2015 The Full Bench Ed 1 by UTS Law Students' Society

President and VPE Address Editorial Editors’ Question To Detain is to Deprive – Harry Cotton 10 Words or Less The short sightedness of mandatory minimum sentencing provisions – Imogen Bailey Freedom of Speech: A façade of freedom or an unwarranted concern? – Isabelle MiddlebyClements Barbed Wires – Sheona Robertson In the best interests of the child? – Dominic Smith Alarming changes to bail laws in NSW: What you need to know – Alix Johnson The end of the FOI Champion? – Leanne Houston Liberty and security: Are we getting the balance right? – Emma Phipps Privacy and the Cloud – Duncan McEwin A man’s home is his castle? – Nicola Colagiuri Your right to be a bigot – Neeharika Maddula Foreign fighters and the fight for freedom at home – Grayson Gay Spotlight on Social Justice Stop. Hammer Time. – Bianca Newton and Kieran Gair Heb-do, Heb-don’t, Heb-draw

Laws and Liberties

TFB 2015 [Edition 01] the full bench

Editors Nicola Colagiuri Kieran Gair Adriana Abu Abara Neeharika Maddula Bianca Newton

Designer Simon Blanckensee

With Special Thanks to 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 photo sharing website ‘Flickr’, with attribution provided within the text to specific publishers.

Vanessa Jiang, Vice President (Education), and Ashleigh Barnes, President of the UTS LSS, for their guidance, support and contribution to the first edition of The Full Bench in 2015.

With Further Thanks to Daniel McKenzie, Susie McKenzie and Co. Kwik Kopy Neutral Bay 6/129-133 Military Rd, Neutral Bay, NSW 2089 Tel: (02) 9953 3077 Fax: (02) 9953 0530 www.kwikkopy.com.au The Full Bench (tfb) is published in Sydney quarterly by: UTS Law Students’ Society PO Box 123, Broadway NSW, 2007 Room CM5A.01.08, City Markets Campus, Cnr of Quay Street & Ultimo Road Tel: (02) 9514 3448 Fax: (02) 9514 3427 www.utslss.com

The Full Bench 2015 Edition 01

Laws and Liberties Autumn 2015

6. 7. 8. 10. 12. 14.

16. 18. 20.

22. 24.

President and VPE Address Editorial Editors’ Question To Detain is to Deprive – Harry Cotton 10 Words or Less Freedom of Speech: A façade of freedom or an unwarranted concern? – Isabelle Middleby-Clements Barbed Wires – Sheona Robertson In the best interests of the child? – Dominic Smith Alarming changes to bail laws in NSW: What you need to know – Alix Johnson The end of the FOI Champion? – Leanne Houston Liberty and security: Are we getting the balance right? – Emma Phipps

26. 28. 31. 32. 34. 36.

38. 39.

Privacy and the Cloud – Duncan McEwin A man’s home is his castle? – Nicola Colagiuri Foreign fighters and the fight for freedom at home – Grayson Gay Spotlight on Social Justice Stop. Hammer Time. – Bianca Newton and Kieran Gair The short sightedness of mandatory minimum sentencing provisions – Imogen Bailey Your right to be a bigot – Neeharika Maddula Heb-do, Heb-don’t, Hebdraw

From the UTS LSS

From the UTS LSS President

From the UTS LSS Vice President (Education)

Welcome to the 2015 first edition of The Full Bench, the quarterly academic journal proudly brought to you by the University of Technology Sydney Law Students’ Society (UTS LSS). In this edition we question, debate and explore “Law and Liberties”, the foundational pillars of any functioning liberal democracy such as our own. With controversial issues on the front page of the media including amendments made to bailment laws, metadata retention and children in detention, the following pages will investigate these and more, providing you with thought-provoking articles written by your gifted peers and academics at UTS:Law. Liberties are nothing without a law to protect them, just as a lawful society is flawed if it fails to offer liberties. We need both and this begs the question, has Australia struck the right balance? As potentially future practitioners, or merely as subjects and recipients of the balance between law and liberties, it is critical to keep apprised of developments in this field as they come to hand, and further, to react to such developments. This is not always something that we are taught in the classroom, but it rather is an important personal, professional and ethical responsibility that rests on our shoulders. Take some time to consider the areas discussed in the following pages and contemplate the effect that they may have on how our society operates. This publication is impossible without the constant and unstoppable hard work of Nicola Colagiuri, the UTS LSS Publications Director, her team, The Full Bench Subcomittee, Neeharika Maddula, Bianca Newton, Kieran Gair and Adriana Abu Abara, and our designer, Simon Blanckensee. Thank you also to Vanessa Jiang, the UTS LSS Vice President (Education), for her unwavering support and her tireless efforts to deliver quality initiatives to our members. Of course, we are also grateful to our sponsors, Clayton Utz, Herbert Smith Freehills and Henry Davis York for their continued support and commitment to our Society and The Full Bench, including this edition. Lastly, this publication is nothing without our contributors, each and everyone one of whom can proudly say they have joined a body of commentators whose urgings and reflections inform and inspire. Ashleigh Barnes President UTS Law Students’ Society

The concept of liberties is a topic that is constantly and unfortunately avoided in an era where political considerations consistently clash with our society’s evolving zeitgeist. The ability to defend and protect our rights is something that we should not take for granted. The fact that we have a right to discuss and read the issues in this journal is something to appreciate.

Laws and Liberties Autumn 2015

Where legislative reform and regulation is thrown into the mix, the plethora of perspectives makes it impossible to build law to the satisfaction of all parties. Questions arise left, right and centre: are there holes in our existing law? Which parts of our existing laws are outdated? If technology is developing so many novel platforms, how do we create laws to match them? Can we build laws at a sufficient speed, and do our representative bodies really know how to regulate the law in areas in which they are unfamiliar? The law must respond appropriately, and the following pages seek to give you insight into how it’s been done and where it has failed. A huge thank you to Nicola Colagiuri and The Full Bench Subcommittee for creating such a remarkable publication, to Ashleigh Barnes for her constant encouragement, and to all contributors and sponsors involved in the publication of the first edition of The Full Bench for 2015. Vanessa Jiang Vice President (Education) UTS Law Students’ Society

Editorial ‘The end of law is not to abolish or restrain, but to preserve and enlarge freedom.’ Welcome to the first edition of The Full Bench for 2015! What better way to start the year than to examine the ubiquitous force of the law in light of its impact on our liberties? Rights and freedoms are rarely absolute and will often conflict with each other. This then raises the difficult question of how fundamental rights and freedoms should be balanced in liberal democracies. In this first edition, TFB team asked students to identify areas where Commonwealth or State laws may be encroaching on rights and freedoms and to evaluate whether these restrictions are warranted. Our contributors have successfully stepped up to the challenge to deliver some cracker articles for our readers. Pages 16 to 17 feature an assessment of the newly introduced and ever-controversial metadata retention laws by Sheona Robertson. Turn to pages 18 to 19 to read Dominic Smith’s astute investigation of current Australian policies on detaining refugee children. Isabelle Middleby-Clements delves deep into the realms of free speech and reviews the ‘Speaker Series I – A Façade of Freedom’, which took place earlier this year (pages 14 to 15). Additionally, TFB has once again teamed up with the UTS LSS Social Justice Portfolio. In this edition, members of the Brennan Program detail their experiences visiting the Villawood Detention Centre (pages 31 to 32).

enforcers that where individual rights are being sacrificed, there must be adequate justification. Be sure to ‘Like’ The Full Bench on Facebook to keep up-to-date with all TFB related news and ways to be involved with TFB this year! From reading each of the articles in this edition, it is clear that UTS law students prioritise civil liberties and believe these should be strengthened by the operation of the law, rather than diminished. Can the same always be said for the Australian government? We’ll leave you to decide.

Nicola, Neeharika, Adriana, Kieran and Bianca.

First and foremost we would like to thank our creative and articulate contributors for all their hard work. Without the dedication of students, TFB would not be what it is. We’d also like to thank the UTS LSS President, Ashleigh Barnes, and the Vice President (Education) Vanessa Jiang for all of their support and assistance. Simon Blanckensee, our wonderful designer, is also deserving of a colossal thank you for giving TFB a makeover in 2015. We hope that you enjoy this edition and that it encourages you to think more critically about the relationship between Laws and Liberties. Where the law acts as a barrier to freedom, this impacts the whole of Australian society, granted some may be more susceptible to legislative curtailments than others. However, it is our collective responsibility as a democratic nation to inform our lawmakers and

Laws and Liberties Autumn 2015

Editors’ Question New South Wales has introduced controversial consorting laws to target ‘bikie gangs’ in light of recent waves of violence linked to these gangs and other organised crime groups. This raises the question as to whether the Australian Constitution does and should protect an implied freedom of political association, or association more generally. Is it time to take ‘bike’ freedom, or have such a freedom recognised? TFB editors share their views below. Nicola says:

Bianca says:

In Tajjour v NSW1, the High Court upheld s 93X of the Crimes Act2, which makes it an offence to consort with convicted offenders. It was found that the impugned section, despite serious concerns, was appropriate and served a legitimate purpose to prevent crime. One of the issues presented to the Court was that the law does not distinguish between associations that might be for entirely innocent purposes, and associations that have sinister undertones. This is problematic as the defence offered in s 93Y3 is quite limited, meaning that many innocent associations may fall outside its operation. More importantly, it was put before the Court that State legislative power is limited by Australia’s human rights obligations under the ICCPR4 and an implied freedom of association under the Constitution.

The anti-gang laws introduced in October 2013 have ensured that bikie gangs can be classified as criminal organisations and ban members from gathering in public and wearing gang insignia. Consequently, Hell’s Angels member Mr. Kuczborski argued that these laws ‘breach notions of equal justice by restricting the association rights of motorcycle gang members’.10

The High Court has accepted that an implied freedom of political communication may be derived from the structure of the Constitution.5 Arguably, a freedom of association (at least in a political context) is incidental to this and is also enshrined in the Constitution. When people associate, they communicate. As such, freedom to communicate, without the freedom to associate, would be an ‘impoverished freedom’.6 It is true that the right to associate is not absolute and thus restrictions on this right may be justified.7 Further, such restrictions may be in the public interest where they are necessary to prevent organised criminal activity, which would be injurious to society. However, in my opinion, the Tajjour case highlights the importance of promoting the adoption of international human rights norms into Australian domestic law. The current lack of protection offered in conjunction with a lack of statutory mechanism to recognise a freedom of association in New South Wales,8 may lead to individual rights being burdened by the application of s 93X (and any subsequent acts in response to ‘gang wars’). I agree wholeheartedly with Chief Justice French’s assertion in Tajjour: ‘statutes should be construed, where constructional choices are open, so that they do not encroach, or encroach as little as possible, upon fundamental rights and freedoms at common law.’9 In light of this, if presented with an appropriate factual vehicle, the High Court should confirm whether an implied freedom of association exists in Australia. For now at least, it appears these laws are here to stay.

The idea that legislation has been enacted to crush the rights of individuals and restrict their ability to associate has been largely unpopular. Confirmed by Chief Justice French in South Australia v Totani, legislative encroachments are hardly uncommon when it comes to the prevention of crime.11 Legislative restrictions have been seen in a positive light especially in cases of bikie gangs, as ‘limits on free association are also sometimes said to be necessary for other people to enjoy freedom of association.’12 Whilst it is easy to see the merits of these laws in preventing criminal plans, it is also clear that these restrictions are unethical. By limiting the freedoms of one group and not clearly distinguishing ‘between associations for sinister purposes, and associations for non-sinister purposes,’13 it has the potential to create a loss of faith in the law as these restrictions go against basic legal principles of fairness and equality. It is imperative that the Australian Constitution makes room for the protection of our political association and assembly to ensure that individuals have the right to conduct themselves as they wish, granted they stay within the confines of the law. Otherwise, why just stop at bikie gangs?

