Macquarie University Law Society magazine
Edition 3, 2017 (Volume 23)
Edition 3, 2017 | 1
STAY TRUE.
2 | The Brief
Staying true to your direction is what defines Clayton Utz. We’ve built a culture that’s unlike any other law firm, but don’t just take our word for it. A good lawyer needs compelling evidence so meet our people and judge for yourself. claytonutz.com/graduates
Academic brilliance certainly counts, but graduates who thrive here have something extra – a natural passion for connecting with people and a strong sense of self. That’s what staying true is all about. If you have these qualities, Clayton Utz is for you.
CONTENTS
12 18 20
FEATURES
In Conversation: Sex, Technology & Criminal Justice Zara Bending, Shireen Daft and Noelle Martin Cryptocrime Alice Kang Taking revenge on ‘revenge porn’ James Woodward
23 26 28 31
8 10
What's New in the Law? Emily McGeorge [Social Justice Corner] Reporting about Violence Against Women Maddison Passarelli [Devil’s Advocate] Judicial Misconduct Jessica Coventry and Shivani Gosai
Resist and Persist Olivia James Is one really known by the company one keeps? Dean Pefani Re-Accessing Justice Mohra Fazel ADDITIONALS
IN CONTEXT
6 7
Metadata, surveillance and ‘serious’ crime Ellen McCrea
35 36 38
[Stuff Law Students Like] Textbooks (with a side of smashed avo) Tessia Tan [A Postcard from Abroad] Jemima Bissett in Hong Kong Nick Owczarek [A Brief Review] The Good Wife Briellen Sands
[Under the Radar] Involuntary Rehabilitation Madison Thorne
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T Editor’s Welcome Nick Owczarek Editor in Chief
he law has always found it difficult to keep up with the pace of technological change. This is particularly evident when it comes to crime – the theme of this edition. It should therefore be no surprise that the feature pieces in this edition heavily focus around technology use and the criminal law in varying contexts. Yet despite the challenges of legislating in the space where technology and crime intersect, it is worth noting that there has been important legislative reform in NSW through the passing of the Crimes Amendment (Intimate Images) Act 2017 – a significant step in tackling ‘revenge porn’. However, amendments to other non-criminal legislation such as the
O President’s Welcome Rhiannon Bell President Macquarie University Law Society
4 | The Brief
n behalf of MULS, welcome to the final edition of The Brief for 2017! Our Editorin-Chief, writers, sub-editors and designer have produced an amazing edition. I hope you enjoy the read. On a similar note, we are exceptionally proud of our Careers Guide. In case you missed it, it contains valuable information and interviews with people at varying stages of their careers. Thanks also to the MQ Career and Employment Service for their assistance with the Options with Law Fair. For further assistance, I recommend visiting the Career Hub for job opportunities, tips on applications and interviews, and appointments with the Career and Employment Service staff. We’d also like to thank the Learning Skills team for their help with our educational events earlier in Session 2 – I
Telecommunications (Interception and Access) Act 1979 (Cth) in 2015 mandating the retention of metadata for law enforcement purposes raises questions about the infringement of civil liberties. Both amendments are carefully analysed in this edition. Our writers have poured a great amount of research into their pieces. From the abovementioned topics, to the legality of abortion, the over-representation of ATSI peoples in the criminal justice system, cryptocurrency crime and consorting with criminals, this edition really does cover it all. This is the last edition of The Brief for the year and my final edition as Editor. Thanks for reading along, and I hope you enjoy!
highly recommend their services for academic assistance! We also had some great Social Justice events, including our Access to Justice seminar, Will It Your Way event, and Victims and the Law Speakers Night. This Friday (6 October), we have our annual Social Justice Trivia Night, which is always an enjoyable (and competitive) evening. October is also our Mental Health Month, so keep an eye out for our Jumping Castle, Bake Sale, and Free Massages. Our Competitions have been even stronger this year, with our new Novice Moot and the continuation of the Foundations Moot, Client Interview, Negotiations, Witness Examination, and Paper Presentation. If you would like to enter these competitions in future, I would strongly encourage you to attend the upcoming Grand Finals
Events
Come along to the final MULS events of the year!
MULS Social Justice Trivia Night Bristol Arms Hotel, Sydney Friday 6 October, 6:00pm
Negotiations Grand Final Tuesday 31 October
Witness Examination Grand Final Tuesday 7 November
Novice Moot Grand Final Monday 9 October
Edition 3, Volume 23, May 2017
Editor in Chief Nick Owczarek Deputy Editor Swatilekha Ahmed
Law Ball International Convention Centre, Sydney Saturday 4 November, 7:30pm
Junior Client Interview Grand Final Wednesday 8 November
Designer Nathan Li Writers Emily McGeorge, Maddison Passarelli, Madison Thorne, Shivani Gosai, Jessica Coventry, Alice Kang, James Woodward, Ellen McCrea, Olivia James, Dean Pefani, Mohra Fazel, Tessia Tan, Briellen Sands Subeditors Avnoor Guron, Raveena Randhawa, Tashfia Tasnim, Jane Lee, Emma Breislin Editorial Review Ellen Fitzpatrick Macquarie University Campus Engagement Sarah Li Yee Lien Director (Publications), Macquarie University Law Society
Foundations of Law Moot Grand Final Thursday 9 November
Images Shutterstock unless otherwise stated.
See the MULS Facebook page event list for more details!
(President’s Welcome continues) to watch Macquarie University’s best competitors. Elections are also coming up – be sure to have a read over the statements and Q&As of our candidates. Voting will be held from 10-12 October via iLearn. You can also come along to our Annual General Meeting if you’re keen to get involved in future years, and would like to hear a reflection on our achievements this year. And finally, the event you’ve all been waiting for: Law Ball. We recognise that many students miss out each year, and thus went with a larger (albeit more expensive) venue for 2017. I hope that many of you were successful in purchasing tickets. It’s time to get the squad table together, pick out the perfect dress or suit, and get ready for the greatest night of the MULS social calendar! All the best with upcoming exams, and thank you for reading my welcomes in 2017. I wish you all well in your future endeavours.
The Brief would like to thank Zara Bending, Shireen Daft and Noelle Martin for contributing a special feature piece for this edition, as well as Jemima Bissett for agreeing to be interviewed for ‘A Postcard from Abroad’. The Brief’s print edition is published three times a year by the Macquarie University Law Society, Sydney, Australia. View our Facebook page on www. facebook.com/thebriefmuls or our website on thebrief.muls.org. Disclaimer: All views expressed herein are those of the individual authors and do not reflect, in any way, the attitude of the Macquarie University Law Society. The Macquarie University Law Society does not accept any responsibility for the losses flowing from the publication of material in The Brief. Winner – ALSA 2017 Best Online Activity: The Brief
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What’s new in the law? An overview of significant changes to NSW legislation this year Emily McGeorge
Greyhound Racing Act 2017 (NSW) Following the controversy surrounding greyhound racing in New South Wales, the Greyhound Racing Bill was assented to on 11 April 2017. This Act removes the previous prohibition on greyhound racing and introduces the Greyhound Welfare and Integrity Commission to enforce ‘a code of practice for the welfare of greyhounds that contains standards relating to [their] care and treatment’. The Act also imposes a lifetime ban on any involvement with the industry for those who are found guilty of live baiting, alongside s 530 of the Crimes Act 1900 (NSW), which notes live baiting is a ‘serious act of cruelty’. NSW MP Paul Toole stated that ‘many of us are sickened by those who do the wrong thing…We also acknowledge the genuine willingness of the industry to change its ways.’
6 | The Brief
Liquor Amendment (Reviews) Act 2017 (NSW) This Act implements the reforms within the ‘liquor reform package’ recommended by the 2016 Independent Liquor Law Review, headed by former High Court Justice Ian Callinan. The ‘three strikes’ disciplinary scheme has been amended so that the licensee or manager of the licensed premises incurs the strikes rather than the license itself. The Act also authorises the Independent Liquor and Gaming Authority to suspend licenses rather than the Secretary of the Department of Industry. Tattoo Parlours Amendment Act 2017 (NSW) To address the issue that tattoo businesses are commonly used as fronts for organised crime, this Act has been introduced to address administrative issues regarding the renewing of licenses for tattoo parlours. This Act is an attempt to ‘improve the efficiency and effectiveness of the tattoo parlour regulatory scheme’. In renewing or granting licenses, the Commissioner of Police is given the authority to make an ‘adverse security determination’ depending on whether the applicant for a license has a ‘close associate...[who] is not a fit and proper person’.
Emergency Services Levy Act 2017 (NSW) Assented on 27 June, this Act reintroduces an emergency services contribution scheme that replaces previous schemes under the Fire Brigades Act 1989 (NSW), Rural Fires Act 1997 (NSW) and State Emergency Service Act 1989 (NSW). This allows for a single contribution from insurers to the Chief Commissioner of State Revenue, as well as payments made by landowners and lessees alongside council fees. The Act also postpones the levy that would have been imposed by the Fire and Emergency Services Levy Act 2017 (NSW). Firearms and Weapons Legislation Amendment Act 2017 (NSW) Among other amendments, this Act enables technical changes to the National Firearms Agreement. This was recommended by the Joint Commonwealth-NSW Review into the Martin Place siege. It provides a temporary amnesty for those who hand in unregistered firearms, firearm parts and ammunition, as well as clarifying firearm categories. This Act recommends a transition period of three months for the NSW Police Force to implement changes.
Social Justice Corner Accurate or Misleading?
Is the media playing a damaging role when reporting about violence against women? Maddison Passarelli
W
e live in an era where our thoughts, perceptions and understanding of various issues are greatly influenced by the myriad of media platforms with which we choose to engage. However, despite the role of the media in accessing information, news and events, it has also played a damaging role.
