The Brief Edition 2 2015

Macquarie University Law Society magazine Edition 2, 2015 (Volume 21)

Edition 2, 2015 | 1

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2 | The Brief

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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.

CONTENTS - - - - - - - - - - - - - - - - - - CONVERSATIONS - - - - - - - - - - - - - - - - - -

7

A Conversation with Tim Wilson Tony Zhang

Homage 11 (to Picasso) 1973; Acrylic on canvas, 1830 x 1830 cm, Transfield Art Collection, Photography Effy Alexakis, Photowrite,© Estate of Rollin Schlicht.

20 Moral Panic High but Anti Vaxxers Low Dusan Djukic 24 The Devil’s Advocate: Invasion of Sovereignty Smeetha Jayakumar Gun Laws Satyajeet Marar

30 Avenues of Your Law Degree: Refugee Advice and Casework Service Russel Alvio

27 Freedom to Self-Inebriation Ama Somaratna

- - - - - - - - - - - - - - - DEBATE ON FREEDOM - - - - - - - - - - - - - - -

13 Is the Best Defense a Good Offence?

Blake Sherry

26 Social Justice Corner: Kimberley Community Legal Services Summer Legal Internship Stephanie Triefus

16 The Freedom to Offend?

Peter Zivkovic

32 Under the Radar: Sevanne McGarity 34 The House of Ideas Samantha Bodell

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

Editor’s Welcome

Volume 21 Edition 2, May 2015

EDITOR Patrick Barkachi DEPUTY EDITOR Lucy Wu DESIGNER Nathan Li

Staring at the front cover you might be confused, what does this abstract work of art have anything to do with a law magazine?

Apart from simply being aesthetically pleasing (like all of us at Macquarie Law), this work is homage to one of the greatest abstract expressionists in art – Pablo Picasso.

Why does it matter?

Typically the view of law is that it is ‘fixed and rational’, and that of art being ‘autonomous and ambiguous’. Although the law will put on a convincing mask of rationality and order, its underlying ideas stem from the same obscurity that inspires creativity and expressions of art.

These ideas create division and unity in our society, although we at ‘The Brief’ would love to delve into them all, we have a limited number of pages for intellectual adventure.

One of these contentious concepts is Freedom.

Fundamentally, what is Freedom? An infinite journey into depths of creativity unfettered by regulations… It’s an abstract and whimsical idea that can be expressed through the art and life of Pablo Picasso.

His abstract works are a result of the freedom of expression he found away from classical French influences. Picasso was able to develop this freedom of thought and expression, even under the Nazi occupation of Paris where ‘degenerate art’ was a threat. Nazis at the time believed Picasso’s works were damaging the moral fabric of society.

Today we celebrate his masterpieces – they are a testament to the importance and resilience of Freedom.

Unfortunately we can’t paint - This edition of The Brief will explore the facets of Freedom in a legal dimension.

This edition includes a discussion with Tim Wilson - Australian Human Rights Commissioner on Freedom in contemporary Australia. We also introduce a new segment, ‘The Devil’s Advocate’ – here our writers defend an unpopular opinion to highlight the importance of impartiality.

Each article is a product of hard work from Macquarie University Law students, each of them volunteering themselves to a balancing act of University, Life and The Brief.

For the first time since it’s inception The Brief has a dedicated and successful blog on pertinent legal issues – I’d like to give special mention to Deputy Editor-in-Chief Lucy Wu. Without her hard work The Brief Online would not be at the standard it currently is.

This Edition of The Brief seeks to enlighten you with ideas, incite internal discourse and entertain you. I hope you enjoy it as much as I have.

Patrick Barkachi | Brief Editor

SUB EDITORS Elyse O’Sullivan, Katharine Lam, Nicholas Owczarek, William Lam, Ali Hookmani, Hannah Bell, Blake Sherry, Sahana Nava, Laura Muir, Emma Breislin, Gabriel Joseph, Tanya Thomas, Yi Wong, Valiant Warzecha, Lisa Barca, Natalie Morton, Paulina Sukari CONTRIBUTORS Tim Wilson (Australian Human Rights Comissioner), Katie Wrigley (Principal Solicitor: Refugee Advice Casework), Peter Zivkovic, Blake Sherry, Dusan Djukic, Eda Ince, Sam Bodell, Stephanie Triefus, Sevanne McGarity, Cassie Puah, Sheridan New, Ama Somaratna, Tony Zhang, Satyajeet Marar, Russel Alivio, Smeetha Jayakumar 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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President’s Welcome Members of MULS, What an amazing start to the year it has been!

Already, we have revived the highly demanded Macquarie Law Hoodies. Already, our advocacy, professional skills and external competitions have been executed to an exceptional standard. Already, we have held our most inclusive First Year Afternoon Tea ever, our Community Engagement department has expanded the reach of MULS like never before and our Careers Department has raised more sponsorship money than in previous years to make these initiatives possible. To put the icing on the cake: already, we have produced the biggest Start of Semester Event in MULS’ 40 year history!

These successes trigger in me great confidence that 2015 will be the most successful year in the history of our Society.

I salute you, the MULS Members, for engaging with these amazing initiatives and making them so successful. I also salute the hard work and leadership of our twenty-four MULS Executive Council Members for making these initiatives possible.

On that note, I welcome you to another great MULS initiative: Edition Two of The Brief for 2015. On behalf of all MULS Members, I salute our MULS Executive (Brief Editor), Patrick Barkachi—it has been a pleasure to work with and support Patrick in his commendable efforts to produce this picture-perfect publication.

Again, welcome to Edition Two of The Brief for 2015, Tim Grellman | President

What to d r a w r o f k loo to in 2015 S L U M h t i w CITY2SURF (9 AUGUST) AND INTER-VARSITY DAY (16 AUGUST) Put down the books and get active, contact the Sports Officer Kristina Tomas at sports@muls. org to get involved.

LAW BALL (OCTOBER) Look forward to one of the best parties of the year.

COMPETITIONS REGISTRATIONS WILL OPEN EARLY SEMESTER 2 Fine tune your practical legal skills, contact competition@muls.org for more information.

MULS 40TH ANNIVERSARY In semester 2 MULS will celebrate it’s 40th year in operation, look forward to how we celebrate!

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CAN’T WAIT TO CU!

Want the inside scoop on landing a role at Clayton Utz? Find it on Facebook! www.facebook.com/ClaytonUtzCareers

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-----------WHAT'S NEW IN THE LAW? -----------PROCEED WITH CAUTION: ADVICE TO UBER DRIVERS Potential drivers who plan to register themselves with ‘Uber’ as employees, have been informed that by doing so they are breaking the law. Department of Transport (DoT) representatives have been present at a number of registration points across Western Australia, informing members of the public of the regulatory and statutory laws which do not align with ‘Uber’s’ planned service.

COMPENSATION FOR EMOTIONAL DISTRESS? The West Australian Supreme Court has ordered a man to pay his former partner approximately $50,000 after he had posted sexually explicit material of her on Facebook. Neil Ferguson and his former partner, Caroline Wilson, used to work together at a mining site in Pilbara. During that time, they would routinely exchange explicit images with each other, trusting that the photos were only viewed by one another.

Once their relationship deteriorated, Mr. Ferguson posted a number of these images and two

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TIME RESTRICTIONS ON ACTIONS BROUGHT FORWARD, RELATING TO CHILD ABUSE. Martin Pakula, the Victorian Attorney-General, has introduced a bill which aims to remove the time limits that determine when a child abuse victim can bring an action in court. The Limitations of Actions Amendment (Child Abuse) Bill 2015, outlines that it will ‘remove time limitation periods’ for actions that involve ‘death or personal injury resulting from child abuse’.

The existing 12 years that victims of child abuse have to

commence proceedings against an alleged perpetrator in Victoria have received criticism. Mr. Pakula explained that these time restrictions have been used to ‘prevent them from bringing legal actions’, meaning that victims of abuse have no form of recourse to seek justice against the perpetrator.

The Parliament of Victoria conducted an inquiry, known as ‘The Betrayal of Trust Report’, which found that ‘acknowledgement and accountability’ were important to victims, with such reforms undoubtedly facilitating personal quests for justice.

The contentious organisation ‘Uber’, which is believed to be valued in Western Australia approximately $18 Billion, started operating in the region in around 2014, and transports registered members of the public in workers’ private vehicles as fare-paying customers. ‘Uber’ markets itself as a service which is prompt and affordable, avoiding various surcharges and payments associated with conventional taxi services.

