The Brief Edition 1 2015

Macquarie University Law Society magazine Edition 1, 2015 (Volume 21)

Edition 1, 2015 | 1

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Cover artwork Thank-you to the Macquarie University Art Gallery for assisting 'The Brief' in finding a fitting image for this edition - the art gallery is located on campus at E11A on the ground floor - for any students interested in keeping up to date with their amazing exhibitions please email arts.events@mq.edu.au.

David Boyd (1924-2011) Judge c.1975 oil on board Photography Effy Alexakis, Photowrite ŠDavid Boyd/Licensed by Viscopy, 2015 Macquarie University Art Collection

CONTENTS

- - - - - - - - - - - - - - MORE FEATURES - - - - - - - - - - - - - -

- - - - - - - - - - - - - - - - - - BAIL LAWS - - - - - - - - - - - - - - - - - -

24 Making Australia a Surveillance State Dusan Djukic

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Necessary Reform of Bail Laws David Yao Innocent Until Proven Guilty Kathrine Lam

20 Intellectual Property and Tobacco Legislation in Australia Blake Sherry

- - - - - - - - - - - - - - - - - ADDITIONALS - - - - - - - - - - - - - - - - -

- - - - - - - - - - - - - - - ANTI-PIRACY LAWS - - - - - - - - - - - - - - -

18 Social Justice Corner: Terrorism and the Rule of Law Sam Bodell

12 Debate for Stricter Anti-Piracy Laws Jade Hannaford

19 Interview with Ms Jane Hunt, CEO of Adopt Change

15 Anti-Piracy Laws Undermine Privacy Eda Ince & Cassie Puah

28 Avenues of Your Law Degree: Erica Rees 30 Under the Radar Sevanne McGarity Edition 1, 2015 | 3

Volume 21 Edition 1, March 2015

EDITOR Patrick Barkachi

Editor’s Welcome

DESIGNER Nathan Li SUB EDITORS Lisa Barca, Natalie Morton, Elyse O’sullivan, Nicholas Owczarek, Tylie-Anne Guldemond, Ali Hookmani, Hannah Bell, Lucy Wu, Blake Sherry, Sahana Nava CONTRIBUTORS Blake Sherry, Dusan Djukic, Jade Hannaford, Eda Ince, Megan McKenna, David Yao, Sam Bodell, Peter Zivkovic, Sevanne McGarity, Cassie Puah, Katharine Lam, Paulina Sukari EDITORIAL REVIEW Angela Voerman Manager, Student Engagement Emma Grimley Director (Publications), Macquarie University Law Society IMAGE CREDITS Macquarie University Art Gallery and Shutterstock unless otherwise specified.

THE BRIEF ONLINE The Brief's editions and online content can be found at http:// muls.org/brief/ or through our Facebook page.

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.

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Strength lies in differences, not in similarities, this sentiment is what we have built Edition 1 around. The theme of debate and diversity of opinion will resonate throughout each piece.

It is important that we, as future representatives of the law, take seriously, those ideas that diverge from our own.

This allows us to embrace diversity and independence when advocating our opinions.

In this edition we included several debate features.

Our writers took up the challenge of writing from one perspective on a pertinent topic. Each article is well written and presents strong reasoning, regardless of whether the writers personally agreed with the argument they were making. This type of objectivity in approaching a subject matter is admirable.

This edition also sees the introduction of new segments such as ‘Under the Radar’ and ‘Avenues of Your Degree’.

The former shines a light on legal issues that aren’t usually covered by news sources. The latter brings you a Q&A with a law professional, giving you an idea of how to progress with your degree. These segments are accompanied by the continuation of the Social Justice Corner, which includes an audio recorded Q&A with Ms. Jane Hunt, the CEO of Adopt Change.

Throughout 2015, The Brief’s hardworking team will place greater focus on our online presence. ‘The Brief Online will be active throughout the year, providing you with a consistent stream of content related to your degree.

I look forward to the next 2 editions of 2015. A huge thank-you to everyone who helped create edition 1 and thank-you to our readers for choosing ‘The Brief’. I hope you enjoy this edition as much as I did.

Patrick Barkachi | Brief Editor

President’s Welcome

What to d r a w r o f k loo in 2015 S L U M h t i w

Members of MULS, Welcome to 2015, the 40th year of MULS. For forty years, MULS has offered its members supportive Career Events, stimulating Competitions, picture perfect Publications, diverse Social Justice Initiatives and entertaining Socials. As a result of these consistently fantastic initiatives, MULS was deservedly named Macquarie University’s Student Society of the year in 2014.

With this edition of The Brief, we strive into 2015 strengthened by this successful past and committed to our promising future.

Proudly, we continue to offer those initiatives which have made MULS what the MULS Constitution says we were designed to be; the provider of inclusive intellectual, social and vocational exchanges between our members. Equally firm is our commitment to continuing our success and overcoming our challenges in 2015 and beyond, always endeavouring ahead into the new chapters of our University experience together as a team.

This commitment, is to all. All our members, whether you’re an undergraduate or JD student, a first or fifth year, an internal or external studier, or, a South Sydney Rabbitohs supporter like me, have great potential to succeed at Macquarie University and beyond. From whatever background you stem and to wherever your goals may take you, we are committed to making you feel at home at University and uniting with you in your journey towards reaching your potential.

It is for this reason that I hope you join in with this year’s MULS initiatives. Keep an eye out for social sports and competitions registrations, First Year Law Camp, Careers and Social events, and much, much more. Allowing you to develop lifelong friendships while encouraging you to perfect a wide range of skills, these initiatives will undoubtedly enrich your University experience.

Without our sponsor’s support these great initiatives would not be possible. I encourage you to take a minute to check out their websites, engage in their services and support them as they do us.

Enjoy this edition of The Brief, and have a magnificent semester, Tim Grellman | President

JUNIOR MOOTING: Registration open 24 Feb - 1 March. Meet great people and gain valuable experience, register your team now.

SOCIAL SPORT: Registration open now, email sports@muls.org.

Get fit and compete in a lighthearted social sports competition with your classmates.

LAW CAMP: 20-22 March, a must for all law school starters, make great friends you will keep for the rest of your degree.

SOS DRINKS: Early April, stay tuned. Relax and have a drink with fellow law students to kick off the semester.

MULS GALA DAY: 3 May. Compete against law societies from across NSW to prove again that Macquarie Law reigns supreme.

LAW CRUISE: 8 May – One of the best parties you will attend in 2015. Party on a boat with a fun bunch of like-minded people.

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-----------WHAT'S NEW IN THE LAW? ------------

POLICE DRONE USE POSES IMPORTANT LEGAL QUESTIONS As police increasingly use drone aircrafts, which are unmanned and may be operated from a distance, challenging questions are posed for legislators and the courts. Should drones only be used in emergency situations or as a general tool of law enforcement? How long should the police retain the recordings? Under what circumstances is surveillance acceptable? When considering the use of drones, either to assist in emergency situations, as a means of surveillance or as a ‘crimefighting’ tool, one must weigh any benefits gained from these machines against the people’s right to privacy.

CUSTOMS STAFF TO BE ARMED AT AIRPORTS

NEW PUSH TO IMPOSE GST ON ONLINE PURCHASES

‘BIKIE LAWS’ CHALLENGED IN THE HIGH COURT

The Minister for Immigration and Border Protection has announced that from 2015, Customs and Border Protection Service officers at Australian airports will be permitted to carry personal defensive equipment, including firearms. This move is a direct result of Immigration Minister Peter Dutton’s portfolio commitment to crackdown on crime gangs and drug traffickers in Australia.

Minister Dutton deems the move as necessary to protect the public from the new and emerging threats that Australia faces at its border.

