and family support services, legal services, ignoring young people and their voices — they’re key examples. Yet, blame for the problems in Mparntwe (Alice Springs) is directed towards young people while the systemic drivers of the alleged crime wave are completely overlooked. Looking at the symptoms of governmental failures and not at the governmental failure itself is a common colonial tactic used to further discriminate against Indigenous peoples.’

Children’s Voices and the Voice to Parliament

During our interview, Dr Doel-Mackaway highlighted the failure of governments to seek children’s input in decision-making. In her book, Indigenous Children’s Right to Participate in Law and Policy Development (published by Routledge, 2022), she proposed a fivestep dialogue model to assist governments in facilitating children’s participation in law and policy development:

1. Adopt a child rights-based approach

2. Address ethical considerations and consult with communities

3. Undertake preparatory activities with children and seek consent

4. Seek children’s views in safe, child-friendly and culturally appropriate ways; and

5. Ensure benefit and reciprocity.

‘Most children don’t like sitting face-to-face with an adult and being asked a million questions with direct eye contact. That’s a very adultist way of engaging with children,’ said Dr Doel-Mackaway, ‘this model adopts a child rights-based approach in engaging with children. It facilitates engagement with Aboriginal children and young people in a way that is culturally safe, friendly and uses methods that really speak to children and young people.’ While the model is universal, she said it is specifically designed to uphold the rights of Indigenous children and to empower their engagement with law and policy makers. She recommends governments should adopt this approach before implementing measures that will impact Aboriginal young people.

The rights-based approach Dr Doel-Mackaway’s model uses is distinct from the perspective of successive governments which have adopted a ‘welfare-based approach’ to Indigenous related law and policy development. Dr Doel-Mackaway described welfarist approaches as implementing measures that are deemed to be in children’s best interests. However those interests are not determined by the children concerned but are instead ‘determined by adults.’ The welfare-based approach contravenes children’s right to be heard and Indigenous peoples’ right to be consulted about decisions that may impact them under the CRC and the UN Declaration on the Rights of Indigenous Peoples respectively.

‘Part of my approach when undertaking research with children and young people,’ said Dr DoelMackaway, ‘is to spend at least half of the time getting to know the community before engaging them in research or consulting with them. This is an attempt to be less ‘extractive’, that is, it is not appropriate, as an outsider to an Aboriginal community, to go into communities and extract information. This is a very colonialist construction of research, widely criticised for being culturally inappropriate.’

Because children can feel easily intimidated by adults, child-friendly environments are very important. As an example, Dr Doel-Mackaway, draws on her experience as a children’s counsellor and employs play-based material in her research by using creative, child-friendly mediums such as making posters, using iPads, and using LEGO and construction tools as ways

to allow children to express their views in addition to talking. Sometimes, dialogue does not even require the researcher to be in the room. One of the research tools Dr Doel-Mackaway employs is to provide children with iPads or other recording devices for young people to then interview each other using the video function to collect research data.

‘In these instances I am not involved in those moments with the children,’ said Dr Doel-Mackaway, ‘sometimes as an outsider to the children’s communities, involving myself could change what happens in the research, or children could be too shy to talk with me. Reducing the power differential between adult and child is very important, that’s part of adopting a children’s rightsbased approach to research.’

In the week the interview took place, the Federal Parliament passed the Referendum Bill. This is the final stage before the referendum question of whether an Indigenous Voice to Parliament should be enshrined in the Constitution is put to the Australian people. I asked Dr DoelMackaway what the Parliament should incorporate if the referendum succeeds. ‘It would be good for the government to seriously think about how Indigenous youth can contribute to the Voice to Parliament and what that could mean,’ she said, ‘Indigenous youth representation in the Voice, in my view, is vital to our democracy given the status of the absence of rights for Aboriginal young people in this nation. Indigenous youth are experiencing such high degrees of social discrimination against them, without their voices in the democratic processes, those inequities and injustices might not be fully addressed.’

She referred to an adage used by First Nations peoples: ‘Nothing about us, without us.’ She said, this should also apply to Aboriginal youth. ‘Sometimes adults speaking for young people isn’t sufficient. Young Aboriginal people have the right to have their voices heard and taken notice of.’

Reaching the end of our interview, I asked Dr Doel-Mackaway for any advice to students interested in pursuing a career in child law. She replied:

‘Some people think that studying child law is a niche area. I couldn’t disagree more. Children and young people are almost 50% of the global population and are a highly governed population with many laws and policies that apply to them. There is a huge need for more people to be doing more advocacy work in this area. It’s not just about, say, increasing the age of criminal responsibility, there’s so much scope to do more work. Let’s not forget the Convention on the Rights of the Child remains largely unimplemented in Australia.’

She pointed out that Belgium recently lowered the voting age to 16 for European Parliamentary elections, something which Dr Doel-Mackaway mentioned could be pushed in Australia soon.

‘Irrespective of whether children are enfranchised, there is an onus to advocate for those who cannot vote. That comes not only from international human rights law, it also comes from a moral duty to do so anyway.’