Both mainstream media and social media platforms report regularly on violence against women. While these platforms have played a key role in encouraging dialogue on the issue, a recent study conducted by the Centre for Mental Health at the University of Melbourne School of Population and Global Health highlights Australian media reports on violence against women continue to victim blame. One in six news articles perpetuate the idea that the victim was somewhat responsible for the violence inflicted upon them. While it is hard to fathom that the media would perpetuate the idea that victims are responsible for the violence committed against them, the #FixedIt movement headed by journalist Jane Gilmore has brought to light how misrepresentation is alive and well in media headlines alone. Rape, physical and sexual assaults and murder are the crimes the Australian media holds victims accountable for. The headline will generally follow a formula: ‘Former rugby union star jailed for raping drunk teenager’ or ‘Brothers jailed for rape of sex workers’ or ‘Murder victim suspected affair’ or ‘Murderer was on “merry-go-round of addiction” with victim’. When read in isolation, the issue with these headlines becomes evident – they cloud the narrative on who is responsible for violence against women. These women did not play a role in the violence inflicted upon them, but our national media platforms continue to portray violence against women as self-induced. These headlines are not only failing to highlight the severity of the crimes, but fail to recognise the issue for what it actually is. As a result, the Australian media has inherently
plagued our perception of victims, which has not only impacted the way in which victims view themselves and the trauma they have experienced, but also influenced the way in which people respond and address the issue of violence against women, evident in the normalisation of violent subject matter in humour and insensitive jokes. To overcome this issue, the study conducted by the Centre for Mental Health notes that Australian media and journalistic practices need to shift their agenda towards highlighting the full story. This can be done through truthful reporting on the social context in which the violence has been perpetrated by the offender, using the correct language and terminology when reporting violence against women, avoid blaming the victim, avoid excusing the violence that has been perpetrated, consider how source selection shapes and reflects the story, and above all else, don’t simply write the story, but also provide useful information on where women who experience violence may be able to seek help. Ultimately, if there is one thing we should note, it is that words are important, and they hold the power to persuade the narrative, as well as public opinion and community values. Perpetuating deception in reporting violence against women not only hinders the court of public opinion, it hinders the reporting process of violence against women as a whole. The public holds the power to change the narrative and to hold relevant media platforms and people accountable. In order to fully understand violence against women, we must overcome the myths and misrepresentations presented to us in the headlines. Words hold the power to shift responsibility, blame and perception. It is about time perpetrators took responsibility for violence against women. If you have experienced, or are at risk of family and domestic violence and/or sexual assault phone 1800 RESPECT (737 732).
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Devil’s Advocate
Our legal framework surrounding criminal justice adequately and effectively regulates judicial misconduct Thesis:
FOR
Jessica Coventry
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T
he former High Court Chief Justice Gerard Brennan once said to newly appointed judges in 1996 that: ‘the standards of Caesar’s wife are the standards that others will rightly apply to what you say and do and, having a high conceit of your judicial office, they are the standards you will apply to yourself.’ Judges play a pivotal role in administering justice and enforcing the law. Their positions bear a lot of responsibility, requiring a strong understanding of the law and the capacity to exercise reasonable judgment. Judges are expected to be impartial, of good character and carry out their duties with integrity. Due to the important role judges play as adjudicators in society, they are often held to a higher standard than others and expected to carry themselves in such a way that respects their role. The need to protect the separation of the judiciary from other branches of government means that judges in office cannot be subject to the same direct discipline, except for in extreme cases. Judges are afforded judicial immunity under state and federal legislation. The rationale for this immunity is often explained as a means to protect the separation of powers. As the judiciary is a separate institution from the executive and the legislature, judges are expected to carry out their duties without undue influence from external factors. Judicial immunity is not absolute and not provided for the personal benefit of judges. It is afforded to protect the judiciary from unnecessary scrutiny
and to uphold the separation of powers. Judges are not considered above the law and not protected from civil and criminal liability. Judges are subject to the same laws imposed upon society and subject to the same punishments. Judicial immunity is only afforded for acts in office and it does not extend beyond this. Judges may be suspended and removed under the Judicial Officers Act 1986 (NSW) and the Constitution. A judge may be suspended if a complaint has been made about their conduct or if they have been charged or convicted of an offence punishable by imprisonment for a year or more. A judge may also be removed from office for proven misbehaviour or incapacity. For example, former Supreme Court Justice Marcus Einfeld was sentenced in 2009 to three years imprisonment for perjury and attempting to pervert the course of justice. He was removed from office and stripped of his Order of Australia for lying about a speeding fine. Cases of removal and suspension are limited – this can largely be attributed to the public nature of a judge’s duties which effectively holds them accountable at all times. Further, the requirement to provide reasons for judgments, as well as the added scrutiny which comes from appeals, entrenches accountability into the judicature. Cases in which judges have been charged for an offence and (potentially) avoided harsh reprisal for their actions through resigning can also be seen as an effort to enhance public confidence in the judiciary while avoiding compromising the reputation of other judicial officers.
AGAINST Shivani Gosai
C
rime is inevitable, which is why the responsibility of delivering justice for victims, perpetrators and the community is bestowed upon judges deemed most honourable. Issues of uncertainty arise, however, when it is our honourable judiciary that are caught in the midst of criminal conduct. Who will judge the judges? Judges are afforded immunity when exercising their duties. In a Commonwealth Law Conference in 2005, former High Court Chief Justice Murray Gleeson stated that: ‘confidence in the administration of justice depends upon a general assumption that judges act according to law, and free from pressure or interference of a kind that might deflect them from their duty’. In 1988, however, then Justice of the Supreme Court of Queensland, James Thomas, reflected upon the circumstances of the former High Court Justice Lionel Murphy, contending that much of the confusion surrounding his conduct was firstly around the failure to identify ethical issues, and secondly the correct procedure to address accusations against judges for misconduct. Further examination of this controversial case will assist in addressing accountability of judges for misconduct, or lack thereof. Appropriately, Australia and its respective states and territories have created a legal framework to regulate judicial misconduct, but behind the façade lies the reality of a weak mechanism for enforcement in effectively holding judicial officers accountable. And the penalties? Well, what penalties? Generally, the law in Australia around regulating judicial conduct and addressing any complaints has been to reaffirm the rights and duties of judicial officers in accordance with the Constitution. Furthermore, the Judicial Commission of New South Wales, an independent statutory corporation, was established in accordance with the Judicial Officers Act 1986 (NSW) with the aim of continually enhancing
public confidence in the judiciary by promoting high standards of judicial behaviour. Their powers, however, are limited to purely assessing complaints and providing further education and training to judicial officers in NSW. It is therefore clear that the legal framework is weak and this challenges the effectiveness of the law. The controversies around former Justice Murphy are indicative of this. Subjected to two parliamentary inquiries and two criminal trials, he was found guilty in the first trial and sentenced to a period of imprisonment but later acquitted upon appeal. Following his return to the High Court, fresh allegations of misconduct emerged, in which Murphy had been accused of attempting to bribe a federal police officer. A plethora of secret investigations and enquiries went on to reveal Mr Murphy’s questionable character, his association with figures from the underworld, and general lack of honesty and integrity, particularly as a judicial officer of Australia’s highest court. Before another parliamentary inquiry commenced, however, Murphy passed away, tainting his reputation and with it, the integrity of the Australian judiciary. Judicial officers are called upon according to their merits and ability to service their office to the best of their ability and in accordance with professional standards and societal expectations. In a 2001 address, former High Court Justice Michael Kirby confirmed ‘transparency and accountability are required of the performance in office of all public officer-holders. The judiciary is not exempt.’ The regulatory framework governing our judicial officers is evidently ineffective as demonstrated by the controversial Murphy issue. There is no doubt that judges occupy one of the highest and most notable offices, but this should not excuse behaviour and misconduct that would not be excusable in any other circumstance. This calls for reform.
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Under the Radar
Involuntary rehabilitation versus civil liberty Madison Thorne
Lee Nixon. Of course, civil libertarianism stands on commendable grounds. It exists to counter the repressive, autocratic power systems that may eventuate if power was uncurtailed and arbitrary in this country. eanne Thompson, a Brisbane mum of five, However last May, former WA Minister for flies 2,800 km every week 10 days to watch Mental Health Andrea Mitchell announced her state over Daniel, her homeless, drug addicted would disregard civil libertarianism and implement son, on the streets of Melbourne. compulsory involuntary admission to rehabilitation Once a week with a sleeping bag and blanket programs by 2020. ‘I’ve got a responsibility to in tow, she bids a temporary farewell to her four balance the rights of the individual with also other children, to keep protective tabs over her protecting the community. I need to do that with once-thriving son. She sleeps it rough beside him, burglary and assaults, which are gazing on as he falls deeper down often the result of people with a his drug-affected path. Through her “Compulsory meth problem. There are so many observations, Leanne has confirmed or involuntary families out their begging us to do he’s become a penurious destitute. admission into this,’ Ms Mitchell said. ‘[F]amilies ‘I don’t even know what state his rehabilitation is [have said] “Please, put my son or brain is in. We’re desperate to get used as a last resort daughter in jail so they can at least help for our baby boy,’ she says. Now 25 years old, Daniel and as a life-saving get away from the systems that are completed his HSC, attained a measure in Victorian causing this addiction to meth”.’ Clearly the former Minister TAFE certificate in Horticulture jurisdictions” believed civil libertarianism had and had managed to secure a full to temper to consider that drugtime landscaping job. Now addicted dependent individuals are often not of a sound to synthetic drugs and ice, he’s become the public enough mind to exercise their personal choice and face of a vehement push for law reform. Rallying freedoms in their own best interests. for the legalisation of court-ordered involuntary In terms of Leanne’s son, her public plea sparked admission to drug rehabilitation facilities, Leanne authorities to review her son’s treatment. ‘[We] says civil libertarians and nanny state opponents are proactively looking into this matter and will need to understand a rather grim reality: when investigate the care options for [Daniel] to ensure drugs are involved, an individual cannot work out, [he] is receiving appropriate support,’ Victorian autonomously and independently, what is best for Department of Health and Human Services them and intervention is warranted. spokesman David Stockman said. Currently, compulsory or involuntary admission The Salvation Army’s Major Brendan Nottle into rehabilitation is used as a last resort and as a has also seconded Leanne Thompson’s push for life-saving measure in Victorian jurisdictions. Those involuntary rehabilitation. ‘It would be great if that identified as at risk of ‘less immediate’ harm like Daniel type of opportunity was available – in some cases it’s cannot be forced into mandatory programs, despite the what will keep people alive.’ presence of their imploring family members. As the homeless epidemic continues and the drug The reasoning for this is based on civil addiction that is often intrinsic to the phenomenon libertarian arguments. Ideologically, civil continues to flourish also, this polarising debate will libertarianism is resistant to any authoritarian undoubtedly continue. interference with personal freedom and choice. ‘It Hopefully, it will not indeed fly under the radar. is a terribly slippery slope if we take someone’s liberty away,’ says addictive medicine specialist Dr ‘My amazing boy left a loving family and a great job to end up a homeless zombie smoking synthetic weed.’
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GENEVA SEKULA At the start of 2015 when my law school was abuzz with the prospect of completing clerkships, I had not decided if I was even going to apply. I had heard a lot about cocktail nights and canapés and interviews, but I didn’t know much about what completing a clerkship actually entailed or why I should sacrifice my beloved summer holidays to do one. Having spent the summer at Allens, I can definitely recommend doing a clerkship. It’s an invaluable way to see the inner workings of a commercial firm.
opportunity to experience first-hand how commercial law operates in a different legal system. I had some memorable experiences zipping through Saigon traffic on a motorbike and visiting tourist hotspots; certainly different to the weekends I would have been having at home! Although I didn’t come back particularly fluent in business Vietnamese, I definitely came home with a broader international perspective on commercial law, and felt privileged to have been able to experience life in one of the Asian offices.
