2016 the full bench ed 3 by UTS Law Students' Society

Actions have consequences

A Resident for President

The neighbourly blind eye

Kate Kemp

Lachlan Wykes

Zach McLoughlin

ISSUE THREE

IT'S POLITICAL

TFB 2016 Edition Three It's Political

E D I TO R I N C H I E F Bianca Newton

E D I TO R S Taylah Mihell Claudia Neal-Shaw Juanita Truong Kate Kemp Kimberly Tran

DESIGNER Joy Li

S P EC I A L T H A N K S Bryce Craig (President) Richard Heng (Vice President)

U T S L AW ST U D E N T ’S S O C I E T Y © 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.

F U RT H E R T H A N K S Andrea Forsyth Print Portal 4/102 - 112 Edinburgh Rd, Marrickville, NSW 2204 Tel: (02) 9557 6746 Mob: (02) 0421 446 490 andrea@printportal.com.au

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.

The Full Bench (tfb) is published tri-annually in Sydney by:

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Contents •

12 15 18 20

WA R N I N G ! C H EC K YO U R S O C I A L M E D I A AT T H E D O O R Catherine Nejaim

A R E S I D E N T FO R P R E S I D E N T – T I M E FO R A N AU ST R A L I A N R E P U B L I C ? Lachlan Wykes

COMMITMENT ISSUES: WHY NSW N E E D S A H U M A N R I G H T S C H A PT E R Sarah Avery

E XT R A , E XT R A , R E A D A L L A B O U T I T ! T H E AU ST R A L I A N / U S / B R I T I S H E L EC T I O N P RO C E S S Janelle Thomy

22 24

AU ST R A L I A’S RO L E I N FO R E I G N D I P LO M AC Y Sonali Malhotra

P O L I T I C I A N S O U T O F T H E I R D E PT H : T H E I M P O RTA N C E O F P O L I C Y A DV I S O RS A N D E X P E RT S Kimberley Ching

03 04 05

CO N T E N T S

F RO M T H E U T S L S S President and Vice President's Address

E D I TO R I A L Bianca Newton

T H E N E I G H B O U R LY B L I N D E Y E Zach McLoughlin

Sara Liu

T H E S H AC K L E S A R E O F F: H OW B R E X I T H A S F R E E D E N G L I S H J U R I S P RU D E N C E I N C O N F L I C T O F L AW S

YO U A R E N OT T H E B O S S O F M E

Marcela Malicka

E D I TO R ' S Q U E ST I O N Is the separation of powers still relevant?

10 W O R D S O R L E S S

AC T I O N S H AV E C O N S EQ U E N C E S Kate Kemp

34 36 39

STO P. H A M M E R T I M E Tahniya Sheriff

J U D G E M E N T DAY Erin Finch

C O STA ' S C O M I C

CO N T E N T S

From the UTS LSS •

B RYC E C R A I G President

RICHARD HENG Vice President (Education)

The third and final edition of The Full Bench awaits your perusal! This time around, we will be examining law and politics, which seems to perpetually ebb and flow in harmonious disharmony. Before I go further, I’ll preface this foreword by admitting that I am very much removed from the world of politics. As such, I’ll leave it to the people who know what they’re talking about to walk you through the political upheavals happening all around the world. Whether it’s happening at our very doorsteps (Australia’s federal elections), or half a world away (the activities of Trump), this edition will look to cover it all. Before I do bow out, I’d like to take this time to give thanks to the people who make The Full Bench possible. First, I would like to thank Joy Li, our wonderful designer, who has put hours of hard work into creating what I believe to be our most visually stunning publications ever. Gratitude must also be extended to our intelligent and opinionated cohort at UTS: Law. Your thoughtful and critical pieces have truly made each of the three editions this year. Finally, I’d like to sincerely thank Bianca Newton, Publications Director and friend, whose tireless commitment has culminated in three absolutely incredibly editions of The Full Bench. To everyone, please enjoy your read! 04

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Welcome to the third edition of The Full Bench 2016, the official academic journal of the UTS Law Students’ Society (UTS LSS). If this is your first time picking up a copy, allow me to fill you in on the activities of TFB so far. The first edition, ‘The Price of Privacy’, examined a range of issues from the meta-data laws to revenge pornography to illustrate the effects privacy has on legislation and vice versa. The second edition, ‘The Gender Agenda’, focused on gender as a result of the increased media attention and progression the issue has or has not made. Both of these editions were fantastic, so be sure to check them out online if you missed out on a copy. The third edition, ‘It’s Political’, looks at another matter. Politics. This year especially has seen the combination of law and politics at its best and its worst. What is clear, however, is the tenuous relationship between the two fields. As one of our students states in the edition, ‘one cannot exist without the other’. We are unfortunately still living in a time when legislation is largely influenced by politics and politicians around the world are not always motivated by what is in the public’s best interests. Thus, it is important to draw the line somewhere. The ultimate question is where should this line be drawn, and is it possible? The quality of this edition again comes from the effort of an incredible team of volunteers. Firstly, I would like to thank our Publications Director, Bianca Newton, for organising and assembling every facet of this publication. I also thank Richard Heng, our VicePresident of Education, for his support, as well as the entire Education Publications Subcommittee for their involvement, insight and contributions. The astounding visuals again come from Joy Li, who we are so grateful to have as part of our team this year. Her artworks complement each topic in a unique and phenomenal way so as to add value to each piece. And as always, I would like to extend a big thank you to our contributing members for submitting their insightful additions to make what is now an extensive product. I hope that this edition can widen your understanding, open your eyes and spark interest. Ideally, the Full Bench acts to inspire our members to actively engage with real world legal matters and encourage advocacy in areas of injustice and contribute to the bettering of life for all.

Editorial •

A certain witty advocate, Marchand, observed: "One would risk being disgusted if one saw politics, justice, and one's dinner in the making." —Sébastien-Roch Nicolas (Chamfort, 1741–1794), translated from French

B I A N C A N E W TO N Editor in Chief

W E LCO M E TO TH E TH I R D E D ITI O N O F TH E FU LL B E N C H FO R 2016! This year, we have been witness to some major political events that have shaken the world. Brexit, the United States' up and coming election and our very own Federal election debacle. In the midst of all these events, the law is still somehow involved. Whether it be a pawn in the political game like the lock-out laws or a prevention tool restricting the movements of campaigners, there is a tenuous relationship between the law and politics. In Australia, the Constitution plays a role in attempting to separate law and politics with the existence of the first three chapters which define three largely separate groups—the Parliament, the Executive and the Judiciary. This separation must exist in order to prevent oppressive government and instill faith in an independent justice system, using appropriate checks and balances. This issue would like to explore these matters further and investigate their potential future direction. Our

contributors have produced enlightening and engaging pieces for our readers. Catherine Nejaim has penned a piece regarding the effects one’s political opinions could have on their employment status and subsequent rights, whilst Lachlan Wykes has written about the legalities and reasons behind an Australian Republic. As with the publication of any UTS LSS piece, there are many people to thank for their contributions and creative efforts. Without the dedication of students, TFB would hardly exist! Firstly, we would like to thank the UTS LSS President, Bryce Craig, and the Vice President (Education), Richard Heng, for their unwavering support and assistance. Secondly, without the help of the incredible Joy Li, the aesthetics of TFB would be sorely lacking! As our wonderful designer for this year, we extend our gratitude for her endless hours of work. 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! E D I TO R I A L

ED ITO R’S Q U E STI O N

Q: Is the separation of powers still neccessary?

J UA N I TA T RU O N G B I A N C A N E W TO N

Editor

Editor in Chief

♦

• Like everybody else, I am sure, I was highly concerned with the values being espoused by Trump in his political campaign this year. Then I imagined what it would be like if Trump was the Australian leader and the separation of powers no longer existed. Unlimited power in the hands of someone, let alone a person with an agenda, is dangerous and undemocratic. In order to avoid confusion and present a cohesive legal and political front, it would be nice to argue that the separation of powers is no longer necessary. However, the separation of powers is a critical facet of most modern democratic politic systems. To prevent an oppressive government, the legislative, executive and judicial branches exist to instill checks and balances. Without these checks and balances, the people cannot properly be represented and the law may not reflect society’s needs, but political agendas. For example, only recently have the Lock-Out Laws been the subject of assessment. As a result of the upset generated by many people, these laws are now being investigated as to their usefulness. If they were purely politically motivated and serve no purpose, their will be legal reform and thus, the raison detre for separation of powers is proven. 06

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TAY L A H M I H E L L Editor

♦ The separation of powers remains an essential and relevant component of Australia’s democracy, providing (as any Constitutional Law student knows) ‘checks and balances’ on the government by ensuring that the arms of government remain separate from each other. Criticisms of the validity of the separation of powers, notably that the legislature and the executive are not completely separated, and that State courts, to some extent, have compromised the separation of powers doctrine, are valid. However, these criticisms do not dissuade the overall integrity of the separation of powers doctrine. Even if compromised slightly, such as in the examples listed above, the general and overall separation of powers as expressed in the Constitution will ensure that individual freedoms and rights are protected–an entirely legitimate and relevant exercise. Removing the separation of powers or denouncing the relevance of the doctrine steers dangerously towards the dilution of the protection of liberties that the Constitution expressly provides for.

In the twenty-first century, the doctrine of the separation of powers remains to be a relevant component in the governance of Australia as a nation. As outlined within the Australian Constitution, the three institutions, the legislative, executive and judiciary, have their own defined areas of responsibilities. The chief purpose of having a separation of powers is to ensure there is a check and balance on each of the institution’s powers in order to prevent the possibility of abuse of powers. However, there are structural problems to consider regarding the concept of the separation of powers. In practice, there is only partial separation of powers due to an overlap whereby the executive is formed within and held to be accountable to the legislature. Furthermore, in contrast to the Commonwealth Constitution, the separation of powers within Australia’s State Constitutions remains less defined, which calls into question the doctrine’s relevance in the system of government. Nevertheless, the implementation of the separation of powers within the States essentially reflects the Commonwealth model. Overall, the principle of the separation of powers has played an important role in shaping the nature of democracy within Australia in order to ensure individual liberty, judicial independence and responsible government.

A S A C O M P U L S O RY E L E M E N T O F T H E R U L E O F L A W , T H E S E P A R AT I O N O F P O W E R S I S T H E F O U N D AT I O N O F O U R D E M O C R AT I C S Y S T E M A N D A L L O W S F O R A C C O U N TA B I L I T Y A N D M U T U A L I N FLU EN C E .

K I M B E R LY T R A N Editor

♦ The separation of powers (‘SOP’) is still relevant and is fundamental in protecting citizens from the abuse of government power. Without the SOP, especially the separation of judicial power at State level, it could potentially lead to an increase in the abuse of power by the executive dominating legislative and judicial branches.¹ A Government with concentrated powers is dangerous to civil rights and thus, the SOP is needed to uphold ‘the rule of law’ ideal.² The SOP is still relevant as it supplies a mechanism for a meaningful democracy and avoids a despotic government.³ The High Court have demonstrated the importance of federalism and the SOP’s maintenance of a stable political system in Australia;⁴ to ensure public confidence in judicial review and independence of the Judiciary at both Commonwealth and State levels. Despite its relevancy, putting the SOP into practice is problematic. It is apparent that at State level, the judiciary in states like Queensland struggles to distance itself sufficiently from political interferences.⁵ Therefore, to maintain the SOP at the State level and ensure its continued relevance, the Australian States need to entrench the separation of powers in their State constitutions.⁶ 1

Williams George et al, Blackshield and Williams

Australian Constitutional Law and Theory: Commentary and Materials (Federation Press, 6th ed, 2014). 2

Ibid.