We should challenge ourselves to consider it our moral and legal duty to listen to those who are so often silenced in public debate and unnoticed in public decision-making processes. We need to start listening to Aboriginal young people to shape the kind of democracy we want to live in, one where there is a strong commitment from all sectors of society to end racial discrimination. Children are not political footballs to be kicked around to legitimise policies outside of their interests like the Intervention. The children are all of our future.

‘An onus to advocate for those who cannot vote’

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Is Procrastination a Bad Thing?

Zoe Gleeson

As adapted from author’s article featured in the Australian Law Students’ Association’s Mental Health & Wellbeing Publication 2023

ISTRUGGLE with due dates. Was this article late for submission? Yes. Did I have plenty of time in which to write said article? Yes, I did. Am I attempting to smash this out whilst panicking at the time? Yes, yes I am.

I have always asked myself why my brain cannot fuse its neural pathways with my practicality. My brain WANTS to do all of the things. I have ‘to do’ lists; plans of attack in my head, but it is as though my body refuses to compute what I WANT to be done with what actually IS done. I have never started an assessment until the day of the due date. The deadline could be so close, and I would still flatly refuse to even open the document containing the assessment question in it, until the day of the due date. Alarming, right? Most first years have already keeled over and died from the shock of that confession. I see you. But fear not! I hold many qualifications and have an undergraduate degree which makes me feel like I have an idea of what I am doing by now. And somehow, it all comes together in the last possible moment, and I submit with minutes until Turnitin comes up with the red text of death saying the assessment is ‘overdue’. Even that sentence is enough to give anyone heart palpitations.

Procrastination is my best friend but I viewed it as my worst enemy in the past. I have wreaked havoc on my own life by riddling myself full of guilt that I am ‘different’ to most of my peers. My work colleagues consistently ask if the legal sector is where I belong, as I somehow do not fit into the typical ‘smash out all of the work all at once’ archetype, and have assessments completed in advance. Apparently, I am not an authentic ‘Type A’. I worry that I am not working the way everyone else is and fitting into the norm. However, to those naysayers, I raise the concept of ‘mulling’. No, I am unfortunately not talking about mulling a nice bevvie on a Saturday night, I am talking about thinking of anything profoundly and for a long duration of time.

In both my lives; my career and studying, I take the time needed to mull over questions and tasks needed to be completed. I often find myself staring into space postulating over anything from ethical quandaries to my next Remedies Essay question. My brain can somehow sit on these for weeks or even months and generate *insert keyboard smash of numbers here* ways to potentially solve the problem. This had led to (what my professors have stated) ‘seriously creative’ discourse. By giving myself the extra time that my peers do not require, I have created space for myself to think outside of the box. Most people would be given a question for a law assignment and trust their gut, pursuing their first idea on the matter. Sorry to break it to you, but this would typically generate an ‘average at best’ response. Yes, you might be able to spruce it up a bit by adding in fancy, big words, and spend the time interweaving your argument throughout, trying to make it flow and sound somewhat legible. Realistically, have you already done a disservice to yourself by not fully exploring the unknown? Going with whatever ‘fits’ or comes to you quickly is not necessarily the best way to move forward.

Procrastination has typically been viewed as a bad thing, a ‘…self-regulatory failure’; something to avoid at all costs. ‘Scholars across the globe lecturing on the complete opposite of procrastination; how to ‘stay on top of your workload’ and ‘produce more in less amounts of time’, however, is this simply

leading into a capitalist ideal? Why is selfoptimisation such a goal? Why do we feel guilty when at rest? Why do we feel like we need to be working ourselves to the bone all the time? Are you asking yourself if there is another option that can allow for a better use of my time?

‘I believe procrastination is inherently a good thing; set aside for only the great thinkers of the world; the innovators. Using every last second up to a deadline is an efficient use of time. Having a question in my mind over the span of months before the deadline allows me to, again, mull. I could be driving to work and mindlessly singing along with whatever abhorrent Top 40 song is on the radio, but all that time I am constantly thinking about potential answers to the question at hand. I am generating and fusing potential options together to create a well-informed and educated answer. I may be physically writing the thing that is due mere minutes before the deadline, but I have already formed the response/s in my head throughout the last few weeks. It is at this point that my guilt started to diminish. Organisation and procrastination do not have to be incongruent. If I procrastinate, does it not mean I am disorganised? The answer is simply, no. My mind is organised – I am aware of every single deadline, my workspaces are tidy, my schedule is tightly structured. Procrastination has led to mental organisation where my thoughts are able to flow freely.

I am completely set in my ways. I have tried and tried to amend my habits for ones that are consistently fed to me; those ‘proved to work’ and studied by professionals. With 24 years of education under my belt, I have learned that I can type out a 3,000-word assessment in 7 hours with FULL AGLC4 referencing (does anyone else find AGLC4 referencing difficult?!). Could I have done this with less stress? Probably. Could I have completed work for deadlines earlier? Sure! If we all thought and completed tasks the same way, would we not live in a super boring world? Creativity and innovation exist for a reason! Taking a beat and just giving yourself the time to mull can be the idea-generating process we need to create something impactful.

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Our business model is different to other firms. We offer our graduates the opportunity to get hands-on experience, working on market leading legal work in a down-to-earth environment where people thrive.