SULS Law in Society 2017 Semester 1

2017 Law in Society Edition Three

Law in Society Edition Three, 2017

Editor-in-Chief Alan Zheng

Editors Miriam Asar Brendan Ma Manju Varshini Crystal Yang

Design Christina Zhang

SULS Publications Director Emily Shen

Printing Ready Steady Print

Š Sydney University Law Society.

DISCLAIMER This journal is published by the students of the University of Sydney. Law in Society is published under the auspices of the Sydney University Law Society. The views expressed in the articles are those of the authors, not the editors.

RECOGNITION The editors of Law in Society acknowledge the traditional owners and custodians of this land, the Gadigal people of the Eora nation.

2

between black and white

Sydney University Law Society August 2017

3

fo Alan Zheng Editor-in-Chief There is little doubt that race is one of modern Australia’s battlegrounds for equality, hope and identity. The modern world remains subtly racial, embedded in the needlessly divisive social, physical and emotional skins which make us all different yet all the more human. It is that common thread of unpretentious humanity which this year’s first Law in Society seeks to unmask. Johnson Ly’s poem “to be human” embodies the core of our struggle – that in the very pursuit of liberation, we risk sacrificing either our individuality to be abstractedly ‘human’ or our togetherness which forges only isolation and fragmentation. Simultaneously race goes deeper than our own self-expressions, our daily mannerisms and the decisions we make day by day, year on year. Race is embedded in the very institutions we hold dear without challenge. Sophie Wakefield’s piece “Could I Be More British?” poses a new construction of the Australian legal system where ‘ethnic’ means a person of non-Aboriginal descent and where the original and indeed, ongoing custodians of Australia hold ultimate jurisdiction.

The intersection of race and society lives and breathes in people but also in sterile laboratories where microscopic cells 4

construct each individual human being.

Anne Hu’s medical exploration of the historical origins of HeLa cells in the African-American diaspora occur on a backdrop of uninformed consent, infringements of intellectual property and subtle racial discrimination.

With newfound scepticism against the merits of section 18C of the Racial Discrimination Act in 2016, Dominic Keenan’s article “Free speech for who?” exposes the political divisiveness and double standards which underpin the concept of free speech and its disproportionate, racially linked consequences for a range of minority groups. The result is a damning critique of the state of political populism in Australia today.

But Australia does not exist in a vacuum and neither does the concept of race.

Intersecting with international tourism and his personal tales from working on sustainability projects abroad in Fiji, Jono Gu’s photo essay “The Backyard of Australia and New Zealand” depicts the cultural distortions which threaten the pulsing economic heart of our pacific neighbours, revealing the extent to which race and cultural experiences impact everyone from local business owners to farmers.

In addition, the epistemological boundaries of “nationality” and “race” remain temporally transient. Peter Xu’s piece unravels the legal and institutional barriers

oreword which build division and difference, ultimately posing a unique solution to global inequality in nationality laws: universal standardisation.

Yet, in the approach to understanding racial affairs in Australia, there is ‘no single size fits all.’ Instead, our understandings of race are morphed, constantly changing, a biologically organic form. Nina Mao extrapolates race philosopher Michael Hardimon’s latest work on ‘Social Race,’ uncovering the continuities and discontinuities in our own introspection into racial identity itself.

More close to home, Jennifer Ma explores the cultural stereotypes imposed by family which deter entry into the legal profession, constructing a tale that is ultimately about self-driven empowerment and belief in the diversity of humanity, a tale which is continually being written as diversity in the profession gradually improves and with it, a broader, more empathetic and less singular cultural narrative.

unequal across borders.

Finally, Carly George takes us to Western Sydney, drawing on the development of moral panic literature to analyse the legislative responses to Middle Eastern organised crime, revealing that although rights are universal, it is often select groups isolated and targeted by the media and mainstream society, irretrievably restricting and abrogating their liberty.

The narrative and lens which race provides remains extraordinarily relevant to modern Australia and its laws. On behalf of the Law in Society team, I would like to thank Publications Director Emily Shen for all her high-level assistance as well as Design Director Christina Zhang for setting out the Journal. Personally, thank you to my team of Editors including Miriam Asar, Brendan Ma, Manju Varshini and Crystal Yang. Most importantly, thanks to you dear reader for taking the time to delve into this edition of the SULS Biannual.

Anh-Tuan Nguyen and Brent Liang’s outwards-looking piece on the state of the rule of law and new nationalism in China, Myanmar and Vietnam takes us outside of the traditional associations of Anglo-centric liberal democracy to the development of freedom, pluralism and justice itself, reminding us that the state’s impacts on race are although comparable in some ways, largely disproportionate and 5

4 8 10

contents

12

6

16

22 26

38 42 46

50

58 64

Editor in-Chief Foreword Alan Zheng Abstract Johnson Ly To Be Human Johnson Ly Could I Be More British?

Sophie Wakefield Henrietta Lacks: A Case Study in Bioethics and Race The untold stories of African Americans in Western medical research Anne Hu Free Speech For Who? Racial discrimination and offensive language Dominic Keenan The Backyard of Australia and New Zealand Land, race and economic development in Fiji Jonathan Gu The Conflict Between Nationality and Race and its Unnecessary Legal Convolutions Peter Xu “You Can’t Be Racist Against Yourself!” and Other Myths and Legends Nina Mao Breaking the Bamboo Ceiling - How You and I Can Shape the Diversity of the Legal Profession Jennifer Ma Us Before Them An exploration of the Resurgence of Nationalism and the Repercussions on the Rule of Law in South-East Asia Anh-Tuan Nguyen & Brent Liang Moral Panic and Folk Devils: Gangs and Gun Terror in Western Sydney Carly George Reference List 7

It is not our differences that divide us.

It is our inability to recognize, accept, and celebrate those differences.

- Audre Lorde

8

The ramifications of racisms can create prejudice, hatred and misconceptions. The most significant corollary of racism however, is the division it creates. It is humanity’s instinct to define others by how they are different to one’s self, which inevitably creates a them vs us mentality.

Key to this underlying disposition is our failure to recognise that we are all human, thereby allowing racism to perpetuate. There is a commonality woven through humanity whereby we all share the same experiences and feel the same emotions; like a tree, we are born from the same trunk and although the branches take different directions, the leaves are the same. Until this fact is acknowledged, embraced and educated, groups in society will continue to feel like outcasts to what really is their own kind.

Johnson Ly Comm/LLB-II

9

to be human.

Johnson Ly Comm/LLB-II

10

it is not easy to live, it is a struggle to exist in a world divided by colour. the fallacy of humanity is humanity itself. we smile, laugh, cry the same so why can’t we love the same? our obsession to collide only leads to our divide. shatter the gift of life with enmity for those of a differing shade, locked in a penitentiary foliage devoid of light. there is no harm to accept different branches with the same leaves and be blessed by unity but no our love withers and tolerance wilts. humanity decays, existing in fear in judgement in the shadow of itself; a terrible failure to recognise our common root, blinded by baseless judgements. no doubt, at the moment to be human is to suffer, but perhaps one day, to be human, will be to be you.

11

Could I Be More Let’s state the obvious: an Australian girl whose last name is Wakefield can hardly be seen to struggle when it comes to ethnic discrimination. With English and Irish heritage, studying what is essentially British law comes with great ease. The horrific - yes, horrific - fact is that I will soon be practicing common law in a country where it does not belong. This places me in a vexed position as I study laws which are native to my heritage, yet alien to the land upon which I will enforce them. Practicing common law reinstates the idea that indigenous law is inferior.

Obviously, this sits uncomfortably with our legal community in light of Australia’s attempt to self alienate from imperialism.

Despite continual recognition of the fact that indigenous customs ought to be recognised within the common law system - I (Lady Wakefield of the imperial order) insist on practicing a legal system which does not belong in this country. For this reason, when discussing the correlation between ethnicity and discrimination within legal practices, we need to redefine our understanding of the term “ethnic” in light of Australia’s colonial history.

‘Ethnic’: a person of non-aboriginal descent.

The indigenous population should flood our law school. While this normative 12

statement may seem somewhat ignorant considering our historically abhorrent treatment of aboriginal culture, it is not said enough. Any culture other than aboriginal Australians should be in the minority. This gives rise to the question: how can we define the term ‘ethnic’ in Australia. In the early 19th century, ‘ethnic’ signified a person’s place of origin, as seen in Cramer’s description of “the greek ethnic”.1 It was not until the late 19th century that the word denoted a group of people who shared a common tradition.2 The latter definition allows for cultural fluidity. For example, Humanity3 provides that a person “may assume a number of different ethnic identities”.4 My father’s family are of maltese descent (I took my english mother’s last name), and therefore may assimilate with mediterranean cultural traditions as well as identifying with British and Australian ethnic stock. The phrase ‘British and Australian ethnic stock’ is uncomfortable to write, and I am sure to read, because we often assume that someone of ethnic background belongs to a cultural minority; someone whose cultural heritage is not assimilated with the hegemony.

The hegemony is often established either by conquering the land or being the natural inhabitants of that land. For this reason, indigenous culture is placed in limbo. A person of indigenous heritage would be considered a hegemonic authority insofar

Sophie Wakefield Arts/LLB-II

British? as they were the natural custodians of the land - yet are bereft of such political and legal autonomy because the British conquered. To be more accurate, they claimed terra nullius. By making the incorrect claim of terra nullius,5 Britain has forfeited it’s right to be hegemonic. The true hegemonic power therefore lies within the hands of indigenous communities. Let’s outline our revised definition. In Australia, a person of ethnic background is someone who is not a natural custodian of the land. This is not altered by the fact that the person may belong to the dominant socio-political culture. People of Asian, European, American and African descent are ethnic unless they also assume an indigenous cultural identity. Gazing across a law lecture theatre at Sydney University, there are an overwhelming amount of ethnic students, and very few original custodians of the land - this land upon which this law is practiced.

Why are ethnic students the majority?

Historically, indigenous people have been precluded from studying at established institutions.6 In the 1980s, an “ affirmative action plan”7 sought to integrate indigenous students into mainstream education. Today, we see many programs (such as USAID’s ‘Wingara mura bunga bunga program’) encouraging indigenous involvement in law school. However, in 1998 a study

conducted with 25 indigenous law students saw nine discontinue.8 The overriding reason for discontinuation was the feeling of alienation experienced by the students due to racial stereotyping.

“...students complained that their teachers

“students complained the that their teachers tended to overemphasise racial stereotypes tended to overemphasise the racial associated with indigenous people.

Amongst stereotypes indigenous law students,associated who have with a tendency to be people.

Amongst lawofstudents, who have conservative, this type emphasis only serves a tendency to be conservative, this type to further entrench already existing racistof emphasis only serves to further entrench 9 attitudes...” already existing racist attitudes”9 19 years have past since this study, and we have to query- how much has changed?

Weinsbrot provides that “there are now about twenty Aboriginal lawyers who are university trained”.10 Let’s do the math.

Say these 20 lawyers went to 4 separate universities. Assuming 5 of them went to USYD, that is 5/250 students. Does this number suggest that the non-ethnic students feel they belong in the study of law? Turning our eyes to the practice of law, how many High Court judges have indigenous heritage? None. How many federal, state and local court judges have indigenous heritage? None. Evidently, the lack of indigenous representation in law school impacts the practice of law in Australia. It therefore becomes difficult to claim that the lawmakers of australia represent moral values native to this land.

13

14

If being ethnic is belonging to a land, a culture other than the country which one immigrated to, then any law student other than someone from Indigenous heritage is ethnic: foreign. The Australian political and legal ethos maintains that immigrants must adhere to the law of this country.11 Let us follow the government’s advice and ensure that the foreign, common law system is redefined in light of indigenous dispute resolution methods. There have already been various programs facilitated by Universities, corporations and governmental bodies that encourage indigenous involvement with the law. See, for example, the Nura Gili program (UNSW) and the Commonwealth National Indigenous Cadetship Program. However, these programs do not encourage the integration of customary law with common law values and practices. A possible solution to the lack of indigenous representation in law is to ensure there is greater focus on native title law within universities, governments and corporations. Native title lawyers have made significant headway, yet there is more to be done.12 Perhaps, a recognition of indigenous people within the australian constitution would establish a firmer connection between customary law and common law, justifying a court, a legislator and a student’s consideration of indigenous customary law.13 I could not be more British, more foreign to this country than my culture agrees to admit. But I have to query the obvious - the obvious truth that law is binding. Each citizen is bound to a judge’s (or legislator’s) understanding of legal and moral truth. The original custodians of Australia should be the majority in our legal system, the authority who bind the reality of this land, its people and its customs. So why am I, and most likely you, in the majority?