Kieran says: The wisdom behind a law that seeks to punish those who have done no harm to others, but simply for the company they keep, must be questioned. Consorting laws almost entirely rely on police discretion, and have done so since the first consorting laws were enacted in New South Wales in 1929. Moreover, it is obvious that consorting laws are habitually justified by political issues. From Premier Thomas Bevin’s efforts to curb the reign of Sydney’s most notorious madams, Kate Leigh and Tilly Devine in the 1920s, to the Crimes Amendment (Consorting and

1 [2014] HCA 35. 21900 NSW. 3Crimes Act 1900 (NSW). 4‘International Covenant on Civil and Political Rights’. 5 Section 7 and 24; Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.6 Anthony, Gray, ‘Freedom of Association in the Australian Constitution and the Crime of Consorting’ (2013) 32 The University of Tasmania Law Review, 179. 7 Anthony, Gray, ‘Freedom of Association in the Australian Constitution and the Crime of Consorting’ (2013) 32 The University of Tasmania Law Review, 178.8See for example, Charter of Human Rights and Responsibilities Act 2006 (Vic) s 16; Human Rights Act 2004 (ACT) s 15.9Tajjour v NSW [2014] HCA 35, [11]. 10Sky News, ‘High Court rejects anti-bikie laws challenge’, Sky News (online), 14 November 2014, <http://www.skynews.com.au/news/top-stories/2014/11/14/high-court-rejectsanti-bikie-laws-challenge.html> 11 [2010] HCA 39. 12Australian Law Reform Commission, Freedom of Association, Traditional Rights and Freedoms - Encroachments by Commonwealth Laws, Report No 46 (2014), 38 [4.25]. 13 Anthony, Gray, ‘Freedom of Association in the Australian Constitution and the Crime of Consorting’ (2013) 32 The

Organised Crime) Act14 which is founded on the media perpetrated moral panic that bikies are holding the safety of our society to ransom. You would be mistaken in seeing consorting offences as examples of the substantive criminal law. Rather, they are more appropriately viewed as wide-ranging discretionary police powers masquerading as substantive offences.15 While it is obvious that police require avenues to obtain information in informal and non-bureaucratic ways, consorting laws allow the threat of prosecution to overshadow innocent social exchanges and activities. Police data obtained by the NSW ombudsman showed that police incorrectly gave official warnings to at least 100 people in the first year of the operation of the NSW consorting laws and that 50 of those people were wrongly treated as convicted offenders.16 This begs the question: are our courts still committed to erring on the side of innocence? Or is the centuries old adage that it is ‘better that ten guilty persons escape than that one innocent suffer’ slowly dying in favour of a more pervasive legal system? In Jan v Fingleton,17 Chief Justice King warned of the consequences of granting such wide-ranging consorting powers to police: ‘the offence of consorting presents special difficulties to a sentencing court. Apart from the statute the conduct to be punished may be quite innocent. A person may find, by reason of the family into which he was born and the environment in which he must live, that it is virtually impossible to avoid mixing with people who must be classed reputed thieves.’18 The NSW law bans face-to-face, telephone calls and internet contact and burdens the defendant by demanding that they prove that consorting with family members or in the course of lawful employment, business, education or in the provision of a health or legal service was a reasonable occurrence in relation to the circumstances.19 Despite the questionable impact this has on a person’s freedom, the overhanging threat of consorting charges would not do any favours for an ex-offender’s rehabilitation. Moreover, consorting is held to be an offence even if there is no criminal purpose.20 The High Court may have ruled in Tajjour v NSW21 that there is no constitutional right to freedom of association, but does this give the government the right to impose the idea that bad company corrupts good character on the citizens of NSW? I sincerely hope not.

Adriana says: Recent case law has confirmed that the Australian Constitution guarantees no freedom of association.22 Controversial ‘bikie’ laws have restricted movement and should be taken as a cue to reopen the debate around implementing a Bill of Rights. Besides the clear rejection that any such right exists in the Constitution, courts also rejected that unincorporated provisions of international law impose any constraint on legislative powers of the parliament.23

approach were to be adopted, its application would be extremely limited. For these reasons, the implementation of a Bill of Rights in Australia should be pursued. This would allow for a wider recognition of rights and would provide a mechanism against state encroachment of these rights. It would allow the adoption of rights rooted in international law and allow the courts to consider these in their interpretation. For those who look to Constitutional protection of individual rights, this move by the High Court to uphold the consorting laws is the latest affirmation that the rights guaranteed in the Constitution are scarce and secondary to the law-making powers of the Government.

Neeharika says: Not many of us are members of gangs. But do you remember the first time you watched Grease? Some of us got a thrill from dreams of joining The Pink Ladies or Thunderbirds. Now take a minute to update the fantasy. Imagine that you’re done with your sing-song-ing days and Rizzo has been found guilty of a criminal offence. If you’re in the habit of consorting with Rizzo, you’ve been warned to stay away and if your loyalty to The Pink Ladies overrides your loyalty to the State of New South Wales, then you may be in for three years imprisonment or a fine of $16,500.25 S 93X of the Crimes Act,26 makes it an offence to consort habitually with convicted offenders. You might even be charged under the section if you’re taking newly-freed Rizzo grocery shopping, as did Charlie Foster was when he was shopping with his housemate.27 Charlie is a 21-year-old intellectually disabled man who happens also to be a member of the bikie gang, the Nomads. As concerning as it is that the law that allowed this to happen was upheld in the High Court, perhaps more concerning is the dearth of defences available. Section 93Y of the Act provides that s 93X offences are negatived by proof that an offender was consorting with family members, was merely in the course of lawful employment or training, or obtaining legal advice or also if the interaction occurs in lawful custody in compliance with a court order. So unless Rizzo marries into the family or gets a legal education it’s unlikely that your camaraderie will go unnoticed by the police. What arises is the situation that Chief Justice French identifies in his dissent: the laws may be a proportional means of preventing crime but there is no way of distinguishing between cases where that end was served and where it was not.28 It may be time to put the pink jacket back in storage: you have no right to freedom of association.29

It is problematic to treat freedom of association as an extension of freedom of political communication. This approach affords no protection to association outside of a political context.24 Even if this

University of Tasmania Law Review, 149. 142012 (NSW). 15David Dixon, Law in Policing: Legal Regulation and Police Practices (1997) 68 ff. 16http://www.smh.com.au/nsw/ nsw-consorting-laws-about-100-people-given-wrong-warnings-by-police-20140207-3273v.html 17(1983) 32 SASR 379 18Ibid 380 19(2013) 38(2) AltLJ 130 20(2013) 38(2) AltLJ 130 21 [2014] HCA 35 22Tajjour v NSW [2014] HCA 35. 23Chief Justice Robert French, International Law and Australian Domestice Law (Speech delivered at the Supreme Court of NSW Annual Conference, Hunter Valley, 21 August 2009) < http://www.hcourt.gov.au/assets/publications/speeches/current-justices/frenchcj/frenchcj21aug09. pdf>. 24George Williams, ’Sounding the Core of Representative Democracy: Implied Freedoms and Electoral Reform’ (2006) 20 Melbourne University Law Review 848, 856. 25Elizabeth Byrne, ‘NSW bikie consorting laws upheld: High Court’, ABC News (online), 8 October 2014 < http://www.abc.net.au/news/2014-10-08/high-court-ruling-upholdsnsw-consorting-laws/5797786>. 261900 (NSW). 27Tajjour v NSW [2014] HCA 35, [45]. 28Ibid. 29Ibid, [98].

To Detain is to Deprive Harry Cotton Australia’s treatment of asylum seekers has almost become an over-discussed topic of conversation and receives great media attention. This is due to the fact that policies and legislation that are intended to discourage asylum seekers from travelling to Australia have been frowned upon by many international and domestic organizations. In particular, Australia’s policies of mandatory detention are in violation of international law,1 despite Australia having signed and ratified human rights treaties. HARRY COTTON examines the question of how and why the Australian government can continue to breach international obligations - are these laws at all effective when there is no domestic means of enforcement?

Mandatory Detention First, let’s turn to Australia’s policy of mandatory detention. This policy was introduced in 1992 through amendments made to the Migration Act 1958 (Cth). In 1994 another amendment was made to the Migration Act that expanded mandatory detention to all non-Australian citizens arriving with out a valid visa. 2001 saw the introduction of the requirement that asylum seekers be transferred to Nauru and Manus Island for an indefinite period of detention known as ‘offshore processing’. There was a brief glimmer of hope in 2008 when offshore processing was abandoned, only to be reintroduced in 2012, quickly followed by the nail in the coffin in 2013 known as the ‘Regional Settlement Arrangement’. This arrangement which was introduced by the Rudd government and ensured that any asylum seekers arriving by boat without a valid visa after 19 July 2013 would be transferred to an offshore location for processing to be held indefinitely and if found not to be a refugee, transferred back to the country they had fleed. This policy of mandatory detention appears to be in breach of Article 9(1) of the International Covenant on Civil and Political Rights (ICCPR) of which Australia is a signatory. Article 9(1) states that: “Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.” According to an Australian Human Rights Commissioner Report,2 in 2013, 6,136 of the people being detained in mandatory detention had been detained for 3 months or less, 1,881 had been detained between 3 and 12 months and 189 people had been detained for longer than one year. Australia’s policy on mandatory detention can be seen as a form of arbitrary detention as it is not based on individual assessment to determine wheter detention is necessary.3 The Australian Human Rights Commission is not the only organization that views this policy as a breach of Art 9(1).4 The UN Human Rights Committee has also come to this conclusion on multiple occasions5. Whilst being held in mandatory detention asylum seekers should be treated humanely in accordance with Article 10 of the ICCPR. This article applies to all people being deprived of their liberty, such as in prison or detention.6 There is evidence that whilst in detention, asylum seekers are given a number on entry and referred to only as that number until they leave.7 Being dehumanised by having your name replaced by a number is surely not ‘humane’ treatment. By not allowing people in detention access to judicial review, Australia is clearly breaching its commitment to Article 9(4). The Australian Human Rights Commission has acknowledged that detention can be legitimate, if strict time limits are imposed.9 The United Nations Human Rights Committee has found on multiple occasions that Australia’s policy of mandatory detention of is done so arbitrarily.10 The main reasons for the findings were that in light of the individual’s circumstances prolonged mandatory detention pending the validity of their refugee status was not justified, and, that Australia failed to demonstrate that there were not less invasive ways of achieving adherence to Australia’s immigration policies.11

1 The term international law refers to treaties and conventions such as the International Covenant on Civil and Political Rights (ICCPR) and the Convention on the Rights of the Child (CROC). 2Australian Human Rights Commissions Asylum Seekers, Refugees and Human Rights Snap shot report 2013 pg 6. 3ibid 4ICCPR 5A v Australia, Communication No. 560/1993, UN Doc CCPR/C/59/D/560/1993 (1997) 6Right to humane treatment in detention: How do Victorian prisons rate? p.3 7Munjed Al Muderis, Walking Free, (Allen & Unwin,

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According to an Australian Human Rights Commissioner Report,2 in 2013, 6,136 of the people being detained in mandatory detention had been detained for 3 months or less, 1,881 had been detained between 3 and 12 months and 189 people had been detained for longer than one year. Australia’s policy on mandatory detention can be seen as a form of arbitrary detention as it is not based on individual assessment to determine wheter detention is necessary.3 The Australian Human Rights Commission is not the only organization that views this policy as a breach of Art 9(1).4 The UN Human Rights Committee has also come to this conclusion on multiple occasions.5 Do signed treaties = better treatment? Australians have many questions for our government in light of the breaches discussed above. How can Australia sign and ratify all these treaties and then disregard them completely? This raises the issue of how exactly international treaties and conventions are enforced domestically. Implementing international human rights laws into the domestic sphere requires more than simply being a party to a convention. By signing and ratifying the CROC and the ICCPR the Australian government has agreed to be bound by the articles contained in the conventions and enact new laws that reflect the articles of these conventions. Unfortunately, in relation to treatment of asylum seekers, this has not been done. The Migration Act does in fact, the opposite. Questions are therefore raised as to the effectiveness of these international conventions if they are not binding and not able to be enforced.

A silver lining? Not all hope is lost. Even when treaties have not been directly implemented into domestic law they can still be an indirect source of rights through the common law. Where a statute is ambiguous the courts will usually favour a construction that upholds an international obligation under a treaty or convention.13 Mason and Dean JJ in Teoh at 3414 stated that ratification of an international convention is a positive act by the Australian government that its agencies and people will act in accordance with the convention. It should also be noted that this line of thinking was disputed by McHugh J and later by multiple High Court Judges in Re Minister for Immigration and Multicultural Affairs: Ex Parte Lam.15 The view that ratifying an international convention has little to no effect on Australian law or policy has again been reinforced by a recent High Court decisions concerning holding asylum seekers whilst they are still at sea.16 Whilst CPCF v Minister for Immigration and Boarder Protection reinforced the position that international treaties do not invalidate domestic laws, there was a silver lining. It was recognized that s 72 of the Maritime Powers Act17 does not allow for a detainee to be held indefinitely. It is hoped that this line of thinking that is closer to that of Dean and Mason’s in Teoh, will continue to be adopted by the judiciary in the future. It is clear that Australia’s current treatment of asylum seekers is in breach of international law. Every country has a right to protect their boarders through immigration law and policy. But is also important to remember that there are many people arriving ‘by boat’ who are legitimately fleeing persecution. International conventions and treaties exist to ensure people who are in such a situation are treated with the humanity they deserve. Australia’s policy of imprisoning asylum seekers is more than concerning. It is as if we are punishing them for trying to find safety - are they are jumping out of the frying pan into the fire? Unfortunately, until there is a more effective way of holding states accountable for their signing and ratifying of international law, Australia will continue to enforce its immigration policies. Sadly, these are breaching international human rights law, common decency, and are ultimately, an embarrassment to our country.