All armed officers will need to be certified in appropriate use of force training. Armed Customs and Border Protection Service officers will only be permitted to use their firearms for defence from physical attack, or when managing people who are physically non-compliant.

The arming of Customs and Border Protection Service officers is part of the establishment of the Australian Border Force. From 1 July 2015.

There has been renewed political movement towards imposing GST on Australian online purchases.

Currently, online purchases worth less than $1000 are not subject to the 10% GST. The push to change the taxation policy has emerged from two sources. First, the Organisation for Economic Co-operation and Development (OECD) released a paper in December 2014 from a forum where Australia was present, outlining the OECD’s proposal foreign suppliers would pay sale tax on online goods bought by local consumers. The main consequence of this proposal is that suppliers of digital products, namely Amazon, Google and Apple are likely to comply with these regulations through imposing a flat tax, meaning Australians would have to pay GST for digital music, books and games.

This digital tax has recently been adopted in Europe.

Whether Australia chooses to impose GST on online purchases is an ongoing issue which will hopefully be resolved once the 2015 White Paper is released.

The Crimes (Criminal Organisations Control) Act 2012 (NSW) was enacted to disrupt and restrict violence involving biker gangs and criminal organisations across the state.

The laws have been challenged in the High Court in Tajjour, Hawthorne and Foster v NSW [2014] HCA 35. It was suggested that the constitution implies that citizens have the right to associate freely, and that these laws were incompatible with this right. It was also argued that Australia’s international obligations were at odds with these laws.

In October 2014, the High Court rejected the challenge, with a majority of six out of seven, finding that an implied right to freedom of association is not part of the constitution, and that the laws are a suitable measure targeted to reduce crime.

Robert French, Chief Justice of the High Court, was of the opinion that the laws were not compatible with Australia’s political system.

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Necessary Reform of Bail Laws:

For our Safety  David Yao

T

he Martin Place Siege on 15-16 December 2014 was a despicable criminal act where 18 Australians – ten customers and eight employees – going about their daily lives were taken hostage by a radical Islamist inside the Lindt Chocolate Café in Martin Place in Sydney’s Central Business District.

Two members of our community, Tori Johnson and Katrina Dawson, lost their lives in the tragedy. While we should never forget the terrible events of that day, we must also remember that the perpetrator, Man Haron Monis, was not a first-time criminal but a serial offender who had over 40 charges of sexual assault involving seven victims. He was also charged with being an accessory before and after the fact to the murder of his

ex-partner Noleen Hayson Pal. Monis’ wife Amirah Droudis was charged with murdering Pal by stabbing her 18 times and setting her ablaze in her home on 21 April 2013. Both Monis and Droudis were out on bail since December 2013 – Monis charged with inciting Droudis to murder Pal and harbouring her after the murder, while Droudis was on bail for the charge of murder.

It is astounding that an accused charged with murder and another charged with multiple sexual assaults and being an accessory to murder were not detained till trial but set free to live within our community. Under the Bail Act 2013 (NSW), an individual charged with a minor summary offence will automatically be granted bail. However, a court will apply an ‘Unacceptable Risk Test’ to determine

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>> Necessary Reform of Bail Laws

whether the accused is an unacceptable of a child, firearm use and drug trafficking – risk. If the accused has committed a serious to prove that their detention is not justified. offence; is a danger to victims or members Victoria and Queensland have already of the community; or has tampered with introduced ‘Show Cause’ requirements in evidence; then the court will deny bail their bail legislation. If an individual can unless the accused has a good background; prove that being held in remand is counterspecial needs; or the prosecution’s case is productive to their own situation, then the weak. At the time of Monis’ and Droudis’ court will apply the ‘Unacceptable Risk Test’ bail application, Magistrate William Pierce to establish whether the accused poses any claimed that the case was “weak” and risk to the community if released on bail. granted them both bail in spite of Monis’ Brad Hazzard advocated that the views of extensive criminal history the victims and their family and the severity of the crime members must be considered “It is astounding of murder. when assessing the risk of that an accused What we must accept is permitting bail for an accused. charged with that in some cases there are This new requirement, had no mitigating factors (such it been implemented prior to murder and as family background or December 2014, would have another charged socio-economic factors) to a meant that Monis and his wife with multiple serious offence committed by Droudis would have to prove sexual assaults, certain individuals. In these their detention was unsuitable. situations the offender cannot With Monis’ extensive criminal as well as, being be rehabilitated and the court record, the gruesome nature of an accessory to needs to punish them in order Pal’s murder and the absence murder were not to deliver justice and to deter of any mitigating factors, the future offenders. Monis was pair would not have been detained until one such individual who had granted bail by any magistrate. trial, but set free no redeeming features, but The ‘S h o w Ca u s e ’ to live within our rather had a staggeringly long requirement and the communities.” criminal background including ‘Unacceptable Risk Test’ are violent crime and fraud in Iran two safeguards that are vital and hate mail and sexual assault in Australia. in protecting our community, and in particular The failure of the court to properly assess the most vulnerable, from the dangerous the potential danger of this individual under presence of someone who poses both a the ‘Unacceptable Risk Test’ and granting physical and psychological danger. In the him bail led to the tragedy in Martin Place. course of delivering justice, there must be a Droudis’ bail was finally revoked after Monis balance between the community, victims and had carried out the Martin Place Siege, over accused rights, but we must not forget that concerns expressed by the New South Wales with every crime, there is both an offender Attorney General, Brad Hazzard. and a victim. It is important to not focus only The New South Wales Premier, Mike on the accused’s rights while denying safety Baird, announced the introduction of new bail to victims and to the wider community. laws to ensure the safety of victims of crime Should we stand by passively and react and the community in light of recent events. on the aftermath of another tragedy that These new laws have come into effect as befalls us? Or will the law be proactive to of 28 January 2015. The Bail Amendment prevent terrible crimes from occurring again Bill 2014 (NSW) introduces a ‘Show Cause’ by maintaining tighter bail laws? The latter is requirement, which requires a person accused clearly the preferable option, and the new bail of a serious indictable offence – including laws enacted by the NSW Government will serious personal violence, the sexual assault hopefully deliver just that.

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Innocent until Proven Guilty:

NSW Bail Laws should uphold fundamental legal rights, not pander to the agenda of Politicians and Public emotion.  Katharine Lam

T

he reflexive reaction to any type of tragedy is to demand legislative change. Fingers are pointed, sensationalist media fuels public outrage and politicians are quick to promise amendments to Acts with more regard to their political standing than on public policy

grounds. The ‘Sydney Siege’ that occurred on 15-16 December 2014 is a tragedy that shook our nation. Despite its unfortunate result, this isolated circumstance should not dictate the outcomes of a piece of legislation that concerns the fundamental rights of Australians.

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>> Innocent Until Proved Guilty

Bail legislation in NSW has long been considered an imprecise area of law. Bail laws in NSW have historically demonstrated that they are highly susceptible to popular public sentiment and have been revised and altered so frequently that one of the fundamental principles of the common law criminal justice system ‘ ‘innocent before proven guilty’ has been compromised.

Like many situations involving highly publicized murders and high profile criminal cases, the general consensus is that the law is ‘too soft’ and needs to be tightened in order to prevent such incidents from reoccurring.

In light of the ‘Siege’, the legislation that has been called into question is the Bail Act 2013 (NSW). The question on everyone’s mind is, how was Man Haron Monis, an individual who was accused of being an accomplice to his wife’s murder as well as being charged with over 40 sexual assault cases, able to slip through the cracks? Well the story goes something like this.

The Monis incident followed a spate of recent changes made to preceding bail laws.