Bygrave Louise, ‘Judicial Decisions and Policy’ (1998),

57(1), Australian Journal of Public Administration, 68-69. 4

R v Kirby; Ex parte Boilermakers’ Society of Australia

(1956) 94 CLR 254, 276.. 5 John

Ralph Alvey, The Separation of Powers in Australia:

Issues for the States (Master of Business in Public Policy Thesis, Queensland University of Technology, 2005). 6 Ibid.

K AT E K E M P Editor

C L AU D I A N E A L - S H AW

♦

Editor

I believe it is impossible to argue that the separation of powers is completely irrelevant. It is the underlying framework that governs how Australian law is created and put into practice by the government. It plays a significant role in ensuring that law continues to be created and enacted and that Australia avoids oppressive government. It ensures that power is distributed and not held exclusively by one group of people. However in saying that I also believe it would be wrong to argue that the separation of powers is perfectly separate. There is, undeniably, a cross over between the legislative, executive and judicial powers in Australia. It would be naive to say that power is perfectly distributed and there is perfect diversity within the legal system, because the truth is that that isn't the case. However I don't believe that this makes it significant. It's like that saying, ‘you don't know what you have got until it's gone’. I believe the separation of powers is a bit like that. You rarely notice it on a day-to-day basis, but if it no longer existed, you would certainly notice its absence.

♦ The separation of powers exist and remain relevant to avoid the congregation of all power allocated to one person or branch. As a compulsory element of the rule of law, the separation of powers is the foundation of our democratic system and allows for accountability and mutual inf luence. Neither of the three branches are capable of exercising total power and instead follow strict frameworks to fulfill a key function of our legal system. The Executive, Legislature and the Judiciary are an interactive organism doing their part towards the continuing progression of the Australian nation. It is naive to rely on the expertise of lawmakers without making them accountable for their decisions. Without the separation of powers, we become susceptible to abuse of power and undermine the primary function of our political system–to govern equitably and justly. No one person or arm deserves the full capabilities of political power–not even dear old Kevin 07. E D I TO R’S R E S P O N S E

@Michael Tangonan

Along with culture, they form the foundation of civilisation.

Words

@James McGrath

Less

@Christina Knezevich

Politics and the law are inextricably linked which often impacts the law in a negative way. But can the law and politics be separated? Let's see what our fellow law peers have to say about the matter.

They are inherently inseparable; the former responsible for the latter. Politics is the unfortunate reality compromising legal ideals. @Nicholas Ruff

Political motivation is often the driving force for legislative reform. @Michael Louis Kennedy

Politics inform legislation, but moralism has no place in law. @Jake Bailey

No; democracy dictates that politics determine what laws are. @Brigida Johns

Law serves as an obstacle and a goal for politics. @Liam Fairgrieve

No, because political success s quantifiable, and justice is not. @Alice Zhang

Everything is inherently political, law cannot ever be separated. @Rosie Cotton

Politics infiltrates the law and it cannot be stopped. 08

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ACTIONS have Consequences W R I T T E N BY Kate Kemp

How did you vote in the recently passed election? Did you inform yourself using the available tools on the policies of each par t y? Or did you play the rebellious donkey vote? Kate Kemp explores the consequence s of the se ac tions on the l aw being cre ated in the future. Politicians. Love them or hate them, you cannot avoid their presence. You are just trying to catch up on some sneaky Home & Away, but Bill Shorten is begging for your vote. Don’t have Facebook? That’s okay; the prime minister has Instagram now, so you know you will be updated regardless. Do you know where else politicians are? They are in the law. That's right legislation is their handiwork. Yet we scarcely think about the impact that our vote has on law making. Think back to the election, the more politically interested among us would have studied the party policies and probably thought about the kind of law that would be created should their party form government. The rest of us probably had a quick read of the 4 or 40 point plan depending on your party preference before lodging a vote. And the donkey voters? Well they weren't even bothered to actually vote, let alone consider a party or the law that might result. So let me give you a lay of the land when it comes to politics and the law. No matter what your voting

preference is, your vote effects the law that you have to live by. In case you haven't realised we are still living under a Liberal Federal Government. If you are lucky enough to live in the great state of NSW you will be under the power of another Liberal government headed up by Mr Baird. So what does all this Liberalness mean for the law. In one word CONSERVATIVE! In many words—following the liberals track record and party line we are likely to see conservative law making and greater legislative and authoritative power being given to the government (namely in the way of national security laws). The Liberals love control (gone are the days of the government handing out free laptops for kids and $800.00 to spend on whatever as long as it boosts the economy). At a state level privatisation is the political buzzword of the liberal party. They simply cannot get enough of it and their legislating to make it possible. From electricity to healthcare we are seeing one of two A RT I C L E S

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Your vote affects the law that you have to live by.

things: either complete privatisation (hello electricity network) or private/public partnerships (these are particularly popular with healthcare). With all this increased income from selling things the Baird government is spending up big on roads and other services. Take a glance around Sydney—you will see a sea of cranes. ‘We are a city under construction’ and the Baird government is legislating to make it happen. Public and private companies are allowed to build higher than either before. But it's not only building that is benefitting from the Baird governments cash splash and legislative BOOM. The Baird government has established domestic violence reform, lock-out laws, illegal greyhound racing, and expansion to terror laws and police powers. At a Federal level the Turnbull Government only just managed to actually form government, so for the next few years we are likely to see a battle in parliament over bills. We were promised a plebiscite on gay marriage and we are likely to get one under the Turnbull government. We are going to keep turning back the boats and unfortunately it is unlikely that we will see change to asylum seeker policy. We are also likely to see some nice tax breaks for the very wealthy

among us but for the rest, don't expect much in the way of tax cuts. Anti-terror laws are likely to only grow stronger. Bad news if you are a whistle blower or a believer in privacy. So if you think that politicians have nothing to do with the law you would be very wrong. The party line effects the law that is created while that government is in office. You may not have noticed it but the law has changed dramatically since Abbott retook power for the Liberals in 2013, the law slowly but surely has become increasingly conservative. If you take a look at legislation historically it is likely that you would see this trend over and over, between some liberal and labour governments the changes are minimal, between others there are sizeable changes (take John Howard's government for example). So if you were a donkey voter this election, I urge you to re-think your decision for the next election. And for the majority of us who simply glanced over the party plan while waiting in the voting line or quickly used ABC vote compass you need to have a rethink too. Because your vote, impacts the law, the law that most of us will have to work with and the law that all of us have to live by—it’s actually something to take seriously. A RT I C L E S

Check Your Opinion at the Social Media Door. W R I T T E N BY Catherine Nejaim

It is becoming clearer that our actions and online voice are being followed. Often by our families and friends, but now it is also common for future and current employees to search for you on social media. Catherine Nejaim investigates the potential consequences your political voice might have on your career. You’re not an Australian university student if you haven’t gone on a social media tirade about some aspect of the Australian political landscape. Who could blame you, given the unusual amount of Kirribilli House evictions, political backstabbing, onion eating and ‘budgie smuggling’ that has occurred in Australian politics as of late? However, whilst in Australia we are fortunate enough that our constitution affords us the right and freedom of political expression, university students should be mindful of the potential adverse consequences of expressing their political opinions on social media in regards to their employment.

The term ‘political opinion’ has been considered within Australian case law, legislation and by various tribunals including the Fair Work Commission (FWC) and the Australian Human Rights 12

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Commission. The meaning of ‘political opinion’ has been determined to include the following: • membership of a political party;¹ • expressed political, socio-political, or moral attitudes;² • civic commitment;³ • any belief or opinion concerning the nature and purpose of the State, the exercise of power by the State and its interactions with groups and individuals;⁴ • advocating changes to the law;⁵ and • opposing particular public policies.⁶ However whilst ‘political opinion’ or ‘political conviction’ is protected, this protection does not extend to politically motivated acts of violence.⁷

Protection under the Fair Work Act 2009 (Cth) Under s351(1) of the Fair Work Act 2009 (Cth) (FWA), Australian employers

are prohibited from taking adverse action against an employee, or prospective employee, on the basis of a person’s political opinion.⁸ Adverse action is where an employer does, threatens or organises any of the following: refusing a prospective employee employment, altering an employee’s position to their detriment, dismissing an employee, denying an employee training opportunities, harassing an employee, or discriminating between a particular employee and their colleagues.⁹ Significantly however, s351(2) of the FWA prescribes that employers are not prohibited from taking adverse action on the basis of an employee’s political opinion where such action has been deemed not unlawful under any anti-discrimination law in force in the state in which such action has been taken. Confused? While a bit of mouthful, essentially what this means is that if the anti-discrimination act in the state in which you expressed your political opinion does not explicitly prescribe that taking adverse action against an employee due

to their political opinion is unlawful, the employee has no protection against such discrimination. Using New South Wales as an example, the Anti-discrimination Act 1977 (NSW) provides that it is not unlawful to discriminate on the grounds of political opinion in NSW. Yes—you read correctly, in NSW your employer could potentially discriminate against you based on your political opinion. Don’t believe me? See the Case Summary below.

In 2015 SBS Journalist, Scott McIntyre made a number of controversial tweets regarding Anzac Day including: ‘Remembering the summary execution, widespread rape and theft committed by these 'brave' Anzacs in Egypt, Palestine and Japan’. Subsequently, SBS dismissed McIntyre from his employment. McIntyre applied to the FWC under the general protections provisions of the FWA, arguing his tweets were political opinion and protected under s351. However, the FWC rejected this argument, concluding that this legal ground was unavailable to McIntyre as it is not unlawful to discriminate on the grounds of political opinion in New South Wales, where McIntyre made the tweets. Scary? Definitely! However, there is still hope yet! Thankfully, s772 and s773 of the FWA provides some form of protection to employees, prescribing that an employer must not terminate a n employee’s employment on the grounds of political opinion. No exceptions. Therefore, in relation to the case of McIntyre, the journalist has since brought an application to the FWC for unlawful termination, claiming that SBS dismissed

him from his employment on the grounds of his political opinion. The case will be heard later this year.

In Bell & De Castella and Rob De Castella’s Smartsmart for Kids Limited,¹⁰ the ACT Civil and Administrative Tribunal held that an individual’s personal belief does not constitute a political opinion or conviction.¹¹ In this decision, the Tribunal held that what is deemed ‘political’ must be determined objectively, taking into account the nature of the activity, conviction or belief. Significantly, it was noted that a belief is not political just because a person says or thinks it is. In this case, the Tribunal used the example of a personal belief that the Aboriginal f lag should be on display whenever indigenous people are involved in a public activity. The Tribunal concluded that such a belief is not a political opinion as it does not concern a desire for alteration of the law, or a need for recognition of the flag by the Australian government, as it has been recognised as an official flag in Australia since 1995.¹² Thus, employees must take considerable care when expressing their political opinions on social media to keep in mind the distinction between personal belief and political opinion. Whilst employers are prohibited from taking adverse action against an employee based on their political opinion, no such protection exists in relation to personal beliefs.

