2014 The Full Bench Ed 1

SHOCK THE SYSTEM: LAW REFORM Issue 01 2014 UTS Law Students’ Society

09

13

40

10 Words or Less

Myths and Misplaced Intentions

Green Clutter

The gathering of thousands on which the media remained silent.

Championed by some, denounced by many, is mandatory minimum sentencing the answer to alcoholfuelled violence?

Australia’s nonsensical approach to environmental policy.

10-12

26

42

44 to 8.

I Don’t.

Debate

Why the odds of constitutional reform are not in its favour.

Why same sex marriage bills to date have not secured equality.

Should illicit drugs be legalised?

tfb 2014 [Issue 01]

the full bench

EDITORS Francesca Elias Arciuli Emily Meller Sefakor Dokli Johanna Fisher

DESIGNER Hamish Burrell © UTS Law Students’ Society This publication is copyright. Except where permitted under the Copyright Act, no part of this publication may form or by any means (electronic or otherwise) be reproduced, stored in a retrieval system or transmitted by any process without specific written consent of the UTS Law Students’ Society. Enquiries are to be addressed to the publishers.

Disclaimer All expressions of opinion published in TFB are not the official opinion of the UTS Law Students’ Society unless expressly stated. The UTS Law Students’ Society accepts no responsibility for the accuracy of any opinions or information contained herein and readers should rely on their own enquiries to make decisions in their own interest. .

Images and illustrations All images, unless provided to TFB personally for the purposes of this publication, were sourced from the photosharing website ‘Flickr’, with attribution provided within the text to specific publishers. All illustrations are attributed to Hamish Burrell.

Warning Aboriginal and Torres Strait Islander readers are warned that the publication may contain images of deceased persons.

COVER ARTIST Jess Xu

MARKETING Olivia Kilponen

WITH SPECIAL THANKS TO:

Ashleigh Barnes, Vice President (Education), and Lloyd Wood, President of the UTS LSS, for their guidance, support and contribution to the first edition of The Full Bench in 2014.

WITH THANKS TO Daniel Mckenzie and co.

Kwik Kopy Printing centre Neutral Bay 121 Military Road, (cnr. Bydown Street), Neutral Bay, NSW 2089 Tel 02 9953 3077 Fax 9953 0530 www.neutralbay.kwikkopy.com.au

The Full Bench (tfb) is published in Sydney annually by: UTS Law Students’ Society PO Box 123, Broadway NSW, 2007 Room CM5A.01.08, City Markets campus, Cnr of Quay Street & Ultimo Road Ph (02) 9514 3448 Fax (02) 9514 3427 Website www.utslss.com

{Contents} 4.

Editorial

5.

President and VPE Welcome

6.

8.

9.

10.

13.

Editors’ Question

26.

Legislative Fatigue, Engendering Marriage Equality and Legal-Political Spectacle Alison Whittaker

28.

Foster the Children

32.

Zoe’s Law

35.

No Bull

The uncertain fate of foster children Michelle Smerdon

Extending the rights of the unborn child Harry Power

Obiter

10 words or less 44 to 8 The long odds of constitutional reform

36.

Workplace bullying is out Sage Nemra

Behind the Veil of Ignorance Why Australia’s approach to processing refugees must change

Matthew Whitbread

Jon Schild

Myths and Misplaced Intentions

Basic Law

Subverting beliefs associated with Mandatory Minimum Sentencing Andrew Blinn

15. The Bottom Line Kazem Elkheir

16.

I Don’t

37.

38.

Taxing Times Luton White

17. What is the ALRC? Bianca Newton

19. Experiencing Aurora

Democracy, Government and the Basic Law of Hong Kong Robert Guzowski

(In)accessible Justice The barriers to accessing justice by those with a disability Claire Robinson

40.

Green Clutter

41.

Fair Use in Australia

Australia’s unintelligible environmental policy Matthew Page

Is it ‘fair enough?’

Olena Prusenkova

Kara Gorey

20.

Criminal Conduct

22.

Tied to Tradition

Provocation and the “Gay Panic” Defence

42.

Stop. Hammer Time Should illicit drugs be legalised?

Kimberly Tran and Aneesa Kruyer

Kane Kersaitis

Moving forward with Native Title Bianca Balzer

24. A republic – truly the next step?

Jennifer Gamble

43. Verbatim

Editorial L

aw reform is a dangerous journey, fraught

We are also lucky enough to have had Michelle

with uncertainty. The road is long and arduous

Smerdon adapt her thesis and prepare (a much

and to attempt a shortcut is foolish, for it usually

shorter yet equally impressive) article, highlighting

uncovers perils that would otherwise not be faced.

the

Even where one sticks to the path, difficult decisions

specifically for carers and foster children seeking

await. A fork in the road holds the choice of who will

adoption. We urge those who have done a thesis

prevail amongst interest groups, with underfunded

about a particular relevant area to contact us about

or underrepresented stakeholders often suffering

contributing at publications@utslss.com as The Full

the most. The quicksand of bureaucracy can

Bench is a space, first and foremost, to share and

bog one down to the point where any attempt to

acquire knowledge.

nature

of

the

adoption

system,

struggle against it seems futile. Potholes filled with

Robert Guzowski also provides a unique insight

public backlash and political agendas become more

into the push for democracy in Hong Kong, from

frequent and perilous, threatening the wellbeing and

where he is currently studying, on page 37. This

integrity of the law…

shows that, even when abroad, inspiration is never

When the end is in sight, one is forced to look

4

flawed

lacking and diversity is always welcome.

back and question the nature of the journey itself.

From Fair Work to Fair Use, environmental policy

Does the reformed law reflect its original intended

to foreign policy, the rights of same sex couples

purpose? Will it effectively address the issue it was

to the rights of the foetus, our contributors have

designed to fix? Should the law even be a factor in

examined the law and at times found it wanting.

confronting this issue?

However, despite our best efforts the constantly

Editorial

As law students we must ask these questions

evolving nature of the law means that further

and more, as we seek to understand our role as

changes may have occurred in the few short weeks

future professionals, or merely as citizens of a nation

between our contributors finalising their articles

that acknowledges the dynamism of the law. Tom

and this edition going to print (for example, Barry

Sargeant stated, ‘lawyers are brought up with an

O’Farrell is no longer the Premier of NSW). If this is

exaggerated reverence for their system and, apart

not a testament to the significance of law reform to

from a few, they don’t see what’s wrong with it.’ The

Australian society, then we are not sure what is.

Full Bench, with its thought-provoking articles, seeks

With the overwhelming enthusiasm we received

to challenge this assumption so that our ‘reverence’

for this edition, we are positive that this year will

is merely a wary respect of a legal system that

hold even bigger and better things for The Full

necessarily evolves with its society. We encourage

Bench and UTS Law Students’ Society publications

you to maintain this critical mindset as you go forth

generally. Thank you for all of your support and

and trawl the pages of this edition.

we are looking forward to hearing from a cross

Our contributors have certainly maintained such

section of our UTS Law community, including

a mind set as they have taken stock of the plethora

undergraduate, postgraduate, PhD students and

of recent reform, and provide insightful opinions.

even faculty members, throughout the year.

Andrew Blinn and Kazem Elkheir uncover the

On that note, we welcome you to the first edition

dangers and unintended consequences of the ‘one

of The Full Bench for 2014. Whatever your opinions

punch’ and lockout laws on pages 13 to 15, enacted

may be, we hope that you learn something of

in an arguably knee-jerk reaction to public outrage

interest or intrigue that has, or seeks to, shock the

in an attempt to end alcohol-fuelled violence.

system to its core.

For those who are interested in experiencing law reform first-hand, take a look at Bianca Newton’s

Now, go forth and read, learn and ponder!

profile of the ALRC on page 17, or be inspired by the experiences of Kara Gorey, who interned at the Aboriginal Legal Service through the Aurora Project.

From Francesca, Sefakor, Johanna and Emily.

From the UTS LSS President

W

elcome to this year’s

Finally, thank you to all of our sponsors for

first installment of The

their continued support and commitment to our

Full Bench, the quarterly academic journal brought

Society and for the purpose of this publication,

to you by the University of Technology Sydney Law

thank you specifically to Clayton Utz and The

Students’ Society (UTS LSS).

College of Law.

Our first edition focuses on the highly topical

I hope this edition provides you with an

subject of ‘Law Reform.’ With law reform in areas

opportunity to expand your view on law reform in

ranging from crime to fair work to marriage equality

society today. Happy reading!

being recently covered by the media, this edition will provide you with thought-provoking articles written

Kind regards,

by some of our most gifted UTS law students. The theme of this edition also corresponded with the first

Lloyd Wood

UTS LSS Speaker Series, which similarly focused on

UTS LSS President

overwhelming interest of UTS law students in both of

From the UTS LSS Vice President (Education)

these initiatives indicates the importance of this topic to our current law students.

Law reform changes both the legal and sociopolitical fabric of our society. As potential future practitioners, or even as members and recipients of changes in the law, it is critical to not only remain aware, but also to react, to policy developments. This is not something that we are taught in our lectures halls. Rather it is an important personal, professional and ethical responsibility that rests on our shoulders.

Take some time to appreciate the issues highlighted in the following pages and contemplate the effect that they may have on how our society operates.

I would also like to thank those people who have put this publication together. Firstly, thank you to the UTS LSS Vice-President (Education), Ashleigh Barnes, for her unbelievable organisation skills and constant support.

I also wholeheartedly thank Francesca Elias Arciuli, the UTS LSS Publications Director, who has done a phenomenal job in putting together this publication and who has worked tirelessly to produce some of our best publications to date.

On this note I would also like to thank The Full Bench Subcommittee and editorial team – Emily Meller, Joanna Fisher and Sefakor Dokli – and our Publications Marketing Editor, Olivia Kilponen. You have helped create an amazing publication.

Further, I thank each and every person who has contributed to this publication; whether that be an entire article or 10 words – without you, we would have only well-designed blank pages (credit to our wonderfully talented designer, Hamish Burrell).

T

he law is always struggling to keep pace with evolving

circumstances.

Indeed,

laws

must

change. It is inevitable, necessary and often welcomed.

This edition of The Full Bench looks at some of the areas of law that create tensions and fault lines as they intersect with the needs and expectations of our society. As you read through this edition, I implore you to remember the fair balance that must be struck between retreat and reform, repetition and revolution, deconstruction and reconstruction. The articles in the following pages reveal the importance of identifying not only when the law needs to take a step, but also, in which direction it should take it.

I would like to echo Lloyd’s sentiments and thank everyone involved in the creation of the first edition of The Full Bench, all of whom can proudly say they have joined the body of commentators whose urgings and reflections act to reform and improve the law.

Kind regards, Ashleigh Barnes UTS LSS Vice President (Education)

President and VPE Welcome

law reform and specifically the one-punch laws. The

Editors’ question Do we need to repeal s 18C of the Racial { Discrimination Act to protect free speech? }

FRAN SAYS: Senator Brandis and even Tim Wilson have been championing this cause as the holier than thou protectors of Equality and her children (see what Emily has to say about our good friend Equality).

Yet, whether or not we need to repeal s 18C in order to protect free speech depends on the amount of

6

freedom we need for an efficient and functioning society.

Editors’ Question

Is our idea of an improved society one in which we can say anything in public (one is still able to be a bigot in private), without restraint or consideration of another? A cursory look at the law results in a resounding ‘No’, see: defamation, another action Bolt is familiar with. We are unable to say something that would hurt the reputation of another, so why is it acceptable to say something that offends the very identity of another, being their race, colour, national or ethnic origin, suddenly being debated?

The argument that individuals should censor their own behaviour in public without requiring the law to intervene is fundamentally flawed, as the law obviously makes provisions to protect those of repute when they experience offence. If the law is only used as a vehicle by those powerful enough to lobby for changes that protect them, it has failed miserably to promote any form of equality. That might be a harsh assessment of repealing s 18C, but we must question how much traction this issue would have gained if the name “Bolt” were not attached to it.

Ultimately, the supposed accessibility to free speech afforded by the repeal of 18C would infringe upon another’s right to security and a life free from discrimination, which would not be true, valuable or right at all.

SEFAKOR SAYS:

As Tony Abbott plans to amend the Racial Discrimination Act, particularly s 18C, which makes it illegal to offend, insult, humiliate or intimidate a person or group based on race, colour or national or ethnic origin, the right to free speech springs to the fore.

MP Ewen Jones has stated that, ‘As a middleaged white man I have never experienced any form of discrimination. From my perspective I could be high about this and say it shouldn’t matter, but I’ve never experienced that.’

And herein lies the problem. These reforms are being proposed by “WASPS”: White Anglo-Saxon Protestants with no point of reference to the very experiences the Racial Discrimination Act was enacted to prevent.

As Labour MP Penny Wong aptly put, ‘for them it’s a game, it’s a debate about words and abstract principles. For people who have experienced racism, it is a deeply personal debate…about real people and real hurt.’

The question of whether we need these reforms to protect free speech only raises further questions.

How absolute is the right to freedom of speech?

Should it be allowed to take precedence over basic human dignity and the inherent right to not be discriminated against because of the colour of your skin or ethnic persuasion?

According to Attorney-General George Brandis, freedom of speech means the right to say ‘bigoted and ignorant’ things. If this is true, we don’t need repeals to the Racial Discrimination Act, we need a slew of further laws making clear that no one has a license to be a racist, ignorant or bigoted at the expense of another’s dignity.

EMILY SAYS:

Opposition Leader Bill Shorten stated that, ‘Section

wouldn’t? Equality is the one guest invited to the

18C empowers minorities with the ability to fight

Greens, Labour and Liberal ‘parties’ year after year.

back, with the force of the law and the sanction of

Equality is always a laugh, even when she causes

our state, in the face of the outrageous and malign,

a bit of a ruckus in Parliament because no one

which could otherwise be the first step down a dark

can ‘figure out’ what she actually means (women,

and evil path.’ In a day and age where Indigenous

amiright Tony?).

Australians, and many other minority groups still

The problem with Equality is that people forget

suffer discrimination indirectly every day, we should

she is still an adolescent in Australia. She’s not fully

be doing everything we can to protect the interests

grown yet; if she were, she would be too busy to

of these people.

run around at these parties because she would be

There are also concerns about whether these

helping raise her children Opportunity, Access and

amendments will open the floodgates to other

Justice along with her life partner, small “l” liberalism.

protections being stripped away from minority

This is at the heart of the problem with the

groups – could this be one step towards repealing

‘Bolt Reforms.’ Repealing s 18C of the Racial

sections of the Sex Discrimination Act 1984? Will

Discrimination Act removes an important protection

discrimination based on gender, age, marital status

around Equality. It isn’t a free speech issue, as much

or religion one day be rampant, permitted under the

as Human Rights Commissioner Tim Wilson claims

guise of freedom of speech?

it is. Until deeply ingrained issues surrounding

I’m sure many readers are aware of Rev. Fred

privilege in Australia are addressed effectively, extra

Phelps, leader of the controversial Westboro Baptist

protection is needed to avoid discrimination against

Church, who recently passed away. Phelps and his

all minorities – that is the reality of a society that

church were well-known for picketing public events

started from a place of inequality, and has been very

and targeting various groups such as the LGBTQI

slack on playing catch up.

community, African-Americans and other minority

If you disagree, it might be time to re-examine

groups. Sadly, the US Supreme Court ruled that

what you actually want out of ‘free speech.’ Even if

the actions of the Westboro Baptist Church were

you don’t personally wish to engage in public racism

protected by free speech. Now, as Australians, we

(private is still okay), is this ‘a right’ worth defending?

have to ask ourselves: Do we really want to embrace

Amidst the other crises the government is facing,

racism by allowing people like Fred Phelps to make

from indigenous health care and asylum seekers to

derogatory comments? Or should we, as a developed

racially motivated assaults, there are other areas for

nation, take a stand against discrimination, and

reform that deserve to be prioritised.

exemplify standards of equality to the rest of the

Besides, do we really want ‘the right to be bigots’ to enter the already tarnished Australian rhetoric?

It’s not the catchiest political slogan, and it doesn’t even rhyme with ‘boats.’

JO SAYS:

world?

7

Editors’ Question

Equality is great. Everyone loves Equality. Who

{ Obiter }

By Paige McNamee

90

Australians killed by ‘king hits’ from 2000-2012.

(Campbell, K 2013. ‘King Hits kill 90 Australians, mostly drunk young men’, Ninemsn).

‘Contending with the scourges of Nazism, apartheid, the Khmer Rouge and other affronts required courage by great nations and ordinary human beings alike. It is now your solemn duty to address the scourge of human rights violations and crimes against humanity in the Democratic People’s Republic of Korea.’

- The Hon. Michael Kirby AC CMG, chief author of the UN Security Council, challenging the United Nations to take action in North Korea.

8

27,000

The number of domestic assaults in NSW reported to police during 2013 .

(Ralston, N; Corderoy, A & Inga Ting 2014. ‘The women we failed’, SMH).

120,000

Obiter

‘[The] offence will apply to all of those kinds of situations, including

The number of people believed to be held in

bar brawls, fights between people in the Indigenous community,

North Korean political prison camps.

even victims of domestic violence who might finally have a drink

(Miles, T & Nebehay, S 2014. ‘China rejects

or two, summon up a bit of Dutch courage and go and attack the

North Korean UN Crimes Report authorised by

tormentor, killing the tormentor. That person would be liable to

Australian Michael Kirby, SMH).

a mandatory minimum term of eight years imprisonment. I think

31

the offence is unnecessary, I think that any mandatory penalties for serious offences are absolutely unwarranted, unjustified and will create injustice.’

- Nicholas Cowdery, former director of public prosecutions for New South Wales, comments on the ‘one punch laws’.

‘Law reform is not, or should not be, a popularity contest.’

- Professor Jill McKeough, former Commissioner at the Australian Law Reform Commisison, in her opening address at the first UTS LSS Speaker Series 2014.

Same-sex couples whose marriage was annulled following the High Court’s decision that the ACT’s Marriage Equality Bill was unconstitutional (Byrne, E 2013. ‘High Court throws out ACT’s same-sex marriage laws’, ABC).

$7.5 million

The amount spent on lifeboats to tow asylum seekers breaching Australian waters to Indonesia under Operation Sovereign Borders (Whyte, S 2014. ‘Cost of Abbot govnerment’s orange lifeboats to towback asylum seekers trebles to $7.5 million’, SMH).

