The Brief Edition 1 2013

Final

Frontiers Hon. Michael Kirby with Valiant Warzecha, Hon. Greg Smith, Attorney General, Bill Madden with Sevanne McGarrity, Tylie-Anne Guldemond, Mary Ayad, Kat Lam, Nandini Bajaj

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muls Macquarie University Law Society

Editor’s Introduction Dear Reader, Please enjoy The Brief’s first edition for 2013 which will be one of four for the year. This issue began with no theme but has ended up focusing to a large extent on human rights.

Further on you will find provocative and interesting articles which seek to answer questions and explain concepts that we as law students should wonder about.

Contents 5

President’s Introduction

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Stopping the Revolving Prison Door With Greg Smith SC MP, Attorney General and Minister for Justice

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The Final Frontier: The Quest for Formal Recognition and Rights Equality

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Dated Defences: The Renewed Debate on Provocation

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Undocumented Contracts: Why arrangements for working under the table can end up costing more than they’re worth.

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Human Trafficking: Profiting from A Human Rights Travesty

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The work of the law in medicine: But I have promises to keep, And miles to go before I sleep.

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The Growth of the Uninformed

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The Rise and Rise of Intellectual Property Law

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A ‘SLAPP’ in the face for public discourse

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Judicial Banter

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Stuff Law Students Like

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Bright Idea

Former Justice of the High Court, Michael Kirby gives his view on same sex marriage with Valiant Warzecha and Attorney General of New South Wales, the Hon.Greg Smith also raises challenging ideas in his article. This issue is full of quality student contributions from all different sectors of the Law School which have many different focuses and ideas.

The strength of The Brief is essentially in the quality of its student’s contributions it is this publication’s aim is to be the mouthpiece and place of ideas for all law students. For those of you who have not had the time or may have been apprehensive about contributing to The Brief in the form of an article or other piece I encourage you to do so.

It is a rewarding experience and you get the chance to have your name published alongside some of the most prominent legal minds in the country.

Finally, I would like to thank everyone who has contributed to this edition, whether it has been in the form of an article, editing, proof reading, design or advice, this publication is only made possible by your efforts.

Tom Craven | Editor

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[Welcome from MULS]

Welcome

from the President First Years, welcome to law at Macquarie University, and for the rest of you, welcome back! 2013 promises to be an exciting year for us all.

In many ways, this year will see a new and exciting MULS. Not only has the logo changed, but our website has been updated and we have redesigned our entire brand and image. With this ‘make-over’ comes a number of other promising changes that not only represents MULS as the highly capable

and professional student society that we are, but it also provides a number of new opportunities to our members.

The 2013 Executive have worked tirelessly throughout the holiday break to bring you a number of new and traditional ways to get involved. The Law Society is host to various social events, publications and activities throughout the year, including the return of the Commemorative Dinner and Trivia Night, the publication of

The Brief and career and volunteer guides, both internal and external competitions, and providing networking and mentoring opportunities.

This year, MULS will continue to foster a strong sense of community and will once again focus on engaging with students. In 2013 we will continue to act as and enrich ‘the other side of your law degree’ in both academic and social life, as well as providing support for career development.

I look forward to the coming year and all it has to offer. Make sure you get involved and immerse yourself in as many activities as possible. If you have any queries, suggestions or issues to raise, please do not hesitate to email me at president@muls.org or any of the other relevant portfolios.

Good luck and I hope to see you around.

Jessica Tasso | President

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[Feature]

Reform and Rehabilitation With GREG SMITH SC MP, Attorney General and Minister for Justice

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ight -year old Graeme Thorne was kidnapped on July 7, 1960 - the day his father was due to receive a £100,000 from a winning ticket in the lottery to fund the Sydney Opera House. He was subsequently murdered.

After university, my career quickly led me into the criminal law – a field I have enjoyed immensely for over 30 years. I started off as a solicitor, but for most of this time I worked as a Crown Prosecutor, later becoming Deputy Director of Public Prosecutions.

The family’s lottery win had been highly publicised and the case was a tragic reminder of how a windfall can lead to disaster.

I prosecuted murderers, paedophiles, gang rapists, drug traffickers, arsonists, corrupt officials, and many people guilty of less serious crimes.

However, it was also a case which played a role in my interest in the law: as a schoolboy I knew the mother of the Senior Crown Prosecutor who prosecuted the case against Stephen Leslie Bradley for Graeme’s kidnap and murder.

As a result, I think there is little that shocks me. I have seen the worst of human nature – and I mean “seen” quite literally, because explicit photographs were often a feature of the most horrific trials.

Having that tentative personal connection and reading about this high-profile case in the newspapers, as well as watching prominent television shows like Perry Mason, had made me interested in the criminal law from a young age.

By the time I started my law studies at Sydney University, I realised it was a profession which helped people to achieve justice, and this appealed to me.

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I have seen the impact crime has had on victims: children abused by people they trusted; women beaten by their husbands or partners; families – like Graeme Thorne’s - left behind when their loved one was killed in gruesome circumstances.

But I have also heard the shocking stories told by the accused about the life which led them into the dock to face the charges they had faced.

And I have wondered if the tragedies were inevitable, or if something could

– and should - have been done to prevent them.

This was one of my main motivations for embarking on my second career, in politics. To try to make a difference and introduce some changes which I thought were necessary.

As Attorney General and Minister for Justice in the O’Farrell government, I have pushed for a change in thinking.

Even in Opposition we refused to engage in the law and order auction which had become the hallmark of Labor in NSW. I knew lawyers have been criticising Sentencing and Bail laws for years.

Repeated amendments had made the Bail Act overly complicated creating presumptions for and against bail that seemed to lack consistency.

And in sentencing, the rigorous requirements of s21A of the Crimes (Sentencing Procedure) Act 1999 made passing sentence such a complex task, that it inevitably led to a large number of appeals.

So, one of the first things we did was ask the Law Reform commission to review sentencing laws and the Bail Act.

While we are still waiting for the final report on sentencing and are yet to decide on our approach to the issue, we have acted on bail, announcing our model for reforming the Bail Act, which is due to be introduced into parliament this year. We will do away with the presumptions and instead put community safety first.

This brings the bail laws back to their origins – they were designed to ensure community safety, and guarantee that a person who remains at liberty pending trial does not abscond or interfere with witnesses or victims.

Our current bail laws – which were amended 57 times in 16 years by the previous Labor Government – were criticised for being inconsistent, resulting in bail being granted for some dangerous individuals, while it was refused for others who posed little risk to the community.

But they were also criticised for leading to an increase in the remand population – exposing people who have not been convicted of a crime, and in some cases were ultimately never sentenced to imprisonment – to the prison environment.

Prison is not a nice place to be and those incarcerated – even on remand - are often locked up with others who have made crime their career.

This has been a particular concern when it comes to impressionable young people. Detention or prison can function as a university of crime, a place where people who have not been convicted of a crime make friends with more experienced or hardened criminals, and a place where they might learn tricks of the criminal trade.

This is why we want to make sure that we don’t turn a refusal of bail into a penalty before conviction. But those who cannot be trusted to obey the rules on the outside, should be refused bail.

This approach goes hand in hand with our commitment to reduce reoffending.

Too many prison inmates keep coming back into the system, again and again.

If we can stop them from committing further crimes, not only do we turn their lives around, but also reduce the crime rate and ensure the community is better off.

“We have made tough new laws to crack down on organised crime, and introduced modern consorting laws to stop habitual criminals from associating with one another.”

As a society we must try and change the path of those who can rehabilitate.

We are therefore expanding our rehabilitation and education programs in prisons, so that inmates have better job prospects when they leave, so that they can manage their anger, have improved their literacy and numeracy skills, and gained qualifications.

We have set up the Intensive Drug and Alcohol Treatment Program at one of our prisons, which will soon have room for 300 inmates at a time. Already the first inmates have graduated from the program and their success, and their optimism about their future was encouraging.

Drugs are a one major reason people turn to crime, and that’s why it is an important target for us. We will soon be delivering on our election commitment of setting up a second metropolitan drug court. It will provide an opportunity for people to overcome their drug addiction in custody, and as a result have the rest of their sentence suspended.

But there are two sides to our focus on recidivism and rehabilitation.

Serious violent inmates who refuse to rehabilitate may find themselves kept in custody after the expiration of their sentence under plans we unveiled last year.

A similar scheme exists for serious sex offenders. Inmates deemed to meet the criteria have their likelihood of reoffending assessed by independent psychiatrists and psychologists before an application is made to the Supreme Court which decides if they should be placed under extended supervision or be further detained.

them and to act, if we have information that it is likely a person will reoffend.

This two-pronged approach, focusing on rehabilitation but being tough on violent offenders who refuse to rehabilitate, is being smart on crime. Our approach is based on research and evidence of what works, what programs have been successful in other jurisdictions in reducing recidivism.

Along with this approach, we have expanded the use of Intensive Corrections Orders, as a new, more productive and supervised scheme to replace periodic detention. We have made it easier for people to pay off their fines by availing themselves of the scheme of Work and Development orders. It provides another way to keep people out of prison who should not be there.