Whilst many Australians may be under the impression that the constitution affords them the right and freedom of political expression, due to the ‘vibe of the thing’, Justice Kirby held that the right of political expression is not unfettered or without limitations. See the Case Summary below.

In Banerji v Bowles,¹³ a public servant dismissed by the Department of Immigration and Citizenship, argued in the Federal Circuit Court of Australia, that her comments made on social media were constitutionally protected by the implied freedom of political communication. The employee sought a declaration that her employer had taken adverse action against her by terminating her employment, after she ‘tweeted’ comments critical of the Minister for Immigration, government policy and other department employees. Whilst the employee admitted she had breached her employment contract, her employer’s Code of Conduct and her employer’s social medial policy, the public servant argued that these breaches were ‘constitutionally protected by… the freedom of communication on matters of government and politics’. The Court held that the unbridled right championed by the public servant simply did not exist, nor would such a right, even if it did exist, provide a license to breach a contract of employment.

Beware the Code of Conduct – potential loophole? It is possible, as was the case in McIntyre, that an employer may argue that they did not dismiss an employee due to their political opinion, but due to an employee’s A RT I C L E S

breach of provisions in the employer’s Code of Conduct or social media policies. A Code of Conduct is a document providing the standards of behaviour that are expected of employees in the performance of their duties. Failure to comply with a direction to do, or refrain from doing, something within an employer’s policy could provide a valid reason for termination where: • the policy, or direction to comply with the policy, is lawful and not illegal; • the policy relates to the subject matter of employment or relevant matters affecting the employee’s work; or • the policy, or a direction to comply with the policy, is not unreasonable.¹⁴ In AGL Loy Yang v Construction, Forestry, Mining and Energy Union,¹⁵ the FWC held that an employer may restrict employees, by way of their employer policies, from publically expressing their political opinion on social media. However, this is only the where the policy is lawful, has a reasonable connection with the employee’s work and is within the scope of the contract of employment. See the case summary below.

In the present case, the Code of Conduct in question restricted public comment or political activity that could be attributed to employment with the employer. It did not seek to limit engagement by employees in their private time in political activity or making public comment as a private citizen.¹⁷ Consequently, the FWC held that the position of the employer stated in their Code of Conduct in relation to political activity and public comment was not unreasonable. Commissioner Bissett found that there is nothing unreasonable in an employer seeking to protect its reputation by ensuring that comment and activity attributable to it is actually representative of its views and is done by those properly authorised to do so.¹⁸

• not access social media accounts to make public comments using your employer’s computers; • consider the implications of your comments before posting, in other words, ‘think before you speak’. 1

Fair Work Commission, Benchbook: General Protections,

Commonwealth of Australia 2016, July 2016, p112. 2

Ibid.

Croatian Brotherhood of WA (Inc v Yugoslav Clubs and

Community Associations of WA (Inc) (1987) EOC 92-190. 5 Thorne

v R (1986) EOC 92-182.

6 Oldham

v Womens Information and Referral Exchange

(1986) EOC 92-158. 7 Above

n3; Q&As on business, discrimination and

equality’ International Labour Organization, 01 February 2012. 8 Fair

Work Act 2009 (Cth), s351.

9 Australian

Human Rights Commission, Political Opinion

https://www.humanrights.gov.au/quick-guide/12077 (visited 4/08/2016). 10 Bell

& De Castella and Rob De Castella’s Smartsmart

for Kids Limited [2013] ACAT 27. 11 Ibid

at [44].

12 Ibid

[43]-[44].

13 Banerji 14 Paul

v Bowles [2013] FCCA 1052.

Munro, Express yourself: sacked SBS reporter

off to FWC (19 May 2016), Workplace Info, http:// workplaceinfo.com.au/termination/unfair-dismissal/ analysis/express-yourself-sacked-sbs-reporter-off-tofwc#.V6a2FPl96Ul. 15 AGL

Loy Yang v Construction, Forestry, Mining and

Energy Union [2014] FWC 8093. 16 Ibid,

[41].

17 Ibid. 18 Ibid,

The question to be decided in this case was whether it was reasonable and lawful to require employees to agree to items in the employer’s Code of Conduct banning ‘public comment and political activity’. The FWC recognised that employees have a right to participate in the democratic process of civil society, with such a freedom including the right to express political views and make public comment. However, Commissioner Bissett drew the important distinction between activity and comment as a private citizen, and what may be seen as comments attributable to employment with the employer.¹⁶ 14

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University students should not be deterred from expressing their political opinions or getting involved in Australian politics, however it is important to be aware of the potential consequences of expressing your political views on social media in relation to your employment. To avoid any unnecessary drama, university students should take the following steps: • familiarise yourself with your employer’s code of conduct and social media policies;

[42].

1999

A Resident for President — Time for An Australian Republic? W R I T T E N BY Lachlan Wykes

20 16 A question we have all pondered in Constitutional Law, and perhaps in our spare time—Should Australia become a republic? Lachlan Wykes, the Founder and President of the newly formed UTS Australian Republic Club, provides arguments in favour of a republic whilst highlighting the points in favour of the constitutional monarchy. It was in 1999 (or as many Republicans prefer, ‘last century’) that Australians voted to decide on the structure of the country’s government. In that year, 54.7% of Australian voters voted to affirm the Queen’s place as the head of state of Australia.¹ Many Republicans cited a number of reasons for the referendum’s failure; the lack of support from then Prime Minister John Howard, the vague nature of the question, inefficient marketing efforts by ‘yes’ strategists and republican in-fighting about the model for adoption. In his speech post referendum to the failed ‘yes’ campaigners, current Prime Minister Malcom Turnbull, then the leader of the Australian Republican Movement, stated that a republican campaign in Howard’s conservative Australia was a ‘gruelling and heartbreaking’ task.² A RT I C L E S

Seventeen years on and many Australians have launched a new push for a republic. Australia’s increased multicultural population and greater acceptance of its indigenous heritage has fostered new attitudes about Australia’s relationship with Britain. In January this year, all state and territory leaders (except Western Australia), along with Prime Minister Turnbull, signed a declaration with the simple proposition that ‘Au-tralia should have an Australian head of state’.³ Many Australians seemingly agree. Membership numbers of the Australian Republican Movement have near quintupled since the appointment of the new chair Peter FitzSimons in 2015. FitzSimons claims, it is “against the natural order of things that a mature and sophisticated, multicultural and independent nation like Australia... should still be finding our head of state from one family of English aristocrats, living in a palace in England”.⁴ 16

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Many of these arguments hold merit to a number of Australians. As it stands, the Governor General as the representative of Queen Elizabeth II, holds several reserve powers over parliament awarded in section 61 of the Australian Constitution.⁵ Under their delegated powers, the Governor General may dissolve parliament without reason, requires Australian politicians to swear allegiance to the Queen in their oath of office, and must assent to all legislation before it is enacted. Republicans cite issues with this system, pointing to the 1975 dismissal of the Whitlam government. Continued arguments for an Australian republic include increased independence, renewed identity, increased democratic powers, renewed economic benefits, and cultural upliftment. Those opposed to a republic however, including Australians for Constitutional Monarchy and former Justice of the High Court Michael Kirby, list several

counter arguments. Monarchists point to the cost burden of the change, the need to respect Australian tradition and history, and the adequacy of the current political structure.⁶ An additional monarchist argument is the division about the model for adoption. In-fighting among Republicans continues as there is debate as to three main models, minimalist, parliamentary appointed and direct election. These range from simply removing the Governor General’s role as the Queen’s representative, to having an ‘Americanised’ system whereby a president is directly elected. Whatever the model, the message is clear; an Australian republic is back on the political agenda.

1999 Referendum Report and Statistics (2011) Australian Electoral

Commission <http://www.aec.gov.au/elections/referendums/1999_ referendum_reports_statistics/Key_Results.htm>. 2

Malcom Turnbull, ‘Australia votes no’ (Speech delivered at Vote

Yes Conference, Canberra, 6 November 1999). 3 Tom

Allard, ‘'We want a republic': Australia's states and territory

leaders are united’, The Sydney Morning Herald (online), 25 January 2016 < http://www.smh.com.au/federal-politics/political-news/we-wanta-republic-australias-states-and-territory-leaders-are-united-20160124gmd0kd.html>. 4 Peter

FitzSimons, Peter FitzSimons at the National Press Club: Beneath

the Southern Cross we stand, a sprig of wattle in our hand’, The Sydney

Morning Herald (online), 26 August 2015 <http://www.smh.con.au/ comment/beneath-the-southern-cross-we-stand-a-sprig-of-wattle-inour-hand-20150826-gj8agm.html>. 5

Australian Constitution s 61.

Promoting Our Constitution Through Education Australians for

Constitutional Monarchy <http://www.norepublic.com.au/>.

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Commit

ment Issues:

Why NSW needs a human rights charter.

W R I T T E N BY Sarah Avery

For quite some time, people have compared NSW to Victoria in their ability to enact a Human Rights Charter. Similar to the argument presented by Taniya Sheriff later on in this edition, Sarah Avery provides insight into whether a Charter would be suitable in NSW and whether it would be effective. In 2006, Victoria followed the example of the ACT and enacted the Charter of Human Rights & Responsibilities Act 2006 (Vic). Meanwhile, the outcome of NSW’s Legislative Council’s Law and Justice Committee’s inquiry in 2001 was to set up a Legislative Review Committee, the only State-based body of its kind, compared with six at the federal level. This Committee’s role is to review state laws in light of human rights, and was NSW’s answer to the human rights charter question. But has it been effective? In his Opening of Term Address of February 2016, Chief Justice Bathurst largely called this into question.¹ There is little evidence to suggest that the recommendations of the Committee are in any way influential in the passing of Bills by Parliament. This compares with the effect of the Victorian Act, which ensures a mechanism for the interpretation of legislation in line with human rights, and where this cannot occur, the executive is called upon to decide whether to amend the statute.² In fact, the 2015 report from the 18

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Legal Intersections Research Centre at the University of Wollongong reports an ‘entrenched culture’ within NSW Parliament of ‘ignoring and deflecting the Committee’s Advice’.³ The speed with which Bills have been passing into effect in NSW, particularly those with potentially disastrous impacts on human rights, also leaves little room for proper scrutiny by the Committee including the Crimes (Criminal Organisations Control) Act 2009 (NSW), otherwise known as the Bikie Laws, which passed within 24 hours.⁴ This Act significantly limited the civil rights of members of ‘declared organisations’.⁵ Former Chief Justice Spigelman said that Parliamentary committees are part of the ‘integrity branch of government’.⁶ So while they may be an important addition to the checks and balances within the system, this article will question whether in NSW they are alone sufficient, when compared with the effectiveness of Victoria’s Act after ten years of operation.

Money, Money, Money.