Australia’s Constitution creates a system where a treaty can only become a source of obligations if it is directly incorporated into legislation.12 The executive handles the making and ratifying of treaties, whilst making laws is handled by Parliament. Therefore, treaties ratified by the executive branch are unable to become law until they are legislated by Parliament.

2014) p. 320 8ICCPR 9 Forgotten children p. 81 10ibid 11ibid 12Minister for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273 at 287 13 Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273 at 27 14Teoh (1995) 183 CLR 15(2003) 214 CLR 16CPCF v Minister for Immigration and Boarder Protection [2015] HCA 1 17Maritime Powers Act 1958 (Cth)

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10 words or Less To what degree are civil liberties a government priority in 2015 Australia? Attorney General George Brandis has recently claimed that ‘for too long we have seen freedoms of the individual diminish and become devalued.’ The Australian Law Reform Commission is in the process of receiving submissions for its latest ‘Freedoms Inquiry.’ The purpose of this investigation is to assess where Australian legislation may be depriving individuals or groups of fundamental freedoms and, where these encroachments exist. Are they justified? So, The Full Bench Team asked students to respond to the question: ‘to what degree do you believe civil liberties are a government priority in 2015 Australia?’

Laws and Liberties Autumn 2015

‘Liberties are great until you become 'Murica. Guns are bad.’ – Jason Corbett 'Civil liberties are not a priority, they are an afterthought’ – Daria Konnova ‘The government should address the right of privacy and equal treatment’ – Vanessa Jiang ‘Prioritised only so they can be taken away #metadata’ – Ashleigh Barnes ‘Ctrl+f 'piracy'. Replace all with 'privacy'. Government policy. #auspol’ – Alexander Vulkanovski ‘Until it's profitable there will be no priority’ – Krista Hiob ‘Civil liberties are democracy's foundations. Successive Governments haven't acted accordingly’ – Liam Fairgrieve ‘As long as children remain detained, the priority is low’ – Jack Fogl ‘18C, bail, metadata, anti-terror... Only when it suits the agenda’ – Courtney Lawes ‘Prioritising the freedom of mateship – can’t spell metadata without “mate” – Cecilia Ngu ‘The bigger the donation, the higher the priority.’ – Georgie Meredith 'Metadata Retention' [ri-ten-shuhn] noun 1. stopping me from watching GoT since 2015 (read: high priority)’ – Brigida Johns Laws and Liberties Autumn 2015

Freedom of Speech: A Façade of Freedom or an Unwarranted Concern? Isabelle Middleby-Clements ISABELLE MIDDLEBY-CLEMENTS reports on the first Speaker Series of 2015: A Façade of Freedom. Is free speech an untouched freedom in Australia? Freedom of speech, or the lack thereof, is now more than ever at the fore of the global and local, social and legal psyche. While global concern with the matter has been shoved to center stage by the horrific Charlie Hebdo shootings and the subsequent ‘Je suis Charlie’ movement, at a local level discussion has been raging, albeit in a varied context, from the very moment George Brandis’ campaign to legalise ‘bigotry’ controversially hit the press in August 2014, and then failed thereafter. As most supposed injustices do, this motivated the UTS Law Students’ Society to kick off the academic year with a hearty debate on the matter at the first Speaker Series for 2015. A keynote by the Honourable Justice Francois Kunc, and a panel consisting of the Honourable Anthony Whealy QC, Michael Bradley, and David Knoll AM ensured attendees left the evening abundantly more informed, slightly less concerned and overtly more confident in discussing the existence and meaning of freedom speech in Australia. Is freedom of speech an absolute human right and essential to a well functioning democracy, or a natural right entrenched through state governance, common law and legislation? Asserting that human beings ‘flourish in a social environment of social order characterized by peace, which includes physical and economic security’ and further, that we’ve given up on self-regulation of grievances ‘in return for regulation and protection by the state’, Kunz enunciated that a balance must be found between the state regulation of social order and the justifiable extent to which the state infringes upon individual autonomy for protection. It seems apparent then, that regulation of speech must be entrenched in state governance for a peaceful society. Yet, how protective should the state be?

1 Amanda Vanstone, ‘Charlie Hebdo defence of free speech brings out the twofaced’ The Age (online), 19 January 2015 <http://www.theage.com.au/comment/charlie-hebdodefence-of-free-speech-brings-out-the-twofaced-20150118-12spdh.html>. 21975 (NSW). 3Racial Discrimination Act 1975(NSW). 4Racial Discrimination Act 1975(NSW) s 18d. 5Racial Discrimination Act 1975(NSW). 61975(NSW). 7 Jon Ronson, ‘How one stupid tweet ruined Justine Saccos life’, The New York Times (Online) 12 February 2015 < http://

Laws and Liberties Autumn 2015

On one hand, Amanda Vanstone’s argument that should you hold a ‘Je suis Charlie’1 banner you might as well be wearing a ‘Je suis Brandis’ t-shirt too, shouts hypocrisy at supporters of the Charlie Hebdo movement by implying the very values Charlie Hebdo advocated (namely for free and open speech) are over-regulated in the Racial Discrimination Act2 resulting in the prosecution of Andrew Bolt for what some would say was freely voicing an opinion. Yet, Bradley and Whealy were quick to assert that Charlie Hebdo was never curtailed in France and would indeed likely be legal in Australia. Firstly, by the lack of the word ‘religion’ in s 18c and most importantly, via the defences of s 18d3, namely ‘artistic expression’.4 Hence, if a publication as controversial as Charlie Hebdo’s could exist legally in Australia, then Vanstone’s argument for the existence of a façade of freedom seems illegitimate. Stating that s 18c5 does not inhibit free speech but merely ensures opinions are voiced for the public interest in a manner that is not offensive, Whealy contrasts the Australian context with Malaysia and their antiquated sedition laws and Egypt where journalist Peter Grieste was unjustly imprisoned. It is there that a façade of freedom really exists and Australia’s concern seems somewhat vanilla in comparison. Particularly in light of the fact that the Act is rarely invoked, as stated by Bradley. Insisting ‘the debate is about an absolutely trivial matter which pales into insignificance when compared to the situation in these countries’, the façade of freedom argument is swiftly dismissed by Whealy and a sense of frivolousness is placed on those who believe Australia really is in dire straits. Perhaps Brandis’ freedom campaign had good sentiment, but was lost in the wrong area of legislation. In the same vein, Bradley asserts that the real curtailment of free speech arises in defamation laws and national security legislation. As Australia’s terrorist alert has been put on high, it is essential that a balance be struck between legislating to stifle terrorist threats and imposing disproportionate laws. Therefore, it seems a façade of freedom lies not in the Racial Discrimination Act6, which merely prevents citizens from acting out their bigotry like Andrew Bolt has done and was rightly persecuted. Rather, the real curtailment of freedom of speech is evidenced in reactive anti-terrorism legislation. Whealy sees a ‘terrific irony’ to exist in the inconsistent application of pick and choose hate speech, blanket targeted at the Islamic community. The panel was unanimous in stating that it is absolutely essential that the application of the incitement of racial hate principle is equal, fair and consistent across all Australian citizens. It cannot be a pick and choose process. Perhaps in regards to increasing national security, we need not pursue legislating further than the 60 new laws passed since 2001. Rather, it might be time to pay attention to the social causes relating to Australia’s Islamic population, which will undoubtedly point to social vulnerability, exclusion and disadvantage.

“Whealy sees a ‘terrific irony’ to exist in the inconsistent application of pick and choose hate speech, blanket targeted at the Islamic community. The panel was unanimous in stating that it is absolutely essential that the application of the incitement of racial hate principle is equal, fair and consistent across all Australian citizens. It cannot be a pick and choose process.” from unjust persecution?’ becomes integral, as stated by Kunz. The answer to this is somewhat murky, however provokes thought as to the necessity of legislation to regulate disproportionate social condemnation. Would social censorship adequately regulate the propagation of offensive comments? While social regulation was evident in circumstances like Justine Sacco’s, leaving the censorship process entirely to the community is dangerous territory and could even be seen as a ‘complete cop out’ by the government, as stated by Whealy. It is crucial to remember as Kunz declared, that society has relinquished the regulation of grievances via self-help and have instead put faith in the state to govern, protect and maintain social order. While this ensures the states imposition upon individual autonomy to some extent inevitable, subsequent social order and peace is resultant. Therefore to grant increased autonomy to individuals by trusting social regulation of bigots might be putting too much faith in society. While free speech has undoubtedly got tongues wagging, fingers pointing and debate raging, proposed abuses of freedom of speech as a result of the Racial Discrimination Act9 are virtually nil. While Brandis and his cronies try their best to assert that the persecution of Andrew Bolt was unjust and bigots should be allowed to be bigots if they wish, the act does not stifle free expression. It merely requires the discussion to be respectful and in good faith. Thus, a closer look at the national security laws must be undertaken as it is here that a potential abuse of free speech is emerging if the principle of ‘hate speech’ is disproportionately applied to Muslim groups. It is this occurrence that would stifle freedom of expression, not the restrictions of the Racial Discrimination Act10 which merely regulate crude loudspeakers like Andrew Bolt.

To what extent should the law intervene in preventing comments of bigotry? As David Knoll reminded the audience, law making is only one way to better a societal complex. Social self-regulation plays a large role in preventing offensive speech, particularly in social media. As exemplified by Kunz when referring to the case of Justine Sacco,7 where it was not the law that intervened, rather a global social media movement that ‘blew up Justine Sacco’s life’8, social regulation can have serious consequences. Yet, while social self-regulation is often more effective in stifling offensive commentary than legal remedy, the question of ‘how far should the law protect an unpopular speaker

www.nytimes.com/2015/02/15/magazine/how-one-stupid-tweet-ruined-justine-saccos-life.html?_r=0 >. 8 Jon Ronson, ‘How one stupid tweet ruined Justine Saccos life’, The New York Times (Online) 12 February 2015 < http://www.nytimes.com/2015/02/15/magazine/how-one-stupid-tweet-ruined-justine-saccos-life.html?_r=0 >. 91975(NSW). 101975(NSW).

Laws and Liberties Autumn 2015

Barbed Wires - The Threats to Civil Liberties under new Telecommunications Data Retention Laws Sheona Robertson In response to rapid technological developments in telecommunications, essential for countering modern terrorist and criminal threats, the Federal Government has recently passed data retention laws. SHEONA ROBERTSON considers the potential implications for civil liberties arising from the passing of the laws, and whether the amendments made to data retention provisions are a reasonable and proportionate response justifying such a restriction of civil liberties.

Rapid technological developments in telecommunications have exposed new and increasingly pervasive threats to the security and safety of Australians, according to the Federal Government. These threats, coupled with a change in business practices that has seen a shortening in the retention periods of user data by telecommunications service providers, have influenced the Government’s decision to pass its controversial Telecommunications (Interception and Access) Amendment (Data Retention) Bill.1 The Bill was hurried through Parliament to be passed by both Houses of Parliament on 26 March 2015. It has provoked a reaction from a range of bodies including the telecommunications industry, civil liberties and human rights groups, media bodies and political parties concerned with potential limitations the Bill will place on civil liberties. A number of civil liberties are impacted by the legislation. International law permits a restriction of civil liberties where such restriction is lawful, for a legitimate objective, and executed in a manner which is reasonable, necessary and proportionate to the achievement of that aim.2 Senator George Brandis describes the legitimate objective of the Bill as “national security, public safety, addressing crime, and protecting the rights and freedoms of individuals”.3 Opponents of the Bill argue that the legitimacy of the Bill as a reasonable, necessary and proportionate response to this objective is highly questionable.