10 words or less ‘March in March’

All images credit to Jess Xu.

O

n the morning of 17 March, the thunderous footsteps of protest members on the road to Parliament House began to build some momentum.

Similarly, civilians in Melbourne, Sydney and Brisbane gathered in thousands on the streets. But unlike most protests, there was not a centralised cause.

An Anglican Priest protested for refugee rights. A man dressed in a koala suit protested against the destruction of wildlife habitats. Rather, there was a centralised target – the Abbott government and its policies.

“…there was a centralised target – the Abbott government and its policies.”

‘March in March’ describes the event as a rally signifying ‘the people’s vote of “not confidence” in policies of the government that go against common principles of humanity, decency, fairness and democratic governance.’1 Such a broad classification of the protest’s aim is what attracted over 30,000 Marchers encourage sledging, the ‘March in March’ event passionately explored a notion marked in the public consciousness – wide-sweeping parliamentary reform.

For the first edition of The Full Bench we thus turned to our readers to find out – what cause would they have marched for?

WHAT WOULD YOU MARCH FOR? ‘That students, although the minority, can influence the majority.’

- Alexander Casanova ‘To protect the Great Barrier Reef from dredging and dumping.’

- Lily Bleach ‘Families fleeing war and poverty in search of better lives.’

-George Pappas ‘Better protection and support for domestic violence victims.’

- Francesca Elias Arciuli ‘For knights marrying knights and dames marrying dames.’

–Lucy Bracken

‘A government who’s brave enough to act beyond the next election.’

– Frances Mao

From Jess Xu, who participated in the march…

‘We marched, united in diversity. We will not be silenced.’

1.

March in March Australia, What is March in March, 01/02/2014, March in March Australia, http://www.marchinmarch.com.au

10 words or less

on that day. Although the protests have been criticised as an opportunity to

44 to 8

Sjoerd van Oosten, Uluru (2009)

The Long Odds of Constitutional Reform Effecting change to the Constitution has historically been a long shot, and MATTHEW WHITBREAD explains why the campaign for constitutional recognition of Australia’s Indigenous population is no different.

L

aw reform does not exist in a vacuum. It must be

researched,

drafted,

debated,

moulded,

floated, spun and passed through a political process that endeavours to comprehend the nuance and complexity of the legal system within a 10-second sound byte. Navigating a constitutional amendment through a national electorate has only been managed 8 times in the 44 attempts that have been made in the history of federated Australia. After federal politicians’ 2013 lesson of what not to do in the form of the proposed recognition of Local Government, the 45th tilt at amending our country’s founding document appears certain to be the proposed recognition of Australia’s First Peoples. If history is any example, the 2016 campaign had better be a sharp improvement on the ‘bi-partisan’ attempt of 2013.

THE PROPOSAL The campaign for the amendment focuses around four elements: a recognition of the prior occupation, continuing culture, languages and relationships to land and waters of Indigenous peoples in the Constitution’s preamble; the repeal of the s 25 power for States to restrict specific racial groups from voting; the repeal or amendment of the s 51(xxvi) ‘races power’; and the insertion of a protection against discrimination on the basis of race, colour or ethnicity.1 The first point to be made is that the scope is too broad. As former Foreign Minister and NSW Premier Bob Carr wrote, ‘the proposition needs to be simple.

If there is any hint of unintended consequences... then the proposition will be defeated.’2 A proposition that seeks to do too much runs two key risks. First,

it provides too wide an opportunity for

used for the benefit of a race.4 However, that

opponents to find contrary arguments, and

qualification is already well established at

runs the risk of creating a perception that too

common law, culminating in the High Court’s

much change at once is too risky. Second, too

decision in Kartinyeri v Commonwealth.5

many propositions within a single campaign

Proposing such an amendment with no

opens up the potential for internal division

discernible practical change may impede

within advocacy groups.

the campaign’s success, as it may open the

THE INEVITABLE ‘NO’ CASE

campaign to another avenue of attack and will result in little, if any, tangible benefit gained should the reforms be successful. The

There is no shortage of arguments that may

be

mounted

against

existence of such a provision may not have

Constitutional

prevented the Stolen Generation, which was

change, some with a basis in fact and reason,

contemporaneously construed as being in the

and some with the same absurdity as the

interests of Indigenous populations.

warnings that Native Title legislation would

Similarly,

the

Northern

Territory

result in the loss of suburban backyards to

Intervention required a suspension of the

Indigenous claims. Each proposition should

Racial Discrimination Act 1975 (“the Act”).

be assessed in order to gauge the potential

Had such provisions been constitutionally

success of the campaign.

enshrined, such a policy would likely have

The first of the four proposed changes

been subject to a High Court challenge and

would insert the blanket recognition of a

overturned. Whatever one may think of the

continuing Indigenous relationship to land and

merits of the policy, federal governments are

waters into the Constitution’s preamble. The

notoriously unwilling to forego Constitutional

obvious scare campaign that may effectively

powers. Consider also the impact such a

be mounted here is near-identical to that

Constitutional provision would have on the

run against the Native Title proposal - that

presently proposed changes to s 18C of

to constitutionally recognise this connection

the Act, or a host of other policies relating

would expand the scope for claims and may

to Indigenous and multicultural affairs. It is

override the legislation’s limitation of claims

expected that a number of politicians and

to Crown land. This argument would likely

groups would oppose such a change, and

be more effective than the campaign against

as Carr pointed out, ‘[t]o get Constitutional

Native Title itself, given the unclear legal effect

change in Australia you need support right

of the preamble. As George Williams et al point

across the political spectrum. You require

out in their UNSW Law Journal discussion,

virtually no opposition.’6

while the preamble does not form part of the operative provisions of the Constitution, it ‘can be used in constitutional interpretation and in the construction of statutes and the

‘If so many separate changes are moved, the prospects of success will be greatly diminished.’

development of the common law as a legally useful statement of fundamental values.’3 It

Herein lies the difficulty in having too

is not difficult to imagine how opponents of

broad a scope for the amendments. If so many

reform would characterise that interpretation.

separate changes are moved, the prospects

Whilst there is little obvious argument

of

success

will

be

greatly

diminished.

against repealing a Constitutional provision

Whilst law reform generally only requires a

that envisions the States’ blanket removal

simple parliamentary majority, Constitutional

of voting rights on the sole basis of race,

reform requires the near-impossible ‘double

the repeal or amendment of the s 51 (xxvi)

majority’; that is, a majority of overall voters

‘races power’ may prove more problematic.

in the national electorate, as well as a majority

One proposal of the Expert Panel formed to

of voters in at least four of the six states.7 It

investigate possible reform was to include

is a tall order; one that has only been met 8

a requirement that the races power only be

times out of 44 attempts.

11

44 to 8

09)

‘Navigating a constitutional amendment through a national electorate has only been managed 8 times in the 44 attempts that have been made in the history of federated Australia.’

‘The campaign must be specific, focused and driven by a group of leaders with a single and unified objective.’

1.

2.

If Indigenous lobbyists insist on taking such a broad range of amendments to a single ballot paper, they will be setting themselves up for failure.

3.

Not only will they open themselves to potential legitimate opposing arguments, as well as a host

4.

of unfounded scare campaigns, but they will also open themselves to internal division, with separate stakeholders favouring different propositions. This will only provide fuel to opponents who will ask the

5.

electorate how they could support the proposition

6.

7.

as a whole when even Indigenous leaders cannot agree on the priorities within the proposition.

A POSSIBLE SOLUTION If Constitutional recognition of Aboriginal and Torres Strait Islander people is to be successful, Indigenous leaders must agree on the priorities for change, whether they be primarily symbolic

12

gestures within a largely ineffective preamble, the

44 to 8

already long-established at common law, or the

enshrinement of a principle into the races power insertion of a curtailment of federal government power with respect to discrimination laws, that may well be resisted by elements within a centralisedpower focused federal Parliament.

One potential solution is that Indigenous leaders focus on two provisions that would result in tangible change - a removal of the indefensible provision that envisages voting rights being restricted from whole racial groups, as well as the insertion of a provision banning discrimination on the basis of race. Those propositions would likely gain broad support within a multicultural community and would limit the number of possible opposing arguments.

The campaign must be specific, focused and driven by a group of leaders with a single and unified objective. Such clarity and purpose is critical, because the results of failure would be too great.

As Carr poignantly put it, ‘[a] defeat would be misinterpreted around the world as some sort of indication of residual racism in Australia’8 - the exact opposite of what reform ought to achieve.

8.

Australians for Native Title and Reconciliation, Constitutional Recognition, (2014) Australians for Native Title and Reconciliation <http://antar.org.au/ constitutional_recognition>.

Robert Carr,‘It Needs to be Simple: Constitutional Change’, on Thoughtlines with Bob Carr (25 January 2012) http:// bobcarrblog.wordpress.com/2012/01/25/itneeds-to-be-simple-constitutional-change/.

Mark McKenna, Amelia Simpson and George Williams, ‘First Words: The Preamble to the Australian Constitution’ [2001] University of New South Wales Law Journal 382.

Patrick Dobson and Mark Leibner, ‘Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution (Report of the Expert Panel, Commonwealth of Australia Expert Panel on Constitutional Recognition of Indigenous Australians, 2012).

Kartinyeri v Commonwealth of Australia (1998) 195 CLR 337.

Carr, above n 2.

Commonwealth of Australia Constitution Act 1900 (Cth) s 128.

Carr, above n 2.

Jail Cell, Casey Konstantin (2005)

Myths and Misplaced Intentions Subverting beliefs associated with Mandatory Minimum Sentencing.

Following public backlash at the seemingly inadequate sentences received by perpetrators of recent alcohol induced assaults, the O’Farrell Government has proposed mandatory minimum sentences.

However, the effectiveness of such measures is questionable, with many legal professionals challenging the proposals and their underpinnings. ANDREW BLINN explores the foundations and implications of the proposed legislation.

I

n an attempt to reduce alcohol-induced violence, the O’Farrell Government has proposed legislation imposing mandatory minimum sentences in relation to seven offences, including a mandatory minimum of

eight years to apply to ‘coward punch’ attacks. The changes have arisen largely as a result of public outcry towards the perceived lenient sentence received by Kieran Loveridge following his fatal attack on Thomas Kelly in mid-2012. Under the current Coalition proposal, there would be no avenue to avoid the mandatory sentence, although Labor amendments would allow judges to retain some discretion to avoid imposing the minimum sentence in ‘substantial and compelling circumstances’.1 The Labor proposal would also introduce a single offence of ‘causing serious injury recklessly in circumstances of gross violence’ while intoxicated and in a public place, carrying a maximum penalty of 16 years and a minimum sentence of five years.2 However, though the goal of reducing alcohol related violence is legitimate, there are concerns that the changes will negatively impact the criminal justice system for reasons that include, but are not limited to, the following:

The mandatory minimum sentences will apply to six offences.

Source: Anna Patty, ‘NSW assault laws: mandatory sentencing watered down’, The Sydney Morning Herald (online) 25 February 2014 <http://www.smh.com.au/nsw/nsw-assault-laws-mandatory-sentencing-watered-down-20140225-33ef1.html>

1. DETERRENCE HAS NOT BEEN SHOWN TO WORK EFFECTIVELY

many violent crimes, particularly those involving drug

The predominant justification for mandatory

not for crimes of passion and the like which are spur

minimum sentences is that an inevitable prison

of the moment...In relation to deterrence, it makes no

sentence will deter offenders. It assumes that all

sense to introduce mandatory sentences for crimes

criminal conduct follows a rational weighing up of

that have no element of pre-meditation on the basis

the possible benefits and disadvantages by any

of deterrence.’3

and alcohol-fuelled violence, and almost invariably

would-be offenders. However, this is rarely the case,

The types of offences specified and the nature

as intoxicated actions are often performed with

of alcohol-fuelled violence is likely to involve

limited forethought. Professor Geraldine Mackenzie,

circumstances where there is little if any pre-

Dean of the Faculty of Law at Bond University has

meditation. Further, the large increase in penalty is

stated:

not supported by solid empirical research to show

‘[t]here is certainly little evidence to support that mandatory sentencing deters potential offenders for

that harsher penalties carry any greater deterrence effect.4

‘Ironically, the increase in sentence severity could contribute to an increase in crime rates.’

Myths and Misplaced Intentions

13

2. INCREASING SENTENCE LENGTHS TO INCAPACITATE OFFENDERS IS A GROSSLY DISPROPORTIONATE MEANS TO THE ENDS DESIRED

4. THE ‘MYTH OF LENIENCY’ Mandatory minimum sentence legislation also presupposes that sentences being handed down by

A further justification for the imposition of mandatory minimum the courts are too lenient and do not accord with sentences is that incapacitating offenders through incarceration will general community sentiment. A study in 2006 found reduce crime. A 1987 study appeared to show that an approximate that 70-80 percent of respondents believed that doubling of prison populations led to a decline in crime by sentences were consistently too lenient.11 However, the approximately 10-30%.5 It would therefore seem plausible that Australian Institute of Criminology has found that 90 mandatory minimum sentencing could reduce crime by simply percent of jurors believed that the sentence imposed limiting an offender’s capacity to re-offend.

was appropriate or very appropriate for the offence, grossly with slight variation depending on offence category.12 disproportionate in achieving this purpose. While past offending can This indicates that extra information and increased However,

mandatory

minimum

sentences

appear

be an indicator of future offending, this is not completely reliable exposure to a real trial situation has the effect of and forms an unsafe basis for increasing sentence length universally. altering perceptions of appropriate punishment. Until Furthermore, the scope of offences included in the amendments is further research of comparable depth and detail problematic. A person who splits the lip of another may be charged shows otherwise, passing legislation to increase overall with reckless wounding6 and automatically receive sentence of sentence severity to placate what is perceived as the three years imprisonment, with no consideration of the offender’s majority public opinion would be unsupported by the circumstances. The proposed inclusion of judicial discretion current evidence. to overlook the minimum terms in ‘substantial and compelling circumstances’ could possibly avoid this. It is also likely that this CONCLUSION could be avoided by appropriate pre-trial charge negotiation, but As proposed by the O’Farrell government, the this has the negative effect of sentencing discretion shifting from the mandatory minimum sentencing legislation is unlikely judiciary to the prosecutor. to achieve its objectives of reducing alcohol related

14

Myths and Misplaced Intentions

Ironically, the increase in sentence severity could contribute to an crime in an efficient and proportionate manner. increase in crime rates. There is a clearly demonstrated criminogenic Incapacitating offenders to reduce this type of effect of incarceration when compared to non-custodial penalties, crime through longer sentences in order to prevent manifesting in recidivism.7 Further, the effect is strongest on those reoffending will inevitably capture ‘false positives’ and who have a low risk of reoffending,8 likely to be the types of people will fail to effectively reduce crime by inadvertently who will now be receiving prison sentences where they would have introducing the criminogenic effects of imprisonment. not before. Retaining judicial discretion is necessary as it is the better Mandatory minimum sentences applying only to certain mechanism to determine those who are unlikely to reoffend.

3. THEY WILL BURDEN THE CRIMINAL JUSTICE SYSTEM

offences in isolation shifts the sentencing discretion away from the judiciary and towards the prosecuting authority given their capacity to bring and withdraw

charges in exchange for pleas to be entered for other At present, some of the six offences are Table 1 offences, which offences. Moreover, it appears that the justification means they may be finalised entirely in the Local Court. Under the given by the community that sentences are too new mandatory minimum sentences proposed by the Coalition, all lenient is not the whole truth, with approval of judicial sentences will exceed two years in duration, which is the jurisdictional sentences being almost unanimous when informed of limit of the Local Court. Presumably the case must then be finalised the circumstances. In summary, mandatory minimum in the District Court.9 This will lead to an increase in case load and sentences potentially operate in a way that facilitates trials will subsequently face additional delay. unintended yet unjust outcomes, and to have them As all offenders convicted of an offence carrying a mandatory passed in their current form would inevitably lead to minimum sentence will automatically receive the same sentence, miscarriages of justice.

Anna Patty, ‘Upper house vote jeopardises new NSW mandatory sentencing laws’, The there is no longer any benefit to plead guilty. Currently, an offender 1. can receive up to a 25% discount following an early plea of guilty due to the utilitarian value of avoiding a trial.10 Additionally, such a plea may demonstrate remorse. With no incentive to plead guilty, it seems likely that in all cases an accused would be strongly advised to put the prosecution’s case to proof. This will result in the costs of

2.

3.

4.

5.

the criminal justice system skyrocketing, and access to justice will

6.

7.

8.

be reduced. These increases in legal costs will be in addition to the

9.

inevitable cost increases flowing from imprisoning more offenders

10.

11.

and for longer periods.

12.

13.

Sydney Morning Herald (online), 20 March 2014 <http://www.smh.com.au/nsw/upper-housevote-jeopardises-new-nsw-mandatory-sentencing-laws-20140319-352tc.html> Anna Patty, ‘NSW Labor puts forth alternative to minimum mandatory sentence laws’, The Sydney Morning Herald (online), 5 March 2014 < http://www.smh.com.au/nsw/nsw-labor-putsforward-alternative-to-minimum-mandatory-sentence-laws-20140305-346x4.html> ABC News Fact Check, Mandatory sentencing: does it reduce crime? (5 February 2014) Australian Broadcasting Corporation <http://www.abc.net.au/news/2014-02-05/doesmandatory-sentencing-reduce-crime/5225986> Adrian Hoel and Karen Gelb, ‘Sentencing Matters: Mandatory Sentencing’, (Paper, Sentencing Advisory Council, August 2008), 14.

Christy Visher,‘Incapacitation and crime control: Does a ‘lock’em up’ strategy reduce crime?’(1987) 4 Justice Quarterly 513-543.

R v Shepherd [2003] NSWCCA 351, 32.

Donald Ritchie, ‘Does Imprisonment Deter? A review of the evidence’, (Paper, Sentencing Advisory Council, April 2011), 19.

P Gendreau and C Goggin, ‘The Effects of Prison Sentences on Recidivism’(User Report, Solicitor-General, Canada, 1999-3) Criminal Procedure Act 1986 (NSW) s 267(2).

The plea must be entered at the earliest available opportunity, as when entered at arraignment will generally not receive more than 15%. See R v Borkowski [2009] NSWCCA 102 at [32].