Why would governments waste taxpayer’s money on something that is already protected under existing laws? Well, the second part of the question will be answered later, but is a human rights charter really expensive after all? Many opponents claim not only that the implementation of a charter is expensive, but that it would clog up the courts with extra claims and create delays and expense. Firstly, the Victorian Act cost 50 cents per Victorian per year in the first five years of its operation; that isn’t much for the equal protection of fundamental rights and freedoms.⁷ Secondly, Great Britain’s implementation of the Human Rights Act 1988 (UK) found that there was only a 2% rise in claims, and arguably this is only because the Act makes the pursuance of the protection of rights more accessible for the layman.⁸ Lawyers are also inevitably involved with these claims, whereby as a profession we too weed out vexatious litigation.

Super Fluidity

Another oft-cited reason against a Charter in NSW is that the laws already sufficiently protect its inhabitants. But recent examples of legislations and social problems like the Bikie Laws,⁹ increased police powers,¹⁰ and the introduction of a presumption against bail for certain offences,¹¹ mean that many people not only have their human rights stripped away directly from laws passed by Parliament, but there is no adequate means for redress. Others argue that this only benefits criminals—that if you have nothing to hide you have nothing to fear—but the presumption of innocence is a doctrine that runs deep in our legal system, and one that is worth protecting. It is minorities who have faced systemic discrimination more than any who have to gain from an introduction of a NSW Charter: the Indigenous, the homeless, troubled youths, and other racial and cultural minorities. In the interests of a fair and multicultural Australia, these are rights that are worth us all investing in protecting. 6

Parliamentary Common Sense It is the role of elected officials to make educated and justified decisions about legislation and how it can impact upon the people of NSW. Chief Justice Bathurst attributes this to a ‘culture of justification’,¹² that is a culture that ‘every exercise of public power is expected to be justified by reference to reasons which are publicly available to be independently scrutinised for compatibility with society’s fundamental commitments’.¹³ However, Bathurst CJ goes on to question whether this really exists, or is effective at all.¹⁴ NSW Parliamentarians have proven that in the quick succession of laws passed, many in under a week, or some less than two days, that there is little consideration of their potential impact on human rights, and little public knowledge surrounding this as well.¹⁵ There is always need for the arms of government to be able to make one another accountable; the Victorian Act demonstrates how such a mechanism can be achieved, painlessly and affordably. So while Victoria are moving from Commitment to Culture,¹⁶ NSW seems to be trailing behind our sister state without even a solid commitment to the fundamental protection of civil liberties. And at what cost? And for how long?

Former Chief Justice, J Spigelman, ‘The Integrity Branch

of Government’ (2004) 78 Australian Law Journal 724,

Bail Act 2013 (NSW), s 16A.

The Nature of the Profession; the State of the Law, 4

726 in The Hon Bathurst CJ AC, Opening of Law Term

The Hon Bathurst CJ AC, Opening of Law Term

February 2016

Address: The Nature of the Profession; the State of the

1 The

Hon Bathurst CJ AC, Opening of Law Term Address:

Law, 4 February 2016

Law, 4 February 2016.

Rights in State and Territory Law’, 2013,

13 ALRC127

is a wise investment to protect fundamental rights, 2

Legal Information Access Centre, Hot Topics, ‘Human McNamara, L. Quilter, J., ‘Institutional Influences on the

Ben Schokman, Human Rights Law Centre, 50 cents

14 The

at [2.2] ft 1, quoting Murray Hunt.

Hon Bathurst CJ AC, Opening of Law Term Address:

Parameters of Criminalisation: Parliamentary Scrutiny

September 2011, <http://hrlc.org.au/50-cents-is-a-wise-

The Nature of the Profession; the State of the Law, 4

of Criminal Law Bills in New South Wales’ (2015) 27(1)

investment-to-protect-fundamental-rights/>.

February 2016, 20.

Current Issues in Criminal Justice 21 (McNamara and

Quilter), 35.

Arguments for and against a national charter of rights

4 The

and responsibilities, April 2015, 2.

(Interference) Bill 2016, 22 March 2016.

Crimes (Criminal Organisations Control) Act 2009 (NSW).

gangs’ disregards human rights, 3 April, 2009, <http://

Law Enforcement (Powers and Responsibilities) Act

The 2015 Review of the Charter of Human Rights and

www.amnesty.org.au/news/comments/20742/>.2005).

2002 (NSW), s 99.

Hon Bathurst CJ AC, 24

5 Amnesty

International, Hastily passed law on ‘bikie

The Australian Collaboration, Democracy in Australia –

Parliament of New South Wales, Inclosed Lands,

Crimes and Law Enforcement Legislation Amendment Michael Brett Young, From Commitment to Culture:

Responsibilities Act 2006, 2015.

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UTS LSS Edition Three

The Full Bench

WR I T T E N BY Janelle Thomy

EXTRA. EXTRA, READ ALL ABOUT IT! The Australian/US/British Election 2016 has been a big year for politics as Australia and the United States in particular have held elections. The discussion about these leaders is revealed later in this edition, but if you were anything like me, this is a good break down of the election systems in place and Janelle Thomy reveals the political influences embedded within them.

THE AUSTRALIAN/ US/BRITISH ELECTION

HEAD OF STATE

WRITTEN BY Janelle Thomy the laws and systems that govern a country are pivotal in forming that country’s identity. Not only do they reflect the history of that country but they have an enormous impact on the way that the citizens live their lives. The UK is a parliamentary democracy with a constitutional Monarch as Head of State. Under the British system, people elect Members of Parliament to the House of Commons in London at a general election. The elections are held five years apart and once voting has occurred, the political party that has the largest number of Members of Parliament in the House of Commons forms the government.¹ Australia’s system of government is based on the British system where the Governor-General acts on behalf of the British Monarch as Head of State. Under the Australian system, people elect Members of Parliament to the House of Representatives.² Federal elections are held every three years where the party with the support of the majority in the 20

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B R I TA I N

U N I T E D STAT E S

AU ST R A L I A

Her Majesty Queen Elizabeth II

Pre s i de nt Barack Obama

Her Majesty rep. by his Excellency General the Hon. Sir Peter Cosgrove

VOTING CYCLE

B R I TA I N

U N I T E D STAT E S

AU ST R A L I A

General elections are held five years apart

Congressional elections are held every two years in November

Federal elections are held at least every three years

VOTING SYSTEM B R I TA I N

U N I T E D STAT E S

AU ST R A L I A

Simple Majority

"First Past the Post"

Preferential and Proportional

VOTERS

House of Representatives forms the government for the term.³ Where Australia and the UK have Parliament to represent constituents, the US represent their constituents in Congress and the President is the head of State. Congressional elections are held every two years in November and citizens of each state elect one member to the House of Representatives to represent each electorate. The party that receives the majority vote by the members forms the government.⁴ Australia, unlike the US or British systems, has an optional preferential voting system in the lower house. This means that it is compulsory for citizens to attend the polling place but they do not have to vote for anyone but their top preference.⁵ Although preferential voting gives voters more of a chance to express their views and gives them the ability to compete with the larger parties, a disadvantage of this system includes the percentage of informal votes being higher. Also, if a voter doesn’t number all their preferences and the party they voted for isn’t chosen, their preference is then chosen for them. Voluntary voting and ‘first past the post’ system is used in the US and UK lower houses. These systems have also been criticised as they can influence voters to engage in strategic voting based on what they think other voters will do.⁶ In the Australian and British system, a general election can be called at any time, meaning that the parliament is responsible to the electorate. However, in the US system the terms of office of all the House of Representatives is fixed so that an early election cannot be held.⁷ Furthermore, Australia, the UK and the US all have single member representatives in their lower houses, being the House of Representatives and the House of Commons. Therefore, it is possible for a party to win with a majority of seats and less than 50% of the vote, not truly reflecting the wishes of the majority of the country. This system also creates a distinction between seats that are ‘safe’ and ‘marginal’ and leads to parties potentially concentrating their campaigns on the undecided voters of the marginal seats. It also means that members in seats that know they are safe could potentially be less responsive to public opinions.⁸ When looking at all three government systems, on the surface it appears that they fulfil the basic requirements of democracy, however, a close look at how their voting systems operate shows that there are flaws within the system and that the party that best reflects the highest percentage of voters isn’t necessarily the chosen party. It is therefore essential that their electoral processes are constantly reviewed and reformed in order to best reflect democracy.

B R I TA I N

U N I T E D STAT E S

AU ST R A L I A

Not compulsory for UK citizens

Not compulsory for US citizens

Compulsory for citizens aged 18 and over

ORGANISATION OF ELECTIONS

B R I TA I N

U N I T E D STAT E S

AU ST R A L I A

The Electoral Commission

Elections are organised by each state

Australian Electoral Commission

POLITICAL SYSTEM B R I TA I N

U N I T E D STAT E S

AU ST R A L I A

Unitary: Single level

Federal: Two levels of government

of government

HOUSE OF REPRESENTATIVES B R I TA I N

U N I T E D STAT E S

AU ST R A L I A

Parliament represents constituents.

Congress represents constituents.

Parliament represents constituents.

GOVERNMENT B R I TA I N

U N I T E D STAT E S

AU ST R A L I A

The party or parties with the support of the majority in the House of Reps forms government for the term.

The party that receives the majority vote by the members forms the government for the term.

The party or parties with the support of the majority in the House of Reps forms government for the term.

UK Parliament, General Elections (2016) < http://www.parliament.uk/about/how/elections-and-voting/

general/>. 2 Australian 3

Electoral Commission, Voting (2016) <http://www.aec.gov.au/Voting/>.

Parliament of Australia, House of Representatives (2016) <http://www.aph.gov.au/About_Parliament/

House_of_Representatives>. 4

USA Gov, Voting and Elections (2016) < https://www.usa.gov/voting>.

5 Parliamentary

Education Office, Closer Look Parliament and Congress (2016) < http://www.peo.gov.au/

uploads/peo/docs/closer-look/CloserLook_Parliament-and-Congress.pdf>. 6 Warren

Smith, ‘Our Presidential Race Picture Is Hugely Distorted By Our Bad Voting System’, The

Huffington Post (online), 22 October 2015, <http://www.huffingtonpost.com/warren-smith/bad-votingsystem-united-states_b_8356806.html>. 7 Parliamentary

Education Office, Closer Look Parliament and Congress (2016) < http://www.peo.gov.au/

uploads/peo/docs/closer-look/CloserLook_Parliament-and-Congress.pdf>. 8 Pohn

Kilcullen, A comparison of Australian, British, Canadian and American Political Systems (2000)

Macquarie University <http://www.mq.edu.au/about_us/faculties_and_departments/faculty_of_arts/ mhpir/staff/staff-politics_and_international_relations/john_kilcullen/a_comparison_of_australian_ british_canadian_and_us_political_systems/>.

A RT I C L E S

AU ST R A L I A’S RO L E I N FO R E I G N D I P LO M ACY

Ratifying treaties— does it make us bound?

