The Brief Edition 3 2013 by Macquarie University Law Society

Macquarie University Law Society Magazine

Emma Grimely , Laura Webster, Satyajeet Marar, Jiao Li, Michal Solecki, Patrick Barakachi, Nava Monstajabi, Hannah Robinson, Jennifer Tridgell

The Brief | Volume 19, Edition 3

Write for The Brief Submissions now being accepted. For more information contact Emma at thebrief@muls.org

The Brief | Volume 19, Edition 3

muls Macquarie University Law Society

Editor’s

Introduction Dear Reader, Please enjoy the final edition of The Brief for 2013. This is a special edition with a bit of social justice twist and it has been a pleasure to prepare. Inside you will find some thought provoking articles, showcasing the best of what Macquarie Law Students have to offer.

Contents 4

Presidents Intro

A Brodie’s Law for All? by Emma Grimley

Stop Crime, Not Lives by Nava Monstajabi

The Glass Cliff by Laura Webster

Out of Sight, Out of Mind: Australia’s New Attitude to Asylum Seekers by Michal Solecki

The Law that Restricts Creativity with MC Lars

Recognising the Right to Self Harm by Jiao Li

Paid For and Forgotten by Hannah Robinson

Defining Life by Satyajeet Marar

There is an impressive contribution from Emma Grimley about the effects of Brodie’s law and bullying has on society and possible law reform in this area. There is also a great contribution from Michal Solecki about the ever changing question of how Australia should deal with people seeking asylum here. But that’s not all, many topics are covered, many questions are answered, so acquaint yourself with these pages for the last time for 2013. It has been an amazing opportunity to edit The Brief this year. The success of this publication however rests on the efforts of others and I would like to thank all those who wrote, edited or helped out in anyway. Seriously thanks, and The Brief will be back louder and prouder in 2014. Keep on truckin, Tom Craven

MUSCLE: Making a Case for Social Justice by Jennifer Tridgell The Brief | Volume 19, Edition 3

[Acknowledgements]

muls

B rief THE

Macquarie University Law Society

Volume 19 Edition 3, November 2013

© Macquarie University Law Society 2013 Editor Tom Craven Deputy Editor Emma Grimley Designers Nathan Li Mia Kwok Contributors Emma Grimley Satyajeet Marar Laura Webster Michal Solecki Patrick Barakachi Jiao Li Hannah Robinson Jennifer Tridgell Sub-editors Rana Al-Shibly Olivia Lynch

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.

Welcome

from the President Hi Everyone, Please enjoy the last edition of The Brief for 2013. Earlier this semester, MULS put on a number of events that were well attended and enjoyed by all. The MULS Social Justice Trivia Night raised money for the Central Coast Community Legal Centre and we were incredibly lucky to have a representative from the foundation speak to us on the night. Tickets to the biggest Law Ball in MULS’ history sold out in less than three minutes. Competitions are once again going strong this semester, with record registration numbers for all internal and external competitions. For those

who didn’t get a chance to see Law Revue, the cast were extremely talented and put on a funny and enjoyable show once again this year. MULS also played host to the Australian Law Students’ Association September Council throughout the break. Lastly, MULS continues to be the reigning champion, winning the rugby 7’s, soccer and touch football at the Intervarsity Sports Day. It has been a successful year for MULS and we welcome the newly elected team and hope they do even better in 2014. Jessica Tasso

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[Feature]

A Brodie’s Law For All? EMMA GRIMLEY takes a look at the implications of Brodie’s Law and the corresponding Fair Work Amendment Act 2013 (Cth).

here is no question. No one should ever have to tolerate what nineteen-year-old Brodie Panlock did before she tragically committed suicide: to be spat on, called names, have fish sauce poured over your hair and clothes while your coworkers hold you down. It is a sickening thought that one person might bully another, to the extent that their victim considers their life’s end as a necessary release. It disturbs my (albeit, idealistic) understanding that those who bully are ultimately answerable to the law. In a limited sense they have been, with the offences of assault or crimes against property found in respective crimes acts or the Criminal Code 1995 (Cth). Yet, as former Court Justice of the Family Court Alastair Nicholson has identified, these offences are wrongly applied to circumstances for which they weren’t designed. He says bullies are not conscious of committing an offence, as “being told you’ve committed an offence of misusing a

carriage service to harass someone is a bit different from saying you’ve been bullying someone”.

desired a national response, a Brodie’s Law for all, to combat an issue without geographical bounds.

Named in memory of the young woman it could not assist, Brodie’s Law, the extensions to the stalking provisions of the Crimes Act 1958 (Vic) in 2011 have specifically recognised serious bullying by making it a criminal offence. Whilst Brodie’s tormentors only received fines for ‘failing to provide a safe workplace’, offenders under the altered provisions can be punished by ten years in jail. The changes contained in the Crimes Amendment (Bullying) Act 2011 (Vic) apply to physical, psychological, verbal and cyber bullying. Stalking now extends beyond following or contacting the victim, publishing online statements, interfering with their property, including computers. Behaviours such as making threats, using or directing abusive words or performing abusive acts to the victim, most obviously features of bullying, are now a part of the provisions. Crucially, the behaviour may be characterised by causing physical or mental harm to a victim, including self harm, suicidal thoughts or a fear for personal safety. Whilst a groundbreaking achievement, Brodie’s parents Rae and Damian Panlock’s couldn’t rest on the amendment of Victorian law. They