The Right to Privacy The right of the individual to be protected from arbitrary or unlawful interference with their privacy is an internationally recognised civil liberty.4 The United Nations has expressed its concern over the enhanced capacity of governments around the globe to intercept and collect private data and undertake surveillance on their citizens.5 In response, George Brandis has contended that the immediacy of the need for added legislative protection of the public order overwhelms the individual’s right to privacy. He argued that restricting access to retained data for reasonable and proportionate purposes only is an adequate protection of the individual’s right to privacy, and that the right to privacy is further safeguarded by the facilitation of an independent Ombudsman to monitor appropriate access to and use of the retained data.6

1Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2015 (Cth). 2 Revised Explanatory Memorandum, Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2015 (Cth) 12, 65. 3 Ibid 12 [66]. 4The right to privacy in the digital age, GA Res 68/167, UN GAOR, 68th sess, 3rd mtg, Agenda Item 69(b), UN Doc A/C.3/68/L.45/Rev.1 (20 November 2013) 2. 5 Ibid 1. 6 Above n 2, 24. 7 George Williams, ‘Metadata law concessions good news for press but problems remain’, Comment, The Sydney Morning Herald (Sydney), 22 March 2015 8 Nigel Brew, ‘Telecommunications data retention—an overview’ (Background Note, Parliamentary Library, Parliament of Australia, 2012) 5. 9 Ekaterina A. Drozdova, ‘Civil Liberties and Security in Cyberspace’ (2000) Stanford University Centre for International Security and

Laws and Liberties Autumn 2015

The opposing argument is that the Bill places the right to privacy in jeopardy due to its arbitrary and undemocratic nature. The breadth of the forms and volume of data that can be retained, and the number of authorities to be granted unwarranted access to the retained data, remain only loosely stipulated. This lack of clarity was an intentional move by the Government to secure scope for future expansion of the breadth of data and authorised agencies as new technologies or threats emerge.

Whilst the Government ultimately responded to vigorous opposition to the legislation as it pertains to journalists and implemented measures aimed at protecting journalists and their sources from unwarranted interference with data created in the course of generating a story, other vulnerable groups such as whistle-blowers, activists or politicians remain at risk. Since it is conceivable that individuals belonging to these groups could be investigated as ‘persons of interest’, the Bill is a clear threat to freedom of expression. Democratic processes such as political scrutiny stand to be jeopardised.11

Already the diversity of agencies that stand to be authorised to access data is extensive and is perhaps disproportionate to the The Right to Presumption of Innocence stated legislative aim. Once authorised, agencies will neither have to obtain a warrant nor consider whether the purpose for which Individuals have the right to be presumed innocent until proven guilty, data is being accessed lies within the public interest.7 The potential but the Bill seemingly reverses this presumption for an abuse of power under these provisions of innocence. Ordinary Australians will be undermines democratic values and threatens subject to mass surveillance irrespective of “Yet telecommunications the individual’s right to privacy. The presence whether they have ever been suspected of, experts warn that the charged with or convicted of a crime.12 In of an independent Ombudsman may prove insufficient to ensure that data is only accessed distinction between content essence, the Bill has the potential to make a for reasonable and proportionate purposes. suspect of everyone, an effect only exaggerated

and non-content data

by the arbitrariness of an authorised agency’s George Brandis has laboured to emphasise may become increasingly capacity to label an individual a ‘person of that retained data will exclude the content of for the purpose of accessing their unclear, particularly as interest’ telecommunications and will remain limited to telecommunications data. It may be possible certain types of information such as the source, the Government begins for an authorised agent to gain access to type, destination, date, time and duration of personal data on the mere grounds of to expand the types your the communication, collectively known as your communication with a friend or family ‘metadata’. So insistent was this message that of information to be member who has come to the attention of the many of us believe retention of metadata to or an intelligence agency. If this were included in its definition” police be relatively harmless. Yet telecommunications to transpire it would be a blatant reversal of experts warn that the distinction between of ‘metadata’. the presumption of innocence since it would content and non-content data may become amount to suspicion purely by association. increasingly unclear,8 particularly as the Government begins to expand the types of Conclusion information to be included in its definition of ‘metadata’. As it stands, 9 the included data is sufficient for creating profiles of individuals. It While there is undoubtedly a tension that exists between protection represents a denial of our right to elect to retain sole knowledge of of civil liberties and maintenance of the public order, few aspects our private information. of the new Data Retention Bill can be considered reasonable and proportionate relative to its core purposes. The path advocated by The Right to Freedom of Expression George Brandis is predicated on the notion that every citizen deserves to be monitored, a notion reminiscent of a police state.13 The The Government has conceded that freedom of expression may be Government may have overstated the threat of terrorism and serious limited by the Bill, as people are likely to become cautious with their crime in order to justify the limitations on civil liberties imposed by usage of telecommunications services owing to their awareness that the legislation. Given the questions that have been raised challenging their telecommunications data will be stored and could lawfully the effectiveness of the proposed amendments to the legislation, be accessed within a two year period. Feeling that they are under the Bill may do little more than create an illusion of public safety. To constant surveillance, people may begin to engage in a form of the contrary, public safety may actually be compromised in the sense self-censorship as they alter the manner in which they receive or that a diminishment of civil liberties represents a challenge to the send information.10 democratic values on which we are so reliant. There must be less intrusive alternatives that tilt the balance away from governmental oppression and instead defend our civil liberties.

Cooperation Report 23. 10 GetUp!, Citizens, not suspects, GetUp! Action for Australia, <https://www.getup.org.au/campaigns/privacy/mandatory-data-retention-getup--2/ citizens-not-suspects>. 11 Ibid. 12 RW McKenzie, ‘Data retention bill threatens privacy and legal rights’, Green Left Weekly (online) 19 November 2014 < https://www. greenleft.org.au/node/57785>. 13 Jeremy Kennet, ‘Who’s watching’, About The HouseMagazine (online) May 2013<http://www.aph.gov.au/About_Parliament/House_of_ Representatives/About_the_House_Magazine/Previous/ATH47>..

Laws and Liberties Autumn 2015

In the Best Interests of the Child? Dominic Smith

Amid the vitriolic debate surrounding asylum seekers, the rights of the most vulnerable children are often overlooked. DOMINIC SMITH examines the impact of Australia’s immigration policy on the rights of children and their ability to access procedural fairness. The rights of the children born to refugees and asylum seekers remain an ongoing concern for the Australian Human Rights Commission, Non-Government Organisations (“NGO’s”) and the relevant UN authorities. Since the High Court decision in Chu Kheng Lim v Minister for Immigration (“Chu Kheng Lim”), the Australian Government has been able to restrict the rights and liberties of non-citizens for the purpose of investigating and determining an application of entry or a notice of deportation.1 Furthermore, the decision in Al-Kateb v Godwin2 has extended the legality of detention regimes indefinitely. Consequently, this raises serious questions in relation to Australia’s international obligations, particularly in regards to the UN Convention on the Rights of the Child.3

Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 2Al-Kateb v Godwin [2004] HCA 37 3Convention on the Rights of the Child, opened for signature 20 November 1989, [1991] ATS 4 (entered into force 17 December 1990). 4 Gillian Triggs, National Inquiry into Children in Immigration Detention: Discussion Paper (4 February 2014) Australian Human Rights Commission <https://www.humanrights.gov.au/sites/default/files/document/publication/Children_ Detention2014_Discussion_paperFINAL.pdf> 5Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) Art 34. 6 Ibid Art 31. 7 Ibid Art 34. 8International Covenant on Civil and Political Rights, UN RES 2200A (XXI), UN GAOR (16 December 1966, adopted 23 March 1976) Art 9. 9Convention on the Rights of the Child, UN RES 44/25, UN GAOR (20 November 1989, entered into force 2 September 1990)Art 3 10 Ibid Art 22. 11Migration Act 1958 (Cth) s 196. 12Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 13Al-Kateb v Godwin [2004] HCA 37 14 Matthew Groves ‘Treaties and Legitimate Expectations - The Rise and Fall of Teoh in Australia’ (2010) Monash Univesity Law Research Series 8, 9. 15Minister of State for Immigration and 1

In response to the practice of detaining children by consecutive governments the Australian Human Rights Commission recently developed a report into child detention, noting the various violations of human rights perpetrated by past and current Australian governments.4 This paper intends to examine the issues in report, relating to procedural fairness and mandatory detention and suggest possible reforms that could be made to Australia’s migration laws.

International law The Convention on the Rights of the Child and the Convention relating to the Status of Refugees5 are the two international conventions governing the rights and liberties of refugee children. A common theme within the international law on refugees and asylum seekers is the right to seek asylum6 and the requirement of States to ‘facilitate the assimilation and naturalisation of refugees’.7 Although naturalisation is significant, the UN recognises that individuals can be deprived of their liberty temporarily ‘in accordance with [procedures]... established by law’.8 Although Governments have this exclusive power, laws concerning children must take into consideration ‘the best interests of the child’.9 Moreover, Article 22 of the UN Convention on the Rights of the Child requires the administrative protection of the interests of refugee families and children seeking state protection.10 Therefore States are required to provide sufficient facilities, resources and legal procedures to protect the liberties, rights and interests of any child in detention.

Mandatory detention and procedural fairness

legislation, the decision disallows administrative decisions to protect the best interests of children under international law.

Gillian Triggs and the Report on Children in Detention The National Inquiry into Children in Detention sought to ‘investigate the ways in which life in immigration detention affects the health, well-being and development of children’.18 Currently, there are approximately ‘800 children in closed detention’ and medical reports have noted that there are numerous cases of children suffering from ‘serious mental harm’.19 The Children’s Hospital at Westmead Refugee Clinic submitted a report to the inquiry noting: More than half of all the asylum seeker children we are currently seeing are suffering from post-traumatic stress. Many of these children were exposed to traumas in their countries of origin and on perilous journeys, which clearly contribute to their stress. However, the trauma of being in detention centres without knowledge of when they will be released clearly adds to the stress and compounds the problem.20 Despite government criticism the inquiry has assisted in holding the executive branch of government to account for human rights violations. Furthermore, as a consequence of the inquiry, there have been calls for a Royal Commission to be held to assess evidence of ‘rape and sexual assault of minors’ during their time in mandatory detention. By promoting a level of transparency in government operations, the executive can be held to account by the public and therefore maintain the rights and liberties of non-citizens and citizens alike.

“Yet telecommunications experts warn that the distinction between content and non-content data may become increasingly unclear, particularly as the Government begins to expand the types of information to be included in its definition” of ‘metadata’.

The Migration Act 1958 (Cth) prescribes that authorities may detain a non-citizen for the purposes of deportation11 or for the purposes of investigating, receiving and determining an application for an entry permit or visa.12 In support of this legislation, the High Court decision in Al-Kateb v Godwin13 affirmed the validity of the power to detain non-citizens indefinitely, under the Migration Act 1958 (Cth). The administration of Australia’s migration system is primarily implemented and reviewed by the Migration Review Tribunal and the courts. Within this context, ‘procedural fairness’ remains a key issue because there is doubt whether international treaties and conventions can be considered when determining the rights of non-citizen children in administrative decisions.14 The High Court decision in Minister for Immigration and Ethnic Affairs v Teoh15 is authority for the principle that ‘the ratification of a treaty may give rise to a [substantive] legitimate expectation that administrative decision-makers will act in accordance with the terms of the treaty’.16 However, Gleeson in Lam contended this proposition because ‘if such a proposition were accepted, it would elevate judicial review of administrative action to a level of high and arid technicality’.17 Although the courts in Lam intended to affirm the significance of executive decision-making and

The future of border protection

The likelihood of change to the current restrictions on non-citizen rights is ambiguous and unpredictable in the current political and socio-economic climate.21 Authorities and the public remain reluctant in many circumstances to afford non-citizens similar rights to those afforded to citizens.22 Therefore it is necessary to develop sufficient human rights protections to ensure that authorities don’t abuse such powers and that the Parliament implements administrative institutions to monitor breaches to ratified international treaties and conventions. The amendment of the Migration Act 1958 (Cth) to consider the international law and conventions on child refugees would assist in preventing further human rights violations. Furthermore, an increase in the role of the Australian Human Rights Commission and other independent committees in the scrutiny of administrative decisions and policies would further improve the procedural fairness of processing the claims of refugee and asylum seeker children.