We are still waiting on another Law Reform Commission report on the treatment of people with mental illness and cognitive impairments in the criminal justice system, and for a review of the laws governing criminal offences and diversionary options for juveniles.

We have also made tough new laws to crack down on organised crime, and introduced modern consorting laws to stop habitual criminals from associating with one another.

I believe appearing in courts for many years has given me the experience to assess what works and what needs review. It is important experience to bring to bear in these difficult portfolios, experience I am hoping to use to make a difference to the lives of some individuals and to the community as a whole.

So, while we would like to see every criminal rehabilitate, we know that is unlikely to happen. And we do have an obligation to the community to protect The Brief | Volume 19, Edition 1

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The Brief | Volume 19, Edition 1 Ewan Scobie, Lawyer

The Final Frontier: The Quest for Formal Recognition and Rights Equality VALIANT WARZECHA explores the issue of same sex marriage with former Justice of the High Court, the HON. MICHAEL KIRBY.

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s a social concept, homosexuality and same sex marriage has gained mainstream acceptance in Australia.

In 2008, federal law (Same-Sex Relationships (Equal Treatment in Commonwealth Laws—Superannuation) Act 2008 and Same-Sex Relationships (Equal Treatment in Commonwealth Laws—General Law Reform) Act 2008) recognised same sex partnerships as the equivalent of heterosexual de-facto relationships in terms of their access to basic legal rights. At the same time, most states have facilitated access to these de facto rights through ‘partnership’ registry legislation. Jonathon Papadopoulo, Assistant Convenor of the Macquarie University Queer Collective, believes that this was a decisive step forward, however, it still falls short of the fairness and equality that the law should provide.

The operative question is, why legislate towards substantive equality, yet, fall short of absolute equality and the desired (and deserved) formal recognition?

The issue of same sex marriage has been on state and federal legislative agendas for several years now; however, the most recent move in this direction has been inhibited by the current legislative fragility and binding caucus policy. In moving towards legislation permiting same sex marriage, the concept of marriage must be examined as a vehicle for this change and/or alternatively a barrier for equality.

family alliances; prevention of incest; and as a manifestation and confirmation of faith. Whilst some of these reasons still apply, in modern times its role as a social concept is predominantly to facilitate sexual exclusivity and symbolise romantic and spiritual affiliation. Fairytale weddings aside, the intentions behind the act of marriage have substantially changed overtime – seemingly from social necessity to social embellishment.

What is marriage and what purpose does it serve?

The modern legal concept of marriage in Australia evolved from the Christian traditions inherited from Britain upon colonisation in 1788.

Marriage under Australian law is defined as “the union of a man and a woman to the exclusion of all others, voluntarily entered into for life” under s 5 (1) of the Marriage Act 1961. Alternatively, the religious conception of marriage is one of sacrament (a sacred rite of passage).

Historically speaking, the notion of marriage has served a plethora of social causes including securing the paternity of children; the formation of strategic

Our form of marriage in its earliest stages was a hybridisation of Celtic tribal and Ancient Roman customs.

Roman marriages were between men and women – simultaneously, same sex relationships were allowable and common, however, were rarely the basis of marriage (same sex partnerships are not a modern occurrence). It was recorded that

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[Cover Story]

several significant ancient Roman figures including the Emperor Nero married men (in 54AD – see the writings of Virgil and Martial).

In the middles ages, marriage swung on the ecclesiastic pendulum, drifting between religious control and secularity.

With the rise of Christianity, marriage evolved into a religiously ordained ritual, however, the ‘Glorious Revolution’ of 1688 enacted secularity in matters of English government and civil order that encompassed marriage.

As a contemporary common thread, marriage was always between a male and a female, continuing the religious past of the concept, and it was not until the last 29 years that the notion of same sex marriage was even considered as a valid legislative enactment in Australia.

Homosexuality was outlawed as an unnatural act in the eyes of the church (in line with its perceived counterproductivity to procreation), indicating the strong affiliation of morality, religion, and the law.

In 1984, homosexual discrimination was federally outlawed (Sex Discrimination Act 1984 (Cth)) and intimate acts were decriminalised in NSW. As a result, the current Australian definition of marriage appears to be consistent with the evolution of the institution up until the point that homosexuality was ‘legalised’.

One would think that the inability to marry in the face of a legitimate and permanent relationship would amount to discrimination, by insinuating that such relationships are second-class, and ultimately undermining the credibility of Australian anti-discrimination legislation.

The current definition of a union is regulated by the Australian federal government and predominantly used as a ’civil status’ to define and convey rights to partners. The Hon. Michael Kirby believes that “the Constitution doesn’t permit giving marriage sacramental content.” There is a clear divergence in marriage as a social and legal concept.

Is there scope for same sex marriage? What barriers exist?

Prior to 2004, legislative silence on what constituted ‘marriage’ under the Marriage Act, allowed scope for legitimate same sex marriage – a legal loophole that was quickly plugged.

If legislated, same sex marriage

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would be a manifestation of social acceptance and equality within society.

According to Papadopoulo, a major barrier to acceptance of same sex marriage is misinformation and misconceptions about the nature of homosexuality.

social history of marriage from the current legal concept we apply today.

This relegates same sex relationships to rights-based subordination, when politicians, such as Penny Wong, “want[s]… an Australia which is inclusive and respectful.”

In 1984, the Australian Medical Association removed homosexuality from its Registry of disorders and diseases, while modern scientific evidence indicates natural genetic variations, hormones and environmental factors can cause same sex attraction.

Same sex attraction has occurred for millennia and most certainly for even longer than that.

A Radical Suggestion?

Furthermore, we see some of the most creative and significant contributors in society who are same sex attracted, including The Hon. Michael Kirby, Senator Penny Wong, Bob Brown, and Peter Allen (amongst other domestic and global personalities). It should not be a source of marginalisation and subjugation, but nonetheless radicals still eagerly quote convenient passages from Leviticus and Genesis, whilst ignoring other choice passages about women amongst other heinous things.

If there are misconceptions surrounding same sex relationships, then social acceptance will not occur and the law, as a manifestation of social views (if you follow representative democratic theory – thank you Professor Meyerson), will not facilitate the change.

The Hon. Michael Kirby proposed that the biggest barrier to legislate in favour of same sex marriage, is the “force of organised religion in both of the major political parties . . . who claim the right in matters of ‘social policy’ to give effect to private consciences – as formed by the instruction of their church”. To clarify, Michael Kirby was raised as an Anglican Christian and adheres to his beliefs (“without dogmatism and without strong engagement”), however, he strongly believes that it is wrong for personal views to impact legislation at the detriment of the constituency’s perspective, “counter to the secularity that . . . [was] enshrined in the Australian Constitution.”

“As I see it, the reason why MPs and Senators find it difficult to vote in favour of same sex marriage is because it is extremely hard to divorce (pardon the pun) the religious connotations and

With this in mind, is there a solution that can provide a conciliatory option to the opposing views on the issue, or rather a way to clarify the issue for resolution?

I argue that if you deconstruct marriage into its social role and legal meaning/ symbolism, it is possible to allow same sex partnerships to be recognised by Australian law, and prior to 2004 this distinction was clear.

The heart of the issue is the semantics of the legal concept – by calling our form of union ‘marriage,’ it carries with it a millennia of historical evolution and the ecclesiastic monopoly on the concept.

The Hon. Michael Kirby explains this with reference to the Napoleonic Civil Code (NCC) that differentiated a marriage (as a civil event held in a public place) and a wedding (as a private ceremony held in a place of worship). He continues to observe that English law and ‘derivative societies’ do not make this distinction, and will most likely not, – resulting in the quandary that Australia finds itself in.

The obvious solution, is to clearly redefine ‘marriage’ in the Marriage Act as a ‘union that recognises and confers rights to members of the partnership,’ referring to both heterosexual and same-sex partnerships in unambiguous terms. The Hon. Michael Kirby maintains that this change must occur as ‘marriage’ “is a legal word with legal content that is inherently secular and must not distinguish between citizens of appropriate age who seek its privileges and submits to its obligations.” ‘Marriage’ as a sacrament would still exist in its religious form, through ‘weddings’ as optional and ceremonial expression of faith, and whether religious organisations decide to support the ‘marriage’ is a matter for the respective faith. This still presents an issue for religious people who wish to reconcile their sexual orientation with their faith, but this is outside the law’s jurisdiction.

A more comprehensive set of reforms would also remove the aforementioned

conceptual distortion by substituting the term ‘civil union’ for ‘marriage’ in the Australian Constitution. This would be a more utilitarian solution whereby our permutation of ‘marriage’ is not desecrated in the eyes of religion, whilst same sex partnerships are given the social recognition and equality that is desired. At this stage, reforms would be challenging considering only 8 out of 44 past referenda have been successful, and it entails substantial costs to taxpayers. However, if this were what was needed for equality, then the cost-benefit analysis with reference to human rights could easily justify the cost.

“Michael Kirby advocates the symbiosis of the law and social attitudes, and he believes that ‘so long as legal inequality exists, it [will] tend to reinforce a feeling . . . that members of a sexual minority are somehow second class citizens, disentitled to legal rights and worthy of stigma and discrimination.’ ”

Why must we change?