I was unspeakably nervous on the first day of my first rotation. I had never worked in a law firm before and I was concerned that I didn’t remember an awful lot from my first year Contracts class at university. I needn’t have worried. That first day I hardly got through any work because the people in my team kept stopping by to say hello, have a chat and see how I was going with everything. I was amazed at how genuinely interested everyone was in getting to know me and making sure I was feeling confident in my work.
I was exposed to lots of different work during my time at Allens. I helped to draft letters, write research memos, conduct title searches, proofread contracts, and attend meetings, among many other things. But the summer was much more than simply doing a job. It was an opportunity to learn the ins and outs of the firm and we went to a number of seminars which helped to shed more light on the culture of the firm. We heard about Allens’ pro bono work and presence in the community and about the alliance with Linklaters, we heard from a panel of partners who gave us insight into their career progression with the firm, and we heard from a panel of graduates who answered any and all of our questions. I attended Christmas parties (yes, plural), was invited to welcome yum cha, and had many, many coffee catch-ups with lawyers and other clerks. Beyond the legal work and the firm, the clerkship is a great way to expand your social networks. We also went to inter-firm trivia nights and the clerk cruise, and had lots of other opportunities to get to know each other, and the clerks at other firms.
This was indicative of the wider culture of the firm and I was deeply impressed by how supportive and enthusiastic everyone was, and how much time the lawyers were willing to take to explain tasks to me or answer my questions. The firm instigates a formal support network with a buddy, development lawyer and supervising partner, which was a great source of comfort and helped to keep me on track. But, beyond that, there were plenty of lawyers who were keen to get involved with the clerkship and offer their help and feedback. One of the reasons I decided to go to Allens was because I saw it as a firm where there would be opportunities to work overseas, and having an international dimension to my career was important to me. I hadn’t ever guessed that my first chance to travel with Allens would be in my sixth week working for the firm. After the Christmas break, instead of boarding a train to Wynyard, I found myself boarding a plane to Ho Chi Minh City where I was to complete a three-week rotation. The Ho Chi Minh City office was very different to the Sydney office. For one thing, it was a lot smaller, and the contracts were in both Vietnamese and English. I had an amazing time in Vietnam experiencing different food and a different culture, but also having the
Allens is a firm full of opportunities. In 10 weeks I travelled internationally, went on an overnight trip to a client office, went on a tour of a coalmine, experienced a Women at Allens panel, visited the Sydney Children’s Hospital, and had the chance to work on pro bono matters. I can’t tell you exactly what to expect from an Allens clerkship, because you never know what opportunities will be there for you to take. The clerkship program gives you the chance to peer inside a commercial firm and to think about your future. I loved my time with the firm and can’t wait to start my career. A clerkship with Allens feels like unlocking the door to an incredible future and I would recommend it to anyone.
CLERKSHIPS AND GRADUATE OPPORTUNITIES Edition 3, 2017 | 11 WITHIN A GLOBAL NETWORK
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A special feature
In Conversation: Sex, Technology & Criminal Justice Zara Bending, Shireen Daft and Noelle Martin
For ‘Criminal Law’ to resemble anything akin to ‘Criminal Justice’, we require lawmakers to remain vigilant and engaged in real-world discourse about contemporary values and practices. In moving towards statutory relevance, we have seen young people increasingly come to the fore to discuss how notions of ‘consent’, ‘power’, and ‘harm’ play out in real life and online. Inspired by Noelle’s recent advocacy – which has since materialised into a resounding victory with the passing of the Crimes Amendment (Intimate Images) Amendment Act 2017 (NSW) – we decided to grab a coffee and chat about how NSW law has evolved with respect to sex offences, including how it measures up when it comes to troubling ‘trends’.
12 | The Brief
Zara Bending Z : I think that between the three of us, we have reasonable levels of tech-savviness and social awareness to discuss how certain sex offences are committed and/or fuelled online? Shireen Daft S : Well, we have cumulatively spent a lot of time at university so I hope so… Noelle Martin N : The thing with technology is that it’s opened the floodgates to all these different ways for people to hurt each other online. The violation and loss of agency is very real and has consequences for victims that can last the rest of their lives…but the cyber presence is often lost in the conversations we have about sex offending, even recently with the Australian Human Rights Commission (AHRC) “There is a report [Change the Course].
within its scope because: (a) it didn’t physically happen on campus, or (b) didn’t think it was harassment because it was online? N : I think so, and it is something I’ve raised with the Women’s Collective. Z : Any first-year criminology student could tell you about the problems in sourcing crime data. Particularly with these sorts of offences, we have a series of hurdles to reporting (even in anonymous surveys) including stigma, shame… S : …and even whether a student self-identifies
what happened to them as problematic or harassment, let alone a crime.
tendency in Australia to conceive sex offences from a more conservative value system and it usually starts with creating offences that are very narrow in definition, application, or both”
Z : I found it promising that the Change the Course report acknowledged a range of technological abuse behaviours in its definition of ‘harassment’, including: ‘sexually explicit emails or SMS messages,’ ‘repeated or inappropriate advances on email, social networking websites or internet chatrooms,’ ‘images or film of you distributed on some form of social media without your consent,’ and even a broad category for ‘other unwelcome conduct of a sexual nature that occurred online.’ N : I agree, but when I attended the Respect.
Now. Always. event following the release of Change the Course I admit that I was surprised there was very little discussion…maybe one question and one response…about cyber harassment and how easy it is for people to fuel criminal behaviour online. And, I’m not just talking about anonymous attackers, but between members of close-knit groups of university friends including student groups. S : The AHRC reported there were 30,000
responses to their survey but do we think that a significant number of students didn’t take part in the survey thinking ‘it doesn’t apply to me’ because they didn’t think their experience was
N : The numbers are shocking as is, so even if those were conservative estimates of prevalence I think there’s cause for concern. There’s just this widespread perception of sexual harassment requiring physical contact… and I keep coming up against this barrier about technology use being a ‘cultural issue’. It is, but there is a criminal aspect in how it is being used.
S : There is a tendency in Australia to conceive sex offences from a more conservative value system and it usually starts with creating offences that are very narrow in definition, application, or both. If we take ‘sexual assault’, for example, traditionally all victims were female and all offenders male because the only recognised form of ‘rape’ was vaginal penetration with a penis. And when I say ‘traditionally’ I’m talking 1980, not the 1800s! Z : We take those reforms for granted now, but the Crimes (Sexual Assault) Amendment Act 1981 (NSW) was transformative. It replaced the common law offence of ‘rape’ with a series of graduated offences of ‘sexual assault’. In addition to recognising sexual assaults including anal and oral intercourse (and penetration with an object), it brought in evidentiary and procedural changes,
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including abolishing common law immunities for spouses and boys under 14 years of age. S : Yet, despite all the amendments to the
Crimes Act 1900 (NSW), including express mention of sexual assaults involving surgically constructed vaginas to acknowledge trans women as victims, the way we as a society still talk about ‘rape’ tends to be limited…and frankly still heavily hetero-normative. N : This is probably off topic, but there’s also been a lot of discrimination against LGBTI people in criminal law – wasn’t the homosexual advance defence just abolished? Z : We’re talking ‘gay
panic’ and ‘provocation’?
S : Can I just say that it’s unfortunate that
these things have names…
N : I feel that there are online communities that
enjoy being part of these trends, even those niche spaces where people brag about risking infecting others with STIs, which already attracts penalties.
“There has to be a victimfocused approach to [image-based abuse] because there’s only so much that can be done after the fact with a criminal justice system as slow as ours”
S : The ACT, NSW and NT have passed laws explicitly stating that a ‘non-violent sexual advance’ does not alone constitute provocation, but these are all very recent changes, and most of the other states have changed their provocation laws so that the homosexual advance defence is unlikely to be successful in court. It still exists in SA as far as I know. But the discrimination against LGBTI people also came with varying ages of consent to intercourse – at one point for lesbians and straight people it was 16, but for gay men it was 18, and again it took a very long time for law reform. N : With how slow the law is to address things
as blatantly harmful as sexual assault and as important as equality, it’s no wonder it’s so slow in dealing with anything to do with technology. Z : Let alone where all those things converge.
When I think about the intersection of sex offences and technology I think of the sheer number of ‘trends’ in behaviour and how we’re
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always catching up to the next…we’ve had ‘upskirting’, ‘sharking’, ‘revenge porn’ and other forms of image-based abuse, ‘unsolicited dick pics’ (UDPs) (since our chat we’ve seen reports of people using Apple’s AirDrop to disseminate UDPs while on public transport…)
Z : ‘Stealthing’ has been getting a lot of attention online as of late for all the wrong reasons. Do we think that ‘stealthing’ someone would result in the intercourse being legally characterised as a ‘sexual assault’? The Crimes Act 1900 (NSW) s 61I states the following:
‘Any person who has sexual intercourse with another person without the consent of the other person and who knows that the other person does not consent to the sexual intercourse is liable to imprisonment for 14 years.’ S : We’d have to look at s 61HA – ‘Consent in relation to sexual assault offences’. Z : s 61HA(2) states that ‘A person “consents” to sexual intercourse if the person freely and voluntarily agrees to sexual intercourse’… S : …s 61HA(5)(c) explicitly states that a person
does not consent to the sexual intercourse if their consent is the result of ‘a mistaken belief that the sexual intercourse is for health or hygienic purposes (or under any other mistaken belief
about the nature of the act induced by fraudulent means)’… N : I’d argue that the ‘reasonable person’
categorises safe sex and unsafe sex as two distinct acts and the extent to which one tells the truth, so as to satisfy the requirements for consent in the legislation, differs between the two. S : I agree. The law has always been a little unclear on the issue of informed consent – in Canada it has been held that there is a duty to disclose HIV status before unprotected sex, but in Australia the cases we’ve seen have focused on whether the crime committed is grievous bodily harm, not sexual assault – like the case of Godfrey Zaburoni, the so-called ‘HIV Acrobat’. Personally I favour the idea of informed consent – it is in keeping with those changes to s 61HA about mistaken belief with consent… N : And here you have someone who hasn’t lied
by omission, they’ve deliberately misled someone into believing the sex is safe before actively removing the condom and having sex. Z : From where I sit with the current trends in case law, NSW law dictates that deception has no place within our conception of consent. Back to the Crimes Act 1900 (NSW), if all else fails, s 61HA(8) expressly leaves open the grounds upon which it may be established that a person does not consent to sexual intercourse.