Enter the Fair Work Amendment Act 2013 (Cth). Specifically, Schedule 3, the ‘Anti-bullying measure’ to commence on 1 January 2014. Finally a national piece of legislation defines ‘workplace bullying’ broadly as repeated unreasonable behaviour that ‘creates a risk to health and safety’. Further, victims are given the opportunity to apply to the Fair Work Commission (FWC) for an appropriate order to stop bullying, which must begin to be addressed within 14 days of the application being made. The question arises here: whether these amendments mirror the ideals the Panlock’s sought to achieve.Although a federal legislative definition of workplace bullying ought to be applauded, to me the concerns weigh heavily. The creation of criminal provisions in Victoria were seen to address the inadequacy of fining Brodie’s tormentors under occupational health and safety legislation. Whilst Victoria introduced a custodial sentence for serious bullying, orders made under the Amendment Act are limited to ceasing the behaviour, behaviour monitoring, review or compliance with an anti-bullying policy The Brief | Volume 19, Edition 3

[Feature]

“The difficulty is, such an intervention necessitates the victim asking for help.” and support and training for employees. No victim can receive compensation, often necessary for counselling or medical services, in an attempt for the legislators to be ‘cost effective’. Any order made by the FWC is designed to go no further than to stop the bullying and attempt to restore normal working relationships, an ideal that is sure to raise eyebrows. When the factors contributing to bullying are deeply entrenched in the workplace environment or culture, it seems such orders may act as a ‘band-aid’ solution. Only a contravention of an anti-bullying order derives a maximum punishment of 60 penalty units, no where near the amount Brodie’s bullies received in fines. Inevitably, this raises the ongoing debate of whether bullying is best addressed through criminal or civil penalties. Although the debate in it’s intricacies is beyond the scope of this article, the Alannah and Madeline Foundation’s first national symposium

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on ‘Bullying, Young People and the Law’ in July this year advocated a ‘specific, and readily understandable criminal offence of bullying, including cyberbullying’. Through this, they hope young people (irrespective of employment) can be subject to criminal sentencing for their behaviours. Perhaps most importantly, the amendments thrive on ‘early intervention’ in the bullying activities. The difficulty is, such an intervention necessitates the victim asking for help, making the application to the FWC to be considered within 14 days. One is bound to question whether the victims are able to ask for help, a venture that for some requires an unfathomable amount of courage. Brodie herself felt unable to ask for help. Viewed in this light the system may be under-utilised by victims. Therefore, these amendments leave much to be desired in constructing preventative measures pertaining to

this issue. In the least, victims may be more aware of their right to ask for assistance, and have the matter dealt with in a timely fashion. In a sense we can all be proud that some recognition of bullying has occurred in federal statute. We can finally attach the word ‘bullying’ to a legislative definition, thereby declaring its unacceptability. However, there is uncertainty as to whether we have yet a Brodie’s Law for all. The amendments are far from the criminal offence construction that the Panlock’s and other stakeholders have in mind, by continuing to develop within the realms of occupational health and safety law. Bullies across Australia are yet to get a strong enough message that bullying is a criminal offence. What we have in the Fair Work Amendment Act 2013 (Cth) is a start, but more needs to be done to affirm bullying as a criminal offence, in addition to addressing contributing factors to bullying, in and out of a workplace environment. Only then can we grasp at the hope that tragedies like Brodie’s may never happen again.

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The Brief | Volume 19, Edition 3

[Feature]

Stop Crime, Not Lives!

NAVA MONSTAJABI investigates crime, Iran and the death penalty.

“W

e must never stop being tough on crime. But we must also be smart and efficient when battling crime and the conditions and the individual choices that breed it.” - US Attorney General Eric Holder, addressing the annual meeting of the American Bar Association’s House of Delegates on 12 August 2013. The death penalty is the ultimate inhumane, cruel and degrading punishment that violates the fundamental right to life. But sadly it still takes place in many countries worldwide. Recently in Iran, Alireza M, a 37-yearold man who was found guilty of possessing a kilogram of crystal meth, was sentenced to the death penalty. But he was found alive at a morgue a day after being hanged on 9 October and now Iranian judicial authorities are

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waiting for him to make a full recovery before they hang him for a second time. Death has become the punishment for his mischief and the law a has become a one-way street. There is no denying that we all want to be protected from crime, but does the death penalty make societies safer? Is it really an effective punishment when battling crime? Is carrying out a second execution on a man who, at the joy of his daughters (according to an article published by CNN on 19 October 2013: ‘No mercy for Iranian execution survivor’) somehow managed to survive 12 minutes of hanging - who was certified as dead and whose body was about to be turned over to his family the right way to go? According to an Amnesty International report (Not making us safer: Crime, public safety and the death penalty’

published on 10 October 2013), there is no convincing evidence to support the argument that the death penalty prevents crime more effectively than other punishments. The most comprehensive survey of research findings carried out by the UN in 2008 (‘The question of the death penalty and the new contributions of the criminal sciences to the matter: a report to the United Nations Committee on Crime Prevention and Control’), concluded: “Research has failed to provide scientific proof that executions have a greater deterrent effect than life imprisonment. Such proof is unlikely to be forthcoming. The evidence as a whole still gives no positive support to the deterrent hypothesis.” Yet, sadly, many governments too often invoke the death penalty as a “quick-fix” to crime and as a crimecontrol measure. These governments fail to invest in effective measures to address the issue of public security and crime – such as more effective policing, and a fair, functioning criminal justice system. Weaknesses in the justice systems often exacerbate the problems of societal responses to crime, starting from inadequate quality of criminal investigations to inadequate legal representation for some defendants. The lack of convincing evidence on the effectiveness of the death penalty highlights that it does not stop crimes. It only stops lives. And once someone is dead there is no turning back. If new evidence emerges and shows that the offender was in fact innocent, it is too bad too late. The death penalty should be opposed no matter what the circumstances, the nature of crime or guilt or innocence of the offender. Crimes should be punished but to take away an individual’s life as a means of punishment is to say that only the offender is to be blamed for the crime committed whereas in many instances society is equally blameworthy if not more so. Although 140 countries have now abolished the death penalty in law or practice according to Amnesty International, but the recent case of the repeat execution of Alireza M in Iran highlights the long and tough path that still lies ahead. But the only way forward is continuous effort and hope that it is possible.