Compelling arguments exist for the aforementioned changes, and the most obvious one is the ‘latecomer’ argument where legislation for same sex marriage has been passed in Spain, Portugal, Argentina, Netherlands, Canada, South Africa, Denmark, Iceland, Sweden, Belgium, Mexico, the UK, France Uruguay and some US states. What was once a progressive nation in terms of recognising and supporting human rights movements, this is not consistent with our past and International Treaty obligations, which is perhaps a reflection of political cowardice.

Another significant argument is for the coherence and integrity of antidiscrimination legislation, which Papadopoulo equates the restriction of same sex marriage/union to women once being viewed as a man’s chattels or racial segregation, both of which are unacceptable views in modern society. By preventing the union of same sex partnerships, the credibility of our anti-discrimination law is severely undermined. It makes a person consider that if a sexual minority can be subjugated in this way, what ensures that the law will not be augmented against other minorities.

This argument is given particular credence by the recent revelation that the so-called ‘Human Rights and AntiDiscrimination’ Bill before parliament, which will renew religious organisations’ ability to discriminate in employment on any basis, which may be repugnant to the organisation’s faith. David Marr (SMH article 14/1/13) aptly highlighted that Penny Wong, as a same sex attracted person and the Prime Minister,

as a partner in an unmarried couple, would be discriminated against under such legislation, positions which may even be run with public money. How far will the pendulum swing?

Michael Kirby advocates the symbiosis of the law and social attitudes, and he believes that “so long as legal inequality exists, it [will] tend to reinforce a feeling . . . that members of a sexual minority are somehow second class citizens, disentitled to legal rights and worthy of stigma and discrimination.” There has clearly been a shift in attitudes towards and acceptance of homosexuality as a result of the reforms of 1984. The sooner legislation for same sex unions are enacted, then the less controversial homosexuality and same sex unions will become. This is especially important for the mental health of children of same-sex couples, for which Penny Wong fears that one day someone will tell her daughter that “her family is not normal” and regrets that currently “elected representatives denigrate the worth of her family.” The welfare of these children is jeopardised by lack of progress and trivialisation of the issue.

This exact argument has long been used as a justification against same sex union, however, this confuses same sex marriage for the quality of parenting. Assertions that missing gender roles in same sex partnerships diminish the quality of life of children ignore the current trends in parenting, whereas traditional gender roles are being redefined especially in heterosexual partnerships where the same argument can be made (i.e., the

stay-at-home father). Moreover, the ‘non-discriminatory’ nation we live in should allow both genders to access any aspect of society that was once confined to a single gender. Legislating for same sex unions also opens the possibility for a reduction in the preferential treatment given to de-facto and married heterosexual couples in adoption, which breaks down another instance of discrimination.

Holistically, same sex marriage is on the tipping point of gaining legal recognition, and in an ideal world the 2013 election will be a plebiscite on the issue, and an affirmative resolution would be swiftly reached by a solid majority government in which the respective party caucuses would allow a conscience vote. This is highly unlikely as a result of the weak leadership and abhorrence of both political parties, but would be a welcomed and overdue series of events for the near future.

Acknowledgements I would like to thank The Hon. Michael Kirby AC CMG and Jonathon Papadopoulo, Assistant Convenor of the Macquarie University Queer Collective, for their invaluable perspectives and counsel in writing this article.

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Dated Defences:

The Renewed Debate on Provocation EMMA GRIMLEY takes an in-depth look at the dated defence of provocation

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t is a chilling story that splashed across the pages of every major newspaper of Australia in July last year. Manpreet Kaur, 29, bled to death as a result of eight box cutter wounds on her throat, inflicted by husband Chamanjot Singh in their western Sydney home in 2009.

The ensuing trial saw Singh successfully utilise the partial defence of provocation, reducing his offence from murder to manslaughter, on the reasoning that he had lost self control after suspicion of an affair, Kaur’s incessant taunts and alleged threat that she would ensure his deportation.

Singh was not the first to reach such an outcome utilising this partial defence: one recalls the deaths of Vicki Cleary and Julie Ramage at the hands of their estranged partners. It was also accepted in a 2008 case where a young male stabbed Gerard Flemming, enraged by a non-violent sexual advance at a gay hangout on Sydney’s Northern Beaches.

You could be forgiven for thinking instances like these were a happening of centuries past, where it was comprehensible for men to defend their ‘honour’ in violent ways, and physical displays of hatred against homosexuals were acceptable civil conduct. Yet, with the continued existence of the partial defence of provocation in New South Wales, Manpreet Kaur may not be the

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last victim of a cruel partner, and a dated defence.

THE STATISTICS Last year, A New South Wales Parliament briefing paper cited statistics gathered by the state’s Judicial Commission, documenting the use of the partial defence between the years of 1990 to 2004. The probability of success is evident: 75 out of the 115 cases that raised it were triumphant.

Other findings are of equal interest: “There were 11 male offenders that successfully relied on provocation in the context of infidelity or the breakdown of an intimate relationship; There were 3 male offenders that successfully relied on provocation in the context of an alleged violent confrontation with his female partner; There were 11 offenders who successfully relied on provocation in the context of an alleged homosexual advance; and There were 10 cases where a woman successfully relied on provocation after killing her violent male partner”

Kate Fitz-Gibbon Data gathered by Kate Fitz-Gibbon accounts for the use of provocation for the years of 2005 to 2012 in the Supreme Court of New South Wales. Fifteen cases were successful in this time, including five with a nonviolent confrontation, three with victims that were a current or estranged female partner and two involving allegations of infidelity. These factors amounted to approximately 67% of the successful cases.

Some may have little concern regarding the defence, having viewed these statistics. After all, these controversial applications of the defence amount to 35, not even half of the successful cases recorded in the Judicial Commission figures. Although, I like many others are now bound to question: are 11 instances of provocation on the basis of infidelity too many? Should courts continually accept homosexual advance as a legitimate contribution to provocation, while its true victims are forever silenced? The reignited debate has done much to deliberate on such questions.

THE DEBATE: RETAIN, ABOLISH, REFORM In a way we can be thankful that New South Wales has moved beyond its 1997 Law Reform Commission recommendation to retain the defence, now having established a Select

[Student Contribution]

Committee on the Partial Defence of Provocation which will imminently release a report of findings, around the time of this article’s publication.

Although in comparison to other jurisdictions we are already behind.

Victoria, Tasmania and Western Australia have abolished the defence, and Queensland, ACT and Northern Territory have inducted reforms to restrict its use.

The Legal Aid Commission of New South Wales, in its submission to the Select Committee put forward arguments for retention that perhaps explain the state’s previous unwillingness to respond to this issue, and may indeed account for reasons cited if the Committee choses to uphold previous recommendations.

The main reasons given were that the defence does not provide a justification for murder, but flexibly permits reduction of culpability, which is determined, as per community expectations by a jury. Further, they claim it is available equally to men and women, including victims of domestic violence. Reasons given by other sources such as the aforementioned briefing paper and the Victorian Law Reform Commission’s Defences to Homicide (2004) are that abolishing partial defences may increase murder convictions as opposed to accepted pleas of manslaughter and may ultimately induce community dissatisfaction with sentencing.

However, it is the plethora of reasons for abolishment that for me make for the most compelling and ultimately convincing reading. Prior to succeeding in abolishing the defence in Victoria, The Victorian Law Reform Commission reasoned that it permits the assumption that some people are not expected to manage murderous urges or intent to injure. They also suggested that gender bias is present in the interpretation and application of defences, of which can be seen in dominant male presence of the Judicial Commission statistics.

Most significantly, they concluded that where the accused has intention to murder, they should be labelled as such. Further, there should not be distinction from other intentional killers when the defendant does not possess mental impairment. Graeme Coss’ arguments are also enthralling. He questions the element of ‘ordinariness’

as essential to the defence, pondering why, given the amount of relationship breakdowns that occur annually, why those that invoke lethal violence are validated as an ordinary response.

Though these arguments have succeeded in other states in the past, and may indeed be accepted here, we are reminded through Queensland’s abandonment of the gay panic issue that recommendations are distinctly different from actual reform. This brings us to explore the various models for reform here.

In 2009 The United Kingdom replaced provocation with a new partial defence “loss of control” - which only applies when the loss of control had a qualifying trigger, which is where the defendant’s actions were attributable to an act or statement which constituted “extremely grave character” or fear of serious violence, causing the person to have a justifiable sense of being wronged. Importantly, it has been stated that facts concerning sexual infidelity are to be excluded, a prominent issue raised in Australian cases. Further, it seems this protects victims of domestic abuse, another key feature of our provocation cases.

The New South Wales Legal Aid Commission has suggested an amendment of the current legislation, s 23 of the Crimes Act 1900 (NSW).

Specifically, they propose that the ordinary person test, s 23(2)(b), in its second element needs to allow subjective characteristics such as mental health issues and cycles of abuse which are crucial to assessing the victim’s capacity to exercise self control. The purpose of doing this is to protect victims of domestic violence, making their application for provocation simpler. However, it seems the major drawback to this reform is that jealous males may continue to exploit the defence, regardless of this elaboration.

