The Brief Edition 1 2018

Macquarie University Law Society magazine

Edition 1, 2018 (Volume 24)

Upheaval

Edition 1, 2018 | 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.

Upheaval

CONTENTS

12 14 17

Features

Breaking the Silence through #MeToo Maddison Passarelli

Discrimination in the International Community and Climate Change Sapna Goudan The Rising Prevalence of Unpaid Internships James Woodward

20 22 26

Effects of the Royal Commission into Institutional Child Sexual Abuse Emalee Walker Australia Said Yes: Amid Celebrations Lie Deep Divisions Yueh Wong

Avenues of your Law Degree Nicholas Owczarek

ADDITIONALS

In CONTEXT

6 7 8 10

What's New in the Law? Maria Zotti [Social Justice Corner] Slavery in the Modern Age Alexandra Brien

[Devil’s Advocate] Mandatory Vaccination Programmes Fiorentine Pefani and Vincent Appleton

31 32 34

[Stuff Law Students Like] Networking Jessica Haddad [A Postcard from Abroad] A Canadian Exchange Ruby Poynter [A Brief Review] Mindhunter Isabella He

[Under the Radar] Policing the Police Adelaide Falzon

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T Editor’s Welcome Swatilekha Ahmed Editor in Chief

he tumultuous events of 2017 have caused an upheaval in the social, political, legal, global, and moral sphere, which is why ‘Upheaval’ is the theme of this edition. The feature pieces of this edition all address these significant changes, critically analysing the impacts in our perception of various events and issues.

Our writers have addressed the discussion around free speech in the wake of the 2017 marriage equality plebiscite, and the renewed dialogue around protection and welfare of children in the context of the Royal Commission on Child Sexual Abuse. A critical eye is cast towards the ways in which neo-colonialism still persists in the international dialogue around climate change, and the ways in which our government must reevaluate the issue of exploitation within the context of internships.

The additional segments address the complex debate around

O President’s Welcome Leon Warren President Macquarie University Law Society

4 | The Brief

n behalf of MULS, it is my pleasure to welcome you to the first edition of The Brief for 2018. MULS is incredibly proud of this award-winning publication and was delighted to see the quality and excellence of The Brief recognised nationally at the 2017 ALSA Conference, where it was declared the Best Online Activity of all Australian law student societies.

This recognition is a true testament to the work of our Editor-in-Chief, contributors and designer, who have yet again produced another exceptional edition.

The new year has brought several new changes for MULS. The theme of this edition, Upheaval, is

mandatory vaccination programs and the matter of modern day slavery in the context of the ‘Hidden in Plain Sight’ report by the Inquiry into Establishing a Modern Slavery Act in Australia.

Finally, keep your eyes peeled for a satirical take on LinkedIn networking, a review of popular culture’s take on criminal profiling, and an insightful account of an exchange programme at the University of Waterloo!

My talented team of writers have all addressed areas or issues which have re-entered the public debate due to a significant change in the way we, as a globally minded society, perceive and talk about these issues. As law students, and the future generation of lawyers, judges, academics and policymakers, it is our obligation to talk about these changes with a critical eye both now and in the future.

Enjoy - and best of luck for the year ahead!

even more fitting in this context.

The 2018 Executive has been working hard over the summer break to implement changes which we hope will broaden the range and accessibility of opportunities which MULS provides to its members.

From mooting competition overhauls and a new membership platform, to introducing a major networking event, MULS is working to ensure that its members continue to get the most out of their time at Macquarie Law School With these new changes making it easier to engage with MULS than ever before, I encourage each of you to consider trying something new this year. Across

Events How to Succeed in Law School 21 February

First Year Afternoon Tea 26 February

Edition 1, Volume 24, February 2018

Editor in Chief Swatilekha Ahmed

AGLC Seminar 12 & 14 March

First Year Law Camp 16-18 March

Harmony Day Event 20 March

Careers Introduction BBQ 22 March

Start of Semester Drinks I 6 April

Sports Gala Day 6 May

Social Justice Speaker Night 1 15 May

Interview Roulette & Clerkship Fair 17 May

Alumni Speakers Night 24 May

Start of Semester Drinks II 16 August

Options with Law Fair 9 August

Law Ball 20 October

our six departments, we’re confident that you’ll find new and exciting ways in which you can become involved with MULS and enhance ‘the other side’ of your degree. Whether that be through competing in one of our new mooting competitions, writing an article for The Brief, joining a MULS social sports team, or developing your professional side through an interview skills seminar, we hope that you will enjoy the range of activities and events which MULS will be providing to you, our members, in 2018.

From all of us on the MULS Executive, we hope you enjoy this edition of The Brief and wish you the best of luck in all your endeavours this semester.

Designer Nathan Li Writers (in alphabetical order) Adelaide Falzon, Alexandra Brien, Emalee Walker, Fiorentine Pefani, Isabella He, James Woodward, Jessica Haddad, Maddison Passarelli, Maria Zotti, Nicholas Owczarek, Ruby Poynter, Sapna Goudan, Vincent Appleton, Yueh Wong Subeditors Alexandra Nielsen, Jessica Palazzolo, Jessica Yao, Karla Gatenby, Nadya Shturman, Nerissa Puth, Nicholas Owczarek, Tashfia Tasnim Editorial Review Ilija Vickovich Macquarie University, Sydney Daniel Lim, Director (Publications) Macquarie University Law Society Images Shutterstock unless otherwise stated.

The Brief would like to thank Nicholas Owczarek, the outgoing Editor in Chief for 2017, for contributing a special interview for this edition and Professor Rosalind Croucher for agreeing to be interviewed for the segment Avenues of Your Law Degree.

The Brief’s print edition is published three times a year by the Macquarie University Law Society, Sydney, Australia.

View our website at thebrief.muls.org.

Disclaimer: All views expressed herein are those of the individual authors and do not reflect, in any way, the attitude of the Macquarie University Law Society.

The Macquarie University Law Society does not accept any responsibility for the losses flowing from the publication of material in The Brief.

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What’s new in the law?

Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth) This Act legalises same-sex marriages within Australia following the response to the highly anticipated national plebiscite, which gained 61.6% yes votes. The Act amends the Marriage Act 1961 (Cth) and the Sex Discrimination Act 1984 (Cth). As a result, ‘marriage’ has been redefined in the Marriage Act 1961 (Cth) as ‘a union of two people’ irrespective of sex compared to previous gendered language prescribing a marriage to include a man and woman. Further, in the Sex Discrimination Act 1984 (Cth) the law now holds that if a religious minister, celebrant or chaplain refuses to solemnise a marriage under prescribed circumstances i.e. same-sex, this will not constitute unlawful discrimination.

Gender Dysphoria: Kelvin [2017] FamCAFC 258 (30 November 2017) The Family Court recently held in Kevin [2017] that children experiencing ‘gender dysphoria’ and their families are no longer obliged to seek Court authorisation to undergo ‘stage two’ hormone treatment. This applies where the young person consents to treatment, his/her parents do not object, and the medical practitioner agrees the child is Gillick competent, i.e. has sufficient understanding and intelligence to fully appreciate what the treatment entails. This landmark decision recognises the transformative nature of modern families and transgender persons.

Moreover, it highlights how pre-transgender children are treated by our legal system to allow for greater acceptance under the law as vulnerable members of society.

Protection of Aboriginal Languages: Aboriginal Languages Act 2017 (NSW) NSW is the first Australian State to revive Indigenous languages. This Act provides for the appointment of language experts to a not-forprofit language centre or trust. The Act requires the trust to provide a draft strategic plan to the 6 | The Brief

 Maria Zotti

Minister aiming to foster growth and nurture Aboriginal languages. This reform emphasises the government’s shifting attitude towards Indigenous languages; previously Indigenous languages were discouraged and almost lost due to inexcusable State actions such as the removal of Indigenous children. This also represents part of a long-term movement towards recognising Indigenous Australians’ rights as human beings and the first peoples of our land.

Support for Victims: Crimes (Sentencing Procedure) Act 1999 (NSW) Amended in August 2017, section 30A was incorporated to ensure that victims in proceedings for ‘prescribed sexual offences’ (i.e. child abuse) can access a support person and other special measures when reading their victim impact statement during the sentencing process.

This reform is consistent with Recommendation 78 from the recent Royal Commission Final Report into Institutional Responses to Child Sexual Abuse following hundreds of Catholic Church sexual abuse claims.