15

Henrietta Lacks: A Case Study in Bioethics and Race The untold stories of African Americans in Western medical research

Anne Hu Science/LLB-I 16

Throughout the history of science, we always hear the names of a select number of people: Albert Einstein, Marie Curie and Stephen Hawking, to name a couple. Yet there are always hidden figures who haven’t gotten the recognition they deserve. One of these figures is an African-American woman who goes by the name Henrietta Lacks. To the untrained eye, Henrietta’s specific case seems to be one of racial injustice. However, the root problems of her case stem deeper than this, it stems past epigenetics expressing ‘white’, ‘yellow’ and ‘black’ tones of mere melanin production to the understanding of our own humanity as the human race.

Henrietta’s story makes us question our treatment of other human beings, regardless of race, through the issues of bioethics and standard procedures. Here is the story of Henrietta Lack, the immortal woman who revolutionised the field of Medicine.

February 5th, 1951 marked a lucky and serendipitous day for George Otto Gey, a cell biologist and head of tissue culture research at John Hopkins Hospital in Baltimore, Maryland.1 A young AfricanAmerican woman called Henrietta Lacks had stumbled into the Johns Hopkins hospital, the closest hospital to treat patients of “colour”) complaining of piercing pains in her womb.

Biopsy reports revealed to Henrietta that she was diagnosed with cervical cancer.2 What they didn’t tell her was that at that very moment in the room next door her cells were unknowingly, and certainly without consent, being transported to the laboratory of George Gey. 1951 was the birth of HeLa cells, an amalgamation of “Henrietta” and “Lacks”. Her cells were the perfect biological replicate of “real” human beings. Not only were they immortal, but they also divided at unbelievably fast rates and, under optimal conditions, manifested on doorknobs, or even float on air particles. To this day, scientists have grown over 20 tonnes of Henrietta’s malignant cells, almost 11 000 patents involve these cells, and feature in more than 74 000 scientific publications.3

17

Unsurprisingly, HeLa cells quickly became invaluable to medical research worldwide, contributing to the development of a vaccine that would eventually eradicate the polio virus, further understanding of cell activity in disease research, cancer experimentation (especially during the “War on Cancer” when United States president Richard Nixon signed the National Cancer Act of 1971)4, the development of cancer treatment, cloning, gene mapping, launch of the Human Genome Project, effects and sensitivity of toxic substances and radiation on humans.

This was only the beginning.

doctors would treat any patient regardless of their race. Rather, her story is a striking blow on the entire human-rights framework for all North Americans, whether black or white, regarding bioethical procedures in general.

It comes as no surprise that even now, in the 21st century, HeLa remains the most commonly-used cell line in laboratories worldwide, contributing to continuing international discourse of legalities and bioethics in STEM research. Henrietta’s cells triggered the boom and surge of scientists to medical research, one of the fastest growing industries, hastened the global discussion on bioethics in the practice of medicine, and planted the seed of deluded hope to some but superstition to many, who believe Henrietta’s cells may hold the secret potion to the Elixir of Life that will solve obsession of our rapidly aging population with longevity, straight out of a science-fiction movie.

- Deborah Lacks, daughter of Henrietta Lacks

Yet most scientists, let alone the wider population, are unaware of the origins of HeLa cells, and the myriad of racial and legal implications that underpin this story.

THE LEGAL ISSUES: Is it an issue of race?

Racism was undoubtedly alive during Henrietta’s time. African-Americans had limited rights, were severely underpaid, and gravely misrepresented in the U.S. justice system. Although racism certainly existed in the 1950s, the story of Henrietta Lacks was not primarily an issue of race, the treatment towards Henrietta Lacks was standard medical procedure, and how 18

“Everybody always yellin’, ‘Racism! Racism! That white man stole that black woman’s cells!’ That’s crazy talk … this isn’t a race thing. There’s two sides [bioethical versus standard procedure of the time] to the story, and that is what we want to bring out… It’s not about punish the doctors or slander the hospital. I don’t want that” 5

Intellectual property Although racism played a role in the Lacks family’s travails, it was mostly class inequality - the lack of jobs, failing school and inaccessible health care – that never gave the Lacks family the opportunity to go to court over the ownership of Henrietta’s cells. However, on the other side of the country, a white man, John Moore, was preparing his lawsuit in Moore v Regents of the University of California6, which set precedence for future cases of gene patenting. Quite like HeLa cells, Mo cells were taken from Moore’s spleen and sold to laboratories around the country for financial gain.

The Supreme Court of California ruled that whether body tissue was removed with or without consent, any claim of ownerships vanishes once you leave the doctor’s office or laboratory.7 Essentially, if you abandon your tissue as waste, anyone can take your waste and sell it - it becomes transformed into an “invention” as a product to the doctor’s “human ingenuity” and “inventive efforts.” 8 Regardless of whether the patient was white or black, tissue ownership is transferred to the doctors. Unfortunately, if

the Lacks family were to sue Johns Hopkins Hospital, their efforts would be to no avail.

Despite privately owned companies making millions off Henrietta’s cell, her family with left without a cent. Ironically, not even enough to afford their own medications.9

Lack of informed consent

“What was done cannot be undone. But we can end the silence. We can stop turning our heads away. We can look at you in the eye and finally say on behalf of the American people, what the United States government did was shameful, and I am sorry ... To our African-American citizens, I am sorry that your federal government orchestrated a study so clearly racist.” 14 - President Clinton’s apology for the Tuskegee Syphilis Experiment to the eight remaining survivors, 16th May 1997.

There exists, in African- American folklore, the stories of the “Night doctor.”10 Rumours rippled through the African-American communities that white doctors were robbing graves in the dead of the night, or even abducting children from the side of the road and sent off to be dissected alive, and usually without anaesthesia.

This folklore actually had some factual basis. Without informed consent, the human subjects were completely clueless, practically “abducted”.

However, this lack of informed consent was standard procedure at the time. It wasn’t only African- Americans who were subjected to a plethora of experiments unknowingly. In 1963, such headlines would hit the newsstands:

Legally, there is a clear distinction made between the dictionary definition of consent - given by circling yes or no - and informed consent - that is, permission granted in the full knowledge of possible consequences.11 In relation to medical practice, this principle is enshrined by the Nuremburg Code, which was established in the wake of human experimentation in Nazi concentration camps.12 Yet in 1951, just four years after the Nuremburg Code was established, Henrietta’s cells were still stolen without any knowledge, and her family only found out about HeLa cells 50 years after her death.

This time, the victims were white.

Chester M. Southam had conducted experimentation on some of his patients; he had injected cancerous HeLa cells into several patients regardless of whether they had been diagnosed with cancer, to test whether or not cancer cells are contagious.

For those who were already diagnosed, their cancer worsened.16

Although Henrietta’s case was not primarily an issue of race, there has been AfricanAmerican experimentations, which were clearly racist. Conducted merely several floors down, in the very same hospital Henrietta’s cells were being harvested, lay the one experiment which must never be forgotten, the infamous experiment cited as “the longest non-therapeutic experiment on humans in medical history,”13 the Tuskegee Syphilis Experiment of 1932 to 1972.

“Patients injected with cells not told they were cancer … scientific experts condemn ethics of cancer injection.” 15

Infringement of privacy When it comes to Henrietta’s case, race wasn’t the issue that interfered with her privacy, but the lack of appropriate laws.

Every practicing physician is aware of the Hippocratic Oath, it instructs the importance of patient confidentiality and trust between patient and physician.

However, it is not legally binding.

Although George Gey may have stolen Henrietta’s cells thinking it harmless, he understood the importance of privacy.

19

He tried, in vain, to prevent any violation to Henrietta’s privacy, as well as that of the Lacks family. He refused to provide her medical reports, even provided a fake pseudonym “Helen Lane.” Yet still, her medical reports were leaked, and identity revealed.

Throughout the years, there has been constant knocking on the Lacks’ family’s door requesting more information, tissue and blood donations, medical examinations, interviews and more, in attempts to understand the genetics behind what gave Henrietta’s cells its immortality.

In 1966, Stanley Gartler conducted analysis of genetic markers of HeLa cells revealing the existence of G6PD-A,17 which was present almost exclusively in African-Americans. This marked the moment scientists took interest in the identity of woman who served as HeLa’s origin.

In 1976, Victor McKusick and Susan Hsu published a table in Science,18 which mapped the different genetic markers present in the DNA of Henrietta, her husband and her children.

In 1985, Michael Gold published a book, which quoted Henrietta’s medical records and autopsy results:

“the body was split down the middle and opened wide … greyish white tumour globules… filled the corpse…” 19

With the publications of the Lacks family’s genome, Henrietta’s family was put at risk. Any prospective employers of the Lacks family may take a second look after being swayed by genetic results, and the results of Joe (Zakariyya) Lacks’ test for mental illness certainly influenced his prison sentence when charged for murder.20 Ultimately, there really is no sphere in medicine that has not been touched by African-Americans and the likes of Henrietta Lacks.ID

20

21

Free Speech Dominic Keenan JD-I

“Fuck you. I didn’t fucken do it.”

– Lance Carr, arrested 25 February 2002. 1

On the 25th of February 2002 Lance Carr, a young Indigenous man, was arrested for offensive language after being questioned about a crime he didn’t commit, and for which he was never charged.2 He was arrested for using language that has become part of the everyday Australian vernacular, language that police officers no doubt use amongst themselves. This is typical of offensive language charges. In 1999 Indigenous people accounted for over 27% of those charged with offensive language, despite making up 3% of the population.3 Given this over-representation it is easy to see why some academics claim that these laws are a mechanism of oppression. In contrast, prosecutions under s 18C of the Racial Discrimination Act4 typically involve vulgar racial epithets and gestures not fit for reproduction, intended to inflict harm. Conservative politicians have been quick to decry s 18C as an affront to free speech and society as we know it, but interestingly they remain silent on offensive language laws. Laws that are actively used to curtail free speech and control people.

This article will argue that populist concerns surrounding free speech are intrinsically linked to race through an examination of the dichotomy between free speech narratives in Australia. I will begin by first considering why free speech is important, and whether or not a right to free speech exists in Australia. I will then go on to contrast offensive language laws with s 18C and recent efforts to amend it.

These laws are especially apt for comparison as they employ similar language while having vastly different applications. Ultimately, this analysis will demonstrate that race and free speech laws in this country are intrinsically linked.

22

h For Who? Racial discrimination and offensive language The erosion of free speech There is little doubt that both 18C and offensive language laws erode freedom of speech in Australia. Section 18C of the Racial Discrimination Act makes it unlawful to ‘offend, insult, humiliate or intimidate another person on the basis of ‘race, colour or national or ethnic origin’.

Its purpose is to protect minorities in Australia from derision on the basis of race. 18C is accompanied by 18D,5 which sets out exceptions including fair comment if that comment is a genuine belief held by the person making the comment. 18C is undeniably broad, however, so too are the exemptions accompanying it. Effectively, 18C is restricted only to speech that is overtly and maliciously racist.

The legislation has faced significant opposition in recent years, with many calling for it to be amended to remove the words ‘offend’ and ‘insult’. Most critics argue that this language sets the bar too low and imposes an unnecessary burden on free speech. Tim Wilson, Australia’s Human Rights Commissioner, argues that in a Western liberal democracy it must be assumed that all speech is legal unless it is made illegal, and only for good reason – such as national security.6 Wilson argues that 18C effectively does the reverse, providing a blanket ban with permission granted in 18D. Wilson identifies two main issues: firstly, that 18C restricts what can be said at an unnecessarily low level, and secondly that it promotes ‘soft censorship’

through 18D and its exceptions.7 Ultimately, he argues, the law is used to silence dissenting opinions.8 Whatever you might think of Wilson’s analysis he does capture the essence of the critical response to 18C. Namely, that the laws set an unnecessarily low bar on the restriction of speech and that this erosion of rights greatly outweighs what its opponents deem mere ‘hurt feelings’. Regardless of how one evaluates the balance between free speech and protecting minorities, 18C undeniably erodes free speech. Supporters of 18C don’t deny this, rather, that argue such a restriction is outweighed by its benefits.

Each state and territory of Australia has laws remarkably similar to 18C that may be appropriately called ‘offensive language’ laws. Broadly, these laws make it an offence to use offensive language in public.

More often than not offensive language charges are bundled together with other charges that result from police interaction, generally, victims of offensive language are police officers.9 In NSW these laws fall under the Summary Offences Act 1988 s 4A. Section 4A makes it an offence to ‘use offensive language in or near, or within hearing from, a public place or a school’.

Section 4A(2) allows use of offensive language if there is a ‘reasonable excuse’.

A person found guilty of the offence may be fined 6 penalty units, which in 2017 is $660. Effectively, offensive language is a public order law used by police to control people who are being uncooperative.10 What constitutes ‘offensive’ is largely left 23 23

to the discretion of police officers as most people accused plead guilty.11 Such a degree of police discretion erodes free speech. It allows censorship on the streets while simultaneously providing police with a method of social control.