*at this stage Shireen raises a scenario about whether a woman who lies about being on oral contraception could be found culpable of sexually assaulting a male sexual partner. She writes a note for a potential LAW109 Hypothetical* Z : What about UDPs…we had a report last
week about the woman who shared an UDP with the sender’s mother. Is receiving an UDP treated differently to being flashed on a train? N : They’re both unsolicited sexual advances. But I doubt I could go to a police station and be
taken seriously by most officers on duty if I chose to report a single UDP compared to reporting a single flashing. S : I guess only a couple of things: (1) you wouldn’t be able to look at the ‘obscene exposure’ offence under the Summary Offences Act 1988 (NSW) s 5. And, (2) you do have the absence of the immediate intimidation factor. Remember that the law distinguishes between threats in person versus over the phone. Other than that, I see no difference. Z : What about the woman who shared it? Has she put herself in jeopardy by sharing it? N : I think there’s an aspect of getting your power back but under current law and policy you are still disseminating intimate photos of someone without consent. If we are trying to change the culture at its crux, we can’t allow this to happen in all its forms. S : It does have shades of revenge porn because
you are sharing those images…for an arguably more justified reason…but you are sharing for your own satisfaction. We don’t want reprisals to be acceptable. Z : Speaking of revenge porn, that’s another area where we keep fighting to inject ‘consent’ back into the conversation. Last month we had a lot of online discussion around Rob Kardashian leaking ‘sexts’ from his ex-fiancée Blac Chyna, including intimate images of her. N : There was so much slut-shaming online, and it reminded me of Amber Rose getting hate for her ‘slut-walks’. Z : With both Blac Chyna and Amber Rose
there’s a perception that they are immune to being sexually harassed or assaulted because they were strippers and shared photos of themselves which some people considered to be provocative. N : There’s also this ‘ratchet’ cultural perception
of women of colour with more voluptuous body
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types. Regardless, it comes back to consent. I have a right to decide what I share with another person at a given time within the bounds of what I am comfortable in, provided we are both consenting adults. S : It also misses the reality that using technology has always served as an extension of intimacy in adult relationships. Z : Telegrams, letters, my screen name on MSN?
Sorry, showing my age there…
S : You’re right though, and now it’s ‘sexting’.
But there’s still the cultural reflex of ‘if you don’t want them shared, then don’t take them.’ N : That’s textbook victim blaming. The onus is
being shifted to the wrong party.
Z : It reminds me of the comments made by
Sheikh al-Hilali about ‘uncovered meat’ going back to 2000, and also how we’re struggling with how we communicate about sexual assault. S : ‘Don’t get raped’ versus ‘don’t rape’? Z : Yes. N : It all comes back to consent. Consent, autonomy, and agency.
***** Z : Noelle, you’ve shown remarkable courage in
taking something criminal that happened to you and have become such a strong advocate for law reform around ‘image based abuse’. I know it’s a complex area, but could you explain what it is? N : Image-based abuse is an umbrella term which refers to the recording, sharing or threatening to record or share, intimate images without consent. ‘Image’ means photo or video. ‘Intimate image’ means an image of a person engaged in a private act, or of a person’s private parts, or of a person in circumstances one would expect to be afforded privacy. ‘Intimate image’ can also mean an image that has been ‘altered’
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without consent to show a person in any of the above (i.e. engaged in a private act etc.). Z : Until I read some of your content online I
had no idea of all the different ways an image could be altered – ‘face swapping’, ‘transparent edits’, ‘cumonprintedpics’, ‘bodily alterations’, ‘juxtapositions’ and ‘unidentifiable alterations’?! S : With all the different forms, have you come across any reasons for why perpetrators do it? From a criminal law perspective we consider intent… N : There are so many reasons, but from talking
to other advocates and having other victims reach out to share their experiences, I’ve found that it’s usually to control, harass, humiliate, shame, coerce or sexually objectify a victim…or some combination of reasons. Z : What has the legal response been so far? N : Victoria and SA were previously the
only two states with specific legislation about intimate images, with NSW recently becoming the third. The NSW amendments are notable because they include the terms ‘threatening’ (which varies greatly from American jurisdictions), ‘recording’, and ‘distribute’. Parliament have also defined all these terms which helps with interpretation. For example: ‘distribute includes: (a) send, supply, exhibit, transmit or communicate to another person, or (b) make available for viewing or access by another person, whether in person or by electronic, digital or any other means.’ The best part, to me, and where we’re trailblazing as a state, is that NSW is explicitly addressing altered images. The ACT has also introduced a Bill and WA is discussing introducing a Bill and are considering the scope of behaviour it will
cover. Things are changing but what I would like to see is more explicit criminalisation at the Commonwealth level.
have my suffering acknowledged gave me so much more than a successful conviction could have. But that’s just me.
S : The standard penalties look like they mirror the closest equivalent under the Criminal Code Act 1995 (Cth) cl 474.17 – ‘using a carriage service to menace, harass or cause offence’ – which sets a max punishment of 3 years’ imprisonment. The NSW amendments impose a maximum of 100 penalty units, 3 years’ imprisonment, or both. There have been some successful prosecutions under the Commonwealth legislation, so why do you feel so passionately about creating specific image-based abuse laws at the Cth level too?
S : One last thing, you’ve mentioned how victim-focused the approach needs to be. Would there potentially be a place for restorative justice in the form of conferences where victims could face their perpetrators?
Z : Remember David McRory and Josh Turner in Victoria? Although their sentences served were unremarkable… N : I understand now that the Constitution lists
crime as a state issue, but the Commonwealth has the telecommunications power too. Remember also that not all states have equally rigorous laws and ability to enforce. I also feel that the existing Commonwealth provision isn’t accessible. Victims need to be able to point to a law and say ‘that protects my rights in this situation’. There’s no room for ambiguity. Z : The law needs to be user-friendly.
S : And there’s little deterrent value if the law is vague. N : There has to be a victim-focused approach to these crimes too because there’s only so much that can be done after the fact with a criminal justice system as slow as ours. The internet doesn’t play by court timelines, so right now we’re looking to strengthen the e-Safety Commissioner’s powers, take-down orders, injunctions…We’re also exploring the prospects for a civil penalty regime to redress the harm that is caused. And I know that for me, being recognised by the government by name and to
Z : We’ve usually been reluctant to use
conferencing with sex offences but I imagine with the emphasis on ‘healing’ there could be something to it if supported and monitored appropriately? N : I think there could be. As long as it’s within
a framework that respects the victim’s autonomy as a priority. Z : I think that’s the beauty of law reform and
advocacy, and why we’re so proud to see so many students getting involved in things like MULS Social Justice and asking the tough questions on Q&A while studying at Macquarie Law School. It’s your way of saying to another human being ‘I see you, and you matter.’ Thank you both for hanging out and we’ll all be watching to see what happens in this space.
Dr Shireen Daft and Zara Bending are Associate Lecturers at Macquarie Law School. In 2017, students may have come across Shireen in units including LAW109 Criminal Justice and LAWS587 War Law, and Zara in LAWS398/LAWS813 Civil and Criminal Procedure and LAW115/LAWS600 Foundations of Law. Noelle Martin is a final year Bachelor of Arts/Bachelor of Laws student and the founder/editor of contemporarywomen.org.
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Cryptocrime The rise of virtual encrypted currencies has helped cunning criminals evade detection Alice Kang
If you’ve ever heard of Raymond Reddington... In the ever-growing plethora of crime TV shows, like The Blacklist or Criminal Minds, you may have heard the mention of ‘Bitcoin’ in passing. Like when money was expected to be ‘untraceable’ so ransoms were transferred using Bitcoin, or when a white-collar criminal was found by tracing back their Bitcoins to a Panamanian bank account. Scary, illicit stuff. In fact, the nature of Bitcoin infers it can be used to hide criminal activity. But do we really know what it is? And is it actually a crime to use it? Bitcoin: what is it and what’s wrong with it? Unless you’re a genius computer hacker or you’re Satoshi Nakamoto himself, not many people will be able to tell you exactly what ‘Bitcoin’ is. To put it simply, Bitcoin is a virtual, secured form of money (a ‘cryptocurrency’) that does not require an intermediary (e.g. a bank) and because of that, there are practically no fees. When a Bitcoin transaction occurs, it is then verified by its network nodes (like a modem), and then recorded in a publicly accessible ledger called a ‘blockchain’. There are other components to the digital currency, such as the ‘mining’ reward system, that goes beyond the scope of my ability to explain cryptographic hashes and algorithms (hope we’re all in the same boat). However, what this article will explain is that not all Bitcoin acquires and exchanges have to be criminal. There is an undeniable appeal in a currency free from any governmental monopoly and volatile bank fees. Even without these already tempting reasons to buy and use Bitcoin, one coin equates to a whopping US$4,300.55 as of writing. 18 | The Brief
In theory, long gone are the worries of external parties stealing your payment information, or governments taking back uninsured deposits (like what happened in Cyprus in 2013), and deep-rooted trust issues with your bank. The cryptocurrency world has painted a picture of what potentially is a safe, independent financial system. What could possibly go wrong? Bitcoin’s aftermath What makes Bitcoin so theoretically attractive is ironically what makes it the payment of choice for criminals. Just recently, the assumed Russian mastermind behind Bitcoin – Alexander Vinnik – was indicted by a grand jury in the US on money laundering charges, among others. US officials have alleged that Vinnik received (by way of Bitcoin) approximately US$4 billion to launder money for criminals involved in crimes such as computer hacking and drug trafficking. They have also connected him to the failure of ‘MtGox’, a giant Japanese Bitcoin exchange that collapsed after being hacked. The hacking amounted to the theft of 800,000 Bitcoins (approximately US$400 million at the time), of which 530,000 Bitcoins were found to pass through wallets controlled by or connected to Vinnik himself. Australia’s attack on Bitcoin Following scrutiny overseas, Australia has begun to blame the rise of money laundering and financial crimes on Bitcoin, with concerns growing about the lack of transparency for Bitcoin exchanges which in turn facilitate organised criminal activity and tax evasion. The 2017 Organised Crime in Australia report
published by the Australian them that you prefer to live “Australia has begun Criminal Intelligence life risk-free. Or, at least to blame the rise of Commission (ACIC) that’s what I would say, and money laundering and by no means am I entitled estimated the cost of serious and organised crime in to give investment advice. financial crimes on Australia to be $36 billion Bitcoin, with concerns For sure, if you did invest in each year. The report also Bitcoin a few years ago, your growing about…lack of ‘wallet’ would have doubled disclosed new legislation transparency” aimed at regulating digital or even tripled by now. But currency exchanges by if you’re anything like me, implementing identical disclosure regimes to that you like your money right where you can see it, of banks and traditional exchanges. This is not so and not encrypted in an algorithm. far from the US approach of treating traditional However, it would be dismissive and on currency and digital currency the same – Mr the verge of idiocy to believe that this new Vinnik’s first count in his indictment was for financial instrument will go away. If anything, operating an ‘unlicensed money-transmitting the flaws in cryptocurrency that have come to business’. From this, it can be seen that both the world’s attention have been the catalyst Australia and the US have emphasised the need for the creation of new programs and protocols to monitor the use of digital currencies, given the that utilise the same ‘blockchain’ software. link between financial crimes and Bitcoin. Ethereum is a prime example. As concerns over financial transparency rise, it is worth examining whether any other Ethereum and the future… countries are affected by the repercussions of Ethereum is a cryptocurrency – like Bitcoin – but cryptocurrency use. its technology platform also runs a program in which apps run on a custom-built blockchain. Bitcoin’s virus infects Ukraine Apps on Ethereum run on ‘smart contracts’ that Welcome to Ukraine, the country most affected by claim to have no ‘downtime, censorship, fraud the global outbreak of the ‘NotPetya’ ransomware or third-party interference’. Through these that hit more than half of Ukraine’s financial contracts, you can represent and record an infrastructure and businesses in 2017. Very ownership of property. Ethereum could store your much like a deadly virus, this nasty software debts, your will, and your contracts. Everything. penetrated corporate networks and wormed All without a middleman. Microsoft, Deloitte and itself into any infected filesystems only to then JP Morgan (just to name a few corporations) have destroy it. The antidote – a payment of Bitcoin signed on to the ‘Enterprise Ethereum Alliance’ to unscramble the ‘hostage data’. This scheme is which connects Fortune 500 companies with undoubtedly ingenious. Ethereum experts to support the new program in A frightening number of businesses in real-world productions and software. Suffice it to Ukraine were crippled by the software, causing say the potential of Ethereum is growing rapidly. detrimental effects to the computer systems Supporters of cryptocurrency argue that this is of energy companies, government agencies, our future, and concerns of financial transparency transport infrastructure and banks. To give this will be overcome by the growing perks and event more global perspective, international development of a decentralised currency platform. companies such as law firm DLA Piper and With so much hanging on both sides of the pharmaceutical company giant Merck were also scale, it is difficult to answer a definite ‘yes’ or affected by the same virus. ‘no’ to the integration of digital currency into our lives and financial future. Considering anyone Should we ‘invest’ in it? with the means to invest is free to purchase this cryptocurrency online, this writer can’t help but If anyone ever tells you that you have missed the question...is this our future or our demise? boat on investing in Bitcoin, you can happily tell
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Taking revenge on
‘revenge
’
Piecemeal legislative responses are finally shifting blame from victims to perpetrators James Woodward
T
he phenomenon of ‘revenge porn’ is becoming increasingly more prevalent, a trend NSW Premier Gladys Berejiklian emphasised in her comments on the Crimes Amendment (Intimate Images) Bill 2017 (NSW) in May earlier this year. The NSW AttorneyGeneral in introducing the Bill highlighted that its practical effect would be to empower victims by providing them with the tools to ensure that the perpetrators of image abuse could no longer get away with such ‘disgraceful behaviour’. The term ‘revenge porn’, however, fails to capture the full range of image abuse or non-consensual sharing of intimate images that fall under the umbrella term, such as image manipulation, where the victim’s face is photo-shopped onto the bodies of pornographic actresses, or otherwise altered to become an image intimate in nature. Given the prevalence of ‘revenge porn’ and the consequences for victims, this new legislation is timely, but is this and other legislative responses adequate? This is the question that this article will primarily address.