The Glass Cliff

LAURA WEBSTER on why gender remains an unconscious barrier to political success.

hen Julia Gillard finally broke through the political glass ceiling, we rejoiced. Australia had its first female Prime Minister. An achievement to be proud of. There may have been 48 other women in the world who had achieved the same status before us, but that was no matter. We patted ourselves on the back regardless. Well done, Australia. You go, Australia. And the best part? Women had finally made it. There was no need for feminism anymore, we had

successfully shed off the brutish shackles of patriarchy, throwing our second-class citizen status into the abyss. Thanks, Julia. But then, we sat, idly by, as questions of her legitimacy slowly trickled in. A Backstabber, first. Ousting poor Kevin Rudd. Everyone liked him. A Liar. But she promised Australia no Carbon Tax! She clearly can no longer be trusted to lead our nation. A Witch. A Bitch. The pitchforks and flaming torches were out in full-force. And with a resounding surge of support

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for the ghost of her predecessor, her fate was sealed. It seemed that the shards of the glass ceiling we had so proudly watched Julia shatter had slowly crashed back down upon her. To many, this was just the nature of politics at work. A vicious game for anyone, gender aside. But was this predictable, inevitable even? Was Julia destined for political failure for the sole reason she was born without a Y Chromosome? Apparently, yes. Known as the ‘Glass Cliff’ phenomenon, organisations facing catastrophe and crisis are more likely to appoint females to the helm of senior leadership positions in attempt to curb the rough seas ahead. But this is no ordinary voyage. While greater numbers of women are finally breaking through the infamous ceiling, they are more and more finding themselves placed behind the wheel of the Titanic. Companies are more likely to appoint women to board and CEO positions when their share price is falling; female barristers are more likely to be given unwinnable cases; and female politicians are more likely to be selected to oppose unwinnable safe seats of the opposition. So when the boys make a mess, they bring in the women to clean it up. But given the already precarious situation of the organisation, they have a greater chance to slip and fall. Take State Premiers’ Carmen Lawrence of Western Australia and Joan Kirner of Victoria. Lawrence, Australia’s first State Premier, succeeded after a political scandal involving the squandering of public money through backhand business deals, and Kirner, appointed mid-term after an economic crisis headed by her male predecessor. Consequently, both faced the prospect of unwinnable elections, and lost. Kristina Keneally, the first female NSW State Premier, was handed what was dubbed a ‘poisoned chalice’ after her appointment to the role following three male counterparts. Keneally’s glass cliff was already cracked; the Labor Party had been in office from 1995. It inevitably shattered when her government was dumped at the next election. Just like a game of Chess, they sacrificed the Queen rather than risk tarnishing the reputation of another King.

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“Compared to their male counterparts, women who assume leadership positions on the ‘glass cliff’ are more likely to be subject to greater criticism and to be blamed for the inevitable negative outcomes” Then there’s Julia Gillard. Deposing Rudd shortly before an election after claims of dysfunction, policy bungles, dissatisfaction amongst the bureaucracy and the party with his leadership style, and, essentially, dwindling polling numbers. Whether you like her or loathe her, Gillard’s glass cliff and task of turning around a crumbling government was a steep one. Compared to their male counterparts, women who assume leadership positions on the ‘glass cliff’ are more likely to be subject to greater criticism and to be blamed for the inevitable negative outcomes. And all too often these disastrous outcomes only reflect badly on the woman’s leadership, strength, and ability. Where women face gender-based judgement and biased prejudice from members of parliament, the media, and the public – whether it be conscious or unconscious – the organisation itself is left relatively unscathed. This is the predicament faced by many women in these positions. And while Gillard may have been the knitter, the needles and strands – the minority government, growing economic difficulties, the lingering shadow of love once felt for Rudd – were well in place before her. But hey! I hear the misogynists cry. We gave Julia Gillard a chance at leadership and she failed. She lost the trust of her government and the public. This has nothing to do with us. Well, those questioning whether gender had anything to do with the difficulties Gillard faced during her leadership, let me ask you this. Have any childless male politicians had their legitimacy as an authority figure judged on their familial arrangements? Have had their ability as a leader been questioned due to their marital status? Gillard was. Has Kevin Rudd’s wife ever been accused

of being a lesbian? Has he had his dead parents insulted? The size of his derriere in his suits criticised? Gillard has. Did John Howard have signs waved at him with the words ‘Ditch the Witch’ stripped across them? Did his political opponents stand next to slogans describing him as a ‘Bitch? Gillard had. Would Edmund Barton’s body and genitals be lampooned in crude sexual terms on a dinner menu?!? Yeah, you get the picture. After Lazarus-like regeneration of Kevin Rudd as Labor leader, the twoparty preferred preference has swung back to close to a 50/50 split. Rudd outpolled Abbott as preferred prime minister, with 49 per cent to Abbott’s 35 per cent just after his return to power on June 26, compared to before the leadership switch, where Abbott polled 45 per cent to Gillard’s 33 per cent. Overall, Rudd’s numbers showed an 18 per cent jump from Gillard’s position in March. The question is then: Do political preferences matter so little to this voting populace that they would rather vote for the opposition than to elect a Labor party led by Gillard? Did these swinging voters want to ‘ditch the witch’? Or is Kevin Rudd truly the chosen one destined to bring balance back to the ALP force? As Gillard aptly noted in her departing address to the nation, her experience as Prime Minister was not solely determined by her gender. And the ‘Glass Cliff’ does not dictate the fate of every woman elected or promoted during tough times. But it does explain some things. Perhaps even a lot of things. So sorry ladies, don’t pack up your feminist bags so soon. Whether it be wilful blindness or pure ignorance, gender remains an often unconscious barrier to political success. Let Gillard’s legacy stand as a reason to remember this. It’s time we started steadying the cliff.