A Tale of Two States: Euthanasia Law Passed in Victoria, Failed in NSW NSW and Victoria aimed to provide terminally ill patients over 18 years of age whose death is imminent to choose to end their severe pain, suffering and/or capacity. The Voluntary Assisted Dying Act 2017 (VIC) successfully passed both houses during November 2017 sparking public attention to the forthcoming NSW Bill, the Voluntary Assisted Dying Bill 2017 (NSW).

However, the latter was subsequently rejected by 1 parliamentary vote. As expressed by MP Trevor Khan, community support is essential to securing votes. Opponents of the public protested outside NSW State parliament prior to the vote. These circumstances demonstrate the ethical challenge euthanasia poses to society, as it encompasses implications related to the sanctity of human life and respect for personal autonomy.

Social Justice Corner

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Slavery in the Modern Age  Alexandra Brien

illions of people across the globe are affected by what has been described as ‘modern slavery’. ‘Modern slavery’ is an umbrella term. According to the Joint Standing Committee on Foreign Affairs, Defence and Trade, modern slavery which includes an array of crimes such as ‘human trafficking, forced labour, sexual slavery, child labour and trafficking, domestic servitude, forced marriage, bonded labour including debt bondage, slavery and other slavery-like practices.’ In our very own backyard, ‘human traffickers and slaveholders are using people against their will for their own profit’, most notably on Australian farms.

For instance, a recent undercover investigation has revealed the exploitation of illegal migrant workers on farms supplying produce to supermarket chains Coles and Woolworths. The Federal Secretary of the National Union of Workers, Tim Kennedy, confirmed there were ‘countless’ stories of this exploitation with farmers wanting cheap labour that they can exploit without repercussions.’

Indeed, migrants in the industry are seen ‘not as people, but commodities.’

The use of these vulnerable groups as ‘commodities’ is illustrated by the story of ‘Paul’ (a pseudonym) who was lured to Cairns from Papua New Guinea to work on a Queensland banana farm with the promise of good work and a TAFE education. He was working 12 hour days, while surviving on bread, boiled mincemeat and cordial, living in a shed he shared with a dog. Although he managed to escape and the farmer jailed for three and a half years for a visa scam – the same fate awaited him when he went to work in Mildura, Victoria. In similar squalid conditions, Paul’s pay was less than a tenth of the legal minimum wage. He never received his promised TAFE education.

Highlighting the extent of these issues, three Tongan workers have died enduring modern slavery. They lived in unventilated shipping containers, worked 12 hour days and survived on cheap noodles with no safe drinking water. In the case of Paulo Kivalu, one of the workers who passed away in September 2016, his labour hire contractor failed to pay superannuation for two years, leaving his widow and young daughters with less than $1500.

A Parliamentary Inquiry has found that certain labour hire contractors were taking up to $1 million dollars each month by exploiting Malaysian workers due to a lack of regulation and supervision by employment and immigration authorities. Consequently, Australia has been urged to take active measures to ‘stamp out’ these labour conditions. The Foreign Minister, Julie Bishop, has committed to introducing legislation with the objective of combating the spate of modern slavery within the country ‘as soon as possible.’ As a result, a Modern Slavery Act has been recommended by the Joint Standing Committee on Foreign Affairs, Defence and Trade. The Committee recommended that an Australian Act should follow the UK model, contained within section 54 of the Modern Slavery Act 2015 (UK). That section imposes a mandatory reporting requirement, stating that companies and organisations operating in the UK must report on measures to address modern slavery in their global supply chains. Holding businesses accountable is an important step. Mining mogul and founder of the Walk Free Foundation, Andrew Forrest, stated that ‘by enlisting the power of business, we can ensure that slavery is not part of the goods that Australians buy and consume.’

Only time will tell how effective such legislation will be on the systemic modern-day slavery currently running rampant in Australia and beyond.

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Devil’s Advocate

Vaccinations and Children’s Education: Mandatory Vaccination Programmes

FOR

Fiorentine Pefani

8 | The Brief

T

hrough the democratisation of knowledge through the advent of the internet, everyday individuals are able to access a wealth of information at their fingertips and this has resulted in a multitude of positive outcomes for many. Everyone can now make informed decisions ranging from the best way to finance the purchase of a home, to which brand of tyres will give our cars maximum mileage. However, this access to information has also produced a negative outcome regarding human vaccinations; every citizen is an apparent lay expert in medicine.

The medical community as a collective and overwhelming majority affirms that vaccinations work. They have a wealth of longitudinal, empirical data from over a century to back up these claims. Because of this, I defer to their expertise because I understand that I lack the capacity to know everything, like most Australians who have not spent the greater part of a decade receiving a formal education in and practicing medicine or molecular biology.

No amount of Googling will match their knowledge-base. That is why the remainder of this argument will proceed on the basis that vaccinations work.

Every argument heard by this writer from “anti-vaxxers” either conflates the statistical data relating to adverse reactions or is filled with confirmation biases which focuses on a handful of patients who suffer side-effects from human vaccinations and ignores the abundance of positive outcomes.

However, there are individuals who claim that the choice to raise children vaccine free is their own right to make as a parent; they need not justify their choices, and no amount of scientific data

can persuade this decision. Yet, these individuals forget that the State also has a vested interest in future generations, such is evident from the inherent parens patriae jurisdiction of the Courts. The Courts have used this legal principle on many occasions to make treatment orders in direct opposition of the will of parents/legal guardians. Most recently, this has happened in the UK with the neonate Charlie Gard.

This writer is not arguing that state governments need to resort to such measures, however some actions have already been taken. On 20 September 2017, the NSW Parliament passed the Public Health Amendment (Review) Act 2017 (NSW) which enforces mandatory vaccinations, under the threat of heavy penalty, for those choosing to enrol their children in public government schools, childcare centres and some non-government schools. This is not an attempt to ostracise parents who choose not to vaccinate their children, but to protect the interest of other’s children.

This is a direct consequence of vast amounts of scientific data revealing the positive, long-term benefits of vaccinations. Parents can choose not to vaccinate their children, however when an unvaccinated child is sent into a school/childcare centre with other children and it propagates, say, lifethreatening acellular pertussis, one persons deluded “exercise of parental rights” now effects another’s child. The position the law takes can be summed by the old aphorism of John B. Finch; ‘your rights end where mine begin’. If we have enough unvaccinated individuals or children together, the protective effects of herd-immunity are non-existent and one individual’s fallacious ideology does not get to take the life of another.

AGAINST

Vincent Appleton

T

he invention of vaccinations was a medical breakthrough which has prevented horrendous diseases, such as polio, and helped in eradicating diseases, such as small pox. I am glad I was vaccinated as a child allowing me to live relatively disease free, minus the dreaded chicken pox!

However, is it a step too far to impose vaccinations on people to the extent of barring unvaccinated children from attending childcare?

The NSW Parliament recently passed the Public Health Amendment (Review) Act 2017 (NSW). In particular, section 87 of this Act will make it mandatory for all childcare centres to demand child vaccination certificates from parents. If the parents are conscientious objectors to vaccinations, then legally their child cannot attend childcare centres.

To an extent this statute is justifiable where some children have compromised immune systems or for medical reasons cannot be vaccinated.

Therefore, by bringing these children into contact with unvaccinated children increases the risk for them contracting diseases that vaccinations prevent.

Also, by having all other children vaccinated these compromised children can be protected by herd immunity, as vaccine preventable diseases are less likely to arise.

However, by preventing unvaccinated children from accessing childcare facilities is denying these children the right to education. An extensive study by the Department of Families, Housing, Community Services and Indigenous Affairs, which was later published as a research paper entitled: ‘Child Care and Early Education in Australia’, found that as long as a child received good-quality childcare service, then childcare can be an important part of a child’s early development. This is important because it introduces children

to new social contacts and provides stimulation for their developing minds.

Therefore, to deny a child the right to competent childcare services is to deny a child the right to early education. It is unclear whether isolating anti-vax parents and their children will truly work in persuading them to vaccinate. It will of course help protect those vulnerable children, who have compromised immune systems at childcare facilities, but what about other places that children visit? It would be absurd, discriminatory and impossibly impractical if the government started barring unvaccinated children from playing at parks, pools or other public places.

Research by Associate Professor Julie Leask from Sydney University School of Public Health concluded that taking an adversarial approach to anti-vaxers will further establish their convictions.