A spokeswoman for the DoT explained that vehicles which intend to effectively operate as

taxis or omnibuses must comply with The Transport Coordination Act 1966 (WA) and Taxi Act 1994 (WA). They must also meet particular standards, and pass annual inspections, set by the DoT. Uber’s C.E.O., Travis Kalanick, has already been engaged in a difference of opinions with regulators and the taxi industry in the U.S., and this trend is expected to continue as ‘Uber’ expands into Australia. Dean Nalder, WA transport minister, while stopping short of endorsing ‘Uber’, has indicated that reforming transport regulations may be on the cards.

videos onto his Facebook page.

He then informed Ms Wilson of his actions via text message.

This case is significant as a large portion of the payment is intended to compensate the plaintiff for her emotional distress. In the context of breach of confidence or privacy cases, compensation for emotional distress is relatively rare in Australia. The portion of the compensation Ms Wilson received, that related to her loss of income whilst away on leave is more routine, as this deals with economic loss.

The Australian Law Reform Commission (ALRC) has indicated that Parliament should make clear when compensation for emotional

distress is appropriate in cases involving privacy and breach of confidence. David Rolph, an associate professor at the University of Sydney Law School, has expressed sentiments that align with the ALRC. Both Rolph and the ALRC indicated that a more ‘comprehensive’ legal framework should be applied to cases involving privacy. Otherwise, a modification of existing law may result in unintended and unwanted ramifications.

MORE ONLINE muls.org/brief

A Conversation with

Tim Wilson

“Human Rights are as much about culture if not more so than the law….If you put forth a position that is correct from a rights perspective but isn't mindful of the fairness and justice dimension then you will never win an argument” The Australian Human rights Commissioner Tim Wilson discuss issues related his roles and responsibilities with the Commission, how his interest in civil liberties came about, issues for LGBTI in Australia and why he believes it should be okay to offend or insult.  Tony Zhang

I

t was on a cold, miserably wet day on April 21st that I went to speak with Australian Human Rights Commissioner Tim Wilson at his office on Pitt Street in the heart of the city CBD. Our conversation began with Tim explaining the role of Human Rights Commissioner. "The role is to bring together people and prompt conversations that wouldn't otherwise happen or to shine a light into dark places within the country" he said. He likened his job to that of a

politician, speaking to people about issues of concern but he stressed the Commission's independence and political impartiality.

Rights and Responsibilities Report According to Tim, Commissioners have little resources and statutory powers and must work to identify issues that exist within the community, determine the key stakeholders and understand what the government's priorities are in order to effectively prosecute a case for change. Tim talked us through the Edition 2, 2015 | 9

>> A Conversation with Tim Wilson

Rights and Responsibilities Report that he had recently released in which he identified key issues relating to various issues of concern, such as freedom of expression, thought, conscience, religion, association and property rights. When asked about how he thought such rights and freedoms could be strengthened into the future, Tim brought us back to the role of the Commissioner in affecting policy change. "What you can do is bring together parties who have raised consistent concerns around the country and effect a discussion to bring about change," he said, citing examples of hosting roundtable consultations with stakeholders in an attempt to reconcile differences. "I'm focusing on public education about human rights, property rights issues specifically in relation to Aboriginal property rights and then other areas in the space of religious freedoms," and he referred to his recent Press Club speech in which he outlined those areas of inquiry. He also noted that there was no Commissioner for Sexual Orientation, Gender Identity and Intersex status issues which prompted him to assume responsibility for those policy areas. Tim is well known as a passionate advocate for LGBTI issues. "LGBTI people still face state-sanctioned discrimination, and equality before the law is probably if not, certainly one of the most important principles and that still isn't fully respected in this country,". Tim openly identifies as gay but his passion for equality and human rights is what drives his conviction.

Tim revealed that his interest in civil liberties arose from his engagement in student politics at university. As student president he realised that individuals occupying office such as himself were prone to seeking greater power for themselves at the expense of others. "It made me very suspicious of authority and suspicious of centralised power and that in the end there's an inverse relationship between centralised power and individual rights. “The bigger the citizen the smaller the state. The bigger the state the smaller the citizen." He had painted such a clear dichotomy., which helped me understand the conviction of 10 | The Brief

someone who chose to become an advocate for human rights and core liberties relating to the dignity of the individual.

Racial Discrimination Act s18c Tim has explicitly stated that he does not support the law in its current form and believes that the protections prohibiting acts that offend or insult individuals on the basis of their race ought to be repealed on the grounds that it impairs freedom of speech. I asked, how it could be appropriate for the right of free speech as exercised by the general public to trump the rights of minorities to be free from fear and harassment? He explained that certain conduct that brought harm to individuals was already prohibited by the law such as incitement to violence and noted that there existed a tension between conflicting rights and harm. "The question is, how far do you go in terms of harm, particularly when it is beyond incitement to violence?" For Tim, the question of whether the current threshold for prohibiting conduct was too low, was an important one.

"What we have under 18C is offend, insult, humiliate or intimidate," he began, accepting that intimidation was what caused people to retreat from public life and thereby prevent them exercising their full civil rights and liberties. "But certainly offend, insult and in my view humiliate don’t justify restrictions” Tim argues that “there are serious risks for other groups in the community by protecting one group at the expense of the other." Tim used the term 'legal privilege' to describe the legal protection afforded to people of a particular race or ethnicity (and which he pointed out did not exist for any other social group in the community) that allowed them to denigrate others on the basis of other characteristics such as their sexual orientation or gender.

He lamented what he saw as "the reversal of the principle of a liberal democracy" the operation of s 18C makes speech unlawful in conjunction with s 18D that outlines the circumstances when it is permissible. "I think it's an utterly unjust law that should be repealed in its current form and if there is to be a standard it shouldn't be a standard on the basis of race," he said. "It should be a

standard that applies to everybody. It should equally apply to people on the basis of their sexual orientation or disability or gender as much as race."

Tim hypothesised a situation where he could make comments that offended or insulted, in attempting to rely on the exemptions in s 18 D he observed, with a slight hint of sardonic amusement that; “As Human Rights Commissioner it would have been particularly ironic being hauled potentially before the Human Rights Commission and then through to a court in order to prove why my (hypothetical) statements were justified.

I don't think that's acceptable or fair." What Tim describes here is the chilling effect on public expression, some may restrict what they say based on the fear of litigation. s18c inadvertently promotes self-censorship.

Marriage Equality Another important topic that I wanted to talk about was marriage equality. We asked Tim firstly whether he was concerned with how the public was talking about marriage equality and secondly whether marriage equality as a human rights issue was being given the appropriate attention and consideration.

"It is state-sanctioned discrimination," Tim emphatically stated about the lack of marriage equality in this country. He proceeded to unpack the human rights conception of same sex marriage. "There are two dimensions in the human rights space. One is the religious institution that is a human rights approach to marriage and once you establish a civil institution there is equality before the law. So it's multi-faceted." However it was interesting to hear that Tim tries to avoid overemphasising the human rights dimension of marriage. "I don't really ever talk about marriage equality.

I talk about marriage for same sex couples," he told me. "We're not talking about a new institution, we're talking about an existing institution. That's why I never talk about gay marriage either, only that everybody should be treated equally before the law." Tim embraces the diversity of religious objection and liberal conservative arguments against marriage for same-sex couples.

"I'm not someone who subscribes to the idea that human rights are about forcing people to do things against their conscience and it's been one of the most disturbing things I've seen recently from advocates for marriage for same sex couples," Tim went on, describing the intolerance that proponents of this issue have towards religious people. He is concerned how the language of human rights is being used to further the cause by bullying and intimidation of religious people with respect to their views. "It is an entirely legitimate opinion within the world of public discourse to disagree with marriage for same sex couples. People should be free to express that view and it should be tested in the court of public opinion and the public broadly should decide the outcome of this public policy area," he argues. Ultimately, Tim phrased his support for marriage for same sex couples insofar as it would normalise long-term homosexual partnerships, he also outlined that there were many other important issues that had an impact on people that identified as LGBTI such as their capacity to access health services and support, particularly mental health, education services, and employment. "These are far less contentious, far more important to people's day to day lived experiences, and they are often eclipsed and neglected because we keep obsessing about marriage, which is important from a human rights perspective because it is statesanctioned discrimination but isn't the end of the discussion."