[Cover Story]

Why MICHAL SOLECKI thinks we are asking the wrong questions on the refugee debate

Out of Sight, Out of Mind: Australia’s New Attitude to Asylum Seekers

hen it comes to refugees and asylum seekers, Australia’s recent Regional Resettlement Arrangement (‘RRA’) between Australia and Papua New Guinea (‘PNG’), more commonly referred to as the ‘PNG Solution’, is really more of a problem than a solution. Since the policy’s announcement in July this year, the debate about how Australia treats its refugees has resurfaced with renewed force. Unfortunately, most of the debate is centred on either cost or general attitude towards refugees, without a proper explanation or exploration of the legal framework in which all this is happening. Without an understanding of what Australia’s obligations to refugees really are, it is difficult for any kind of progressive argument to arise. When we look at it from this perspective the focus of the debate should shift to two key questions: 1. What is the problem? 2. How do we fix it? In this light, the problem with the PNG solution becomes: Why is Australia not owning its responsibilities internationally? And what should they be focussing on? An examination of the Solution (both as a whole and at individual points), in light of the current law, reveals a sad irony. The RRA is an 11 point, 2 page plan that was announced as a joint effort between Australia and PNG midway through this year and proposes, in those 11 points, to solve Australia’s refugee problem. Guiding the Arrangement is a supposed desire to combat people The Brief | Volume 19, Edition 3

smuggling and deter the ‘practice of perilous sea journeys’. This is obviously a serious concern. There is a legitimate possibility that the previous stance on refugees (which was to process them in Australia) was susceptible to abuse by people smugglers. Certainly there are extreme dangers involved in the journey. However, to say that a hardline stance on refugees by the Government is going to be a solution is not reasonable. This becomes clear when examined in the context of a legal framework. There are two key instruments we can look towards to demonstrate just how poorly this arrangement performs as a deterrent: the Migration Act 1958 (‘the Act’) and the Convention relating to the Status of Refugees 1951 and its accompanying Protocol 1967 (‘the Convention’). The Act is directed to the purpose of responding to Australia’s obligations under the Convention. As such, when the Act provides for the protection of refugees, it does so with reference to the Convention and its Protocol. Under the Convention, a refugee is anyone who has a “well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion” who is outside their country of origin and unable (or unwilling because of that fear) to be protected by that country. Two important considerations arise from this definition of refugee. Firstly, the refugee is someone facing persecution and hostility, and second, that persecution is so severe that it means they cannot reside in their country of nationality. This begs the question: is anything going to be a significant deterrent to stop refugees attempting to escape such persecution? It seems unreasonable to believe that if an individual was being persecuted to the extent that they felt unsafe in their home country, that if they were offered the chance to escape to a country where they would not be in similar danger, that they would decline. This holds true regardless of the final destination. As such, it’s illogical to believe that by simply taking a hardline approach to refugees, the Government has come up with some way to stop people smugglers. From a legal and logical perspective, the PNG Solution is flawed at its most basic and fundamental aim.

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“It is also a problem because now it becomes difficult to distinguish true refugees in actual danger of persecution and those that are not genuine.” The overriding aim of the solution does however provide us with two key issues which should be driving the debate. The first of these is the obvious concern the international community needs to have for the dangers refugees put themselves in to avail themselves of these escape routes. We cannot fault the Government for aiming to prevent people smuggling and protect those that do try to escape persecution. The problem is simply that they took the easy way out by choosing to make it PNG’s problem and aren’t actually accomplishing what they set out to achieve. The second issue which arises as a result of this consideration is the problem with the Convention itself. As previously noted, the convention is amended by a Protocol in 1967. One amendment that Protocol made (arguably the key one) was to change the definition of refugee. Initially, the 1951 instrument was meant to be a response to the consequences of the Second World War. However in 1967, the definition was expanded to include anyone at fear of persecution on the previously mentioned grounds. There are two problems with this. Firstly, the definition is now broad enough to encompass a very wide range of people. Secondly, those people will fall under the protection obligations. Protection obligations arise under the Convention in Article 33, and are substantially encompassed in section 36 of the Act and prevent Australia from returning a refugee (directly or otherwise) to their place of persecution. This is a problem, because neither the protocol nor the convention provide for any sort of final step or destination for the refugees once those obligations are enacted. It is also a problem because now it becomes difficult to distinguish true refugees in actual danger of persecution and those that are not genuine (this is why terms like ‘economic refugee’ arise). This

creates a major concern because the question now becomes: if we can’t send them back, and we don’t want to let them in, what do we do with the Asylum Seekers? This is the reason agreements like the PNG Solution (or the previously failed Malaysia Solution) are born; so that Australia has a means of deporting the refugees without breaching their obligations. Unfortunately, these agreements are hardly long term solutions. This brings forth two areas which deserve Australia’s focus. Firstly, as noted earlier, there is a fundamental problem with the convention itself and this is essentially the root of the problem. Australia needs to look at ways to fix this problem at an international level. This suggests that the responsibility is not Australia’s alone to burden, and this is true. It is also not an argument against Australia exploring means of championing, or helping to champion an international movement to solve this key problem. When looking at the numbers internationally, the United States (who is the number one receiving country of asylum seekers over the past five years) received a total of 74,020 asylum seekers in 2011. The United Kingdom received a total of 25,420. With numbers this high, it may not be difficult to gather international support at examining an effective, long term, solution and amendment to the convention. The second area of concern which deserves Australia’s attention is protection of refugees until such an international solution can be agreed upon. If Australia has an interest in preventing people smuggling and deaths at sea (which according to this recent RRA it does) then it needs to make a serious effort. As noted before, simply refusing to take refugees at all is not going to help. Similarly, trying