Rather, Leask concluded that research shows that setting up open dialogue between health care professionals and hesitant or objecting parents is more likely to result in considering or even just partially vaccinating their children.

Leask also noted, although this dialogue between the health care professional and the anti-vax parent must be inquisitive rather than directive. The professional must discuss why the parent believes this and then ease them into the importance of vaccinations as opposed to just lecturing. The NSW government barring unvaccinated children from attending childcare facilities represents the adversarial approach. If Leask’s research is to be considered then this will completely shut down anti-vaxer’s willingness to debate the topic.

At the end of the day, the child suffers and has no choice or control over their parent’s ignorance. Is it really fair to punish the child for a parent’s mistake?

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Under the Radar

Policing the Police  Adelaide Falzon

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ection 19B of the Crimes Act 1900 (NSW) stipulates that the murder of a police officer carries a mandatory life sentence.

The Attorney-General at the time, Greg Smith, explained that this 2011 amendment was introduced because “the murder of a police officer is a direct attack on our community and warrants an exceptional punishment”. So, what about ordinary citizens who are wrongly killed by police officers?

Surely this scenario is the epitome of a “direct attack on our community”?

In 2009, Adam Salter, a mentally ill man, was shot and killed in his home by a police officer when he began stabbing himself. In 2012, Roberto Curti died after being tasered 14 times. The Brazilian student was having an adverse reaction to LSD when he stole some biscuits from a convenience store. In 2017, Danukal Mokmool, a mentally ill man, was shot dead by police at Central Station. He had been suffering paranoid hallucinations when he started threatening people with a pair of scissors.

In all of the listed cases, the NSW Police Force closed ranks and not one single officer has been held accountable to date. There is a lack of transparency concerning what actually occurred in each case.

Far too often, the NSW Police Force uses excessive force with no accountability. This worrying trend disproportionately affects vulnerable groups, such as young people, the homeless, Indigenous people and people with mental illnesses.

You may ask why this is. Currently, incidents in which a civilian suffers serious injury or death during a police operation, are subject to internal review. The police investigating themselves represents a cataclysmic conflict of interests and a complete disregard for the rule of law.

The growing militarisation of the NSW Police Force in the wake of terrorist threats, has compounded this issue, legitimizing and further entrenching the inequitable precedence of police impunity. On 21 June 2017, the Terrorism 10 | The Brief

Legislation Amendment (Police Powers and Parole) Bill was introduced by the Berejiklian Government with little public debate. The bill was a response to the Lindt Café Siege coronial findings which allows police officers to use lethal force when “reasonably necessary”. It also specifically states that “police officers will not incur criminal liability for taking any such police action”. The ambiguous wording of the act has led to concerns regarding the ability of police to use lethal force on anyone in a terrorist situation, not just the alleged terrorists.

In December 2017, forty-seven police officers were armed with M4 semi-automatic assault rifles after a ten-day training program. NSW Police Minister, Troy Grant, dismissed criticisms saying, “there may be some in our community who may be confronted by the fact that police now have greater capacity in relation to their firearms and their arsenal…but I think more so, the community will be comforted by the fact that the police have the capability to keep them safe”.

Bizarrely, the fact that police have been given the green light to use lethal force and a greater arsenal does not provide much comfort when presented with the way in which police brutality against vulnerable members of society gets swept under the carpet. While there is no argument that these anti-terrorist measures are for the greater good, the greater good can easily be used as justification for the greatest evil. To combat this, there needs to be a high level of responsibility and culpability that comes with misusing any police power. What it really comes down to is ensuring that growing police powers do not outweigh the safety and liberties of ordinary people and that when they must, they come with conditions that mitigate, justify, check and balance potential harms.

As it stands, we can start by implementing an independent body to investigate all incidents where police officers assault or kill civilians.

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 1, 2018 | 11 WITHIN A GLOBAL NETWORK

15306D

Breaking the Silence through #MeToo:

An Era of Upheaval and Accountability  Maddison Passarelli

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he year of 2017 saw more women than ever before come forward to disclose experiences that shared one significant commonality – unwelcomed, unsolicited, nonconsensual, non-mutual sexual harassment, misconduct and assault. What started with allegations against the US President-Elect Donald Trump’s history of degrading sexual misconduct, as well as concerns over the deeprooted sexism and misogyny spilling out of his proposed policies - eventually saw millions of people around the world rally together as allies to protest through the Women’s March. What appeared, at face value, to be a small instance of short lived advocacy, would ultimately play a significant role in fuelling a fire in every women and girl, to demand that their voices be heard – igniting a new women’s revolution.

With a revolution, has come a new level of activism, and in the last year alone we’ve seen small acts perpetuate a much deeper message.

Following the Women’s March, International Women’s Day saw the introduction of the ‘Fearless Girl’ on Wall Street to challenge the lack of gender diversity in the heart of the corporate world, to acknowledge and to celebrate the role and power of women. In addition, Harvey Weinstein sexual abuse allegations in Hollywood, saw the civil rights activist Tarana Burke’s “Me Too” movement reignited after 10 years, with women sharing their stories of sexual assault and harassment whilst using the hashtag 12 | The Brief

#MeToo. This movement has provided women who have, potentially, been subject to nondisclosure clauses, confidentiality agreements, statute of limitations, and fear, with a platform to disclose their stories, personally, and on their own terms. Furthermore, in the process, these acts have allowed women to stand in solidarity, and to take control of the narrative around sexual assault and harassment. To top it all off, the word ‘Feminism’ was Merriam-Webster’s most searched term of 2017. Time magazine’s person of the year happened to be a group of women and men who were acknowledged for speaking out about the state of sexual harassment and the ‘Time’s Up’ legal defence fund came to fruition, in response to the wave of allegations pertaining to sexual assault, harassment and inequality across the workplace – thus, demanding that the time to act is now.

However, whilst waves of allegations continue to flow, and activism continues to respond, it has been argued that the agenda is currently and predominately focused on addressing harassment in specific industries, with the help of the highprofile individuals who have access to mass audiences, thus potentially ‘leaving some women behind’ and unheard. While we are now living in an era where women are demanding to be heard, and to have their stories genuinely listened to, it has left people questioning what we are truly aiming to achieve. With upheaval comes inherent backlash. Such backlash is evidenced by the way in which people have responded to

individual #MeToo cases: the dichotomy between calling people out on their sexual misconduct, the premise of a witch hunt, the rise of the notion that women are inherently not to be believed, and furthermore the psychological impact that disclosure is having on those who feel unable to speak out. This has ultimately been the case in Australian jurisdictions, especially in light of the response to the Australian Human Rights Commission national survey into sexual assault and harassment on University campuses. Results showed that women were three times as likely as men to have been sexually assaulted in a university setting, and twice as likely as men to be sexually harassed in a university setting. In addition, results indicated that 94% of students who were sexually harassed and 87% of students who were sexually assaulted did not make a formal report or complaint to their university.

Ultimately, some responses to such results were comparable to that experienced by the #MeToo campaign, with similar trends around questioning the reliability of the results, and lack of reporting, whilst being quick to impose a ‘deeply flawed’ label.

In light of the continuation of activism that has been carried out over the last year in response to sexual harassment and assault, it has become increasingly evident that legislative action has been arguably inept and selective in dealing with the issue. Sexual assault and harassment has been subject to various forms of social acceptance for an enduring period of time, and thus, the responses have arguably been a somewhat knee jerk reaction to addressing a much more systematic and socially engrained issue. For example, in response to women disrupting the discourse, through #MeToo, the proposed (Me Too) Congress Bill has been introduced in the US to address the issue of sexual harassment in Congress alone. This has been done through the implementation of sexual harassment awareness training and a furthermore reformed procedural complaint processes, which would see the typical mediation and counselling requisite wiped, and thus enable normally procedurally prevented formal complaints of sexual harassment to be filed.

Arguably, the Act in itself is removing a barrier that was impinging on the ability for

victims to come forward with their stories to take control of their personal narrative to the fullest extent - and additionally, the Act eliminates Congressional protections from adverse attention, that refrained from bringing people in a position of power into disrepute.