Karen Gelb, ‘Myths and Misconceptions: Public Opinion versus Public Judgment about Sentencing’, (Research Paper, Sentencing Advisory Council, July 2006).

Kate Warner et al, ‘Public judgment on sentencing: Final results from the Tasmanian jury sentencing study’, (Research Study No. 407, Australian Institute of Criminology, February 2011)

The Bottom Line.

In a knee-jerk reaction to a community outraged at alcohol-induced assaults, the NSW Government introduced its “lockout laws” to the Sydney CBD. KAZEM ELKHEIR explores these new measures and their unintended economic and social impacts to show that they may do more harm than good.

Dream Girls, estimated that the lockout laws would

of the Barry O’Farrell administration, came into

cost them $5000-$6000 in revenue each weekend.3

effect and redefined Sydney’s city nightlife. 1.30am

Interestingly, a politician from O’Farrell’s own

lockouts, last drinks at 3am, no take-away alcohol

cabinet, Mental Health Minister Kevin Humphries,

after 10pm and heavy penalties for non-compliance

was opposed to expanding the lockout program that

are just some of the controversial measures included

has already been implemented in Newcastle. He was

in the New South Wales Government’s plan to

quoted as saying that ‘lockouts don’t necessarily

combat

reinforce

work for everybody,’ and it was expected of Sydney,

Premier Barry O’Farrell, a staunch

as a global city, to have a 24- hour entertainment

advocate of the new law reforms, claimed that

venue.4 Opposition Leader John Robertson also

the new laws were not directed towards punishing

objected to the law reforms, stating that the key to

responsible drinkers, but rather aimed to attack ‘the

curbing alcohol-fuelled violence is to change the

irresponsible acts of those who allow themselves

drinking culture that is prevalent within the State.

alcohol-fuelled

public safety.

violence

and

1

to be intoxicated, whether by drugs or alcohol.’

In assessing the effectiveness of the new lockout

However, the effectiveness of these measures is

laws, NSW Assistant Police Commissioner Mark

questionable, and some argue that they will only

Murdoch said it was still too early to comment on

have a negative economic effect upon Sydney

the success of the new law reforms. However, the

businesses.

first weekend under the new laws ran smoothly and

The new lockout laws have evoked different

most citizens were co-operative as evidenced by

opinions from a cross-section of Australian society,

there being only one arrest. Mr Murdoch remarked,

with many standing in opposition, or at least tension,

‘There’s too much at stake for non-compliance.’5

to

one

another.

Business

Barry

owners who stand to lose revenue have been particularly vocal in opposing the laws due to communal and safety concerns.

Prominent

Kings

Cross business owner John

O’Farrell

has

modelled Sydney’s lockout

“…the key to curbing alcoholfuelled violence is to change the drinking culture that is prevalent within the State.”

laws on the laws imposed in Newcastle with the aim of yielding a similar result.

The lockout in Newcastle is reported to have reduced

Ibrahim expressly doubts their

the night-time assault rate

effectiveness, saying that the

by thirty-seven percent.6

new laws were arbitrary in that

nekidtroll, Bar_SHots_011 (2008)

the majority were punished for

However, nightlife

the is

Sydney

much

more

the actions of a minority.2 Similarly, nightclub owner

dynamic and congested than that of Newcastle.

Tal Chalak contended that restricting the sale of

It therefore remains to be seen whether the

alcohol would ultimately have the adverse effect of

apparent success in Newcastle can be transposed

increasing the demand on the streets for illicit drugs.

to the Sydney urban life, a global city with different

The Australian Hotels Association also rejected the

demographics than that of Newcastle. Only time

new laws, claiming that the 3am ‘last drinks’ policy

will tell whether the new laws are effective, or

will not curb violence, but rather have the opposite

whether they will simply have adverse unintentional

effect in forcing everyone out on the street.

consequences.

Other reasons for opposing the new reforms included the economic strain on businesses that

3.

4.

would result- the notorious Kings Cross strip bar, 1.

2.

Sydney CBD lockout: Clubs claim patron numbers down as new laws enforced’, ABC (0nline), 1 March 2014, <http://www.abc.net.au/news/2014-03-01/clubsclaim-patron-numbers-down-as-lockouts-enforced/5292580> Brittany Ruppert, ‘Lockout laws put to the test’, Sydney Morning Herald (online), 1 March 2014, <http://www.smh.com.au/nsw/lockout-laws-put-to-the-test20140301-33s1l.html>.

5.

6.

‘Fears over new late-night alcohol laws in Sydney CBD’, 22 January 2014, <http://www.news.com.au/national/fears-over-new-latenight-alcohol-laws-insydney-cbd/story-fncynjr2-122680688187>.

Nicholas Reece, ‘The Sydney lockout: new location, but the same old mistakes’ The Age (online), 24 February 2014, <http://www.theage.com.au/comment/ the-sydney-lockout-new-location-but-the-same-old-mistakes-20140223-33ab4. html>.

Brittany Ruppert, ‘Lockout laws put to the test,’ Sydney Morning Herald (online), 1 March 2014, <http://www.smh.com.au/nsw/lockout-laws-put-to-the-test20140301-33s1l.html>.

Tom Dusevic, ‘Curbs on drinking results in fall in assault rate in Newcastle,’ The Australian (online) 16 September 2010 < http://www.theaustralian.com.au/ news/nation/curbs-on-drinking-results-in-fall-in-assault-rate-in-newcastle/storye6frg6nf-1225924283176>.

15

The Bottom Line

2

4 February 2014. The new lockout laws, a product

401(K) 2013 (2012)

Taxing Times S

Taxation has been an all-too-avoided area of law reform since the commencement of the GST on 1 July 2000. LUTON WHITE discusses how the herculean feat of changing the way Australians are taxed is often a harbinger to political defeat, and explains the economic implications of this stalemate to reform.

ignificant taxation reform is a heroic endeavour due to the breadth and scope of the economic impact and the vast array of affected parties. Taxation reform is of increasing importance as an ongoing pattern

of tax-base erosion has been observed. This is attributable in part to domestic structural changes but is also a result of tax competition with other sovereign states. These nations have been able to benefit from the tax driven behaviours of some multinational corporations. 1

THE POLITICAL DIMENSION The significance of taxation is that it touches nearly all economic activity. What’s more, other than

16

BAD APPLES? CHALLENGES OF INTERNATIONAL TAX TRANSFER PRICING REGIMES

borrowings, tax revenue is the big-ticket item that

Tax optimisation is to be expected of any

governments of all persuasions draw on to fund

entity with a commercial imperative and when

our services and payments. The mere thought of

properly executed is an entirely legal commercial

tax change invariably causes a severe inflammation

strategy. The ability of multinational corporations,

of the hip pocket nerve of ordinary Australians.

particularly those involved in the digital economy,

Consequently the political will to address significant

to shift revenues (tax transfer) to lower rate regimes

taxation reform is rare indeed. Politicians of recent

is of growing significance. ‘Double taxation’ treaties

generations have been schooled by their advisors as

ensure that these profits are taxed only once. These

to the significant role that proposed taxation reform

treaties effectively create tax competition between

played in John Hewson’s spectacular failure to win

sovereign entities.4

the supposedly ‘unlosable’ 1993 Federal election.

Taxing Times

‘…we still await our next significant tax reform.’

Recent reports have focused on Google Inc. and Apple Inc. that have utilised such arrangements so that profits that were prima facie generated in

Such was the persuasiveness of this position

Australia are not taxed here. It is thought that Apple

that when John Howard was re-elected leader of

has shifted over $90 billion of profits from Australia

the Liberal party in 1995 he pledged ‘never, ever’ to

in the past 10 years.5 Such is the flow of revenue

introduce a Goods and Services Tax (GST). Howard,

to lower tax regimes that wags in the taxation

however, was prepared to back himself over the

community have dubbed these ‘double taxation’

advice of others. Nonetheless his decision to take

treaties ‘no taxation’ treaties.

the GST to the 1998 election was punished by the Australian people with a 4.6% swing to the Labor

CONCLUSION

opposition. Howard was left with a reduced House

Changes in the global economy and in the

of Representatives majority based on a mere 49% of

way that business is done locally are elements

the two party preferred vote.2

of the threat to the Australian tax-base. Whether

REFORM PROPOSALS

our governments possess the courage to reshape our taxation system is currently unknown. What is

Setting aside the environmentally driven and

certain is that significant taxation reform is a growing

‘revenue neutral’ carbon tax, more than a decade

national imperative. The complexity of message,

later we still await our next significant tax reform.

coupled with a natural distrust and self-interest in

The mere mention of this tax proves that this area

the electorate, suggests that bi-partisan support is

has not been totally ignored by our governments.

essential for ‘root and branch’ taxation reform.

The Henry Report (Australia’s Future Tax System Review) was commissioned in 2008 and released in May 2010. Recommendations included developing robust and efficient tax-bases across personal and business income, private consumption, and economic rents from natural resources and land.3 The single major implementation from the Henry Report was to create the controversial and ultimately disappointing Minerals Resource Rent Tax.

1.

2.

3.

4.

5.

Commonwealth, Risks to the Sustainability of Australia’s Corporate Tax Base, July 2013. The Australian Government the Treasury Stephen Barber, ‘Federal election results 1901 - 2010’ Research Paper No 6, Parliamentary Library, Commonwealth Government, 2011).

Australia’s Future Tax System, Ken Henry, Report to the Treasurer (2009).

‘Risks to the Sustainability of Australia’s Corporate Tax Base’, Australian Government, The Treasury.

Neil Chenoweth, ‘Apple’s $9bn profit shift’, The Australian Financial Review, Thursday 6 March 2014.

What is the ALRC? Gavel, SalFalko, 2006.

By Bianca Newton

The name seems to come up in every law subject and legal controversy. But who are the ALRC? What do they really do? BIANCA NEWTON has the answers.

WHO ARE THEY? Australian

Law

Reform

Commission

(“ALRC”) is an independent statutory body

that operates under the Australian Law Reform Commission Act 1966 (Cth). This means that it is not controlled or influenced by Parliament or political bodies, enabling the Commission to focus on the best ways to assess current law

‘transparency about the process, and as much community and stakeholder involvement, as possible’. Whilst emphasising the importance of community input, she also cautioned against this input swaying the ultimate findings of the ALRC, stating that ‘it is necessary to sort out the background noise from the substance of

from a public policy perspective.

community concerns.’ The interplay between

WHAT DO THEY DO?

policy is central to the operation of the ALRC.

The ALRC conducts inquiries into areas where legislation may not be working effectively, or where there appear to be gaps. The critical analyses of these areas are published in order to keep the public informed. Once these research findings and initial reports become final, the government can decide whether they wish to implement the recommendations.

Often, the process commences when the Attorney-General, identifying an area requiring or likely to be subject to imminent law reform by parliament based on community concerns, refers the matter to the ALRC. The ALRC then conducts research into this area and critically analyses the area of law in question. The ALRC will ask for general submissions from legal practitioners, the general public and bodies with a particular interest in that area of law. They may also specifically invite submissions from bodies that may be adversely impacted by the current law or by proposed reforms. Professor Jill McKeough, former Commissioner for the Inquiry into Copyright law, provided at the 2014

community sentiment, the media, politics and Eventually, often after a second or even third round of submissions and debates, the final report is prepared and delivered to Parliament.

The government then decides whether or not they wish to implement these recommendations.

However, hindsight reveals that despite the laborious processes undertaken to ensure the recommendations are legally sound, parliament often forgoes their implementation, as in the case of the 1986 Report on Aboriginal Customary Law. This juxtaposes the arguably knee-jerk reaction of Parliament in implementing laws driven by public concern, such as the one-punch laws, raising questions as to the unintended consequences of poorly considered reform.

The independence of the ALRC is paramount – though it forms part of the Attorney-General’s portfolio, an essential component is their ability to make independent reports to Parliament without fear of repercussions. The Commission operates both reactively in responding to governmental requests, and proactively in researching and suggesting legislative improvements.

‘The ALRC conducts inquiries into areas where legislation may not be working effectively.’

17

What is the ALRC?

T

he

UTS LSS Speaker Series I that this was to ensure

WHAT IS THE ALRC CURRENTLY INVESTIGATING?

ARE THERE INTERNSHIP OPPORTUNITIES?

The four major inquiries currently being

The ALRC has an unpaid internship program

undertaken are: 1.

The

based in Sydney that gives current law students the

Freedoms

Inquiry:

A

review

of

opportunity to understand how legislation operates

Commonwealth legislation to identify provisions

on a practical level, and meet professionals deeply

that unreasonably encroach upon traditional

involved in the field. This internship program provides

rights, freedoms and privileges. Senator Brandis

excellent opportunities to improve research and writing

has commented that human rights ‘underpin

skills in a full or part-time role. Law students with an

the principles of democracy’ and so must be

interest in law and policy development or a particular

protected to ensure that individuals’ rights are

issue currently under inquiry are encouraged to apply.

valued.

While the ALRC generally accepts students in their

2. Serious Invasions of Privacy: The inquiry will

final years of an undergraduate or graduate law degree

address both prevention and remedies for

program, planning a CV in preparation or even checking

serious invasions of privacy in a digital age, and

the website for any other opportunities can also

look into the way current laws operate.

provide fantastic opportunities for students interested

3. Native Title Act 1993: The two areas that the ALRC will consider are connection requirements and authorisation and joinder provisions, and their impact on claimants’ access to justice.

4. Equality,

Capacity

and

Disability

in

Commonwealth Laws: Legal barriers for people with disabilities and a general principle of respect for inherent dignity are being scrutinised, with consideration being given to what changes could be made to Commonwealth laws and legal frameworks to address these matters.

18

in the policy behind the law. For more information, visit http://www.alrc.gov.au/about/legal-internship-program.

UNE Photos. 2010

Want to make a practical and real contribution to community welfare, but not sure where to start? Learn from KARA GOREY, who spent her summer interning with the Australian Legal Service through the Aurora Native Title Internship Program, about why you should make a difference and the invaluable skills you will learn along the way.

This is a database of criminal law cases that have considered Aboriginality - or more precisely, the factor of disadvantage experienced by a defendant

A

boriginal people are over represented in the

due to their Aboriginal background or the cultural

criminal justice system, both as victims and

practice of their community or Aboriginal customary

offenders. It is clear that significant legislative reform

law. Submissions based on considering Aboriginality

is needed to address this and to curb the alarming rates of incarceration. Since the Royal Commission into Aboriginal Deaths in Custody, the incarceration rate of Aboriginal people in NSW has risen by more than 50%. Despite this worsening crisis, the Abbott

‘…the Abbott government has announced that it will cut funding to Aboriginal and Torres Strait Islander Legal services across Australia by $13 million.’

government has announced that it will cut funding to Aboriginal and Torres Strait Islander Legal services

can be a critical element in defending Aboriginal

across Australia by $13 million. This will increase the

people and the case summaries aim to assist time-

barriers Aboriginal people face in accessing justice

stretched lawyers who are advocating for Aboriginal

and make it harder for organisations to advocate for

clients in court. Besides learning a lot about

law reform.

sentencing law, it was also a rewarding to know that

In light of the funding cuts, one way that law

my work would help the lawyers at the ALS.

students can provide assistance to resource-poor

After reading a few cases, I quickly saw why so

organisations is to volunteer their time with programs

many people are passionate about sentencing law.

and bodies, such as the Aurora Native Title Internship

It is a fascinating area of law and I came across

Program.

and

many engaging cases that we will never read in

graduates at Native Title Representative Bodies and

law school. Yet more importantly, the way judges

community organisations that work in Indigenous

apply sentencing law plays a huge part in reducing

affairs, policy development and human rights. Over

incarceration figures by diverting people away from

the summer break I participated in the program and

custody and in reducing recidivism rates.

The

Program

places

students

was placed at the Aboriginal Legal Service (“ALS”).

Participating in the program was an enriching

The ALS is a community organisation that provides

experience, not only because it sharpened my legal

legal advice and court representation to Aboriginal

research skills, but also because I could see that

and Torres Strait Islander people. An important part

the work that I did would, even in the smallest way,

of the work that the ALS does is advocating for

be useful to the organisation. I would encourage

law reform, and I was lucky enough to be able to

anyone, particularly students interested in criminal

contribute to this part of the organisation.

law reform, to apply for the program and to choose

A key objective of the ALS is to reduce the

to complete the internship at the ALS. Furthermore,

figures of Aboriginal incarceration. To contribute to

for students interested in Aboriginal or social justice

this objective, I researched cases from the District

issues, the Aurora Internship Program provides a

and Supreme Courts that discuss rehabilitation

unique opportunity to gain experience in these

programs for offenders as an alternative to prison. I

areas.

also spent time researching diversion from custody programs and rehabilitation services that could be identified in submissions to court, particularly for those clients affected by drug and alcohol addiction or mental health issues.

Another project I worked on was editing case summaries for publication on the ‘Australian Courts Considering Aboriginality’ database on AustLII.

To apply for the winter 2014 internships visit http://www.auroraproject.com.au/.

Applications close on 28 March. The following round of internships will be in summer 2014/15 and applications will open in August.

19

Experiencing Aurora

Aurora Project 2014

Experiencing Aurora

Criminal Conduct KANE KERSAITIS filters through the dusty pages of Australian legislation and case law regarding provocation to reveal the horrifying fact that the ‘homosexual advance defence’ still exits in Australian law books, and makes a call for why it should be repealed.

R

icky

20

Criminal Conduct

12

a box-cutter after she threatened to leave him.

October 2002. His murderer was a lodger he

Charles

Webb

was

murdered

on

Although it did not involve the homosexual advance

had taken in, despite his extensive criminal history

defence specifically, it nonetheless sparked public

and ongoing alcohol abuse. This lodger ‘indulged’

debate on the appropriateness of provocation as

himself at Ricky’s expense;1 making no attempt to

a partial defence.6 In response the government

find employment or alternative accommodation.

established a Select Committee and gave them an

Over time, Ricky developed feelings for this man,

enquiry with broad terms of reference, instructing

and they entered a sexual relationship. However, on

them to report on all aspects of the defence,

the night of the murder, Ricky’s attentions were not

including the possibility of abolishing it completely.7

returned. What followed was put by Justice Harper

The Committee found that 26% of homicide

as a ‘prolonged and frenzied assault by a person

offenders raised a partial defence between 1990

who was determined to occasion maximum harm

and 2004. Almost 50% of these were provocation

on another’. The violence moved through various

defences, and more than 65% of these defences

rooms in the house. It involved a skateboard, a knife

were successful.8

and probably a chair. They were the final, terrifying 2

moments of Ricky’s life.