The Victorian Law Reform Commission, and ultimately Victorian Parliament, accepted reform that would allow provocation to be dealt with at sentencing for murder, where the intent of killing is still recognized, although provocation can amount to a mitigating factor of sentencing, thereby affecting the length of sentence, but not reducing it to the extent that currently occurs from substituting guilt for murder with that of manslaughter.

The Select Committee is considering amongst a few models of reform an exclusionary model, which would entail reversing the onus of proof and implementing a “social evidence framework”, which is hoped would capture the cases of battered women and exclude the excuses put forward by jealous male partners, by properly documenting, understanding and responding to the experiences of abused women. Other models suggested include ‘conduct based’ reform, ‘test based reform’ and a potential combination of these. The former entails restricting the defence of provocation to matters where the conduct seeking to be relied upon is violent criminal conduct, and that this need not occur immediately prior to the death of the deceased. However, the act resulting in death may be triggered by other types of conduct such as insults or verbal abuse. This model has also been varied in the way to further restrict conduct to domestic or family violence. The test based reform option, otherwise known as the ‘Wood model’ would remove the ordinary person test, requiring juries to consider all characteristics of the accused and the circumstances surrounding provocation to determine the culpability of the accused.

Upon thorough examination of scholarly, journalistic and legal argument, it can be seen that the reignited debate concerning the partial defence of provocation is dominated with recommendations for change to this area of law, in the least with amendment if not complete abolishment of the defence. Although we can appreciate the merits of amendment models, reflecting a societal context far more progressive then that of the defence itself, I have come to the conclusion that only complete abolishment can successfully achieve the rationale put forward learned professionals and lay people alike.

Men should no longer be able to defend their honour by way of lethal conduct against non-violent homosexual advances, taunting or supposed infidelity. I eagerly await The Select Committee findings in the hope that New South Wales may finally respond to the weighted majority of opinion that craves justice for people such as Manpreet Kaur.

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A

spiring international students arriving yearly on Australian shores face a form of hidden exploitation that should be viewed from a human rights perspective.

International students on a student or research visa are legally entitled to work a limited quota of hours, as long as their pay does not exceed a certain percentage if they are also on a scholarship.

In pursuit of legal and gainful employment, they may come into contact with unscrupulous employers who, in order to keep their own expenses low, (a) engage in illegal tax evasion (through undeclared profits); (b) pay below minimum wage pay; (c) avoid insurance requirements; and (d) avoid unemployment or other benefits and will hire international students “under the table”.

Undocumented Contracts:

Why arrangements for working under the table can end up costing more than they’re worth.

Macquarie Law Lecturer, MARY B. AYAD examines the dark side of employment practices.

Many of those who are vulnerable to this type of arrangement are those whose host country employers engage in this conduct to such a wide extent that it has become a customary practice.

Even though it is still in breach of domestic legislation and regulations (particularly in South East Asia, Asia, Latin America, and some Middle Eastern countries) due to exceptionally widespread practices of hiring under the table, wide-scale corruption, extreme gaps between rich and poor, and the absence of proper regulations, inter alia.

Anecdotal evidence shared with me in my capacity as a human rights lecturer (as well as through my experience in human rights and international management in the MENA), together with empirical studies published elsewhere, highlight a convergence of the data substantiating the prevalence of these practices. This is not without public policy implications for the governments in those countries where tax evasion is rampant and an underground economy exists.

Although the onus of responsibility in avoiding this situation legally lies upon the employer, who having established a business in Australia ought

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[The Essay]

to be familiar with the law and in full compliance of it, and should not offer such a situation and the student employee should request a written contract with explicitly drawn terms.

This combination of naiveté with customary practice, plus a mindset of avoiding taxes or getting extra hours (by circumventing the visa requirements illegally) serves to facilitate an unscrupulous employer’s avoidance of paying the student wages or fulfilling other legal obligations. This is because an illegal contract is void and there is no official written record and therefore the opportunistic employer assumes wrongfully that they can act unconscionably and with impunity.

The student employee would fear that they have no evidence that would work for them and thus no scope to make a formal complaint to an appropriate tribunal or authority.

Although a student under an illegal working arrangement may only be concerned about loss of wages, the fact remains that they are losing much more. Under the National Employment Standards (“NES”), pursuant to the Fair Work Act 2009 (Cth) (“FWA”), all ten of the below provisions must be applied to employees: maximum weekly hours of work – 38 hours per week, plus reasonable additional hours or work, requests for flexible working arrangements, parental leave and related entitlements, annual leave, personal/carer’s leave and compassionate leave, community service leave, long service leave, public holidays, notice of termination and redundancy pay, and provision of a Fair Work Information Statement. A student under an illegal arrangement would not have access to many, if any, of the aforesaid benefits. A student working under the table would also not have recourse to protection against unfair dismissal under the FWA Fair Dismissal provision.

A hypothetical case (compiled of a combination of typical scenarios) can illustrate the legal elements.

Person A and person B create an ‘illegal’ contract (or undocumented contract) together, where A is the student employee/plaintiff and B is the employer/defendant. The terms of the ‘illegal’ contract are that A will work for X hours and Y pay. Both agree and understand that the work is under the

table. A intends to wrongfully gain by (i) tax evasion, and (ii) breach of the visa working hours quota and income limits. B intends to wrongfully gain by (i) avoiding insurance, benefits, and other employee rights, such as breaks or overtime pay, inter alia. A decides to terminate employment without notice or with insufficient notice, and B suffers loss of sales on that day and every day until A is replaced. B decides to withhold A’s wages against the days which represented a loss of earnings for B, and this amount ends up being 45 percent of a two week pay period.

A wants the contract to be enforced, and B threatens A that there is little evidence that A even worked X amount of hours. What recourse does A have under the law?

Firstly, an undocumented contract per se is not illegal. What makes the above example illegal are the intentions. No court will enforce an illegal contract.

However, under the principle of quantum meruit (Latin for ‘what one has earned’), certain terms of a contract that are null and void can be enforced.

The distinction is that where a contract is void, some terms can be enforced, but an illegal contract that provides for a criminal act is not enforceable.

Technically, tax evasion would fall under this.

In this particular case, the fact that A intended to and in effect was in a situation where they were avoiding tax automatically nullifies the contract on the basis of criminality; a fortiori that B was equally non-compliant in reporting A’s income for tax purposes, which may have implications for the net gain/profit of B’s business depending on the nature of the work. The other wrongful gains render this contract unenforceable.

Technically, under the law A has no legal standing to bring suit against B for enforcement of the contract. The prima facie illegality of the contract means that it is also automatically contrary to public policy and is still null and void. This contract contains another element, which is that it was created for the purposes of evading liability to the Public Treasury.

In Alexander v Rayson [1936] 1 KB 169, the plaintiff entered into two agreements with the defendant, where the purpose was to deceive local council with respect to the true value of the leased property in question. The court rightly

held that the contract could not be enforced by any party because it was used for unlawful purposes. Because the element of tax evasion is present in this case, this contract would potentially be illegal. It is illegal by statute; it breaches statutory regulations set out by the Commercial Act 2010 and FWA with respect to obligations of the employer to the employee. Illegality by statute means that statutes serve to establish public policy and contracts, which breach the policy and cannot be enforced in courts.

It is also very difficult to argue breach of contract where there is no valid written contract. Even in cases where there have been valid written contracts, the terms can be contested and this almost always leads to lengthy disputes.

Inapplicability of compensation can also arise in cases of deceit, negligent misrepresentation and negligent acts that lead to economic loss under the Competition and Consumer Act 2010. Under the Act, in deceit and negligent misrepresentation, the plaintiff will most likely have entered into a ‘contract’/understanding (that implies consideration) with the defendant, as a result of the latter’s misrepresentations.

Ironically, the defendant is not liable in contract because the false representation (that the employee does not have to pay taxes) has not become a term of the contract. Although as previously argued, the student may be vulnerable and ignorant of the law, as well as manipulated by a untruthful employer, technically, the equitable common law doctrine of undue influence would not be seen by the court as a means whereby a person can be protected from their own folly with respect to illegality. Without a legal contract this fact, a fortiori, leaves the student without recourse. In both the case of the student and the employee, ignorantia iuris non excusat applies; ignorance of the law is no excuse.

Combining illegality with an unwritten contract complicates matters.

International Human Rights law is consistent with the Common Law with respect to these matters. The nexus where domestic Australian law meets international Human Rights Law in these instances is ‘illegal’ employment (intention to commit a criminal act through the employment contract) in its many facets.

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“The onus of responsibility in avoiding this situation legally lies upon the employer, who having established a business in Australia ought to be familiar with the law and in full compliance of it, and should not offer such a situation and the student employee should request a written contract with drawn terms.”

The international human rights provisions are straightforward and selfexplanatory. An employee must be paid their wages whether the contract is verbal or written, whilst a state has the right to collect taxes from the earnings of a business under its jurisdiction, from both the employee’s actual earnings and the employer’s overall profit. There is no scope whatsoever for illegal employment under international law when the employment breaches an employee’s right to receive wages for work rendered with the obligation to pay a percentage of it in tax to the state where they reside.