Alternatively, although Australia has taken a federal level stance on sexual harassment through the operation of the Sex Discrimination Act 1984 (Cth), which defines sexual harassment to constitute an “unwelcomed sexual advance, or an unwelcome request for sexual favours, to the person harassed; or engages in unwelcomed conduct of a sexual nature in relation to the person harassed”, the issue of sexual harassment still persists, with the ABC reporting a string of anonymous disclosures of sexual harassment in the Australian Theatre industry, ironically labelled, ‘The Weinstein Effect’. However, the decisions to disclose stories of sexual assault and harassment at the hands of people in positions of significant power in contrast to the victim, should not boil down to reference one single man who was in a position of power. For the reality is, without the women who’ve built up the courage to speak up and out about these experiences, this state of holding men accountable for their actions would, arguably, cease to exist. Women are not drawing a line in the sand because of men such as Harvey Weinstein, Don Burke, Craig McLachlan, or because of legislation, or backlash – a line is being drawn in the sand, because women matter.

Whilst some may argue that #MeToo has the potential to destroy individuals, their lives, and careers, others may argue that any proposed legislation is a knee jerk reaction. Some people will not believe the women coming forward with their stories, whilst some will argue that everyone is human and make mistakes. I argue that, irrespective of these notions, women will demand to be heard. Women were once fearful to question people in positions of power, fearful of losing their jobs, fearful of the inherent power plays that were held over their heads.

However, women are no longer fearful, they’re questioning the narrative by challenging and exposing the actions of the main characters. The fear has shifted, from victim to perpetrator, the dichotomy completely upheaved from allegation to accountability.

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Is there a Change in the Air?

Discrimination in the International Community and Climate Change ď € Sapna Goudan

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he growing economic strength of nations such as India and China, have brought prospects of an upheaval in power within the international community.

However, one aspect which has been largely ignored due to its visibility to only those involved in studying, researching or working in this field is continued discrimination within the international community. A close look at international environmental law demonstrates that the international community has not moved forward at all. Climate change is the most urgent contemporary issue. However, its impacts are not fairly distributed. The international community is still largely dominated in favour of the global north, which severely impacts the way in which climate change is handled. Climate change is 14 | The Brief

happening now and the measures of adaptation and mitigation are simply not enough to protect those most vulnerable in the face of the current changing climate. The hierarchal structure of the international community means that those nations that are most vulnerable to climate change are not receiving full justice for their suffering, and attempts to address such issues are framed as morally driven works of charity.

Climate change compensation is a ‘red line’ topic. In treaties such as the United Nations Framework Convention on Climate Change (UNFCCC) and the Paris Agreement, the comparative advantage of developed nations has been acknowledged along with the responsibility of utilising their positions in assisting developing nations. The Kyoto Protocol, developed under the United Nations Framework

Convention on Climate Change (UNFCCC), makes provisions for differential treatment to be granted to less developed nations. This was furthered in Article 4 of the Paris Agreement, compelling developing nations to consider those states most affected by climate change.

Despite the fact that industrialised nations have promised to use their advantage in aiding developing countries against climate change, their promises have not amounted to anything significant. Rather, western privilege allows them to give aid without directly accepting responsibility. As a result, developed countries continue to face issues that are well beyond their capacity. Climate change losses are not just economic, cultural disintegration and relocation have all been set into motion due to the degrading environment. International treaties

such as the UNFCCC and the Paris Agreement have focused on mitigating and adapting to climate change, however they avoid the mere prospect of compensating for the immense damages already caused to vulnerable states.

The term aid is complicated, as it is never free. Compensation on the other hand, recognises damages caused to another which lead to their detriment. The international community has religiously ignored the role of industrial nations in the current struggles of developing nations in the fight against climate change. Ultimately, instead of cleaning up their own mess, developed nations sit on a superiority of morally driven ‘charity’ in abetting the dissipation of the damages they have caused.

The South Pacific is a strong example of the kind of calamities developing nations are Edition 1, 2018 | 15

facing or will deal with in the coming years.

Sea levels in Fiji have risen 0.2 inches per year as a result of climate change. This has not only lead to increased illness and insanely warm temperatures but the severity as well as frequency of natural disasters has increased considerably. The most prominent of these being Cyclone Winston, which was experienced in 2016 as the worst storm to enter land in the southern hemisphere and resulting in over 1.4 billion dollars’ worth of damages, approximately one third of Fiji’s gross domestic product (GDP).

The consequences of climate change are not only economic. The small community of Vunidogoloa was compelled to relocate to higher grounds, a fate which could be in the near future for other Fijians and residents of the Pacific Islands. The objective of the Conference of the Parties 23 was to focus on the implementation of the policies agreed upon in the Paris Agreement.

Fiji was unable to finance the COP and it was held in Bonn, demonstrating the severity of the financial strain that nations in the Pacific are under. The words of Fijian Prime Minster Voreqe Bainimarama summarise the urgency of climate change action for those nations that are most vulnerable to it.

“In a very real sense, we are fighting a twofront war. One front is the fight to keep the oceans clean and to sustain the marine plant and animal life on which we depend for our livelihoods and that keep the earth in proper balance. Land-based pollution, waste in the ocean, and growing maritime traffic are all deteriorating the marine ecosystem, and a growing world population with ever-more purchasing power is increasing pressure on the stocks of food fish in the oceans. … For us, the effects of global warming and stresses on the ocean are immediate and potentially catastrophic. That gives us tremendous moral authority to lead the charge on both these fronts—to promote sound global stewardship of the oceans and to slow the rate of climate change”.

16 | The Brief

Clearly, developing nations such as those of the Pacific Islands are suffering severe detriment due to environmental degradation and cannot finance the extreme consequences of this themselves. The COP was an opportunity for Fiji to be heard first hand in its suffering of environmental degradation, however, there has been no significant progress since this taking place. Adaptation and mitigation policies have failed to enable vulnerable nations such as Fiji to handle the impacts of climate change. As their situation worsens, it is imperative to acknowledge their entitlement to compensation and rehabilitation, yet developed nations such as the US along with Europe simply will not address the issue. It is telling of an inherent discrimination within the international community that these countries ignore what could be said to be their responsibility as developed countries Clearly, nations with bigger and stronger economies still call the shots, even during the times of global distress that they have caused.

The Paris Agreement acknowledged the role of human beings in causing current and possible future climate catastrophes. This is an important move in litigation regarding climate change as it establishes the link of causation in courts.

Nonetheless, the Paris agreement has only vaguely specified human beings as the cause of climate change, potentially implying equal responsibility.

If the international community were to be more proactive in protecting developed nations from the current detriment they are suffering as a result of climate change, vulnerable states could be in a better position than they are today.

An upheaval in the international community is extremely questionable when despite the progress of certain powerhouse economies, systematic discrimination fuelled by a colonial based hierarchy still exists. The consequences of this extends out to those suffering most from the impacts of climate change. Until compensation and rehabilitation can be acknowledged as a right for vulnerable states, the international community is cemented in its imperialist structure which has historically benefited only a few. The difference is now, the stakes are higher than ever.

Only Experienced Interns Need Apply:

The Rising Prevalence of Unpaid Internships

T

 James Woodward

he large number of articles written last year concerning various forms of unpaid work experience (‘UWE’) is a testament to the growing consciousness of the issue of potential exploitation and the lack of regulation of unpaid work in Australia.

Heightened discussion of the issue comes in the wake of a landmark study commissioned by the Department of Employment (published in 2016 - The body is now called the Department of Jobs and Small Business) and the launch of the Federal Government’s Prepare, Trial and Hire scheme (‘PaTH’). While seemingly essential for employment in a growing number of industries, the promised outcomes of UWE for many university students and recent graduates seem somewhat illusory.

Status of unpaid internships and work experience under the Fair Work Act 2009 (Cth) (‘FWA’) Apart from a vocational placement exception and the case of volunteers, unpaid work

arrangements are not lawful, the determining factor being whether one is an employee under the FWA. As the Act does not define the term employee, and the Explanatory Memorandum to the Fair Work Bill 2008 refers to employees at common law, it has been caselaw which has largely determined the status of UWE, the existence of an employment contract being key. In response to criticism from stakeholders that the Factsheets provided by the Fair Work Ombudsman (‘FWO’) do not provide sufficient certainty as to what is lawful concerning unpaid work, the FWO pointed to at least three factors militating against clear and definite advice: the complex nature of the legal principles concerned; the latitude those principles afford to courts and tribunals in relation to the identification of a contract of employment; and the absence of recent test cases considering the types of arrangements under examination.