Over this period, there were eleven cases in which a homosexual advance was alleged (equating

Yet the Supreme Court of Victoria found that

to nearly 10% of all matters with a provocation

Ricky’s homosexual advance was a mitigating factor

defence). Incredibly, there were even two matters

in sentencing, even though the jury had rejected

in which no more than a non-violent homosexual

the defence of provocation. Justice Harper even

advance was alleged.9

acknowledged that the case was not one where

The Committee also found that the defence had

‘[Ricky] was the predator and [the murderer was]

been abolished in a number of other jurisdictions,

his helpless victim’.3

and generally speaking, that abolition had been well

This horrifying case is just one example of where

received. It noted, however, that some alternatives

the so-called “homosexual advance defence” has

were simply labelled as ‘provocation in a new guise’.10

been used. Shockingly, this defence still exists in

Ultimately, the Committee recommended that

4

South Australia, New South Wales and Queensland.

the government retain the provocation defence,

The New South Wales parliament is, however,

so that it would still be available to long-term

currently debating statutory action to remove the

victims of domestic violence. It noted, however,

defence entirely.

that significant changes were required in order to prevent the defence from being abused.11 Some of

THE SELECT COMMITTEE ON THE PARTIAL DEFENCE OF PROVOCATION The

New

South

Wales

government

the recommendations included:

was

prompted to act following the highly publicised trial of Chamanjot Singh,5 who was found guilty of manslaughter for slashing his wife’s throat with

‘…the Supreme Court of Victoria found that Ricky’s homosexual advance was a mitigating factor in sentencing, even though the jury had rejected the defence of provocation.’

Mr.TinDC. 2009

Provocation and the ‘Gay Panic’ Defence

Renaming the defence ‘gross’ provocation and

would not commit to a timetable for when the Bill

rewording some of the requirements to emphasise

would be introduced.15 It would appear, however, that

the high level of provocation required;

Mr Koonin’s urgings were either rather fortuitous

2. Removing the requirement of a ‘loss of self-

or were heeded by the government, as the Bill was

control’ and replacing it with a less-ambiguous

introduced just days later.

and more explicit focus on the nature of the

THE BILL IS INTRODUCED TO PARLIAMENT

provocation; 3. Removing the availability of the defence for nonviolent sexual advances; and

Christian Democrats leader Reverend Fred Nile,

4. Preventing self-induced intoxication from being a

who was the chair of the Committee, introduced the

Mr.TinDC. 2009

factor in provocation.12

Crimes Amendment (Provocation) Bill 2014 to the

If these recommendations had been made and

New South Wales Parliament on 5 March 2014. The

implemented earlier, it is likely that the provocation

final Bill was almost completely unchanged from its

defence would have been unavailable to both Ricky

draft version, with only a few minor amendments to

Charles Webb’s murderer and Chamanjot Singh.

the wording of some subsections.

THE CONSULTATION PERIOD

and appropriate balance between restricting the

Reverend Nile stated that the Bill ‘strikes a careful

The New South Wales government accepted

defence and leaving it available for victims of extreme

the majority of the Committee’s recommendations;

provocation, including victims of long term abuse.’16

excluding only the recommendation to remove the

Attorney-General Greg Smith also said the Bill would

‘loss of self-control’ requirement. As a result the

ensure that ‘an accused can no longer use this excuse

Exposure Draft Crimes Amendment (Provocation) Bill

because their partner was unfaithful or wishes to end

2013 was released on 23 October 2013. Public feedback

the relationship.’17

was sought and submissions were welcomed until 14

The Bill does not, however, have full support at this

November 2013.

stage. The Labor party will seek to amend the Bill so

Overall, the feedback was positive, with most

that a history of domestic violence can be considered.

parties approving of the Bill’s underlying intentions.

It also wants to remove the ‘loss of self-control’

There were, however, a number of submissions,

requirement, as originally recommended by the

which were highly critical of the ‘loss of self-control’

Committee. Labor MP Paul Lynch recently said that

requirement

‘[a]llowing the full history of the violent relationship

remaining

intact.

There

were

also

submissions that maintained that the provocation

and its consequences into evidence is only fair.’18

defence should be completely removed. Perhaps

The Bill is still being debated in the upper house

the most well reasoned of these was that of Dr Kate

at this stage. It is currently unclear whether the Labor

Fitz-Gibbon, a lecturer and researcher in Criminology

party will support the Bill if its proposed changes are

at Deakin University, who argued that provocation

not supported by the New South Wales government.

should only be a factor in sentencing.

Although no amendments have been concluded,

After these submissions had been received, a

wide spread political support of changes to the

number of months passed with little comment on

provocation defence evinces the desperate need for

the draft Bill from the Government. The NSW Gay

law reform to invalidate the gay-panic defence, relied

and Lesbian Lobby convenor Justin Koonin called for action on 3 March 2014, stating that the matter should not lose momentum: ‘It is beyond time for our parliamentarians to accept this responsibility by abolishing the defence,

on by Ricky Charles Webb’s murderer.

1.

2.

3.

4.

5.

6.

bringing LGBTI people in NSW one step closer to equality, and most importantly ensuring that it can never again downgrade what would otherwise be a murder conviction to manslaughter.’ 13 He also said that there should be no barriers to the Bill being passed, given that there appeared to be

7.

8.

9.

10.

multi-partisan support for the changes. Independent MP Alex Greenwich also indicated that ‘[a]ll sides of politics have worked hard to get this legislation right,’ implying that the reforms did indeed have multipartisan support.14 A spokesperson for New South Wales Premier

11.

12.

13.

14.

15.

16.

Barry O’Farrell indicated that the government was

17.

‘still finalising feedback from the consultation’ and

18.

R v Smith [2004] VSC 134, [14].

Ibid [23].

Ibid [20].

Robert Simms, Licence to kill? Time to abolish the ‘gay panic’ defence (22 August 2012) ABC The Drum <www.abc.net.au/unleashed/4204460.html>.

Singh v R [2012] NSWSC 637.

See e.g. Harriet Alexander, Terrible emotional toll of the provocation defence (27 April 2013) Sydney Morning Herald <http://www.smh.com.au/nsw/terrible-emotional-toll-of-theprovocation-defence-20130426-2ijrb.html>; Kate Fitz-Gibbon, Time to act – provocation must be rejected as an excuse for murder (20 February 2013) Sydney Morning Herald <http://www.smh.com.au/federal-politics/political-opinion/time-to-act--provocation-mustbe-rejected-as-an-excuse-for-murder-20130219-2epdr.html>; David Donaldson, Murder or manslaughter... when provocation is the key (15 May 2012) Crikey <http://www.crikey.com. au/2012/05/15/murder-or-manslaughter-when-provocation-is-the-key/>.

New South Wales, Legislative Council Minutes No. 92 (14 June 2012) Item 10 cited in Select Committee on the Partial Defence of Provocation, Parliament of New South Wales, The partial defence of provocation (2013) iv.

Select Committee on the Partial Defence of Provocation, Parliament of New South Wales, The partial defence of provocation (2013) [2.54] Ibid [2.66] Hemming, A. (2001) Reasserting the place of objective tests in criminal responsibility: ending the supremacy of subjective tests, University of Notre Dame Australia Law Review, 13(1), pp 69-112 cited in NSW Legislative Council, Select Committee on the Partial Defence of Provocation Inquiry into the partial defence of provocation – Defences and Partial Defences to Homicide (2012) p 7.

Above n 8, chapter 9.

Above n 8, recommendations 4 to 8.

Serkan Ozturk, NSW Parliament Urged to Quickly Deal with ‘Gay Panic’ Law Reform (3 March 2014) StarObserver <http://www.starobserver.com.au/news/local-news/new-southwales-news/nsw-parliament-urged-to-quickly-deal-with-gay-panic-law-reform/119294>.

Ibid.

Ibid.

Liz Foschia, NSW legislation will limit ‘defence of provocation’ for murder charges (5 March 2014) ABC News <http://www.abc.net.au/news/2014-03-05/nsw-legislation-to-limit27defence-of-provocation27-for-murde/5300490>.

Bid to change provocation law in NSW (5 March 2014) Yahoo7 News <http://au.news. yahoo.com/nsw/a/21833515/bid-to-change-provocation-law-in-nsw/>.

Ibid.

21

Criminal Conduct

1.

Tied to Tradition Moving forward with Native Title

Just over twenty years after Mabo made history, the Native Title Act 1993 (Cth) is under review by the ALRC. BIANCA BALZER examines native title law to expose how it has become unworkable for many claimants and fails to accommodate the dynamic and living Indigenous culture.

T

he recognition of Aboriginal and Torres Strait Islanders’ native title rights is habitually celebrated as a hallmark of reconciliation between Indigenous and non-Indigenous Australians. However, practice has

gradually shown the system to be increasingly flawed, subsequently instigating review of its provisions.

In its essence, native title is the legal recognition of the connection that Aboriginal and Torres Strait Islander people hold with ‘country’.1 Legal recognition is created at the intersection of Aboriginal and English-based law, and thus native title law is innately complicated, although extremely necessary. Native title extends the law and sentiment of traditional tenure by acknowledging a pre-existing and legitimate entitlement to the land.2 The Native Title Act 1993 (Cth) (“the Act”) is the overarching legal framework for claims in native title. The legislation echoes the definitive judgment made by Brennan CJ in the landmark case of Mabo v Queensland [No 2] (1992) 175 CLR 1 (“Mabo”). Mabo was, and remains, the pinnacle of native title in action. However, though it gave promise to native title, in practice the laws have failed to meet their expectations.3

‘The requirements remove authority from contemporary Indigenous culture by imposing an abstract Indigeneity, which is time-frozen.’

22

Tied to Tradition

THE CONNECTION TEST

THE PRIMITIVE “OTHER”

Particularly problematic is the application of the

Such a restrictive application of the word

requirements set out in s 223(1) of the Act, which

‘tradition’, let alone the necessity to evidence

require Indigenous claimants to prove, inter alia,

its existence under the Act, serves to entrench

that they have maintained a continuous connection

Indigenous law and custom in a time past. This is

with the land, through traditional law and custom.4

a serious social and legal failing of native title that

These requirements, though possessing the original

prevents the law from reaching its potential as a

potential to operate with flexibility,5 have been rigidly

mechanism for reconciliation. The requirement

applied by the High Court, imposing a ‘museum

assumes that significant parts of Indigenous law

mentality.’6

and custom have not changed since the time of

The case of Yorta Yorta typifies the conservative

settlement. However, like every other dynamic and

approach taken by the High Court in the application

living culture, changes are necessarily part of their

of the connection requirement.8 In a majority

ebb and flow over time.

7

decision, the High Court held that the observance

However, by returning to pre-settlement roots,

and practice of traditional customs and ‘must

the Court establishes a typecast of Aboriginal

have continued substantially uninterrupted since

society that is backward and under-developed.

sovereignty,’9 and have existed ‘before the assertion

It forces an outdated, constructed identity on

of sovereignty by the British Crown’.10 Further, the

Indigenous people which acts to stifle movement

changes experienced by the Yorta Yorta people as

towards progression. The requirements remove

a result of European settlement were considered to

authority from contemporary Indigenous culture

be so substantial that the Yorta Yorta had lost their

by imposing an abstract Indigeneity, which is time-

character as a ‘traditional Aboriginal community’.11

frozen.12 By removing their authority, contemporary

It demonstrates that the current definition and

Indigenous cultures are questioned in a manner that

limitation of native title pursuant to s 223 conflicts

is both unrightful and irrational, in accordance with

with a continuing system of Indigenous law and

archaic stereotypes. This was evident in Yorta Yorta,

custom.

with the clan’s agricultural development being seen to alter to the nature of the society as it was before

Peter Nijenhuis. 2005

‘Even in the limited circumstances where groups are able to make a claim based on material elements of tradition…the rights and interests recognised by the Courts may only be nominal and symbolic.’ settlement to an extent that was disentitling.13 The

more with better consideration of the evolution and

change was characterized as an action that made

adaptation of culture. Numerous possibilities for

the Yorta Yorta a new and different group to that

this have been explored, and the ALRC is currently

which they descended from. As such, native title law

reviewing the Act. In the proposal put forward to

is critically detached from reality, with this unreality

the ALRC, it was suggested that the traditional laws

operating to perpetuate false images of Indigenous

acknowledged, and traditional customs observed

populations.

include those that remain identifiable through time,

PRACTICAL ISSUES ARISING FROM THE CONNECTION TEST

regardless of evolution in those laws and customs, and the manner in which they are practiced.17 The changes proposed are minute, albeit necessary for

Legally, the requirement of tradition under

greater flexibility in the system framing native title

the connection test often obliges that claimants

law. One would hope this would open the doors

construct a separate identity to fit into the restrictive

for true recognition of the inherent and complex

native title framework, despite the nuances and

relationship that Indigenous people have with

development of contemporary Indigenous culture.

‘country’ and progress the movement towards

Claimants are therefore often forced to ground their

reconciliation.

claim in the material aspects of their culture which demonstrate a connection to land, with the Court failing to take into account spiritual traditions and that are inherently part of Indigenous culture and spirituality.14 Even in the limited circumstances where groups are able to make a claim based on material elements of tradition that are still maintained, the rights and interests recognised by the Courts may as in many cases these recognised rights often fail to address the contemporary needs of the claimant group, providing limited provision for their economic and social development. Consequently,

Moyan_Brenn. 2011

native title fails to make use of its practical capacity and address the contemporary needs of Indigenous

1.

claimants.

2.

The burden of proof is a further practical issue as traditional Indigenous customs and laws have been

3.

repressed and rejected for a large part of Australia’s

4.

5.

6.

European history. The history of Indigenous land rights is a ‘broadly shameful one,’ bound in stories of dispossession, forced assimilation and removal.15 Despite this, the legal system fails to acknowledge past wrongs in an adequate manner in context of the Act. This is evidenced through its failure to make

7.

8.

concessions to the burden of proof for an interrupted

9.

connection to land in areas heavily affected by

10.

11.

12.

dispossession.

16

The conservative assessments of

connection are thus arguably hypocritical.

It is crucial for the reconciliation of all Australians

13.

that native title be fairly balanced, according to the

14.

interests of Indigenous and non-Indigenous people.

15.

16.

Fundamental to this is the clarification of the term ‘traditional’, so that it is interpreted and applied

17.

Australian Law Reform Commission, Review of the Native Title Act 1993, Issues Paper No 45 (2013), 12 [3].

Paul Keating, ‘Time to revisit Native Title Laws’ in Bauman, T & Glick, L. R. (eds.) The Limits of Change: Mabo and Native Title 20 Years On, (AIATSIS Research Publications, Canberra 2012) 410.

Australian Human Rights Commission, Social Justice and Native Title Report, (2013), 103 quoted in above n 1, 16 [51].

Native Title Act 1993 (Cth) s 223(1)(a).

Keating, above n 3, 413.

Jumbunna Indigenous House of Learning Research Unit, UTS, Submission No 17 to Senate Committee on Legal and Constitutional Affairs, Parliament of Australia, Inquiry into Native Title Amendment (Reform) Bill 2011, July 2011 quoted in Australian Law Reform Commission, Review of the Native Title Act 1993, Issues Paper No 45 (2013), 41 [117].

Members of the Yorta Yorta Aboriginal Community v Victoria and Others [2002] HCA 58.

See example Fejo and Mills v Northern Territory and Oilnet (NT) Pty Ltd [1998] HCA 58.

Members of the Yorta Yorta Aboriginal Community v Victoria and Others [2002] HCA 58, [87].

Ibid [46].

Ibid [191].

Gillian Colishaw, ‘Culture and the Absurd: the Means and Meanings of Aboriginal Identity and Cultural Revivalism’, (2012) 18 Journal of the Royal Anthropological Institute 397, 398.

Lisa Strelein, Compromised Jurisprudence (Aboriginal Studies Press, 2006) 91.

Australian Law Reform Commission, Review of the Native Title Act 1993, Issues Paper No 45 (2013), 27 [55].

Keating, above n 2, 408.

See Members of the Yorta Yorta Aboriginal Community v Victoria and Others [2002] HCA 58.

Australian Law Reform Commission, Review of the Native Title Act 1993, Issues Paper No 45 (2013), 43 [123].

Tied to Tradition

23

only be nominal and symbolic. This is problematic,

Lyn McNees, Aussie Aussie Aussie, Oy Oy Oy (2010)

{A Republic: truly the next step?} Once considered inevitable, JENNIFER GAMBLE considers whether taking steps towards creating an Australian republic is worth revisiting, or even feasible.

A 24

s a presenter of the Boyer lectures, Governor-

President would be voted in by a two-third majority

General Quentin Bryce once pondered, ‘…

of the federal Parliament, yet instantly dismissed by

perhaps, my friends, one day, one young girl or boy

the Prime Minister. This challenged the fundamental

may even grow up to be our nation’s first Head of

doctrine of separation of powers, setting the model

State,’ alluding to Australia’s supposedly inevitable

up for failure from its inception.6

A republic – truly the next step?

progression towards becoming a republic.1 Vote Compass conducted research in the latter

AN AUSTRALIAN HEAD OF STATE?

part of 2013 into people’s attitudes towards an

A republic is a system of government where

Australian republic. 1.4 million people responded to

supreme power resides in the people rather than a

the proposal that ‘Australia should end the monarchy

hereditary monarch. A highly controversial topic of

and become a republic.’ Only 38% of respondents

discussion is therefore the method by which a Head

were in agreement and 20% responded as being

of State would be elected. Perhaps the source of

neutral, revealing a decrease in support since the

this fascination stems from the fact that this new

lead up to the 1999 referendum.2

Head of State would replace the British Monarch,

With this minority support for a republic, is it

with which Australia undeniably shares significant

really the next inevitable step in Australia’s political

historical and cultural ties.7 Supreme Court Justice

and social evolution?