20 | The Brief
The NSW legislation The Crimes Amendment (Intimate Images) Act 2017 (NSW) made much needed changes to the Crimes Act 1900 (NSW) in order to combat the increasingly prevalent issue of ‘revenge porn’. However, as stated above, this terminology doesn’t quite capture the full range of material it attempts to prevent and with which the Amendment deals. The Act inserts a new Division 15C Recording and Distributing Intimate Images into Part 3 of the Crimes Act 1900 (NSW). The new Division creates three new offences: recording intimate images without consent (s 91P), distributing intimate image without consent (s 91Q), and threatening to record or distribute intimate images (s 91R). All three offences are punishable by up to 100 penalty units (currently $11,000) and/or a maximum penalty of three years’ imprisonment.
Such significant penalties send a strong message to perpetrators that the wider public deems image abuse to be unacceptable and that such acts will not be tolerated. The Act also successfully targets the broad range of material that may be involved in image abuse, defining intimate image as: ‘(a) an image of a person’s private parts, or of a person engaged in a private act, in circumstances in which a reasonable person would reasonably expect to be afforded privacy, or (b) an image that has been altered to appear to show a person’s private parts, or a person engaged in a private act, in circumstances in which a reasonable person would reasonably expect to be afforded privacy.’ The image also need not be pornographic, as private parts, including the victim’s genital area, anal area and the breasts of a female, transgender or intersex person identifying as female, may be bare or covered by underwear but still be protected by the purposes of the offences introduced by the amendments. It is also worth drawing attention to the fact that s 91S of the Crimes Act 1900 (NSW) allows the courts to order rectification for recording or distributing an intimate image, so that the perpetrator might be compelled to take reasonable action to remove or delete an intimate image, with a maximum penalty for failure to comply of 50 penalty units ($5,500) and/or two years imprisonment. This allows the court to address what the federal Minister for Women Michaelia Cash has suggested is the primary concern of victims – having images removed as quickly as possible. Moreover, the Act also targets pages hosting ‘revenge porn’, as the definition of the offence for distributing intimate images without consent (s 91Q) includes making available for viewing by another person, whether in person, or by electronic, digital or any other means. In this respect, the new Division 15C of the Crimes Act 1900 (NSW) does seem to be an adequate response to the increasingly common phenomenon of image abuse.
Interstate legislation The Summary Offences (Filming and Sexting Offences) Amendment Act 2015 (SA) is similar to its NSW counterpart. Perhaps the most striking difference is the failure of the new Part 5A Filming and Sexting Offences of the Summary Offences Act 1953 (SA) to address transgender and intersex persons. The SA Act, in defining private parts for the purposes of indecent filming offences refers to a ‘person’s genital or anal region, or in the case of a female, the breast, when covered by underwear or bare. This potentially creates complications for cases of indecent filming involving transgender or intersex persons. Another issue with the SA provisions concerns the limits of what is considered an invasive image. The SA Act states that an image will not be taken to be invasive if it falls within the standards of morality, decency and propriety generally accepted by reasonable adults in the community. While courts are experienced in dealing with concepts of the ‘reasonable person’, the additional standards of morality, decency and propriety may potentially blur the boundaries of what an invasive image constitutes. Furthermore, while private region is defined as a person’s genital or anal region, or in the case of a female, the breast, when covered by underwear or bare, for the purposes of indecent filming offences, the state of undress required for invasive images is bare breasts, or bare anal or genital region, being visible. The phrase ‘engaged in a private act’, however, may cover any potential grey area regarding non-consensual sharing of images of persons in underwear or in other states of undress. Therefore, the NSW provisions in some respects appear to be a better response compared to SA, though the absence of orders for removal of images is striking. In Victoria, the issue of image abuse has been addressed by the Crimes Amendment (Sexual Offences and Other Matters) Act 2014 (Vic), which inserted ss 41DA and 41DB into the Crimes Act
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“While the introduction of a civil penalties scheme would be a welcome step, the lack of uniform law [nationally] means that there is significant inconsistency in the remedies available to victims”
1966 (Vic). The provisions suffer from similar definition issues to the South Australian provisions, leaving transgender and intersex persons in a legal grey area concerning the definition of intimate images pursuant to s 40 of the Amendment. Another commonality with the SA legislation is that neither address the issue of ‘body-morph pornography’ and image alteration which also forms part of the revenge porn issue and can have the same degrading and humiliating effects on the victim. While imposing terms of imprisonment for the new offences, the Victorian provisions fail to implement any financial penalties – without civil penalties individuals cannot be financially compensated for non-financial harm or losses as far as image abuse is concerned. Otherwise the Victorian provisions are very similar to those in NSW apart from the question of transgender and intersex persons, the omission of removal orders and a failure to address altered images, all of which are glaring oversights. Federal response The federal government this year took public submissions on developing civil penalties, including fines and injunction, to improve targeting of websites that host intimate images without consent and those who share such images with them. This follows the publication of a discussion paper citing Research by RMIT and La Trobe University which found that one in ten people aged between 18 and 54 (of the 3,000 surveyed) had reported a nude or seminude photo of themselves being shared without their permission. While the introduction of a civil penalties scheme would be a welcome step, the lack of uniform law means that there is significant inconsistency in the remedies available to
22 | The Brief
victims. The meeting of the nation’s most senior legal and crime officials in Melbourne in May earlier this year suggests however that we may soon see uniform law in this area or at the minimum a unified direction in tackling ‘revenge porn’ in all jurisdictions. The national statement of principles relating to the criminalisation of ‘revenge porn’ resulting from this meeting suggests either of these outcomes is not far off. Conclusion At this stage, the NSW provisions seem to be the best legislative response to the issue of imagebased abuse, although the absence of uniform law in Australia regarding the issue is something that requires remedy. Along with the lack of civil penalties, reform is necessary to give all victims equal access to means through which offenders can be punished, and victims can be compensated. The issue of image-based abuse is a deeper social ill which must be addressed at a social level in changing the mindset of perpetrators and the attitudes that contribute to the prevalence of the phenomenon.
Metadata, surveillance and ‘serious’ crime Is our privacy under threat? Ellen McCrea
E
dward Snowden’s revelations of mass global surveillance programs orchestrated by the US Government provided the catalyst for an international debate on privacy and security. Despite an increase in international scrutiny, on 26 March 2015 the Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015 (Cth) (‘Data Retention Act’) was passed. The Data Retention Act imposes an obligation on Internet Service Providers and telcos to retain metadata for a period of two years. Background information surrounding a communication including (for example) the time and date of a call, how long it lasted and the IP address of a webpage that an internet user browses and email addresses are all stored. In an attempt to mitigate how invasive the collection of metadata is, politicians repeatedly reiterate that it is just metadata and not the content of communications being stored. In addition to political proponents and lackeys, recurring arguments in support fixate on the impending threat of
terrorism or the idea that if you are not doing anything wrong, you have nothing to hide. Stating the obvious, there is a fundamental difference between targeted surveillance and mass surveillance – and what the federal government has done is develop a ubiquitous tool that indiscriminately targets everyone. Why privacy matters In the late 18th century, Jeremy Bentham designed the Panopticon, a cheaper alternative to traditional prisons substituting several staff with the presence of a central watchman. Although it was impossible for a single watchman to monitor all inmates at any given time, it was hypothesised that orderly behaviour would be achieved through the uncertainty of surveillance. Michel Foucault developed on this idea and suggested that the Panopticon can be used as a metaphor for societal control in modern Western societies. Arguably, technology is today’s contemporary panoptic tool of social control – a tool deployed by the government under the disguise of counter-terrorism and security.