[Cover Story]

to deter arrival in Australia is not going to fix the situation either. This is aside from the fact that the only true deterrent in this regard would be to make Australia appear as bad or worse than the place refugees are trying to escape from. If Australia is to make a serious effort it needs to explore stopping the boats at the point of origin and departure and not at arrival. We cannot deny that there are sovereignty concerns with other countries. That said, we cannot concede that if we canâ&#x20AC;&#x2122;t force another country to stop the boats, that we have exhausted all options. The focus should be more on incentive than deterrence. This seems counterintuitive, but if your aim is to protect the refugees and stop people smuggling, the solution could be to make it easy for them seek protection from Australia. Organising processing centres on location either via bi-lateral agreement with countries such as Indonesia, or at an embassy level if those fail, and providing safe transport would greatly

â&#x20AC;&#x153;If Australia has an interest in preventing people smuggling and deaths at sea (which according to this recent RRA it does) then it needs to make a serious effort.â&#x20AC;? reduce people smuggling (which relies on refugees having no means of escape) and would certainly greatly reduce the number of at sea deaths of those trying to make it to Australia. There are legitimate concerns with respect to logistics and costs, but it does not seem unreasonable to think that if we are going to be completely funding these island solutions (such as the RRA) in addition to providing those countries additional, financial incentive to accept the refugees, that those funds could not be better spent on a more effective solution.

Whether or not you accept that making it easy for asylum seekers to get to Australia is the solution to this particular problem, what cannot be denied is that Australia has obligations internationally. Australia needs to own its responsibility to protect refugees and that means exploring proactive approaches as well as reactive solutions at both a domestic and bilateral level as well as on an international scale.

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The Brief | Volume 19, Edition 3

The Law that Restricts Creativity PATRICK BARAKACHI looks at the fast moving world of copyright and patent law suggesting that a new approach is needed

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ntellectual property laws were conceived with the purpose of controlling the uses of original content, in order to protect the creator. Itâ&#x20AC;&#x2122;s intrinsic connection to the ever-expanding age of the Internet, sees this set of laws encountering issues with little to no precedent. The world of music has recently evolved from the archaic procedures of a previous era. Moving into the age of social networking and online music stores (Band Camp, Sound Cloud, Last. FM etc.) Current laws struggle to keep up with progressing methods of practice and have become a needless

[Interview with MC Lars]

Artists who cannot pay the necessary fees are either deterred from completing and releasing their song or opting for unauthorised appropriation, which holds the threat of litigation. hindrance on artists, restricting their musical creativity. I spoke to founder of Horris Records, advocate for free or “pay what you want” music, and globally successful independent artist MC Lars. Regarding the state of current IP Laws, if and how they have impacted him. Transformative appropriation or sampling is a prominent and widely accepted method in creating new music. It involves taking a portion from an original sound recording, reusing it as an instrument or sound in another piece, and ultimately creating new content. Musicians who employ this method must pay a sizeable sum of money to respective recording companies in order to license the sound piece. This puts a limitation on music creation, artists who cannot pay the necessary fees are either deterred from completing and releasing their song or opting for unauthorised appropriation, which holds the threat of litigation. Currently the concept of fair use does not apply to sampling unless it constitutes parody, criticism, teaching, news reporting, research or some non-profit use. Samples used simply because they sound good do not qualify for protection. MC Lars explains “Iv’e always sampled what I want, being allowed to treat any sample as a ‘parody’ in anything commercially released”. This effectively acts as a loophole and degrades the integrity of law, which should be governing and ever changing in order to cater for a contemporary society. MC Lars describes frustration with the greater recording industry, “when the physical or digital retail success

of your music is directly responsible for the bloated salary of a record label executive in an office this can cause problems creatively and financially” It becomes obvious that these current IP laws are harmful to the music industry as a whole. Only beneficial to the economic interests of major label recording companies who hold a considerable amount of legal control over a greater part of released music. This current legal arrangement regarding Intellectual Property and musical control puts the power over content in the hands of large recording companies who according to MC Lars are “out of touch with the process of creating art” rather than with the creators/musicians. The arrangement caused by these IP Laws stifles creativity and focuses on frivolous procedure. MC Lars describes the steps that had to be taken when approving a sample used in his most commercially successful song “Download this song”. “A sizeable advance (USD $7,000) on royalties had to be paid before the song was released” Such a payment would deter countless artists from releasing their original content. MC Lars further describes issues encountered in the process of gaining license to a sample, “they (Iggy Pop’s label) felt the lyrics to my song had a ‘negative message’ which created issues…Iggy had to eventually intervene and clear the sample himself”. This type of time and money wasting bureaucracy should not be so strictly attached to the creation of music. It can be addressed if a framework specifically concerning the transformative approach to music creation were to be introduced,