It is advisable, given that higher education is a predominant industry in Australia attracting thousands of international students, that university orientation programs warn new students about entering into these arrangements.

Notwithstanding the difficulty in enforcing these contracts before a court, students may still have recourse in certain situations. Although an employer may have engaged a student in an “underhanded” manner, meaning a contract that is under the table and thus is not providing that employee with minimum entitlements, as required under NES, and pursuant to FWA, this will not necessarily mean that the employee will not be able to seek redress in the courts. In fact, such circumstances are likely to result in the employee receiving their full entitlements and the employer receiving a monetary penalty. Such a matter, if contested, would be litigated in the

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Federal Magistrates Court or Federal Court of Australia. The jurisdictions of these courts have the power to enforce a contract even if it is only implied as opposed to being in writing. Therefore, it is not necessary for the contract to be in writing in order to seek legal redress.

This will be in addition to granting the employee their entitlements under NES. This would be the case even if the contract was unlawfully entered into to the detriment of the employee at the initiative of the employer.

In consideration of the clarity of the law with respect to these matters, and not withstanding that in some instances the Fair Work Ombudsman, Federal Magistrates Court, or Federal Court of Australia may in some cases award the employee their full entitlements.

In a case where the contract is, on the face of it, illegal and the employee knowingly hopes to benefit even minutely through tax evasion, or other criminal acts with or without full knowledge of the law, recourse is difficult and it is best to have a contract in writing and where applicable to make sure the employer is taking out a percentage for taxes. If it were the case where there was a either a written or an unwritten contract, and taxes were being taken out from each cheque, even if the student were due a refund, redress for the student would definitely be possible. In the hypothetical case above, the student would have recourse for the withheld pay under these provisions, if the contract is not illegal, because the Fair Work Ombudsman is well equipped

to deal with such a situation, resulting in little expense being incurred by the employee.

Nevertheless, a contract, which was illegal such as an arrangement to commit an illegal act usually involving criminality, would be null and void and it would be difficult to invoke quantum meruit in such an instance. Australian case law has given two landmark decisions with respect to these matters. Hollis v Vabu Pty Ltd [2001] HCA 44, although a case dealing with negligence, reinforces the multi-factor or indica approach to determining a valid employment contract. Amongst the key criteria are that an employee has taxation deducted from his or her pay.

Stevens v Brodribb Sawmilling Co. Pty Ltd (1986) 160 CLR 16 is another case in point. His Honour Sir Anthony Mason highlighted indica for consideration amongst which, the manner of remuneration by which an employee is usually paid (a salary or wage from which income tax is deducted) compared with an independent contractor who will usually be paid for units of completed work rather than simply for hours, and will be paid a pretax amount. In both cases, income tax is a necessary element.

Students who have faced these problems should file a complaint with either the Australian Human Rights Commission, the Fair Work Ombudsman, or the Department of Fair Trading. Unfortunately, there is still a wide gap between law and practice. A regulatory commission ought to be created to investigate these complaints and the Ombudsman should monitor suspected business in order to close this gap. Realistically, given the hundreds of possibly businesses where this scenario could occur, the appropriate regulatory agencies can only investigate cases where actual complaints have been made.

Mary B. Ayad is a law lecturer at Macquarie University and convenor of LAW 869: Law, Globalisation and Cultural Transformation, a human rights course for postgraduate students. She holds an MA in International Human Rights Law and an MA in International Management. She is completing a doctoral degree in International Commercial Arbitration Law.

[Student Contribution]

Human Trafficking: Profiting from a Human Rights Travesty Deputy Editor, TYLIE-ANNE GULDEMOND explores a great moral ill of our time.

H

uman trafficking is modern day slavery. Every year, millions of unsuspecting individuals are ripped from their lives and forced into servitude. The United States Federal Bureau of Investigation (FBI) has declared human trafficking to be the largest and fastest growing criminal activity in the world. In fact, it is currently estimated that there are more slaves in the world today than at any other time in history, and the disturbing fact is that as long as there is a demand for the services it will not come to an end.

Unfortunately, stories of loved ones chasing down traffickers around the world, attempting to reclaim their beloved children or significant other, are all too common. Many families take action into their own hands, as there is only so much law enforcement and officials can do to track down individuals who have been placed in the trafficking web.

Unfortunately, however, these efforts are often futile. Traffickers work in intricate webs and move victims around rapidly and regularly to make detection and discovery very difficult.

Moreover, the human trafficking issue is not limited to people of one particular, gender, racial background, or age range.

Victims are taken from all over the World, in both upper and lower levels of society, although it appears that women are more susceptible to kidnapping in Europe, with

reports of approximately 500,000 women being taken annually.

There are several forms of human trafficking. These include child labour, sexual exploitation, slavery, servitude, and removal of organs. Article 3, paragraph (a) of the United Nations Office on Drugs and Crime (UNODC) ‘Protocol to Prevent, Suppress and Punish Trafficking in Persons,’ describes human trafficking as: recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation.

In 2010, the U.S. Department of

State issued a Trafficking in Persons Report, which estimated that there were approximately 12.3 million victims worldwide. However, it has proven very difficult to ascertain the exact number of victims of human trafficking around the world, due to the high number of cases that go unreported because of fear of retaliation, and also because the numbers fluctuate on a daily basis. In all events, what is clear is that this is a problem that impacts many millions of people. The numbers are staggering and provide a real insight into the scope and extent of this criminal activity, as well as the difficulty in monitoring and controlling it. The FBI estimates that the industry is making revenue in the billions of dollars every year, and the Australian Federal Police (AFP) report that Australian traffickers are making a profit of one million dollars every week in sexual exploitation. Troublingly, human trafficking crimes are systematically under-enforced.

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“It is currently estimated that there are more slaves in the world today than at any other time in history, and the disturbing fact is that as long as there is a demand for the services it will not come to an end.”

and prosecute trafficking at a local level.

The FBI, a United States agency, was established in 1908 and has an annual budget of $8.1 billion and 56 field offices in the U.S. and 60 international offices, acts as a leading voice and force in this area. The Bureau has a specialty trafficking unit, which, in 2012, opened 306 adult and 363 child investigations.

Policing human trafficking is high on their agenda, as they have recently declared it the largest and fastest growing criminal activity in the World.

successful trafficking prosecutions.

In terms of international efforts, the United Nations General Assembly has implemented the Protocol to Prevent, Suppress and Punish Trafficking In Persons, Especially Women and Children, which has been signed and ratified by approximately 150 nation states. The United Nations works towards increasing awareness and placing accountability on the various governments to take action. In this regard, in 2010, the Office of the High Commissioner issued Recommended Principles and Guidelines on Human Rights and Human Trafficking (2010), which provides 17 principles that nation states can follow to assist in education, detection, investigation, prosecution, and rehabilitation. Currently, Australia is a leading nation, having adapted all 17 guidelines into their domestic initiatives in countering trafficking.

Human trafficking occurs by way of force, coercion and fraud.

When victims are taken by force, it is usually by way of abduction. They are transported and held captive by guards.

Young, innocent children, who are vulnerable and lack the immediate care of their parents or guardians, are usually abducted whilst playing in the park or walking home from school. Young women, like children, are also abducted in a variety of ways, for example, while travelling to foreign countries alone or abducted from bars and clubs while intoxicated.

Coercion occurs where victims are abducted or sold by loved ones into forced labor or sexual servitude. They are held captive by traffickers and threatened with physical violence or murder against the victim or their families if they do not comply with demands.

Human trafficking by fraud often targets young, uneducated, poor individuals who are promised a fresh start in a new country, but are deceived by traffickers.

Traffickers promise victims new lives, good jobs and even the prospect of getting an education. Traffickers typically request money upfront or ask victims to work on a part-time basis upon arrival to pay for relocation expenses, and in both situations they end up being held captive and forced to work off the debt owned by performing specific duties. Upon arrival in a new country, victims are thrown into forced labour or sexual servitude to work off their debt. (This is commonly referred to as “debt bondage.”) Moreover, the victims are usually brought into the country with fraudulent immigration documentation or through holiday visas, and this documentation may later be used against them as a method of control by threatening deportation.

Victims are forced to pay off debt

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bondage in a variety of ways, including working long hours under terrible conditions at sweatshops, restaurants, service industries, or conducting sexual favours through prostitution. Methods of control are implemented through physical and mental abuse, sleep and food deprivation, and dependency on drugs. There have been a number of investigations where young girls have been found to be forced to conduct up to 750 sexual acts in order to pay off their debt bondage. Once the victims are eventually sold off or break free, they are left physically and mentally destroyed.

Consequently, the victims suffer depression, anxiety, and trust issues.

Governments around the world have enacted domestic laws at home, as well as attempted to work together with the United Nations to bring attention to this human rights issue, with the aim of putting an end to this criminal activity.

Australia is attempting to control human trafficking by inserting trafficking specific Divisions into the Criminal Code Act 1995.