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“[P]rivacy plays a key role in a civilised country which promotes democratic principles, and it is through ubiquitous surveillance programs that these principles are undermined… it is in the private realm where dissent, creativity and personal exploration is fostered”
In 2008, Google’s then Chairman Eric Schmidt stated in an interview that ‘if you have something that you don’t want anyone to know, maybe you shouldn’t be doing it in the first place’. Aside from this attitude being plainly ignorant, it is a tune uttered by individuals who are wilfully oblivious to the importance of privacy. Even if you think you have nothing to hide, privacy plays a key role in a civilised country which promotes democratic principles, and it is through ubiquitous surveillance programs that these principles are undermined. As journalist Glenn Greenwald argues, it is in the private realm where dissent, creativity and personal exploration is fostered. Naturally, what we decide to do and say is altered when we think we are being watched and judged, leading to a greater inclination to observe societal norms. It is why Greenwald argues governments love surveillance – simply, it breeds a conformist population. The sanctity of privacy is appreciated most by individuals who are a thorn to the government’s rib cage – political agitators and dissenters. Data retention may be used to monitor the activities of any group which may come into conflict with the state including ones which are engaged in legitimate protests.
24 | The Brief
The Evidentiary Value of Metadata Instead of requiring law enforcement agencies to obtain a warrant, the Telecommunications (Interception and Access) Act 1979 (Cth) (‘TIA Act’) now provides for, at the very least, reactionary accountability measures through which criminal law enforcement and intelligence agencies can quickly self-authorise access to metadata. Metadata was touted by AttorneyGeneral George Brandis as a basic building block in counter-terrorism, counter-espionage and organised crime investigation. However, critics maintain that it trades away privacy for no real benefit and that the government has not discharged its burden of showing that Australia’s data retention scheme is a proportionate and necessary measure. The important evidentiary value of metadata would be apparent to individuals who tuned to the demise of former NSW Premier Barry O’Farrell. Although the content of the former Premier’s conversations was unknown, the metadata was enough for ICAC to start digging. While it is fair to regard metadata as less sensitive compared to the content of communications, to do so in an attempt
to minimise the significance of metadata is misleading. As American security technologist and author Bruce Schneier argues, metadata is surprisingly intimate and has the ability to speak to our relations, our interests and our physical locality, which can demonstrate much more than the content of conservations. Remarkably, the former head of the NSA and the CIA, Gen Michael Hayden admitted that the NSA had ‘kill[ed] people’ around the world based solely on metadata collected by US intelligence agencies. In addition to privacy implications, there are practical issues that should encourage us to critically evaluate the watering down of evidentiary thresholds. According to estimates from PwC, the costs of retaining data under the new legislation will range from $188m to $319m. Even at the lower end of the scale, to implement and maintain this scheme will cost a pretty penny – ultimately, the general public will be paying for the government to keep tabs on them. Beyond Counter-Terrorism and Serious Crime Access to telecommunications data is regulated by Chapter 4 of the TIA Act, which permits an ‘enforcement agency’ to authorise telcos to disclose metadata where that information is reasonably necessary for the enforcement of the criminal law, a law imposing a pecuniary penalty, or the protection of public revenue. The new legislation ‘further reduces the availability of stored communications warrants’ by restricting access to ‘criminal law-enforcement agencies’. Between 13 October 2015 and 30 June 2016, a total of 220,175 authorisations were made to access existing data to enforce the criminal law. The 220,175 authorisation crimes that made up the list included public order offences, public revenue offences, and a staggering 12,716 miscellaneous offences. What this demonstrates is that the scope of activity targeted by law enforcement agencies is already far wider than the public was led to believe. Schneier suggests that by asking how much privacy one is willing to give up for security, a false dichotomy is set up in which people are naturally scared into acceptance.
Metadata and the Fourth Amendment: Carpenter v. United States In the upcoming October term, the US Supreme Court will hear Carpenter v. United States, which will determine whether the warrantless seizure and search of historical cell phone metadata infringes the Fourth Amendment. The lower court rulings are based on the third-party doctrine, where information voluntarily given to third parties is not subject to protection under the Fourth Amendment. This doctrine has been applied inconsistently by lower courts and its relevance in the technological age has been questioned, forming one of the reasons sought in the petitioner’s writ of certiorari. Carpenter’s cell-site records were obtained under the US Stored Communications Act which requires only reasonable suspicion and not probable cause. The Carpenter case is significant because modern surveillance laws hinge on the idea that content is protected but that metadata is not subject to the same protection. Interestingly, in United States v. Jones, all members of the US Supreme Court agreed that attaching a GPS device to a vehicle and tracking its movements constitutes a ‘search’ under the Fourth Amendment. Reflecting on the frequency at which people reveal information about themselves to third parties in the course of carrying out mundane tasks, Associate Justice Sonia Sotomayor believed it was necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. Ironically, Justice Breyer cautioned that for the government’s case to succeed, the government would engage in round-the-clock surveillance reminiscent of the totalitarian world portrayed in George Orwell’s 1984. For now, we wait to hear how the bench decides what is arguably one of the most important cases in the US on the issue of government surveillance and privacy in the 21st century.
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Resist and Persist The battle for reproductive rights Olivia James
A
t the intersection of women’s and children’s rights, abortion is one of the most polarising issues worldwide. For decades reproductive rights have been the centrepiece of political debates regarding the scope of religious and personal freedom. However, a universal consensus on the legality of terminating pregnancy has yet to be reached – criminality varies across the globe. At present, 56 of 196 countries allow abortions by request, 134 of 196 countries allow abortions in circumstances that will preserve a woman’s physical health, and six countries prohibit abortions under any circumstances: El Salvador, Malta, the Vatican, Chile, the Dominican Republic, and Nicaragua. This blanket ban means that women who are pregnant from circumstances such as rape, incest, or are at risk of dying if the pregnancy is carried to term, are unable to terminate their pregnancies.
26 | The Brief
However, simply because a nation has not instituted a universal ban on abortion does not mean that women have secured reproductive rights. A recent Indian Supreme Court case made global headlines after a 10-year-old girl, who had been raped by her uncle, was denied an abortion. Under Indian law, a pregnancy cannot be terminated from 20 weeks unless the mother’s life is in danger or under exceptional circumstances. The girl, whose identity has been protected, is unaware of her pregnancy, and was told that she was having surgery to remove a kidney stone before her caesarean. Her baby, who was discovered at 30 weeks, is now being placed for adoption. While this is an extreme example of the restrictive nature of these laws, it can be argued that when the scope of legislation is too narrow, it can often produce a result that is unfair to all involved parties. Despite what may be expected of a world making leaps and bounds in technological and scientific research, a study published in The
Lancet found that abortion late term abortions performed “Abortion is a rates remained relatively in 2015, 63 percent were contentious issue stable worldwide between performed in order to protect because it forces 1995 and 2008. According to the mother’s physical and the Guttmacher Institute, everyone to question mental health, and 36 percent annual global abortion rates when they believe were performed as a result of and abortion rates in developed foetal abnormalities. life begins” regions have also substantially Anti-abortion activists declined in recent years. purport that their views are proGuttmacher also reports that there is direct women, as the termination of pregnancies causes correlation between high abortion rates and immense psychological trauma to women. However, restrictive abortion laws. It can therefore be a 2016 study published in JAMA Psychiatry found argued that restrictive abortion laws in no way that women suffered little to no long-term impact reduces abortion. This has meant opponents of from termination. In 2017, it is time to start the pro-choice movement have found other ways accepting that many anti-abortion activists who to redirect their focus. argue that they are protecting women are in fact Late-term abortions are often the centrepiece more intent on circumventing a woman’s right to of pro-life rhetoric. During the third presidential make medical choices for herself. In Australia, New debate last year, then presidential candidate South Wales, Queensland and South Australia Donald Trump said: have yet to decriminalise abortion. This is despite ‘Now, Hillary can say that that's okay. But it's the fact that since 1980, national opinion polls have not okay with me, because based on what she's indicated that a majority of Australians support a saying, you can take the baby and rip the baby woman’s right to choose. out of the womb in the ninth month on the final So why is abortion still such a contentious day. And that's not acceptable.’ issue in many Western societies? Abortion is a Trump was also quoted in a 2016 interview as procedure which US President Trump believes saying ‘there has to be some form of punishment’ women should be ‘punished’ for having. Former for women who have abortions. But how frequent UK Prime Minister David Cameron supported an are these late-term abortions? In Australia only action that would have reduced the time frame two percent of 2012 abortions, or 96 abortions, for women to seek termination. John Key, who were performed past 20 weeks. In New Zealand, recently finished his term as the Prime Minister there were only 2.03 percent of abortions of New Zealand, has openly stated his fears that performed between 16 and 19 weeks, while when abortions are accessible they will be used as only 0.56 percent of abortions occurred past 20 a contraceptive method rather than a last resort. weeks. Data collected from the United States in However, what abortion laws ultimately boil 2003 indicates that 4.2 percent of abortions were down to is whether an individual believes that performed between 16 and 20 weeks. In the same reproductive rights are human rights. year, only 1.4 percent of abortions were carried Abortion is a contentious issue because it st out from the 21 week. forces everyone to question when they believe Despite what many believe, late term life begins. Some believe it is at the moment of abortions are statistically rare. Further, the conception, while others believe it is when a baby reasoning behind these terminations are takes its first independent breath. It also forces underreported. A 2013 study identified that the individuals to prioritise rights. Does a woman majority of women seeking late term abortions deserve to control her own body or does it stop were either dealing with domestic violence and being her body when she becomes pregnant? abuse, were depressed or suffering other mental What happens if carrying the pregnancy to term health issues, had limited access to reproductive could be fatal to the mother? What if the baby health services, were raising children alone or is stillborn? Whose rights prevail? But perhaps were young and had never given birth before. The most importantly, when will women be allowed to NHS in England and Wales reported that of all make the decision for themselves?