especially with the popularity rise in electronic music. MC Lars explains appropriation as “how the artist has added to the work”, this approach, rather than focusing on the origins of the sounds, highlights the originality of the new piece. Framework in this area should introduce an approach that includes the artists who own the original content, rather than allowing major labels to hold all control. An example of how damaging IP laws can be in this area is seen with the Beastie Boys and their renowned, highly influential album Paul’s Boutique. It’s based almost entirely around using many samples for each song. Legal scholars who discuss this album with regard to IP, have stated that if this album were completed today a major label would never consider releasing it. Due to the high cost of licensing the hundreds of samples. Beastie Boy’s have been and still currently are being sued for the use of unlicensed samples on this album. This highlights the restricting attributes of IP laws on creation of music and creativity. Album Paul’s Boutique has had a huge influence on music creation, and far transcends the hundreds of samples used to create the final and original product. MC Lars describes the line between plagiarism and appropriation as “very subjective, however this subjectivity is what gives art new value”. Due to the subjectivity in deciding what constitutes appropriation and what is a breach of copyright, a more personal approach should be considered in legal framework. Those who create the original content should have the chance to give thought to the artistic vision of those who seek to appropriate. Ensuring artists are not restricted and constantly frightened by the web of prohibitions and litigation when creating new music. Legislators need to consider the legitimacy of appropriation. Distinction between appropriating content and copyright breach needs to be reflected on, rather than approaching many cases of sampling as a cases of plagiarism, this is what chokes creativity. The Brief | Volume 19, Edition 3

Defining

Life W

hen does life really begin? For a vast majority of us our earliest memories are vague flashes of faces and colours from our toddler years. The loving face of a mother gazing proudly at the life she helped create. The frowning face of an elder sibling whose territory you’ve forever laid a stake on. Some nondescript memory of leftover birthday cake wrapped in a napkin, smuggled out of the fridge when your parents weren’t looking. None of us remember those first few moments. We come out of another human being as living, breathing, struggling bundles of life. Kicking and screaming just to ignite weak, growing lungs. None of us can truly remember the struggle that put us here. For many parents it involves years of fertility treatments followed by 9 gruelling months of blood, sweat and

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SATYAJEET MARAR takes a look at Zoe’s Law and the consequences of ‘unborn justice’.

late night ice cream runs to satiate the cravings of pregnancy. Often it’s a journey of elation, fear, promise and for many, disappointment. So when did it happen.. when did a nondescript pile of conjoined DNA matter turn into a life form? When did we acquire an identity distinct from the mother that bore us? We are curious creatures. Some of us turn to religion when the answers aren’t in front of us. Others turn to science, but we still don’t have conclusive answers. Perhaps life itself is a human construct borne out of a desire to put things into categories. Perhaps our desire to define life stems from the desire to define what is right or wrong. This year, Zoe’s law was introduced by Fred Nile of the Christian democrats. It was introduced following the miscarriage of an 8 months pregnant

woman after an accident caused by a drunk driver. The driver was only charged with malicious wounding and later escaped with a suspended sentence. The bill, now in an amended form, is currently subject to debate in the lower house. The bill’s current form creates a new offence of destroying a ‘child inutero’, classifying the child as a living person for the purpose of the offence with a penalty equivalent to murder. Arguments over the legal status of the child and the implications for a woman’s bodily integrity and the abortion debate soon followed. In my recent volunteer work with the Central Coast Community Legal Centre, I had a chance to examine the proposed law reform and its possible effects on real people.

To understand why this is such a massive issue, let’s take a quick look at the events that lead up to this bill. As the law currently stands, human life begins from the time the child draws its first breath out of the womb. The problem with this construction was that it meant that many of those responsible for destroying a foetus went unpunished. A 2003 report recommended that the law recognise a separate offence for ‘killing an unborn child’. Though this was never taken on board, the problem was acknowledged by the courts who in 2005 held that destruction of a foetus fell under ‘grievous bodily harm’ to the woman carrying it. By seeing the foetus as inseparable from the mother, the right of a pregnant woman to make her own decisions regarding the unborn and herself could be maintained. The offence carries a maximum penalty of 25 years. Still, the concerns of many remain. In 2010, a heavily pregnant Susan Harris suffered a miscarriage after a reckless driver hit her car. The driver had his license taken away, but otherwise got off with a suspended sentence. It has been argued that the law is insufficient – it fails to fully account for the trauma suffered by parents losing an unborn child, something that is often comparable to losing a real one. Others like Fred Nile have gone even further – arguing that the unborn child has been deprived of its right to a chance at life. Think ‘unborn child’ and you’ve already thrown open a can of worms. Hugh Laurie as Dr.House once described the unborn child as akin to a parasite within its mother, and this isn’t far from the truth! It is as much a part of her as any bodily organ. It is fully dependent on her for sustenance. Yet by 20 weeks, it has its own distinct organs and a heart that beats independently of its mother. Think further down the line and it shows movement of its own, kicking sometimes with enough force to break the uterus and to force early labour. But when we regard the foetus as child, we run the danger of equating abortion with murder. The decision to abort never comes easy and even today carries stigma for many women. It is a murky area of law in this country and varies considerably from state to state. In New South Wales and