Human rights and law Tim stressed. "I would argue that human rights are as much about culture if not more so than law." He cautioned against approaching human rights from a legalistic perspective and urged that we all think holistically about human rights in the context of culture, public policy and principles like justice and fairness.

"If you put a position that is correct from a rights perspective but isn't mindful of the fairness and justice dimension then you will never win an argument."

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12 | The Brief

Is the Best Defense a Good Offence?

The Defence Power, Terrorism and Freedom in Australia. ď € Blake Sherry

Waxing and Waning The defence power, prescribed in the Constitution allows for the creation of legislation concerning the defence of the Commonwealth and States. Shaped by legal, political and historical factors, the power is defined as waxing and waning in relation to the exigencies of conflict directed at the Commonwealth.

With the advent of over-determined labels such as terrorism and the High Court decision in Thomas v Mowbray, it is evident that the defence power waxes (in that it expands in proportion to the threat), however the likelihood and possibility of it waning or retreating is problematic given the breakdown of the wartime-peacetime distinction in the current political context.

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>> Is the Best Defense a Good Offence?

Wartime, Peacetime and Beyond To ground the discussion of the defence power it is first important to evaluate the two distinct limbs of the power. Noted by Gauldron J in Re Tracey; Ex parte Ryan, s 51 (vi) has two distinct purposes or ‘limbs’. The first being “defence” and the second being “control of armed forces”, both relegated to the overall protection of the Commonwealth. In this respect, the defence power operates as a purposive power not relegated to a specific subject matter, but out of the necessity to authorise legislation for the purposes of either of the limbs mentioned above. Furthermore, as was noted during WWI in Farey v Burvett, the words ‘naval’ and ‘military’ are merely words of extension (that is, a reference point subject to expansion), and that during total war s 51 (vi) is given (virtually) unrestricted paramountcy.

Dixon J stated in Andreas v Howell that the operation of s 51 (vi) is affected by “the changing facts” and circumstances such as the “character” and “threat” of hostilities against the Commonwealth which determines the overall extent and scope of the powers operation. Of particular importance then is the nature, character and threat of terrorism and how such a threat affects the defence power.

The common law has also traditionally categorised three phases under which the power operates: wartime, peacetime and the transitional phase in-between. During wartime, as best exemplified during WWII, due to the threats to the Commonwealth the scope broadens “to support all measures necessary for the conduct of hostilities”, suspending the fragmented system of powers and creating, in effect, a unitary government. This is best illustrated in Farey v Burvett, where the Court upheld the National Security Act, specifically regulation 59 of the National Security (General) Regulations, allowing for “regulating, restricting or prohibiting” the production, movement, distribution, sale and purchase of articles “essential to the community”.

Upheld in Stenhouse v Coleman, the expanded provisions of the defence power 14 | The Brief

during WWII included restricted drinking hours, fixing rent and share prices and prohibiting Christmas advertising. In direct comparison, it is held that during peacetime the scope of the defence power is drastically reduced, only supporting legislation enacted with a more direct or explicit relationship with defence.

This is, as cautioned in R v Foster to protect the integrity of the Constitution and the carefully structured separation of powers. There also exists a transitionary phase in-between, by virtue of the elastic nature of s 51 (vi).

It is this transitionary phase, the breakdown of the war-peace binary distinction and indeterminacy of modern labels such as terrorism that has broad implications for the malleability of the defence power, and by extension freedom.

The Defence Power Today In the current context of the defence power, military tribunals, as per Re Tracey, have adopted the American perspective which, under s 51 (vi) and the Defence Force Discipline Act 1982 (Cth) allow service disciplinary offences to overlap on the jurisdiction of criminal law. There it was held that under s 51 (vi), the right to legislate for the control of armed forces remained operative irrespective of whether it was peacetime or wartime. This is consolidated in McWaters v Day where the majority found that the intervention of military courts upon the jurisdiction of the states did not infringe upon the separation of powers as it was merely “cumulative” and not “exclusive” to criminal law.

Reaching an historic breakpoint in Thomas v Mowbray, the court determined that the power to make laws with respect to military and naval defence (both mere labels of extension) are not limited to “defence against aggression from a foreign nation” or “external threats” or “confined to waging war in a conventional sense…” or to the protection of bodies politic.

The radical expansion of s 51 (vi) since WWII, now no-longer needs the justification of conventional wars, turned upon internal threats capable of being dealt with under criminal legislation.

“In an era of increasing government regulation and metadata laws, this lack of knowledge and the ability for the defense power to swing either way warrants further attention. What operates to defend us can just as easily be used against us if we fall on the wrong side of the line.”

Here, the ability for military tribunals as non Ch III courts to co-exist with criminal law and the rise of non-traditional political terminology to signify threats (terrorists) presents a troubling modern conceptualization of the defence power.

Terrorism and Scope It is with respect to such an expansion in scope that attention must be brought to Thomas v Mowbray. The defence power no longer requires conventional war to enliven, nolonger requires “threats to the nation”, or an appropriate demonstration of proportionality.

The approach by the High Court in defining the scope of the power based on specifically referable ‘phases’ is also problematized by the current War on Terror and decentralized groups such as ISIS. The line between a criminal act of aggression, a political act against the status quo and an attack against the State itself is now blurring.

Terrorism is defined in s 100.1 (b) of the Criminal Code as an action done for the advancement of political, religious or ideological causes, with the specific intention of coercion, to intimidate or influence the Commonwealth or States.

This is substantiated under s 101.1 (1) as an offence.

Such a label however, in spite of its legislative prescriptions remains inescapably subjective and enlivened under any perception of anti-colonial rhetoric. Furthermore, as any discussion of terrorism can trigger the need for colonial protectionism, in comparison to the traditional rigidity of foreign aggression

and identifiable opposition seen throughout WWI and WWII, the defence power is now easier than ever to enliven. If the definition of the threat is integral to the remedy used under the defence power to address it, then terrorism, as a label loaded with unstable and blurry criteria, imports with it a worrying potential for overregulation.

In this light, although the defence power can be seen clearly throughout history to wax and wane, in light of its expanded application towards service officer offences traditionally classifiable under criminal legislation; it’s now unshackled ability to enliven without the necessity of conventional war but rather requiring only determination based on the vague and ideologically contentious verb ‘terror’ and ability to affect both internal and external individuals shows no clear sign of waning.

The modern appropriation of the power in relation to an over-determined label, terrorism, determining the scope of its application, coupled with the removal of the necessity for enemies to be external to the bodies politic, illustrate how the defence power has expanded. What does this all mean?

Ultimately we are yet to know. However in an era of increasing government regulation and metadata laws, this lack of knowledge and the ability for the defence power to swing either way warrants further attention. What operates to defend us can just as easily be used against us if we fall on the wrong side of the line.

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The Freedom to Offend? ď € Peter Zivkovic

L

aws act as a powerful reference point.

They influence the character of a society, determining what types of behaviours and attitudes are acceptable. Australia is a liberal democracy, and a country that promotes human rights and freedoms.

Freedom of speech may be perceived as the hallmark of western, liberal democracies. As a result, some may presume that Australia, like other common law countries, has freedom of speech enshrined in its constitution.

Interestingly, there is no express right to freedom of speech or expression in the Australian Constitution. There is only an 16 | The Brief

implied right, as the High Court, in Nationwide News Pty Ltd v Wills and Australian Capital Television Pty Ltd, held in 1992. Indeed whilst Australia promotes freedoms, these rights do not constitute absolute freedoms. State and federal law place limitations on particular freedoms, such as freedom of speech, for absolute free speech may impinge on other rights. In a multicultural and progressive country such as Australia, the right to avoid vilification based on race or ethnicity is one of these rights. Indeed, it may be argued that freedom of speech not only gives rights, but also endows responsibilities.

Section 18C of the Racial Discrimination Act 1975 provides that it is against the law to ‘offend, insult, humiliate or intimidate’ someone based on their ‘race, colour or national or ethnic origin’. This is an example of legislation that seeks to limit one freedom, freedom of speech, for the sake of another freedom, freedom from racial vilification. The Charlie Hebdo attacks reinvigorated the debate around freedom of speech in Australia, with some questioning the value of Section 18C, arguing that it limits freedom of speech and expression in an unacceptable fashion.