Ethnic Affairs v Teoh (1995) 183 CLR 27316 Wendy Lacey, ‘A Prelude to the Demise of Teoh: The High Court Decision in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam’ (2004) 26(1) Sydney Law Review 131. 17Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1, 9 [25] 18 Gillian Triggs, National Inquiry into Children in Immigration Detention: Discussion Paper (4 February 2014) Australian Human Rights Commission <https://www.humanrights.gov.au/sites/default/ files/document/publication/Children_Detention2014_Discussion_paperFINAL.pdf> 19 Rowan Forster, ‘Commission finds Australian Detention Centers Breach Children’s Rights’, Third Watch (online), 12 February 2015 <http://www.3wnews.org/article/news/commission-finds-australian-detention-centers-breach-childrens-rights_634>20 Children’s Hospital at Westmead Refugee Clinic, Submission No. 1 to Australian Human Rights Commission, National Inquiry into Children in Immigration Detention, 4 April 2014, 8. 21 Schultz, as above n 5, 38. 22 David Cole, ‘Are Foreign Nationals Entitled to the Same Constitutional Rights As Citizens?’ (2003)

Alarming changes to bail laws in NSW: What you need to know Alix Johnson

1 New South Wales Law Reform Commission, Bail, Report No 133 (2012). 2 New South Wales Bail Review Committee, title?, Report No30 (1976), 10. 3 Jacqueline Maley, â&#x20AC;&#x2DC;NSW Bail Act: some freedoms more equal than othersâ&#x20AC;&#x2122;, The Sydney Morning Herald (online), July 5 2014 < http://www.smh.com.au/comment/nsw-bail-act-some-freedoms-more-equal-than-others20140703-zsv2q.html>. 4 Julia Quilter, Not for punishment: We need to understand bail, not review it (3 July 2014) The Conversation<http://theconversation.com/not-for-punishment-we-

Laws and Liberties Autumn 2015

Bail is a necessary part of the judicial process in enabling both the protection of the community as well as recognising the rights of the accused. However, in NSW, the influence of the community and media alike has influenced changes to bail laws. ALIX JOHNSON explores how the current bail reforms have eroded the liberties of one group in order to make way for laws that appease another. Bail is the authority to be at liberty for an alleged offence and is conditioned on a requirement that the accused return to court to have his or her proceedings adjudicated according to law.1 The ongoing tension in NSW revolves around the precarious balance between the weight given to the right of the accused to be presumed innocent and to be ‘at liberty’, versus the need to protect the community. The Bail Act 2013 (NSW) came into effect on the 20th May 2014 and was heralded as a progressive step forward for bail law in NSW.2 It sought to rectify the “Frankenstein monster”3 that The Bail Act 1978 had become, by eliminating the complex offence based presumptions in favour of a simplified two stage ‘unacceptable risk’ assessment. Based on a rigorous twelve-month review by the NSW Law Reform Commission received unanimous support,4 and was passed without contention.

What went wrong? However, after less than five weeks in operation, The Bail Act 2013 was subject to a tirade of criticism by the media as a result of the (conditional) release of accused persons such as alleged murderer Steven Fesus.5 In response to cases like that of Fesus, the media vehemently criticised the new bail laws and the Coalition Government as ‘soft on crime’.6 Consequently, on the 27 June 2014, the NSW Premier Mike Baird succumbed announced a review of the legislation by former Attorney General John Hatzistergos. The review was clearly premature, completed in just four weeks and rushed through Parliament without public consultation.

The Bail (Amendment) Act 2014 (NSW) came into effect on the 28 January 2015 modifying The Bail Act 2013 in three significant and alarming ways. First, the purpose of the Act has been amended to exclude express reference to the presumption of innocence and the right of accused persons to be at liberty.7 There is now no requirement that bail applications be decided in light of these fundamental presumptions. Second, the Act now requires persons charged of a ‘serious offence’ to ‘show cause’ as to why their detention is not justified.8 This has been severely criticised for being in contradiction to the presumption of innocence as it wrongfully shifts the onus of proof to the accused. Furthermore, courts have struggled to apply the new provision, as the Act does not explain how a person is to show cause.9 Finally, The Bail (Amendment) Act now imposes a requirement that courts have regard to the views of victims of ‘serious offences’.10 This provision appears unduly prejudicial as it only acts to conflate the perceived guilt of the accused11 and restates section 18(1)(n) which already appropriately considers risk to victims. What is clear is that The Bail (Amendment) Act wrongfully elevates the protection of the community above the rights of accused persons, and has been the result of conflated media attention in cases like Fesus,12 which have hijacked bail reform discourse in NSW. This should act as a catalyst for lawyers to think seriously about changing public perceptions regarding bail laws. But considering the state of confusion the current Government is living in, this will not be an easy feat.

need-to-understand-bail-not-review-it-28651>.5R v Fesus [2014] NSWSC 770. 6 Quilter, Above n 4. 7 2014 (NSW) s 3.8The Bail (Amendment) Act 2014 (NSW). 9M v R [2015] NSWSC 128. 10 2014 (NSW) s 18(1)(o). 11 Quilter, Above n 4. 12R v Fesus [2014] NSWSC 770

Laws and Liberties Autumn 2015

The End of the FOI Champion Leanne Houston

One of UTS’s very own administrative law experts, Leanne Houston, weighs in on the proposed changes to the freedom of information laws, the history of how they came to be and the potentially dangerous road ahead.

Professor John McMillan, ‘Administrative Law and Cultural Change’ (Speech delivered at the Australian National University, Public Law Weekend, Canberra, 24 October 2014). Commonwealth, Parliamentary Debates, Senate, 30 October 2014, 8347 (Richard Colbeck). Commonwealth Parliamentary Debates, Senate, 13 May 2010, 2835 (Joe Ludwig). Australian Government, Review of the Freedom of Information Act 1982and Australian Information Commissioner Act 2010, July 2013, p.36. Explanatory Memorandum, Freedom of Information Amendment (New Arrangements) Bill 2014. Mr. Michael McKinnon, Committee Hansard, 10 November 104, p.17. Legal and Constitutional Affairs Legislation Committee, The Senate, Freedom of Information Amendment (New Arrangements) Bill 2014 [Provisions], November 2014, Senator Jacinta Collins. Mr. Peter Timmins, Committee Hansard, 10 November 2014,

Laws and Liberties Autumn 2015

With the 2015-2016 Budget imminent, questions still remain regarding the amendments to the essential legislative anchor for open government1- the Freedom of Information Act 1982 (Cth) (“FOI Act”). The Freedom of Information (New Arrangements) Bill 2014 that was introduced to implement the 2014-2015 Budget measure, Smaller Government –Privacy and Freedom of Information functions- new arrangements2 has been sitting on the Senate bill list since October 2014. There is no majority to support the Bill. The Bill proposed that the Office of the Australian Information Commissioner (“OAIC”) close on 31 December 2014. The Freedom of Information Commissioner, Dr Popple was appointed to the Administrative Appeals Tribunal (“AAT”) on 1 January 2015 and the OAIC Commissioner, Professor McMillan is at present working from his home. All this leaves us with is a currently unsatisfactory system with an uncertain future. A Brief History of Commonwealth FOI

The Bill however does not affect the legally enforceable right of every person under the FOI Act to request access to documents. Nor does it make changes to the objects of the FOI or the matters that agencies and ministers are required to consider.

The FOI Act was enacted in 1982. At that time, government had an unreviewable discretion to decide when to release documents and information. This fueled corruption and wrongdoing. There were strong criminal and disciplinary penalties for unauthorised release and legal doctrine supported the idea that government information was the property of the Crown. The milestone 1982 Act reversed those features. It granted an enforceable legal right of access with refusal by an Agency or Minister only on exemption grounds. Decisions by agencies or ministers were externally reviewable with the legal onus to refuse access with the Agency or Minister. Thus, it heralded the new era of transparency.

Finally, that the right to appeal directly to the AAT is a positive move, as the OAIC and its non-adversarial model had the potential to deny natural justice to applicants.6

Fast forward to May 2010 when Senator Joe Ludwig3 introduced the package reforms to overhaul and streamline the FOI Act, as well as to establish a new statutory agency, the OAIC. The OAIC would undertake merit review of Agency and Ministerial decisions to refuse access. There would be no application fee to the OAIC. The package legislation in essence was introduced to strengthen Australia’s representative democracy, increase public participation and therefore accountability in government’s activities. In October 2012, Dr Allan Hawke AC was commissioned by the Labor Government to review the operation of the FOI Act and the OAIC. Dr Hawke considered that the OAIC had been a very valuable and positive development whilst recognising lengthy and consistent delays in the OAIC’s decision making and complaint investigation processes. Dr Hawke further concluded that there was insufficient evidence, two and a half years into its operation to make a decision on whether the model was the best one.4 He recommended that further examination would be required.

The proposed aims of the New Arrangements Bill The Bill was introduced into the House of Representatives on 2 October 2014. The aim being to streamline FOI. Part of the streamlining involves abolishing the OAIC. The AAT will become the sole vehicle for external merits review of FOI decisions, with a requirement for mandatory internal review of decisions firstly; the Commonwealth Ombudsman will be responsible for investigating complaints and the Attorney-General will be responsible for FOI guidelines.

Support and Rationale for the Bill The measures in the Bill, according to the Government, will save $10.2 million over four years,5 in line with their objective to repair the Budget deficit. There is the belief that the creation of the OAIC produced an unnecessarily complex system with multiple levels, duplication and delays which is counter to delivering efficient, effective government. The amendments aim to simplify FOI review processes by removing a level of external merits review and in doing so will reduce the burden on FOI applicants.

Dissent Dismantling of the OAIC occurred with no review, no consultation and no justification.7 The Government ignored the work of the Hawke Review and did not undertake serious analysis. The delays experienced by the OAIC in part arose from inadequate resourcing from the outset8. The application fee for external merits review through the AAT incurs a fee of $861 plus additional costs for legal advice and representation. Review at the OAIC is fee free and no requirement for legal counsel. FOI advocates regarded the ‘FOI champion’ (the OAIC) at arms’ length from government control as an essential feature with a global trend now toward Information Commissioners9. The transfer of FOI related functions and powers from an independent statutory authority to the Executive branch creates a potential conflict of interest. Proactive publication of government information would be discontinued and the incidence of agencies breaching time limits to respond to requests would increase.10

What paths to save the ‘FOI champion’ In accord with the comments of Mr. Peter Timmins, an FOI consultant and lawyer, the Government should11: • Withdraw the Bill; • Restore funding of the OAIC as a temporary measure; and • Appoint a panel of experts to closely examine the OAIC and deliver a report within three months. • Further, that they consider the Hawke Review and its recommendations.

p.13. Parliamentary Library, Bills Digest No.44, 2014-15, 27 October 2014, p.4; Associate Professor Moira Paterson, Submission 5, pp6-7; Transparency International Australia, Submission 6; Mr. Peter Timmins, Submission 9, pp1 &7-8. Parliamentary Library, Bills Digest No.44, 2014-15, 27 October 2014, Guardian Australia, Submission 18, p. 3. Mr. Peter Timmins, ‘Budget time in Canberra the chance to get back on track towards ‘good government’ on Open and Shut, 11 April 2015, < http://foi-privacy.blogspot.com.au/2015/04/budget-time-in-canberrachance-to-get.html#.VS81rtKqqko>

Laws and Liberties Autumn 2015

Liberty and Security: Are we Getting the Balance Right? Emma Phipps As debate heats up surrounding the governments knew anti-terror laws, EMMA PHIPPS asks whether the government is striking the right balance between upholding civil liberties and protecting Australians from terrorism.

Since the September 11 2001 terrorist attack on New York and Washington, the Australian government has enacted 64 pieces of counter-terrorism legislation.1 Whilst terrorism is a serious crime, it may be argued that some pieces of legislation enacted by the government threaten our free speech and civil liberties and are too far removed from the actual commission of terrorism.2 This is apparent in the examination of s9A of the Classification (Publications, Films and Computer Games) Act 1995 (Cth).3 This section pertains to the refusal of classification of any publication, film or computer game that advocates terrorist acts.4

Balancing act Doctor Christopher Michaelson empathises that liberties are the bedrock of Australia’s representative democracy.5 Michaelson provides a compelling argument highlighting the need to uphold human rights as well as national security concerns. This is in direct contrast to the opinion of former Attorney General, Phillip Ruddock who is an advocate for the promotion of national security concerns.6 He argues that there would be no need for civil liberties if we were not alive to make use of those human rights.7 However, whilst national security concerns are important they must be balanced with civil liberties. Arguably, the “praise” or “urging” of terrorism in the form of Publications, Films and Computer Games is too far removed from the actual commission of the crime and is detrimental to our civil liberties and representative government.