Previous to the 2013 Act, bail laws in NSW were based on a complex and restrictive scheme of ‘presumptions, exceptions and exceptional circumstances’. The Bail Act 1978 (NSW) had undergone around 80 amendments since its inception, and had resulted in presumptions being made against people charged with specific offences. This fragmentation resulted in an unwieldy and overly complex instrument that often resulted in anomalous and unjust outcomes. The change in the Bail Act 2013 (NSW), removed these presumptions and instead proposed an ‘unacceptable risk test.’

Ignoring the Law Reform Commission’s recommendation of a uniform presumption in favour of release, the 2013 test was nonetheless an improvement on the old system of bail.

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Under the unacceptable risk test, the right of the accused to a presumption of innocence was balanced against the risk of them posing an unacceptable risk to the community.

Enacted on the 20th of May 2013, this was the law when bail was granted to the lone gunman who held staff and patrons of the Lindt Café hostage. As future members of a profession that seeks justice, we don’t like when the law is not just. However despite opinions that suggest otherwise, the decision of the Magistrate to grant bail to Man on the facts presented at that time, were reasonable to say the least. The Magistrate considered the weakness of the prosecution’s case and imposed strict bail conditions on Monis, including the provision that he had to report daily to a police station and the requirement to surrender his passport among other onerous terms. The sexual assault charges were from 11 years ago and although deplorable as his actions were in sending offensive letters to soldiers, it is not illegal to be offensive. While this may not be enough the quell the staunch voices that say that such an unforgivable individual should not have been granted bail, it is prudent to be reminded that hindsight while illuminating, can only be applied retrospectively. As unfortunate as the events in the Lindt Café were, Judges are unable to foresee the future, and can only make a determination on the facts at hand, at that time. To do otherwise would be contrary to the fundamental legal principle of innocent until proven guilty.

Remarkably, only a month after the 2013 bail laws were implemented, the Baird and O’Farrel Government conducted a review of the 2013 laws and found them to be unacceptable. The Hatzistergos report disagreed with the two-step risk test and instead proposed that the presumption

“Judges are unable to foresee the future, and can only to make a determination based on the facts at hand.

To do otherwise would be contrary to the fundamental legal principle, innocent until proven guilty.”

in favour of bail should be reversed for specific offences and not considered on a case-by-case basis, marking a return to the pre2013 presumption based approach. While not ideal, the two-step unacceptable risk test was a sure improvement on the old system of bail law while the presumption-based approach is a definite step backwards in terms of civil liberty and bail effectiveness. Strongly influenced around media coverage of the granting of bail to the infamous Mahmoud Hawi and Hasan Ibrahim, the new changes are a response to fears that the 2013 bail laws allow for the release of dangerous criminals into the community.

This terror was then reinforced by the ‘Siege’. Although this is understandable, the proposed changes fail to take into account the wider picture and undo the work of the 2013 reforms, paving for the return of the prior bail law ambiguity.

The presumption against bail can result in the denial of the accused rights and the effects of an ineffective bail system are well documented. As well as being an immense drain on taxpayer’s dollars, individuals on remand face incredible mental and physical danger while awaiting trial including the potential to be exposed to risk factors such as prison violence, sexual assault, self-injury and suicide.

Hurriedly approved by the Attorney General, the latest reforms have been criticised as being an assault on fundamental rights, as individuals charged with offences, such as sexual assault against children or the use of a firearm, will not be given the presumption of innocence but will rather

have the responsibility of proving why their detention is not justified. Under the presumption approach, a person who kills in selfdefence is accorded the same presumption against bail as a person who is a multiple and violent reoffender. The judgment is made on the basis of the type of offence rather than on the specific situation. Furthermore the concern with this structure is that it does not account for the fact that almost one half of individuals charged with offences are ultimately acquitted. For an individual to be stripped from their basic human right of liberty, especially for a crime in which they did not commit, is unacceptable.

While public safety is a legitimate concern, it should not be the prerogative of politicians to capitalize on the fears of the community to generate party sympathy over the rule of law. Although the Monis incident resulted in the tragic loss of two innocent lives, this one-off incident and public emotion should not cloud the legislative framework that enshrines the common law criminal principle of the presumption of innocence. The most recent amendments to the Bail Act certainly represent a misstep in the proposed future functioning of the bail system and pose a threat to the right to freedom. Even if tougher bail laws succeed in keeping the most wanton criminals away from the community it is important to keep in mind that these blanket laws will now apply to everyone, including those that are innocent, regardless of the individual facts of their case. Encroaching on the fundamental legal presumption of innocent until proven guilty, that upholds our system, is extremely inappropriate.

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The best things in life are Debate for Stricter Anti-Piracy Laws  Jade Hannaford

T

he best things in life are free. But somebody still has to pay for them.

In regards to television, music and films, it would seem that it is less and less the consumers who are paying but more and more the artists who are losing out. If everybody is downloading everything through the internet for free, then who is paying the writers, producers, directors and other creators of the content?

Such an argument brings to mind the Motion Picture Association of America’s “You wouldn’t steal a car” advertisement campaign against piracy. Of course, to the consumer, stealing a car or a handbag is wildly different to streaming an episode of Game of Thrones.

This is because the effects of stealing property, such as a handbag, are immediate.

The owner of the handbag instantaneously, and tangibly, loses not only the bag but the $100 that was in it.

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The tangible effects of downloading Beyoncé’s self-titled album for free, for example, are entirely different. The album barely costs $20 on iTunes, and Beyoncé herself has a net worth of $450 million, so it is unlikely that she would lament the loss of $20. Furthermore, downloading her album doesn’t stop her selling other copies of it or making money from the album in other ways, through merchandise or concerts.

Consequently, illegally downloading media has become almost commonplace.

According to TorrentFreak, 24 hours after the season four Game of Thrones finale aired it was downloaded at least 1.5 million times. In Australia alone, the two top websites for illegally downloading content – ‘Pirate Bay’ and ‘Kickass Torrent’ – were visited by 2.8 million Australians in May 2014, as reported by Nielsen. Evidently, to most Australians, downloading media

content for free doesn’t really seem like much of a crime.

To be fair, this is actually a sentiment shared by the current legislation surrounding online piracy. Downloading Frozen through Kickass Torrent for your daughter would not actually leave you with a gaol sentence. Pursuant to the Australian Copyright Act 1968 (Cth), downloading media only becomes a criminal offence when it is being done on a commercial scale.

Otherwise, if it is being done for personal use, the only opportunity for redress would be if the copyright holder sues the downloader.

The downloader may have to pay both compensatory and punitive damages – and there is no maximum penalty set. But no such trial has ever been held in Australia.

So, why not just download everything for free?

Because, there “should be an inherent value placed on art”. This is what Taylor Swift said after her record label Big Machine Records removed all of her songs from the free web streaming service Spotify, in November 2014. Although Swift’s recording label did receive some revenue from Spotify ($US 500 000 in 2014), it was an amount deemed to be below the worth of her songs.

Imagine what they would think about all the copies of her albums which were pirated and from which they received absolutely nothing for.

It is because of the artists – emerging and established – that people should think twice about downloading their content for free, and the government should either make it harder for people to access downloading websites or increase the penalties for doing so. It seems that there has been a shift on focus from what an artist deserves to what a consumer prefers. Surely artists are providing a good or service like any other, and deserve to be paid for it. Everyday Australians are depriving artists of revenue, simply because it is easier and cheaper than buying their media content the legal way.

This sentiment is clearly shared by the Abbott government. In December 2014, it was announced that they will attempt to create an industry code for internet service providers (ISPs) and media industries to tackle piracy. This would involve sending direct warnings to those who are pirating content and forcing the ISPs to assist the media industries to sue those who are pirating content.

This is an ambitious goal for the Abbott government, considering the difficulty in creating a code which all industries and the public would agree with. If this policy was

“Surely artists are providing a good or service like any other, and deserve to be paid for it.”