Richard McGarvie put forth the ‘McGarvie Model,’8

WHAT HAPPENED IN 1999?

aimed at minimising politics by establishing an Appointment

Committee

consisting

of

retired

Some argue that the dismissal of the Whitlam

judges, former Heads of State and former State-

Government triggered the formation of the Australian

Governors to elect a Head of State based on a

Republican Movement.3 Keating’s republic model,

constitutional formula. The council would make the

proposed in the late nineties, preserved the Crown

appointment on the recommendation of the Prime

in all its forms except in its capacity as the sovereign

Minister, much like the conventions that apply to the

Head of State.4 The 1999 referendum proposed

current Governor-General.9 This model, however,

that the Crown, as Head of State,be replaced by an

offers very little substantive change to the current

Australian Head of State, assigned with the existing

constitutional monarchy.

reserve powers in the Constitution. Despite polls

appointed by a group of retired elite rather than

preceding the referendum revealing general support

a popularly elected parliament, it will come as no

of a republic, it ultimately failed.5

surprise when the public reject the model.

Keating’s model only sought to effect a cosmetic

Alternatively,

legal

If the Head of State is

academic

Greg

Craven

change, which ultimately failed to convince the

suggests the Head of State could be elected

public of its necessity. The model proposed that the

by representatives from the Federal and State

voted in to participate in the election of the Head of

progression in Australia’s political and social history,

State.11 Although this proposal attempts to place a

there is little hope of it successfully eventuating.

greater emphasis on popular vote, it will eventually

Its capacity to enable significant reform to the

lead to a politicalisation of the election process,

Constitution so as to mould it to a contemporary

perhaps worsened by the opportunity it provides

context must not be underestimated. The fact that

for politicians to form allies concealed amongst the

it has this potential is precisely why it should not be

general public.

treated as inevitable. A mere expectation of change

This, however, does not alleviate the political nature of such an election.

He even suggests a model

It is not difficult to see why, with these criticisms raised, there is apprehension towards Australia

Timothy Swinson, Flag In The Breeze (2010)

where non-political members of the public are

‘If a republic is to be taken for granted as a natural progression in Australia’s political and social history, there is little hope of it successfully eventuating.’

Parliaments, similar to the process in Germany.10

without conscious action will not lead Australia towards a Republic.

becoming a republic, as the separation of powers is clearer with a non-political Head of State.

CONCLUDING THOUGHTS

WHAT IS MISSING? something

Quentin Bryce’s words appear to rekindle the

once

deemed

inevitable,

hope of Australia becoming a republic, however

the movement towards a republic is not on the

contemporary Government policy indicates the

current political agenda, nor has it been seriously

contrary. It is with great irony that Quentin Bryce,

contemplated since the 1999 referendum.12 There

having showed support for a republic, will soon be

may be several reasons for this.

awarded the honour of Dame as recognition for

Firstly, there is the undeniable historical tie to

her service as Governor-General.15

Prime Minister

the British Crown. The British monarch symbolises

Tony Abbott’s decision to re-introduce the honours

Australia’s

of Knight and Dame to pre-eminent Australians

and

membership

acknowledges

to

the

cultural

British

and

Empire

political

links

cements the relationship with the British monarchy.

It has been

Being a staunch constitutional monarchist and

suggested that the monarch’s appeal has been

a politician, one may wonder whether Abbott’s

revived by the celebrated fame of the young royal

re-introduction of these titles aimed to quash

family. Coupled with a general skepticism towards

anticipated republican sentiment revived by Bryce’s

politics, it is no wonder that as little as 38% of

comments.

that Australia maintains with Britain.

13

responses to polls showed support for a republic.

It may be that what is required is a stronger sense of an Australian identity.

For an Australian republic to be born, it must have support from all political factions. Indecision,

But how are the

skepticism and apathy are not the foundations

morals of a society that prides itself for being

upon which Australia should progress with a

multicultural able to be reconciled and consolidated

republic. There are a daunting number of complex

into a single identity?

Allegritti acknowledges

and controversial issues to be considered, which

that ‘there remains tensions in Australian political

perhaps explains why the question has not been

culture, tensions between political equality and

seriously raised since 1999.

cultural democracy, between multiculturalism and

even remotely feasible, the public first needs to be

monoculturalism.’14 The dangers of nationalism

united and interested in the possibility.

For a republic to be

have already been demonstrated by the White Australia Policy, rendering many Australians wary of cultivating a powerful nationalist sentiment, even where the outcome could distance the nation from its traditional ‘white’ colonial roots. discourse is the place of Indigenous Australians.

The significant reform involved in forming a republic would compel an official inclusion, or at least an official acknowledgment, of their historical, cultural and political role as part of the Australian public.

Parliament’s avoidance in officially acknowledging the role of Indigenous Australians points to an conservatism

inhibiting

2.

3.

Furthermore, noticeably absent from the republic

underlying

1.

4.

5.

6.

7.

8.

9.

10.

11.

12.

13.

14.

substantial

change to the Constitution.

If a republic is to be taken for granted as a natural

15.

Jonathan Pearlman, ‘Australia’s Governor-General suggests nation should become a republic’, The Telegraph (online), 22 November 2013, <http://www. telegraph.co.uk/news/worldnews/australiaandthepacific/australia/10467805/ Australias-Governor-General-suggests-nation-should-become-a-republic.html.> Benjamin T Jones, ‘An Australian republic is not inevitable’, Australian Broadcasting Corporation (online), 16 September 2013, <http://www.abc.net.au/ news/2013-09-16/jones-australian-republic-is-not-inevitable/4959890.> Mark McKenna, ‘The Republic, Democracy and reconciliation’ in Wayne Hudson, Alexander Jonathan Brown (eds), Restructuring Australia: regionalism, Republicanism and Reform of the Nation-state (Federation Press 2004), 98, 99.

Ibid, 102.

Bianca Hall, ‘Voters’ support for republic hits 20-year low’, The Sydney Morning Herald (online), 2 February 2014, <http://www.smh.com.au/national/voterssupport-for-republic-hits-20year-low-20140201-31txr.html.> McKenna, above n 3, 101.

Judith Brett, ’From Monarchy to republic: Into symbolic void?’ (1996) 20:47Journal of Australian Studies 17, 20.

Fiona Wheeler, ‘Comments: Six Republican Models for Australia’, (2001) 12 Public Law Review 241, 242 Brett, above, n 7.

Greg Caven, ‘The Republic: Is the 1999 Proposal beyond Repair?’ (2001) 3 University of Notre Dame Australian Law Revue 59 Ibid 65.

Hall, above n 5.

Jones, above n 2.

Inta Allegritti, ‘The Republic, citizenship and the politics of culture’, Australian Review of Public Affairs (online) 29 November 2004, http://www. australianreview.net/digest/2004/11/allegritti.html, accessed on 21 March 2014.

Alex McClintock, ‘Tony Abbott gives Australia a knight to remember’, The Guardian (online) 26 March 2014, <http://www.theguardian.com/ commentisfree/2014/mar/26/knight-dame-australia>

25

A republic – truly the next step?

For

Bert + Ernie, See-ming Lee, 2013

I Don’t

Legislative Fatigue, Engendering Marriage Equality and Legal-Political Spectacle Most think that ‘Same Sex Marriage’ represents the last hurdle to LGBQT equality. ALISON WHITTAKER disagrees – what actually lies beneath the political rhetoric?

N

SW Marriage Equality was on the horizon in 2013. I had heard nothing of my impending

liberation until I was told by the media and legal

26

“Marriage equality is a worthy outcome, but not a worthy cause.”

I Don’t

scholars that it would unshackle my pudgy lesbian

The bars set for a legal change of registered

ankles from homophobia. I was intrigued. Would

gender in NSW are already tremendously high, so

Labor mostly vote it up? Would Liberal mostly vote

much so to be harmfully prohibitive. This additional

it down? Would the Greens relentlessly frame it as

dimension

the great defining moment of our time, the end of

unnecessary financial, legal and familial upheaval

discrimination - a flagship for which my generation

and trauma for a simple legal manoeuvre - the

would be praised?

recognition of identity whilst having a ‘ring on it.’

With certainty.

sets

the

bar

higher,

and

creates

The NSW Marriage Equality Bill fell infamously

There have been many Marriage Equality Bills

flat on this issue, leaving noticeable ambiguity as to

brought forward in my time,1 the critical mass of

whether persons who seek to legally change their

politicking and ultimate bumbling failure of each is

gender would have to divorce and then undergo

as unremarkable as its is consistent.

a ‘same-sex’ marriage. Marriage equality? Not

I knew what would happen to the most recent

precisely.

Same Sex Marriage Bill 2013 (NSW). I, like many

Unlike the legislative issue of marriage equality,

fellow LGBTIQ people in NSW, had grown weary of

actions that are litigative in nature lead us to a

the spectacle.

political-legal relationship whose lines are blurred.

Not that I didn’t contribute to the conversation. It necessitated some critical response.

It was remarkable because it wasn’t marriage equality. It was same-sex marriage, and a pithy attempt at that.

To understand the difference, we must return to a

Enter Norrie v NSW Registrar of Births, Deaths and Marriages2, a battle taken to the High Court and won on Wednesday April 2, 2014.

This long and hard-fought case ultimately guaranteed the right for persons to be legally expressed

in

official

documents

(including

Bill you may have not heard of that takes a formative

identification and passports) as a gender that is

step towards marriage equality outside of equal

neither male nor female. It has opened some limited

marriage bills. The Bill to Remove Forced Divorce

avenues for persons who are intersex, sex and/or

of Transgender, flagged this year by Dr. Feruqi MLC

gender diverse to have their gender expressed in a

and Alex Greenwich MP, makes restorative mends

legal document, but only if they have had gender

to the Births Deaths and Marriages Registration Act

reassignment surgery.

1995 regarding the forced divorce of transgender

This is another hurdle generated by the NSW

persons. Presently, persons seeking to change their

Marriage

Equality

Bill.

The

Marriage

Equality

registered gender in an administrative setting must

Bill specified the gender of those who may be

divorce their current spouse.

married, without leaving any room for those who

Goodbye Rainbow Crossing, Zackary 1360, 2013

“You may have your marriage, sir and sir, but this gender-neutral person and this intersex person may not ring those wedding bells today.”

significant time, this is unlikely, it is worth questioning

are now registered as “X” gender. You may have

Deputy Opposition Leader Tanya Plibersek’s recent

your marriage, sir and sir, but this gender-neutral

ultimatum to the Opposition. Give Liberal members

person and this intersex person may not ring those

a conscience vote, she posits, and she will bring the

wedding bells today. Even if they have their gender

Bill to Parliament.

the broader strategy and its frame of reference.

A conscience vote for Liberals will not win

represented by the law.

Is this because of a less wealthy base of lobbying

marriage equality, despite equal marriage being

dollars? Likely, as the ‘gay marriage’ coalition has

Labor’s national platform. The shift in votes will be

been propped up by wealthy LGB persons and their

negligible. It will fail again, though it may not have

allies, most recently in ANZ’s sponsorship of Mardi

failed if they acted before the election. But then,

Gras. Is it because discursive and party politics

where would the ‘Rainbow votes’ go if not enticed

are yet to embrace trans and intersex equality in a

by potential reform? And would they compensate

meaningful way? Also, likely.

for the decompression of the anti-marriage equality

Rally for Same Sex Marriage, Perhaps Magazine, 2010

These are often fights that are unwinnable, and nothing demonstrates this more clearly than

The question remains, what would an inclusive Marriage Equality Bill look like? It would probably look like the removal of gender from the picture altogether.

Besides this, many Same Sex Marriage Bills put forward had almost no chance of success, and were drafted so carelessly so as to be a legal shambles had they indeed passed.

The Marriage Equality Bill (Same Sex) Act 2013 (ACT) (“the Act”) is certainly commendable in its attempts to outline non-specificity in gender, which would arguably assist trans persons seeking correspondence with intersecting bills introduced

vote?

recently regarding trans birth certificates. I say

These may be uncomfortable conversations

“arguably”, because this allowed couples to remain

as lawyers. Whilst we understand the slippery

married for only five days before it was struck

coupling of politics and law, in interpreting law, we

down, and still made reference to people’s ‘sex’,

are sometimes encouraged to baulk from it. These

despite using the deliberately amorphous descriptor

are the critical political-legal conversations we must

of ‘people.’

have about legislative reform when the interplay

3

The Act itself was not in any meaningful way about marriage equality, but instead about teasing

of votes, media and legislation is so very clear yet greasy.

Is there a solution? I don’t know. I chortled

apart the relationship between the Commonwealth and its Territories.4

like most law students when my local member,

Marriage equality was a politically sound chip to

Tony Windsor, suggested a referendum for equal

dangle before the Commonwealth; progressive and

marriage, but at least he sought a creative mend. It

conservative governments at both the Territorial and

may not have a solution at law as we understand it,

Federal levels had established positions on the issue.

which makes us uneasy as law students.

There were no surprises, but there was standard

Marriage equality is a worthy outcome, but not

political positioning. Rainbow voters expressed their

a worthy cause. Even this generously-saturated

support of the Act, marriages within its short lived

discourse which dominates LGBTIQ activism is not

enactment were documented on Buzzfeed. Action

being utilised to its full potential; poorly-drafted

in the High Court was guaranteed, and the Act was

Acts fail time and again. Parliaments across the

struck down.

country are fatiguing marriage equality supporters

Cynicism aside, there is an arguable case that

and voters. Further, they are fatiguing the legislative

the ACT Act was itself some form of litigious

duty to produce well-drafted, tested, consultative

activism by proxy, prompting the High Court to set

and inclusive legislation that will not place a faulty

some persuasive precedent that shifts the power

and exclusionary stitch in the marriage equality

of marriage legislation the Federal Government in

fabric that may take years to unravel.

hope that this centralised power will be utilised by

1.

a progressive legislature in future. However, given that recent political climates indicate that, for some

2.

3.

4.

For example, the “Same-Sex Marriage Bill” 2010 (introduced by the Greens), the “Marriage Equality Amendment Bill” 2012 and the “Relationships Register Bill” 2010.

[2013] NSWCA 145.

Elizabeth Byrne, ‘High Court Throws Out ACT’s Same-Sex Marriage Laws,’ ABC News, 13 Dec 2013.

The Commonwealth v Australian Capital Territory (2013) 394 ALR 204.

I Don’t

to change their legal gender while married in

Dave Traynor. 2007

Foster the Children The uncertain fate of foster children

28

Foster the Children

The stories of foster children, and those that open their homes and hearts to them, are rarely those that we see plastered upon our media stands. However, MICHELLE SMERDON has some news for you – the current system does not adequately cater to foster carers and children who desperately want to establish a legal connection through adoption. While it is difficult to strike a balance between the best interests of the child and the rights of the birth parent, Michelle explains that, undoubtedly, reform is necessary and it can’t come soon enough.

7

00 foster children remain on the waiting list to

The legal difficulties faced by foster carers

be adopted in NSW.1 These children have often

desiring to adopt their foster children has led to

experienced a childhood of prolonged abuse and

an urgent need for reform to adoption laws. In

inadequate care and neglect at the hands of their

November 2012, the Hon. Pru Goward MP, Minister for

birth parents. Their foster carers, whom they have

Family and Community Services, answered this call.

formed a stable connection to and call ‘mum’ and

Goward proposed sweeping reforms to adoption

‘dad’, desperately desire to adopt them. However,

laws in NSW, seeking to reinvigorate adoption

the adoption process is far from simple and the

as a viable option for foster children. While the

hurdles they are faced with are far too arduous.

Child Protection Legislation Amendment Bill 2013,

In fact, as little as 81 foster children were adopted

assented to on 1 April 2014, provides that adoption

last year and in 2012 Australia recorded ‘the lowest

must now be considered as a much higher priority

annual number of finalised adoptions since national

for children in foster care than ever before, there has

data has been collected’.

been no change to adoption laws and processes and

2

promised reforms to the Adoption Act 2000 (NSW) have not yet occurred.

‘More than anything, a child who enters care after being subjected to abuse or violence is in need of a permanent and stable environment that can be found with adoptive parents.’

OUR CURRENT LAWS

drug use, the adoption plan made provisions for

society’s attitude to adoption, providing for adoption to be characterised by openness and honesty rather than secrecy and deception.

In an effort to refrain from repeating past mistakes of forced adoption, the Act attempts to safeguard the rights of the birth parents by ensuring that no child is removed without regard for the birth parents’ wishes. However, in instances where children are removed from their birth parents due to drug abuse, domestic violence or mental instability of the parents,3 it is arguable that the pendulum has swung too far and these birth parents have too many rights, to the detriment of children seeking adoption by their foster carers.

Currently, an application for foster care adoption occurs long after the child is removed from their birth parents and the birth parents may continue to face issues in their personal lives. When a foster child requests adoption by their carers, the law requires that the birth parents’ consent is required if the child is below 12 years of age. If the birth parents desire, they can contest the adoption.

The requirement to obtain parental consent can be difficult in circumstances where there has been no contact between child and parent for numerous years. Goward draws attention to the delays these provisions can create in the adoption process, stating: ‘where parents have been disengaged or cannot be located, significant efforts are needed to re-locate parents, often after long periods without contact... Fulfilling these requirements can cause significant delay in the making of an adoption order for a child.’4 UnitingCare drew attention to the difficulty in obtaining birth parents’ consent to the adoption once located, stating, ‘it can be very difficult for parents to let go even if they acknowledge that they are unable to care for their child’.

5

Further, if the adoption is successful, the laws intend for an Adoption Plan to be formulated, which provides for contact arrangements between the child and the birth parents. Recommencing contact with a birth parent can have detrimental impacts for the child in circumstances where the child has initially been removed from the birth parents’ care for child protection concerns such as physical abuse, mental instability or alcohol abuse within the family home. This issue was highlighted in Re Stephen,6 in which Slattery J noted that, despite the fact that the parents had had no contact with the child for 5 years, and had a significant history of violence and

contact between the child and the parents, being ‘far more contact’…’between [the birth parents and the child] after [the child’s] adoption if they wish to have it’.7 Further, the current laws require foster carers to undergo rigorous assessment prior to the adoption, and the legislation does not accommodate for circumstances where they have already been assessed by Community Services in order to become foster carers. UnitingCare provided that ‘it takes 150 hours to do an adoption assessment, usually over an eight month period’.8 It is clear that amendments to the Act are necessary in order to make adoption a viable family arrangement.