W R I T T E N BY Sonali Malhotra

What are Australia’s responsibilities in regards to international treaties? You may have noticed that this is another area in which politics infiltrates the law and impacts its position in Australia. Sonali Malhotra investigates the role Australia plays in foreign diplomacy. Ratifying a treaty is more than merely signing a document. It involves adopting and legally binding the provisions and core values enshrined in the agreement into domestic legislation. Australia’s approach to ratifying international treaties illustrates a desire to be bound by them but not to guarantee legal enforceability under federal and state laws.¹ The external affairs power in the Australian Constitution enables the government to enact legislation which may give effect to the subject matter of these treaties.² For example, the Convention on the Elimination of

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All Forms of Racial Discrimination influenced the Australian government’s drafting and enactment of the Racial Discrimination Act 1975 (Cth).³ Similarly, the Convention on the Rights of the Child (‘CROC’) has led to the increased recognition of children’s rights and created a higher threshold of parental responsibility.⁴ These examples may sound familiar and provide a flawless allusion of Australia’s ratification of treaties, though this is far from the truth. The operation of state sovereignty and the lack of government accountability severely limit the influence of international

treaties on our domestic legislation. State sovereignty is the inherent right of each country to govern their own citizens without any external influence or interference.⁵ Due to this right, the Australian government can exercise their discretion in ratifying treaties according to their perceived needs. Thus, enabling Australia to maintain an element of control in foreign diplomacy, an avenue through which politicians strive to distinguish the Australian identity from our colonial roots. The Australian identity is multifaceted, riddled with complexities and contradictions. On paper, Australia

Further, a corollary to the executive’s power to enter into international treaties is the ability to withdraw from them, as mandated within the specific terms of a treaty and general international law. Public documentation on treaty-making by the Department on Foreign Affairs and Trade details that the govern-ment, ‘retains the right to remove itself from treaty obligations if it judges that the treaty no longer serves Australia's national and international interests.’⁸ This occurred in 1996 when we withdrew from the United Nations Industrial Development

is promoted as a land of opportunity where cultural diversity is embraced, differences are accepted and individuals can co-exist under the three-pillared umbrella of fairness, justice and equality. Though, beneath the surface we fall short of these ideals and principles. Australia is no stranger to foreign diplomacy, and cannot unapologetically hide behind the guise of being a young nation to mask the numerous flaws in their ratification of treaties. Scholars to the local and international media have popularly scrutinised Australia’s inhumane treatment towards asylum seekers and harsh border control policies. The United Nations has strongly condemned the Australia government for the breach their obligations under the Refugee Convention and the Convention Against Torture in regards to their hostile treatment of asylum seekers.⁶ Moreover, in Toonan, the Federal government passed legislation to decriminalise homosexual behaviour after conclusion drawn by the United Nation’s Human Rights committee that Tasmania’s laws breached Australia’s obligations under the International Covenant against Civil and Political Rights.⁷

Organisation (UNIDO) due to outcomes not aligning with Australia’s national objectives. Collectively, this begs us to consider, regardless of whether Australia ratifies or rejects international treaties, the power lies with the executive to determine the extent to which Australia will be bound by international treaties. Hence, this is simply another mechanism to exercise state sovereignty. 1

Rom McCallum, ‘The United Nations Human Rights Treaties: What Will

Be Their Future Role In Protecting Our Human Rights?’ (2015) 4. 2

Australian Constitution 1900 (Cth) s 51(xxix), 61.

Racial Discrimination Act 1975 (Cth).

Rom McCallum, ‘The United Nations Human Rights Treaties: What Will

Be Their Future Role In Protecting Our Human Rights?’ (2015) 3-4. 5 Hilary

Charlesworth, Madelaine Chiam, Devika Hovell, George Williams,

‘Deep Anxieties. Australia and the International Legal Order’ (2003) 25

Sydney Law Review 424. 6 Juan

E Mendéz, Submission 1 to Human Rights Council, Report of the

Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, 6 March 2015, 7. 7 Ibid

423.

8 Department

of Foreign Affairs and Trade, Treaty Making Process (2016) <

http://dfat.gov.au/international-relations/treaties/treaty-making-process/ pages/treaty-making-process.aspx>.

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the importance of policy advisers and experts

W R I T T E N BY Kimberley Ching

How do the messages our politicians spread and endorse at events affect the making of legislation? When politicians like Donald Trump and Pauline Hanson speak out, how does this affect the law? Kimberley Ching looks into the importance of policy advisers and the intersection between law and politics. The year in politics has, so far, been anything but predictable. We have beared witness to #brexit, the return of Pauline Hanson and the rise of Trump as a Republican nominee. At a glance, it is clear that major party politicians have lost the trust and faith of voters. But under the surface, there seems to be a growing divide between political discourse, our politicians and the public. The language major party politicians use has become incongruent with the interests of the voters, encouraging a new class of ‘celebrity politicians’ that replace good policy with a controlled public image and a generalisation of key issues. This article aims to explore the creation of the celebrity politician as a product of voter disillusionment, and to investigate their effect on policy development and public perception. 24

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The Rise of the Celebrity Politician The celebrity politician is a strange beast. It commands national politics by presenting its campaign as a strong image of few words. Whether those words are of fear, hate or ignorance, both their campaigns and policies are oversimplifications of complex problems.¹ By oversimplifying these wicked problems, the public are presented with but a strand of what is undoubtedly a multi-faceted issue. In so doing, voters digest the wrong information, are led to believe falsehoods and unfortunately become constituents of a poorly informed democracy.² Backed by growing public disillusionment, both Donald Trump and Pauline Hanson have become

rising stars of a new class of celebrity politician. National politics in both America and Australia have evolved into a competition of images or between images as opposed to a traditional sparring of ideals and policy.³ As political language and discourse is no longer representative or easily communicated to the ordinary citizen, there is a growing divide between us and the possibility of good policy decisions. It is for this reason that Trump and Hanson are able to capitalise on their scare campaigns. This disconnect between political language and public understanding is evidenced in the conduct of voters in both national elections. In the Australian election for the Senate this year, 9.2% of NSW, 8.6% of VIC, 7.7% of QLD, 6.3% of WA and 2.8% of TAS voted for no-one. This effectively means that at least one million Australians have no representation in the Senate.⁴ By comparison, seven in ten people in America believe that their politicians are ineffective and fail to understand the needs of American citizens.⁵ The results indicate a lack of confidence in both the Australian and American political systems which then enables the rise of anti-social figureheads like Hanson and Trump.

AUSTRALIA: Pauline Hanson (Episode IV, The Rise of the One Nation Party) Pauline Hanson’s return to Australian politics this year evidences how effective a scare campaign can be. It capitalises on the loss of faith in the Australian two-party political system and persuades voters to vote emotionally instead of pragmatically.⁶ Her return was coupled with a number of radical policies, the most infamous of which being her understanding of the correlations between Islam, terrorism and immigration. According to Ms Hanson, we as a nation can defeat terrorism by: • Banning Muslim immigration and our intake of Muslim refugees

• Ban the burqa and the niquab • Ban the building of any more mosques • Ban halal certification • Alter s116 of the Constitution • And commence a Royal Commission to investigate the legitimacy of Islam as a religion⁷ Hanson’s policies paint only one picture of the Islamic religion and unfortunately, it is one which does not reflect the multicultural diversity of the Australian population. Her policies are built upon a steady pillar of Islamophobia and a misconception that all Islam constituents worship the same fundamentalist beliefs as their radical counterpart, ISIS. By campaigning through this fear of terrorism, Hanson projects an image of herself as the protector of our nation against foreign threat. The effect of such can only be reinforced by the islamophobic fears paralleled by the Today Show host, Sonia Kruger.⁸ Hanson’s views on the landscape of the family law system in Australia is also about to undergo radical treatment. As today’s current system does not seem to align with her party’s view on marriage and childhood, Hanson’s party has not one, but multiple suggestions to improve the current state of family law in Australia. They include, but are not limited to:

an informed public, a flourishing democracy and an effective government.

AMERICA: Land of the Free and Home of the Trump Daring to venture beyond the Atlantic seas into blessed America, we arrive to find that political life is not all that different to home. The only exception being that the growing voter disenfranchisement in America is comparatively larger and daring enough to elect Trump as the Republican nominee for Presidency. But, much like Hanson, Trump builds upon his identity as a celebrity politician and substitutes misconceptions and fears for good policy. In fact, when recently asked about his existence of a foreign policy advisory team he replied with a very comforting, ‘Yes there is a team. Well there is not a team, I’m going to be forming a team’.¹⁰ Enabling a man like Trump to pursue the presidency, a man whose policies are purely based on isolationism, nativism and protectionism is both a dizzying and terrifying feat. Some of his more daring one-hit wonder policies include: • Making Mexican citizens fund the building of a wall along the border of Mexico and America

• Abolishing the family law Court and replacing it with a family tribunal that will be ruled by a panel of mainstream Australians

• Deporting 11 million illegal immigrants and their offspring

• Promoting joint custody as the only option to support a misconceived vision that a ‘a child’s standard of living following divorce cannot be maintained to its pre-divorce level’ without the aid of another parent.⁹

• Pledg ing to repay A mer ica’s 19 trillion-dollar debt in 8 years whilst simultaneously cutting taxes by 10 trillion dollars

Whilst her policies are evidently riddled with questionable intentions and murky ideals, it is clear that she has been successful in persuading voters to believe in an image of her Australia by returning to the Senate once more. Her celebrity politics has triumphed against good policy and reasoned voters. She is both a threat and an obstacle to

• Banning Muslim immigration until further notice from government

POLICY: why it matters and what it should be Public policy is how politicians are able to make a difference. It is the tool which they use to navigate and responsibly administer the complexity of Australian society. With policy, our politicians have to responsibly allocate public resources A RT I C L E S

and balance such with economic and public necessity.¹¹ Harold Lasswell, an early policy pioneer stated that policy designates the most important choices made either in organised or private life.¹² For this reason, it cannot be allowed to be manipulated by the Hanson’s and Trump’s of this world. The textbook approach to good policy suggests that it should be intentional and purposive to meet a goal, clear and structured and that it must express the political priorities of the government of the day and their voters.¹³ In practice, good policy is that which is responsive to changes in the local community, economy and the wider world. Bad policy is that which ignores the needs of the major stakeholders and focuses instead on objectives which lack priority or reason.

Intersection of Law and Politics —Why Voting Matters To enable these ‘celebrity politicians’ to interpret and create legislation for the masses is both terrifying and irresponsible of voters. In Australia alone, the substantial amount of non-voters means that not all views and opinions are being considered in our democracy and subsequently taken into account when creating legislation. Ironically, the views that are being taken into consideration are those who decidedly voted to revive Hanson into the political scene. In so doing, the radical legislation she proposes to create have extensive ramifications, including the end of the Family Law Court for example. This in itself would have extensive repercussions on Australia’s ability to adjudicate family law matters. No matter the country or the political party, desperately needed legal reform and legislative action is used as no more than a bargaining chip by politicians for more Facebook likes or for meaningless debate with the opposition. It becomes a matter of he said, she said whereby the law becomes a politicised tool and legislation becomes incongruent with the needs of society. 26

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Conclusion The growing chasm between political discourse and voter conceptions will keep expanding unless our politicians find a way to effectively convey the importance and complexity of larger issues. Without this communication, versions of Hanson and Trump will only continue to materialise and destroy any remnants of what good policy should be. Equally, voters must also be able to balance competing ideals of self-interest with the needs of the whole public. We must learn to discern the real politicians from the celebrity and vote with an idea of what our country should be as opposed to what it isn’t. At that point, good policy and legislation will follow. 1

L. Crovitz, ‘Information Age: Donald Trump, Celebrity Politician’ (2016) 17

Wall Street Journal 14. 2

Ibid.