Freedom of speech has not become an issue in Australia as a result of Charlie Hebdo, it has always been a point of contention. The very existence of Section 18C can be seen as a response to a perceived need to protect racial, national or ethnic minorities from the excesses of ‘free speech’. Tony Abbott, before being elected, spoke to the right-wing think tank ‘Institute of Public Affairs’ in 2012, he described section 18C as a ‘hurt feelings test’. Once elected, the intention to remove ‘offend, insult and humiliate’, was indicated by the Abbott government. Following this, George Brandis, the federal AttorneyGeneral, introduced a proposal in early 2014, to amend laws relating to racial vilification.

Such an amendment was arguably motivated by his relationship with Andrew Bolt, who had been prosecuted under Section 18C for his remarks aimed at light skinned aboriginals.

The proposal was poorly received, and consequently never made it to parliament.

Had it succeeded, this proposal would have meant that ‘free speech’ would have been almost absolute, and that practically nothing would be off-limits. However, reacting to public disapproval, particularly from ethnics groups, the government did not follow through with their plans. The government cited the need to ensure the Muslim community was accepting of the anti-terror laws, which, ironically, sought to limit freedom of speech.

A second proposal, put forward by Bob Day, Family First senator, in conjunction with David Leynohjeilm, a Liberal Democrat Senator, and two liberal senators, Cory Bernardi and

Dean Smith, sought to remove the words ‘offend’ and ‘insult’ from Section 18C. This second proposal has also not, as of yet, come to fruition.

By the end of 2014 the government had abandoned any plans of amending section 18C, and despite Bob Day’s bill still being under consideration, a significant amount of attention surrounding freedom of speech had dissipated. When the French magazine, Charlie Hebdo, known for its satirical publications, had its headquarters attacked by terrorists, this brought new life to the freedom of speech debate in Australia. The attacks were a response to offensive cartoons depicting the prophet Muhammad. Some politicians such as NSW Solicitor-General Michael Sexton have used the attacks on Charlie Hebdo as a reason to mount a renewed push regarding freedom of speech.

There exists a curious connection between the Charlie Hebdo atrocities and the free-speech debate in Australia surrounding section 18C. The tragedy in Paris was religiously motivated, and as a result, if such drawings depicting the prophet Muhammad had occurred in Australia, the cartoonist would not have been sanctioned by 18C, as 18C does not cover speech or print related to religion.

The claims that Charlie Hebdo cartoons relating to Islam would be stifled by Section 18C is an example of misrepresentation.

Let us suppose that the satirical cartoons were produced in Australia and were racially motivated. Even if this were the case, it is unlikely that the cartoonists would be found to be acting unlawfully, due to Section 18D of the Racial Discrimination Act 1975.

Section 18D provides exceptions to 18C, and indicates that ‘Section 18C does not render unlawful anything said or done in good faith… in the performance, exhibition or distribution of an artistic work’. This could arguably apply to cartoons of a satirical nature. Race Discrimination Commissioner Tim Soutphommasane explained that a cartoon, such as those produced by Charlie Hebdo, dealing with Islam, which causes offence, cannot be covered by the Racial Edition 2, 2015 | 17

>> The Freedom to Offend?

“Interestingly, there is no express right to freedom of speech or expression in the Australian Constitution.

There is only an implied right.”

Discrimination Act 1975, as Islam is not defined as a race.

It should also be noted that courts have imposed quite a high threshold, when dealing with 18C. As a result, any claims that 18C provides a low threshold and severely inhibits free speech are incorrect. Indeed, Section 18C has only become a factor in severe cases of racial vilification. Jones v Toben is an example where the legislation has been applied.

In this case material was published on a website that implied the holocaust had not taken place and that if Jewish people were insulted or offended by this information, they were out for financial benefit or lacked intelligence. There appears to be no evidence to suggest that the measures imposed by Section 18C and 18D are too restrictive. On the other hand, some may point to the case of Andrew Bolt as an example of the laws being too stringent.

Although attempts to amend 18C have lapsed, the government is emitting confused messages regarding its future intentions.

Senator Cory Bernardi indicated that people had been ‘bullied’ into not going through with planned amendments to the act, explaining ‘the time for being bullied is over – we cannot negotiate with the intolerant’. When questioned, Warren Truss, acting Prime Minister, said that section 18C does not prevent people speaking about topics they feel strongly about and change was not necessary. Yet the Prime Minister was less clear when he spoke to 2UE, when he stated that ‘of course from time to time people will be upset, offended, insulated and humiliated… but it’s all part of a free society.’ ‘Sure we would like it to be polite but where it is not, so be it, because in the end the cornerstone of progress is free speech.’ Mr Abbott appeared to be indicating that being offended, insulted or humiliated is part of living in a democratic and free society, and that free speech, or 18 | The Brief

the right to offend, insult or humiliate, characterises a progressive society.

There exists a contradiction between political rhetoric and practical legislating, with regard to our political leaders.

Whilst not being exclusively guilty of such an offence, Mr. Abbott has demonstrated such contradictive behaviour.

Many champion the idea of freedom of speech, and suggest that 18C is preventing Australian citizens from exercising their rights.

Yet the same politicians go on to legislate the CounterTerrorism Legislation Amendment (Foreign Fighters) Bill 2014, which has restricted freedom of expression and speech.

If Section 18C is amended, it is perceivable that racial vilification and bigotry will increase, with the potential of further alienating disaffected minorities, many of whom are Muslims. It is this type of marginalisation that has the potential to drive those feeling disenfranchised by Australian society into the arms of Islamic State, or an equally radicalised organisation.

What do those who are in favour of amending Section 18C hope to achieve through such a pursuit? Is it to realise their fundamental right that is freedom of speech, through offending anybody in any way they see fit? As indicated, there is room for freedom of speech in an Australian context, and the threshold for speech which the courts will find is in conflict with 18C, is relatively high. Freedom of speech must be considered alongside other freedoms, and should not be discussed as if it exists in isolation.

Australia is a multicultural society, and such legislation ensures that people’s rights as members of racial, national or ethnic groups are respected, whilst only providing a modest imposition to freedom of speech.

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Edition 2, 2015 | 19

Moral Panic High but Anti-Vaxxers Low  Dusan Djukic

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accinations tend to be relatively painless, but why is it such a painful topic to discuss? The effectiveness of vaccines is unquestionable with medical advances highlighting that vaccinations are extremely safe, yet Australia still has an anti-vaccination movement. The new law that has been implemented regarding cutting welfare benefits to parents who don't vaccinate their children is counterproductive. Apart from the blatant infringement on freedom, of choice this approach would likely see anti-vaxxers pushed even further away from vaccinating their children. A right of choice is essential in a democratic system, and infringing civil liberties ought to be the last thing the Australian government should consider.

This article will deal with the battle between the greater good and personal choices, to ultimately suggest there may be alterative pathways that will increase vaccination rates without the need to limit freedom.

Vaccination The effectiveness of vaccines has been widely studied and is one subject that the 20 | The Brief

scientific community can agree with little or no reservation about its effectiveness to stop life threatening diseases like polio, smallpox and measles. Luckily for the people living in Australia, vaccination rates are high. However, moral panic about the issue of vaccination is surprisingly even higher. The problem is with those who who discredit scientific evidence on the basis that ‘vaccines are dangerous and more trouble than they are worth’. For example, the 1998 publication by Andrew Wakefield who claimed that an MMR vaccine was causally connected to autism resulted in extensive media coverage. Wakefield’s study has been discredited world-wide, but anti-vaxxers still claim professionals in all research fields at large are formulating a giant conspiracy theory. What the anti-vaxxers, and the media who fuel their irrational claims, seem to forget is that vaccines have prevented diseases in tens of millions of individuals. There is no debate about the effectiveness of vaccines, the issue is that people who don't vaccinate their children put others at risk, but does this mean we can vaccinate their children forcibly for the greater good? No, Australia is a

developed democratic society, this is much more ideal than the authoritarian machine that we may progress towards, if we enforce draconian policies such as welfare sanctions.

“If Australia is prepared to take the route of essentially, mandatory vaccination, this begs the question of how far we are prepared to take this sort of utilitarian thinking.”