Who is impacted by these laws?

The sets of laws impact two groups of people, 18C aims to protect minorities in Australia from derision, while offensive language laws are supposed to protect all of society. However, in practice offensive language laws tend to protect police while criminalising minorities (especially Indigenous Australians).12 Typically, 18C has operated by preventing egregious racism in our society.

Unsurprisingly, victims tend not to be white. In fact, three of the leading 18C cases involve an Indigenous victim. Clarke v Nationalwide News Pty Ltd13 (‘Clarke’) represents the type of conduct 18C was designed to prevent. In Clarke, Nationwide News published an article about a car crash resulting in the deaths of three Aboriginal children.14 The article brought up the boys’ criminal histories, stated their mothers were ‘hopeless’ and should not breed, and that the deceased boys were ‘criminal trash’ and ‘scum’ that should be used as landfill.15 Barker J found in favour of the plaintiff, he also went on to state that 18C only dealt with ‘serious incidents’ and were not concerned with ‘mere slights’.16 There are however, successful less serious cases.

Eatock v Bolt17 (‘Bolt’) is such a case. In Bolt, Andrew Bolt wrote articles in the The Herald Sun mocking light-skinned indigenous people for ‘choosing to be black’. He also stated that fair-skinned Aboriginal people were not really Aboriginal, and chose to be so identified in order to reap government benefits. While highly offensive, Bolt’s comments here are a stark contrast from those in Clarke. Bromberg J found in favour of the plaintiff, a decision met with outrage from conservatives who argued that Bolt’s 24

comments were well within the confines of acceptable free speech. Despite such outrage, courts have shown a willingness to ensure that prosecutions under 18C meet a certain level of objective seriousness as demonstrated by Prior v Wood.18 Ms Prior brought a claim against three Queensland University Technology (‘QUT’) students who made comments on a satirical QUT Facebook page about white supremacy and used racial epithets after being kicked out of an Indigenous-only computer lab.

The court awarded a summary judgment against Ms Prior, on the basis that the claim had no reasonable prospect of success.19 In contrast, it is Indigenous Australians more than any other group who face the punitive consequences of offensive language laws. As previously mentioned, Indigenous Australians made up 27% of those charged with offensive language, even though they make up around 3% of the population.20 In the Darling River Local Are Command for example, Indigenous women were 103 times more likely to be charged with offensive language than nonIndigenous women.21 Despite Indigenous Australians facing more than their fair share of the punitive side of these laws, they receive little protection from them.22 According to Joanne Lennan, those using offensive language towards Indigenous people (especially police) are rarely, if ever, prosecuted.23 If free speech is to be eroded, then at the very least the laws should provide equal protection to all people. Currently police officers reap the protection while broader society (especially Indigenous Australians) face the punitive consequences.

Race also plays into the process of determining what constitutes ‘offensive’, although it shouldn’t. Typically, courts have determined the standard of ‘offensive’ by looking at the context in which the language was used. A key element of this analysis is examining who heard the language. Courts have been willing to find women and children as particularly susceptible to offence and therefore their

presence is an important factor. However, courts have been less likely to take into account the presence of a woman if she in Indigenous.24 In Commissioner of Police v Anderson25 Sergeant Anderson was charged with offensive language after saying ‘Fuckin’ get over here to me. Why aren’t these fuckin’ messages on the fuckin’ pad?’ to an Indigenous police officer in his department. In that case the court used the context of police culture, but did not examine the fact she was a woman as they have in other cases. This further demonstrates the Indigenous people are not accorded the same protection in virtue of offensive language laws as other groups.

accused, but they lack the protection of these laws as people using offensive language towards them are rarely prosecuted and courts have shown an unwillingness to take the same factors into account as they would when the victim is a member of another group. Fundamentally, 18C and offensive language protect and target different racial groups. Offensive language laws do not pose an equal threat to the free speech of all Australians. In fact, as demonstrated here, offensive language laws erode the free speech of Indigenous Australians more than any other group. Erosion under 18C is effectively reversed, as victims are typically minorities (especially Indigenous people). Why then should conservatives oppose one set of laws but not the other?

Similarities and differences

In this light, calls to amend 18C appear to concern more than just free speech.

If conservatives were only concerned in the right to free speech then they should oppose offensive language laws with the same voracity. However, their silence demonstrates that this opposition is intrinsically linked to race. Unsurprisingly, the loudest advocates for amending 18C are white. It appears that they are concerned with a right to free speech when it affects them, but are less interested when it affects people from differing backgrounds.

The two sets of laws have received very different mainstream treatment. While there has been a huge outcry against 18C, offensive language laws have been met with silence. Offensive language is rarely discussed in the media, and when it is no one decries it for undermining free speech.

However, the laws are strikingly similar.

Both pieces of legislation use the word ‘offend’, the very word that people have campaigned against in relation to 18C. In fact, it is arguable that 18C is actually narrower than offensive language laws because it requires a racial element. Given this striking similarity it seems odd that there is outrage about one but not the other.

The main difference between these sets of laws, is their target and operation.

Fundamentally, 18C aims to protect minorities. It is fair to say that 18C cases rarely, if ever, involve white victims. White Australians are not the primary target of 18C (although they would receive the same protection should they require it). Interestingly, in the cases examined Indigenous Australians were often the victims. In contrast, Indigenous Australians are massively over-represented when it comes to offensive language charges. Not only are they over-represented as those

Conclusion Race is an issue that contemporary Australia struggles with, be it Australia Day or the living standards in remote Indigenous communities. It seems that free speech is another unexpected area for these issues to manifest. However, when similar legislation erodes the rights of different racial groups and there are calls to amend only one – something is astray. 1

25 25

Th of A N

Wailoaloa Beach at dusk, where a plane leaves a light trail across the sky.

To the left is black sand, stained from oil and petrol.

26

he Backyard Australia and New Zealand Land, race and economic development in Fiji

Jonathan Gu Comm/LLB-II

27

‘Bula! From Japan?’

I look up to see a grinning Fijian man in a floral-patterned Bula shirt.

‘Good guess, but I’m from Sydney’, I reply.

We stand near the clouded waters of Wailoaloa Beach at dusk, less than 1km from the runway of Nadi Airport.

‘Ah… Welcome to Fiji’, he warmly exclaims, ‘The backyard of Australia and New Zealand!’

From that evening on the beach, the man’s nonchalant declaration embedded itself in my memory during the rest of my work placement. It seemed almost imperialistic what he said - a strange postcolonial anomaly bred by tourism and globalisation. But he was right - 67% of all visitor arrivals to Fiji are from Australia and New Zealand.1 In nominal terms, tourism has undoubtedly supported economic growth, directly providing 13% of jobs in Fiji2 while comprising 37% of their GDP.3 However, as tourists bring their money, so too do they bring their cultural and experiential expectations, which typically overrides interest in genuine Fijian culture. For young Australians, it surfaces particularly through binge drinking and party culture. Alcohol was never traditionally part of Pacific Islander culture as it was historically traded in by colonial traders as a ‘means of exerting influence over indigenous populations’,4 but expectations of exotic neon cocktails and ‘getting wasted’ on the beach still remain with many Australian tourists. These override interest in Fijian village culture, one rich with familial collectivism through kava ceremonies and lovo or community feasts.5 As these expectations become reality through party culture events like Schoolies, Fiji’s reputation as a ‘party island’ stands firm, feeding the economic machine but arguably distorting the cultural heart.

A boy from Olosara Village collects firewood in the tall grass. Although my work placement focused on farms, I could feel a warm collectivism in most farms and villages I visited. An overall mood of simple and asynchronous living (‘Fiji time’) was strong with all locals. Even when they have machetes in hand.

28

Passengers alight at a resort in the Yasawa Islands.

A dilapidated crafts area at Sigatoka market.

As a strong experiential expectation, many tourists visit Fiji for the sole purpose of relaxing at luxury five star resorts situated near Port Denarau or the Yasawa islands. The former has a waterfront shopping mall clinically evocative of Northern Beaches affluence. The latter is a picturesque archipelago with golden sand, pristine turquoise waters and private islands.

Spatially, these resorts are immensely isolated from the toxic fumes of burning trash heaps and homely scrap metal squalor of many villages – or as the locals say, ‘the real Fiji’.

In the escapism of these resorts, one may easily forget that they are in a developing country altogether – one where many of its own citizens yearn for the opportunity to emigrate to Australia.

29

30

Looking out towards Namaka near Nadi. In many buses, mixes of Western pop music with islander-style rhythm tracks are often played.

31

Cars and trucks speed across Queens Road, one half of Viti Levu’s ring road (the other half is Kings Road).

Stormy clouds are illuminated with an orange glow as three of us wait for a taxi into Sigatoka town for the Saturday markets. It was 6am and almost three weeks into our work placement at an agricultural consulting start-up, which aimed to boost food security through increased yields by providing farmers with science-based advice.

32

An Indian Fijian orders a DVD at Sigatoka town. Globalisation is apparent everywhere, from the Nike and Adidas billboards to the movie posters plastered at a stall like this.

At this stage, we were wellacquainted with the main ethnic groups in Fiji – indigenous Fijians (57% of the population) and Indian Fijians (37% of the population).6 A veiled divide between the two also seemed apparent from our stakeholder interactions.

33

At these markets, we met with a diverse array of farmers, ranging from those deep within Sigatoka valley to those from the other side of main island Viti Levu. Tito, an Indo-Fijian farmer acted as a translator for us, being fluent in English, Hindi and Fijian.

Later as a client, Tito revealed his problems with his indigenous land owners who prohibited drainage on the land due to their fear of altering nature. This situation was consistent with other indigenous Fijian farmers we talked to, who sold wild produce on farms noticeably more submissive to nature, compared to Indo-Fijian farmers who attempted to master their land with planned cultivation. It also further underscored the intercultural differences between the ethnic groups.

Yet this cultural conflict has persisted through history, ever since the colonial indentured labour system designated Indian labourers to Fiji’s sugar cane farms in 1879 following the British Empire’s abolition of slavery.7 From Fiji’s independence in 1970, two pro-indigenous Fijian military coups have overthrown IndoFijian governments, first in 1987 one month after election, and then in 2000.8 The Chaudhry government in 2000 sought land reform policies by changing native land ownership powers, which threatened the relationship of indigenous Fijians to their land as a ‘sacred socio-cultural and cosmological entity’.9 Today, most land in Fiji is owned by indigenous Fijians,10 with many Indo-Fijian farmers like Tito leasing land for agricultural purposes. However, the lack of land ownership remains one of many symbolic barriers to Indo-Fijian belonging and security in Fiji, which persist despite substantial IndoFijian emigration from 51% of the population in 1966 down to current levels at 37% from the 2007 census.11

34

An indigenous Fijian villager sells papayas, eggplants and okra at the Sigatoka Saturday market.

Tito on his hill farm stands indifferent to the torrential rain suddenly pouring in Sigatoka Valley.

35

With these evident deep-seated divides, I’m in no position to suggest solutions – my time in Fiji was limited and I have much to learn more about the nuances of the tensions. Although, one problem clearly affected all Fijians, irrespective of their location or ethnicity – climate change.

A weak sunset glow quickly fades behind a headland as dark clouds swirl over the ocean. I stand on the beach watching as clouds pulse with white and purple flashes, followed by delayed distant rumbles. It’s the last week of my work placement, one week after our house lockdown due to risks of tropical depression TD04F developing into a cyclone.

High altitude lightning strikes the deep into the Pacific Ocean.

36

As we visited Tito’s farm the following day, his low-lying land was flooded. Flash flooding had broken out across Sigatoka, submerging farms, roads and dirtying clean water supplies. During our visit, weather conditions fluctuated multiple times, at times from sunny to fog and torrential rain within 15 minutes.

Climate change has affected everyone in Fiji, as floods, cyclones, droughts, bushfires and coral bleaching increase in frequency and severity - damage from Cyclone Winston alone in 2016 exceeded 10% of Fiji’s GDP.12 From our interviews, most farmers cited weather unpredictability as their biggest problem during operations.

Both indigenous and Indian Fijian farmers recounted stories of how their ancestors for irrigation. This is no longer the case.

Currently, future food security in Fiji is undermined by low crop yields from a calculus of factors, including widespread lack of irrigation technology. But the question still remains - will the unity provided by climate change suffice to override Fiji’s ethnocultural tensions when issues of land modification arise?

Nonetheless, the unity of Fijians in confronting climate change stands in contrast to the vested interests and

denialism in the Australian political environment - an ambivalence that has closed opportunities for climate diplomacy and generated geopolitical tensions with South Pacific nations.