Vocational Placement Exception Under section 12 of the FWA, UWE will not Edition 1, 2018 | 17

be treated as involving employment if it is a vocational placement. The placement must be undertaken as a requirement of an education or training course with no entitlement to any remuneration, and must be authorised under a Commonwealth, State, or Territory law or an administrative arrangement. A 2013 report commissioned by the FWO on UWE suggested the following: remuneration need not be monetary; ‘course’ may refer to a unit/subject or complete program/degree/qualification; and ‘authorised’ refers to the course being authorised under a relevant administrative arrangement. The exception appears to cover cases where students enrol in an elective during study which requires and gives credit for undertaking work experience.

However, university students commonly participate in internships of a type not covered by this exception. Lack of legal certainty means that these arrangements may constitute employment, a matter of factual circumstances. The FWO Factsheets state that an intern will be considered an employee if they are expected to perform tasks an organisation requires, the main benefit of the arrangement is held by the organisation, and the intern is not altruistically offering their services.

Moreover, the longer the arrangement, the more likely it is to be an employment relationship. It is at this point that UWE crosses into exploitation.

For example, in 2014 in Sitong Chen v Gavin Ma & Co Pty Ltd, the claimant had performed accounting and administrative work for 8 months.

Key findings of the Unpaid Work Experience in Australia Report (2016) 58% of respondents surveyed in the Unpaid Work Experience in Australia Report (‘the Report’) aged 18-29 reported that they had undertaken UWE in the last five years. THis illustrates the increasing prevalence of UWE and the perception of young people that it is highly important for securing full-time and/or part-time employment. It also suggests employers are placing increasing weight on people entering their

18 | The Brief

organisation ‘work-ready’. This is supported by the fact that 1 in 3 respondents to the survey gave responses suggestive of engaging in arrangements outside the vocational placement exception, as they were not for the purpose of earning course credit. That over one third of respondents had taken UWE placements of more than a month, with one in ten doing UWE for over 6 months, may point to a large percentage of arrangements being unlawful, given the factors in the FWO Factsheets (outlined above). Even where arrangements are lawful, unethically long lengths of engagement can have wide impacts: over one quarter of respondents reduced their hours of paid employment to participate in UWE. Accordingly, economically disadvantaged young people may not have the same opportunities to participate in UWE. The Report recorded that respondents of higher socioeconomic status were ten percent more likely to have undertaken unpaid work than their lower socioeconomic status peers. This finding in particular raises social mobility concerns and potential employment market equity concerns.

For those who can afford to undertake UWE, the benefits aren’t necessarily materialising, as the most recent Australian Graduate Survey found that over a quarter of university graduates were yet to secure full-time work four months after completing their studies. Despite this, over 70% of respondents reported high levels of satisfaction with their UWE, because they were developing skills and knowledge, and improving their job and career prospects.

The PaTH Scheme Under the PaTH Scheme, jobseekers aged 15-24 will be offered internships for 4-12 weeks and receive $200 a week on top of any jobseeker allowance. This allowance, in some cases, may amount to interns being effectively paid as little as $4 an hour for their work, far below the minimum wage. As PaTH placements are not for course credit, the FWA will be contravened unless PaTH interns are receiving the overwhelming benefit of the placement. The scheme is skirting a fine line close to employment. The Chairwoman of the YMCA Youth Advisory Committee suggests in this regard that the rise of UWEs including

internships is creating a second class, who in the case of the PaTh Program would be paid well below the minimum wage and only be of value to businesses so as long as government incentivisation continues. From this perspective the PaTH program says much about how little young people are valued in the current economy and the broader consciousness.

Impacts and Stakeholder Views In light of the issues explored above, stakeholders have expressed a range of diverse viewpoints on the benefits, importance and impacts of UWE. Amongst older job seekers, there has been a recognition of a discriminatory preference for younger applicants for jobs. Given that displacement of regular employees by UWE participants was raised in the 2016 Report, it is likely that this group will also be impacted, with the increasing use of unpaid interns to do work that would have been done by employees despite legal issues. There has been a particular upheaval in the perspective of employers, who have voiced increasing concern that recent cracking down on remuneration for interns may lead to business choosing not to hire interns, therefore reducing opportunities for interns to gain experience. By contrast, Interns Australia remains adamant that internships should be paid and well-structured, and that interns should have similar opportunities to employees. This perspective is understandable, considering that one university graduate who reported undertaking more than five hundred hours of unpaid intern work had still not found employment five months after graduating.

Conclusions While structured and monitored work-integrated learning can be highly beneficial to the jobseeker, providing skills, contacts and a resume boost at the least, internships in the open market frequently involve real work without adequate supervision or training. Given this, there is an undeniable need for UWE to be better regulated to prevent to prevent interns being lured by false hopes and to ensure an equitable economy and socially mobile society.

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Transparency and accountability:

Effects of the Royal Commission into Institutional Child Sexual Abuse

A

ď € Emalee Walker

s conversations regarding sexual abuse become ubiquitous, it is apparent there has been a drastic shift in social values. A significant disruptor of social values in Australia over the past five years, the Royal Commission into Institutional Responses to Child Sexual Abuse (the Royal Commission), has revealed that sexual abuse has seeped into many areas of society - some known, many unknown.

The Royal Commission scratched the surface of institutional responses to abuse and then discovered, through its extensive private sessions and thorough public hearings, the breadth and depth of this embedded institutional issue.

Broadly, the world has become suffused with overwhelming intolerance of sexual abuse, which has motivated a shift in then-accepted practices such as non-reporting of crimes to authorities.

The new understanding and intolerance of what has occurred in institutions directly aims to limit the risk to children and to reduce suffering of those who have been abused. As evidenced in both public hearings and private sessions, suffering takes many forms including mental health issues, inability to hold jobs and family breakdowns. As law students, it is important to 20 | The Brief

be aware of and participate in these waves of change to most effectively contribute to policies and practices which protect vulnerable people, particularly children, against maltreatment.

Former Prime Minister Julia Gillard authorised the Royal Commission in 2012, marking the beginnings of a social shift to understanding the nature of institutional child abuse. The establishment of a national Commission as opposed to State inquiries reflects the universal recognition that there is a need for seriously improved protection of children against abuse. The Final Report of the Royal Commission, released on 15 December 2017, included recommendations specifically for the Commonwealth Government to implement given its far-reaching capacities as a national body. These included establishing a National Office for Child Safety and a framework for preventative measures to protect children, enacting laws for mandatory reporting by a range of institutions (including religious institutions), funding for legal advice and services for victims.

These are among many recommendations for State and Territory Governments and religious and not-for-profit organisations. A number of recommendations will need to be enacted in legislation to have the required impact.

On 26 October 2017, the Commonwealth Government introduced the Commonwealth Redress Scheme for Institutional Child Sexual Abuse Bill 2017. The purpose of the Scheme is to provide redress to survivors through monetary payment (maxed at $150,000), counselling services and an opportunity for a survivor to receive a personal response from the institution.

The Scheme is significant as it creates a national standard, provides a less traumatic alternative to the current court system, and hopes to lessen the impact and residual effects of abuse on survivors. The standard of proof under the Scheme has also been lowered from the civil standard to ‘reasonable likelihood’. A query is raised as to procedural fairness in the Scheme as there is no mention in the process of providing the institution or alleged perpetrator with an opportunity to respond nor any appeal rights.

Decisions are based on the victim’s application.

Given the history of bipartisan support on this subject, it is likely that the legislation will be passed. Whether States and not-for-profit organisations will opt in to the Scheme is another question since it is voluntary.

The Final Report has published that during sessions with survivors, about 3, 489 institutions (including Governments and not-for-profit organisations) were reported where abuse had occurred. Governments and institutions have been given clear recommendations by the Royal Commission to implement policies and procedures to protect children against abuse. By having clear regulations, the culture of governments and institutions is affected. It also demonstrates that society shifts in the culture of institutions in how they respond to child sexual abuse and create safe environments are not only necessary for the protection of children, it also demonstrates that society will not tolerate sexual abuse. The outcry which has followed the findings of the Royal Commission indicates that it has disrupted both society’s perception of the depth and breadth of child sexual abuse, and the norm of remaining silent. Society does have a responsibility alongside governments and institutions to continue in this line of renewed understanding of the impact of abuse and be proactive in preventing and reporting child sexual abuse.