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>> Debate for Stricter Anti-Piracy Laws

combined with increasing internet services to provide music, television and film in an easy and inexpensive manner, this policy could spell the end for internet piracy. Indeed, with internet services such as Stan and Quickflix – and in March of this year, Netflix – being introduced in Australia, it seems that Australians do have options other than piracy to watch the latest season of Downton Abbey.

The art industry in Australia, and similar industries across the world, deserve to be paid for creating music, film and television.

Without this revenue they cannot be expected to thrive. In 2011, the Australian Federation Against Copyright Theft estimated that over a 12 month period $1.37 billion was missing from the Australian economy due to internet piracy.

They also estimated that over the same 12 months, about 6 000 jobs were also lost because of piracy. To put $1.37 billion into perspective, the costly 2013 Baz Luhrmann film The Great Gatsby cost $US105 million to create and made $US351 million in the box office. Australia could have made almost 10 extravagant films with the money that was lost by piracy in 2011.

If the impact upon art industries and the economy as a whole of piracy is not convincing, then let’s use the example of Swift’s 2014 album 1989. Although this album went platinum and sold one million copies, it was the only album to do so in 2014. According to Nielsen, there was a 14% drop in album sales over the first half of 2014. 1989 was insanely popular, but there has been

speculation that it may be the last platinum album ever.

But if it hadn’t been as successful then who would have suffered? Primarily, Swift herself would, as she would lose revenue from album sales and royalties. Her recording company, the songwriters, music composers, those who played instruments for the album, the album’s producers and mixers would also be missing a chunk of their revenue had the album actually been paid for by all fans.

Furthermore, the retail stores selling the album, recording studios and those involved in the promotion of the album would also have suffered.

Even the tours – promoters, back-up singers, members of the band, and the concert venue itself – would experience disadvantages. This is because the legitimate sales of the album act as the indication for booking tours or live gigs, but with the high amount of piracy the legitimate sales figures may underrepresent the amount of people who have a (legal or illegal) copy, thus leading to an under supply of concerts or other live performances.

Of course, free unlimited music and films, without any legal or moral consequences, is a consumer’s dream. However, that dream has not become a reality and neither should it.

With the recent shutdown of Pirate Bay and the government’s recent announcements to make piracy laws stricter, this dream has been cast even further out of reach. ‘Cause darling, this dream is – for the creators of music, film and television – a nightmare.

“Everyday Australians are depriving artists of revenue, simply because it is easier and cheaper than buying their media content the legal.”

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Anti-Piracy Undermine Privacy© Recent government proposals attempt to regulate against online piracy, these reforms are necessary to incentivise and develop art within Australia

 Eda Ince & Cassie Puah

F

or years, the creative industries have been whistling the same tune: online piracy stifles innovation and undermines the existing market structure. The problem is that the explosion of new digital platforms and technologies has significantly transformed the traditional media landscape. Anyone can now become a creator. Legislators, however, have found it difficult to keep pace with the digital age, constantly privileging the rights of copyright owners over these creators. Why should this be the case?

The “digital piracy” in concern today involves the unauthorised copying and distribution of proprietary content (music, movies, books, software) often at belowmarket prices or without payment. This has eliminated the need to physically own content. The piracy “problem” is mainly one of convenience and pricing.

The Australian government has taken a two-fold approach to combating piracy; by increasing the chain of responsibility for potential infringement as well as filtering sites

that facilitate piratical actions the government hopes to curtail the expansion of piracy.

However, in practice the effects of these reforms may not be as intended. Like the “war on drugs”, the anti-piracy crusade deals superficially with issues that have deeper roots. Short of shutting off the internet in its entirety, it is destined to remain ineffective.

The notion that people will only produce creative works when they can claim exclusive rights ignores two crucial points – one, that people will naturally continue to create stories, music and movies simply because they love doing so and two, that there are a growing number of artists that depend on sharing and co-creation and easy access to creative works. There is no indication that these reforms will actually prevent piracy or that they will incentivise artists to create content. It is, in fact, the opposite.

WHAT’S BEEN HAPPENING? The last year or so came with two revelations: Australians are driving the piracy trend, and, in response, the Edition 1, 2015 | 15

>> Anti-Piracy Laws Undermine Piracy

government is embarking on yet another block access to websites that have a “dominant politically inspired scheme. purpose” of infringing copyright. This raises The first proposal in the government’s issues of censorship. If Australia were to Online Copyright Infringement Discussion embrace this regime, it would be a major Paper is to amend s 36 and 101 of the setback for global online freedom of expression.

Copyright Act 1968, extending liability for With no guiding principles, what constitutes copyright infringement. This would force “infringing content” is left up to the discretion of internet service providers (ISPs) to monitor ISPs. What’s clear is that for unknown artists, consumers for potential copyright infringement, the introduction of these reforms may be the and hand over subscriber details to copyright very thing that stunts creativity. owners. A graduated “three strike” policy would see infringers issued with up to three THE NEED FOR AN OPEN INTERNET warnings before a reduction in bandwidth or While applying a filter to the internet would a termination of connection. This calls into certainly minimise the occurrence of digital question the notion of user privacy. piracy, it would just as certainly open the The proposals will also cause major door for violations of the freedom of opinion, uncertainty in copyright law. The extension expression and information. It is hard not of authorisation liability would negate the to imagine that somewhere in the crossfire, strong precedent set in legitimate websites, along Roadshow Films Pty Ltd v with the resources contained “Legislators, have iiNet: that service providers within the public domain, are only responsible for will be mistakenly blocked. found it difficult the conduct of third parties This is just one more step to keep pace when they have some towards internet and industry with the digital control over their actions. monopolies. age, constantly Requiring service providers The public domain is to essentially “police” the a repository of works not privileging the rights internet is dangerous. protected by copyright, of copyright owners which can be freely used for There is no proper judicial over these creators” educational, research and process to ensure that the account holder is the actual even commercial purposes. infringer. It is implausible to think that ISPs In order for artists to be able to continue to can pinpoint the direct individual that has create, it is important that they are able to infringed copyright. This places consumers draw inspiration and ideas from these public at serious risk of being unfairly punished. works. It is true that most of the works today The power to suppress one’s internet are mere twists on existing ideas. If access access is controversial for obvious reasons. to these works were in some way restricted, This is especially true as there are no checks or it would surely result in restricted creativity. balances restricting the activation of this power.

While there is no doubt that maintaining The burden falls on consumers to proactively a copyright system is necessary, over the secure their internet connection and ISPs to years the privileges afforded to creators and fund and establish a database from which investors have expanded disproportionately. they can track repeat infringers. This includes These plans to utilise filtering methods service providers such as libraries, schools to stem the tide of piracy will ultimately fail and universities. It would require all ISPs to for one simple reason: people will continue work in consort, otherwise “smart” consumers to invent methods of circumventing these would simply utilise alternative ISPs in order to measures. For example, the use of Virtual circumvent these measures.

Private Networks (VPNs) is a common The government wishes to also extend practice to sidestep blocked websites; as are injunctive power to ISPs, requiring them to proxies, tor, SSH tunnels – and the list could 16 | The Brief

go on and on. The only way to minimise piracy is to provide Australians with alternatives that are easy to access and are affordable.

WHAT’S REALLY DRIVING THESE CHANGES? What would happen in a world without copyright?

Ask any lawyer or politician and they’ll tell you one word: chaos. This isn’t because without the incentive of copyright people would cease to create -it is because without copyright the current industry giants would face extinction. The fast-paced development of technology has challenged the very notion of capitalism in the mainstream entertainment industry. Rather than adapt their business models to curb online piracy, companies have opted to lobby for stronger enforcement. In a sense, digital piracy reveals the inability of capitalism to cope with modern technology.