Welfare Sanctions The Australian government has recently announced that people who refuse vaccination will lose their welfare benefits if they continue to object to vaccinations without justification. Certain questions arise as to whether freedom of choice applies or whether the state is correct in applying this measure to protect the community. An individual should have a freedom of choice irrespective of how incorrect their view may be. Under the current proposal, Australia is essentially forcing individuals to undergo mandatory vaccination, under the presumption that they might get it in the future. The current proposal would not work because it is targeting welfare recipients, when statistics show that the highest rates of parents not immunising their children are found in Sydney’s affluent eastern suburbs and the northern coast of NSW. Secondly, targeting an individual’s freedom of choice by essentially forcing them to choose between vaccination and benefits is coercion, and this coercion could push the parent in the opposite direction. There will be resentment towards the Government and uproar by the anti-vaccination movement which will point to this an an example of Australia’s ‘descent towards a dictatorship’. It is a social dilemma between freedom of choice for the minority against the collective gains of the majority.

Mandatory Vaccination If Australia is prepared to take the route of essentially, mandatory vaccination, this begs the question of how far we are prepared to take this sort of utilitarian thinking. Luckily, there are ways to curtail this infringement on civil liberties, but these do not involve mandatory vaccination or threats to cut

welfare payments. Only a small percentage of parents refuse to vaccinate their children, but the majority either simply forget or have some financial problems.

Social scientist, Julie Leask, from the University of Sydney indicates that it would be more effective to implement national vaccine reminder systems, home visiting programs, and more money spent on the health care sector. A study conducted in Britain and Netherlands over a 10-year period concluded that there is no difference in vaccination rates between countries that recommend certain vaccinations and countries that make them mandatory. There is simply a moral panic about anti-vaxxers fuelled by extensive media coverage when, in fact, [insert here the research/study that shows] Australia’s overall vaccination rates are very high, while anti-vaxxers are, luckily, relatively low. This is not the first time our freedom has nearly been eradiated due to moral panic, which is why Australia’s policies on vaccination should follow expert opinions within the scientific community and disregard hearsay evidence.

Freedom Vaccination is an ethical debate. Should the collective rights of society prevail over the minority? The government is currently heading towards a path of mandatory vaccination, which from a freedom perspective isn’t ideal.

Policies regarding coercion or forcefulness will likely push people who are against vaccination even further. Instead, there should be other measures that are more informative to tackle the minority who do not vaccinate their children. A freedom of choice is an essential ingredient within a democratic system, and if we start taking away these essential rights, we have to ask ourselves, what other civil liberties are we prepared to curtail in the name of the greater good?

Edition 2, 2015 | 21

Moral Compass: Lost at Sea  Cassie Puah and Eda Ince

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hen it comes to asylum seeker policy, there is enough reason to distrust private corporations and government decisions.

A recent and significant report, submitted by the UN Special Rapporteur on torture, Juan Méndez, has found that a number of aspects of Australia’s asylum seeker policies are in violation of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), a Convention that Australia has signed and ratified. The report reads: “The government of Australia, by failing to provide adequate detention conditions; end the practice of the detention of children; and put a stop to the escalating violence and tension at the (Manus Island) regional processing centre, has violated the right of the asylum seekers including children to be free from torture or cruel, inhuman or degrading treatment.”

The report also looks at several other allegations of physical, sexual and indecent assault as well as allegations that guards were leveraging sexual favours in return for marijuana and better living conditions. Most recently, 24 previously and currently employed social workers, psychologists, doctors and charity workers at the Nauru detention centre have stated that the current government has been aware of the sexual and physical assaults and harassment of children and women since November 2013. They claim that the Federal Government was routinely informed of these abuses, in writing and in daily meetings, with officers of the Department of Immigration and Border Protection; despite knowledge of these incidences, the government did not act.

22 | The Brief

MORAL AND LEGAL DEFICIENCY While it is true that for the most part Australia is a “multicultural and tolerant society,” the fact that the government and the media have successfully spun, the idea of “boat people” as a threat to the very fabric of our society, points to Australians being, in part, xenophobic. It then becomes easy to ignore our international obligations and instincts as human beings.

The well-being and freedom of asylum seekers subsequently becomes a ‘whitenoise’ problem that only gains attention when large-scale dramatic and shocking events occur, like the recent allegations of child sexual abuse. By then, it’s too late.

Some of Australia’s legal obligations to asylum seekers stems from signing and ratifying treaties including the International Covenant on Civil and Political Rights (ICCPR); International Covenant on Economic, Social and Cultural Rights (ICESCR); and the Convention on the Rights of the Child (CRC). Being a signatory of the UN’s Refugee Convention, Australia’s obligations are primarily to ensure that asylum seekers who meet the definition of a “refugee” are not sent back to a country where their life or freedom would be threatened. This idea has been incorporated into the Migration Act 1958 (Cth), termed as Australia’s obligation of non-refoulement. The problem is (and has always been) that while international law derives most of its power and legitimacy from a general observance of its rules, there exists no alternate means of producing compliance.

BAD FOR BUSINESS Australia should not be blind to the reality of the current detention centre system.

“The well-being and freedom of asylum seekers subsequently becomes a ‘white-noise’ problem that only gains attention when large-scale dramatic and shocking events occur...”

There is a massive private industry that thrives on keeping these “prison beds” occupied. Prime Minister Abbott states “that the only way to ensure we have no children in immigration detention is not to have any boats.” Indeed, if Australia were to “stop the boats,” it would prevent asylum seekers from risking their lives taking the voyage here. However, one cannot ignore the potential profit that the privatisation of detention centres stands to make.

One of the companies that benefits is Transfield Services Limited, which now runs the centres on Nauru and Manus Island, replacing G4S, on a $1.22 billion Australian government contract. They have been contracted to provide “garrison and welfare services” but predominately operate in the mining and property fields. The other is Serco, which runs the Christmas Island, Villawood (NSW) and Curtin (WA) detention centres.

There are no checks or balances, these companies operate very much like a prison system, except these “detainees” are not hardened criminals, many have experienced traumatic events and are in need of medical care. The sad fact is that they are unlikely to receive adequate care. This means that taxpayers are essentially being used to fund private companies in order to detain these refugees, both adults and children, without proper care.

WHAT NOW? It is axiomatic that a solution is not easily achievable, and it is political fear mongering that is at the heart of the issue.

This is what needs to be done: • It’s time to shut down inhumane offshore detention in Manus Island,

Nauru and Christmas Island. Instead, we need to readily adopt onshore processing to act in accordance with our international obligations.

• It’s time to be more internationally involved by working with the United Nations to aid countries with internal conflict. However, we must not force Western ideologies onto countries with said conflict, and consequently become contributors to the turmoil.

• It’s time to facilitate independent judicial examinations of opposing reports by ASIO on potential immigrants. The ASIO should have no power to censor the reviews when reporting to the parliament, and the Migration Act 1958 (Cth) should be revisited to question the “good character requirements” of applicants and the powers the relevant Minister has to deny visas. Applicants need to be made well aware of why they were denied a visa so appropriate appeals can be made.

Essentially, it comes down to compassion, joining together to assist these underdeveloped countries for the overriding objective of humanity. Rather than playing political games with the lives of the vulnerable, this is not only inhumane, but also advocates an “out of sight, out of mind” approach to the asylum seeker problem. This will indisputably leave another dark stain in Australian history. Australian governments as well as international partners must seriously consider the systemic issues that plague asylum seekers and act with compassion as an international community.

Edition 2, 2015 | 23

ADVOCATE

THE DEVIL’S

An Invasion of Sovereignty under the Pretence of Humanity

D

 Smeetha Jayakumar

espite a recent dip in the political, social and media support for the clemency bid on behalf of the Bali 9 ringleaders Andrew Chan and Myuran Sukumaran, both still remain “poster boys” for Australia’s anticapital punishment argument. This argument, specifically in regards to this duo, is based on the humanitarian opposition to enforcing capital punishment on reformed individuals presenting the cliché that “humanity is not constrained by sovereignty”. The argument also cites the Convention on Civil and Political Rights in which leniency is encouraged in carrying out the sentence of reformed individuals, particularly those who assist in the reformation of others.

Since the release of The Brief Online blog article on this subject, the execution of the pair has taken place on the penal island of Nusa Kambangan . On the 29th of April at 3:31am both Andrew Chan and Myuran Sukumaran were executed my firing squad along with 6 other death row convicts. In an immediate backlash the Australian embassador to Indonesia, Paul Grigson had been removed.