In an increasingly divided world, let’s hope we can find common ground on both our ongoing ethnocultural conflicts and climate change.

If we don’t unify from proactivity, then we will unify as a matter of necessity. But at that latter stage, at what cost will we have paid for unity?

A boy looks out from a passenger truck, three days into tropical depression TD04F. 37

The conflict between

nationality,

race and the Peter Xu INGS/LLB-II

38

law

Nationality, race and its unnecessary legal convolutions Many would classify my life to one not too dissimilar to that of a nomad. Three years after being born in the Chinese city of Shenzhen, I was whisked away to Auckland, New Zealand. After another 15 years of growing up in the land of sheep, I decided to study in Sydney. I have been fortunate enough to be interrogated by a litany of identity questioning wherever I go. In Shenzhen, despite my clothing being behind the eclectic fashion trends of East Asia, people expect me to speak perfect standard Mandarin. When my “whitewashed” Mandarin escapes my mouth, faces of utter confusion greet me. In Auckland, the Western-Asian stereotypes are quick to be imposed on me.

When people find out I am not excellent at maths, failed multiple chemistry tests, and decided to do a law degree with a STEMless International and Global Studies degree they end up in bewilderment too.

In Sydney, telling people I’m Kiwi during small-talk is always entertaining. The moment I say “I’m from New Zealand” people either pause and then continue with the nonsensical sheepish humour (pun intended), or the more confident will fathom a mutter of something along the lines of “ummm… what is your background then?” In this new globalised world, there will be more people like me to confuse the hell out of everyone. What is race? What is nationality? How is each decided? How do people like me cope with this? Using my own anecdotes and research, I will explain the origins of this annoying cultural conflict between race and nationality, uncover its convoluted legal implications and, consequently, advocate that there is an urgent need for a unified global nationality framework.

Where did ‘nationality’ come from?

As illustrated in the Treaty of Westphalia in 1648, the nation-state is primarily a

Eurocentric construct. The idea that one’s identity is coincidentally bound by some borders drawn up by politicians, within which lie a “sovereign state”, is a very newfangled idea. Prior to the Westphalian system, the world consisted of a range of civilisations which each occupied a vague geographic region. The nation-state can be viewed as a contrast to the civilisationstate, a concept mentioned by Martin Jacques in his bestseller When China Rules the World.1 A civilisation state is a state that is not bound by a particular unified political system but, instead, bound by the notion of the existence of a common cultural framework and way of life – this applies well to the Chinese experience due to the assumed existence of Chinese civilisation for two millennia. As a result, the majority of Han Chinese tend to view everyone that has Han Chinese ancestry as Chinese, even if one not only holds nationality from territories such as Taiwan, Macau, Hong Kong and Singapore.

The hegemonic influence of European powers in the last 300 years has resulted in this arrangement being global consensus.

The Westphalian system is also the foundation by which all international organisations and treaties are structured, which has made it logically necessary for each and every single person to be allocated a particular nationality. This framework has resulted in a scenario where one ascertains a plethora of generalisations and stereotypes of how one should act, what one should look like, what language one speaks and what one eats simply from which side of a political border one happens to be born in.

An update to westphalian sovereignty?

With an unprecedented rise in global migration, a multitude of scenarios have arisen in which people are unjustifiably forced to mould into a more socially acceptable “homogeneous” national identity. In order to illustrate this, I would like to use the common case of first 39

generation migration, where a foreign couple moves to Australia in order to raise their children there. I would like to compare the scenario between a Chinese couple and the English couple, and why the latter is more adequately catered and enjoys a significantly smoother integration experience.

The ethnocultural dilemma On the one hand, the ethnocultural identity issues that an English Australianborn child faces pale in comparison to that of a Chinese Australian-born child.

Although the English child’s parents hail from a country which is almost antipodean to Australia, and needed to negotiate an almost 24-hour journey to arrive, the only thing that needs to change for them to be culturally “Australian” is their accent.

Conversely, the Chinese child’s parents hail from a country that is a mere 8-hour journey away and is more economically intertwined with Australia, but their looks will always be a constant thorn in their process of integration into Australian society.

Although their more urban peers at school may be accustomed to this “phenomenon” (this shouldn’t be one), and is considered an Australian by them, in public the default perception is that the Chinese child will speak English with a heavy accent and be significantly culturally different to other Australians. This is ironic, as according to the latest Australian census, the majority of foreign-born people in Australia are now from Asia rather than Europe.2

The legal dilemma On the other hand, the Chinese parents and their child face a significantly more complex legal conundrum than their English counterparts. Both the United Kingdom government and the Australian government permit dual citizenship, since the passing of the Australian Citizenship Legislation 40

Amendment Bill 2002,3 thereby allowing the English family to not only enjoy full legal rights and entitlements in Australia, but also their home country. Conversely, the Chinese government does not permit dual citizenship.4 As a result, the English child, without any hindrance, is proudly allowed to declare that he is both English and Australian. Despite that, the English child will always be asked the perennial question: “Do you consider yourself English or Australian?”. The Chinese child faces an entirely different fate. The Chinese child is forced to juggle between the two.

They may choose to be a Chinese citizen with Australian permanent residency. This will entitle him to live and work in both the growing Chinese economy and enjoy the higher standard of living in Australia.

Alternatively, the Chinese child could choose to fully renounce his Chinese citizenship, giving up his access to the Chinese labour market, but be granted full Australian citizenship. Both “solutions” are compromises. In the former, although the child may be allowed to live and work in both countries, Australia’s permanent residency is relatively restrictive, and therefore prohibits the child from a number of entitlements, such as the right to vote and lendable subsidised tertiary fees. In the latter, although the child may be able to enjoy full rights in Australia, he is no longer able to live and work in his country of heritage.

The Chinese example is not just an idiosyncrasy or a “one-off” case in the global context - a disconcerting majority of countries in the world do not recognise dual or multiple citizenship. In an era where the world is, with a few minor exceptions, mostly at peace, there are few rational reasons, apart from the more nebulous reasons of patriotism, for a nation-state to prohibit dual citizenship.

A solution?

This global inequality in nationality laws is in dire need of universal standardisation.

Currently, the United Nations provide for the issue of statelessness, and give states broad discretion regarding issues surrounding citizenship. Article 15 of the Universal Declaration of Human Rights states that every person has a right to nationality, but does not outline common rules regarding which nationality should be acquired and how the process is conducted.5 There is no universally recognised guide which dictates how nations should naturalise migrant populations and the recognition of previous national identities. Immigrants, who innocently and simply want to take advantage of a newly globalised world, are punishingly confronted with a legal mess of nationality laws. Some countries allow dual citizenship, some don’t.

While some allow citizenship after five years of residency,6 others require 12 years.7 Some hardly allow naturalisation at all.8 This complicated mess is undeniably a hindrance to the process of internationalisation and allowing global human talent to be allocated in an appropriate and fair manner. As a result, I propose that all international organisations discuss and draw up a unified nationality system, eradicating all inequalities and injustices in the status quo. In order to achieve the pipedream of being “citizens of the world”, representatives of each state convening to even think about discussing an agreement would be a welcome first step.

Conclusion I do hope that this article has brought to light the global inequality and inconveniences caused by the disparity between surging globalisation and ancient domestic legal frameworks.

A unified legal nationality agreement will ensure that people with multinational familial backgrounds enjoy celebrated legal recognition rather than a state of limbo and, in turn, permit the eradication of unnecessary legal barriers to the global distribution of human capital. Consequently, this will result in an end to the societal discrimination of those who choose to identify themselves in a “heterogeneous” manner and the beginning of the acceptance of this new normal. d 41

“You Can’t Be Against Yourse

and Other A reflection on my learning and “unlearning” of internalised racism in Australia I went to a high school with the word ‘international’ in the name. We thought we were pretty ‘international’ and therefore were allowed to make edgy racial jokes like ‘of course the selective class is full of Asians—they’re good at maths’ and ‘we’re Asian—we wash dishes by hand even when there’s a dishwasher’. Our reasoning was this: we can make fun of our own race because you can’t be racist about yourself, and that makes it okay.

Ten years later, I understand enough to know that this sort of black and white reasoning is not tenable in the society we live in. The implicit reasoning behind the sort of childish justification we employed relies on the idea that “racism = prejudice + power”.1 That since the racial balance of power in Australia remains tilted towards white people, only whites can be racist. But wouldn’t this mean many of our intuitions are actually incorrect? Is it still racist when a Chinese person calls an Aboriginal person an ‘Abo’, or a Greek person calls a Japanese person a ‘gook’? I believe we need to reject this conception of racism. Blum suggests that while power or social hierarchy does affect how serious a racist incident is, it is not a prerequisite.2 Whilst an intersectional analysis would be fruitful scope for further 42

discussion, this piece will be confined to a discussion of racial issues. In particular, what I want to talk about here is an Asian stereotype that those jokes play into—it is a stereotype that is unique by virtue of its being racial, yet is commonly seen as not racist.

This is the ‘model minority myth’. This is the stereotype that Asians are overachievers who excel in school and in the workplace.

It is the stereotype that Asians are quiet and respectful, obedient to the demands of filial piety, and never disrupt the status quo. Wu writes that the effect of the myth is to grossly reduce an entire panethnicity (Chinese, Japanese, Indian, South Korean, Vietnamese, Pakistani etc.) into a number of purportedly ‘Asian’ characteristics, to imply that any ‘aberrant’ Asian is failing in some way, and to deny that Asian people can still experience racial discrimination because it’s a ‘positive stereotype’.3 In Australia, the model minority stereotype inflames fear towards Asians buying up real estate and businesses, and taking jobs that are for ‘real Australians’. This sentiment stems from the White Australia Policy in the nineteenth and twentieth century, when the term “yellow peril” was used to refer to Australia being ‘flooded’

Racist elf!”

Nina Mao Arts/LLB-IV

r Myths and Legends with Asian immigrants. Europeans in Australia were fearful that these Asians would take their jobs, harm moral wellbeing, and cause living standards to erode.4 Even after the formal dismantling of the White Australia Policy in 1973, and the enactment the Racist Discrimination Act 1975 (Cth) and the Anti-Discrimination Act 1977 (NSW), it is debatable as to whether such sentiments have been truly eradicated. Whilst such laws effectively promote equality of race in formal procedures and structural institutions, I hesitate to ascribe similar success in more cultural, micro, day-to-day contexts.

Personally, I have rarely encountered outright racist incidents, which speaks to my relatively privileged upbringing.

My sense of alienation is from more these ‘behavioural’ aspects of social life which are likely related to the fact that I ‘look Asian’. I sense that there is a concept of ‘white Australia’ that involves certain cultural practices or traits like being sporty, enjoying the footy or cricket, downing schonners, and so on.

This is a stereotype. And the difference between an Asian stereotype and a white Australian stereotype is that one has social

capital and the other does not. I do not relate to this concept of white Australian-ness, and thus this cannot help but exclude me from enjoying such social capital. Whether true or not (and stereotypes often aren’t), these are the (white) images presented to you in media and advertising. When I was growing up I wanted to be ‘more like’ the white Australian and less like the ‘Asian’ Australian. I wanted to be good at sports (but not, like, badminton obviously). I feared being seen as quiet and studious. I preferred not to bring rice for lunch so I brought sandwiches. It shames me to say now that I was even embarrassed at times that my parents ‘sounded Asian’ when they spoke to other parents or to my teachers.

This is the reality of the model minority stereotype. Every positive characteristic of the model minority myth has a darker side.

Don’t be too book smart, or you’ll be a bad leader and creator. Don’t be too polite, or people will step all over you.5 Now, is the model minority a racist stereotype? The general presumption is usually: ‘if it is, then it matters, and it’s bad’ or ‘if it isn’t, then it doesn’t matter, and why are you kicking up a fuss about it?’ Yet Blum criticises this black-and-white approach and notes that the severe moral 43

44

condemnation attached to the term ‘racism’ limits its use to more serious cases, but this does not mean everything else is unproblematic and does not need to be addressed.6 He instead proposes a more nuanced vocabulary to be employed in such discussions, where racism refers to “phenomena deserving of the severest moral condemnation”.7 This ‘phenomena’ that can be separated into two types: inferiorisation (treating certain groups as inferior to others); and antipathy (hostility or hatred towards certain groups).8 Other incidents may be termed “race-related ills” such as “racial insensitivity”, “racial ignorance”, “racial discomfort”, and so on.9 Non-Asians might say that this stereotype makes Asians look good, so what is there to complain about? It is diminishing to attribute someone’s accomplishments, academic or otherwise, to their race.

Instead of hard work, it just ‘came naturally’ to them as part of their genetic makeup.

It also suggests Asians who do not fit the model minority are ‘aberrant’ and ‘bad at being Asian’. The modern model minority myth may not be inferiorising but it does induce antipathy.