THE PROPOSED REFORMS The Goward Reforms seek to reduce red tape and speed up the permanent care placement of children and young people where restoration to the birth family is not possible. Goward illuminates that adoption is now preferable to foster care, stating, ‘What we’re now recognising is that keeping a child safe is not enough, a child needs more than to be kept safe, a child needs a permanent home, people who love them, and understand them, that they trust and all that can only occur in a permanent arrangement, not a short-term one.

‘What children really need, the ideal, is a home for life,’ she said.9 The reforms provide for additional grounds to dispense with a birth parent’s consent where the parent is unable to care for and protect the child, for example if the parent is incarcerated for an offence against the child, or the parent repeatedly neglects to comply with parental duties.10 Such provisions directly relate to children in foster care and are welcomed amendments to the legislation. These reforms would likely allow for easier dispensation of consent, particularly in instances where the child has been in long term care with the proposed adoptive parents and the birth parents have had little or no contact with the child during their lifetime.

Further proposed amendments acknowledge that foster carers should not be required to undertake full assessment and authorisation as a prospective adoptive applicant, and instead propose that assessment to be a foster carer and an adoptive parent occur simultaneously.11 This will improve efficiency within the adoption process and ensure children achieve long-term stability and permanency at a quicker rate.

29

Foster the Children

The NSW government introduced the Adoption Act 2000 (‘the Act’) as an effort to revolutionise

‘The provisions do not assist the adoption of children who have been in foster care for a lengthy period of time, and who do not need the psychological burden of reigniting CONCLUSION It is clear that the current adoption laws do not their past history of neglect or abuse.’

A major reform proposed is the creation of provisions that would allow Community Services not to advise the birth parents of the adoption application where parental responsibility for the child has been taken away from them and there is no realistic possibility of restoration.12 This means that all children under the parental responsibility of the Minister, which would be the majority of children seeking adoption in foster care,13 will be able to be adopted without advising their birth parents of the adoption. It may be argued that this provision completely dismisses the rights of the legal birth parent. While it is important that the Act supports the principle propounding that the best interests of the child must be upheld, changing a child’s legal parentage without notifying their parents is likely to go beyond the realms of what is morally correct. The Family Issues Committee submitted that ‘children have the right to have their parents be heard on this issue’ and ‘the legislature should be very cautious when considering amendments which have the

30

effect of denying parents this opportunity’.14

accommodate for foster children who have formed a stable connection with their foster parents and seek adoption. This is particularly true where children have a harrowing child protection history and there is no realistic possibility of restoration to their birth parents. It is clear that adoption in these situations is preferable to foster care as, more than anything, a child who enters care after being subjected to abuse or violence is in need of a permanent and stable environment that can be found with adoptive parents.15 Selwyen argues that children placed in foster care without the security of an adoption order are ‘left anxious and uncertain about their future’ and ‘the children felt they belonged to nobody, having a different surname from the adults with whom they resided’.16 The reforms proposed by Goward seek to overcome barriers and reduce delays, and are thus to be applauded. However, it is important for the Government to formally act on Goward’s proposals to ensure that all children in foster care have the chance to experience permanency, stability, and a family for life.

1.

Foster the Children

2.

3.

4.

5.

6.

7.

8.

9.

10.

11.

12.

13.

14.

monkeyc.net. 2006

15.

16.

Australian Institute of Health and Welfare, Australian Government, Adoptions Australia 2011-12 Annual Report, 14 December 2012, 13.

Jeremy Sammut, ‘The Fraught Politics of Saying Sorry for Forced Adoptions: Implications for Child Protection Policy in Australia’ (2013) Issue Analysis 138, vi.

Australian Institute of Health and Welfare, Australian Government, Adoptions Australia 2011-12 Annual Report, 14 December 2012, 13; Australian Institute of Health and Welfare, Australian Government. Child Protection Australia 2011-12, Child Welfare Series 55, 2013; Jeremy Sammut, ‘The Fraught Politics of Saying Sorry for Forced Adoptions: Implications for Child Protection Policy in Australia’ (2013) Issue Analysis 138, 5.

NSW Department of Family and Community Services, Child Protection: Legislative Reform, Legislative proposals, Strengthening parental capacity, accountability and outcomes for children and young people in State care, Discussion Paper (2012) 41.

UnitingCare Burnside, Submission to the NSW Department of Community Services, Review of the Adoption Act 2000, May 2006, 3.

Director General Department of Family and Community Services; Re Stephen [2011] NSWSC 1521, 77.

Ibid.

UnitingCare Children, Young People and Families, Submission to NSW Department of Family and Community Services, Child Protection: Legislative Reform, Legislative proposals, Strengthening parental capacity, accountability and outcomes for children and young people in State care, 21 March 2013, 14.

Ibid.

Ibid.

Ibid.

Ibid.

Australian Institute of Health and Welfare 2013. Child protection Australia: 2011–12. Child Welfare series no.

55.

Law Society New South Wales on behalf of Family Issues Committee and Indigenous Issue Committee, Submission to NSW Department of Family and Community Services, Child Protection: Legislative Reform, Legislative proposals, Strengthening parental capacity, accountability and outcomes for children and young people in State care, 22 March 2013, 20.

Above n 2.

Director-General, Department of Community Services v D and Ors [2007] NSWSC 762, 169.

31

Want the inside scoop on landing a role at Clayton Utz? Find it on Facebook! www.facebook.com/ClaytonUtzCareers

kT LindSAY. 2008

Zoe’s Law

Extending the rights of the unborn child She is the little girl who was never born, yet has an infamous Bill named after her. HARRY POWER investigates the legal status of Zoe, an unborn child, to demonstrate far-reaching consequences of the proposed ‘Zoe’s Law’ Bill.

32

O

n Christmas Day 2009, Brodie Donegan was

As such, Mrs Donegan lobbied her local member,

crossing the street when she was struck by a

Mr Christopher Spence, to enact legislation which

van that had veered off the road. Mrs Donegan, who

would recognize Zoe as a legal person. Crimes

was 32 weeks pregnant, was trapped under the van

Amendment (Zoe’s Law) Bill 2013 (No 2) was that

for three hours and when she was finally extracted,

resulting legislation.

her baby was delivered stillborn at the hospital hours later. The baby’s name was Zoe.

The Bill passed the NSW Lower House on 21 November 2013 and is set to go before the Upper

The driver, who was under the influence of drugs

House soon, where it is expected to be defeated.

at the time, was charged with dangerous driving

It has been the subject of considerable media

causing grievous bodily harm. In line with NSW

scrutiny and political resistance. And rightly so; for

common law,1 the loss of Zoe was considered part

the Bill purports to dramatically alter the current

of the injuries sustained by the mother. As foetuses

legal understanding of the foetus by bestowing it

do not possess legal personality until they are born,2

with legal personhood, in strict circumstances. This

no charges were laid with respect to the loss of Zoe

simple change threatens far-reaching (and likely

itself.

unintended) consequences both legally and socially.

Understandably, Mrs Donegan was distraught by

For these reasons, the Bill has been opposed by

this fact. Her baby had been given a name and death

a host of organisations concerned4 the Bill will

certificate and a ceremony had been performed

threaten to abrogate woman’s right to seek abortion

in honour. To her, Zoe was as real a person as you

throughout NSW.

or I.

However, the law had not recognized her.

3

The Bill proposes to amend ss 4 and 8A of the Crimes Act (NSW) such that, for the purposes of specific crimes only, a foetus which is over the 20 week gestational period or 400 grams is taken to be a legal person ‘despite any rule of law to the contrary.’ The effect of this is that where a person who commits one of the specified crimes which causes the destruction of a foetus, charges may be laid for the crimes committed against the foetus itself.

The legislative basis for this threshold test was taken from the Births, Deaths and Marriages Registration Act 1995 (NSW), which allows a stillborn child over those parameters to be registered as a birth and given a peri-natal certificate of death. However, as the NSW Bar Association has 5

cautioned6 that careful consideration must be taken when transferring this threshold to criminal law, for the two raise entirely different issues. One is concerned with the registration of a person for bureaucratic purposes; the other is concerned with the justifications for criminal sanctions of a person by the State.

By granting foetuses legal personality the Bill threatens to dramatically disturb the precarious position that they currently occupy in NSW criminal and civil law. Historically, the Courts have refused to recognise the foetus as a legal person.7 Hence, unborn foetuses cannot be the victim of crime.

Rather, as Heilborn J stated in C v S:

8

‘…a child, after it has been born, and only then in certain circumstances, based on he or she having

a right, may be a party to an action brought with regard to such matters as the right to take, on a will or intestacy, or for damages suffered before birth.’

R v Iby9 considered whether a 38 week-old foetus could be the victim of manslaughter caused by dangerous driving. The child was born in hospital, and lived two hours on mechanical life support before dying. The Court affirmed the ‘born-alive’ rule, holding that even though the foetus had lived, albeit dependent upon the aid of mechanical life support, it had demonstrated the requisite ‘signs of life’ which showed it had an ‘existence separate from and independent of its mother.’ 10 In their judgment, the Court implicitly recognised the power of modern medical technology in preserving the lives of premature babies or foetuses injured throughout the course of pregnancy. This raises questions of viability and its impact on the personhood debate; namely whether the threshold for personhood should be when the foetus can sustain it’s own “meaningful life” independent from the mother. As some have argued, there are strong medical and moral reasons for recognising the foetus as its own separate person when it nears the full gestational period.11 At this late stage, the foetus may very well have become viable; able to sustain a healthy and meaningful life independent from the mother. Noting the critical importance of medical science in understanding this area;12 some philosophers have argued that at this point of viability, the only distinction between a newborn infant and a late stage foetus is a matter of geography.13

33

Zoe’s Law

WHAT THE BILL INTENDS TO DO

‘The effect of this is that where a person who commits one of the specified crimes which causes the destruction of a foetus, charges may be laid for the crimes committed against the foetus itself.’

Bart Heird. 2010

‘It would be a mistake to classify this Bill as overtly “anti-abortion”…’

However, this view fails to appreciate the interconnectedness

that

belies

the

reality

terminations. It would be a mistake to classify this

of

Bill as overtly “anti-abortion” as many commentators

pregnancy. As attractive it may be to take viability

have suggested.18 However, the Bill must be viewed

as the one determining factor on personhood, this

in its wider state and national context. In NSW,

fails to appreciate the unique, personal experience

abortion remains unlawful,19 protected only by the

which pregnancy presents. Ashe explains:

common law.20 The Northern Territory is considering

‘Even to speak of the pre-birth period as one of

implementing laws making it an offence for a

mother-child “interdependence” does not begin to

pregnant woman to drink dangerously so as to harm

do justice to the experiential reality of pregnancy as

her foetus.21 There is talk in Victoria of amending

a state of being that is neither unitary nor dual…’

legislation so that doctors conscientiously object

14

Thus, the legal personhood of a foetus cannot be separated from its relationship with its mother.15 In

light

of

these

complicated,

to abortion are not required to refer their patient to another doctor.22

contrasting

Taken cumulatively, it is clear that the political

viewpoints, it can be well argued that the law’s

discourse is certainly taking a direction towards a

current understanding is one of ‘convenience’ not

greater recognition of foetal rights. Zoe’s law must

grounded in ‘medical or moral principle.’16

therefore be viewed as a milestone of legislative

As such, the Courts have thus far refused to

endorsement of legal personhood. For, invariably,

acknowledge the personhood of the foetus to avoid

where the foetus is recognised in one area as a legal

the significant dilemmas that would result between

person, no matter how restricted that areas is and

the competing rights of the child and the mother. As

how sympathetic its reason, this characterisation will

was elegantly put by the Canadian Supreme Court

spill into other areas both of criminal and civil law.

in Winnipeg CAFS v G:

This would lead to the inevitable conflict between

17

‘To permit an unborn child to sue its pregnant mother to be would introduce a radically new

34

conception into the law; the unborn child and its

Zoe’s Law

relation. Such a legal conception, moreover, is belied

mother is a mutually separable and antagonistic by the reality of the physical situation; for practical purposes, the unborn child and its mother-to-be are bonded in a union separable only by birth.’

rights of the mother and the foetus and caution of the Bill is thus supported.

1.

2.

3.

4.

following Mrs Donegan’s incident, concluded that

5.

6.

7.

8.

9.

10.

11.

there should be no change to the law, else it gives

12.

Indeed, it was for this very reason that Campbell QC, who conducted a review of the area in 2010

rise to such conflicts between the rights of the mother and the child.

It is this context that Zoe’s Law threatens to disrupt. By legislatively endorsing foetal personhood, the Parliament could well set the precedent for further arching legal recognition.

THE WIDER PERSPECTIVE The Bill contains two important exemptions.

Firstly, it cannot apply to anything done ‘in the course of a medical procedure or medical treatment.’

Secondly, nothing in the act will apply to anything done ‘by, or with the consent of, the pregnant woman concerned.’

These two provisions seemingly function as powerful prohibitions against action being taken against mothers or medical practitioners for medical

13.

14.

15.

16.

17.

18.

19.

20.

21.

22.

R v King [2003] NSWCCA 399.

R v Iby [2005] NSWCCA 178; Crimes Act 1900 (NSW) s 20.

Brodie Donegan, ‘In the eyes of the Law, her daughter’s death doesn’t count’, Mamamia.com, 8 September 2013 <http://www.mamamia.com.au/social/zoeslaw/>.

Including the Law Society of NSW, the Bar Association, the Australia Medical Association, and a coalition of women’s groups; including Women’s Legal Services NSW, Family Planning NSW, and Rape and Domestic Violence Services Australia.

Births, Deaths and Marriages Registrations Act (NSW) 1995 ss 4, 12 Letter from Phillip Boulten SC to Mr Spence, 6/9/2013.

AG’s Reference (No. 3 of 1994) [1998] AC 245 at 261, per Lord Mustill [1988] QB 135.

(2005) 63 NSWLR 278, 339.

(2005) 63 NSWLR 278, 339.

Kristen Savell, ‘Is the ‘Born Alive’ Rule Outdated and Indefensible?’ (2006) 28 Syd LR 625.

There is some evidence to show that foetuses may be viable from as early as 20 weeks. However, the bulk of medical science demonstrates that the foetus will mostly be viable after 24-26 weeks.

Peter Singer, Practical Ethics (1999), 152-156; Jose Bermudez, ‘The Moral Significance of Birth’ (1996) 106 Ethics 378, 386.

Marie Ashe, ‘Law-Language of Maternity: Discourse Holding Nature in Contempt’ (1988) 22 New Eng LR 512.

The Courts have endorsed this view in Paton v British Pregnancy Advisory Service Trustees [1979] QB 276. This was approved in Re F (in utero) [1988] 2 WLR 1297 at 1306 per Staughton LJ. Harrilf v Director of Proceedings [2003] 3 NZLR 289 at 313 per McGrath J. This was cited in R v King [2003] NSWCCA 399 at 488. This view was also supported by the Canadian Supreme Court in Daigle v Tremblay [1989] 2 SCR 530.

(1997) 152 CLR (4th) 193 (Major and Sopinka JJ).

See Women’s Electoral Lobby, ‘Zoe’s Law a Trojan Horse for Nile’s anti-choice agenda’ (Online, 1 July 2013).

Sections 82-84 of the Crimes Act (NSW) makes it an offence for a woman to unlawfully administer any drug, noxious thing, or instrument with an intent to procure a miscarriage punishable by imprisonment for up to ten years.

R v Wald (1997) 3 DCR (NSW) 25 (Levine J); CES v Superclinics (1995) 38 NSWLR 47 (Kirby ACJ); R v Davidson [1969] VR (Unreported, 667).

Lateline, ‘Drinking alcohol during pregnancy targeted as NT Government considers rights of unborn child’, ABC News Online, 14 March 2014.

Henrietta Cook and Richard Willingham, ‘Geoff Shaw bacls Bernie FInn on controversial abortion claims ‘, The Age (Victoria), 19 March 2014.

{

No Bull

Workplace Bullying is Out

}

In a society where we are trained to work for a living, the Fair Work laws will impact us all. SAGE NEMRA investigates the changing legal discourse towards workplace bullying, and the effectiveness of the new reforms to date.

O

n 23 February 2014, news broke across Australia

relied upon in the Explanatory Memorandum to

of the death of Charlotte Dawson. Plagued by

the Bill. For the purposes of the Code of Practice,

depression and publicly cyber-bullied, Dawson took

unreasonable behaviour is that which a reasonable

her own life. Yet, hers is not the only story that has

person would regard as unreasonable in the

been plastered across our television screens and

circumstances, for example victimising, humiliating,

newspapers. Bullying has quickly made its way onto

intimidating or threatening.

the social agenda as it claims the lives of some and significantly affects others.

Interestingly, the new provisions do not apply to the Defence Force, several federal security

But what happens when physical and mental

agencies, certain State public sector employees or

abuse, humiliation and victimisation, that which we

unincorporated partnerships. Section 789FD(2) also

would normally associate with schoolyard behaviour,

expressly excludes reasonable management action

occurs in the workplace? In some circumstances,

carried out in a reasonable manner from the being

albeit rare, this can have particularly serious

subject of any application.

consequences for victims, such as Alex Miekle, a 17-year old boy who took his own life in 2008 after months of being bullied at work as an apprentice

THE GUINEA PIG CASE: KATHLEEN MCINNES The Commission delivered its first decision in

HOW DOES THE LAW PROTECT EMPLOYEES IN THE WORKPLACE?

which it applied provisions of the Amendment Act on 6 March 2014. Ms Kathleen McInnes applied for an order to stop bullying which she alleged

Unfair dismissal, anti-discrimination and sexual

occurred at her workplace over a six-year period.

harassment legislation work to protect the rights

Her employer responded to the claim by arguing

and interests of employees, and provisions in these

that the Commission lacked jurisdiction to consider

areas have undergone significant change. However,

the application. The issue for determination, and

the issue of workplace bullying has recently been

the reason for which this case is now so critical to

placed at the forefront of employment law reform as

employment relations, was whether the Commission

the Commonwealth Parliament passed the Fair Work

has the jurisdiction to consider alleged conduct

Amendment Bill (“the Bill”) in June 2013. This statute

that occurred prior to the commencement of the

came into effect on 1 January 2014 and grants the

amended provisions.