The proposal does nothing to address the actual issue at hand which is Australians being unfairly treated by the copyright industries. In 2013, a parliamentary inquiry into IT pricing found that for electronic goods, Australians were sometimes paying 50 per cent more than the people in the UK or US. Capitalist states are adamantly steering away from developing the internet and utilizing its vast potential. Instead, they would prefer to engage in a campaign that suppresses internet innovation. File sharing makes it possible to distribute culture very easily at a minimal cost.

A recent report co-written by academic Dr. Jordi McKenzie demonstrated that the industry claims of excessive revenue drainage at the hands of pirates has been greatly exaggerated.

If one was able to lower the price of legitimately acquired content, it may be able to compete with the economics of piracy.

Although Australia’s protection of rights is very limited, the country is still a key player of the Universal Declaration of Human Rights (1948), and thus has a reputation to uphold in the international community.

Implementing a regulatory enforcement will not only restrict a user’s ability to freely access content without governmental restraints, but raises the question of user privacy (or lack thereof). The proposals issued by the government force ISPs to monitor users’ web activity for copyright infringement, which in turn sees our privacy potentially being violated.

CONCLUSION Pulling the warm blanket of civil liberties off consumers and wrapping it around media conglomerates through regulatory enforcements does not develop art within Australia. It merely aims to privilege the rights of copyright owners over creators.

The Australian government’s two-fold approach to tackling piracy has failed to recognize the ever-evolving environment that exists on the internet. By the time regulations are put in place to force ISPs to monitor users’ web activity for potential copyright infringement, or to filter sites that contain infringing content, far more infringing content will become available.

The anti-piracy laws proposed make no real effort to protect the rights that creators have over their own content, but rather act to privilege copyright owners and ensure that financial damage is not inflicted upon media conglomerates. Instead of implementing such a restrictive regime, the government should push towards providing services that are easy to access and affordable, which will ultimately do a better job at deterring individuals from piracy. Legislators will need to ensure that they are keeping pace with the information age, instead of proposing restrictive laws which only really succeed in imposing upon civil liberties.

“The piracy ‘problem’ is mainly one of convenience and pricing”

AN IMPOSITION UPON CIVIL LIBERTIES Such a restrictive regime will undeniably have negative repercussions for civil liberties, particularly the freedom of expression.

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S st o ic c e i C a or l n

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Terrorism and the Rule of Law  Sam Bodell

“One person’s freedom fighter is another person’s terrorist.”

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lthough this statement was made five years ago, it continues to represent the polarizing views of terrorism existing today. How we perceive and approach terrorism is important since the legal system is comprised of a myriad of political, social and economical rules and agendas. However, there is arguably one rule that trumps them all. That is the rule of law. This principle sets a standard which states that no person is above the law. Although society may not always behave in a way that is representative of this, the rule of law represents our idealistic and epitomized standard of governance.

The rule of law needs to be upheld.. That is because the rule of law exists as a standard for other legal principles. These principles are our civil liberties, our freedoms as a democracy and our human rights.

Understandably you may 18 | The Brief

wonder what the rule of law and these principles have to do with terrorism and the effect it would have on freedom fighters?

Legal definitions of terrorism are often politically tainted, sensitive and ultimately will arrive at different approaches and solutions. The Australian definition of terrorism can be defined in Australia’s Criminal Code. Terrorism is defined as the action or threat made with the intention of advancing a political, religious or ideological cause.

This definition includes the intention to coerce, influence or intimidate the government, commonwealth or the general public. Apart from this, academics argue that that there are two other ways the law can choose to define terrorism. The first is the general approach, which is broad and focuses on the intention and motivation of the act. An example of the general approach would be the international definition of

terrorism which states that terrorism includes “criminal acts directed against a state or intended to create a state of terror in the minds of particular persons or group of persons or the general public.” This is different to the second approach, the specific approach, which would only classify a few acts under terrorism. These include hijacking and the taking of hostages for one’s own political agenda. Both approaches come with their own problems, especially in comparison to Australia’s definition of terrorism.

The main criticism with the specific approach is that it’s under inclusive, enabling states to use their own politicized views and powers in order to decide how to handle what is not strictly expressed or included in our legislation. Meanwhile, the general approach’s broad scope could mean acts which are not specifically related to terrorism, for example journalists exercising their

freedom of speech, could be prosecuted under the umbrella term of terrorism.

Overall, academics such as Locke, favor the specific approach on the grounds that the powers granted to states should be discretionary and not reactionary. The specific definition upholds the rule of law as it preserves civil liberties and human freedom whereas brash ad hoc decisions made under the general approach could breach the rule of law and the democratic process behind our governance.

Conclusively, the relationship between the government, the rule of law and definitions between terrorism and freedom fighter need to be made paramount.

Interview with Ms. Jane Hunt CEO of Adopt Change

The Brief speaks with Ms. Jane Hunt, CEO of Adopt Change, an organisation working towards the reform of adoption law within Australia.

Ms. Jane Hunt is the recipient of many awards highlighting her passion and dedication to social change, including the global ‘Schwab Foundation Social Entrepreneur Award’.

The interview delves into the downfalls of Australian adoption law, the necessary reform that Adopt Change advocates and Ms. Jane Hunt’s personal advice on pursuing successful social enterprise.

Visit http://www.adoptchange.org.au/ to learn more.

Please listen to the interview at http://muls. org/brief/.

Edition 1, 2015 | 19

Lights Out:

Intellectual Property and Tobacco Legislation in Australia  Blake Sherry

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t would not be so controversial to say that smoking tobacco kills. It is also an expensive habit, with an estimated $31.5 billion spent on tobacco each year in Australia alone. As the leading cause of preventable death in the world, it is costly in more than just economic terms.

Amidst the context of increasing regulationbeginning with prohibition on advertising, an increasingly regulatory framework that restricts tobacco consumption in public, as well as the imposition of mandatory health warning labels- Australia has gradually positioned itself at the forefront of the vanguard in the movement for restrictive tobacco legislation. Following the enactment of the Tobacco Plain Packaging Act 2011 (Cth) (‘the Act’), which requires compulsory plain packaging for all tobacco products, this single legislative instrument and overall Australian regulatory framework stands as the most aggressive legal restriction of tobacco in modern international history. The 20 | The Brief

case JT International SA v Commonwealth; British American Tobacco Australasia Ltd v Commonwealth (‘Plain Packaging Case’) [2012] was the first ever to challenge the legality of plain packaging laws.

The case was principally founded on the issue of whether the plain packaging legislation amounted to an effective acquisition of the tobacco companies’ intellectual property rights, and if so, whether such an acquisition was constitutionally permitted under s 51(xxxi). Representing a landmark in both national and international law with consequences for domestic precedent, intellectual property, and international trade relations, it is clear from this case that regulating Big Tobacco carries a myriad of implications.

The Act Against the backdrop of extensive tobacco regulation, the Plain Packaging Act operated in alignment with the World Health

and to decrease the smoking population in Australia, despite evidence challenging the estimated impact of the regulation on smoking rates. Notwithstanding the controversy surrounding this ‘draconian’ and ‘nanny state’ Bill, it was passed in December 2011 and came into full effect the following year. It was justified because it reinforced the government’s commitment to ‘not support the death of Australians’, and its unwavering fight to ‘ensure that our next generation lives in a safer, more healthy environment’.

The issue was apparently ‘as simple as that’, although as the Plain Packaging Case shows, this was far from the case.

Organization’s (WHO) Framework Convention on Tobacco Control (FCTC), adopting the recommendation of enforcing uniform packaging for all tobacco products. The objects of the Act sought to improve public health by discouraging people from starting or continuing smoking, and to prevent relapse rates by reducing the appeal of packages to consumers. This also served to increase the effectiveness of health warning labels and to minimize the ability of retail packaging to ‘mislead consumers’ about the harmful effects of tobacco. The result of these legislative requirements included compulsory health warnings covering 100% of the back and 70% of the front of cigarette packs, a uniform ‘drab dark brown color’, standardised font and text, and restrictions on the use of distinguishing marks.