To return to an example I cited above regarding Asians and real estate, a Credit Suisse report found that foreigners purchased 25% of new housing in NSW, with Chinese purchasers accounting for 80% of foreign demand.10 While there is competition between Chinese and Australian buyers for housing, the situation is more nuanced. Part of why the media has latched onto ‘rich Chinese buyers’ is not only because as the general cause of increased home prices is because historically the Chinese have been portrayed as invasive and alien. The narrative is compelling. The narrative creates antipathy.

Another example is the belief that overlytalented Asians are occupying all the selective school spots that should go towards more deserving ‘Australians’ instead. Is the model minority stereotype

serious enough to deserve the most severe moral condemnation? Certain individual manifestations of the stereotype may reach that threshold, but not all. That is not to say that the stereotype should not be blown open. It is a racial stereotype that grossly simplifies minority groups and causes them psychic harm. I grew up in South Australia, where selective schools aren’t as common as in Sydney, but we did have selective classes at our school. Looking back, the sort of stereotypical ‘cliques’ that emerged were the ‘popular kids’, the ‘nerdy Asians’, the ‘oddballs’, and us (the Asian girls). To be honest, we were probably part of the nerdy Asians too. I remember joking that it was weird that the really popular kids were also really good at school—like you could only choose one or the other.

Looking back, the implicit assumption was: it’s weird that the (white) popular kids are really good at studying (because you can only be good at one thing, and only Asians are the smart ones). This sort of thinking is limiting—for everyone involved.

A study by Gelber and McNamara found that while victims of racial abuse are unlikely to lodge complaints under federal or State racial vilification laws, they see the laws themselves as a powerful symbol of the government’s stance against racial vilification in support of the victims.11 Formal legislation is unlikely to be able to address internalised beliefs and behaviours however, as the ‘racism’ takes place within. This seems to require more than a preventative approach (as the law takes) and instead an education-based approach to recognise and unlearn such beliefs.

Nowadays, I try not to deliberately mould myself out of or into racial stereotypes. I find that I’m more aware of when certain incidents are likely to be racial or racist.

It might be that I’m only able to articulate how I feel now that I have the vocabulary for it. It’s not my individual responsibility to get rid of the stereotype by acting in the opposite way, but I think it does fall on me to point out the harmful effect of the stereotype if the situation arises.

45

Breaking bamboo c

how you and

diversity of the

46

the ceiling

d I can shape the

legal profession.

Jennifer Ma JD-II 47

Despite being buried in mountains of readings and being distracted by exams, it’s hard to truly push the consternation of clerkships, and getting a graduate role, out of your mind. We all know how stressful this time of the year can be. Even some who weren’t interested to begin with get sucked in to the pressures of applying for them. My semester was filled with cocktail evenings, information sessions, trying to figure out what firms want, other than someone “well-rounded” and with “business acumen”, and unfortunately, the anxiety of self-doubt. The doubt stems from witnessing the seldom spoken about “ceilings” in the legal profession. Success as a lawyer seems to involve being part of a niche group, in which I, and other people from cultural minorities, are not a part of. The lack of cultural diversity in top positions embeds counterintuitive values across minority groups in Australia – values which were ingrained in my father, a migrant from China. The significance of race in determining my ability to be successful was instilled in me when I dared to share my career aspirations with him.

did not trust Chinese lawyers. But where did he get this idea from? The trust within a client-lawyer relationship, or the decision to hire someone should not rest on the basis of race. At the time, I took his word for it and believed that the difference in the colour of my skin, and cultural origin, was a definitive bar to me ever being a real life Atticus Finch.

Somewhere along the line my father’s words lost their grip on me. I defiantly told myself that his words may have rung true when he came to Australia thirty years ago, but I live in a different world. I live in a more accepting world, in which the colour of my skin would not define me. And so here I am; studying law like I’d always wanted to. Yet clerkship season has shown me a ubiquitous image of success that does not seem to involve being part of a cultural minority. As the stress of getting a graduate job looms closer, the fear that there is truth to my father’s forewarning grows.

The reason why I wanted to study law isn’t a unique one. In fact you’ve probably heard it before, from someone in your “Foundies” class. As the credits rolled at the end of To Kill A Mockingbird, and my eighth grade English teacher brought me back to reality with the flick of a switch, a seed was planted in my head. I wanted to be a lawyer. I wanted to fight for those who had been treated unjustly.

The hard truth is that the top jobs in the legal profession are composed mainly of those from Anglo-Celtic backgrounds.1 First, let’s look at the judiciary in Australia – one of the most important arms of justice.

There is a lack of official current figures, but older statistics show that only 3.6% of judges were from a background other than Australian, English, Irish, Scottish or “Other European” backgrounds.2 More recent statistics show Asian Australian lawyers comprise only 0.8% of that statistic.3 These numbers are problematic.

For a long time I had put this dream aside, because my father said my race is the reason why I was being unrealistic. He said I shouldn’t be a lawyer because I’m Asian.

He had this erroneous notion that people

Though speaking about gender diversity, Justice Kiefel’s argument for the importance of diversity in judicial roles also applies to cultural diversity. The quality of justice available improves

48

when you have someone who can “offer something different”.4 Someone who can empathise, and administer the individualised justice our system needs.

Looking at the private sector, a 2015 study in to six large law firms found that there were no Asian Australian partners.

The report also found that only 3.1% of partners in other firms, and 1.6% of barristers, were Asian Australians.5 The abysmal proportion of Asian Australian lawyers in those roles is not itself indicative of broader systemic issues. But combined with the fact that there has been a fast growing proportion of lawyers from Asian Australian backgrounds,6 the numbers hint that race matters, but in all the wrong ways.

There has been no research into the reason behind this underrepresentation.7 But, I refuse to believe that a meritbased system of appointing judges, and giving promotions, leaves us with a disproportionally low number of lawyers in cultural minorities being considered qualified enough to be a judge, or partner.

And perhaps some sort of ethno-cultural ceiling really exists.

I’m sure you’ve heard the term “bamboo ceiling” thrown around somewhere in the discussion of jobs and race. It is the so-called Asian equivalent of the glass ceiling, which has kept women out of positions of power for so long. The term was coined in Jane Hyun’s book, ‘Breaking the Bamboo Ceiling: Career Strategies for Asians’, in which she explores the factors that impede on Asian Americans’ career progression within organisations. The factors comprise of a number of negative stereotypes often attributed to Asian

Americans, including the assumption that they “lack leadership skills” and have “poor communication abilities”. If this bamboo ceiling is real, and the statistics are evidence of it, I’m left wondering whether I’m fighting a losing battle.

I’m not the first to question the lack of cultural diversity in leadership positions.

A google search of the words “bamboo ceiling”, or “cultural diversity” and “lawyer” will lead you to articles discussing the broader ethno-cultural issues in the legal profession, and the need to “harness the power of multiculturalism in society” and have more cultural diversity in leadership positions. The question for you and me is what are we going to do to achieve this?

Maybe it’s as simple as deconstructing the social construct of race. A logical fallacy can be overcome by acknowledging it.

Atticus Finch had it right a long time ago, when he said “You know the truth, and the truth is this: some Negroes lie, some Negroes are immoral, some Negro men are not to be trusted around women - black or white. But this is a truth that applies to the human race and to no particular race of men. There is not a person in this courtroom who has never told a lie, who has never done an immoral thing”. My father believed and accepted that race was the basis of some social hierarchy, at which we were at the bottom. The best thing I did was refusing to accept it.

The start of my legal career is still out of arm’s reach. But when I can finally grab it, I hope I can climb as high as anyone else and break straight through that bamboo ceiling. Bamboo is hollow after all.

49 49

us before them An exploration of the Resurgence of Nationalism and the Repercussions on the Rule of Law in South-East Asia

Anh-Tuan Nguyen & Brent Liang Comm/LLB-II Econ/LLB-II

50

Burmese girl in the markets

Introduction Our society works best where voices can be heard and there is a systematic and transparent basis for the law to operate. Yet, given the prevailing attitudes of distrust towards the media and international law, what is often misunderstood, is the role and legitimacy of a free-flowing media in upholding the rule of law and ultimately facilitating the day-to-day function of civil society. Whilst the concept of fully-fledged democracy may be a shaky topic to most of South-East Asia, our focus on the region’s perception of free press and political dissent will demonstrate the troubling trend of government repression. The feeble international response only reinforces how nationalistic and populist views have left these emerging nations with neither direction nor public discourse on the issues that matter most.

‘The Rule of Law has been referred by the UN Secretary General Kofi Annan in his 2004 report as the principle of governance in which all persons, institutions and entities including the state itself, are accountable to the laws that are publicly promulgated. It aims to ensure adherence to the principles of supremacy of law, equality before the law and the avoidance of arbitrariness through procedural and legal transparency.’1

51

Boxed in - China When looking at China, their immobile stance on the righteousness of their sovereignty, is one of the iconic features of the nation. Although China is economically verging on becoming one of the newest developed nations, their repressive attitude towards free press and treatment of those who challenge the judicial system sheds a different light. Exemplified by the stubborn attitude displayed at the 2016 ruling at the Permanent Court of Arbitration in the Hague regarding the South China Sea, China remains a major economic and political player in the SouthEast Asian region. Yet, by acting contrary to the rulings, China sets an example for the region to ignore international bodies designed to promote global peace and harmony.2 With his rhetoric of ‘restoring the national pride’ and bringing back ‘the old times’, President Xi’s vision of China 2050 is seen by many as hot-headed jingoism masqueraded as economic reform.3 This is especially alarming as public sentiments in China are notoriously wavering – a judicial Armageddon. Since it remains an open secret that the People’s court is only nominally independent, the prevailing attitude has been to blame the judges and the government for each case not decided in the interests of the public. The courts, which ingest such transient community attitudes, are placed in an increasingly difficult position.

who had held him and his mother captive over an unpaid debt. Many were convinced that Yu’s killing of the gang leader in the scuffle that ensued constituted selfdefense, and a life sentence was manifestly unjust.6 While such conjecture resembles ‘substantive justice’ more than ‘social justice’, the prevalent public opinion and judicial antagonism did pressure the court to hand down a much shorter sentence on appeal.7 Those who advocate for the government to take greater heed of the need for procedural fairness and respect for international principles of human rights have little influence and standing in the Chinese society. Described as a ‘covert’ and ‘methodological’ policy of gradually limiting the space for advocacy, lawyers are often forced to operate in an unpredictable legal environment where there is an inherent expectation that they learn to navigate it.8 The reliance of the government on extra-judicial means of achieving their political interests raises the question of the legitimacy of the law.9

Sunset over the bay

The numerous instances of selective justice in China have been consistent with heightening public distrust towards law enforcement agencies.4 In the famous case of Lei Yang, in which a graduate of the prestigious Renmin University of China mysteriously died in custody, the court exonerated the police for the ‘minor offence’ and ‘signs of contrition’.5 Such public uproar was echoed to a greater effect in the case of Yu Huan, a legal saga in which the son of an indebted mother was given a life sentence for killing a gangster 52

Change in China, as a result, must take place within society. With the inability of traditional media sources to expose the failings of law enforcement agencies and governments, the Chinese people have looked beyond conventional means of legal practice and achieving justice. Lawyers no longer win cases through advocacy but through their capacity to use modern mediums such as social media to promote

transparency and resist the arbitrary nature of the present judicial system.10

The people without a state – Myanmar In Myanmar, a different picture is captured through nationalism, which, like the serene ecosystem that the nation is surrounded by, remains untouched despite the country dangerously veering towards a humanitarian crisis. For years now, the persecution of the Rohingyas, an ethnic Muslim minority group in Myanmar, has left the international community in a state of compassion fatigue.11 Public bashing, forced evictions and active discrimination in daily activities is the norm for many Rohingyans.12 In 2011-13, it was reported that up to 100 000 Rohingyans were made homeless.13 Yet, foreign intervention is shunned and avoided, as the fledgling democracy struggles to balance its diverse ethnic groups and the agenda of influential and dominant religious and militant institutions.

It seems ironic that these issues are still prevalent despite the mass reform in 2011 after President Thein Sein took to office, that alleviated former legislation which advocated for mass censorship within Burma’s media.14 Yet, their current position has been inevitable given their lack of participation with international treaties.