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Is one really known by
the company one keeps? Analysing habitual consorting in our criminal law Dean Pefani
T
he criminalisation of habitual consorting with convicted offenders first came into force in NSW by virtue of the Vagrancy Act 1902 (NSW) through an amendment in 1929. This was partly the end product of a period of media pressure to deal with the surfacing of Eastern Sydney gangs who began to carry razors subsequent to the creation of gaol terms for the possession of an unlicensed pistol. The rationale for the criminalising of such activities was one that aimed to lower the possibility of the formation of criminal networks while simultaneously decreasing criminal activity by disallowing associations with certain persons, which potentially created the occasion for an individual to be conscripted into the crime via those with whom they fraternised. 28 | The Brief
The modern proscription against such conduct can be found under s 93X of the Crimes Act 1900 (NSW). To secure a conviction under s 93X of the Act, the prosecution must demonstrate, beyond reasonable doubt, that the accused: (1) habitually consorted with two or more convicted offenders on two or more occasions, and (2) consorted with those convicted offenders after having been given an official warning in relation to each of those convicted offenders. I. Elements of the offence A. Actus Reus The definition of the term ‘habitually consorts’ is expressed in negative terms within the Crimes Act 1900 (NSW): by showing what does not constitute habitual consorting it implies what, in
the least, might constitute habitual consorting. However, there is no statutory definition of what ‘consort’ means. What occasions of consorting will constitute ‘habitually consorts’ is contingent on the meaning of the term, with the adverb limiting the scope of consortium. Various judicial attempts have been made to define what establishes ‘habitually consorts’ in relation to other legislative provisions. However, it is Gavan Duffy J’s statement in the case of Brealy v Buckley that best describes the broad approach espoused by the High Court: ‘No rule can be laid down as to [habitual consorting]...[i]ncidents weak in themselves may gain significance from others, and a number of incidents each trivial in itself may together make a damning whole.’ This is, any behaviour, whether in person or via electronic or other means of communication, where the defendant ‘“associates”or “keeps company” and it denotes some seeking or acceptance of the association on the part of the defendant’. Whether the consorting happens prior to the giving of an official warning or after does not vary its nature, as the difference between the reference to habitual consorting in s 93X(1)(a) and consorting in s 93X(1)(b) highlights the fact that the official warning need not precede all instances of consorting relied upon to establish habitual consorting. The prosecution merely establishes that one of the instances of consorting must have occurred after the receiving of an official warning in the form required by s 93X(3). B. Mens Rea A mental element, either intention or knowledge of the wrongfulness of an act, must be present as an essential ingredient in every offence. However, when a statute creates and defines an offence only by reference to its external acts or elements, there is a presumption that a mental element is usually implied in the definition. Section 93X makes no express mention of any mens rea, however Mason J has noted that consorting denotes some seeking/acceptance of the association on the part of the defendant. Although this definition was related to s 6(1) (c) of the Vagrancy Act 1966 (Vic), his Honour’s words have received affirmation by the majority
in the sole case to have reached the High Court concerning s 93X (Tajjour v New South Wales). The proposition that the mens rea is an intention to habitually consort is supported by the fact that logically, to make the offence one of absolute liability would not further assist in preventing any individuals from consorting with convicted offenders if they believe upon reasonable grounds that they are not partaking in criminal conduct due to the lack of knowledge of any official warning. This is because it is possible that a defendant could advance material that may establish a reasonable excuse via lack of knowledge. Additionally, because one of the elements found under s 93X requires the prosecution to prove that accused received an official warning, this reinforces the view that intent is an essential element to the offence. The obvious reason behind the making such a warning an element of the offence is to provide a party with the opportunity to avoid committing the offence. If a party continues to associate themselves with the person(s) they were warned about, they intend to do such unlawful behaviour. Therefore, to constitute habitual consorting, it is necessary that the accused intended to associate and did associate with each of the convicted offenders on each occasion. II. Does s 93X reflect & uphold the purposes of the criminal law? It only seems logical that Australian society should protect itself against prospective wrongdoers through legislation aimed at preventing criminal associations. An offence against s 93X is an indictable offence able to be dealt with summarily unless the prosecutor elects to have it dealt with on indictment. Thus, it seems unlikely that a crime which holds such a severe penalty would be one that could be so easily established against an accused without a large evidentiary burden demonstrating intent being placed upon the prosecution. Otherwise, this would produce Draconian results, where people who were warned and who wilfully tried to avoid the party they were warned about inadvertently came across that party in passing through close friends/associates. NSW Parliament
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needs to address this flaw by “A provision carrying Such deterrence has neither redrafting s 93X to expressly such a serious penalty specific deterrent nor a mention a mens rea. A rehabilitative function. should not be left to provision carrying such a serious penalty should the courts to implicitly III. What defences can be not be left to the courts determine Parliament’s made out to an accusation to implicitly determine of a breach of s 93X? purpose and with it Parliament’s purpose and the fault element of the Section 93Y of the Crimes with it the fault element of Act 1900 (NSW) details the offence. Such a criticism offence” which social interactions are has not gone without notice excluded from application of by the courts or Parliament. s 93X and are thus ‘defences’ to the section. The The rationale behind s 93X was the same problem with s 93Y comes from the finite number as that behind the similar provision found in of reasons that are listed, leading to the potential the original Vagrancy Act. Although the social for an increased number of convictions within motivators may have been different in 1929, sub-groups/cultures or restrictions on interacting the underlying purpose of preventative justice with extended kin/relations not bound by blood was very much the same; this was to limit the but through social bonds. This is not one of the risk of an identified harm via the pre-emptive purposes of the criminal law – to snag innocent criminalisation of certain behaviours. Parallels social interactions between otherwise law-abiding may be drawn between the offence against s citizens. The issue is further compounded when 93X and that of drink driving, as both offences one considers the breadth of possible indictable seemed to be defined by risk; the former to offences that may make an individual one that lower the possibility of the formation of criminal is eligible to be a party not to be consorted networks and any possible increases in criminal with. For example, aiding a suicide is but one of behaviour, the latter the prevention of possible many offences that do not necessarily indicate harm that may befall the accused as well as membership in organised criminal activities. It innocent bystanders from commanding a vehicle is this writer’s opinion that the shortcomings in under a reduced capacity to perceive and react s 93Y indicate amendments that are needed to to one’s environment. However, this is where address the inadequacies mentioned. these similarities end, as specific deterrence In closing, the offence under s 93X fulfils some is achieved in the case of drink driving via the of the preventative measures to appropriately disqualification of one’s license, thus addressing control the consorting of individuals with the issue directly. Conversely, the optional convicted offenders, however the areas penalty of up to three years’ imprisonment for highlighted above require NSW Parliament’s an offence against s 93X is arguably one that attention/refinement to provide for a more can result in placing an individual in further efficacious criminal justice system and safer association with more criminals via incarceration. community for all. This is in direct contradiction to the legislation.
30 | The Brief
Re-Accessing Justice Aboriginal and Torres Strait Islander women’s over-imprisonment is a national crisis
I
Mohra Fazel
n Australia, figures of women’s imprisonment are rapidly rising. Contemporary figures indicate that the rate of women’s imprisonment has increased by almost 42 percent over the last decade. Aboriginal and Torres Strait Islander women in particular are Australia’s fastest growing incarcerated demographic. This is a national crisis, considering the vastly disproportionate figures of incarceration of Aboriginal and Torres Strait Islander women, who account for 35 percent of women incarcerated, yet only 3 percent of the national women’s population. In over a quarter of a century since the landmark release of the Royal Commission into Aboriginal Deaths in Custody’s (RCIADC) report, Aboriginal and Torres Strait Islander peoples remain over-represented in the criminal justice system. This is despite the Royal Commission’s emphasis on imprisonment only being utilised as a sanction of last resort. The increasingly disproportionate figures of imprisonment of Aboriginal and Torres Strait Islander peoples has raised questions about the appropriateness of imprisonment as a sentence, and the impact of entrenched disadvantage in perpetuating high incarceration figures. The Report further acknowledged the need to confront systemic economic, social and cultural disadvantage, and this need is even more urgent now with a 250 percent increase of rates of imprisonment for Aboriginal and Torres Strait Islander women since the time of the Report’s release. There is a specific urgency to consider the lack of criminal
justice policy considerations for the experiences of Aboriginal and Torres Strait Islander women. While conscious of the varied lived experiences of women, the experience of Aboriginal and Torres Strait Islander women within the criminal justice system is linked to intersecting experiences of intergenerational trauma, socioeconomic disempowerment, surviving family violence and the inaccessibility of employment and education services. The Aboriginal and Torres Strait Islander Social Justice Commissioner in 2002 described this experience accordingly: ‘[T]he discrimination faced by Indigenous women is more than a combination of race, gender and class. It includes dispossession, cultural oppression, disrespect of spiritual beliefs, economic disempowerment...and more.’ While recognising the correlation of these underlying factors as those which also perpetuate the over-imprisonment of Aboriginal and Torres Strait Islander men, the National Family Violence Prevention and Legal Services has noted that: ‘[T]he intersectional and intergenerational experiences of Aboriginal women are underlying factors behind the causes of Aboriginal women’s incarceration. These causes are very often different to the causes of imprisonment of Aboriginal men’. Consecutive Social Justice Commissioner reports have identified that the interests and needs of Aboriginal and Torres Strait Islander women in the criminal justice system are not adequately addressed by policy and programs which are designed for women generally, or for Aboriginal and Torres Strait Islander
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men. Criminal justice data tends to subsume Aboriginal and Torres Strait Islander women either under the subset of gender or ‘Aboriginal and Torres Strait Islander people’, but not at the intersection of both. The failure to recognise the needs at the intersection of both gender and race undermines the specific needs and experiences of Aboriginal and Torres Strait Islander women, and highlights the need to bridge an existing gap. The Fernando case is well known for its articulation of a framework of sentencing principles, which consider the experiences of Aboriginal and Torres Strait Islander offenders in assessing mitigating circumstances for sentencing. More recently, in the aftermath of Fernando, the High Court in Bugmy had a further opportunity to crystallise the specific relevance of Aboriginal and Torres Strait Islander identity and experience in sentencing. However, the emerging judgment has been criticised in a similar vein to criticisms of Fernando, in that the court did not go far enough in establishing Aboriginal and Torres Strait Islander specific sentencing principles, and in generally imposing a race-neutral approach. The case of Fernando has since been properly understood as a decision about socioeconomic disadvantage generally, and not as a specific consideration of the experiences of Aboriginal and Torres Strait Islander offenders. The generalisation of disadvantage, however, marginalises the unique experiences of Aboriginal and Torres Strait Islander peoples, and this is further prevalent at the intersection of both race and gender. The Fernando
32 | The Brief
principles are bound in an understanding of the experience of the criminal justice system from a male perspective, with the prevalence of using male pronouns despite discussing general principles and by focusing on violent offending, further marginalising the distinct experiences of women offenders, who are also less likely to be violent offenders. Addressing the disproportionate rates of incarceration must go further than just transforming sentencing practice. Gladue is a Canadian case that held in favour of a requirement for sentencing judges to consider the unique background and systemic factors of Indigenous offenders, and the appropriateness of imprisonment in regards to an offender’s circumstances. Despite the ruling, incarceration rates of Indigenous women in Canada have continued to rise. This displaces notions that focus predominantly on sentencing practice in resolving the disproportionate experiences in the criminal justice system. In 2015, the Change the Record Coalition launched a blueprint for change, addressing the over-representation of Aboriginal and Torres Strait Islander peoples in the criminal justice system, and in shifting the focus towards re-investing in communities and developing holistic criminal justice approaches. Antoinette Braybrook, the co-chair of Change the Record and the chief executive of the Aboriginal Family Violence Prevention and Legal Service Victoria (FVPLS Victoria) has reiterated the need for Aboriginal and Torres Strait Islander-designed and led solutions in order to reduce rates of
over-incarceration. FVPLS is positioned to incorporate “The increasingly Victoria further provides feedback from Aboriginal disproportionate figures that Aboriginal and Torres and Torres Strait Islander of imprisonment of Strait Islander women, stakeholders so as to best in particular, will have incorporate the needs of Aboriginal and Torres better access to the legal participants. Strait Islander peoples system, given that they are The reality of our has raised questions provided with a practical circumstances is that language, culturally about the appropriateness in over a quarter of sensitive support and a century since the of imprisonment… appropriate advocacy and Royal Commission into and the impact of empowerment. Aboriginal Deaths in entrenched disadvantage The recognition of Custody, incarceration physical, psychological, has almost doubled. in perpetuating high social and spiritual needs In consideration of the incarceration figures” such as the role of kin, criticism that the judicial connection to land and system has not expanded to community, ensures far enough in recognition that sentencing and post-sentencing processes of the distinct and complex experiences of achieve more culturally appropriate and Aboriginal and Torres Strait Islanders who effective outcomes. Such an approach is already come into contact with the criminal justice grounded in the We Al-li approach pioneered system, there is an urgency to move towards by Emeritus Professor Judy Atkinson and was justice targets that prioritise reducing recently implemented by the Kunga Family imprisonment and recidivism through breaking Violence Program in Alice Springs Correction the cycle of disadvantage and empowering Centre. We Al-li’s focus on post-release support communities. This is of significance for is important in consideration of the barriers Aboriginal and Torres Strait Islander women faced in accessing housing or support services who are currently at the forefront of the after prison release, and in addressing the nation’s incarcerated demographic. Policy risk of perpetuating recidivism and cycles development is emerging in this area, and of disadvantage. The Miranda Project is the it is crucial now to incorporate culturally first NSW specific initiative that addresses appropriate community methodologies in order the distinct needs of women in the criminal to better inform the criminal justice system and justice system, incorporating community-driven the specific needs of those involved. approaches. It is currently in its pilot stage, and
Edition 3, 2017 | 33
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Stuff Law Students Like
Textbooks
(with a side of smashed avo) Tessia Tan
O
f the many idiosyncrasies of the modern law student lifestyle, no ritual is quite as endearing or memorable as the First Textbook Run. Like the Maccas Run of our high-school kin, purchasing law textbooks for the first time serves as the initiation of each new law student into the ranks of the educated and elite. Years into my own law degree, I can still remember the breathtaking moment I gazed upon my first law textbook and saw the price was not one, not two, but a glorious three-digit total. Students undertaking Arts degrees may laugh arrogantly as they download free Unit Readings from Macquarie library, but I knew from the moment I touched those ludicrously expensive soft-cover editions that I was truly getting value for money. Sure, some people might complain that textbook prices are a little… excessive. But who can complain when the price is clearly reflected in the amazing content and construction of the textbooks. Who doesn’t love having paper so thin that every time you highlight a line, it bleeds onto the next page and saves you the trouble of having to highlight that page as well. Textbook prices are just like Sydney property prices. If a one-bedroom studio in the Inner West costs $1 million, it must be because it’s really worth that much. And just like the fabled Textbook Run, losing your Co-op Shop virginity is a simply unforgettable rite of passage, deeply inherent to the law school experience. Every law student can attest to that familiar and comforting feeling at the beginning of each semester knowing that textbook season is upon us once again. You get lost in a maze of yellow downlights and aged paper, taking hours to locate the book of your choice as the beautiful scarlet and tangerine colours of the Co-op draw you in.