Under Division 270 it is an offence to be in the possession of a slave or to exercise power over a slave, and also an offence for a person to force another into sexual servitude or conduct a business related to those services. Furthermore, under Division 271 it is an offence to conduct human trafficking both domestically and internationally, as well as offences concerning debt bondage, forced labor, and the trading of human organs.

By comparison, the United States of America has passed Federal legislation, including The Protect Act (2003), The Trafficking Victims Protection Act (2000), and The Mann Act (1910). These Acts address the detection, prevention and prosecution of human trafficking. At the State level, there are 27 U.S. States that have implemented legislation. In America, the States need to collaborate with the Federal Government to monitor

Human trafficking is a crime with intricate networks that extend through every corner of the globe. It is a problem that will continue to affect millions, where there is demand, and where governments do not take an active role in detection, prosecution and rehabilitation. There is a flaw in an immigration law system where victims of these crimes are automatically deported when detected of working without legal papers, instead of being offered necessary support and rehabilitation. In this regard, the Australian Government and AFP are working on training law enforcement personnel to deal with the victims, as they are on the front line and can help make a real difference. Other governments throughout America and Europe are launching similar initiatives.

The modern day slavery that is human trafficking is an important problem to understand and address in a multipronged fashion, including bringing about a greater awareness of the issue, as well as ensuring that governments are focused on legal and policy solutions to address it.

The work of the law in medicine: But I have promises to keep, And miles to go before I sleep.

Leading Medical Lawyer, BILL MADDEN of Slater and Gordon along with student SEVANNE MCGARRITY explore some of the tensions between law and medicine.

T

he close interplay between the law and ethical standards is arguably at its most transparent in the area of health law.

Consider for example a matter decided on Christmas eve, TS & DS v Sydney Children’s Hospital Network (“Mohammed’s case”) [2012] NSWSC 1609. Justice Garling of the NSW Supreme Court was required to determine an application by the parents of a 9 month old boy Mohammed, seeking orders that doctors at the Children’s Hospital Westmead provide mechanical ventilation to their son. He had suffered from birth a range of serious medical conditions including blindness, deafness and metabolic disorders.

Mohammed’s prognosis was grim, with no known cure for his condition and life expectancy measured in weeks or months. The treating doctors recommended only palliative care.

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[Feature]

“The Court's jurisdiction is a broad one, deriving from the prerogative of the Crown to take care of a person who by virtue of a disability is unable to take care for themselves” It was not suggested by the hospital that there was any financial reason, or any reason relating to a shortage of resources, beds or facilities which would preclude Mohammed being provided with mechanical ventilation if that was in his best interests. It was that ‘best interests’ question on which there was disagreement between the parents and the hospital, which fell to be determined by the Court in the exercise of the Court’s parens patriae jurisdiction. This is an ancient prerogative jurisdiction with its origins found in the thirteenth century: Re F (Mental Patient: Sterilization) [1990] 2 AC 1 at 26, 57; Northridge v Central Sydney Area Health Service [2000] NSWSC 1241; (2000) 50 NSWLR 549 at [16]. The Court’s jurisdiction is a broad one, deriving from the prerogative of the Crown to take care of a person who by virtue of a disability is unable to take care for themselves.

The court held that it was not in the best interests of Mohammed for him to be mechanically ventilated. The procedure would cause Mohammed pain and discomfort; at best he would receive a temporary benefit.

In the exercise of the Court’s parens patriae jurisdiction, it will be a rare occasion when a court by a mandatory order interferes in a doctor/patient relationship in a way which compels the doctors to do something which they regard as contrary to their patient’s best interests (at [92]).

Treatment which may be central to the continuance of life is not the only area in which the legal and medical professions may both have to grapple with the treatment of those who cannot make their own decisions such as young children. Sometimes the ‘best interests’ considerations are complicated by religious practices, such as infant circumcision not required for clinical reasons.

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Twenty years ago, in Marions’ case, the Australian High Court confirmed a parent’s power to consent to medical treatment of a child, such powers being derived from the common law and from statutes such as the Family Law Act 1975 (Cth). Asked to consider whether there are kinds of intervention which are, as a general rule, excluded from the scope of parental power to consent (specifically, sterilization), the High Court held that in order to ensure the best protection of the interests of a child, such a decision as sterilization should not come within the ordinary scope of parental power to consent to medical treatment. Court authorisation is necessary and is, in essence, a procedural safeguard. However, addressing circumcision in passing, the Court said that male circumcision for perceived hygienic - or even religious reasons plainly lies within the authority of the parents. Department of Health & Community Services v JWB & SMB (“Marion’s Case”) [1992] HCA 15; (1992) 175 CLR 218.

Societal standards change over time.

Male circumcision rates in Australia are said to have dropped to about 12 per cent, falling from a peak of 85 per cent prevalence in the 1950s.

Public hospitals in a number of states, including New South Wales, no longer perform the procedure electively.

Routine neonatal circumcision has been declared unlawful in South Africa, Sweden (except on religious grounds) and Finland. It has been the subject of adverse judicial comment in Germany, with a court in Cologne declaring that the procedure violated a child’s fundamental right to bodily integrity.

The Royal Australasian College of Physicians’ most recent statement remains somewhat equivocal, noting that clinical matters do not warrant the procedure but that it is reasonable for parents to weigh the benefits and risks of circumcision and to make the decision whether or not to circumcise

their sons. Recent attempts at regulatory reform in New York have led to debate over religious freedoms.

Contrast may be made with female circumcision or female genital mutilation (FGM). Data on prevalence in Australia for women who have come from elsewhere is not readily available, but 70 million girls and women aged 15–49 years in Africa and in Yemen have undergone female genital mutilation.

The prevalence is sufficient for NSW Health to run training programs for medical staff.

FGM practices have not been left to the common law, in Australia. Section 45 of the Crimes Act 1900 (NSW) creates an offence with penalty of up to 7 years imprisonment and with extraterritorial application. The section is not limited to the performance of procedures on infants and under section 45(2) the consent of a woman is not a defence.

Asserted religious observation is not identified as a defence. The Royal Australian and New Zealand College of Obstetricians & Gynecologists’ statement (c-gyn 1) condemns the practice of any form of FGM. Late last year, the United Nations General Assembly passed five resolutions calling on countries to condemn all harmful practices that affect women and girls, in particular female genital mutilation, and to take all necessary measures to prevent it, including enforcing legislation.

Authors in Australia have sought to analyse the basis for the differing approaches to the male and female procedures. Detailed consideration of the arguments is beyond the scope of this brief article, but it is interesting to note the absence of express legislative attention to procedures on males, even in circumstances where protection of minors and public health benefits have gained express statutory attention in the broad area of cosmetic procedures, tattoos and even the use of solariums.

These brief examples serve to highlight the continuing interplay between the law, societal standards and sometimes religious traditions. Even in 2013, not all questions have been answered and we can expect many more demands on the law to develop frameworks which protect individuals, enhance society and support public health objectives.

[Student Contribution]

The Growth of the Uninformed KAT LAM explores the development of political apathy and ignorance

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mong the many privileges attached to coming of age in Australia is the right to vote in elections. While perhaps not as exciting as being about to get a full licence, drink, get into restricted premises or even buy scratchies, voting is an essential and significant civic duty that determines how the future of the nation is shaped. I describe voting as a privilege rather than an obligation (despite much objection) because we are lucky enough to live in a society that affords its citizens the right to participate in democratic elections. This is a luxury not afforded to every country. Citizens of Australia have the right to elect members of parliament who share similar interests and values and ensure that these are considered during legislative decisionmaking and policy drafting.

With the federal election looming ever closer on the horizon, I feel as if several attempts to breach the topic of political direction in Australia are met with either an air of wilful ignorance or a spate of ill-founded and misguided preconceptions about our politico-legal system. Admittedly I am by no means exceedingly intimate with the inner workings of governmental processes, but I feel that the youth of today willingly blind themselves to the functions and purposes of our government, and possess a general apathetic attitude to voting in general.

During casual conversation with a co-worker of mine a while back, I discovered that she had not registered her name on the electoral roll. As she was 22 years of age and a full Australian citizen, I was briefly taken aback by her

somewhat flippant attitude, and the fact that she had evaded registration for so long, for what is very much a compulsory legal obligation.

It was clear from her manner that she had an obvious aversion to what she regarded as a huge inconvenience. A thought that is undoubtedly common to many Australian youths of today. An estimate by the Australian Electoral commission (AEC) approximates that 82 per cent of Australians aged 17-25 were enrolled to vote compared to a significantly higher enrolment rate of 95 per cent of the rest of the electorate.

My encounters with acquaintances that have a particular abhorrence to all things political are not limited to this single incident. Many have little knowledge of what our political parties stand for, and most are not even The Brief | Volume 19, Edition 1

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aware of what political parties exist. A common misconception, which many youths and children labour under, is that we vote in federal elections in order to elect a prime minister. In fact the prime minister is the head of the party that holds majority in the House of Representatives. Perhaps this misunderstanding and others can be attributed to the wide media coverage that is afforded to the presidential elections in the U.S. Indeed it would seem most people are more familiar with the U.S. political-legal system than our own.