Myanmar is yet ratify crucial legal tools that promote the development of the rule of law such as the International Covenant on Economic, Social and Cultural Rights nor are they yet party to the International Covenant on Civil and Political Rights (ICCPR).15 What is common amongst the resurgent nationalism in these South-East Asian nations is the fear-mongering that is forcibly ingrained into the psyche of the populous. The catalyst to recent divisive events in Myanmar’s recent history such as the 2012 riots, have been proven to be fabricated.16 However, the rhetoric of the

Buddhist majority in Myanmar is one of resentment and hatred, perpetuated by the ‘atmosphere of violence, fear and mistrust’ and exacerbated by the apathy of the government to the plight of the Rohingyas.17 Described as an imaginary world where Buddhism is under threat by aggressive Muslim conversion, Myanmar is quickly evolving to form a testament to the dire consequences of poor communication by the political leadership.18 Nationalism in Burma has moved beyond the state of misguidedness. The head of the UN High Commission for Refugees John McKissick amongst numerous experts have gone as far as purporting that the displacement and ‘intimidation campaign’ against the Rohingyas amounts to ethnic cleansing.19

Ethnic cleansing is defined as a ‘purposeful policy designed by one ethnic group or religious to remove by violent and terror-inspiring means the civilian population of another ethnic or religious group from certain geographic areas.’20

Perhaps the actions of some extreme nationalist groups in Burma are simply a product of the simmering anti-foreign sentiment that has persisted through the nation’s history.21 Yet, unlike China, Burma’s experience and history with democratic values is still in its fledgling years. As a result, they are very much a nation on the road to progress, when it comes to having the key elements of an accountable and transparent legal system such as a well-trained civilian police force and journalists.22 On a global scale, it seems all too familiar given the negative portrayal of the Muslim community that has grown in recent years to which the world has become accustomed and through its inaction, become complicit.

53

Drifting boats by the rivers

54

55

The unspoken right and wrongs – Vietnam It is often difficult to distinguish the instances of repressive governance in Vietnam from those in China due to the frequency of breaches of procedural fairness and questionable government approaches to any form public challenge or dissent. Although party to many international covenants and treaties including the ICCPR , both international and domestic laws have become the tools of state control against alleged breaches of human rights.23 Notably, this has been evident through the rising number of detained dissenting journalists and socalled ‘prisoners of conscience’.24 The laws that have been applied to restrict journalists and bloggers alike are vague and inconsistently applied when looked at on a case by case basis.25 This facilitates the arrest of many peaceful online activists and human rights advocates, who are detained for up to two years without legal counsel, under the Vietnamese Criminal Procedure Code.26 More often it is for more progressive rather than the typical corruption claims such as protesting against environmental destruction. Nguyen Ngoc Nhu Quynh’s arrest (who runs by the alias Mother Mushroom), was highly publicised example globally, partly due to her work protesting the Fermosa crisis and the sleepish government reaction to the foreign perpetrators.27 The strength of such suppressive laws and governance has come from the shadow of nationalistic fervour that has in recent decades become present in even the most developed civil societies. Yet Vietnam still experiences internal strife between actions made in the national interest, and the selfish, self-sustaining measures of the current government. While there is rising antagonism within sections of society against the threatening territorial advances of China in the South China Sea, this contrasts with the more than 112 vocal journalists who are serving prison sentences for exercising their rights to 56

basic freedoms.28 However, Vietnam is not alone. It is among many South-East Asian governments that have used national interests as a repeated justification to restrict civil liberties when the ruling party authority has been placed under the mildest form of scrutiny.

Reflections by the temple

There is little that the international community can do to curb the Vietnamese government from these authoritarian tendencies, given the prevailing nationalistic attitudes discrediting the value of foreign pressure and values. Conventional news outlets such as radio and newspaper are state-controlled for the most part. Western news channels such as BBC and CNN are often suspended by the State controlled cable service providers.29 Even influential nations such as France, have been unable to reverse the Vietnamese government’s instances of arbitrary decision-making, as shown in their recent decision to revoke the Vietnamese citizenship of human rights activist and French-Vietnamese dual citizen Pham Minh Hoang.30 This obstinacy prevents progress and redress to the many

prisoners of conscience still detained in Vietnam. However, in other regards, such as the 2016 removal of the US-Vietnam trade embargo that had existed since the Vietnam War, Vietnam’s draconian restrictions on their media outlets has been empowered by the ignorance of the international players.31 The embargo had not been lifted till then due to the poor human rights record of Vietnam.32 The result of this, is the reduced reliance

by Vietnamese activists and journalists on foreign bodies for support leading to further isolation and limiting the reach of international law. This is consistent with the view by some academics that antiforeign nationalism has simply diverted attention away from the domestic problems of Vietnam in the short term. The result is something murky – that makes it difficult for commentators and the international community to take sides.

Conclusion Where there is no room or freedom to voice wrongs and rights within society, it is difficult for a fair, equal and balanced legal system to grow and thrive. The law, as apparent in South-East Asia. has become politicised to the point that the everyday decisions of citizens become ultimatums - a view of ‘us against them’. That is the inevitable outcome, when nationalism becomes the tool of social control rather than progress. Our concern should be this parallel development in Western nations and Australia; where the media is discredited and pursuing the truth is perceived as a fruitless endeavor.

All photos have been taken by Brent Liang and then edited by Anh-Tuan Nguyen.

57

Moral Panic Folk Devils: Gangs in Introduction In 2013 a spate of shootings in Western Sydney brought Middle Eastern Organised Crime to the attention of the Australian media. There was heightened concern over the potential threat that this crime posed to the rest of society. This essay will examine the media and political responses to gun crime in Sydney prior to the introduction of Firearm Prohibition Order (‘FPO’) search legislation by applying Goode and Ben-Yehuda’s conception of Cohen’s moral panic theory, concluding that the amendments to Section 74 of the Firearms Act 1996 (NSW) was a disproportionate response to a moral panic.

The wording of the statutory provision will be examined to determine scope and the intended effect of the law. This will be contrasted with the practical application of the law to determine the actual scope of the law.

I will conclude that these laws cannot be necessary because the problem was a product of a moral panic. If they were necessary, the laws were not proportionate due to the substantial abrogation of the rights of FPO subjects. This represents a significant departure from the rule of law.

58

and

Carly George JD-III

and Gun Terror Western Sydney Background As a result of increased media attention surrounding gun crime in Western Sydney, firearm legislation was amended to introduce broad search powers where a person was subject to an FPO. The FPO forms part of the rich tapestry of the NSW criminal legal system. The Firearm Prohibition Order was originally introduced under Section 69 of the Firearms and Dangerous Weapons Act 1973. The Firearms Act 1996 (NSW) imposed stricter controls on the use and licensing of firearms.1 The current legislative framework has retained the FPO. The only precursor for an FPO to be made was a determination by the Commissioner, and that the subject was served with the order by a police officer.2 An amendment was then made in 2013 in response to gun crime in Sydney and an array of shootings in the prior 24 months. Broad search powers were enacted under Section 74A of the Firearms Act 1996 (NSW) (‘the amendments’). The manner in which the FPO is made is highly arbitrary. This authority to make orders has been delegated to any officer of the Police Force ranked as an investigator or above.3 There are no other criteria which form the basis of an FPO. The application of FPOs is entirely discretionary. Section 74A created broad search powers which enable police to search a person subject to an FPO where it is considered ‘reasonably required’, without a warrant. This section allows police to search the FPO’s subject, premises, or car, but does not specify, with clarity, when a search will be justified. The ‘reasonably required’ criteria has therefore been criticised as unnecessarily broad and undefined.4 59

Moral panic?

Moral Panics form when a ‘condition, episode, person or group of persons emerges to become defined as a threat to societal values and interests….[this] is presented in a…stereotypical fashion by the mass media’.5 Cohen proposes that social problems may be overrepresented in the media, and by politicians, out of proportion to their pervasiveness or the actual threat that they pose.6 Cohen terms the group held to be responsible for the behaviour as ‘folk devils’. These folk devils are demonised; reminders of what we should not be.7 This theory of ‘moral panic’ was further developed in 1994 by Erich Goode and Nachman Ben-Yehuda. There are five characteristics which are essential in the formation of a moral panic:

I. Concern Concern is defined by Goode and BenYehuda as a heightened level of attention over behaviour of a societal group.8 Heightened concern over gun crime in Western Sydney is evident from the increased media attention leading up to the 2013 amendments.

A study of media articles in the years before the 2013 amendments was conducted for the purposes of this article. Using the Factiva database, a search was performed using the following key terms: “shooting” AND “Sydney” AND “crime” AND “gangs”.

Results were surveyed from each year, and while not all records related directly to the topic, the majority had strong links.

Reliability would have been improved had these results been compiled manually by examining each article. Despite this, the results are significant enough to provide an understanding of media reporting before the amendments.

Generally, newspaper articles in this period focused heavily on the alleged ‘war’ that 60

was raging on Sydney’s streets, using violent rhetoric and narrative journalism to construct vivid stories which engaged readers. These stories were anecdotal and lacking in statistical data. Where data was provided, it was often heavily weighted against the targeted folk devils.

Reports also included numerous news articles on the effort to tackle gun crime in Sydney. Many articles followed government and police organisations as they responded to the perceived threat. Sensationalised headlines were used to excite the public: ’Gang up on Gunslingers’ featured in the Daily Telegraph, documenting the 23 specialist police and civilians working to gather intelligence.9 Many of the articles brandished fear-invoking titles such as, ‘Fighting a reign of gang terror’,10 ‘Gun crime an evil disease’,11 ‘Merchants of death’,12 and ‘Drive-by shots a wake-up call’.13 Many of the subjects of these articles were men of Middle Eastern descent, or the operations of the Middle Eastern Organised Crime (‘MEOC’) squad. The media’s use of emotive language encouraged a political climate of fear that legitimised political action through law reform.

II. Hostility There must also be an increased level of hostility ‘toward the category of people seen as engaging in the threatening behaviour’.14 The folk devil, for the purposes of gun crime in Sydney’s Western Suburbs, were Middle Eastern Organised Crime gangs. This was typified by the creation of the MEOC Squad. The MEOC Squad are the only organised crime directorate which investigate crimes committed by a homogenous, identifiable group, namely those Middle Eastern heritage. Prior to this, an Asian Gangs Squad, which was disbanded due to a decrease in ‘Asian crime’, was the only other similar directorate.15 A clear divide is created between ‘us’ and ‘them’ through the categorisation of threat, stereotyped to derive almost exclusively from the

Middle Eastern group because of constant media reports on the MEOC directorate responding to an increase in gun crime.

III. Consensus Some portion of society must be in consensus that the threat posed by this group is significant, serious, and caused by the folk devils and their behaviour.16 Consensus may be derived from the volume of media articles written on this subject.

Furthermore, Hansard speeches quoted anecdotal evidence that people no longer felt safe in their communities with regard to gun violence.17 Despite this, consensus is difficult to prove without access to public opinion polls.

IV. Disproportionality and volatility Disproportionality and volatility of concern in relation to actual harm are also fundamental aspects of moral panic.18 There was a marked spike in media articles on gun crime from 2009- 2013, especially in 2012, the year before the introduction of the FPO search powers.

Approximately 360 articles were published in 2012. The panic spiked in 2012 and dissipated in 2014, demonstrating the volatility of the concern. The volatility of a moral panic is an essential precept of Goode and Ben-Yehuda’s conception of the theory.19 Panics are inconsistently represented in the media and reporting is rarely sustained once the panic has subsided.

If we contrast the media attention with crime statistics relating to ‘prohibited and regulated weapons offences’ from this period, it becomes evident that this concern may be disproportionate with the actual harm. Figures were gathered from BOSCAR relating to the incidents of prohibited and regulated weapons offences. While the circumstances of each event are not accessible, it is possible to

deduce that from 2007- 2012, recorded incidents involving prohibited and regulated weapons offences remain stable with minor variation. Dr Don Weatherburn, director of BOSCAR, asserted that the claim that shootings had soared was incorrect; non-fatal shootings peaked in 2001 and then began to fall. Crimes where guns were discharged into premises increased from 2001-2012 but began falling in 2012.20 There is no significant evidence to suggest that gun crime had increased in 2012-2013.

According to statistical data provided by the Australian Institute of Criminology (‘AIC’), the incidents of homicide by firearm were significantly lower than that of homicide involving a knife or sharp object, which remained stable over the entirety of this period.21 Therefore, the objective harm of gun crime is disproportionate to public concern.22

Failure to address the concern Searches are vastly ineffective as only 2% of searches found incriminating evidence.

•

• • •

Charges were laid against 11 people as a result of 642 searches conducted on vehicles or persons in this period.

10 were FPO subjects.23 25 charges were proved from the above searches.

Of the 25 charges, 6 charges related to drug charges. 16 related to driving and license offences.24 Searches only found firearms or related paraphernalia in 1 of 642 searches recorded in the first 22 months of operation.

Evidently, this has not been effective in actively prosecuting firearms offences.

Searches were more likely to be used in relation to drug offences despite the objectives of the legislation. However, it is noted that the effectiveness of Section 74A as a deterrent has not been studied.

61

Necessary and proportionate?