Too vague and uncertain Certain terms in s9A are too vague and uncertain to be effective in preventing terrorism. Hume and Williams argue that words such as “urge,” “counsel,” “instruct in” and “praise” may be too broad in construction.8 Moreover, while section 9A(3) does provide an exception, it is arguably hard to determine the definitive scope of the terms of the exceptions, “discussion,” “debate,” “entertainment,” or “satire.”9 There is also no guidance within the legislation as to the

1 Andrew Lynch, Nicola McGarrity and George Williams, Inside Australia’s Anti-Terror Laws and Trials: A Timely Examination of the Impact of Australia’s Anti-Terror Laws after September 11 and the New 2014 Terror Laws (New South Press, 2015) 3. 2David Hume and George Williams, ‘Australian Censorship Policy and the Advocacy of Terrorism’ (2009) 31 Sydney Law Review 381, 406.3Classification (Publications, Films and Computer Games) Amendment (Terrorist Material) Act 2007 (Cth). 4Classification (Publications, Films and Computer Games) Amendment (Terrorist Material) Act 2007 (Cth). 5 Michaelson, Christopher, ‘Balancing Civil Liberties Against National Security? A Critique of counter-terrorism Rhetoric (2006) 29 University of New South Wales Law Journal 1, 6. 6 Philip Ruddock, ‘Law as a preventative Weapon Against Terrorism’ in Andrew Lynch, Edwina MacDonald and George Williams (eds), Law and Liberty in the War on Terror (Federation Press, 2007) 3,8. 7 Ibid. 8David Hume and George Williams, above n 2, 395.9Classification (Publications, Films and Computer Games) Act 1995 (Cth)

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breadth and meaning of the terms.10 Without definitive exceptions it is likely that free speech will be stifled as any publication, film or computer game that discusses terrorism must be banned.11 These terms are unjustifiable due to the uncertainty of the provisions. The University of Melbourne Library pre-emptively removed certain books within their library, as they feared inadvertent breaches of the law.12 This has the effect of restricting and curtailing legitimate and open discussion, which is essential to Australia’s representative government.13 The terms also target an act that is too far removed from the actual commission of terrorism. This is likely to impede the proper functioning of Australia’s representative democracy.

The importance of an independent body Section 9A constitutes an unwarranted restriction on freedom of speech as it removes the discretionary features and the nature of the complex system derived from the Code and Guidelines.14 It can be argued that it implements a rigid rule that does not allow for the consideration of the effect of the material on the intended audience.15 The intervention of politics in decision-making means that there is a danger that “unpopular, but valuable, political speech” will be stifled. 16 In 2006 two Islamic books titled Join the Caravan and In Defence of the Muslim Lands were banned under the direction of the Government. While both books may have included extremely unsavoury and incendiary viewpoints, the banning of books by any government should always raise serious questions. Section 9A is an unjustified restriction of free speech as it infringes the implied guarantee of political communication, which is essential to Australia’s representative government.

Detrimental effect on multicultural society It has been reported in many scholarly articles that Australia’s anti-terrorism laws may have a detrimental effect on Australia’s multicultural society and particularly the Muslim community.17 Moreover, it is feared that these pieces of legislation may have a chilling effect on freedom of expression.18 It is hypothesised that these anti-terrorism laws “may contribute to a sense of alienation and discrimination in Australia’s Muslim communities if they feel like the government is not willing to have an open discussion about issues surrounding terrorism and Islam.”19 The insertion of section 9A threatens transparency and free speech. Moreover, when a significant portion of the Australian population eye the recent antiterror laws with distaste and mistrust, it would seem to suggest that the laws are departing from their intention to protect and instead governing the way in which people choose to access contentious ideas and information.

Conclusion While the threat of terrorism is undoubtedly real, anti-terror laws must be adapted to properly co-exist with civil liberties. Section 9A personifies the difficulty of balancing civil liberties with the dangers of terrorism. Moreover, section 9A is vague and uncertain, and consequently the Australian people should not be expected to put their faith in a law designed to protect them when it is clear that it can equally be used to legitimise governmental intrusion into the way citizens’ access information.

s9A(3). 10Classification (Publications, Films and Computer Games) Act 1995 (Cth). 11Classification (Publications, Films and Computer Games) Act 1995 (Cth) s9A(3). 12 Ibid. 13Australian Constitution ss 7, 24. 14Classification (Publications, Films and Computer Games) Act 1995 (Cth); National Classification Code 2005 (Cth); Guidelines for the Classification of Publications 2005 (Cth). 15David Hume and George Williams, above n 2, 398. 16 Ibid. 17 Keiran Hardy and George Williams, Australian Law Reform Commission, Review of Commonwealth Law for Consistency with Traditional Rights, Freedoms and Privileges, 25thFebruary 2015, 1, 5; Waleed Aly, ‘Muslim Communities: Their Voice in Australia’s Terrorism Laws and Policies’ in Andrew Lynch, Edwina MacDonald and George Williams (eds), Law and Liberty in the War on Terror (Federation Press, 2007) 138. 18 Ibid 6. 19 Ibid.

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Privacy and the Cloud: The Australian Privacy Principles Duncan McEwin As technology develops and data sharing mechanisms become more advanced, how trusting can we really be when disclosing our personal information to organisations? DUNCAN MCEWIN examines the Australian Government’s attempt to regulate the transfer of private information via the Internet.

Every aspect of our online presence requires us to provide personal information. Whenever we use the Internet to complete government forms, surveys etc. we hand over personal information to organisations that we trust will look after it. But what if the laws that are supposed to protect us are substantially ineffective and the organisations to which we provide our data are routinely sending it overseas? Would that even be a problem? This is the critical question behind the Australian government’s attempt to regulate the transfer of private information via the Internet – welcome to the world of the cloud. In broad terms, cloud computing is the process of utilising geographically remote servers and computers to store and process information provided from a single end-point (your laptop). If you’ve used any recent Microsoft, Google or Apple products then you’ve used the cloud. According to Forbes Magazine, the market for cloud services will reach US $32.8 billion in 2016, and as many as 88% of organisations are currently using the cloud.1 This article will focus on how the private information of individuals in Australia is handled by organisations using cloud infrastructures - what happens when you enter private information into the Internet; where does it go, who has access to it, and what laws apply?

Australian Privacy Principles The Australian Privacy Principles (APPs) came into effect in 2014 as the substantive part of the Privacy Amendment (Enhancing Privacy Protection) Act.2 They are thirteen principles designed to regulate how organisations deal with ‘Personal Information’. Personal Information is defined under s 6(1) as information or opinions about an identified individual, or an individual who is reasonably identifiable: (a) Whether the information or opinion is true or not; and (b) Whether the information or opinion is recorded in a material form or not. Clearly this definition is very expansive, with the key caveat being the ‘identification’ of the individual. Name, birthdays, text messages, and even information such as an old school assignment is included, if identifiable. The rationale behind having such a broad definition is sound; isolated information is worthless; it needs to be connected with an identifier for it to be useful. For example, every time an individual visits a

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defines an ‘APP entity’ to mean an: Agency (broadly defined as any Commonwealth public body or government office; or Organisation (private sector bodies, not including small business operators).4

Implications of Legislation Whilst European legislation has tended to distinguish between controllers and processors of information, the APPs only do so by implication. Under s 16C of the Privacy Act, an APP entity that discloses private information to an overseas recipient is liable for the recipient’s subsequent breach of the APPs. So, continuing the earlier example of the creation of logs by an antivirus program; say the provider of this program sends an email to their tech support team notifying them of a problem. Most email exchange systems, especially those used in business, use methods whereby the data first flows overseas for virus scans before being sent to the intended recipient. This means that if any personal information was contained in the email, and the email was sent from an Australian email to an Australian email, then this would constitute a breach.

“Simply entering information into a website or using a cloud backup program is exposing information to a variety of different people and organisations. Personal information which falls under the definition under s 6(1) is constantly being transmitted across borders”

website or sends an email, a log is created. This log is then stored and sent overseas by an antivirus program to identify if anything is malicious. If someone were to see this log, but not have the name of the person whose computer it is (the identifiable component), then no privacy obligations arise. Similarly, if someone saw that a log was created, but not the content within it, then there will not be a breach. The APP’s are designed to keep these two dots separate from everyone but the owner of that information; the connection is where the breaches occur.

Why the Need for Legislation? Most global regulatory bodies’ chief concern is that personal information does not leave the country. However, there is an obvious need to balance out the right to privacy with the efficient flow of information between countries. Generally, Cloud computing and the Internet as a whole, follow a procedure. Simply entering information into a website or using a cloud backup program is exposing information to a variety of different people and organisations. Personal information which falls under the definition under s 6(1) is constantly being transmitted across borders, as outlined in the above antivirus example. Thus, in order to establish who bears liability it is necessary to define who has ownership of the private data at each point in the process. This is split into two categories – ‘controllers’ and ‘processors’. The European Parliament aims to ensure a balance such that privacy concerns do not stifle the practical use of the Internet. The Parliament has constructed their privacy obligations in such a way that they fall onto the controller of the information.3 In most cloud setups, the controller of the information is the organisation/individual whose information it is, whereas the processor is the provider itself. For example, when you input your login details to YouTube, YouTube is the controller and the processor is the cloud provider who YouTube uses to store this information.

APP Entities In Australia, instead of controllers or processors, these groups are categorised under the broader title of ‘APP entities’. The Privacy Act

However, there are two notable exceptions under APP 8.2: 1) Where the APP entity reasonably believes the recipient is subject to a law or binding scheme whose overall effect is the protection of personal information in a substantially similar manner to the APPs…[emphasis added] 2) Where the individual consents to the disclosure after being informed by the AAP entity that their consent will negate the impact of the APP’s (the informed consent exception). Most organisations today are able to avoid breaching the Privacy Act by exploiting with these two exceptions. In regards to the first, this objective test is problematic. If the recipient is subject to a scheme that is substantially similar, then why not simply require they comply with the Australian act? Secondly, the ‘informed’ consent is often anything but informed. Organisations hide this within lengthy terms and conditions that ordinary individuals do not read, resulting in those individuals not understanding that they have waived their right to protection.

Is Change Required? It is important to note that in a majority of cases personal information is never disclosed. It is simply being transmitted through systems, which are setup to move vast quantities of data (sometimes across borders). In today’s interconnected world, there is no practical way in which personal information can be transmitted completely in private. The APPs, whilst attempting to regulate flow of information, have little impact on the way businesses conduct themselves and handle our information. It is too easy for organisations to be exempt, and it is not practical for the Privacy Commissioner to chase every company that breaches the Privacy Act by sending private information out via emails. Any legislative change in this area would be incredibly complex, but should clearly take into account the practical issues of the movement of data via the cloud.

1 Roundup of Cloud Computing Forecasts and market Estimates, 2015. http://www.forbes.com/sites/louiscolumbus/2015/01/24/roundup-of-cloud-computing-forecasts-and-marketestimates-2015/ 2Privacy Amendment (Enhancing Privacy Protection) Act 2013 (Cth). 3Directive 95/46/EC of the European Parliament and of the Council on the Protection of Individuals with Regard to the Processing of Personal Data and on the Free Movement of Such Data [1995] OJ L 281/31. 4Privacy Act 1988 (Cth) s6(1).

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A Man’s Home is his Castle Nicola Colagiuri

1 Gregory S. Alexander, ‘The Complex Core of Property’ (2008-2009) 94 Cornell Law Review 1063, 1066. 2 Peter Williams, ‘The Curious case of property rights in NSW’ (2012) 17 Local Government Law Journal, 61. 3Australian Constitution s 51(xxxi). 41991 (NSW). 51979 (NSW). 6 This requirement of public interest remains part of the decision-making criteria in the White Paper and Exposure Bills in order to reflect New South Wales’ plan to create ‘a new planning system that focuses on the public interest’. New South Wales Government, A New Planning System for NSW – Green Paper (Department of Planning and Infrastructure, July 2012), 2; White Paper, Planning Bill 2013 (NSW); Planning Administration Bill 2013 (NSW).

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‘A man’s home is his castle’ is a well known, albeit dated and gender-specific, adage. In Australia, it gained infamy when Darryl Kerrigan fought to prevent the compulsory acquisition of his property by the government in ‘The Castle’. NICOLA COLAGIURI examines how this colloquial saying currently operates to protect or diminish property rights.

What protection does NSW offer private landowners? A landowner’s right to own property and to deal with it, as they desire, is one of the fundamental freedoms of Australia’s property law system.1 Is the use of compulsory acquisition for the purposes of urban or environmental planning, particularly where private sector entities will benefit, an undesirable attack on private property rights? This can be seen in environmental planning legislation in which rights can be transferred out of the ‘bundle’ belonging to landowners, to the government or community.2 Property rights are protected by the Constitution in that acquisition of property by the Commonwealth must be on ‘just terms’.3 However, this protection does not extend to states, leaving governments at liberty to regulate use of privately owned land without compensation. As a result of the lack of Constitutional recognition, the State Government has legislated specifically in this field, evinced in the Land Acquisition (Just Terms Compensation) Act.4

Property rights versus public interest The most general justification for laws interfering with vested property interests is that the interference is ‘necessary’ and in the ‘public interest’. The ‘public interest’ has been increasingly relied upon by the courts under s 79C(1)(e) of the Environmental Planning and Assessment Act,5 as a gateway for climate change considerations in planning and development.6

However, recent cases demonstrate a presumption in favour of private property is alive and well. In R & R Fazzolari7, landowners sought an injunction to restrain Parramatta Council from compulsorily acquiring their land. Putting the wider public benefits aside, the High Court focused on statutory interpretation. Section 188 of the Local Government Act8 prevents compulsory acquisition of private land without approval of the landowner where acquisition was for the purpose of resale. The High Court found the underlying purpose was re-sale and the council was restrained. Chief Justice French asserted that when construing a provision authorising compulsory acquisition, a construction that least interferes with property rights is preferred.9 However, the Land Acquisition (Just Terms Compensation) Amendment Bill10 was passed shortly after this decision and effectively allows local councils to acquire property compulsorily for the purpose of then transferring it to a private developer by invoking a legal fiction to avoid the re-sale limitation.