It is not to say that the youth of Australia is comprised of a ubiquitous mob of politically and legally uninformed ignoramuses. On the contrary, at university level, many students are more than familiar with the mysterious workings of political parties, and their perceived underhanded and seedy dealings.

Some can read between the lines and make deductions about what really happened regarding Gillard’s deposition of the Rudd regime incident.

But these enlightened individuals have often had to direct their own learning and actively seek this information. And here, we have perhaps come to the root of the problem. Beyond exposure to parental teachings there is little in the way of compulsory political education in Australia.

If I cast my mind back into the far reaches and cobwebs of memory past, the vague recollection of ugly uniforms and overloaded backpacks, I recall that my first exposure to politics was in a stuffy portable classroom in year 9 commerce. While admittedly not the most engaging of all subjects at the time, it was in retrospect highly useful.

That was when I was introduced to the different levels of government, shown the public private distinction and learned how our political system functioned.

However, commerce remains an elective subject and having (regrettably – given how hard it was to understand anything in foundation studies) not chosen legal studies in year 11, there my brief foray into the world of politics ended. Currently there is no compulsory component in primary or high school curriculums, which introduce students to a political education. If not introduced at a primary or secondary level, where else is the general populace of the nation supposed to learn how their country works?

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“Here, we have perhaps come to the root of the problem. Beyond exposure to parental teachings there is little in the way of compulsory political education in Australia.”

For those who have deleted everything into oblivion since high school regarding Australian history, let me recap your memory. Women at state level were granted the right to vote over a period of two decades. South Australian women were the first to gain suffrage in 1893, while the last state to give women voting rights was Victoria in 1903. In 1902, most men and women over the age of 21 were given the right to vote through the Commonwealth Franchise Act 1902. It would probably not surprise many of you when I say that Aboriginals of Australian, Asia, Africa or the Pacific islands (except New Zealand) were not afforded these same rights. Aboriginals would have to wait until 1962 when they would finally be entitled to vote in both state and federal elections. It is only recently (within the last few decades or so) that we have achieved equality in the sense that every eligible citizen (bar those serving a prison sentence for 5 years or more, those convicted and unpardoned of treason, and those who lack the state of mind to comprehend the nature of voting) is given a say in how their country is run. With the significant changes made to the voting franchise, Australia is a leader in voting fairness. It seems a shame to throw this privilege away by casting a donkey vote or submitting an empty ballot.

voting is beneficial in that it requires legislators and policy formulators to consider the interests of the whole electorate rather than on select groups.

But on the other hand, it can be argued that compulsory voting is an infringement on civil liberties as it forces people to vote. There are also adverse effects that stem from compulsory voting. People who are uninterested in politics are forced to make ill-considered decisions, which may result in more informal or donkey votes. But if voting is compulsory in Australia, then should there not be compulsory education in schools to educate and guide people into making well-considered and meaningful decisions?

In fact these rights are deemed so important that they are enshrined in one of Australia’s defining features of governmental policy: compulsory voting.

Interestingly, Australia is one of the few countries in the world to mandate that every eligible person must cast a vote.

Other countries include (but are not limited to) Bolivia, Egypt, Venezuela, Austria, and Singapore. Compulsory voting has both its advantages and shortcomings. Mandatory voting is based on the premise that it ensures that parliamentary representatives are selected according to the will of the electorate. Furthermore compulsory

With youth voters comprising a significant proportion of the electorate, it would seem that young voters possess enough clout to sway electoral outcomes. Compulsory political education in schools could be the answer to tackling the issue of political apathy and uncertainty. Furthermore this could lead to an increase in political participation by students, while further developing decision making and analytical skills in the future. Perhaps then, eligible youths will regard voting as a civil right and privilege rather than an enforced obligation.

A study conducted by the Whitlam Institute indicates that the young voting population makes up approximately 30 per cent of the electorate; a significant proportion that holds the power to influence the outcome of an election. Accordingly, this study suggests that this proportion of young voters contributed significantly to the outcomes of the last four federal elections (2001, 2004, 2007, and 2010). With such power to influence the government, the youth of Australia should not be content with distancing themselves from political issues.

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[Student Contribution]

The Rise and Rise of Intellectual Protection Laws NANDINI BAJAJ examines the development of intellectual property laws in developing countries and its implications for Australia.

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f you invent something, or contribute to it, it’s only fair that your work is recognised and protected. Unless you want to be remembered in history as that great tragic inventor who died alone and poor. For a long time, developed nations have held a monopoly on intellectual property law, shutting out developing nations. As such, the vast majority of patent holders of vital technologies and medicines are from developed nations, and the laws in place make it difficult and expensive for many developing nations to access such technologies that could make an enormous impact on their nations.

Huawei stands at third in the world in number of patent applications.

Lately, however, frameworks for protecting intellectual property rights have begun development in countries like India, and more importantly, specialised degrees in intellectual property law, such as the PostGraduate Diploma in Intellectual Property Rights Law being offered by the National Law School of India University in Bangalore. In China, which has long received complaints from the US for stealing patents, the government is pushing for companies to patent their work, and reforms in intellectual property law are taking place. Chinese telecom company

Although this might not be ideal for Australian intellectual property law firms, it could also lead to exciting future developments. Already, intellectual property law firms such as Holding Redlich are developing networks in the Asia-Pacific region with firms and businesses in China and Singapore.

So what does this mean for intellectual property in developed nations, particularly those that trade heavily with developing nations? Currently, many Australian law firms provide legal assistance to clients in developing countries like China in regards to issues such as patents and trademarks. As the practice intellectual property law solidifies, and more and more lawyers in developing nations enter the field, the need for Australian law firms in developing nations will diminish.

Firstly, it opens up intellectual property law firms in developing countries to the Australian market, providing Australian innovators a way of protecting their patents and trademarks in countries like China, which has a history of disregarding patents. It also means

“The vast majority of patent holders of vital technologies and medicines are from developed nations, and the laws in place make it difficult and expensive for many developing nations to access such technologies that could make an enormous impact on their nations.” that Australian lawyers would be better able to work overseas, opening them to a range of opportunities not available in Australia. Secondly, the networks formed would help develop intellectual property law frameworks in developing countries. This could mean that the laws would be strong and effective, preventing loopholes. Thirdly, it would also help develop cross-regional

frameworks for intellectual property law, again, decreasing the chances for exploitative loopholes.

Ultimately, it is the innovators in Australia and overseas who benefit most. They receive a better chance of having their intellectual property protected in developed and developing nations, an issue of vital importance.

They will be better able to access legal advice, both in their own country and overseas, and will be better able to provide and develop their products and services to the people.

It’s going to take a while yet for developing nations to write secure intellectual property frameworks, but there is clearly a major push happening now. It could mean a decline in profits for firms in developed countries like Australia, or even being shut out, but it could also mean better laws and more opportunities for lawyers and firms in developed and developing countries.

Regardless, as in any good law firm, the clients come first, and in this case, the important part is that the innovators will receive more rights, and better legal advice in developing countries.

Protecting intellectual property is vital for promoting innovation and advances that are accessible to all, and this will hopefully be the result of this new trend both in Australia and overseas.

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[The Agitator]

A ‘SLAPP’ in the face for public discourse Alice Biscu

L

iberal democratic States confer an inherent right on their citizens to participate in the public life of their country. These protected activities range from attending meetings, to protesting and publishing on matters of public concern. Like the USA, Canada and Europe, this right also exists in Australia through a limited right to political communication. This right protects the freedom of political speech from government legislation, but not from the actions of government or other private parties. Over the past two decades, countries with and without formal rights protection have experienced an increase in law suits known as a Strategic Litigation Against Public Participation or a SLAPP, these actions are brought against individuals and citizen groups who exercised their democratic right to communicate on matters of public significance.

the United States by Doctors Pring and Canan in the 1980s. The authors found that “targets who fight back seldom lose in court yet are frequently devastated and depoliticized and discourage others from speaking out”. On the other hand, filers of SLAPPs are rarely victorious in court yet often achieve their political agendas in the real world. Unlike other Western States, Australia lacks the general protection of freedoms in a Bill of Rights and there is a greater chance that targets of SLAPPs will lose in court. Subsequent hardships that can befall them include cost orders and orders to cease their public activities.

with Bills of Rights have also introduced specialised Protection of Public Participation Acts (‘PPPActs’).

Often the simply threat of litigation is enough to intimidate a party into stopping its public activities. However, there is an indication that the number of SLAPPs reaching court is increasing. In this case, the common law offers little protection to targets of SLAPPs.

It is too soon to tell how effective this mechanism is, but it has already received some criticism for requiring the judge to apply a reasonable person test, rather than an objective test, when determining whether an activity is public participation.

SLAPPs were frequently brought in Defamation Law but uniform Australian legislation has made it difficult for corporations, if not individual executives, to sue in defamation. As a result, SLAPPs appear increasingly under the Trade Practices Act and in other areas of law that can be used opportunistically.

When confronted with litigation or the threat of litigation, individuals and citizen groups often feel intimidated into ceasing public debate due to the uncertainty, high costs and emotional distress associated with litigation.