Allowing a person to be searched at any time ‘without the reference specifically identifying all of the criminal offences and particular persons to be targeted’25 significantly widens the reach of the State into the private lives of its subjects. FPO legislative changes introducing the new search powers were justified on the basis that there was an organised crime gun epidemic threatening the lives of innocent people. This was not founded in fact.

None of the statistics at the time indicated that there was a significant increase in gun crime or charges related to firearm offences. Therefore, the necessity of the powers are questionable.

Even if the necessity of the laws could be justified, the proportionality remains questionable. These searches, where not properly regulated and defined have the potential to infringe on basic right of freedom from arbitrary or unlawful interference with the FPO subject’s privacy, family, home or correspondence.26 A person may be searched based on the recommendation of a police officer even though warrants are not difficult to obtain if there is sufficient reason to search a person or their premises. Warrants are a check on police power and are a protection of the rights of individuals because the right to freedom from unlawful interference is so fundamental. This narrows the right to have searches challenged in court.

Another practical concern with the implementation of FPO search orders is member of the Police Force, despite their

62

police control over the process. Candidates for the orders can be nominated by any rank. An FPO can be made by a member of the Police Force ranked Inspector or above.27 The searches are carried out by police officers. The review of FPOs is delegated to both NSW Civil and Administrative Tribunal, and the Police Commissioner.

Therefore this broad discretion to search is controlled almost exclusively by the NSW Police Force, which may be agreeable for practical reasons, but does not provide legal certainty.

Conclusion The threat of gun crime in Western Sydney was a moral panic. FPO searches were introduced, resulting in broad and unfettered search powers. Where searches are unjustified, there is no adequate immediate recourse, because there seems to be no significant limits on this power.

The effect of Section 74A of the Firearms Act 1996 (NSW) is a widening of police powers and discretion, without adequate recourse for the accused. Arbitrary laws without accountability mechanisms can create feelings of injustice, which may increase disdain towards the law.28 There is a need for accountability in the exercise of public functions to ensure public confidence.29 This is particularly pertinent where the powers infringe on the rights of citizens, such as search powers or powers to restrict the liberty of citizens. Therefore, these orders go too far in abrogating the rights of individuals.

63

reference list 64

Could I Be More British?

Sophie Wakefield John Anthony Cramer, A geographical and historical description of ancient Italy: with a map, and a plan of Rome (Clarendon Press, 1826)

1.

Joseph Barber Lightfoot · St. Paul’s epistles to the Colossians and to Philemon (Macmillan, 1875)

2.

James G.Peoples, and Garrick Alan Bailey, Humanity: An Introduction to Cultural Anthropology (St. Paul: West Pub. Co, 1991)

3.

“ethnic, n. and adj,”. OED Online. June 2017.

Oxford University Press. http://www.oed.com.ezproxy1.library.usyd.edu. au/view/Entry/64786?redirectedFrom=ethnic (accessed July 23, 2017)

4.

Jillian Kramer, “(Re)Mapping Terra Nullius: Hindmarsh, Wik and Native Title Legislation in Australia.” International Journal for the Semiotics of Law - Revue Internationale De Sémiotique Juridique 29, no. 1 (2016): 191-212.

5.

Gillette H. Hall and Harry Anthony Patrinos.

“Introduction.” Chapter. In Indigenous Peoples, Poverty, and Development, edited by Gillette H. Hall and Harry Anthony Patrinos. Cambridge: Cambridge University Press, 2012. doi:10.1017/CBO9781139105729.001.

6.

D. Lavery, “The Participation of Indigenous Australians in Legal Education.” Legal Education Review 4, no. 1 (1993): 177

7.

Heather Douglas, ‘This is not just about me’: indigenous students’ insights about law school study [online]. Adelaide Law Review, The, Vol. 20, No. 2, 1998: 315-348. Availability:<http://search. informit.com.au.ezproxy1.library.usyd.edu.au/ documentSummary;dn=990909610;res=IELAPA> ISSN: 0065-1915. [cited 17 Jul 17].

8.

9.

Ibid, 16.

Weisbrot, David --- “Recent Statistical Trends in Australian Legal Education” [1991] LegEdRev 11; (1990-91) 2(1) Legal Education Review 219, 48

10.

11.

The Weekend Australia, Citizenship Changes revealed : Fleunt English, Four years of Residency, Australian Values, http://www.theaustralian.com.au/national-affairs/ citizenship-changes-revealed-fluent-english-fouryears-of-residency-austr alian-values/news-story/47a5be9d81ba98145673c fd65fa44c85

Weisbrot, David --- “Recent Statistical Trends in Australian Legal Education” [1991] LegEdRev 11; (1990-91) 2(1) Legal Education Review 219, 48

10.

The Weekend Australia, Citizenship Changes revealed : Fleunt English, Four years of Residency, Australian Values, http://www.theaustralian.com.au/nationalaffairs/citizenship-changes-revealed-fluentenglish-four-years-of-residency-austr alian-values/news-story/47a5be9d81ba98145673 cfd65fa44c85

12.

See Doyles’ Guide to “ Leading Native Title Lawyers: Australia 2016” dated 16 Jan 2016, http://doylesguide.com/leading-native-titlelawyers-australia-2016/

14.

10.

11.

12.

13 Australian Human Rights Commission, “ About Consitutional Recognitition” https://www.humanrights.gov.au/publications/ about-constitutional-recognition

Skloot, above n 1, 165-168.

Oxford University Press, English Oxford Living Dictionaries (at 13 July 2017) ‘informed consent’

11.

Washington, D.C.: U.S. Government Printing Office, Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No. 10, (1949) vol 2, 181-182.

University of Maryland, Tuskegee Institute (2011) <http://fyb.umd.edu/2011/tuskegee. html>.

13.

Centers for Disease Control and Prevention, Presidential Apology (16 May 1997) <https:// www.cdc.gov/tuskegee/clintonp.htm>.

15.

Skloot, above n 1, 127.

16.

Ibid, 128.

13.

Gartler, Stanley, ‘Apparent HeLa Cell Contamination of Human Heteroploid Cell Lines’ (1968) Nature 217, 750-751.

17.

McKusick, Victor et al, ‘Genetic Characteristics of the HeLa Cell’ (1976) 4425 Science 191, 392-394.

18.

Henrietta Lacks: A Case Study in Bioethics and Race The untold stories of African Americans in Western medical research Anne Hu Skloot, Rebecca, The immortal life of Henrietta Lacks (Crowns Publisher, 2010) 30.

1.

2.

Collins, Francis, ‘HeLa Cells: A New Chapter in An Enduring Story’ (2013) National Institutes of Health Directors Blog, <https://directorsblog.nih. gov/2013/08/07/hela-cells-a-new-chapter-in-anenduring-story>.

National Cancer Institute, National Cancer Act of 1971 (16 February 2016) <https://www.cancer. gov/about-nci/legislative/history/national-canceract-1971>

4.

Skloot, above n 1, 250.

(51 Cal. 3d 120; 271 Cal. Rptr. 146; 793 P.2d 479)

6.

7.

Ibid.

8.

Ibid.

Mckie, Robin, ‘Henrietta Lacks’s cells were priceless, but her family can’t afford a hospital’, The Guardian (online), 4 April 2010 <https://www. theguardian.com/world/2010/apr/04/henriettalacks-cancer-cells>.

9.

20.

Skloot, above n 1, 148.

Ibid, 33.

3.

5.

Gold, Michael, A Conspiracy of Cells: One Woman’s Immortal Legacy and the Medical Scandal It Caused (State University of New York Press, 1986)

19.

Free Speech For Who? Racial discrimination and offensive language Dominic Keenan 1.

2.

DPP v Carr [2002] NSWSC 194, 4.

Ibid, 4 - 12.

NSW Bureau of Crime Statistics and Research, ‘Race and Offensive Language’ (Bureau Breif, August 1999) 2.

3.

4.

Racial Discrimination Act 1975 (Cth)

5.

Ibid, s 18D.

Tim Wilson, ‘The State of Free Speech in Australia’ Policy, vol. 31, no. 1, p. 3.

6.

7.

Ibid, 4.

8.

Ibid, 3.

65

Chistine Feerick, ‘Policing Indigenous Australians: Arrest as a method of oppression’ (2004) 29(4) Alternative Law Journal 188.

9.

10.

Ibid, 192.

11.

Ibid, 190.

Chistine Feerick, ‘Policing Indigenous Australians: Arrest as a method of oppression’ (2004) 29(4) Alternative Law Journal 188.

12.

Clarke v Nationwide News Pty Ltd [2012] FCA 307.

13.

14.

Ibid, 389.

15.

Ibid, 391.

16.

Ibid.

17.

Eatock v Bolt (2011) 197 FCR 261.

18.

Prior v Wood [2017] FCA 193.

19.

Ibid, 16.

NSW Bureau of Crime Statistics and Research, ‘Race and Offensive Language’ (Bureau Breif, August 1999) 2.

20.

Joanne Lennan, ‘The “Janus Faces” of Offensive Language Laws, 1970-2005’ (2006) 8 UTS Law Review 130.

21.

22.

Ibid, 128.

23.

Ibid, 127.

24.

Ibid, 129.

Commissioner of Police v Anderson (Unreported, New South Wales Court of Appeal, Mahoney ACJ, Meagher and Beazley, JA, 21 October 1996)

Knoema, Fiji - Travel & Tourism Direct Contribution to Employment - Direct Contribution of travel and tourism to employment as a share of GDP (2017), <https://knoema.com/atlas/Fiji/topics/ Tourism/Travel-and-Tourism-Direct-Contributionto-Employment/Direct-contribution-of-travel-andtourism-to-employment-percent-of-GDP>

2.

World Travel and Tourism Council. Travel and Tourism Economic Impact – 2015 Fiji (2015), <https://www.wttc.org/-/media/files/reports/ economic%20impact%20research/countries%20 2015/fiji2015.pdf>

3.

Tara Kessaram et al, ‘Alcohol use in the Pacific region: Results from the STEPwise approach to surveillance, Global School-Based Student Health Survey and Youth Risk Behavior Surveillance System’ (2016) 35 Drug and Alcohol Review 412.

4.

Special thanks to my friend Shayan Omidi for sharing his experiences with Fijian village ceremonies.

5.

Fiji Bureau of Statistics, Population and Demography – 2007 Census (2008), <http:// www.statsfiji.gov.fj/statistics/social-statistics/ population-and-demographic-indicators>

6.

Carmen Voigt-Graf, ‘Transnationalism and the Indo-Fijian Diaspora: The Relationship of IndoFijians to India and its People’ (2008) 29(1) Journal of Intercultural Studies 81, 83 – 85.

7.

Steven Ratuva, ‘Ethnicity, Affirmative Action and Coups in Fiji: Indigenous Development Policies Between the 2000 and 2006 Coups’ (2014) 20(2 – 3) Social Identities 139, 141.

8.

9.

Ibid, 144.

10.

Voigt-Graf, above n 7, 86.

25.

Robert Khan et al, ‘Ebbs and Flows: Patterns of Fiji Indian Migration’ (ABERU Discussion Paper No 13, Monash University Business and Economics, 2005)

11.

Cintia Cheong, Cyclone Winston Takes ‘High Financial Toll in Fiji’ (10 March 2016), <http:// www.theactuary.com/news/2016/03/cyclonewinston-takes-high-financial-toll-in-fiji/>

12.

The Backyard of Australia and New Zealand Land, race and economic development in Fiji Jonathan Gu Fiji Bureau of Statistics, Provisional Visitor Arrivals – 2015 (15 January 2016), <http:// www.statsfiji.gov.fj/latest-releases/tourism-andmigration/visitor-arrivals/585-provisional-visitorarrivals-december-2015>

1.

66

13.

Michael Mann and Christopher Wright, In Australia and the US, sound climate policy is being held hostage by vested interests (7 February 2017), <https://www.theguardian.com/ commentisfree/2017/feb/07/in-australia-and-theus-sound-climate-policy-is-being-held-hostage-byvested-interests>

The Conflict Between Nationality and Race and its Unnecessary Legal Convolutions Peter Xu Martin Jacques, When China Rules the World: The End of the Western World and the Birth of a New Global Order (Penguin Books, 2nd ed, 2002).

1.

Australian Bureau of Statistics, Cultural Diversity in Australia 2016 (28 June 2017) Census of Population and Housing <http://www.abs.gov.au/ ausstats/abs@.nsf/Lookup/by%20Subject/2071.

0~2016~Main%20Features~Cultural%20 Diversity%20Article~20>.

2.

Ian Ireland, Australian Citizenship Legislation Amendment Bill 2002, No. 78 of 2001, 18 February 2002, 2.

3.