Property rights are human rights It should not be forgotten that the right to own and not be arbitrarily deprived of property, are human rights.11 As such, any legislation permitting compulsory acquisition of property should reflect the rights at stake, by ensuring justice is afforded to owners. It appears for now, a man’s home remains his castle in NSW – as courts will interpret legislation to preserve property rights unless parliament has evinced an intention that is ‘unambiguously clear’ to derogate from such rights.12

7R & R FazzolariPty Ltd v Parramatta City Council; Mac’s Pty Ltd v Parramatta City Council (2009)237 CLR 603.81993 (NSW). 9R & R Fazzolari Pty Ltd v Parramatta City Council,Mac’s Pty Ltd v Parramatta City Council (2009)237 CLR 603, [43]. 102009 (NSW). 11 Article 17 of the Universal Declaration of Human Rights (UDHR) (1)Everyone has the right to own property alone as well as in association with others. (2)No one shall be arbitrarily deprived of his property. 12Coco v R (1994) 179 CLR 427, 437.

Laws and Liberties Autumn 2015

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Laws and Liberties Autumn 2015

Foreign Fighters and the Fight for Freedom at Home Grayson Gay The Australian government intends to bring in legislation to reign in the likes of the ‘Ginger Jihadi’ and Melbourne model, Sharky Jama, both Australian nationals who left our shores to fight for ISIS. GRAYSON GAY delves into the proposed bill and its broader implications for civil liberties in the face of national security.

In September 2014, the introduction of national security legislation provoked tempestuous national dialogue about the precarious balance between national security and individual liberty. The purpose of these laws can be reduced to four primary objectives: dispute resolution, reflecting societal standards, maintaining order and, of course, the protection of civil liberties and rights. With these principal purposes forming such a fundamental fabric in our legal system, the question arises; can a western democracy justify the enactment of laws that don’t comply with these purposes? An examination of the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 20141 highlights the importance of a meta-critical framework to overcome complacent acceptance of unjustifiable laws.

Australia or a foreign country’3 to a reasonable suspicion that a person ‘may leave Australia to engage in conduct that might prejudice the security of Australia or a foreign country’4. This Bill5 shifts legal focus towards a tightening of security regulations and away from the embodiment of individual liberties. The introduction of these laws relies on public acceptance that we are living in a somewhat extraordinary era, warranting increased security. When examining the proposed Bill in a post-911 context, we are witnessing a ‘new genus of law’6 where citizens are accepting unjustifiable laws. However, is this an accurate interpretation of our zeitgeist? Are we indeed living in a time where, perhaps more than ever, the sacrifice of certain civil liberties is necessary for our protection and safety? The first line of the Bill’s explanatory memorandum claims, ‘Australia faces a serious and ongoing terrorist threat.’7 This loaded language suggests an imminent threat, implying that any limitation on human rights is done in a quest for peace. But how can we accept this, both as members of the legal community and freethinking citizens generally? At the core of this Bill8 is a challenge to inherent values that inform our nations identity; freedom of movement, right to a fair trial etc. It is our obligation to observe checks and balances and relentlessly criticise laws whose purpose should be to govern and empower. Subsequent to its processing in the Senate, the Bill9 will be assessed by the Parliamentary Joint Committee on Intelligence and Security. The Australian public waits to see the impact of this Bill10.

The legislation responds to ‘the escalating terrorist situation in Iraq and Syria.’2 The Bill focuses on tightening the surveillance and control of citizens who associate as foreign fighters by hindering those looking to go overseas and regulating those returning to Australia. A significant change in the new legislation is the decrease of the threshold from a reasonable suspicion that a person ‘would be likely to engage in conduct that might prejudice the security of

1 Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 (Cth).2 Explanatory Memorandum, Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill (Cth) 2014, 2, 1.3Australian Passports Act2005 (Cth) s 14(1)(a)(i).4 Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 (Cth) s 22A(2)(a).5 Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 (Cth).6 Simon Bronitt, ‘Australia’s Legal Response to Terrorism: Neither Novel Nor Extraordinary?’(Paper presented at Castan Centre for Human Rights Law Conference “Human Rights 2003: The Year in Review”, CUB Malthouse - Melbourne, 4 December 2003) 1.7 Explanatory Memorandum, Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 (Cth), 2, 1.8 Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 (Cth). 9 Ibid.10 Ibid

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Spotlight on Social Justice Students of the Brennan Program reflect on their visit to the Villawood Detention Centre.

Ally McCarthy In a press conference releasing the ‘Forgotten Children’s Report’1 on children in detention, Professor Triggs was asked by a member of the press whether she thought the conditions on Nauru were intentionally harsh to deter people from coming to Australia via boat or whether this was just an effect of offshore processing. This question struck me as odd because it highlights the fact that much of society has just accepted the cruel and inhumane conditions of Nauru. In my opinion, questions regarding whether our government is creating unliveable conditions and forcing societies most vulnerable to live in them are irrelevant. Instead, the questions we should be asking are why this is still happening and why we are allowing it to? Thousands of kilometres away from Nauru is the Villawood Community Detention Centre. It almost looks like any other Sydney suburb with its neatly mowed lawns, quaint little houses, garages and driveways. It’s all an illusion. The compound is actually a showroom and upon closer inspection you find a constantly monitored fence, security cameras and guards. Having recently visited Villawood Detention Centre, I met an Asylum Seeker named Sarah who had fled Iran and spent 18 months living on Narau before being transferred to Villawood. When I asked her how she would describe Nauru she replied, ‘hell’ and in the stories that followed there is no doubt that hell is exactly what it was. Sarah, who had travelled with her 10-year-old son, battled daily to survive; both were sexually assaulted and struggled to maintain privacy (a small piece of plastic split their section of the tent from other families). She stated that during the first six months on Nauru there was no school set up to teach the children English but later one was organised by Save the Children. To feed her son, Sarah would have to line up three times a day for over an hour to collect food. Living in vile conditions among all these atrocities culminated in her son attempting to kill himself at 11-years-old.

This is just one painful story and a reminder of the way refugees are being treated in offshore detention centres. An internal government report entitled ‘The Moss Report’ went further than agreeing with the Human Rights Commissions ‘Forgotten Children report’2 and additionally found that there was evidence of at least three rapes in the detention centre, incidents of sexual assault, physical assault and sexual harassment.3 In some cases, it was found that the aforementioned acts were perpetrated by guards with one mother accounting: ‘the two minute showers are not enough…we requested four minute showers but the guards said on one condition - we can see your kids naked bodies.’ 4

In the words of Professor Issacs: ‘mandatory detention is immoral, but detention on Narau is an abomination’.5 Nauru is a blight on Australian history. Although mandatory detention centres in Australia are immoral, spending $3 billion a year on offshore processing6 in which asylum seekers suffer unimaginable physical and psychological harm, is an international embarrassment.

1Australian Human Rights Commission, ‘The Forgotten Children: National Inquiry into Children in Immigration Detention’ (2014) 2 Ibid. 3Phillip Moss, ‘Review into recent allegations relating to conditions and circumstances at the Regional Processing Centre in Nauru’ < https://www.immi.gov.au/about/dept-info/_files/review-conditions-circumstances-nauru.pdf> .4 Ibid 23. 5 David Issac, ‘The real message of the Forgotten Children report from the Australian Human rights Commission must be heard’, The Age, 12 March 2015, < http://www.theage.com.

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“I took time to take in all the signs around us including forms for detainee complaints which noted they would be considered by the minister for immigration. Not sure how much I believed that. All of these signs pointed to everything I had learned outside in the ‘free’ world through blogs of other visitors and stories from now free detainees. As one child returned from outside school with an escort (guard) and another came through the office for an unknown reason, my thoughts moved from the guards, to the children. Having to wait for a guard to let you into your ‘community’, and having to be ‘escorted’ to and from school is, from my perspective, a dehumanising, prison like system for children who are the most innocent of all victims of torture and trauma.

“I was quite heartbroken and shocked when I was actually able to speak to a few people detained. These people have had their liveliness taken away, people who used to be beauticians, shop owners, people who had educations in their home countries, were locked away in this little confinement; seemingly wasting their days away – until the government determines that they are allowed to be released into the community. I feel this experience has motivated me to develop myself as a capable and competent lawyer so I am able to contribute to assist and help people who really need it. I will apply myself diligently in my studies so I am able to advocate and work for people who deserve their basic human rights recognised.”

– Michelle Zhang

Entering the visitors centre (a common room like area) there was an artificial and insincere feel about it all. The perfect shared kitchen we sat in front of was unused and contained no utensils for detainee visitors, a padlock also preventing use of the oven. The garden looked beautiful, but that was just from what we could see, restricted to the visitor centre only by SERCO staff. A jumping castle appeared in front of us for a few minutes just as one detainee told us of the seldom celebrations allowed inside. The communal television switched on just as a detainee began telling of their past experiences in detention...a little too coincidental if you ask me. Overall, the centre, which is actually considered a processing centre, implying a short time of stay, was maybe half as big as my high school and has detainees from as far back as 2010. Even the most beautiful place I can think of would lose all attraction when fiveyear confinement accompanies it. It honestly just reaffirmed everything I have discovered, a complete contradiction to what the government wants the public to believe and the media portrays. I am hoping to find a path through law to create substantial change for these people who have done nothing but seek a basic human right, safety. After all, I can’t imagine the public outrage people would create for animals in relative captivity, why are humans forgotten?”

- Alanna La Cioppa au/comment/the-real-message-of-the-forgotten-children-report-from-the-australian-human-rights-commission-must-be-heard-20150311-14074e.html > . 6 Harriet Spinks, Responding to unauthorised arrivals Budget Reviews 2014 – 2015, < http://www.aph.gov.au/about_parliament/parliamentary_departments/parliamentary_library/pubs/rp/budgetreview201415/ unautharrivals>

Laws and Liberties Autumn 2015

Stop. Hammer Time. Bianca Newton & Kieran Gair BIANCA NEWTON and KIERAN GAIR examine the effect of the recent ‘Zoe’s Law’, albeit now formally lapsed, and propose arguments for and against any future versions of this Bill.

FOR – By Bianca Newton Is everyone truly equal before the eyes of the law? If the answer is no, does denying the unborn a right to personhood put us further behind in filling these gaps? Whilst The Crimes Amendment Bill, also known as Zoe’s Law, has been formally lapsed until further action, it continues to be a topic of conscience and controversy. Presently, at both common law and in statute, an unborn child is not a person at law until birth - this prevents a duty of care arising until such time1. Thus, a duty of care exists to the unborn as the law recognises pregnant women as reasonably foreseeable in creating a duty of care according to the neighbourhood principle.2

offer a different perspective, it is about balancing the rights of the woman and the rights of the foetus. Cases like Zoe’s should remind us that the law is largely based on morals and societal values and it would be morally unjust to disallow the unborn a right to live but then fail to attribute to them legal recognition as a person.

AGAINST – By Kieran Gair After languishing in the NSW upper house late last year the Crimes Amendment (Zoe’s Law) Bill 2013 (No 2) failed after lapsing in November 2014. The bill was introduced following a campaign led by Brodie Donegan after her daughter Zoe was stillborn at 32 weeks as a result of Ms Donegan being hit by a drugged driver. Zoe was listed as one of Ms Donegan’s injuries.