“Whether our reservations on the subject arise from a religious standpoint or not, we forcefully project our own ethics onto another in a way that compromises their ability to make free choices over their own bodies.” Queensland, it is only permitted if a doctor deems that the childbirth would endanger the mother’s physical and mental health. By contrast, the stand in the ACT is far more liberal. By granting the foetus the status of personhood, we open the doors to a future where a woman’s decisions over her own body must be weighed against the ‘interests of the foetus’. This would hence make it harder for women to argue that they should be allowed an abortion and would further leave it open for even greater restrictions. Whether our reservations on the subject arise from a religious standpoint or not, we forcefully project our own ethics onto another in a way that compromises their ability to make free choices over their own bodies. True, Fred Nile has left in the exception of foetal destruction through medical procedure. But the damage will be done if this bill passes, throwing the floodgates open for greater restrictions on these already restricted procedures and their availability to women who seek them. Future bills will inevitably come to the fore, arguing that we’ve all agreed – abortions extinguish lives separate from the would-be mothers who are vessels for the child. Why should we give these women the right to kill an unborn unless the circumstances exceptional? And then further to Why should we allow abortions at all when they are tantamount to murder? This is why a number of organisations including the NSW Bar Association and the National Association of Community Legal Centres have spoken out against the bill. So we now contend with the question of how this delicate issue can be

resolved. Should the law stay the way it is, or is there a way we can more severely punish those who ‘kill’ ‘unborn children’? A majority of the issues with the bill come from its classification of the foetus as a separate living human being. This is ultimately a question for science and though there is no hard and fast answer, we do know that it shows the characteristics of both. Its organs may function independently yet it lacks sentience and does not, as far as science understands, feel pain. So why don’t we take a middle ground here – create a separate offence for foetal destruction that defines the unborn child as a distinct part of the pregnant woman but does not seek to determine whether it is a living human being or not? This would allow us to pass legislation creating tougher penalties for the act without in any way bear sentencing, equating it to murder. Ultimately, it is arguable that the law is adequate how it stands. The severe penalty attached to grievous bodily harm recognises the pain suffered by expectant mothers who are forced into miscarriages. This is the same law that the infliction of serious medical conditions such as HIV AIDS and psychological disorders falls under. But if we are to argue for more stringent treatment of those who destroy a foetus, we must apply an approach that tempers the fiery emotions the debate conjures with common sense and pragmatism. Let’s leave the determination of life to the scientists who understand it best until they develop more conclusive answers over time. As long as offenders are fairly punished, does it matter that the law doesn’t declare them to be ‘murderers’? The Brief | Volume 19, Edition 3

Paid For and Forgotten

HANNAH ROBINSON examines how legislation managing Australia’s Indigenous population has been swept under the carpet; the responsibility of any government but the current one.

he Federal Election has come and gone and on reflection nobody can even pretend to be surprised with the issues that it bottled down to; the Mining Tax, ‘boat people’, Government Standard Tax, ‘boat people’ in Papua New Guinea, and you guessed it, more tax. So considering this, it is somewhat confusing that it is neither of these issues but rather legislation relating to the management of Indigenous communities that has been classified as a “National Emergency”. The blatant truth, no Western Sydney voter is concerned with how the Commonwealth manages the lives of Indigenous people in remote Northern Territory. The Background The introduction of the Northern Territory Emergency Response Act 2007 (Cth) marked a time of change; a change of government, a change of policy and a change with uncharacteristic agreement between Mr Howard and Mr Rudd. Under the pretence of responding

The Brief | Volume 19, Edition 3

[Feature]

to the Little Children are Sacred Report, a report detailing widespread child sexual abuse in Indigenous communities. The government abolished the twenty-five year policy of Indigenous Self-Management and Self-Determination; in its place, a multitude of laws dictating how Indigenous people should live, from alcohol restrictions, to income management and mandatory health checks. How could they do so you ask? Why, by suspending the Racial Discrimination Act of course. As Michael Anderson, Leader of the Euahlayi People observed, the intervention saw “institutional racism personified” and ignored the reality that there are white bad parents and white drunks too. Stronger Futures In the intervening years since its introduction, the Northern Territory Emergency Response Act received heavy criticism, effectively being seen to have escalated the problem of Indigenous disadvantage rather than closing the gap. The solution, to rebrand and rename; and so the Stronger Futures in the Northern Territory Act 2012 (Cth) was created. This legislation has, by any measure, been an improvement. Indigenous representatives were actually consulted, there was no need to suspend the Racial Discrimination Act, and the policy had clear, thought-out goals, unlike its predecessor which was hastily rushed in and had its main objective shifted within its first six months. Now the revised policy has eight key areas of focus: educational achievement, economic development, tackling alcohol abuse, community safety and child protection, health, food security, housing and governance. On the face of it, it is an admirable and well-focused policy. Furthermore the money is there. 3.4 billion dollars has been dedicated to the implementation and continuation of the “Stronger Futures” policy over a ten-year period. Lingering Doubts Yet questions of effectiveness must still be asked. Essentially, all the 2012 legislation is doing is continuing the

The intervention saw “institutional racism personified” and ignored the reality that there are white bad parents and white drunks too. Northern Territory Intervention; under a different name of course, because an “Intervention” is a human right infringement whereas a dedication to a “Stronger Future” is not. And herein lies the problem, what the legislation is doing is saying “as a [supposed] multicultural society, is we must look after our Indigenous population. So here, take this 3 billion dollars, that will fix the disadvantage”. Yet, entrenched disadvantage cannot be fixed by a simple monetary handout. A perfect example of this is Part 2 of the Stronger Futures in the Northern Territory Act, titled “Tackling Alcohol Abuse”. It outlines new offences for consuming, possessing and selling alcohol in “protected areas”. It allows the Minister to make assessments of licensed premises viewed to be causing harm; and it discusses measures for approval and revocation of “alcohol management plans”. What the legislation fails to do however is to stop high incidences of alcohol abuse in Indigenous communities. The legislation does not stop high-risk Indigenous people from buying and consuming alcohol. It does it offer any educational resource to instruct on the dangers of alcoholism. And nor does it offer any rehabilitative funding to assist those who have fallen into a much too common cycle of all-day drinking. Governments, past and present, continue to make a budgetary allowance for Indigenous disadvantage; however a payout does not mean taking responsibility and no government has made an effort to properly facilitate change. The Politics, The Problem and A Proposal According to the Department of Families, Housing, Community Services & Indigenous Affairs, a massive total of 4.6 billion