Fair

Work

Commission

(“the

Commission”)

The Commission rejected the submission made

jurisdiction to make an order it considers appropriate

by the employer. The reference to ‘is at work’ in

to prevent a worker from being bullied at work.

s 789FD(1)(a) was found to merely provide the

WHAT IS ‘WORKPLACE BULLYING’ AT LAW?

context within which the bullying must have taken place, and does not itself limit the scope of the provision to only conduct that occurred after the

The Fair Work Amendment Act 2013 (Cth) (“the

new provisions came into force. In fact, it was held

Amendment Act”) provides that a worker is bullied

that past conduct could provide the basis for a

at work where an individual or group of individuals

prospective order to stop bullying. The matter has

‘repeatedly behaves unreasonably towards the

been remitted for further hearing and determination

worker, or a group of workers of which the worker

of remaining issues.

is a member; and that behaviour creates a risk to health and safety.’1

For now, the Fair Work Commission reports that the number of complaints made since the

The basis of this definition is found in the Safe

commencement of the new laws has been much

Work Australia draft model ‘Codes of Practice.’ These

lower than expected, with just 44 complaints in the

codes are also what the Commission is likely to rely

first month. Only time will tell how effective such law

on for the definition of ‘unreasonable behavior,’ as

reform is in being able to respond appropriately to

it was omitted from the Amendment Act itself, but

complaints and incidents of workplace bullying.

1.

s 789FD(1).

35

No Bull

engineer.

Why Australia’s approach to processing refugees must change

Refugee law and policy is again on the agenda in the wake of the death of Iranian refugee Reza Berati at Australia’s offshore processing centre in Manus Island. JON SCHILD discusses the sub-par conditions in these centres and the need to reform the way in which asylum seekers are processed.

W

ould a reasonable person choose to create

the veil of ignorance is a thought experiment which

‘…the veil of ignorance is a thought experiment which puts people in a position where they choose the structure of society without knowing what their class or position is within that society.’

puts people in a position where they choose the

unfair.4 A UNHCR representative noted that if not

structure of society without knowing what their

addressed, the waiting time and uncertainty during

class or position is within that society. The result

processing, coupled with the physical conditions

is usually that choices are made that most benefit

at the OPCs, could lead to a ‘rapid degradation

the worst off in society. In relation to refugee policy,

of psycho-social and physical health.’5 The recent

this approach requires all to look from the refugee’s

unrest in Manus Island’s detention centre in March

perspective and experience, and truly consider if the

2014 is an all too vivid reality of this. A human rights

process is just.

inquiry into the centre was launched after Iranian

the same refugee policy and structures

as Australia currently has if they were to make law and policy decisions from behind the ‘veil of ignorance’? Popularised by philosopher John Rawls,

36

Operation Sovereign Borders was an initiative

refugee Reza Berati was killed and 77 others injured

of the Abbott Government, based on campaign

in a violent riot. However violations may persist

promises to ‘stop the boats’. A key standout of this

unchecked as the Papua New Guinean government

Operation was the renaming of the Department of

on March 21 obtained a stay order from the Supreme

Immigration and Citizenship to the Department of

Court to shut down the inquiry.

Behind the Veil of Ignorance

Immigration and Border Protection. Little information

In February 2014 the Australian Foreign Minister

on the project has been available to the public, with

met with Cambodian officials to discuss the possibility

the Prime Minister comparing this lack of information

of Cambodia accepting refugees attempting to

to the need for secrecy during war times. With the

enter Australia.6 This approach however is fraught

government evincing a generally unfavourable view

by the fact that Cambodia is itself a place from

of refugees,1 the policy of offshore detention and

which a person might flee persecution. If a person

processing has continued.

seeking asylum in Australia, after a long period of

Under the International Refugee Convention

arbitrary and mandatory detention in substandard

Australia2 is required to protect refugees who have

conditions7, is placed in Cambodia, Australia has

entered its territories. However Australia is only

failed its obligations under international refugee law,

required to grant asylum to refugees who fall within

and it will have certainly deviated from the intention

the Convention definition: a person with a well-

of the Convention.

founded fear of being persecuted for reasons of

Australia is not required to open its borders to all

race, religion, nationality, membership of a particular

to have a fair refugee policy. However its processing

social group or political opinion, and is unable to

of

return to their place of origin.

to the lengthy time asylum seekers remain in

3

refugees,

from

untenable

living

conditions

Aside from the issue of whether or not Australia

detention requires much improvement. Sadly, when

should grant asylum to only those meeting the

comparison is made of the treatment of refugees

Convention definition or a more expansive group; a

entering Australia and how they might be treated if

matter of great concern is what happens to asylum

policies were made behind the veil of ignorance, we

seekers while being processed to determine their

are likely to see a glaring disparity.

refugee status.

1.

Reports in October 2013 by the United Nations

2.

High Commissioner of Refugees (“UNHCR”) found

3.

the conditions in Nauru and Manus Island’s offshore

4.

processing centres (“OPCs”) to be well below international

standards,

unsafe,

inhumane

and

‘Australia is not required to open its borders to all to have a fair refugee policy.’

5.

6.

7.

MacCallum Mungo, ‘Asylum Seekers and the Language of War’, ABC.net, 13 Jan 2014, Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150 (entered into force April 22, 1954).

Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150 (entered into force April 22, 1954), Article 1.

UNHCR monitoring visit to the Republic of Nauru 7 - 9 October 2013, <http:// unhcr.org.au/unhcr/images/2013-11-26%20Report%20of%20UNHCR%20Visit%20 to%20Nauru%20of%207-9%20October%202013.pdf> UNHCR monitoring visit to Manus Island, Papua New Guinea 23 - 25 October 2013, <http://unhcr.org. au/unhcr/images/2013-11-26%20Report%20of%20UNHCR%20Visit%20to%20 Manus%20Island%20PNG%2023-25%20October%202013.pdf>.

John Stewart, ‘United Nations slams living conditions for asylum seekers at Nauru, Manus Island detention centres’, ABC.net, 27 Nov 2013, http://www.abc. net.au/news/2013-11-27/unhcr-report-on-nauru/5118588 Lindsay Murdoch, “Australia asks Cambodia to take asylum seekers amid violent crackdown”, Sydney Morning Herald, 24 Feb 2014.

In the two UNHCR reports on Nauru and Manus Island, the detention was considered arbitrary and mandatory.

DIBP Images (2011)

Behind the ‘veil of ignorance’

Michael McDonough. 2006

Basic Law

Democracy, Government and the Basic Law of Hong Kong Hong Kong is often recognised as China’s freest city. With its free-market economy and an autonomous legislature and judiciary, it stands in stark contrast to communist Mainland China.

However, it still does not have universal suffrage. ROBERT GUZOWSKI discusses the potential for legal reform in this area and the barriers that it faces.

Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China, article 45: The Chief Executive of the Hong Kong Special Administrative Region shall be selected by election or through consultations held locally and be appointed by the Central People’s Government.

The method for selecting the Chief Executive shall be specified in the light of the actual situation in the Hong Kong Special Administrative Region and in accordance with the principle of gradual and orderly progress. The ultimate aim is the selection of the Chief Executive by universal suffrage upon nomination by a broadly representative nominating committee in accordance with democratic procedures.

The specific method for selecting the Chief Executive is prescribed in Annex I “Method for the Selection of the Chief Executive of the Hong Kong Special Administrative Region”.

19

December

marks

the

thirty-year

for a non-violent occupation of the Central district

anniversary of the signing of the Sino-British

of Hong Kong in July this year if universal suffrage

Joint Declaration. This treaty was the foundation for

for the 2017 election has not been secured. The

the Basic Law, which has served as the constitutional

movement has garnered support from the pan-

document for Hong Kong since 1 July 1997. The

democratic parties, as well as widespread popular

Handover saw the execution of the ‘one country, two

support.

systems’ model envisioned by the treaty makers with

Although universal suffrage may be firmly on

the implementation of the Basic Law, which enables

the public agenda, a barrier to its realisation lies in

the autonomous operation of the three branches of

how such an election might be fielded and run. A

Hong Kong government – the Legislative Council, the

five-month electoral reform consultation period was

Paul Chang. 2006

launched in December 2013 to determine the composition of the nomination committee,

‘…in contrast to the previous election, Beijing has indicated that this one ‘may be implemented by the method of universal suffrage.’

the method of nomination, the number of candidates and voting procedures. Earlier, in March 2013 Qiao Xiaoyang, chairman of the Basic Law Committee of the NPCSC, said that the candidates for the Chief Executive must ‘love the country and love Hong Kong’, and this

Chief Executive (“CE”), and the judiciary. However, it

requirement has been echoed by Zhang Dejiang, the

also vests in the People’s Republic of China National

chairman of the NPCSC, and Li Fei, Qiao’s successor.

People’s Congress Standing Committee (“NPCSC”)

Qiao further stated that ‘[a]s long as they insist on

final authority to amend and interpret the Basic Law.

confronting the central government, they cannot

The NPCSC exercised the power of amendment

become the Chief Executive.’2 Since the Central

in 2010 such that Annex I specified an Election

People’s Government formally appoints the CE after

Committee to select the CE in 2012, facilitating

election, this effectively renders pan-democrats

Beijing’s influence over the outcome. Selection of the

ineligible.

fifth-term CE will take place in 2017 and, in contrast

Time will tell whether any proposal resulting

to the previous election, Beijing has indicated that

from the public consultation endorses universal

this one ‘may be implemented by the method of

suffrage for 2017, and likewise whether Central

universal suffrage’. Importantly, democratic election

will be occupied come July 1. Doubtless, however,

of the CE has been stated as a necessary precursor

Hongkongers like Benny Tai will continue to clamour

to popular election of the legislature.

for their democratic rights. Aptly, another civil rights

1

Pro-democracy movements have existed in Hong Kong since before the Handover; indeed, the brief and ill-fated final colonial legislature of Hong Kong was wholly popularly elected in 1995. In January last

campaigner, Martin Luther King Jr, once said: ‘A right delayed is a right denied.’

1.

year, another pro-democracy protest movement began: “Occupy Central with Love and Peace”.

Started by Benny Tai Yiu-ting, a law professor from the University of Hong Kong, the campaign calls

2.

‘Decision of the Standing Committee of the National People’s Congress on Issues Relating to the Methods for Selecting the Chief Executive of the Hong Kong Special Administrative Region and for Forming the Legislative Council of the Hong Kong Special Administrative Region in the Year 2012 and on Issues Relating to Universal Suffrage’, Adopted by the Standing Committee of the Tenth National People’s Congress at its Thirty-first Session on 29 December 2007, <http://www.basiclaw.gov.hk/en/materials/doc/2007_12_29_e.pdf>.

Colleen Lee and Joshua But, ‘Opponents of Beijing ineligible to be CE: Top Chinese official’ South China Morning Post (online), 25 March 2013, <http://www. scmp.com/article/1199015/opposition-camp-members-cant-run-chief-executivesays-npc-official>.

37

Basic Law

T

his

Physical Disability, Panshipanshi, 2007

(In)accessible Justice

The barriers to accessing justice by those with a disability Despite multiple reports and a current ALRC inquiry into the issue, the lack of access to justice for people with a disability remains in the peripheral vision of the wider population. CLAIRE ROBINSON reveals why this area of the law is in dire need of reform and that it should be at the forefront of our social and legal consciousness.

38

W

(In)accessible Justice

hen you think of a “shock to the system” you

issues paper, written first, aimed to highlight the

imagine something loud - a crash, an uproar,

concerns for many people with disabilities who need

something that jolts its very foundations. We see

communication support or have complex needs, and

this in the media and Parliament constantly, as with

are not having their voices heard or rights respected

the ‘One Punch’ legislation, or the striking down of

in the criminal justice system. The focus was on five

the Marriage Equality (Same Sex) Act 2013. All of

key barriers experienced by people with a disability.

these reforms impact our legal system and society

The paper recognised inequalities occurring in

at large. Yet, whilst the accessibility to justice for

numerous levels of the criminal justice system such

those with a disability is an area of enormous socio-

as prisons, juvenile institutions, courts and other

legal concern that has garnered a call for serious

corrective services, as well as in the community

law reform, many people seem to have little real

generally.

understanding of the issue. Slowly coming to the

The five barriers encompass wide and varied

forefront of the law reform debate, addressing this

issues that people with a disability face in the

concern could give a voice to those who have been

criminal justice system. A lack of community

denied one for too long.

support or assistance programs to prevent violence

‘…many people in prison who suffer from a disability are denied support, aids and adjustments for their disability.’

and disadvantage to the disabled and thus stop recidivism or repeated contact with the criminal justice system, was the primary factor considered.

Secondly, the paper found that people with disability had no support or aids in order to defend

In April 2013, the Australian Human Rights

themselves in criminal matters. The third barrier

Commission (“AHRC”) released an issues paper

was the general negative assumptions and attitudes

outlining the inequalities in the area of access to

towards the disabled in the wider community, and

justice in the criminal legal system for people with

the view that they are not capable or credible to

a disability.1 The shocking areas of concern for

give evidence in criminal proceedings. Fourthly,

the AHRC could be seen as the catalyst for the

specialist support programs may not be provided

Australian Law Reform Commission (“Law Reform

to the disabled if they are considered unable to

Commission”) undertaking an inquiry, ‘Equality,

understand the charges made against them. When

Capacity and Disability in Commonwealth Laws.’2

this happens they are often detained indefinitely

Entitled ‘Access to Justice in the Criminal Justice System for People with Disability,’

3

the AHRC

without conviction or access to support or health facilities. Finally, the issues paper identified the

startling concern that many people in prison who

laws and frameworks that either directly or indirectly,

suffer from a disability are denied support, aids and

deny or diminish the equal recognition of people with

adjustments for their disability. Many suffer degrading

a disability before the law and who have their ability to

treatment, torture and harmful prison management

exercise their legal capacity diminished by such laws.

practices. The issues paper supported their findings

The inquiry aims to pinpoint these inequalities and to

with examples of real life situations occurring across

propose changes in how to address these matters. The

Australia, which should have caused public shock and

scope of the reference for the inquiry is much broader

immediate reactions.

than that of the AHRC the inquiry includes inequality at

On 23 July 2013, former Attorney-General Mark Dreyfus (QC) temporarily appointed the Mr Graeme Innes (AM) to the Law Commission the support the

the Federal level and encompassing areas outside the criminal law.

Some areas include access to justice and legal

inquiry into access to justice.4 This issues paper was

assistance

produced through the culmination of consultations

supported and substantial decision making, though it

with the disabled, family, carers and the community in

encompasses many areas of law. The wider consideration

both urban and rural communities into what issues are

encompasses these laws and frameworks that affect

faced by people with disability in the criminal justice

people with a disability who are also children, women,

system, and the barriers cited in the issues paper again

Indigenous people, older people, people in rural and

arose as key areas that need to be addressed.

regional areas and gay, lesbian, bisexual, transgender

Overall, the Law Reform Commission’s response to the AHRC, ‘Equality, Capacity and Disability in

programs,

anti-discrimination

law,

and

and intersex people.

The

Law

Reform

Commission

defines

equal

Commonwealth Laws,’ came to a similar view –

recognition before the law, legal capacity and supported

namely, that there were substantial challenges for the

and

disabled in every Australian jurisdiction.5 Further, a

principles of dignity, equality, autonomy, inclusion and

holistic, over-arching response to the issues could be

participation and accountability.8 The inclusion and

dealt with through a Disability Justice Strategy, which

protection of the rights of family and carer givers also

would allow effective access to justice for people with

broadens the scope of this inquiry to include not just

disability, non-discrimination, safety and inclusion

people with a disability, but families and communities

and participation for people with disability in criminal

as well.

substituted

decision-making

against

framing

39

‘…if the inquiry does not have the impact it should, it will be up to the public to take these issues directly to Parliament.’ matters. The issues paper also outlined a set of core

The findings outlined in the AHRC issues paper

principles and fundamental actions to be taken to

describes

combat the inequalities faced, such as appropriate

vulnerable people in our society.

communications, early intervention, increased service

encouraging to see the initiative taken by the AHRC

capacity,

educational

training,

accountability

shocking

stories

of

marginalisation 9

of

However it is

and

and the Law Reform Commission to push for change in

monitoring and better policies and frameworks to

an area on which the media and the general population

ensure the disabled are not marginalised and that

have largely remained silent. In August this year the

they receive the appropriate support in all areas of the

Law Reform Commission will release their findings

criminal justice system.

into equality of justice for the disabled and it can only

‘Equality, Capacity and Disability in Commonwealth

be hoped that this important area of social and legal

Laws’ aims to address the shortfalls of the federal laws

inequality will be subsequently be brought into the

and legal frameworks in relation to equal access to

public forum, so that changes will take effect. This is

justice for the disabled. This inquiry, as established under

an area that could use a good shock, and if the inquiry

the United Nations Convention on the Rights of Persons

does not have the impact it should, it will be up to the

with Disabilities,

public to take these issues directly to Parliament.

6

7

looks to examine Commonwealth

1.

2.

3.

4.

5.

6.

7.

8.

9.

Young And Old, Gene Han, 2005

Australian Human Rights Commission, Access to Justice in the Criminal Justice System for People with Disability, Issues Paper (2013).

Australian Law Reform Commission, Equality, Capacity and Disability in Commonwealth Laws, Issues Paper No 44 (2013).

Above, n 1.

Australian Law Reform Commission, ‘ALRC Review of equal recognition before the law and legal capacity for people with disability announced’, (Media Release, 23 July 2013).

Above n 2, [14]-[19.]

Above n 2.

Convention on the Rights of Persons with Disabilities, GA Res 60/232, UN GAOR, 61st sess, 76th mtg, Agenda Item 67 (b), UN Doc A/RES/61/106, (24 January 2007, adopted 30 March 2007).

Above, n 2.

Above, n 1.

bkking111. 2008

{

Green Clutter

Australia’s unintelligible environmental policy

Australia’s law reform on climate change has taken leaps and strides in the opposite direction since the 2013 election landslide victory for the coalition government. MATHEW PAGE documents the proposed and enacted environmental reforms over the past six months since Prime Minister Tony Abbott was sworn in as leader.1

I

n November of this year, Tony Abbott will host twenty of the world’s leaders in Brisbane. High on the agenda for

many leaders will be the environment and climate change.