The media has also had a significant role in disrupting the passivity surrounding child sexual abuse. Notably, Joanne McCarthy’s journalistic investigations and reports published in the Newcastle Herald brought to light child sexual abuse issues within the Catholic Church, contributing to the push which brought about the Royal Commission. Her contribution valuably propelled support for survivors and encouraged conversation as reports divulged the severity of the situation. For this contribution to society, she was awarded the prestigious Gold Walkley award in 2013. The role of the media is important in drawing our attention to the extensive failure in protecting children. The value in telling true stories and shining a light on the atrocities has contributed to the shift in culture from covering up child abuse to actively shaking embedded attitudes.

McCarthy’s reports are among many journalistic efforts which highlight the vast number of allegations against the Catholic Church. Of the recommendations presented in the Final Report, the one which is likely to create tension between the Catholic Church and civil law is if mandatory reporting is legislated without exempting the Church’s sacrament of reconciliation (confession). This would disrupt the current exemption of conversations in confessional between the priest and the penitent.

This has already been opposed by Catholic leaders as it contradicts their beliefs about confession and conflicts with current Church law.

This may lead to a breach of statute if a priest fails to report a crime of sexual abuse.

If the recommendations are accepted and acted upon, the impact on survivors will be striking. The recommendations serve to establish better ways to assist them, and prevent reoccurrence of such extensive trauma. It has also become glaringly clear that accountability is an important outcome for survivors. An increase in accountability and transparency in policies and standards is vital to ensuring that the culture of all institutions, and society generally, is one where the impacts and effects of sexual abuse and keeping children safe are understood. We now wait to see what recommendations various governments and organisations will accept and act upon.

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Australia Said Yes:

Amid Celebrations Lie Deep Divisions

O

 Yueh Wong

n the 8th of December 2017, the Marriage Amendment (Definition and Religious Freedoms) Act 2017 came into existence, receiving the Royal Assent from the GovernorGeneral and passing both Houses of Parliament on the previous day.

The entire process, beginning with the Coalition’s proposal of a voluntary postal survey, to the eventual passing of a bill to extend the legal recognition of marriage for same-sex couples has undeniably been steeped with controversy. The move towards changing the Marriage Act 1961 (Cth) (‘The Marriage Act’) to include same-sex marriage (SSM) has 22 | The Brief

particularly ignited debates, which played out in the media concerning the potential erosion of freedom of speech and religious freedoms.

For those opposing the concept of SSM, it is feared that voicing disagreement and excluding LGBTIQ couples from the provision of goods and services (in accordance with personal religious beliefs) will not be possible with changes in the law.

Given this emphasis upon the freedom of speech and religious freedoms, it is worthwhile examining how exactly they are provided for in Australia. In Australia, the absence of a national bill of rights (a formal declaration and protection of key legal and civil rights

for citizens) means that its protection of the freedom of speech is vastly different to the experience of the United States. In the United States, the First Amendment of the United States Constitution is broadly known to citizens of not only the US but other nations.

Although s 116 of the Australian Constitution seeks to protect the freedom of a religious choice, the provision has had a limited role in protecting freedom of religion. Rather, it is instead ‘protected by the political process and “goodwill” of government.’

Effect of new laws Beyond simply changing marriage laws to provide for SSM, the 2017 bill, Marriage Amendment (Definition and Religious Freedoms) Bill 2017 (Cth), sponsored by Senator Dean Smith, explicitly takes into account religious freedoms.

Changes brought about by the Bill include the amendment to the definition of marriage to ‘the union of two people’, the confirmation that legal requirements of marriage remain unchanged such that gender-neutral language has been used to cover all marriages equally, and the recognition of foreign SSMs in Australia.

The new objects clause of the Marriage Act clarifies the legal framework will recognise marriages between two adults, as well as the protection of religious freedoms as associated with marriage. The extent to which the amended law permits religious freedom extends to allowing ministers of religion from recognised religions, newly identified ‘religious marriage celebrants’ and defence force chaplains to refuse to solemnise marriages for religious reasons. However, civil celebrants, registry officers and defence force marriage officers providing secular alternatives for marriage overseas cannot refuse to marry

couples on religious grounds. A 90-day window has been created for civil celebrants to transfer to ‘religious marriage celebrants’ to fall under provisions for religious protections.

Amendments to the Sex Discrimination Act 1984 (Cth) also give full effect to religious exemptions, by extending the exemption from Divisions 1 and 2 of Part II of the Sex Discrimination Act (covering discrimination in work and other areas: education, goods, services and facilities, accommodation, land, clubs, and so forth) for people whose conduct is in direct compliance with the Marriage Act. This seeks to ensure protection against discrimination based on sexual orientation, same-sex de facto couples, gender identity and intersex status.

Addressing different interests For individuals who oppose SSM on religious grounds, the current anti-discrimination laws have had an apparent effect on their capacity to exercise free speech or discriminate in the goods or services provision. While there may be some concerns around ‘avenues of intimidation’ for those believing in a traditional definition of marriage, Australia does have a constitutionally implied freedom of political communication that encompasses the right of those opposing SSM to hold and express such views; having or voicing disagreement with current laws is not prohibited.

Anti-discrimination laws ultimately restrict this freedom to limit harm to other individuals by providing reprisals where such speech is, for example, inflammatory or obscene.

Moreover, concerns about ministers and civil celebrants being forced to marry same-sex couples should be diminished given that the amendments to the Marriage Act have accounted for the debates regarding freedom of religion. In

Edition 1, 2018 | 23

addition, the institution of the Ruddock Religious Freedoms Review (The Ruddock Review) has demonstrated a willingness to mediate differences in opinion. Legal acceptance of SSM has occurred in many common law countries, including the United States, Canada and the United Kingdom. Canada in particular has undergone an acceptance of SSM early in 2005 and the changes to the definition of marriage have restricted the capacity of civil celebrants and religious organisations to discriminate on the basis of their religious beliefs. Although the experience in Canada has apparently diminished religious freedoms, as fines were issued to religious organisations for refusing to rent facilities and civil celebrants could not refuse to solemnise SSMs, Australian amendments explicitly account for religious freedoms.

As legislation already explicitly provides exemptions for certain people and organisations with respect to religions, some arguments regarding the inadequacy of legislation perhaps conceive of an unbounded, entrenched right to freedom of religion. In any case, many Christians were in favour of SSM in polls, demonstrating the divergence in opinion even within religious groups. Given the current limits to the scope of religious freedoms in Australia to begin with, any suggestion that religious freedoms will be completely eroded by the changes are exaggerated. It is also relevant to recognise that the Marriage Act simply provides legal recognition and confers the social benefits of marriage as an institution to married same-sex couples. The Marriage Act itself does not reflect religious blessings, concepts of love, justice or rights which underlie the debates playing out in Australian society.

For individuals who support the concept of same-sex marriage, a potential question that

24 | The Brief

remains is whether religious exemptions for same-sex marriage undermine the very purpose of anti-discrimination legislation. Currently, antidiscrimination laws have the role of weighing up competing ‘rights’ – the right to equality and the right to freedom of religion. The underlying concern is that vulnerable groups need protection from persecution and given that the LGBTIQ community are of minority status, this implies legal protection of those identifying as falling within this section of the community. Current anti-discrimination laws aim to, but according to the Human Rights Law Centre, fail to strike an appropriate balance between religious freedoms and freedom of religion. However, exceptions still apply to account for different societal groups.

As seen in Victoria, anti-discrimination laws currently exempt discrimination on the basis of religious belief where reasonably necessary.

Additionally, given that Australia is a secular democracy, it may be argued that creating protections for religious freedoms is inappropriate. Current protections of religious freedoms in anti-discrimination and sex discrimination laws ultimately recognise concerns from religious groups. Yet, it is the nature of a democratic society and the vote in favour of SSM that recognises the current societal norms that favour a movement from traditional marriage conceptualisations to a society that advocates for diversity.

As a representative democracy, the people made a decisive vote in favour of SSM and the government of the day has neither given undue or limited weight to the views of religious groups against SSM. The current laws, alongside the current Ruddock Review into religious freedoms, ultimately account for a range of interests in Australian society.