The legislation was therefore enacted to reduce the desirability of smoking

The Challenge The tobacco companies argued that the proprietary right to use the space on cigarette packets and to feature their respective trademarks had been acquired by the Commonwealth through operation of the Act. The applicants focused on the benefits that the Commonwealth derived from use of the alleged private, commercial space on cigarette packaging to advertise public health warnings in lieu of the companies’ trademarks and contended that, in aiming to reduce instances of smoking rates, this was a conferral of a benefit to the Commonwealth.

The tobacco companies challenged the Act on two grounds.. The first was whether the Act amounted to an acquisition of property on terms other than on just terms in contravention of s 51(xxxi); and secondly, if the Act did constitute an acquisition within the meaning of s 51(xxxi), whether lack of goodwill rendered it constitutionally invalid on the basis that it confers legislative power on the judicial branch contrary to the doctrine of separation of powers.

The Commonwealth responded on three grounds. First, they rejected the construction of an intellectual property right made by Big Tobacco, arguing that no property had been ‘acquired’ under the Plain Packaging Act as the proprietary right amounted to an intangible right of exclusion. The right was a negative one in that it distinguishes property from competition, as opposed to a positive Edition 1, 2015 | 21

>> Intellectual Property and Tabacco Legislations in Australia

right of use. Secondly, the Commonwealth argued that no property had been acquired and no benefit obtained under the Act. .

Lastly, it was argued that the Act amounted only to a regulation and not an acquisition under s 51(xxxi) as the right was negative in nature and because the Commonwealth obtained no benefit, in which case it could not be called an ‘acquisition’ as such.

that the main issue was whether or not the regulation amounted to an ‘acquisition’ within the meaning of s 51(xxxi). The assessment of whether the law effectively resulted in a ‘taking’ of the tobacco companies’ property rights was not relevant. Based on this narrowly constructed question, the Case’s prevailing judicial statement can be seen as being firmly preoccupied with stringent legal interpretation of the Constitution, where the removal of trademarks amount to a ‘regulation’, rather than an acquisition or extinguishment, of the right to use those marks.

The Decision of the High Court The High Court held in favor of the Commonwealth, answering in the negative for the first ground of defence When the Smoke Fades and reserving judgment How has the law developed for the second. The “Representing in the aftermath of the Court ruled that the a landmark in Plain Packaging Case?

Act only regulated but It has been argued that did not acquire the both national and the Act’s plain packaging intellectual property international law with requirements are no rights of the tobacco consequences for different to other health companies, noting warning regulations, and that the legislation’s domestic precedent, are merely more restrictive requirement of warning intellectual property, conditions placed on labels on cigarette and international trade c o mme rc ia l t ra d e , packages, even ‘as relations, it is clear necessary because of extensive as those public interest and health required by the [Act], that regulating Big issues related to tobacco effects no acquisition Tobacco, carries big consumption.

Indeed, of property’. As such, implications.” the poison ‘Ratsac’ was the tobacco companies referred to extensively in retained the right to sell the Plain Packaging Case as an analogy to their products, albeit with ‘more stringent highlight the need for mandatory warning product and information standards’. labels to avoid accidental consumption of Justice Heydon dissented on the basis that poisonous products. the Act effectively sterilises the companies’ While the neutrality of the Commonwealth property rights, and that satisfaction of the has been challenged- most notably for acquisition test under s 51(xxxi) requires noticeable difference in placing a standard only to establish that the Commonwealth health warning and by deliberately choosing had obtained ‘some identifiable benefit or ‘an uncomfortable, unattractive color’ for its advantage relating to the ownership or use mandatory health warnings- larger issues of property’. His Honour concluded that the have also been raised. Given that the Plain deprivation of the tobacco companies’ common Packaging Case represents the first ever law and statutory intellectual property rights in example of litigating plain packaging laws, order to give way to‘new, related rights’ for the the possibility that other countries may follow Commonwealth to control tobacco advertising suit has been heralded as a dangerous and include health warnings therefore precedent for intellectual property rights. amounted to an acquisition.

Furthermore, opponents to plain packaging The dissenting opinion of Heydon J was legislation has argued that such laws ultimately rejected. Justice Kiefel explained 22 | The Brief

open the floodgate to... , functioning as a dangerous precedent that endorses the corrosion or even abolition of the intellectual property rights of other industries, such as alcohol and fast food, on the basis of protection of public interest.

This ‘slippery slope’ argument has been criticised as it is severely limited given the particular status of tobacco and its harm to the population. Proponents of plain packaging have pointed to the appropriate need to counterbalance property rights with public interest, focusing on the appropriate role of the law in regulating a product linked to the highest number of preventable deaths in the world. With all these competing values- property rights, the constitutional limits of sovereign power, and freedom versus regulation- it is paramount that regardless of one’s position in the smoking debate, attention should be directed at the mechanisms by which the Commonwealth seeks to achieve its end goal.

In particular, the soundly determined decision in the Plain Packaging Case with regards to intellectual property rights, as well as the noble goal of reducing tobaccorelated deaths, should not be accepted so easily without consideration as to the import of the overall reasoning in the case.

The Case has established an alarming precedent that rights can maintain a façade of existence while still being regulated to the brink of ineptitude.

As the international community awaits review of the impact of Australia’s plain packaging law on smoking rates, the heavy debate that continues to surround the contentious law as well as the uncertain implications from the decision in the Plain Packaging Case all indicate one thing: where there’s smoke, there’s fire.

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Edition 1, 2015 | 23

Metadata Retention Bill: Making Australia a Surveillance State Since 2015  Dusan Djukic

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re new-anti terrorism laws needed to stop horrific events like the Sydney siege? Metadata retention laws seem to be glorified as the solution to stop any future attacks on Australia. The purpose of national security laws, like metadata retention, is for a nation to defend itself and protect its citizens. These same laws however can infringe upon our civil liberties. Our very own Prime Minister, Tony Abbott, understands this very well as he comments that the delicate balance between freedom and security may have to shift. This article seeks to address the issue of metadata retention laws and whether they are necessary or an infringement on our freedom. It will analyse the recent Sydney siege, perpetrated by Man Haron Monis, and whether this awful tragedy could have been stopped by metadata retention.

The metadata retention Bill On the 5th of August 2014, the Government announced its intention to amend the Telecommunications (Interception and Access) Act 1979 (Cth). The new Bill is meant to combat the terrorism that is thought to be right at our very doorstep through 24 | The Brief

obtaining metadata. However, the definition of metadata is not so clear-cut as AttorneyGeneral George Brandis stutters and stumbles over providing a clear definition.

Prime Minister, Tony Abbott, described metadata as being not the content of the letter, but instead what is on the envelope.

What happens if this envelope is almost transparent, and people’s privacy is being taken away by proposed new laws that can not even be clearly defined?

Apart from the lack of definition within the Bill, there is a certain vagueness to it that catches the eye. The question to ask is whose metadata is to be retained? The answer is: everyone’s. Agencies will ask for everyone’s metadata to be collected, as it will lower the risk of missing a potential suspect. There is no problem in obtaining metadata via a warrant, but targeting everyone’s metadata without the issuing of a warrant is troubling.

This means that my 55 year-old mother who speaks very little English and spends her day’s researching cooking websites will have her metadata retained – there is something seriously wrong about this. The government is essentially treating everyone as potential criminals and taking our civil

“Targeting everyone’s metadata without the issuing of a warrant is troubling” liberties away while we sit back and agree that this is the right choice to stop terrorism.