The recent budget has also seen a 40% reduction in aid towards Indonesia however given the extensive aid reductions across the board there has been speculation that this is unrelated to the bali 9 executions. While the public disapproval of the executions is still strong their has been some opposition to the aid cuts that were made.

Despite the strong sympathy and condolences all Australian’s offer towards Chan and Sukumaran’s grieving family neither appear to be the ideal characters to advance the perspectives of the anti-capital punishment debate. Both were justifiably charged and convicted for an attempted drug trafficking offence and sentenced accordingly 24 | The Brief

through Indonesia’s rule of law. The right to sentence convicted criminals is entirely within their state sovereignty. There are currently 33 countries that also impose the death penalty for drug related offences of which 13 enforce a mandatory sentence, raising the question as to why this pair was put forward to advance this cause. There are many alternate examples that could better support the anti-capital punishment argument without questioning sovereignty. An example could be the case of Rodrigo Gularte who was also executed alongside the bali 9 duo.

If the pair’s reformation is the primary basis for the extensive support for clemency, then the CCPR alone does not justify breaching state sovereignty. Regardless of their personal transformation, the pair was convicted in a fair and just trial for committing offences that they admitted themselves. Though the process of carrying out the sentence has been fraught with political and technical difficulties, it is still entirely within Indonesia’s right to sentence criminals according to its laws when the laws are applied in a fair and just manner. There is enough evidence to justify the conviction of the pair. Further there are currently no national or international laws stipulating that clemency must be provided when reformation is evident but rather that the power to grant clemency resides with the president. When this is the case, there appears no justifiable reasoning to pressure the Indonesian government to grant clemency in this circumstance.

Despite the statement that ‘all human life is valuable’, the degree of pressure placed on Indonesia to grant clemency and the martyrlike depiction of the duo is unjustified while sovereign rights are in place and capital punishment remains within Indonesia’s state law for drug trafficking offences.

ADVOCATE

THE DEVIL’S

Peace through superior firepower: the devil’s advocate takes on gun laws  Satyajeet Marar

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or most of us, the right to bear arms conjures the image of a redneck hillbilly in a souped up monster-truck painted in the confederate flag’s colours. He blasts “America, F**k Yeah!” out of his house sized subwoofer, his muscle car with a bigger carbon footprint than a bull in heat addicted to Mexican food. Of course, bald eagles in ray-ban sunglasses swoop by. The very concept seems alien to us. Why would we allow people access to those devious tools of terror that exemplify the kill-or-be-killed attitude of the mythical ‘hood’ immortalised by so many urban poets? But let’s reconsider for a second… what if our stance on gun laws is wrong?

We often hear that gun violence has significantly declined since the Australian firearm restrictions of 1996. However, a wider net of data shows that this trend was replicated in New Zealand and Canada – both countries having laxer gun laws than we do and where the drop in shootings did not coincide with any specific regulatory restraint.

Indeed, gun violence was declining even in the years preceding 1996 and the infamous Port Arthur massacre.

Perhaps we get it wrong by always thinking of America when we imagine an Australia with more guns. Perhaps another possible comparison could be Switzerland – where gun ownership rates are amongst the highest in the world, yet where the homicide rate is amongst the lowest. Australia, like Canada and New Zealand, lacks the cultural factors, insane wealth disparity, and inter-community

and class tension of America. Switzerland’s decisive factor is the compulsory firearms training meted to all citizens. This demonstrates that an educated, socially mobile society with a population that is empowered to protect itself but understands the power at its disposal is far more desirable than a restrictive society where the police are minutes away and the victim is seconds away from a brain soufflé.

Strict gun laws did not stop the Lindt Café lunatic from acquiring a sawn-off shotgun.

We live in a society where crazy zealots can acquire illegal firearms, but the average citizen is denied the right to equip themselves with even non-lethal methods of self-defence such as pepper spray (apart from WA) or a personal Taser. Does that sound fair to you?

Imagine a world where women are better empowered to protect themselves and their children from abusive partners. Where the goon staunching you for your textbook money has to think twice because you’re packing heat. Where even the madman determined to take lives can be stopped a lot sooner because of the good-hearted, well-trained Samaritan wielding a Colt .45.

I’m not saying that we should arm everyone and undo all firearm restrictions. Background checks, public education and even restrictions on specific firearms can function effectively in a society that empowers individuals to defend themselves. But maybe we could start by changing the conversation. Let’s start thinking about how we can create smarter weapon policies – not tighter ones.

DISCLAIMER: The Devil’s Advocate intentionally argues unpopular opinions for sport. Views expressed herein do not necessarily reflect the position of the author.

Edition 2, 2015 | 25

Ju S st o ic c e i C a or l ne r

Kimberley Community Legal Services Summer Legal Internship ďƒŚ Stephanie Triefus

I

n February and March of this year, I completed a six-week internship at the Kimberley Community Legal Services (KCLS), a community legal centre (CLC) located in Kununurra, Western Australia.

From living in Sydney, how did I end up in a small town within Kimberley? The internship was organised by the Aurora Project (Aurora), an organisation that recruits students and graduates with legal, anthropological and social science backgrounds and places them in underresourced Native Title Representative Bodies (NTRBs), Prescribed Body Corporates (PBCs) or organisations relating to Indigenous affairs.

Aurora is run by a small teams operating out of Redfern, they interview, recruit, brief and organise placements for over 100 students twice a year.

They also offer support throughout the placements and will often negotiate for organisations to pay for students’ flights and/or accommodation.

Having graduated from Macquarie Law School as part of the class of 2014, I am currently completing my Graduate Diploma of Legal Practise through the Australia National University Legal Workshop (ANU). ANU offers scholarships of up to $1,000 for students to complete their Legal Practice Experience (PLT) in rural, regional and remote areas where there are fewer lawyers and the local population has unique legal needs. I was placed at KCLS due to my interest in working in a remote area and completing my practical experience in a client-focused organisation.

Aurora are very flexible with placing students according to their interests or skills.

KCLS was a fantastic place to complete my internship and it was clear they had a lot of experience hosting students. The practice assists clients with matters involving: tenancy; credit and debt; family law; child protection; employment; criminal injuries compensation; government compensation schemes such as Stolen Wages 26 | The Brief

and the current Royal Commission into Child Sexual Abuse; consumer law; and, criminal matters. A typical day at the office involved meeting with drop-in clients; visiting or picking up clients from their homes and taking them to Housing (for specific needs e.g. pregnant women, victims of abuse, women in danger of abuse) or Centrelink; attending court; drafting letters and documents; making calls or researching; and, attending meetings. KCLS runs regular outreach services in Wyndham and Halls Creek, in addition to periodic outreach trips to remote communities such as Balgo and Kalumburu. The opportunity to see the Kimberley’s incredible countryside was one of the many highlights of my internship.

As an intern, I spent a lot of time out of the office and developed a different skill set to what I had previously acquired as a paralegal at an insurance law firm in Sydney. Many CLCs have close relationships with large commercial law firms and I found that commercial legal skills easily translated to a CLC environment.

Working directly with clients was fascinating and rewarding, particularly hearing their stories some of which included: being forced to work as stockmen; being taken away from their families; and, being abused as children, which was both confronting and humbling. Studying at university or watching documentaries are no substitute for the experience of speaking with clients about their lives and helping them understand the legal system.

My Aurora internship was an excellent experience that left me with many lasting friendships, as well as professional contacts.

More information about the program, placement options and how to apply can be found on the Aurora website: www.auroraproject.com.au.

If you have any questions, do not hesitate to contact me at steph.triefus@gmail.com.

Freedom to Self-Inebriation  Ama Somaratna

W

e consider our ‘level of inebriation’ to be the extent to which we feel altered; not sober. The feeling of inebriation signifies impairment, implying sobriety to be the ‘normal’. The question raised - Whether one should have a guaranteed freedom of self-inebriation. Mills’ harm principle asserts - One’s action or inaction, that has no impact on the interests of others, is a responsible exercise of individual autonomy. Application of the harm principle would suggest, it is imperative that the right of private selfinebriation be protected in all aspects of Australian law.

This cannot simply be applied with ignorance to the waves of problems caused by alcohol abuse in Australia. Alcohol related harm costs Australian society over $15 billion dollars every year. Factoring in crime and violence, treatment costs, loss of productivity and premature death alcohol related incidents amount to a total 3.2% of the total disease and injury in Australia. Research shows one in five Australians drink heavily at risky levels at least once a month, this is clear evidence Australians do not drink in moderation.