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Edition 1, 2018 | 25

Avenues of Your Law Degree

An Interview with

Emeritus Professor Rosalind Croucher  Nicholas Owczarek

R

elieved that my request for an interview was granted, it was on a hot dry day last December that I went to speak with the new President of the Australian Human Rights Commission (‘AHRC’), Emeritus Professor Rosalind Croucher, at her Pitt St office in Sydney’s CBD. Once a law student at Sydney Law School, her first academic appointment was at Macquarie University as a tutor. She eventually became Dean of Sydney Law School

26 | The Brief

(1997-1998) and Macquarie Law School (19992007) before her appointment as President of the Australian Law Reform Commission (‘ALRC’ - 2009-2017) and now President of the AHRC. With a long career in academia and government, the interview questions focused on these two broad headings.

I start off the interview with a simple question on Rosalind’s day-to-day role at the AHRC. Unsurprisingly, she notes the job is packed and active; each day typically involves a mixture of

meetings and policy thinking. She is also wary of the significance of the role, particularly in terms of balancing accountability to the government and the UN, as well as being an effective devil’s advocate, which requires the AHRC to be a trusted advisor: ‘[A]s Michael Kirby put it in that context, “no one owes a law reform agency a free lunch”. When you’re a statutory agency, as parliament gave birth to you, parliament can knock you off as well.’ In the same answer I also learned that Rosalind writes her own speeches, which also makes up part of her day-to-day role.

She noted her love of speeches and speechwriting – an ‘extension of the academic habit’ and an ‘intellectual discipline’ – as well as the fact she can truly claim ownership of her ideas.

We move on to the transition between Rosalind’s many roles, which have involved two separate skill sets – the academic and management skill sets. However, as she pointed out, these were easily transferable to law reform: ‘I found that certainly when I became President [of the ALRC], all of those management skill sets were vital but the intellectual skill set of being an academic, running research programs, that was easily transferable to the work in law reform, which was like embarking upon a

collective doctorate, where the Commissioner is responsible for the conceptual framing, but then the individual chapters were written by the legal officer team, and you took responsibility for the framing of it’. She also reiterated trusting to the process during inquiry cycles – not to solve everything at once, and anchoring the team to the appropriate conceptual framework. Part of trusting to the process also means being confident that the legal team behind each inquiry can acquire a superficial passing knowledge of the subject matter to start off before subject matter experts become involved on a pro bono basis.

The QUeensland University of Technology (‘QUT’) case is briefly mentioned. Such cases, however, which tend to dominate the media, detract from the work the Commission does on a day-to-day basis and ultimately make the public lose sight of the purpose of the Commission. As Rosalind pointed out, the work that takes place in the background – work in information services, complaint handling, and educational outreach – often goes unnoticed and is not publicised.

That said, there are strict secrecy provisions in place for conciliators to guarantee trust in the Commission’s services: ‘It’s an offence for [conciliators] or anyone in the Commission to

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talk about what happens in the resolution. And that secrecy is like extreme confidentiality. It means people can have confidence that if they contact us about a matter, it’s not going to be in the papers the next day, unless they put it in the papers themselves…I’ve tried to make it part of the feature of what I talk about, because I think it’s one of the things that astounded me – the professionalism and effectiveness of that conciliation-based service.’ ***** I move on to a question about Rosalind’s academic interests in equity, property, succession and legal history, in which she has published widely. Naturally she is surprised that I would go so far as to call these areas of law ‘arcane and esoteric’. She notes it is often a ‘backward interest’, triggered by a case (for example), that sends her on a journey to find out ‘why’ the law has become the way it has: ‘I’ll give you a specific example. It was a case concerning the Torrens system and indefeasibility [Bogdanovic v Koteff] and it concerned whether volunteers could claim indefeasibility of title. And it was a case that said yes, they could. And I thought “oh”. I wondered about that. That sent me on a path to find out.’

She also mentioned the recent amendments to the Marriage Act 1961 (Cth) as another example: ‘What we will see in years to come is that on 8 December 2017, marriage law was amended to enable two people to wed in Australia. But all of the stuff behind it, all of the issues about why it was called ‘definitions AND religious freedom’ – why was that in the bracketed bit of the bill?

We know why now, but in 20, 30, 40, 100 years, people will want to know why. That takes you into all of the debates, and all of the stuff about plebiscite, no plebiscite, and the High Court decision on marriage. What is a fascinating contemporary discussion is the sort of thing in 100 years time, that someone may say “oh, that’s an esoteric interest”, but actually for me it’s understanding the grit of how change happens in law, and particularly when it’s about legislation.’

Rosalind also briefly talked about etymology

28 | The Brief

and the origin of many of the legal terms still in use today as part of her interest in legal history: ‘I found it fascinating that a lot of the language of land law is French, and then a lot of the language of inheritance is necessarily Latin…because the land law was the law of the Normans. It’s the Norman French superimposition of the feudal system. So of course all the words are French – the fact we even talk about ‘estate’ – it’s a French word. English is such a macaronic language – bits and pieces…There’s all of these threads that I just find interesting. I like to see it all as very three dimensional and not two dimensional.’ ***** Moving on to career highlights, Rosalind says the events that have been momentous, apart from her completing a doctorate, have been those which have left a lasting impact or have been unexpected. She notes the ongoing prizegiving schemes she has established as well as Macquarie Law School’s peer ranking at 9th in the country: ‘[A]fter I’d been Dean at Macquarie for seven years, the Melbourne Institute did a peer ranking of law schools…the timing of that was purely coincidental. I thought “woah, that’s really good” – my academic peers were seeing the work I had done as Dean to recover the standing of Macquarie both within the profession because it was still fairly shaky, but also among my academic colleagues across the country – that was outstanding. You don’t really seek accolades, but when they come in that way, that was pretty significant for me.’ ***** I ask about how Rosalind navigated the challenges of being put under financial pressure when she was head of the ALRC, which like many government agencies has suffered numerous funding cuts. Despite the temptation to panic and to plead for more funds, she took a different approach: ‘If a government has a savings agenda, then there is no point whinging and whining about the translation of that in terms of a cut to

your budget. There is nothing gained by that…

But where you win friends, or demonstrate your ability is to show that you both understand that and also show what that means in terms of what you can do…’

‘There was another cut that came around $250,000 that we were told had to be factored in over three years. Rather than saying ‘oh my God, oh my God’, what we said was okay – we’ll take that hit in the first year completely, but in order to do that we can only run one inquiry. Our normal modus operandi for the last 10 years or so was to do two inquiries – staggered – but two inquiries at any one time. Now the single biggest cost to an inquiry is the Commissioner’s cost. By saying we would do one inquiry, what we were saying was we would save by not appointing a second full time Commissioner to head that inquiry. So the logic was there. Rather than saying ‘we can’t work’, or ‘we can’t cope’, what we showed was how we could cope.’

I hadn’t planned the next question but I was tempted to ask given its currency. It is about s 44(i) of the Australian Constitution which has ensnared a lot of politicians. Rosalind is unsure whether a referendum to amend or remove the provision would succeed. She was, however, curious about a letter in the newspaper that she read on the issue: ‘I suppose it’s an originalist interpretation of the Constitution, but at the time the Constitution was drawn, what did foreign allegiance mean? It really meant allegiance other than to the Crown of Britain. It’s an emphasis on allegiance as distinct from citizenship, and allegiance to the Crown – we still have allegiance to the British Crown, as does NZ, as does Canada, and of course Britain itself. But that interpretation was not made [by the High Court] – it was an emphasis on citizenship and a technical examination of citizenship. I quite liked the more historical lens to it.’ ***** Given the recent news about the plans to build a new home for Macquarie Law School, I ask Rosalind for her thoughts, and whether it would

bring her back to Macquarie once the building is completed. She is heartened that the law school will have a space dedicated to it, being recognition of the work of the students and the school: ‘It’s signalling that the law school has an important separate identity’. However, she says she thinks her career has moved on from university roles. I continue by asking if Rosalind has any sage words of advice for current law students: ‘Follow your nose. Follow what you like doing. Your career will only make sense backwards. Be guided by the things that give you joy. If you wake up and you feel “I don’t want to go to school today, mummy”, then you’re probably doing the wrong thing, or you need a holiday…’

‘You need formative failure in your life. Most of the law students I have known have been fantastically bright…many have never failed anything in their lives. That’s not healthy. You have to have some form of formative failure, whether it’s getting 3 out of 10 on an English essay, which happened to me in an English course at Sydney University…that for me was a moment that was absolutely essential to my intellectual development. It makes you realise you have a lot more to learn and that life is not always a straight path.’