Your initiation is complete once you’ve signed up for exclusive membership. Everyone knows you don’t actually join the Co-op shop members club because the prices are actually any cheaper. No! Membership is for life and the membership cards are made of biodegradable substances – how environmentally friendly! Also, half the fun of textbook shopping is knowing that each purchase brings you that much closer to bankruptcy. ‘Why don’t you buy your textbooks second-hand?’ the dear, naïve will often ask – well, of course, because the law is beautiful, dynamic and ever-changing. Second-hand textbooks cannot possibly incorporate the plethora of legal reform and statutory updates that occur between the publishing of each edition. ‘Why don’t you sell your textbooks when the semester is over?’ Do you buy a Givenchy handbag just to pawn it off? Do you buy Adidas NMDs just to flock them off to the first bidder? No, like any extravagant purchase, law textbooks are to be proudly displayed – in rich mahogany bookshelves and home libraries (which isn’t pretentious if you pay full price for them!). But honestly, since thrift-shop chic is back in fashion, we millennials need to be spending our excessive disposable income on something, so why not absurdly overpriced textbooks. The more expensive, the better. I love ‘gramming luxe pics of my textbooks alongside my smashed avo toast and my skim mocha Frappuccino so all my friends know I’m at a cafe ‘studying’. Plus, if it wasn’t for all the philosophical quotes I got from my jurisprudence textbook, my law student/ fashion/travel blog on Tumblr would have, like, way less followers. Textbooks may cost upwards of $100 each, but can you really put a dollar amount on learning and knowledge? That’s priceless.
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A Postcard from Abroad
Recently returned exchange student Jemima Bissett shares her exchange experience at the University of Hong Kong
Nick Owczarek Jemima outside the HKU 1902 Building
University and study What drove you to choose Hong Kong for a semester of law abroad? I really wanted a challenge, but I also wanted to feel comfortable living abroad for 7 months. Hong Kong was the perfect mix. The language of instruction at the University of Hong Kong is English, the legal system is based on the English common law system (meaning I was familiar with a lot of the legal principles already), and with mainland China’s presence growing across international markets, a lot of lawyers are interacting with the ‘gateway to China’ – Hong Kong.
Li River, Guangxi Province, China
Which subjects did you take? I took electives that were very financeorientated – Banking Law, Securities and Derivatives Law, Company Law and Chinese Investment Law. How different is studying in Hong Kong compared to Australia?
Tai O Fishing Village
36 | The Brief
Lectures are 3 hours long! Focusing is a bit of a challenge after 2 hours. But interestingly, I only had one tutorial across all my units. There is also a strong focus in Australia on analysing the law critically. In Hong Kong, you are more expected to know the law very well. A lecturer confusedly remarked that my essay was wrong because I was
analysing the law (a requirement for anything above a pass in Australia) – he only wanted to know what it was! The students are very competitive, and the law society is not as focused on social events like MULS, but more on career initiatives and internships. What did you find unique about the University of Hong Kong? The University of Hong Kong is a very international university. People from all around the world study there, giving it a genuine global feel. It is also one of the most prestigious universities in Asia, and has a significant impact on the political environment of Hong Kong. It is also very city-orientated, being perched above skyscrapers and having beautiful views all the way over to Kowloon. The University, being colonial, is also based on the Oxford/Cambridge tradition, meaning that ‘Halls’ (similar to dormitories) are a huge part of university life. My Hall, Lee Shau Kee Hall, had about 300 students with 14 girls on my floor. Each Hall has a very distinct culture, with students feeling a strong emotional connection well beyond their university years. I attended the High Table Dinners, which are very spirited and formal, with a host of traditions not unlike Hogwarts!
Culture and lifestyle How did you find settling into Hong Kong? Did you experience culture shock? Initially, very much so! Despite having travelled to China previously, it took a bit of time to feel settled. Though most people spoke excellent English, it wasn’t uncommon to come across people who spoke almost none, making basic tasks such as banking and ordering food a bit more challenging. Hong Kong students also never sleep, meaning you could hear people running around well into the morning. Hong Kong street (Sheung Wan)
However, Hong Kong is incredibly Western, and there are areas that feel not unlike Sydney. Standards of hygiene are very high, and it is easy to find quality Western food (though expensive!) What does a law student in Hong Kong do to unwind?
Beach near Sai Kung
Hong Kong is absolutely full of activities – so much so that I easily filled my weekends and days off. An absolute highlight was Chinese New Year – with a whole week off university, my friends and I got a fantastic opportunity to
participate in the Parade, visit a Buddhist temple in Tsuen Wan called the Western Monastery, throw oranges at the Lam Tsuen Wishing Tree to make a wish, and experience the liveliness and excitement the whole city exudes. A local student told me it is like the equivalent of Christmas. I also had the opportunity to cycle through mountains in rural China, and spend a day looking at casinos and colonial Portuguese streets in Macau. Should other law students consider Hong Kong? Absolutely! I am a huge advocate of an Asian semester abroad, and Hong Kong will register very low on the culture shock scale. Most global law firms have a huge presence in Hong Kong because China is such a substantial market, so it is useful to have some background in both the culture and the actual laws – doing business in Asia is an art form completely unlike that in Australia. On top of that, it is just such an alive and exciting city to live in! It is full of culture, and it is unique in the way that both Western and Chinese cultures exist together.
Working and the legal system Did you have the opportunity to participate in any work experience/intern programs? I was very fortunate to participate in both a summer clerkship at a law firm, and intern with the legal team in a large telecommunications company. While both environments were very Western, I loved the chance to be part of the extensive expatriate community, and to see some of the law that I learnt in Hong Kong come to life. I had to apply for a special visa to work since my student visa did not permit any employment. Hong Kong is unique in that it incorporates English common law into its legal system along with mainland Chinese law. Were there any quirks or parallels with Australia’s legal system that you observed?
Macau Colonial Portugese streets
Hong Kong law is a lot more dependent on English law compared to Australian law – probably because precedent hasn’t
had as much time to develop. But what is really interesting is that most Hong Kong lawyers need a solid grasp on Chinese law – money and property travels in and out of the mainland a fair bit so a lot of legal research I did as a clerk involved seeing how different Chinese laws might operate in a Hong Kong context. Hong Kong law is pretty on par with Australia, but Chinese law is vastly different. I studied a unit and struggled to wrap my head around their lack of an independent judiciary, the prominence of relationships in the law (such as the concept of Guanxi), and the messy collection of announcements, codes, circulars and speeches that constitute the actual law, rather than precedent or a single piece of legislation. It’s really interesting that such incredibly different legal systems exist side by side, and have their own unique way of interacting.
Edition 3, 2017 | 37
A Brief Review
The Good Wife Briellen Sands
S
ex, politics and the law. The Good Wife flaunts all three, following the action of Alicia Florrick as she composes her life together after a shocking scandal. Allegations of her husband Peter engaging in political corruption and prostitution put her and her two children, Grace and Zach, at the centre of public attention. The series follows Alicia’s return to the legal profession after a 10 year break as she tries to balance her new life as a lawyer, a mother, as well as dealing with complicated personal relationships. With plenty of dramatic twists, the show provides an in-depth insight into the inner workings of the American legal system. In particular, The Good Wife explores the financial pressures of the Global Financial Crisis on law firms and the ever-present dilemma of professional morality as a lawyer. Critics have complained that the show decreases in quality further into the series. Despite this, it has been one of the most acclaimed TV shows, boasting several Emmy, Golden Globe and Critics’ Choice Television awards. The show’s success is clearly demonstrated by the production of a spin off series called The Good Fight which premiered just a couple of months ago. The characters in the show are flawed yet relatable and the plot developments will leave you intrigued and definitely coming back for more. If you’re looking for high end drama that touches on live issues, then The Good Wife is for you.
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