The same cannot be said for Abbott, as he made clear in a speech at the World Economic Forum in Switzerland this year that ‘we do not want to clutter up the G20 agenda with every worthy and important cause because if we do, we will squander the opportunity to make a difference in the vital area of economic growth.’2 One could hazard a guess what this ‘clutter’ is: The environment.

3

The Prime Minister would be wise to avert the discussion away from environmental reform. Since the Coalition assumed office in September 2013, an apparent attack on climate change and the environment has been pronounced. Most notably, the government has: (i)

40

Abolished the Climate Commission and Biodiversity Fund;4

(ii) Extinguished all funding to international

Green Clutter

environmental programs;5 (iii) Begun stripping away Tasmanian forest’s

heritage protection and Australia’s marine park

protection;

6

(iv) Approved the expansion of a coal port that

will allow the dumping of three million cubic

meters of dredge spoil in the Great Barrier Reef

Park; and 7

(v) Started the process of repealing the Carbon Tax

and implementing its subpar replacement, the

Direct Action Plan.8 It is no wonder then that a Globe International

Assessment of the climate mitigation strategies of 66 countries rated Australia at the very bottom.9 Headed by Lord Deben, Australia’s climate policy is described as ‘so unintellectual to as to be unacceptable.’10 Condemnation for Abbott’s reforms from American officials, among 1.

2.

3.

4.

5.

6.

7.

8.

John Kehoe, ‘Heat on Abbott as US pushes G20 climate change action’ (2014) Financial Review <http://www.afr.com/p/national/heat_on_abbott_as_us_pushes_climate_ xxma1V2KrZxQjeryKlqzQM> at 8 March 2014.

See, Tom Arup, ‘Abbott shuts down Climate Commission’ (2013) Sydney Morning Herald <http://www.smh.com.au/federal-politics/political-news/abbott-shuts-down-climatecommission-20130919-2u185.html> at March 10 2014; Sid Maher, ‘Abbott takes axe to spending on the environment’ (2013) The Australian <http://www.theaustralian.com.au/ national-affairs/policy/abbott-takes-the-axes-to-spending-on-the-environment/storye6frg6xf-1226785366975#> at March 12, 2013.

See, Lenore Taylor, ‘Aid groups accuse Coalition of broken promise after it announces new cuts’ (2014) <http://www.theguardian.com/world/2014/jan/18/aid-groups-accuse-coalition-ofbroken-promise-after-it-announces-new-aid-cuts> at 18 January 2014; Bianca Hall, ‘Sneaky’ Coalition move to change marine park rules’ (2014) http://www.smh.com.au/federal-politics/political-news/sneaky-coalition-move-tochange-marine-park-rules-20131214-2ze8v.html at March 23, 2014.

See, Matthew Knott, ‘No more national parks as Tony Abbott pledges to support loggers as the ‘ultimate conservationists’ (2014) http://www.smh.com.au/federal-politics/ political-news/no-more-national-parks-as-tony-abbott-pledges-to-support-loggers-asthe-ultimate-conservationists-20140305-345zp.html at March 12, 2014.

See, Euan McKirdy, ‘Australia to dump dredged sand in Great Barrier Reef Park’ (2014) CNN <http://edition.cnn.com/2014/01/31/world/asia/great-barrier-reef-dump-approved/> at January 31, 2014.

}

other nations, has come in a similar vein.11 It is hard to imagine such criticisms being levelled at Australia when only four years ago an Emission Trading Scheme had so much domestic support the then Liberal opposition leader Malcolm Turnbull asserted the Coalition would be ‘wiped out’ if it did not back one.12 Abbott and his Environment Minister Greg Hunt’s policies are similarly difficult to rationalise when compared to the preceding Coalition government. The former Prime Minister John Howard may have stubbornly refused to sign the Kyoto Protocol,13 but he also commenced the Environmental Defence Office (now being defunded

by Abbott), which sought environmental protection in the public interest, and he enacted initiatives like the Renewable Energy Target that made attempts to mediate between economic and conservationist spheres.

Climate change expert David Holmes recalls the Howard government as ‘striking a balance with conservation values and listening to the concerns constituents have for the environment.’14 But as Abbott himself put, ‘the politics of this issue have changed dramatically.’15 This may be due to the tightening of the government’s purse strings in response to the global financial crisis, at the expense of environmental conservation, or it may be that the corrosiveness of Labor’s in-fighting whilst in power imputed a lack of confidence in Labor policies as a whole. It could even be that, as Abbott remarks, the ‘green ideology… has done so much damage to our country.’16 Regardless, the “politics” have shifted away from a conservation and climate awareness discourse, as reflected by the intensity of the public backlash to the carbon tax’s roll out, and Abbott is evidently taking advantage of it.17 However, if Abbott’s measures continue with the same severity, the environment and climate change may very well return to the forefront of political conversation and legislative reform. As Dr. Peter Burdon of the University Adelaide Law School notes ‘barbarism… quicken[s] the conscience.’18 Considering the uproar that these policies are starting to receive at home and abroad, public opinion may not take too long to turn against Abbott.

9.

10.

11.

12.

13.

14.

15.

16.

17.

18.

Louise Gates, ‘A new year, a new (but somewhat familiar) direction for climate change policy’ (2014) 29 Australian Environmental Review 4.

Jonathon Gifford, Abbott’s climate policy: ‘So unintellectual to as to be unacceptable’ (2014) Renew Economy <http://reneweconomy.com.au/2014/abbotts-climate-policy-sounintellectual-to-as-to-be-unacceptable-21542> at 27 February 2014.

Ibid.

See, Kehoe, above n 1.

Waleed Aly, ‘Inside Tony Abbott’s Mind’ (2013) The Monthly <http://www.themonthly. com.au/issue/2013/july/1372600800/waleed-aly/inside-tony-abbotts-mind> at 21 March 2014.

Kyoto Protocol to the United Nations Framework Convention on Climate Change, opened for signature 16 March 1998, 2303 UNTS 148 (entered into force February 16, 2005).

David Holmes, ‘War on the environment a distraction from climate change policy’ (2014) The Conversation <http://theconversation.com/war-on-the-environment-a-distractionfrom-climate-change-policy-22983> at March 18 2014.

Aly, above n 3.

David Holmes, ‘The ultimate conservationist? The looming crisis for the Abbott government’ (2014), The Conversation <http://theconversation.com/the-ultimateconservationist-the-looming-crisis-for-the-abbott-government-24243> at March 18 2014.

Peter Burdon, ‘Environmental legal cuts an act of ‘barbarism’ (2013), ABC Environment <http://www.abc.net.au/environment/articles/2013/12/18/3914079.htm> at March 20 2014.

Fair Use in Australia – Is It ‘Fair Enough?’

By Olena Prusenkova

I

n the last month, the ongoing debate about

refused leave to appeal to the High Court.7 Is it fair

whether a ‘fair use’ provision should be introduced

that in the digital age there are still restrictions on

as an amendment to the copyright laws has come

how content can be distributed? More importantly,

to the forefront of legal debate. What will it bring

does this represent using copyright protection in

– the demise of ownership or another epoch of

the public interest, or is it merely a tool to protect

Renaissance in the digital world?

commercial interests?

Fair use is a justification for the breach of

The IceTV case8 is another landmark decision

copyright laws. It is the concept of being able to use

that challenged the application of copyright laws.

any work created by someone as long as the use does

The outcome of the judgement in favour of IceTV

not contravene the criteria of fairness or disregard

highlighted the importance of the terms ‘authorship’

the authorship and originality of the product. But,

and ‘originality,’ and that the use of information does

what is ‘fair’? Does everyone have a right to use the

not necessarily breach copyright, which protects

work of others in a new and creative way? Should

the form of the expression.9 However, is it fair that

the authors of original ideas be protected, or is it

the company had to go through the lengthy court

enough to be acknowledged as creators?

process to achieve justice? What about those

1

individuals who cannot afford costly litigation – is

‘It is time to advance the antiquated notion of limited use and embrace an age where copyright has shifted in meaning.’

the choice to acquiesce to copyright claims of large corporations or risk bankruptcy?

These very different cases suggest that the current laws do not work sufficiently – they impede

There are several arguments against the fair

the progress of information sharing and are not

use recommendations made by the Australian Law

adequately adapted to the digital age. Certainly,

Reform Commission (“ALRC”) in their report into

there is no guarantee that the fair use provisions

Copyright and the Digital Economy.2 These would

will be effective, but there is an urgent need for law

be enacted as a part of the Copyright Act 1968 (Cth)

reform to avoid lengthy and overly-complex legal

to replace the current complex set of exceptions.

disputes that are out of line with modern values of

The report proposes that ‘fair’ would not be defined,

the digital age.

but determined on a case-by-case basis.3

Addressing the question of whether the new laws

The main criticism of a ‘fair use’ provision is

are ‘fair enough’ for Australians, it is vital to admit

thus that it leaves a room for a lot of uncertainty

that the fair use provisions will only be a first step

as to how it will operate, and of course the age-old

for Australia. It is time to advance the antiquated

argument that it is unnecessary since the system, in

notion of limited use and embrace an age where

fact, does work.4

copyright has shifted in meaning. It is fair for us,

Contemplating whether or not fair use should

as a community, to have flexible laws and not to be

be included in the amendments, one may consider

in fear of legal repercussions for our creativity and

National Rugby League Investments Pty Ltd v Singtel

individual expression. Whether fair use provisions, if

Optus Pty Ltd.5 The case concerned Optus’ ‘TV Now’

introduced, will achieve this remains to be seen.

service which allowed their subscribers to record or play television broadcasts on their PC or other compatible devices for free. However, the Australian Football League (“AFL”) and National Rugby League partnership (“NRL”) alleged that they had copyright ownership of the broadcasts.

6

Optus were held

liable for copyright infringement, and unexpectedly

1.

2.

3.

4.

5.

6.

7.

8.

9.

Australian Law Reform Commission, ‘What is Fair Use?’ Copyright and the Digital Economy Report No 122 (2013).

Australian Law Reform Commission, ‘The Case for Fair Use in Australia,’ Copyright and the Digital Economy Report No 122 (2013).

Above n 1.

Australian Law Reform Commission, ‘The Case Against Fair Use in Australia’, Copyright and the Digital Economy Report No 122 (2013).

[2012] FCAFC 59.

Singtel Optus Pty Ltd v Optus Mobile Pty Ltd [2012] HCATRANS 214.

National National Rugby League Investments Pty Ltd v Singtel [2012] FCAFC 59.

IceTV Pty Limited v Nine Network Australia Pty Limited [2009] HCA 14.

Knight, P. ‘An Update on Copyright Law,’ Seminar Papers Presentations No 10/82, the Continuing Professional Education Department of the College of Law, 27/072010, p. 8 – 9.

41

Fair Use in Australia

In this new digital age, the very nature and enforcement of copyright laws have shifted. OLENA PRUSENKOVA discusses the ALRC’s proposed Fair Use provisions to purport that, ultimately, they really are not fair enough.

Septagon, Kristy, 2009

Stop. Hammer time.

Ver

Should we legalise drugs? KIMBERLY TRAN thinks it would be better for our economy and crime rates, but ANEESA KRUYER counters with some sobering facts about the global drug trade.

FOR

I

AGAINST

have never taken drugs in my life. However, I believe that legalising some illicit drugs can

The thought of legalising illicit drugs sparks much contention, but it doesn’t have to.

resolve numerous problems.

What many fail to account for is the wider

Firstly, consider the actual role of criminal law in

impact of drug use on society. These drugs are

the drug trade. Currently 1, 000 teenagers are being

being created somewhere, by someone. The truth is,

incarcerated in juvenile detention centres daily,

it is hard to trace the impact of drug production, at

Aboriginal boys make up over half of that figure.1

both a local and global level. This is the real reason

This suggests the Drug Misuse and Trafficking Act

illicit drugs are justifiably outlawed.

1985 is discriminatory towards Indigenous people

Opium, for example, is Afghanistan’s largest

and those from low socio-economic backgrounds,

industry.5 Working conditions are unregulated and

perpetuating the cycle of recidivism.

are employees often mistreated and exploited

If criminal law is meant to reduce harm to society,

without legal recourse. Unlike similarly exploitative

banning illicit drugs seem instead to have led to a

yet legal occupations, there is the additional risk

prevalence of ‘victimless’ crimes – is stopping this

of being sent to jail and even executed, with drug-

kind of crime the best use for criminal law and its

related arrests rising alarmingly in Indonesia and

“A comparison of the addictiveness between cannabis and caffeine, a psychoactive drug, reveals that the dependence rate is 1 to 2 respectively.”

Malaysia in recent years.6 In a recent Australian study on the use of illegal drugs and criminal offending, ‘for illegal

42

limited resources? Personal use and addiction is a

drugs only, the drug–crime attribution rate was

private health problem, not a public issue suited to

32 percent.’7 In other words, one third of people

criminal law.

arrested claimed that illegal drugs had something

Stop, Hammer Time

A recent US “harm” rating of illicit drugs, based

to do with the crime.

on various factors, gave alcohol a final rating of 72

The harm caused by drugs is not just to the

compared to ecstasy at 10.2 A comparison of the

immediate user – it stretches far beyond that. That

addictiveness between cannabis and caffeine, a

makes it a public issue, not just an issue of private

psychoactive drug, reveals that the dependence

individual rights.

rate is 1 to 2 respectively.3 So, really, how dangerous are illicit drugs compared to legal ones?

From an economic standpoint, the Government

In Australia, being charged with drug misuse is an indictable offence under the Drug Misuse and Trafficking Act 1985. That’s up there with murder.

can earn money from taxing illicit drugs (a $7 billion

Merely one look at our anti-smoking and drinking

per year industry)4 and spend that revenue on

campaigns indicate that all drugs cause harm, legal

rehabilitative programs and education. Uruguay’s

or not. The argument that ‘if one drug is legal,

President Mujica recently legalised marijuana with

all should be’ is a fallacy as the trend is towards

this aim.

outlawing all addictive substances.

It is ignorant to say drugs are evil and bad.

Furthermore, Australians spend over $7 billion a

Rather, it is people who are bad, using drugs

year on illicit substances, money that could be used

recklessly. Imposing regulations like quality control

to stimulate our economy rather than fuel the ‘black

and warning labels is viable which can promote

market.’8

consumer health and safety while still allowing people to enjoy the benefits of using illicit drugs.

There is no indication that legalisation will stamp out criminal trade. In the meantime, the harm caused is simply not worth the risk.

By Kimberley Tran

By Aneesa Kruyer 1.

2.

3.

4.

5.

Bronwyn Herbert, ‘Indigenous Need Rehabilitation, Not Jail: Report,’ ABC News, 4 Feb 2013.

‘Harm chart of drugs’ (2013) [Online] http://download.thelancet. com/images/journalimages/0140-6736/PIIS0140673610614626. gr4.lrg.jpg Accessed 3 Apr 2014.

‘How does cannabis compare to other drugs?’[Online] <http:// www.jayselthofner.com/images/how%20does%20cannabis%20 compare.gif > 3 Apr 2014.

Amy Corderoy, ‘Nation’s $7b Drug Splurge’ The Age (National), 22 June, 2013.

Kim Barker, ‘Very Bad’ News On Opium War’ Chicago Tribune, 3 September 2006.

6.

7.

8.

Devaney, M., Reid, G., & Baldwin, S. ‘Situational Analysis Of Illicit Drug Issues And Responses In The Asia-Pacific Region. Sydney: Australian National Council On Drugs,’ (Australia National Council on Drugs, Research Paper 1, November 2004).

Jason Payne & Antonette Gaffney, ‘How Much Crime is Drug and Alcohol Related? Self-reported Attributions of Police Detainees’ (Research Paper No 439, Australian Institute of Criminology, 2012).

Above n 4.

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Did they really say that?

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In amongst the legalease and roundabout reasoning, the latin and that one, indignant dissenting judgement, there sometimes lies a phrase in a case that makes you look twice. A phrase that, upon first reading, you are not sure you read quite right. Our TFB editor JO FISCHER went on the hunt to find those lines and turns of expression that made us stop and say, ‘Did they really say that?’

‘This case presents us with something mundane, something novel, and something bizarre…[T]he bizarre element is the facially implausible — some might say unappetizing — contention that the man whose chicken is “finger-lickin’ good” has unclean hands’ Judge Goldberg, United States Court of Appeals 5th Circuit, in Kentucky Fried Chicken Corporation v Diversified Packaging Corporation 549 F.2d 368 (5th Cir. 1977).

‘MR HARRIS: I have to tell your Honours something else about the sperm and the ability to deal with or sell sperm. As we have set out in our submissions commencing at - - CRENNAN J:“Sell” is not the right word, is it?

MR HARRIS: Supply. [...]

KEANE J: Mr Harris, to say that she is supplying or selling is like saying that someone who paints a picture is supplying paint. What Dr Clark is doing is providing a service and this is one of the – this is part of the service – but what she is doing with patients is providing a service, she is not supplying sperm. I mean, these ethical considerations are about people trading in a commodity.’

Clark v Macourt [2013] HCATrans 174 (13 August 2013) ‘Some of these developments may be able to trace roots back to earlier times, but many are simply novel manifestations of the “common law method” happening to reside “in equity”. To the extent that they claim to look back to an ideal golden age of Chancery they may be appealing to little more than

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“the vibes” of pre-Judicature “Equity” (to borrow a phrase from the movie The Castle).’

Mason P, Harris v Digital Pulse Pty Ltd [2003] NSWCA 10 (7 February 2003).

‘MR STUBBINS: Your Honour, it is restricted to the extent of the principle that a man’s home is his castle, it is his fortress, and unless it is unambiguous and unmistakable - - KIEFEL J: I was hoping you would not say that, I thought we would hear about the vibes.

MR STUBBINS: Yes, your Honour, I refrain from that angle obviously, your Honour.’

East v The Queen [2009] HCATrans 157 (25 June 2009) ‘Illustrative of the process of “bargaining” or “haggling” is the exchange between Brian and the street merchant in Monty Python’s Life of Brian.’

Flick J, Endeavour Coal Pty Limited v Association of Professional Engineers, Scientists and Managers, Australia [2012] FCA 764 (19 July 2012).

MR CATTERNS: In the US, methods of treatment are patentable – I will take your Honours to it – there is a carve-out for surgery.

FRENCH CJ: An unfortunate metaphor.

MR CATTERNS: I beg your pardon, your Honour. w [2013] HCATrans 123 (28 May 2013)

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