Alcohol is also a leading contributory factor in a number of other injuries, including 44% of fire injuries; 34% of falls and drowning, 47% of assaults, and 34% of homicides. Further evidence shows alcohol has been linked with up to 30% of motor vehicle accidents, the main cause of death on Australian roads Being a prominent and identifiable problem, Australia has strict laws relating to alcohol trade, duty of care owed by producers and distributers and strict alcohol advertising laws and guidelines. The individual therefore

exercising their autonomous decision to become inebriated, consequently walks a tight rope. Balancing individual autonomy and public interest.

Where limitation should be imposed on the right to self-inebriation For those who cannot admit to want, or act upon all of their desires, the weakening of cognition caused by inebriation may facilitate these actions or inactions. Alcohol has a reputation for bringing out a ‘true self’ through disinhibition.

The act of private self-inebriation itself should not warrant intervention.

The issue becomes contentious with regard to actions whilst inebriated. The inebriated person can be a burden upon society. It can impede upon the physical well-being of others, by presenting unprecedented dangers and causing economic burdens through reliance on the tax payer for their reckless engagements.

In Australian Criminal law the relevance of intoxication for the determination of the guilt or non-guilt of a person is set out under Part 11A of the Crimes Act 1900 (NSW). This section includes ‘intoxication’, not necessarily as a defence but a factual matter that bears importance in determining criminal responsibility. The question raised by intoxication, self-induced or otherwise, is whether the criminal act performed by the impaired mind can be defined as being voluntary, thus negating liability. The mens rea of most serious crimes is generally expressed as an intention to bring about the necessary actus reus of the offence. The question is whether a state of intoxication Edition 2, 2015 | 27

>> Freedom to Self-Inebriation

can be said to prevent the formation of the required intent. If not, should there be action to limit the freedom of self-inebriation?

In NSW, the law relating to self-induced intoxication was amended by the Criminal Legislation Further Amendment Act 1995 (NSW). These reforms marked a movement away from the common law position previously reflected in R v O’Connor which concluded in instances where intoxication is present, the action done by the physical body did not satisfy the intent of the crime, thus negating liability. The amendments of this act further saw a shift in favour of the conclusion in R v Majewski.

It was explained the preference for the Majewski approach is based on consideration for public policy with concerns for the existing social problems resulting from alcohol related crime. The committee submitted that if a person voluntarily takes the risk of becoming intoxicated, then he or she should be responsible for their actions.

The deliberateness of the action is usually a matter to be taken into account in the sentencing process on a case by case analysis. Intoxication at the time of the offence is often a relevant consideration in determining the degree of planning involved.

This approach balances protection of the individual’s autonomy whilst not negating criminal liability for one’s actions.

Civil liability takes a similar stance to action or inaction while inebriated, placing the onus on the individual. Public drunkenness is no longer an offence in itself in NSW. However, under s 206 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) a person who appears to be seriously affected by alcohol in a public place may be held by police if they are behaving in a disorderly manner; at risk of causing injury to themselves or someone else, or are in need of physical protection. The modern tort of negligence and the concept of a duty of care were established in Donoghue v Stevenson, where Lord Atkin stated: “You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be 28 | The Brief

likely to injure your neighbour. Who, in law, is my neighbour? The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions that are called in question.”

There has been a heavier focus on individual autonomy in many subsequent seminal cases including Cole v South Tweed Heads Rugby Club Ltd, whereby Chief Justice Gleeson reasoned that the law should protect the freedom of adults to make choices regarding alcohol consumption and thus any duty to mitigate alcohol consumption would be an intrusion into individual autonomy.

The notion of personal responsibility is reiterated in Australian law in the Civil Liability Act 2002 (NSW). Specifically with relation to the amendments made by The Civil Liability Amendment (Personal Responsibility) Act 2002 (NSW) which expressed in the Second Reading Speech and general parliamentary debates in the case of intoxicated clients in NSW, unless otherwise found, the loss is unrelated to the intoxication. A loss that is a consequence of self-inebriation is the sole obligation and responsibility of the injured complainant.

Inebriation complicates the perception of the individual. The discrepancy between ‘self’ and ‘not self’ is an issue arising within the legal system. Does the inebriated persons self include their ‘normal’ personality? Their ‘normal’ memories? Their ideas? The notion that the inebriated person is motivated by visceral reactions as opposed to intellect has been debated to reason the limitations on freedoms to self-inebriation. From the perspective of elevating individual freedoms, the act of voluntary self-inebriation is a choice made by the ‘normal self’, provided the decision is made without the presence of duress or other mitigating factors. Concluding: It is solely your responsibility not to drink to the point where you make reckless decisions.

If you choose to, the burden of responsibility will follow.

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AVENUES OF YOUR LAW DEGREE Refugee Advice and Casework Service Russel Alivio in conversation with Katie Wrigley, Principal Solicitor at the Refugee Advice Casework

1) As the principle solicitor at RACS, what roles do you play in providing legal services to asylum seekers and refugees?

RACS advises and represents asylum seekers in their applications for protection with the Department of Immigration and the Refugee Review Tribunal.

We also give family reunion advice and represent refugees in applications to bring their family members to Australia.

I’m one of thirteen lawyers and we get through a huge amount of work. It’s very much a team effort.

30 | The Brief

2) What steps do the RACS take to broadcast your services to those who may be of interest (financially disadvantaged individuals seeking asylum both in the community and in immigration detention)?

We have a website, but many of our clients hear about us through word of mouth.

Liaising with other service providers is usually the best way of making sure that asylum seekers are able to find out about us and make contact with the RACS. Because RACS has been around for such a long time - 26 years, we’re well known in the community, particularly so within the cultural communities of many typical source countries.

The longevity of our service provisions, has meant that we’re also well known amongst other service providers and so we’ve been pretty successful in making sure our clients know how and where to find us.

3) Due to funding cuts in last year’s fiscal policy, to what extent has RACS suffered detriment in it’s operation and client outcomes, with respect to the quantity and quality of services that your firm provides?

When the decision was announced to cut 85% of our funding, we made a number of strategic decisions. One of these was to employ a full time fundraiser and to focus on fundraising. Our first year of this new endeavor has been largely successful in that we haven’t had to reduce staff or compromise the quality of our services.

We are hugely grateful to our donors and those people who have decided to become a “friend of RACS” to support our work. We are also very well supported by a huge team of volunteers. We couldn’t get through the amount of work that we’re currently do without help from our volunteers and donors.

4) What initiatives does RACS undertake to find the best applicants for future RACS lawyers in NSW? We have a large number of lawyers and migration agents volunteering with RACS, in addition to students undertaking practical legal training placements with RACS. We try to support those from a former refugee background themselves, in obtaining training on doing legal work. This means there are usually a number of potentially fantastic future RACS lawyers out there in the world at any given time – it would be great to have jobs for all of them.

When positions come up they are advertised publically including on the ethical jobs noticeboard and also on the community legal centres noticeboard. We are fortunate in that the applications we receive when positions become available are often of a very high calibre.

5) Being able to manage a considerable portion of RACS, what advice can you give law students about persistence and determination when times get tough and seemingly impossible tasks arise?

As a leader in your organisation, what are some unconventional rituals, if any that you promote with your team, as a means of motivation or just for fun?

I think if you surround yourself with great people it makes a huge difference in your ability to continue through challenging times. Despite the many difficulties of the last year, I am extraordinarily and truly proud of the RACS team. We have some very sharp legal minds, pioneering and creative spirits and the team at RACS is one that operates with a lot of warmth and humanity.

One “ritual” that we do for fun at RACS is to play soccer – the beautiful game, every Friday lunchtime.

6) Looking back at the years of service to RACS, what are the ups and downs you’ve encountered, and how did you react to them?

A definite “up” in this jurisdiction are the results for our clients. I remember a Palestinian client of mine very clearly – his story was just extraordinary. Having experienced a high level of discrimination and eventual persecution based on his very reasonable attempts to live a quite ordinary life, it was remarkable based on all he’d been through that he was even alive. He’d been separated from his wife and children. He had never met his youngest child, who had been born in the car at an Israeli checkpoint. His wife and their other two children had not been allowed through to go to the hospital as punishment because of their association with him. Being able to hand him a permanent visa and then later meeting his wife and three children was amazing.