Jared Owens, ‘Federal Election 2016: Million Senate Voters Elected No-

One’, The Australian (Online), 6 August 2016 < http://www.theaustralian. com.au/federal-election-2016/federal-election-2016-million-senate-voteselected-no-one/news-story/dbe0f11adbd08543f8073faf99087ca1>. 5 Alexander

Burns, ‘Fear Trumps Hope; The Republican Nominee’ (2016)

419 The Economist 22. 6 Peter

Van Onselen and Wayne Errington, ‘Ruling Not Governing: Lost

Confidence in the Body Politic and What to do about it’, (2016) 51 Griffith

Review 105. 7 One

Nation Australia Party, One Nation Policies (2015) < http://www.

onenation.com.au/policies>. 8 Sally

Rawsthorne, ‘Sonia Kruger Stands by her call for a Muslim Ban’,

The Daily Telegraph (online), 20 July 2016 < http://www.dailytelegraph. com.au/news/nsw/sonia-kruger-i-stand-by-my-call-to-ban-muslims/ news-story/20aa155fb2d781e2e9c9bfb772857af8>. 9 One

Nation Australia Party, above n 7.

10 Daniel

Drezner, ‘The Doom Loop of Donald Trump’s foreign policy

musings’, The Washington Post (Online), 2 August 2016 < https://www. washingtonpost.com/posteverything/wp/2016/08/02/the-doom-loop-ofdonald-trumps-foreign-policy-musings/?utm_term=.b498a693ab96>. 11 C.

Althaus, P. Bridgman and G. Davis, The Australian Policy Handbook

(Allen & Unwin, 5th ed, 2013). 12 Harold

Lasswell, Psychopathology and Politics; Politics: Who Gets

What, When, How; Democratic Character (Free Press, 1st ed, 1951). 13 C.

Althaus, P. Bridgman and G. Davis, above n 11, p. 2.

W R I T T E N BY Zach Mcloughlin

What are Australia’s legal responsibilities in regards to international affairs? How do politics influence the carrying out of our legal responsibilities? Zach McLoughlin investigates Australia’s pragmatic complicity in Indonesia’s occupation of West Papua to better understand Australia’s legal position in International matters. In a tragic combination of political expedience, legal ambivalence, and moral callousness, Australia’s foreign policy community has continued to acquiesce to the slow moving genocide taking place in West Papua. Initially motivated by a desire to prevent a ‘Cuba of the south,’ Australia’s anti Papuan independence stance has persisted through the collapse of the bipolar world, but continues to reflect a political situation where appeasement is more important than seeking justice. For some background, West Papua is the western half of the island of New Guinea. Alongside the rest of contemporary Indonesia, West Papua was owned by the Dutch during the height of European imperialism in the region, with the Dutch East Indies bordering British Malaya and Australian owned Papua New Guinea. The Japanese occupation of many Southeast Asian states in the Second World War then acted as a catalyst for a broad decolonisation of European holdings in the area, but Dutch withdrawal from the archipelago was not an affair nearly as swift or decisive as the British retrenchment of its imperial holdings ‘east of Suez.’¹ Dutch refusal to accept Indonesian sovereignty led to a protracted independence struggle. The fighting depleted Indonesia’s material wealth and fractured its existing power structures, colouring the Indonesian independence movement an increasingly communist

hue in the minds of Australia's political elites, and spurring fears of a potential Sino-Soviet aligned Indonesia. Faced by mounting Australian and American pressure to end the conflict, the Netherlands recognised the independence of much of the archipelago in 1949 but retained West Papua, citing the lack of ethnic uniformity between West Papuans and Javanese. It was not long until the parties were invited to have their dispute mediated by the United States, with a peace deal brokered in the form of the New York Agreement (‘the agreement’) in 1962. The agreement was a complete defeat for the Dutch, with the U.S. pressuring the Netherlands to cede West Papua for the fear of forcing Indonesia to seek Soviet assistance in pressing its claims.² The agreement called for the replacement of Dutch institutions in West Papua with Indonesian ones over the course of a year, and an eventual act of ‘selfdetermination’ by the West Papuans themselves.³ Article XVIII of the agreement stipulated the conditions for the act of self-determination, most notably subsection (d) which stated that all Papuan adults would be eligible to vote, and required the vote to be held ‘in accordance with international practice,’ à la freedom from undue influence.⁴ A RT I C L E S

R T

A O

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CO E AS H ID Y IGN AC T I C POLICY COMMUN O Q N UI ES GE CE G IN TO T H E S LOW M OV TA A. KIN PU A G PL P AC E I N W E ST S

In reality, the Indonesian army hand-picked 1,025 people who were coerced into voting for unity with Indonesia.⁵ One of the more prominent Papuan voters, Theys Eluay, stated later that if he and his fellow voters had not voted for integration; “our houses would have been burned and our families slaughtered.”⁶ Indonesian policymakers continue to assert that the disproportionate body was a ‘representative’ one, as the geographic conditions made it difficult to organise a vote including all those eligible.⁷ However, the report of a U.N. observer expressed immense concerns over the widespread threats of violence and a vote which he reported took place in accordance with ‘Indonesian,’ rather than ‘international’ practice.⁸ Some West Papuan advocacy groups have considered a legal challenge to hold another referendum, however the prospects of affecting change remain slim. The significant resource advantage of the Indonesian government, the difficulties in enforcing international sanctions, and the possibility of inadvertently further legitimising Indonesian control all make a direct legal challenge to the ownership of the territory unlikely.⁹ The prospect of Australia pressuring Jakarta to institute greater autonomy has only become more remote recently as well with Australia reaffirming the Lombok Treaty, a bilateral agreement signed in 2006 which expressly prohibits any interference in the partner country’s ‘internal affairs.’¹⁰ The Australian government has instead largely adopted the recommendations of the Lowy Institute's ‘Pitfalls in Papua,’ a document which advocates for channeling humanitarian aid to alleviate the human impact of the occupation, and to take no strong position on West Papua publically in order to remove the ‘Australia factor’ in Indonesian politics.¹¹ 28

The policy further identifies that the region best serves Australian interests if the governing power is co-operative on military issues, as the Indonesian state has proven to be, given the defensive significance of the area proven during World War II. Paradoxically condemned by working with Australians to halt the Japanese advance, those Papuans who rendered assistance (dubbed the ‘Fuzzy Wuzzy Angels’) by transporting wounded Australians back from the front lines are now endangered not by Japan, but by Indonesia. Since the official occupation of West Papua by Indonesia in 1963, the Indonesian military has subjected the local populace to violence and systemic oppression. A Yale report into the human rights abuses in the region has concluded that the military’s actions have likely amounted to genocide, or at the least, crimes against humanity.¹² Article II of the Convention of the Prevention and Punishment of the Crime of Genocide states that; ‘genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) I mposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.’¹³ Murders carried out by Indonesian soldiers have included public executions of pregnant women

whereby bayonets are used to cut unborn babies from their mothers wombs,¹⁴ slitting men’s throats and forcing the victims’ families to drink the blood,¹⁵ and beating political prisoners to death with iron bars.¹⁶ In November of 2001, Theys Eluay, the same voter who spoke out about the intimidation he faced when v oting in the ‘Act of Free Choice,’ was abducted and murdered by two Kopassus (Indonesian Special Forces) agents. His wounds later indicated that he was strangled by the assailant’s bare hands.¹⁷ The Indonesian government claimed that Theys had died of a stroke, however following an extensive investigation by human rights watchdog Tapol and a rare international spotlight, an Indonesian military court found seven Kopassus soldiers guilty of involvement in Theys Eluay’s death. For premeditated murder, a crime which all admitted to, the soldiers received sentences ranging from two to three and a half years.¹⁸ Other human rights abuses have included the exploitation of Papuans’ land, resources, and labour, the transmigration of thousands of Javanese in to the region such that the native population now forms a minority, the destruction of property, crops, and environment which has rendered the local populace, at times, unable to feed themselves.¹⁹ Given the difficulties of proving the mens rea element of genocide, it remains uncertain that charges will be firmly secured against any individuals, but the charges in the alternative of committing crimes against humanity are open to pursuit, remain likely to succeed, and would be a significant step towards the rule of law.²⁰ Despite the reams of evidence against individual Indonesians, the Australian government’s hesitation to act has been unchallenged by the public. It is the likely scenario that legal challenges will not take place until widespread domestic support for justice in Papua materialises in Australia. The political understanding of Australia’s socially minded class remains largely limited to domestic issues such as refugee rights and same-sex marriage, and prospects for public discussion of Papuan justice are further dampened by a two party system where foreign policy is largely bipartisan. In conclusion, Australia remains unlikely to support the self-determinative rights of Papuans or to bring the perpetrators of violence to justice due to a comfortable status quo and an entrenched voter apathy towards foreign policy. The Fuzzy Wuzzy Angels never abandoned a single Australian soldier, but perhaps they would have thought twice before risking their lives if they had known today’s Australians raise neither an eyebrow nor a finger to alleviate the abject suffering of such an undeserving and innocent people.

Neville Meaney, ‘Australia, the great powers and the coming of the

Cold War’, (1992) 38, 3 Australian Journal of Politics & History, 328 ; Department of External Affairs. Cablegram 5482 to London 24 December 1947, 6:30p.m. 2

Office of the Historian, Foreign Relations of the United States, vol XXIII

(at 06 March 1995) Foreign Relations ‘Southeast Asia’ available at <http:// dosfan.lib.uic.edu/ERC/frus/summaries/950306_FRUS_XXIII_1961-63. html>. 3

Agreement Between the Republic of Indonesia and the Kingdom of the

Netherlands Concerning West New Guinea (West Irian) Indonesia-The Netherrlands, signed 15 August 1962 (entered into force 15 August 1962) art XVIII available at <https://www.freewestpapua.org/documents/thenew-york-agreement>. 4

Ibid Art XVIII (d).

5 Report

of the Secretary General Regarding the Act of Self-

Determination in West Irian, U.N. Doc. A/7723 (6 November 1969) annex 1. 6 S.