It is expected that the judge will filter out cases with no merit or brought for an improper purpose, but this is an extraordinary measure and judges are reluctant to scrutinise the plaintiff’s purpose in bringing an action. Judges have to be aware of the plaintiff’s common law right to seek a remedy in the courts and SLAPP writs are difficult to identify because they mask themselves as legitimate tort actions. Neither can the right to political communication be raised as a reason to dismiss the claim. Unless it is obviously frivolous or without merit then the judge is likely to allow the claim to continue. Even where a claim is struck out, Court Rules have been described as a ‘blunt instrument’ against SLAPP suits because this usually only leads to an ‘an order that a plaintiff recast its pleadings.’

SLAPPs are usually brought by corporations or governments against conservationists, environmental groups and concerned citizens who have spoken out in criticism of their activities, often in relation to the environment and development. These areas have vested economic, environmental and community interests. Since filers of SLAPP suits usually have corporate or state resources at their disposal, they are at a significant advantage over their targets.

Not surprisingly, SLAPPs are not a new phenomenon. It was first identified in

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Jurisdictions with Bills of Rights, like Victoria, also rely on ordinary Court Rules. In dealing with SLAPPs, the courts must balance the defendant’s rights to freedom of expression, to peaceful assembly and association and to take part in public life with the plaintiff’s rights to liberty, privacy and the protection of property. Consequently, many States

Currently 28 states in the USA have PPPActs as well as the province of Quebec in Canada and the ACT in Australia. The ACT legislation allows judges to use the improper purpose of the plaintiff as a reason to dismiss a claim. The PPPAct sets up a system whereby individuals and corporations can approach the courts to request that their participation be declared to be a form of protected public participation.

An apparent problem with the current legislation is that there is no statutory immunity, meaning that minor property damage on non-residential property caused by protesters could remove the legislative protection, even where any “damage is disproportionate to the public interest to be protected.” If an activity is denied legislative protection, this is likely to discourage protestors from going ahead with their planned public participation or going ahead without protection and risking legal action and potential imprisonment.

As legal systems become savvy to the tactics used by governments and private citizens and corporations to stop public participation and criticism of government and private activities, stronger laws will be passed to protect the democratic rights of citizens to participate in public life. Until then, intimidation tactics silence participation and limit the ideas that are available for public discussion, including the opportunity to develop new approaches and new laws to replace decision making made without community consultation or current environmental knowledge.

[Banter Feature]

Judicial Banter

with Ellen Hile

The High Court...From Where You'd Rather Be Kirby J knows where the parties at GLEESON CJ: What do you mean by “free choice”?

TEHAN QC: What we mean by “free choice”, your Honour, is a choice unconstrained by any pressure, hope of advantage or benefit or force or coercion or compulsion, a true free choice.

GLEESON CJ: You would be surprised to know that there are places I would rather be than here at the moment and the psychiatrists might explain my presence at the moment by reference to a number of influences or pressures that produce that consequence, but I thought I was here as a result of a free choice. How is that consistent with your explanation?

HAYNE J: Good luck, Mr Tehan.

TEHAN QC: It is always a matter of degree, your Honour.

KIRBY J: I could not think of a better place to be than here.

GLEESON CJ: I am sure that is probably right.

Source: Tofilau, Marks, Hill & Clarke v The Queen [2007] HCATrans 81

If you’ve studied tort law and have come across Perre v Apard, you’re going to have a bad time At ancient Delphi the oracle spoke to Apollo’s chosen intermediary. Originally a male monster (python), she had evolved in later mythology into a wise middle aged woman. Nevertheless, her disjointed babblings were recorded by attendant (male) priests who rendered them into ambiguous verse which was in turn open to endless interpretations. It all sounds like the attempt of an intermediate Court of Appeal to explain Perre v Apard Pty Ltd to trial judges and litigants.

Source: Keith Mason, 'Unconscious Judicial Prejudice' (Paper presented at the Supreme and Federal Courts Judges' Conference, January 2001), 9.

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[Regulars]

Stuff

Law Students

Like

with Rana Al-Shibly

Student Exchange Law students love a semester abroad.

While our choices can be limited to Common Law countries, the beauty about overseas travel is that you don’t have to go very far to cross international borders. This makes exchange essentially just an extended holiday, with a paper or two submitted every now and then! With the university willing to pay for a nice sum of it, it’s really a no brainer!

Foreign Films For those students staying home for the semester, watching friends discuss which European city they plan to meet up in can be gruelling. And for those whose travels have come to an end, it is just downright depressing! So where else does one go, but to foreign films?

Lounging on the couch with a pot of T2 and an Amélie DVD takes you back (or for the first time) to the streets of Paris.

That is, of course, until you get a text message asking if you can cover the early morning shift at work tomorrow.

Oh, reality.

Latin terms When you spend five years writing essays for every law unit you do, you tend to pick up a few things. One of those – Latin terms. A fortiori, inter alia, and prima facie, you know them all, and you use them every chance you have to make essays sound just that little bit more professional. While it may backfire sometimes, at least you’re not writing something like ‘among other things’. Of course not, you’re a law student.

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[The Weird and Whacky]

Bright Idea Nomiky Panayiotakis

“H

uh”, you say? That law makes no sense, you say? Why does it still exist, you say? While once upon a precedent ago in a far away antiquated court or parliamentary boys club, those laws may have held their place, nowadays they just rank amongst the absurd. What laws are these you ask?

These laws are the unenforced laws still on the books which open a window into our far more conservative past.

Society has changed, people have become far more liberal (no not the Tony Abbott kind of Liberal, but hey, Australia probably will be, come 14th September), and these laws do not apply to our society. Yet, these laws still exist. It’s a wonder what life would be like today if even one of these laws was still actively enforced...

Did your light bulb just blow?

Time to go down to the local hardware store and change that globe! Wait, no, sorry, not if you live in Victoria, you’re going to have to hire a licensed electrician to do that for you; even if it’s in your own home. Electricians now have a legalised monopoly in the light globe changing business. It probably wouldn’t be worth their time, as competition amongst electricians would drive the light-bulb-changing costs down as consumer demand would be relatively higher for this service

than any of the other requirements an electrician is hired for. After all how often do you hire an electrician and how often do you need to change your light globe? My guess is the latter occurs more frequently.

Electricians will be driving out to people’s homes and on the way accumulating costs; time, petrol, opportunity cost of any other higher paying job they could’ve been at, etc.

Let’s also assume that the consumer is able to buy their own light globe, as no law exists preventing them from doing so. Here the electrician may possibly be unable to profit on the light-globe itself as the consumer may have chosen to purchase it themselves at a lower cost, than from the electrician regardless of the convenience it may provide.

So far we’ve witnessed the hassle this law has caused the electrician, let alone the inconvenience it has caused the consumer. The consumer instead of changing the light bulb at their own leisure has had to waste their time at home waiting for the electrician to arrive, allowing the electrician to do the one minute job of changing the globe and then pay him for this inconvenience. Payment, regardless of how low it may be would impact on low-income households; it’s a cost they could have easily foregone. Now that so many problems exist, this is where, right on cue, the politicians will be coming to the rescue*.

Fist they’d seek to help* the electricians.

A study committee would commence, numerous suggestions would abound; a light-blub-changing-price-floor perhaps? Or a gross annual income to distance the electrician must travel price chart may be devised. Or better yet, a new tax may be implemented charging residents an annual fee for estimated light-globe-changing costs, which will then subsidise the politician’s electrician’s annual income.

Now what of the consumer? The equality alarmists would immediately recognised the disadvantage this would cause low-income-households.

Perhaps they would be subsidised for their light globe changing needs, after all the Government does have that amazing bottomless pit of funds... Or they may even be exempt from paying; they don’t have to worry about any light globe changing costs now that they’ve been legally excused from any personal responsibility.

Throbbing headache anyone? There are obvious reasons why some old laws are no longer enforced, and thankfully so. *Still a boys club *Cough Cough *Cough Cough COUGH

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[Acknowledgement]

B rief THE

Volume 19 Edition 1, February 2013

© Macquarie University Law Society 2013

muls Macquarie University Law Society

Editor Tom Craven

Deputy Editor Tylie-Anne Guldemond

Designer Nathan Li

Contributors Valiant Warzecha Hon.Michael Kirby Hon.Greg Smith Emma Grimley Mary Ayad Bill Madden Sevanne McGarrity Kat Lam Ellen Hile Nandini Bajaj Alice Biscu Nomiky Panayiotakis Rana Al-Shibly Sub-editors Rana Al-Shibly Kristina Cavanna

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The Brief | Volume 19, Edition 1

Editorial Review Angela Voerman, Manager, Campus Engagement Luke Salem, Director (Publications), Macquarie University Law Society Image Credits All stock images courtesy of Shutterstock.com.

The Brief Online The Brief can be read online at <www.muls.org>, or on ‘The Brief’ Facebook page.

Disclaimer All views expressed herein are those of the individual authors and do not reflect, in any way, the attitude of the Macquarie University Law Society. The Macquarie University Law Society does not accept any responsibility for the losses flowing from the publication of material in The Brief.

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