Personally I find the “downs” to be those moments when you realise that as, either a manager or as an advocate, there was something that could have been done better. In my experience in these instances I try not to beat myself up about it and to make sure I learn from the experience.

7) What do you suggest to those law students who want to be involved and maybe eventually work in the promoting of rights, fairness, and equality for asylum seekers and refugees?

Volunteering is a great way to get involved and do some really useful work to help asylum seekers and refugees directly. RACS could not deliver the amount of services that we are currently delivering to asylum seekers without our volunteers; the assistance is invaluable, very much appreciated by us, and is a highly rewarding experience in itself. I came to RACS initially as a volunteer, and I’d recommend that anyone who would like to work at RACS or a community legal centre to try to get some volunteer experience as it’s a great way to learn, get some experience and use your skills to help some really vulnerable people.

MORE ONLINE muls.org/brief Edition 2, 2015 | 31

undeer th ar rad  Sevanne McGarity

H

umans are inherently fallible and uncertain creatures.

Simultaneously we desire both perfection and control, yet are overwhelmingly dictated by convenience: perfection must be easily obtainable.

Consequently, our evolutionary history has been marked by a quest for convenience, achieved by the creation of technological aids. From the primitive stone tools of the Neanderthals, to the steam engines of the Industrial Revolution and now to the age of i-everything, technology has become our lifeblood.

Twenty-first century living, now relies on autonomous technology to regulate nearly every minute of our existence.

From monitoring our sleep cycles to wake us at a scientifically calculated optimum period for alertness; to informing us that we are well and truly over our daily calorie intake or have fallen short of our 10,000 steps; to managing our swiperight love lives, dictating the likability of our ‘foodporn’ or that mid-drift bearing ‘bralette’ you thought was a good buy.

Even the common vernacular is littered with tech-related terminology: i: 4, 5, 6, phone, pad, pod, watch. Snap, hashtag, @, tweet, like. The list of algorithm-dependent activities undertaken across the globe on a second-by-second basis is non-exhaustive.

Interestingly, this phenomenal change to our daily functioning has been dictated by an elite oligopoly of multinational tech firms. These include: the hero of the fruit 32 | The Brief

Just

Google It world, Apple; the always eager but still wannabe little brother, Samsung; Microsoft (sans characterisation, much like the brand itself); and the monolith, Google, which has infiltrated our hearts and minds to such an extent that contemplation of its non-existence sends shivers down most people’s spines: ‘you want me to look that up in a b-b-b-book?!’

And now move over Thermomix, introducing the latest micromanaging, lifesimplifying, perfection-seeking gadget: the self-driving car!

These autonomous vehicles, whose distinctly anime-cutesy exterior has been likened to a fluffy marshmallow, are intended to make the roads safer - removing error, by superseding humans.

This seems like a simple solution to a catastrophically large problem. In NSW alone, as at May 6, 115 people have already died in road related incidents.

With a speed limit capped at 40 km per hour, these marshmallows are hardly speed demons, but they do present considerable challenges legally. How is their usage to be regulated? How will insurance work? Where do we apportion liability? To the owner, the manufacturer, or the computer programmer?

Or, if these cars are infallible, to the other driver, whose human error caused the accident? Morally this poses another issue.

In the event of a crash, can we allow an unfeeling and amoral inanimate machine dictate which party is injured? It’s a moral dilemma thought experiment on steroids.

With a predicted release date of 2020 in the US, these are questions that need to be answered. Presently, only three American states have attempted to tackle regulatory issues, passing legislation to govern the legal use of driverless cars. As completely novel territory, the legislation will necessarily require extensive consideration, as prior to this even a definition of ‘driverless’ was non-existent.

This is something for which the law has never had to specifically accommodate.

There are a few major issues that plague the usage of all autonomous machines that need to be addressed in legislation.

Particularly pertinent are issues of cybersecurity. With respect to self-driving cars specifically, privacy is a key concern due to the vehicles use and collection of neighbourhood data. Furthermore, there is a great need to ensure against hacking and the hi-jacking of the technology. The functionality and operative ease of a vehicle’s manual override are also hugely important issues for legislator consideration.

And what about licensing and vehicle operation? Will a special driverless test and licence exist to accommodate for the different level of driver/operator participation entailed?

Furthermore, how should those unable to drive conventionally functioning vehicles due to some impairment be regulated?

A fine regulatory balance is needed between an excessive legislative framework that stifles innovation and ensuring public

safety by making adequate provision for the legal treatment of a rogue marshmallow.

Nevertheless, driverless cars have significant potential and do offer great benefit, particularly to those who have been precluded from driving due to some disability or their age. These vehicles promise a new or renewed level of independence and empowerment to marginalised or immobile road users. There are also several environmental and social benefits in favour of driverless cars, such as potentially reducing the need for car parks and easing traffic congestion amongst others.

For law and ethics these self-driving cars bring a new dimension of discourse – for society. Even as I sit and write this short, I am observing two women, one in her 50s and the other, a fresh-faced 15 year old. Both are staring intently at the shiny screens in their palms, tapping away at their virtual world, barely cognisant of the passers-by or the out-of-tune karaoke session that has just commenced in the adjacent courtyard. Interspersed between their swipes and scrolls, the 15 year old pouts her lips, furls her nose and takes a cheeky ‘selfie’. A second later her deadpan face returns and the pattering of her fingers continues.

Technology has become inescapable.

The challenge for us now is how society and the law choose to embrace it.

Edition 2, 2015 | 33

The House of Ideas  Samantha Bodell

A

ustralia. Human Rights. Politics. At the Sydney Opera House on 3 May 2015 The Brief engaged in discussion on ‘Ideas for a Better Australia’.

We herd into the theatre room, and are greeted by the rambunctious voice of our host Mark Carnegie. He enthusiastically, yet satirically, lists and criticizes the events in recent months; the execution of Bali 9 participants in Indonesia was no exception.

I cannot speak for the rest of the audience, but I could not help but wonder what are the exceptions? What is it that we will and won’t put up with as people, as Australians as a nation?

Commentary and discussion ensued in relation to what Australia actually is. What is the Australian identity? We posed these questions to the trifecta of authorities on the matter - Nick Bryant, Marcia Langton and Rebecca Huntley. Bryant made the point that there is a deep dissatisfaction with the Australian government and its politicians; suggesting this is reflected by how often we choose to re-elect a new Prime Minister.

However, re-elections only endure this repetitive cycle because we do not feel our current government reflects our political ideologies. Which in turn has churned out a political class of it’s own.

Contrastingly, Huntley stated that the worst problem that continues to corrupt the Australian identity was our failure to acknowledge, facilitate and support diversity; particularly refugees and migrant workers.

We desperately fail to recognise their sense of belonging and commitment to our culture, economy and political sphere. The political infrastructure and atmosphere is so hostile and unstable at the moment. Therefore, in order to have a homogenous Australian identity we need to change this and have more diversity represented in all socioeconomic and political factions.

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It became more apparent that politics represented a large part of the problem. Tony Windsor identified that this was because politicians are so fixated on arguing over disagreements in lieu of meeting Australia’s short-term political goals. Keeping in mind that in the political circle, a long-term perspective is 3 to 4 years.

Ann Sherry, however pointed out that it would be impossible to meet any political targets unless we adopted a democratic system that reflected 21st century Australia. It was argued the only way to begin to address real issues, is to move away from a system that is no longer helping Australians.

Political infrastructure is not our only hurdle when it comes to human rights.

According to Chris Berg, we also need to address outrage culture. This is a culture of the Australian public reacting to legislation or policy amendments, so much so that policy makers abuse the law without understanding or investigating the legal repercussions – with the purpose of avoiding public outrage.

Berg was passionate about our right to free speech, insisting that we have too many restrictions on freedom of speech.

Julian Burnside was quick to agree with Berg’s criticisms, and equally as quick to appraise the importance of good manners, he highlighted that s18D of the Racial Discrimination Act was essentially a ‘good manners’ exemption to any breach of s18c. In regards to human rights, the held that one of biggest problems in contemporary Australia was the Commonwealth threatening staff and personnel on Manus Island with their jobs, if the inhumane conditions were contested.

Burnside encouraged that there is always a legal loophole and that we should never allow fear to trump ideas.

These are their ideas.

What are yours?

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