Wareham, ‘West Papuans Need Help’, Newsletter of the Medical

Association for the Prevention of War, (2001), 16. 7 See

point 9 regarding the results of the Act of Free Choice - Embassy

of the Republic of Indonesia, Facts on Indonesia 's Sovereignty over irian

jaya (Papua and West Papua Provinces) Republic of Indonesia, London Embassy <http://www.indonesianembassy.org.uk/papua/papua.html>. 8 Report

of the Secretary General Regarding the Act of Self-

Determination in West Irian, U.N. Doc. A/7723 (6 November 1969) annex 1, [253]. 9 Jason

MacLeod and Brian Martin, ‘The legal strategy for West Papua:

Will it fly? What might help it to?’ (Working Paper No 3, Centre for Peace and Conflict Studies, University of Sydney, April 2012) 3-5, available at <http://sydney.edu.au/arts/peace_conflict/docs/working_papers/ WPP%203.pdf>. 10 Agreement

between Australia and the Republic of Indonesia on the

Framework for Security Cooperation, Australia-Indonesia, signed 13 November 2006, available at <http://www.info.dfat.gov.au/Info/Treaties/ treaties.nsf/AllDocIDs/ADA704593CAE4466CA25723100100881>. 11 Rodd

McGibbon, ‘Pitfalls of Papua’ (Institute Paper No 13, The Lowy

Institute, 2006) vii-xv, available at <http://www.lowyinstitute.org/files/ pubfiles/McGibbon%2C_Pitfalls_of_Papua.pdf>. 12 Brunidge

et al., ‘Indonesian Human Rights Abuses in West Papua’

(Report, International Human Rights Clinic, Yale Law School, April 2004) 1-5, available at <http://www.g-a-l.info/Yale%20Report%20on%20West%20 Papuah%20rights.pdf>. 13 Convention

of the Prevention and Punishment of the Crime of

Genocide (signed and entered into force 9 December 1948) art 2 available at <https://treaties.un.org/doc/publication/unts/volume%2078/volume78-i-1021-english.pdf>. 14 Brunidge

et al., ‘Indonesian Human Rights Abuses in West Papua’, 24.

15 Ibid. 16 Carmel

Budiardjo and Liem Soei Liong, West Papua: the obliteration of

a people (Thornton Heath: Tapol, 1988) 69. 17 ELSHAM,

‘The Abduction And Assassination Of Theys Hiyo Eluay’

(Report, Tapol, 13 December 2001) <http://tapol.org/news-andreports/reports/abduction-and-assassination-theys-hiyo-eluay-waspremeditated-and>. 18 Matthew

Moore, ‘Kopassus guilty of Eluay murder’, The Age (Karuni

Rompies Surabaya, Indonesia 22 April 2003). 19 Brunidge 20 The

et al., ‘Indonesian Human Rights Abuses in West Papua’ 26-36.

requisite mens rea element ‘with intent to destroy, in whole or

in part, a national, ethnical, racial or religious group’ has a very high standard. Hatred and mistreatment of a group alone are not considered sufficient, there must be the ‘special intention’ to destroy the group, which, in the current case remains difficult to prove given the ebb and flow of communal violence. For an interpretation of the mens rea of genocide see: Prosecutor v Jelisic (Judgement) (International Criminal Tribunal for the former Yugoslavia, Trial Chamber I, Case No IT-95-10, 5 July 2001) 99-108.

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W R I T T E N BY Sarah Liu

Remember the Bikie Gang laws introduced in 2013? These were unpopular amongst many. What was perhaps more unpopular was the introduction of ‘anti-consorting’ laws that left many unable to consort with people, like convicted bikies, who had been convicted of a criminal offence. Sara Liu examines these politically motivated laws from a constitutional perspective. The words ‘anti-consorting’ often transport us to a time, somewhere between the 19th and 20 th centuries, when an individual’s choice of company and perceived amorality acted as sufficient grounds for punishment. The presumption of innocence was an almost inconceivable notion and police suspicion, if not paranoia, ran rampant. Upon their inception and introduction to New South Wales,¹ Queensland² and South Australia³ in 2012, 2013 and 2015, anti-consorting laws reflected, and still reflect, an oppressive inclination in Australia to out law normal social behaviour and challenge one’s freedom of association. These pieces of legislation essentially ban individuals from associating with two 30

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or more people who have been convicted of a criminal offence—or, in South Australia’s case, who are merely suspected of engaging in criminal activity. These laws could be deemed as contributory to the somewhat ‘nanny state’ stature Australia has slowly, but surely, adopted in recent years. The maximum penalty for consorting carries a sentence of three years in prison. It thus begs the question: shouldn’t the essence of double jeopardy, that is, the prohibition of re-trying a defendant on the same charges and in the same case following a legitimate acquittal or conviction, apply to these people after they have left the court process and re-joined the real world?

This gaping hole in the law, alongside the absence of a Bill of Rights in Australia, seems to leave one’s human rights, when it comes to whom they choose to associate themselves with, incredibly vulnerable. The High Court of Australia’s jurisprudence with regard to the constitutional freedom of association remains very much in its infancy. Indeed, there exist some dicta inching towards the idea that the Australian Constitution impliedly protects some kind of freedom of association. However, this idea remains in the realm of passing comments by learned judges only; it fails to have the brute, decisive force of ratio decidendi behind it. This gaping hole in the law, alongside the absence of a Bill of Rights in Australia, seems to leave one’s human rights, when it comes to whom they choose to associate themselves with, incredibly vulnerable. Various legal experts, academics and politicians have criticised the induction of anti-consorting laws, labeling them as both archaic and backward. A NSW Greens freedom of information request made earlier this year revealed that 8,556 warnings were issued to 2,412 people in New South Wales between April 2012 and September 2015, however only 54 were charged and only five received prison sentences.⁴ On these figures, Greens MP David Shoebridge, a forthright critic of the laws, asserted that police were exploiting the laws by targeting individuals who were in no way related to gangs or gang activities. The figures divulged that the laws were not confined to illicit motorcycle gangs, but stretched their grasp to include such marginalised groups as the homeless and Indigenous Australians. A 2013 NSW Ombudsman’s review of the laws⁵ revealed that about 40% of all consorting warnings were issued to Indigenous Australians;⁶ more than half of those were issued to Aboriginal women. It would be easy to say that, as a signatory to the International Covenant on Civil and Political Rights⁷ (‘the Covenant’), Australia is acting inconsistently with its international obligations as it is blatantly violating Article 22(1),⁸ that everyone shall have the right to freedom of association, by introducing anticonsorting legislation. However, it should be noted that the Covenant is not directly enforceable in New South Wales. Although Australia ratified the Covenant

on 13 August 1980, the provisions do not form part of Australian law unless validly implemented by statute. Indeed, Australian judges have not yet concluded on whether or not such a freedom exists. It would, therefore, be interesting to consult the comments of learned judges in foreign case law. In Reference Re Public Service Employee Relations Act (Alta),⁹ the leading Canadian case on freedom of association, Dickson CJ and Wilson J described freedom of association as a fundamental freedom and a crucial prerequisite for any free and democratic society.¹⁰ McIntyre J added that such a freedom was the one human right that characteristically differentiated a democratic society from a totalitarian one.¹¹ It’s a scary thought, but an interesting one and definitely a trigger for conversation regarding the future for anti-consorting laws. Whether it is decided that one should not be re-tried for consorting with others deemed inappropriate by law, or another l oophole is found, following the logic of these learned judges, has Australia regressed into somewhat of a tyrannical state?

The Crimes Amendment (Consorting and Organised Crime) Act 2012

(NSW). 2

Vicious Lawless Association Disestablishment Act 2013 (QLD).

3 Statutes

Amendment (Serious and Organised Crime) Bill 2015 (SA).

4 Anti-consorting

laws under scrutiny, with claims NSW Police targeting

groups other than bikies’ (26 May 2016) ABC News <http://www.abc.net. au/news/2016-05-26/claims-anti-bikie-laws-used-in-nsw-to-target-othergroups/7449642>. 5

Consorting Issues Paper, ‘Review of the use of the consorting provisions

by the NSW Police Force’ (November 2013) Ombudsman New South Wales <https://www.ombo.nsw.gov.au/__data/assets/pdf_file/0009/12996/ Consorting-Issues-Report_June2014_update.pdf>. 6

Ibid, 9.

International Covenant on Civil and Political Rights, adopted and

opened for signature, ratification and accession by GA Res 2200A (XXI) of 16 December 1966 (entry into force 23 March 1976). 6

Ibid, Art 22(1).

[1987] 1 S.C.R 313.

Ibid [22].

Ibid [154].

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THE SHACKLES ARE OFF: HOW BREXIT HAS FREED ENGLISH JURISPRUDENCE IN CONFLICT OF LAWS W R I T T E N BY Marcela Malicka

Brexit took the world by storm this year as a result of the significant consequences it will have on Britain and its international partners. Marcela Malicka examines the ways in which Brexit could positively impact upon the common law countries.

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any lament the result of the recent English referendum to leave the EU, however it will be difficult to find a British lawyer who is not excited at the prospects of a newly freed English judiciary. Since England’s entry into the European Union, the operation of Britain’s common law has been significantly altered by the European Court of justice approach to resolving conflict of laws. This article will showcase how the European Union has contributed to the weakening of the English common law doctrine of forum non conveniens by examining the case of Osuwu v Jackson.¹ Throughout Civil Law jurisdictions, the codification of law is seen to be fundamentally superior to the common law. The implementation of codification is seen to represent the achievement of a more evolved society.² On the continent, a code of civil law is ‘a necessary bade of statehood that any self-respecting country should want’.³ This piece does not deny that codified civil law is advantageous in some respects. In particular how it facilitates the systematic organisation of legal principles in a manner that is relevant to the big picture operation of the legislation. This provides for a more accessible and readily understood legal system. This preference for systemic organisation of the law demonstrates the fundamental difference between civil and common law jurisdictions. Civil law jurisdictions believe that systemic organisation of the law is more desirable than practical operation and policy. This difference in priorities can be clearly seen when examining the European Court of Justice judgments. The European Court of Justice is principally a civilian court.⁴ It is indisputable that if Britain had remained within the European Union, the European Court of Justice’s approach would have integrated itself further within the operation of the private law in England. In the case of Owusu v Jackson, Mr Owusu was an English domiciliary. Mr Owusu entered into a contract with Mr Jackson, who was likewise an English domiciliary.⁵ The contract involved the renting of a holiday villa in Jamaica. The contract contained a term granting Owusu private access to a neighbouring beach. During his stay, Owusu, while swimming, struck a submerged object that left him with a debilitating spinal cord injury. Owusu commenced litigation against Jackson maintaining that the contract included an implied term that the beach would be safe for swimming.⁶ English common law conflict of law is governed by the doctrine of forum non conveniens. The Doctrine functions on the premise that English Courts have the discretion to stay proceedings: if they believe that there is another jurisdiction that is clearly more appropriate to hear the case. However, under the European Union rules, for conflict of laws, the defendant is to be sued

in their country of domicile, which as mentioned above was England. Jackson, as the defendant, approached the Court to have the proceedings litigated in Jamaica as the accident had occurred there. All evidence was there as were co-defendant companies. The request was appealed to the Grand Chamber of the European Court, which was presided over by nine civil law judges. The Grand Chamber of the European Court held that the English Courts could not stay proceedings under the doctrine of forum non conveniens as the defendant is better equipped to On the continent, conduct his defence in the courts a code of civil law of his domicile. Furthermore, the is ‘a necessary bade European Union rule of domiciliary of statehood that guarantees foreseeability and clear any self-respecting understanding of the operation country should want.’ jurisdiction. Therefore, it cannot be deviated from.⁷ This suggests that the purpose of barring the operation of the English common law rule of forum non conveniens is to protected the defendant. This argument completely fails to address the fact that the defendant is the party who requested for a stay of proceedings.⁸ The case of Owusu v Jackson, highlights the difference in priorities between the civil and common law. The longer Britain remained in the European Union the further civil law jurisprudence would integrate itself into English conflict of law rules.⁹ As demonstrated by Owusu v Jackson, the European Union’s preference towards codification means that maintenance of the hierarchical organisation of legal principles is valued over all else.¹⁰ The common law, on the other hand, provides flexibility for the law to be moulded to novel situations as they arise. The common law is always subtlety developing and being refined. Hence, ensuring that its’ operation is always logical and outcomes just. It is difficult to argue that Britain’s common law operation, particularly in the area of conflict of laws, would not have been limited if Britain had remained in the European Union. Common law lawyers are perhaps one of few identifiable groups that will not be grieving England bowing out from the European Union. 1

Owusu v Jackson (t/a Villa Holidays Bal Inn Villas) (C-281/02) [2005]

E.C.R. I-1383 (ECJ). 2 Trevor

Hartley, ‘The European Union and the Systematic Dismantling

of the Common Law of Conflict of Laws’ (2005) 54 The International and

Comparative Law Quarterly 813, 813. 3

Ibid.