dollars is being committed to the intergovernmental “Closing the Gap” campaign, over the coming years. This, believe it or not, amounts to over three times Ms Gillard’s conservative estimate for her Papua New Guinea solution. However despite such a large amount of tax-payers’ dollars being invested in the issue, the only mention of Indigenous policy in the latest election campaign was largely symbolic, namely Mr Abbott’s policy for constitutional recognition of Australia’s Indigenous population. Now there is no doubt that Indigenous people would be appreciative of constitutional recognition and no doubt that they deserve that recognition; but realistically speaking, will it close the gap? The answer at the moment, in my view is no. Just as Mr Rudd’s 2007 apology to the Stolen Generation was of great symbolic significance, so too would be constitutional recognition. Yet the problem with Indigenous politics is that that is all there is: symbolism. No responsibility is ever taken for the perilous state of Indigenous housing, education, healthcare or the overall social and economic climate of Indigenous Australia. The solution? Perhaps there isn’t one. There is certainly not an easy answer. However, the reality is that since the Northern Territory Intervention brought an end to Indigenous selfdetermination, legislation has been targeted at defining the problem not solving it; a mere glance at the Objectives Clause of the Stronger Futures Legislation demonstrates this –“The object of this Act is to support Aboriginal people in the Northern Territory to live strong, independent lives, where communities, families and children are safe and healthy.” How is that support to be delivered? Not even the legislation can tell us that.

The Brief | Volume 19, Edition 3

Images from The Westin Sydney, courtesy of Hugh Joyner, Nightlife Photography

The Brief | Volume 19, Edition 3

[Gallery] [Debate]

Law Ball 2013

The Brief | Volume 19, Edition 3

is because the training invested in the volunteers is valuable to the organisation. As in most areas of legal practice, internships and volunteer positions are quite competitive. This is particularly the case for positions in the inner city, with increasing availability for the outer suburbs and rural areas. However, it is still very worthwhile to apply as persistence will win through in the end.

Work out with MUSCLE

MUSCLE

Making a Case for Social Justice Macquarie University Students for Community Legal Engagement (MUSCLE) and why you should join them in their quest for social justice, JENNIFER TRIDGELL writes.

ocial justice does not simply consist of fighting for an underdog in a controversial court case. Whilst such controversy temporarily draws public outrage to inequitable treatment of people by the judiciary, this scrutiny is fleeting. Neither does it extend to other equally pertinent issues, which the media has deemed as not headlineworthy. More attention should be directed to the disadvantage which is present throughout the justice system. Inadequate access to legal services and legal representation are perpetuating the vulnerability of certain demographics, such as the homeless and disabled. The pressing concern for social justice practitioners is upon breaking this cycle by providing sorely-needed assistance to our most vulnerable members of society. Equal treatment and access to the judicial system are fundamental for a well functioning society. If a person cannot physically reach legal services due to geographical limitations, let alone afford them, what are the ramifications for her quality of life, let alone for justice? The work of legal aid volunteers and lawyers offer an opportunity for everyone to have the legal representation and resources needed to plead her case. Instead of having individuals hands bound by disadvantage, their future may be more fairly placed in the hands of the judiciary.

The Brief | Volume 19, Edition 3

It is valuable and immensely rewarding to give back to the community by assisting those who are disadvantaged in the judicial system. Volunteers are directly helping these members of the public to reach a fairer outcome by providing legal assistance and advice. Tasks may include answering calls from clients, summarising their legal issues for a solicitor and researching relevant policies for law reform submissions. This practical experience is excellent for developing your skills and improving your future employment prospects.

Get amongst it! With in excess of 200 independent, non-profit community legal centres (CLCs) in Australia, there are boundless opportunities for legal volunteer work. By visiting the NSW CLC website, you are able to peruse the extensive range of CLCs for yourself. Depending on your areas of interest, there are either general or specialist practices available. Volunteer opportunities are not limited to CLCs. It is quite common that charities, such as the Cancer Council and the Salvation Army, offer legal positions to students. Therefore, if there is a particular cause that you are passionate about, it is worth investigating it further. Most volunteer positions offer flexibility for students. CLCs commonly have a benchmark for involvement of one day per week for at least six months. This

For further information about social justice opportunities, speech nights and excursions to legal aid organisations, like the Macquarie University Students for Community Legal Engagement (MUSCLE) page on Facebook. Alternatively, join our mailing list by e-mailing muscle.mq@ gmail.com.

Getting Personal: Up Close with Zita Rush Zita is a third year Arts/Law student at Macquarie who has volunteered with the Immigration Rights and Advice Centre (IRAC). How did you become involved in IRAC? I became involved with IRAC after being a receptionist at the Asylum Seekers Centre. What did your position entail? My position entailed organising appointments and legal research. I also was in charge of updating the organisations social media accounts. What has been the most valuable part of volunteering with IRAC? The most valuable part of the position was observing the lawyers at work. They always had compassion and respect for their clients and worked tirelessly for their cause. Iâ&#x20AC;&#x2122;ll always remember the moments where they would dance around the office when one of the clients had finally received protection. It was fantastic to know I may have helped that to happen even if it just in a small way.

[Student Contribution]

Think independently

Make the smart choice Be part of a young, flexible, leading corporate law firm that has built its success on innovation and having a heart. If you are among the best and brightest law students, make the smart career choice and begin your legal career at Gilbert + Tobin. To find out more visit: me.gtlaw.com.au The Brief | Volume 19, Edition 3

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