She also noted that law students should also be confident enough to say they are not happy at law school if they feel that way, recalling when disappointed students used to approach her when she was Dean at Macquarie: ‘Usually what I would start with is “you don’t have to be here”… are you miserable in studying law? What do you really want to do? Is this really the discipline for you? Why did you come here? Was it because people said not to waste your ATAR? They’re not really sensible reasons to undertake a discipline that will be a career.’

We end with the classic question – whether Australia needs a Bill of Rights. Unfortunately I don’t get a direct answer. Rosalind only notes that there are (at least) two schools of thought on whether protection of rights would be enhanced with a Bill of Rights.

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30 | The Brief

Stuff Law Students Like

Networking

(for the Linkedin Updates)  Jessica Haddad

I

t seems that 4-5 years of glorious textbooks, readings, take-home exams and trying to stay awake taking notes from our online lectures have failed to prepare us for the culmination of the law student experience: Networking.

Yes, there is truly nothing better, after years of legal analysis and deadlines, than the ultimate test of a law student’s capability to gain entry into the workforce – holding a conversation.

Every year, we form part of the 15 000 prospective Australian law graduates, many of whom will attend networking events and mixers put on by the top firms in the country. Wearing our ill-fitting blazers, ties that choke us and heels we can barely walk in, we comment on the work of various partners in cases we definitely did not read from the firm’s website an hour before.

We consciously smile and make the right amount of eye contact without being creepy, and fire off pre-prepared questions that we absolutely did not practise on our parents/dog, remembering the ideal handshake firmness to secure an interview.

We play it safe when asked about our interests and hobbies, with reading and travel often topping the list, and mention social sport to advertise ourselves as literal ‘team players’.

You describe your inspiration for studying law and causes you are passionate about, none

of which include Netflix or Uni Study Guides for those life saving summaries.

All the while you are keenly observed by the not-so-obvious recruitment team in the equivalent of professional Tinder, watching your every mannerism and expression, ultimately deciding whether to swipe left or right on your application.

Perhaps the highlight of this experience is the opportunity to size up mingle with other prospective graduates. You try your best not to see them as competition, as the room quickly becomes the Colosseum, while you smile and nod politely, simultaneously racking your brain for a more innovative response to the question you were asked. Thankfully, you know that the mere effort of turning up is a great photo opportunity to be shared to your Linkedin profile, to demonstrate your dedication to your future career.

In the meantime, we continue to build our connections with people we went to high school with and ‘that guy from my admin tute’ for numbers, and share articles we did not completely read, to advertise our current and edgy worldview.

It seems an equal amount of preparation goes into forced socialising than any other facet of our degree. But if that’s not your jam, you can always connect with me on Linkedin.

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A Postcard from Abroad

A Canadian Exchange  Ruby Poynter

What subjects are you studying at the University of Waterloo?

I have studied five subjects abroad, but since law is only offered as a postgraduate degree in Canada, I was only able to do one law subject as a part of my major. I decided to study environmental law at the University of Waterloo in Ontario, Canada due to the university’s engagement with the environment and its commitment to renewable resources. As Canada is bilingual, I decided to do an introductory French course so I could understand the everyday basics that my friends spoke. I wanted to do an introduction into sociology course in Canada so I could have a more in-depth understanding of Canadian society and their customs. I also chose to study the sociology of family and marriage as it could easily be transferred back home.

Additionally, I was lucky enough to be able to do a Harry Potter unit! Engaging with one of my favourite series and actively being able to reread the books for a reason was one of the best aspects of my studies.

Why did you choose the University of Waterloo?

I didn’t specifically choose the University of Waterloo, but I wanted to do my exchange in 32 | The Brief

Canada. Thus, during my application process I chose every university in Canada. I initially wanted to attend the University of Calgary as it was close to Banff National Park and I love to go hiking and camping. Fortunately, I could join a hiking group at Waterloo and thus could still participate in many of the activities I wanted to.

In what ways have your law studies been different in Canada to Macquarie University?

My law studies were much less strenuous in Canada and my coursework has been significantly more diverse which has been very exciting for me. Examining Canada’s legal system was very intriguing for me as I had never studied environment law and the Canadian system is quite different to Australia’s.

Tell us about the unique aspects of your host University.

The University of Waterloo is very environmentally conscious, and many of my courses were in ecologically designed buildings.

The university also has a Homecoming party, where alumni are encouraged to visit and celebrate. This event includes ceremonies, sporting events and lots of partying. I think

for me the most exciting and unique aspect of Waterloo was its extensive underground tunnel system which made it easy to walk to classes.

Canadian winters are brutal, and the ability to walk through campus without stepping outside was welcomed!

Tell us about the ways in which Canadian law students manage their studies, work, and social lives.

Studying law in Canada is quite different to the Australian system as undergraduate law is not offered. Many of the people I met were studying part-time and working full-time to fund their postgraduate studies. As these students were older their social lives were different from their undergraduate experience and how they managed their studies was not comparable to mine.

What is student life like in Canada? Tell us about some of the activities available for students.

Student life at Waterloo is quite similar to my experiences at Macquarie, however there are some significant differences in the recreational and social activities. There are over 300 clubs and societies at Waterloo and I participated in a small variety of social and sporting groups. During my first week, I joined an outdoor group which enabled me to participate in a variety of activities including hiking, rock-climbing, canoeing and camping. I also joined a casual slo-pitch team and scored a home run in our semi-final. Waterloo has a large sporting association and my friends and I watched a few Warriors games.

What advice would you have for a law student interested in participating in an exchange programme?

My advice to anyone interested in exchange would

be to go! Spending seven months abroad has had a profound effect on my personal development, education and life experience. Living in a totally different part of the world has helped me to learn more about myself and what I’m capable of. The people I have met and the experiences we have shared are unparalleled. Fortunately I have stayed in contact with many of the exchange students I have met at Macquarie and was luckily able to visit some of them whilst in Canada. Immersing myself into the Canadian way of life and learning about their history and culture has been exhilarating, and I will leave this experience with a newfound love of ice hockey.

Did you participate in any work experience, volunteering, or internships?

Unfortunately I wasn’t given an opportunity to participate in any work experience or internships, but my friends and I volunteered at a local farm.

The areas surrounding Waterloo are home to a Mennonite community and we helped cultivate and farm their land in exchange for fresh produce.

If you had the chance again, what would you do differently when going on an exchange?

There isn’t very much that I would change during my time in Canada. However, if I had the opportunity I would’ve travelled more throughout the semester. I chose to travel for two months before I started university, so by the time I made it to Waterloo I was a little burnt out. I unfortunately missed the opportunity to visit some beautiful places in Canada which were only a few hours from me. I also think I would’ve chosen a random variety of courses that were completely different from my usual course load.

It was difficult to choose courses which could transfer back and thus I didn’t deviate more.

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A Brief Review

Mindhunter

A Popular Take on Criminal Profiling  Isabella He

M

indhunter is a simultaneously electric and stoic crime thriller that has its audience constantly gripping their seats and refusing to look away. Based on John E Douglas and Mark Olshaker’s non-fiction book Mindhunter: Inside the FBI’s Elite Serial Crime Unit, the series revolves around the development of modern day criminal profiling. FBI Special Agents Holden Ford (as John E Douglas) and Bill Tench developed the profiling procedure by interviewing America’s most notorious serial killers. Among them is the still incarcerated necrophiliac Edmund Kemper, fantastically portrayed by Cameron Brittonn. The pair aim to use the information gathered from their interviews to determine why people kill and to predict future behaviours in order to anticipate and apprehend them. The pair are later joined by Wendy Carr, a psychology professor from Boston University and together they establish the FBI’s Behavioural Science Unit.

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The show captures a fascinating foray into the developments of criminal profiling during the unprecedented increase of serial murders during the 1970s. It is common practice today to consider the external influences, such as family and upbringing, when determining intent.

However, before the 1970s, criminal procedures rarely incorporated such practices and the general conception was that some people were just born evil. The show gives us an insight to the inaugural years of the FBI’s efforts to obtain an understanding into the minds of serial killers.

For law students, specifically those interested in criminology, producer Joe Penhall incredibly captures a factually unnerving account into the minds of serial killers by incorporating first-hand recounts of their crimes. Moreover, the show provides us with a better understanding of how modern criminal profiling was established. The series is available on Netflix and is undoubtedly binge-worthy, with season 2 on its way.

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