The Senate Standing Committee for the Scrutiny of Bills commented on metadata retention as being a real risk to personal rights and liberties due to the insufficiently defined powers within the Bill. Just last year, the Queensland Police Service was being scrutinized for its attempt to discipline officers for having sexual relationships within the academy by gathering their call charge records. The Queensland Police Service has since apologized for their actions, but it goes to show how easy personal information can be exploited.

Furthermore, who is the bear the responsibility if metadata information is released illegally into the public sphere?

The Snowden cases make it clear that no information system can ever be completely secure, and obtaining everyone’s metadata leaves an even bigger target for potential hackers and criminal syndicates of the like.

The Australian Federal Police in a recent report indicated that they could not quantify how helpful metadata has been in operations and convictions alike. Even more worrying is the lack of clarity in discussing who has

access to our metadata. George Brandis, with his own unchallenged authority, can release metadata to various bodies such as local councils, gambling authorities and even universities.

The metadata retention Bill is following a very well-known philosophical approach known as Utilitarianism. The approach presents a thought experiment based on a trolley problem where there are five people tied up on the train tracks and a trolley is coming towards them; you have the option to pull a lever that will change the trolley to a different set of tracks where one person is standing, do you pull the lever for the greater good? The Australian government is essentially telling the Australian people that we have to limit our own freedom for the greater good. The question is whether you are willing to live in a surveillance state for the supposed greater good?

Context of Man Haron Monis Man Haron Monis was an Iranian refugee who arrived in Australia in 1996. Shortly after his arrival in Australia, Monis was already stirring up a storm. Monis was known to the Government for his hate mail campaign Edition 1, 2015 | 25

>> Making Australia a Surveillance State

“The Senate Standing Committee for the Scrutiny of Bills commented on metadata retention as being a real risk to personal rights and liberties due to the insufficiently defined powers within the Bill” against Australian troops in Afghanistan where he urged soldier’s families to remove their loved ones because they are allegedly committing heinous crimes overseas. Monis was investigated in 2013 regarding the death of Noleen Hayson Pal, Monis’ ex-wife, which resulted in Monis arrested for being an accessory before and after the fact of the murder. Monis was granted strict conditional bail for that incident. Monis was later charged in 2014 with sexual intercourse without consent, but was granted bail on conditions of daily reporting. Monis had failed to report on the morning of December 15th 2014, the day he took hostages for 17 hours in a Sydney siege that ended tragically with the death of two hostages and Monis.

The incident has become a focal point for the government justifying new anti-terrorism laws. However, the main question lies as to what new powers would have prevented Monis from committing this shocking act?

Monis had already been known to the government for various offences since his arrival in Australia. The Muslim community have been disowning Monis for at least seven years. Monis had been in the system, however his acts were considered as that of a crazy man’s, and that is why he was overlooked. It was not religion that drove him to commit those acts, but instead his mind that slowly descended into madness in a society that overlooks the importance of 26 | The Brief

dealing with mental health issues. There can be no metadata inside Monis’ mind; the new anti-terrorism laws would have not stopped such a tragedy from occurring. It will only result in Australia being a surveillance state and all in the name of fighting terrorism.

Would metadata have prevented the Sydney siege?

How can you stop a man from being real to himself? Walled Aly comments that there is no metadata stored inside an apparently deranged mind. One thing is for sure: Monis was known to various police and intelligence organisations since his arrival to Australia.

The grizzling account of Pal’s death can provide a snippet into the deranged mind of Man Haron Monis. Pal had been doused in accelerant and set on fire, and a later autopsy revealed she had been stabbed 18 times. Monis had created a comic alibi for himself as he went to great lengths to stage a heart attack that led to a staged car crash, which led to Monis filming himself asking someone the time and day. These actions are not something that metadata retention can solve, but are actions of someone with significant mental health issues that were not addressed. Attorney General George Brandis has indicated, in light of the Sydney siege, that we live in an age of terror and no amount of data retention can provide an ‘absolute guarantee’ against terrorist attacks. The Prime Minister echoed his comments by indicating that metadata retention may have helped or prevented the Sydney siege from occurring.

Metadata retention is not a small issue that can be decided on probabilities such as ‘it may have prevented’, as this legislation will send Australia into becoming a mass citizen surveillance state. Instead, Australia needs to decide this pressing issue by looking at hard statistics from countries that have metadata retention in place.

Research from Germany has shown that metadata retention has led to an increase in the crime clearance rate of only 0.0006 per cent, which may as well be counted as zero. In fact, Germany as of 2010 has ruled

metadata retention as unconstitutional along with Austria, Bulgaria, Cyprus, Romania, and Slovenia. Digital Rights Ireland, a digital rights advocacy group, commented that data retention has been rejected unanimously by every Supreme Court or constitutional court who considered it. In the US, the Privacy and Civil Liberties Oversight Board stated that there is little or no evidence that data retention has made the US any safer. All these countries that have had metadata retention programs put in place have either removed the programs all together or have commented that metadata retention does not work. It is that plain and simple.

A solution?

The broad and ill-defined Bill supporting metadata retention will not provide the support the Government needs to tackle terrorism. Our freedom does not have to be ditched in the interest of public security.

Monis was already well known to various

police and intelligence agencies, and their lack of inaction and the failure of the justice system to keep Monis behind bars is what contributed to the Sydney siege. Furthermore, statistics from various countries highlight that metadata retention does not make a country any safer. The solution is not new anti-terrorism laws, but instead the solution is through education. Counter terrorism expert Anne Aly agrees that legal options may be necessary if justified, but the core problem that needs to be addressed is why are people becoming more radicalised in the first place? There are already numerous laws in place that can help prevent terrorist attacks. There is no need to introduce new laws without any justification or evidence that they will actually help prevent terrorist attacks. Instead, the Government needs to address these issues early on in the process and ask what is driving people like Monis want to commit such terrible acts?

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Edition 1, 2015 | 27

AVENUES OF YOUR LAW DEGREE Name: Erica Rees University: Macquarie University Degree: Bachelor of Arts and Bachelor of Laws (Hons) Job Title: Legal Counsel and Asset Manager Company: SCA Property Group www.scaproperty.com.au/

1.

What has been your career path into your current role (e.g. qualifications and prior employment)?

Throughout the last 3 years of my degree I worked in a small suburban firm as a paralegal (I took a break for 6 months when I completed my second-last semester in Copenhagen, but I came back to the same firm when I returned). The role was great in that it exposed me to so many facets of legal practice, and I was quickly able to work out that my interest lay in transactional work, rather than litigation (which is what I originally thought I wanted to do).

Shortly after I graduated, DibbsBarker were looking for a first year lawyer to join 28 | The Brief

their property division, and I worked there for 3 years before moving with a partner of the firm over to Herbert Geer, which was looking to establish a presence in Sydney (predominantly being a Melbourne firm). I worked for that partner for around 18 months before Mark Lamb joined, after which point I predominantly worked for him. History then repeated itself in a way, as Mark was then offered the role as General Counsel at SCA and I harassed him to take me with him!

I have now been at SCA for slightly more than 2 years, and for around the past 18 months I have been working in a dual role, where my time is split between legal and asset management. I did not have any formal asset management/property economics qualifications or experience (except undertaking work for REITs in private practice obviously) prior to commencing in the asset management role, so it has been a very steep learning curve for me. The experience has made me a much better lawyer however, as I now have a far better understanding of the commercial context behind transactions, and the pressure points, drivers, etc. for our business, which means I can add far more value in my legal role as well.

Last year I obtained a Diploma of Asset Management through the Property Council, and I am in the process of enrolling in the Graduate Diploma of Applied Corporate Governance, which will take me the next 2 years to complete.

2.

Tell me about a typical day in your job?