The law as it stands in NSW currently holds that ‘the destruction of the foetus of a pregnant woman’ is taken to be grievous bodily harm to the woman (unless it takes place in the course of a medical procedure).5 Ms Donegan wanted her unborn daughter to be recognised as a separate person, a way to ensure that the perpetrator of the crime was held accountable for the death of Zoe. The Crimes Amendment (Zoe’s Law) Bill 2013 (No 2) sought to introduce a new s 8A into the New South Wales Crimes Act which would grant personhood to an unborn child of at least 20 weeks’ gestation with a body mass of at least 400 grams. While the bill was undoubtedly well intentioned, the However, in the widely discussed case of Zoe, her death was not definition of a foetus considered to be part of recognised as a result of negligence towards the mother and an ‘unborn child’ judged to be her, but rather, toward her mother. This bill, “The law is largely based a distinct ‘living person’ is highly ambiguous. rather intending to impose restrictions on If any future version of Zoe’s law was enacted women, was an act designed to ensure that on morals and societal into NSW law, the immediate question arises: ‘mothers would not lose their rights, but values and it would be what principle is6 being applied in respect of gain the right to have their babies recognised the definition? Moreover, for the purposes separately if, due to a violent or criminal act, morally unjust to disallow of criminal law, why should a foetus of 19 the baby is harmed or loses life.’3 In 2002, an the unborn a right to live weeks and six days be denied personhood Irish case saw the High Court order a woman to simply because it falls one day short of the 20 allow medical treatment for her unborn child but then fail to attribute to week cut off? And, why should a foetus of 399 notwithstanding her disapproval.4 It is cases as any different to a foetus them legal recognition as grams be treated such as these, which have fuelled opposition of 400 grams?7 to Zoe’s law in which there have been claims a person.” about the bill’s impact on female liberty. To

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‘when can a medical procedure planned in the interests of the mother be permitted to harm? And, what happens when the medical procedure designed to benefit the mother results in the destruction of another ‘person’?’ In July 2013 Indiana woman, Purvi Patel, procured abortion drugs, purchased online from Hong Kong, in an attempt to terminate her pregnancy in its 24th week8. She was convicted in February of feticide and neglect of a dependant after she placed the stillborn foetus in a dumpster. Ms Purvi was sentenced under a law which was passed by the Indiana legislature in 2009 in response to a botched bank robbery in 2008, in which a woman was shot once in the abdomen, killing the five-month old twins she was carrying.9 Ms Purvi’s conviction made her the first woman in the USA to be charged and sentenced for giving herself an abortion.

pregnant woman’ is taken to be grievous bodily harm of the woman.11 However, the wider implications of any future bill premised on the concept of a foetus to be treated as a ‘living person’ poses significant threats to women’s reproductive rights. Why risk encroaching on the reproductive rights of women when there is no compelling need in the criminal law to do so? And, if we start making exceptions won’t it be likely that we will become complicit in the watering down of women’s reproductive rights?

Feticide laws are designed with the intention to hold third parties accountable for injuring or killing foetuses, not dissimilar to the aims of ‘Zoe’s law’. However, by accepting the principle that some foetuses satisfy the definition of an ‘unborn child’ and accordingly are to be treated as ‘persons’, we risk calling into question the ‘medical procedure’ exception. Therefore, we must ask: when can a medical procedure planned in the interests of the mother be permitted to harm? And, what happens when the medical procedure designed to benefit the mother results in the destruction of another ‘person’?10 Furthermore, can a mother consent to the destruction of the foetus if it involves the destruction of a separate, ‘living person’? The current law provides protection for the foetus, irrespective of the length of gestation or size. ‘The destruction of the foetus of a

1Watt v Rama [1972] VR 353. 2Donoghue v Stevenson [1932] AC 562. 3 http://www.theguardian.com/commentisfree/2013/sep/13/zoe-law-abortion-pro-choice 4 http://www. independent.ie/irish-news/hiv-mum-ordered-to-allow-care-for-baby-after-birth-26041916.html5R v King [2003] NSWCCA 339 6 http://www.nswbar.asn.au/docs/webdocs/zoe.pdf p.3 7ibid8 http://www.theguardian.com/us-news/2015/apr/02/purvi-patel-case-alter-reproductive-rights-indiana5 http://www.wndu.com/home/headlines/Stiffer-penalty-for-feticidethanks-to-2009-state-law-215747851.html10 http://www.nswbar.asn.au/docs/webdocs/zoe.pdf p.3 11R v King [2003] NSWCCA 339

Laws and Liberties Autumn 2015

The Short Sightedness of Mandatory Minimum Sentencing Provisions Imogen Bailey

Laws and Liberties Autumn 2015

IMOGEN BAILEY investigates the latest foray by politicians into decisions made from behind the bench and tracks the unintended consequences of mandatory minimum sentencing provisions.

The recent imposition of mandatory sentencing provisions has once again prompted debate as to the extent of its effectiveness in preventing crime. This time, the Western Australian parliament has put forth the Criminal Law Amendment (Home Burglary and Other Offences) Bill 2014, which many are calling discriminatory and an impingement on basic rights.

The Bill is estimated to incarcerate an additional 206 adults and 60 juveniles within four years, at a cost of $93 million.5 These figures seem more inappropriate when taking into account the current record-high prison numbers at WA facilities.6

What amendments does the Bill propose?

The right to a fair trial, a maxim of the Australian criminal justice system, also encompasses a right against arbitrary detention. Mildren J in Trenerry v Bradley7 described prescribed minimum mandatory sentencing provisions as ‘the very antithesis of just sentences’.8 Whilst it is clear that those who commit burglaries and other related offences should receive appropriate punishment, mandatory sentencing restricts the capacity of the courts to carry out their discretionary sentencing functions. Moreover, mandatory sentencing provisions are likely to lead to the overlooking of all the circumstances of the crime, violating the ‘fundamental principle of law that a sentencing court should not impose a punishment which does not fit the crime’.9

The proposed legislation provides mandatory minimum sentences for those who commit a serious offence in the course of an aggravated home burglary, applying to both adult and juvenile offenders.1 The amendment would also double the mandatory penalty to two years imprisonment for repeat offenders under the current ‘three strike’ system, and additionally stipulate that a person could receive a ‘strike’ even without appearing before a magistrate. These amendments build upon the original mandatory sentencing provisions in the late 1990s for home burglary offenders in WA, which were the first of their kind introduced in Australia.2

What are the effects? The proposed legislation is likely to have a range of damning effects; including an increase in the current overrepresentation of Aboriginal adults and youths in detention, significant burdens on the penitentiary system and the miscarriage of justice in the institution of arbitrary detention. Nathan Kennedy, President of the Australian Lawyers for Human Rights, says the proposed laws are ‘likely to disproportionately affect Aboriginal and Torres Strait Islander Peoples’, 3particularly in the sense that the legislation does nothing to address the critical issues of disadvantage and poverty within these communities that lead to committing crimes. The effects of the legislation on young offenders are of particular significance, with provisions that contravene the UN Convention on the Rights of The Child, namely the requirement that juvenile detention be at a minimum sentence and only used as a last resort.4

How do they impact on traditional civil liberties?

Conclusion Overwhelming evidence from Australia and overseas ‘demonstrates that mandatory sentencing does not reduce crime through deterrence nor incapacitation’.10 Despite this, governments routinely impose arbitrary legislation to appear as though they are actively dealing with crime. What results is inappropriate and harmful legislation, which puts both the integrity of the criminal justice system and basic human rights at risk.

1 Explanatory memoranda, Criminal Law Amendment (Home Burglary and Other Offences) Bill 20142 Lenny Roth, ‘Mandatory Sentencing Laws’ (e-brief 1/2014, NSW Parliamentary Research Service, Parliament of NSW, 2014) 3 ALHR, ‘Bill of Rights Would Protect Against Draconian Mandatory Sentencing Laws’ (Media Release, 13 March 2015), 1 4 Amnesty International Australia, WA Bill will lock up hundreds of people – but won’t reduce home burglary, 26 February 2015 <http://www.amnesty.org.au/news/comments/36664/> 5 Ibid 6 ‘WA prison numbers hit record high’, Sky News (online), 13 April 2015, <http://www.skynews.com.au/news/national/2015/04/13/wa-prison-numbers-hit-record-high.html> 7 (1997) 6 NTLR 175. 8 Ibid, 17. 9 Ruth McColl SC, ‘The Argument Against Mandatory Sentencing’ (Paper presented at the Twelfth Conference of The Samuel Griffith Society, Sydney, 10-12 November, 2000), 1. 10 Law Institute of Victoria, ‘Mandatory Minimum Sentencing’ (Submission to the Attorney General, 30 June 2011), 3

Laws and Liberties Autumn 2015

Your Right to be a Bigot Neeharika Maddula ‘Mr. President, people do have a right to be bigots, you know’ - Senator the Honourable George Brandis QC.1 NEEHARIKA MADDULA examines whether our right to be bigots is prioritised over freedom from discrimination. Many of us weren’t far from Martin Place on 15 December last year. Man Haron Monis pulled a gun on customers and staff inside the Lindt Café and for 17 hours Sydney was held hostage, at the mercy of a troubled man. When we finally took a breath, along with relief for the released hostages, solidarity with the Islamic-Australian community, what spewed forth was hate. On the Friday of the very same week, a group armed with Australian and Southern Cross flags, led by Nick Folkes, gathered at the site of the siege to protest Islam and call for Prime Minister Abbott to ‘protect us from multiculturalism’.1 The group was gathered in a public place. They were acting in a way that would insult members of another group. But Folkes is at least tangentially aware of the defence that protects him from coming within s 18C of the Racial Discrimination Act 1975 (Cth) (‘RDA’). ‘Islam is not a race. We’re criticising a political ideology that is totalitarian in nature,’ he said. This was a defence echoed more recently by Reclaim Australia supporters led by ‘The Great Aussie Patriot’, Shermon Burgess. Both Burgess and Folkes stress they are not racists.2 ‘If you are speaking about Islam or about mass immigration to Australia you’re not being racist. It’s cultural preservation,’ says Burgess. What is covered by the RDA is acts done because of the race, colour or national or ethnic origin of the people targeted.3 And Islam, in its many and varied forms, is not a political ideology - sorry, Folkes - but a religion, and still not covered by s 18C. And any hope that our States will fill the gap where the Commonwealth fails is quickly extinguished when faced with the New South Wales legislation. The Anti-Discrimination Act 1977 (NSW) (‘ADA’), s 20C is expressed in a similarly limited manner as the RDA when it comes

to religion. The difference is that the basis of unlawful acts within s 20C(1) are committed on the ground of race. The definition of ‘race’ in the ADA ‘includes colour, nationality, descent and ethnic, ethno-religious or national origin’. You would be forgiven for becoming hopeful at the inclusion of ‘ethno-religious’. The Administrative Decisions Tribunal was tasked with construing the term in A obo V and A v NSW Department of Education [2000] NSWADTAP 14 (‘A obo V’). There, turning to the Attorney-General’s Second Reading Speech concerning the amendment defining ‘race’ in the ADA, the Tribunal found Parliament expressly stated that the amendment was intended “to qualify certain ethno-religious groups as a race, and nothing more”.4 Therefore, the Act wouldn’t protect someone against actions offending specifically religious aspects of an ethno-religious group.5 A obo V dealt with a widely accepted ethno-religious group: the Jewish community. The Tribunal has since also dealt with a Muslim applicant in Toll Pty Limited t/as Toll Express v Abdulrahman [2007] but the requirement that there be ‘a strong association’ between a person’s racial and religious identities was reiterated. The Applicant was successful because the alleged discrimination related to his middle-eastern background as well as his religion. As it stands, Folkes and his folks, as offensive and targeted as their actions may be, still fall short of the current ant-discrimination legislation, at a Federal or State level. When it comes to religion post 9/11 and now post-Martin Place Siege political scene, rife with xenophobia and Islamophobia, it seems that anti-discrimination legislation preserves our right to be bigots over and above any hope of freedom from discrimination.

1Commonwealth, Parliamentary Debates, Senate, 24 March 2014, 1797. 2 Michael Koziol, ‘Anti-Islamic protestors disrupt Martin Place memorial’, Sydney Morning Herald (online), 19 December 2014 < http://www.smh.com.au/nsw/antiislamic-protesters-disrupt-martin-place-memorial-20141219-12b2mu.html>. 3 Andy Fleming, ‘The Great Aussie Patriot AKA Shermon Burgess’, Youtube (online), 2 February 2015 < https://www.youtube.com/watch?v=GddAZij4hXg>. 4Racial Discrimination Act 1975 (NSW), s 18C(b). 5 A obo V and A v NSW Department of Education [2000] NSWADTAP 14 [60] 6 Ibid, [12].

Laws and Liberties Autumn 2015

Heb-do Heb-don’t Heb-draw Charlie Hebdo’s controversial and provocative cartoons captured global attention. The world rallied around the satirical magazine, and the phrase ‘Je Suis Charlie’ was coined. Arguably, this global solidarity and fight for democracy, freedom of thought, expression and a secular public space has come too late. France has said ‘Heb-don’t’, however, The Full Bench team asked students to ‘Hebdraw’. Students anonymously submitted illustrations depicting their views of the current relationship between civil liberties and Australian laws.

Laws and Liberties Autumn 2015

THE FULL BENCH 2015 Thank you to our contributors for Edition 1. Thinking about writing for The Full Bench in 2015? Keep an eye on our Facebook page or email the Publications Director, Nicola Colagiuri, at publications@utslss.com with your interest.â&#x20AC;&#x2122;