5 Owusu

v Jackson (t/a Villa Holidays Bal Inn Villas) (C-281/02) [2005]

E.C.R. I-1383 (ECJ). 6 Ibid. 7 Owusu

v Jackson (t/a Villa Holidays Bal Inn Villas) (C-281/02) [2005]

E.C.R. I-1383 (ECJ). 8 Hartley, 9 Owusu

above n 2, 902.

v Jackson (t/a Villa Holidays Bal Inn Villas) (C-281/02) [2005]

E.C.R. I-1383 (ECJ). 10 Ibid.

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TA H N I YA S H E R I F F Affirmative & Negative

STOP.

Hammer Time. As one of the most contentious and long-standing issues in Australian history, the question of whether a Bill of Rights is required has drawn great interest and criticism on both a domestic and international scale. Australia’s position as one of the very few modern democracies which do not have such a bill, asks the pressing question of whether one is needed or more importantly, wanted, by it’s people. Should Australia have a Bill of Rights? Tahniya Sheriff tackles this debate question from both sides. You make the call, should we or shouldn’t we?

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“... a Bill of Rights can be seen as a vehicle for freedom for those who may have lost faith in Australia’s current legal system.”

“It is unreasonable to suggest that such inherent values garnered ... can be construed and perfectly articulated to appease the diverse interpretations of all Australians and the cultures and values,”

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Tahniya Sheriff

In light of this, it is necessary to examine the crux of our Constitution, which interestingly, says very little to none about what it means to be Australian and as such, the nature of our behavior and interaction as human beings and fellow Australians. The quintessence of this Constitution provides a pathway for a Bill of Rights, which would essentially recognise and protect universal rights, which are not currently protected by Australian Law. A prospect to strengthen our democracy by outlining and protecting the rights attached to Australian Citizenship remains a viable motive to fashion a Bill of Rights. Moreover, an opportunity to address previous historical inconsistencies of human rights within Australia arises, as a Bill of Rights can promote legal rights to minorities, which can often be denied. In Australia, disadvantaged people in our community include the Aboriginal Australians, LBGT people, the mentally ill and ethnic minorities among others. As such, a Bill of Rights can be seen as a vehicle for freedom for those who may have lost faith in Australia’s current legal system. These individuals or groups may find that a Bill of Rights would empower them to assert and uphold their rights while raising consciousness of their individual rights in Australia. The decision made upon the Bill of Rights debate is a decision for every Australian. It is a complex decision based upon the knowledge of Australia’s history, the current strengths of our Constitution and the true reality of the protection it provides. It is one for every Australian to make and an informed decision may see a very real possibility of a Bill of Rights coming into action in the future.

A major concern in developing a Bill of Rights is the notion that it overlooks and inherently defies the principle of parliamentary sovereignty, which, alongside federation, forms the very principle of our polity. While the possibility of isolating the tradition of parliamentary sovereignty may be concerning, it is important to note that while the Constitution lacks a Bill of Rights, it synonymously creates a separation of powers, namely, in the High Court and also situates Australia as a nation in which ‘the people’ vote for the federal Senate and House of Representatives. There is ongoing debate about whether constructing a Bill for Rights would, in essence, restrict rights. If Australia were to draft and establish a Bill of Rights, it is unequivocal to believe that these stated rights would be interpreted uniformly and not give rise to a variety of language and interpretation, which in some cases, may see that other fundamental rights are not easily articulated and enforced by the Courts. As such, to define a right is to limit a right and this notion juxtaposes the very realty of constructing a Bill of Rights. Both the historical and future ideation of Australian culture and values plays a central role in the development of such a Bill. Overtime, Australians have well established an innate meaning and attachment of what it is to be ‘Australian’. It is unreasonable to suggest that such inherent values garnered throughout history and are subject to continual progress, can be construed and perfectly articulated to appease the diverse interpretations of all Australians and the cultures and values, which they believe are pivotal in such a Bill. Similarly, the rapid growth of our nation may mean that a creation of a Bill of Rights at the present state may potentially overlook new problems, for example, those in relation to media, technological communication and privacy rights. HAMMER TIME

Judgement Day WITH ERIN FINCH

Unlike the fight against the machines that Sarah Connor prophesied, today’s generation face their own Judgment Day on a regular basis when laws are delivered on their behalf. So, it’s 2:14 am, August 29 1997 and like Skynet, we have become self-aware. Interested in leading the human resistance? Ask Erin Finch a question about your looming Judgment Day!

ASK ERIN

‘Dear Erin, I enjoyed reading the last edition of The Full Bench because it focused heavily on the issues that affect transgendered people but now I want to know what is being done to impact those who identify as being homosexual? More specifically, I do not understand what the plebiscite is and if it is even going to happen? How does this work within the current legal framework?’ - Anonymous 36

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ERIN'S JUDGEMENT

Hi Anonymous, Following with the theme of this issue, it is evident that even matters like same-sex marriage are impacted by the tenuous relationship between law and politics. The right to marriage for every citizen has been on the Australian political agenda for years as a step towards recognising the changing shifts in society. Arising in 2004 during the Howard Liberal Government, the same-sex marriage issue was magnified by the Marriage Amendment Bill 2004 which specified that ‘marriage means the union of a man and a woman to the exclusion of all others…’¹ However, this was all thrown into doubt in 2013 when the High Court found that marriage in the Constitution continues to encapsulate marriages between those of the same sex.² Therefore, the expansion of legal rights and protections afforded to same-sex couples in Australia is well developed at both a Federal and State level. This is clear in the legislation established in four States and the ACT which provide for the legal recognition of same-sex relationships.³ If this has been established, why is it Australia is falling behind other English-speaking countries in legalising gay marriage? This is where the plebiscite comes in as a political tool to encourage the public they are taking our thoughts into consideration. Currently, the plebiscite is a no-show with both parties throwing around the issue like a bargaining chip. To this, Attorney-General Brandis has argued that the longer political leaders ‘play with the politics of the issue’, the harder it will be to resolve the matter of same-sex marriage.⁴ Brandis was also quoted to say, “I think that if the political leaders can take the politics out of this, if Mr Shorten and the Labor Party can resist the temptation to try and use this as an opportunity to embarrass the Government, but rather ask themselves the question— how are we most likely now to progress this issue to a satisfactory conclusion."⁵ It’s a shame isn’t it? To take an issue that affects livelihoods and relationships and render it to the point of uselessness for all the political position that has been injected into it. Considering that the High Court has declared that the Federal Parliament has the ability to legislate on same-sex marriage, is the plebiscite even necessary? Perhaps what is more important is understanding, if

the plebiscite reflected the public’s desire for same-sex legislation, whether same-sex marriage laws will stand in light of the current Marriage Act?

C U R R E N T LY, T H E P L E B I S C I T E I S A N O - S H O W W I T H B O T H PA RT I E S TH ROWI NG AROU N D TH E I SSU E L I K E A B A R G A I N I N G C H I P. Only recently, The Conversation listed three things they believed the Government should do following the announcement of Plebiscite. They argued that there should be detailed proposals of amendments to the Marriage Act, machinery in place for how the plebiscite vote will be administered, and an explanation of the overall timeline.⁶ Therefore, there are definitely ways that the introduction of same-sex marriage legislation can work within the existing, or slightly amended, legal framework. Further, this legislation will be implemented. It is no longer a matter of if, it is a matter of when. The role of society and the ever-changing values must be reflected if the law can be said to govern society. Much love, Erin Finch

Marriage Act 1961 (Cth).

Matt Young, ‘Everything you need to know about gay marriage

plebiscite’, News (online), 30 June 2016 <http://www.news.com.au/ national/federal-election/everything-you-need-to-know-about-gaymarriage-plebiscite/news-story/5806925c44d44363e8ae5c0329b874f9>. 3 Department

of Parliamentary Services, ‘Same-sex Marriage’, Australian

Parliament Background Note 2012 1, <http://parlinfo.aph.gov.au/ parlInfo/download/library/prspub/1409734/upload_binary/1409734. pdf;fileType=application/pdf#search=%222010s%20background%20 note%20(parliamentary%20library,%20australia)%22>. 4

Jane Norman, ‘Plebiscite ‘only way’ to resolve same-sex marriage issue,

George Brandis says’, ABC (online), 24 July 2016 <http://www.abc.net. au/news/2016-07-24/plebiscite-only-way-to-resolve-same-sex-marriagegeorge-brandis/7656350>. 5

Ibid.

Ryan Goss, ‘If Australia is going to have a plebiscite on marriage

equality, how should it work?’, The Conversation (online), 2 August 2016 <https://theconversation.com/if-australia-is-going-to-have-a-plebisciteon-marriage-equality-how-should-it-work-63098>.

J U D G E M E N T DAY

STAY TRUE.

I am a daughter of Vietnamese migrants who came to Australia in the late eighties in search of a better future. My parents have always struggled with the English language so it’s really been my role to help them navigate their way through filling in forms dealing with Government departments and various legal issues. From a very young age this experience made me realise that it was likely there were many more people in a similar position to my parents. I wanted to help those people the same way I’d helped my parents and that’s when it clicked that becoming a lawyer was the thing for me. I am now a full time pro bono lawyer at Clayton Utz. This means that I help to implement the firms pro bono strategy by co-ordinating pro bono matters for our lawyers supervising our pro bono files and working on pro bono cases myself. A large part of my role in the pro bono team is to help our lawyers manage challenges… To listen to Hai-Van’s full story, go to: claytonutz.com/graduates Academic brilliance certainly counts, but graduates who thrive here have something extra – a natural passion for connecting with people and a strong sense of self. That’s what staying true is all about. If you have these qualities, Clayton Utz is for you.

Costa A, 2016, Hockey's Budget

FOLLOW COSTA : FAC E B O O K . CO M / CO STA ACO M I C S

The Full Bench 2016 Edition Three – It's Political

Make sure that you ‘like’ the TFB Facebook page for updates on all things TFB related! For those interested in contributing, tri-annually calls for contributors are made to members via social media, email, and out fortnightly newsletter, The Buzz. For more information on how to contribute or any other queries, please contact the 2016 UTS LSS Publications Director, Bianca Newton, at publications@utslss.com.