In my capacity as legal counsel, I work predominantly on the ‘property’ side. So at any given time that can involve acquisitions, disposals, due diligence, leasing transactions, tenant disputes, mediations, planning issues, workplace health and safety and dealing with ‘slip, trip and fall’ claims via our insurers. I tend not to be as involved in the ‘corporate/ compliance’ aspects of our business, however this is an area that I am keep to learn more about and improve my knowledge and skills (which is part of the reason I am enrolling in the Graduate Diploma I mentioned above).

As an in-house counsel, you also spend a lot of time providing legal and strategic advice to the business, which I really enjoy.

From an asset management perspective, I look after all of our assets in QLD. At any given time, this involves managing our external property agents, budgeting, monitoring cash flow, cash flow forecasting, valuations, tenant issues, arrears management, and strategic asset planning.

Now that our business has stabilised, over the next 12 months we will be spending a lot more time on strategic planning.

Every day is different! In legal, each day is really influenced by what is going on in the business. In asset management, we a driven a lot more by reporting requirements/timeframes.

3.

What abilities or personal qualities do you believe contribute most to success in this field/job?

You need to be very organised, and have good time management skills. You also need to know how to establish relationships with people, and earn their trust as a colleague and an advisor. You also need to be able to talk to people and engage with them. Colleagues will come to you with issues if they know you will work to assist them in achieving their outcomes, and not just apply the brakes due to risk. I think this is the best way to succeed in this job, as colleagues then want to involve you from the outset of matters, which means you can strategically manage the legal process from the beginning, rather than trouble-shoot when something goes wrong!

Another big part of being in-house is being able to be commercially-minded. Sometimes external lawyers think you are crazy on the basis of the instructions you give them, but they aren’t privy to the commercial drivers of the business. You need to be able to ‘project manage’ transactions and drive outcomes, keeping the commercial imperatives in the back of your mind whilst balancing these with the risks.

4.

What professional journals or professional associations would you recommend if any?

NSW Young Lawyers, and the Law Society, are two professional associations that are important when you first start out and they publish a lot of great material.

It is also critical to know what is happening in your industry, not only the legal profession.

So for property professionals for instance, the Property Council, and the Shopping Centre Council of Australia, are examples of professional associations I would recommend. They also publish a wide range of information that is good to keep up with.

From my perspective, it is important to keep up with what other REITs are doing (and what analysts are saying), so that you know here your competitors are at.

5.

What advice would you give someone wanting to gain their first job in this profession?

The clerkship programs are obviously a great starting point, but they aren’t the only starting point!

Get out there and get as much experience and exposure as you can while you are at uni, and work on networking and developing relationships with as many professionals in your chosen industry as you can.

6.

Do you have any words of warning or encouragement as a result of your experience?

It can be pretty scary when you first start out. People will telephone you and you won’t know how to answer their question. You will be asked to do things you have no idea how to do. You won’t understand things that your colleagues are talking about. One day it all clicks though and starts to make sense, so stick with it. The panic will recede and you will start to enjoy the challenges! It sounds silly to say, but can’t learn experience by reading a text book, you just have to live through it, learn, and you will only get better and better.

Also, take the time to enjoy it and look back on all your hard work and how far you have come!

MORE ONLINE muls.org/brief Edition 1, 2015 | 29

undeer th ar rad  Sevanne McGarity

Approximately 125 million woman and girls within Africa and the Middle East have been subjected to female genital mutilation (FGM), which is a procedure involving the deliberate alteration or injury of any part of the female genital organ. FGM has numerous negative health effects and is specifically defined by the World Health Organisation as a procedure performed for ‘non-medical reasons’ which breaches fundamental human rights.

Surgery is frequently performed in unsanitary conditions using primitive/sub-standard ‘surgical instruments’ such as sharpened butter knives, paper scissors, shards of glass and razor blades. Common side effects of the surgery include immediate post-procedure bleeding and infection, difficulty with urination and menstruation and bladder infections.

Following the initial trauma, recipients can expect painful and difficult intercourse, infertility and serious problems delivering if they should happen to fall pregnant, not to mention physical and emotional scars; the trauma of the procedure bringing a whole set of related psychological issues.

The practice is most prevalent in African and Middle Eastern cultures where it is believed to prevent wanton sexual behaviours and desires in circumcised women. Under the guise of protecting female morality, uncircumcised women are subjected to social shaming, ostracism and degradation/humiliation. This is considered a rite of passage to adulthood in many communities, associated with ideals of purity and femininity and sometimes based in religious belief. In such communities, the 30 | The Brief

Little Girls and Rusty Razers… extraordinary social pressure parents feel to make their daughters ‘the same’ or ‘normal’ contributes greatly to the continuation of the practice. Because of this sentiment, consideration must be given to the fact that the cultural symbolism of the procedure lingers with many circumcised women who want their daughters to ‘be like them’.

While FGM is outlawed across Australia to varying extents, it was not until early 2014 that the issue received the regulatory attention it deserves. Presently, in NSW, FGM generally is prohibited by s 45 of the Crimes Act 1900 (NSW) with a maximum penalty of 21 years’ incarceration. Prior to early 2014, the maximum penalty was seven years' imprisonment, while shipping a girl offshore, having her ‘snipped’ and then returning her to the comfort of Australian shores was not a crime. To do so now would also attract a 21-year sentence.

Additionally, the Supreme Court will hear NSW’s first FGM case this year: an elderly lady will stand trial for the genital mutilation of two girls, aged 8 and 10, in Wollongong in 201112. The case will establish the parameters of updated Crimes Act and set a precedent for prosecution of FGM perpetrators in future.

Now perhaps, like me, whilst reading this little spiel, your brain has conjured up some rather disturbing images of little girls and rusty razor blades, your stomach has turned more than once and, if you look down, your legs might now be tightly crossed together. This abhorrent practice needs to be stopped. The public needs to be aware that FGM does still occur in Australia – it is a ‘first world problem’.

Fishy Business Let’s talk about fish. This often overlooked aquatic animal is simultaneously one of the world’s most popular pets and protein sources (making up roughly 17% of human protein consumption). Yet, there is debate amongst scientists as to whether fish are ‘sentient’ – i.e. feel recognisable senses of pleasure and pain. Unfortunately, this is not reflected in animal welfare legislation.

In South Australia and Western Australia, fish are specifically excluded from the definition of ‘animal’ in animal welfare legislation, while in the Northern Territory they have qualified status. To add insult to injury, protection laws in many jurisdictions are frequently subject to commercial and recreational fishing exemptions. Pet-shop and test-tube fish are afforded a little more protection, but again, as scientists are in disagreement about whether fish actually even feel pain, cruelty allegations usually fall by the wayside. Cruelty offences require an animal suffer unjustifiable, unnecessary or unreasonable pain – this pros-andcons test balances human and animal interests, as you can imagine, humans usually win out.

Scientists can’t be wholly blamed. The legal treatment of fish reflects the broader social perception of fish as dispensable menu items, rather than furry bed companions like many of their terrestrial counterparts. Even the nomenclature connotes an infinite source through the use of the plural ‘fish’. Furthermore, most people don’t talk to their pet fish, yet

people talk to their pet cat or dog. We might speak of ‘the crazy cat lady’, but definitely not ‘the crazy fish lady’. I, myself, am a pescetarian; fish just somehow don’t come into my definition of meat.

Duty of care provisions in anti-cruelty legislation do provide fish under human control with some basic protection, such as mandating the adequate supply of food and water (fish without water – great combination). But even then, the law is simply not geared towards the individualistic needs of marine animals and neither is our cultural or economic mindset. Fishing practices are inhumane, revolving around asphyxiation, death by rapid depressurisation, crushing and icing. Humane slaughtering codes don’t even apply to fish in Australia; aquaculture productivity seems to be paramount.

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