«中华人民共和国国籍法» [Nationality Law of the People’s Republic of China] (People’s Republic of China) National People’s Congress, Order No 8, 10 September 1980 art 3.

5.

Wu, 68.

6.

Blum, 29.

7.

Ibid, 8.

8.

Ibid, 8-11.

9.

Ibid, 8.

10.

Stephen Letts, Why Chinese investors keep buying Australian property: it’s cheap (24 Mar 2017) ABC News <http://www.abc.net.au/news/2017-0324/why-chinese-investors-keep-buying-australianproperty/8385174>

Luke McNamara and Kath Gelber, ‘Anti-vilification laws and public racism in Australia’ (2016) 39(2) UNSW Law Journal 488, 508.

9.

4.

Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, 3rd sess, 183rd plen mtg, UN Doc A/810 (10 December 1948) art 15.

5.

6.

See, eg, Citizenship Act 1977 (NZ) s 8(2)(b).

See, eg, Bürgerrechtsgesetz [Nationality Law] (Switzerland) 29 September 1952, art 15(1) [author’s trans].

7.

See, eg, ‫رعلا ةيسنجلا ماظن‬ [Saudi Arabian Citizenship System] (Kingdom of Saudi Arabia) 22 September 1954, art 10 [author’s trans].

8.

Breaking the Bamboo Ceiling - How You and I Can Shape the Diversity of the Legal Profession Jennifer Ma R. Steinwall, Addressing cultural diversity in the Australian judiciary, Diversity Council Australia, 30 April 2014.

1.

U. Nedim, Diversity of Australian Magistrates and Judges, Sydney Criminal Lawyers, 5 November 2015.

2.

Asian Australian Lawyers Association, Inc., 2015, The Australian Legal Profession: A snapshot of Asian Australian diversity in 2015, p 4.

3.

4.

K. McCloughlin, Susan Kiefel and the Politics of Judicial Diversity, Inside Story, 30 November 2016.

“You Can’t Be Racist Against Yourself!” and Other Myths and Legends Nina Mao Lawrence Blum, “I’m not a racist but…” The Moral Quandary of Race (Cornell University Press, 2002) 36

1.

2.

Ibid, 39.

5.

Asian Australian Lawyers Association, above n 3.

R. Callick, Asian lawyers held back by negative stereotypes, The Australian, 24 April 2015.

6.

K. Crossley, Asian Australian lawyers face ‘bamboo ceiling’, Australian Lawyer, 15 April 2015.

7.

K. Walsh, Law firms unite to shake up appearance: cultural diversity pledge, Financial Review, 22 March 2017.

8.

Frank H Wu, Yellow: Race in America Beyond Black and White (Basic Books, 2002) 40

3.

Rob White, ‘Immigration, Nationalism and AntiAsian Racism’ in Chris Cunneen et al (eds), Faces of Hate: Hate Crime in Australia (Federation Press, 1997) 15, 32

4.

67

Us Before Them An exploration of the Resurgence of Nationalism and the Repercussions on the Rule of Law in South-East Asia Anh-Tuan Nguyen & Brent Liang

Anealla Safdar, ‘Who are the Rohingya’, Aljazeera (online), 28 October 2015 <http:// www.aljazeera.com/indepth/features/2015/10/ rohingya-151024202611276.html>.

11.

12.

Ibid.

Joshua Kurlantzick, ‘Myanmar’s Alarming Civil Unrest’, Council on Foreign Relations (online), 9 April 2013 <https://www.cfr.org/expert-brief/ myanmars-alarming-civil-unrest>.

13.

Andre Carlson, ‘Burma’s Treatment of the Rohingya and International Law’, on Burma Campaign UK (April 2013) <https://www.scribd. com/document/135099987/Burma-s-Treatmentof-the-Rohingya-and-International-Law>.

1.

Reuters, ‘China has no legal basis to claim historic rights in South China Sea, international court finds’, ABC (online), 13 July 2016 <http://www. abc.net.au/news/2016-07-12/china-no-legalbasis-south-china-sea-tribunal-finds/7622738>.

2.

Gideon Rachman, ‘Trump, Putin, Xi and the rise of nostalgic nationalism’, <Financial Times (online), 2 January 2017 &lt;https://www. ft.com/content/198efe76-ce8b-11e6-b8ceb9c03770f8b1&gt;>.

3.

Alice Yan, ‘Killing of gangster in ‘self-defence’ sparks debate in China after life sentence imposed’, South China Morning Post (online), 28 March 2017 <http://www.scmp.com/news/china/policiespolitics/article/2082689/killing-gangster-selfdefence-sparks-debate-china-after>.

4.

Simon Denyer, ‘A Young man has died in police custody, and middle-class Chinese are outrages’, The Washington Post (online), 31 December 2016 <https://www.washingtonpost. com/world/asia_pacific/a-young-man-diedin-police-custody-and-middle-class-chineseare-outraged/2016/12/30/44b03678c d f 1 - 1 1 e 6 - 8 5 c d - e 6 6 5 3 2 e 3 5 a 4 4 _ s t o r y. html?utm_term=.7792442449c5>.

5.

6.

Yan, above n 3.

14.

Human Rights Watch, “They can Arrest you at Any time” (29 June 2016) <https://www.hrw. org/report/2016/06/29/they-can-arrest-youany-time/criminalization-peaceful-expressionburma>.

United Nations Human Rights Office of the High Commissioner, Ratification Status for Myanmar <http://tbinternet.ohchr. o r g / _ l a y o u t s / Tr e a t y B o d y E x t e r n a l / Tr e a t y. aspx?CountryID=119&Lang=EN>.

15.

Mikael Graves, ‘Anti-Muslim Buddhist Nationlism in Burma and Sri Lanka: Religious Violence and Globalized Imaginaries of Endangered Identities’ (2015) 16(1) Contemporary Buddhism 1, 12.

16.

17.

Ibid.

18.

Ibid 2.

Poppy McPherson, ‘Myanmar failing to stop spread of religious violence, UN envoy says’, The Guardian (online), 19 May 2017 <https://www. theguardian.com/world/2017/may/19/myanmarfailing-to-stop-spread-of-religious-violence-unenvoy-says>; Robbie Gramer, ‘Gruesome new details on the ethnic cleansing in Myanmar no one is talking about’, Foreign Policy (online), 3 February 2017<http://foreignpolicy.com/2017/02/03/ gruesome-new-details-on-the-ethnic-cleansing-inmyanmar-no-one-is-talking-about/>

19.

7.

Andrew Altman, Arguing About Law: An Introduction to Legal Philosophy (Wadsworth Publishing Co, 1996), 3-19.

20.

Bochen Han, ‘China’s Human Rights Lawyers: Political Resistance and the Law’, The Diplomat (online), 11 February 2016 <http://thediplomat. com/2016/02/chinas-human-rights-lawyerspolitical-resistance-and-the-law/>.

21.

Kurlantzick, above n 12.

22.

Ibid.

8.

Elizabeth M. Lynch, ‘The Anatomy of a Crackdown: China’s Assault on its Human Rights Lawyers’ on Elizabeth M. Lynch, China Law & Policy (18 October 2015) <http://chinalawandpolicy. com/2015/10/18/the-anatomy-of-a-crackdownchinas-assault-on-its-human-rights-lawyers/>.

9.

10.

68

Han, above n 7.

United Nations, Ethnic Cleansing <http://www. un.org/en/genocideprevention/ethnic-cleansing. html>.

23.

Cao Duc Thai, Another prejudice against Vietnam’s democracy and human rights (3 May 2017) National Defence Journal <http://tapchiqptd.vn/en/ events-and-comments/another-prejudice-againstvietnams-democracy-and-human-rights/10093. html>.

Rafendi Djamin, ‘Living in a Dark Tunnel – Torture And Other Ill-Treatment of Vietnamese Prisoners of Conscience, Huffington Post (online), <http://www.huffingtonpost.com/rafendidjamin/living-in-a-dark-tunnel-t_b_10943358. html#>.

24.

Human Rights Watch, Vietnam: Reform Criminal Law to Respect Rights (17 October 2016) <https:// www.hrw.org/news/2016/10/17/vietnam-reformcriminal-law-respect-rights>.

Moral Panic and Folk Devils: Gangs and Gun Terror in Western Sydney Carly George 1.

Firearms Act 1996 (NSW) s 3(1), s 3(2).

2.

Firearms Act 1996 (NSW) s 73.

3.

Firearms Act 1996 (NSW) sch 1.

25.

Human Rights Watch, Vietnam: New Wave of Arrests of Critics (27 January 2017) <https://www. hrw.org/news/2017/01/27/vietnam-new-wavearrests-critics>; Penal Code (Vietnam) National Assembly, art 58, 119 [author’s trans].

26.

New South Wales Ombudsman, Review of police use of Firearms Prohibition Order search powers: Section 74A of the Firearms Act 1996, Issues Paper (July 2015), 19.

4.

Stanley Cohen, Folk Devils and Moral Panics: The creation of the Mods and Rockers (Routledge London and New York, 1972), 9.

5.

Human Rights Watch, Vietnam: Reform Criminal Law to Respect Rights (17 October 2016) <https:// www.hrw.org/news/2016/10/17/vietnam-reformcriminal-law-respect-rights> 27.

6.

Nhung T. Bui, ‘Managing anti-China nationalism in Vietnam: evidence from the media during the 2014 oil rig crisis’ (2017) 30(2) The Pacific Review 169, 172; Human Rights Watch, Vietnam: New Wave of Arrests of Critics (27 January 2017) <https://www.hrw.org/news/2017/01/27/ vietnam-new-wave-arrests-critics>.

7.

Thiem Hai Bui, ‘The Influence of Social Media in Vietnam’s Elite Politics’ (2016) 35(2) Journal of Current Southeast Asian Affairs 89, 105.

9.

28.

29.

Ibid.

Arnold Hunt, ‘“Moral Panic” and Moral Language in the Media’ (1997) 48 The British Journal of Sociology 4, 629-648.

Erich Goode et al, ‘Moral Panics: Culture, Politics, and Social Construction’ (1994) 20 Annual Review of Sociology 149, 156

8.

Mark Morri, ‘Gang up on Gunslingers’, The Daily Telegraph (Sydney), 16 September 2013, 11.

Yoni Bashan, ‘Fighting a reign of gang terrorSYDNEY DRUG WAR’, The Daily Telegraph (Sydney), 13 December 2012.

10.

Reuters, Vietnam police detain dissident for deportation: wife (24 June 2017) <https:// www.reuters.com/article/us-vietnam-dissidentidUSKBN19E1Y4>.

30.

Krishnadev Calamur, ‘Why Obama Is Overlooking Human-Rights Worries in Vietnam’, The Atlantic (online), 24 May 2016 <https://www.theatlantic. com/international/archive/2016/05/vietnamarms-embargo/484112/>.

31.

Nick Ralston, ‘Gun Crime becoming an evil disease- police’, The Sydney Morning Herald (Sydney), 4 February 2013, 3.

11.

Dan Box, ‘The Merchants of Death’, The Australian (Sydney), 30 January 2013, 9.

12.

Tim Priest, ‘Drive-by shots a wake-up call’. The Australian (Sydney), 19 April 2012.

13.

32.

Ibid.

Bennett Murray, ‘Vietnam’s Quiet Human Rights Crisis’, The Diplomat (online), 17 April 2017 <http://thediplomat.com/2017/04/vietnamsquiet-human-rights-crisis/>.

14.

Nhung T. Bui, ‘Managing anti-China nationalism in Vietnam: evidence from the media during the 2014 oil rig crisis’ (2017) 30(2) The Pacific Review 169, 171.

16.

33.

34.

Goode et al, above n 8, 157.

John Lyons, ‘Crimebusters on mean streets’, The Weekend Australian (Australia), 26 May 2017.

15.

Goode et al, above n 8, 157.

New South Wales, Parliamentary Debates, Legislative Assembly, 29 August 2013, 5-8 (John Robertson).

17.

18.

Goode et al, above n 8, 157.

19.

Goode et al, above n 8, 158.

69

Jonathan Swan, ‘PM gun figures shot down by statistics chief’, The Sydney Morning Herald, 7 March 2013, 7.

20.

21.

See Annexed Appendix Figure 3.

22.

Goode et al, above n 8, 152.

23.

New South Wales Ombudsman, above n 4, 19.

24.

Ibid.

New South Wales, Parliamentary Debates, Legislative Council, 13 September 2013, 23562-64 (The Hon. M.P Barry O’Farrell).

25.

International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976), art. 17(1).

26.

27.

NSW Police Force, Instrument of Delegation of Authority Firearms Act 1996, 5 November 2013.

Justice M Beazley et al, ‘Discretion and the Rule of Law in the Criminal Justice System (2015) 89 Australian Law Journal 158.

28.

29.

70

Ibid.