The Full Bench I 2022: Reform the Norm by UTS Law Students' Society

UNIVERSITY OF TECHNOLOGY SYDNEY

LAW STUDENTS’ SOCIETY

authors & acknowledgements EDITOR-IN-CHIEF

Georgia Neaverson

DESIGNER

Tahlia Kho

SPECIAL THANKS

Erika Serrano

Education (Publications) Director

UTS LSS President

Anthony Ayoub

UTS LSS Vice-President (Education)

The Full Bench is published by the UTS Law Students’ Society. 61 BROADWAY, ULTIMO NSW 2007 UTS CENTRAL, LEVEL 14, ROOM 104 PH (02) 9514 3448 FAX (02) 9514 3427 WWW.UTSLSS.COM

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. Acknowledgement of People and Country The UTS LSS acknowledges the Gadigal People of the Eora Nation, the Boorooberongal people of the Dharug Nation, the Bidiagal people and the Gamaygal people upon whose ancestral lands our university stands. We would also like to pay respect to the Elders both past and present, acknowledging them as the traditional custodians of knowledge for these lands. Images & Illustrations Unless provided by the designers or commissioned specifically for the purpose of this publication, uncredited photographs have been sourced from royalty-free distributors, licensed under Creative Commons Zero.

Disclaimer All expressions of opinion published in The Full Bench 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.

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[00.]

08. FIRB Reform: Friend or Foe? Aleksandra Chojnacki

directory

09. The Wild West of Privacy Law Natasha Lloyd

10. Get your as* up and work 01. President & Vice-President Address Erika Serrano

Jaya Dadwal 04

02. Publications Director & Sub-committee Georgia Neaverson

12. The Race for Law Reform: Uncovering the Grey Areas Lara O’Shea

13. Achieving Fairness and Equality Before the Law for African Australians Priscilla Kyei

14. Cracks creating a Paradise for Financial Deceit Brittany Cairns

15. The Role of Law Reform in Protecting the Future of Australian Families Priscilla Spalding

03. I Accept: The Privacy Consequences of Social Media Paris Gavenlock

04. Australia and Refugee Law: An Assessment of Our Position Georgia Holmes

05. Big Reforms for Big Businesses Isabella Kidman

06. When Reform is not Enough for Sexual Assault Survivors Charlotte Regan

07. Strike Back: Reforming Industrial Action in the Age of COVID-19 Robert Close

16. The Norm for Law Students Mark Curry

17. Stranded: Observations on a Stagnant 28

Refugee Law Framework Sai Muthukumar

66 3

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[01.] president’s address Erika Serrano Welcome to the first volume of The Full Bench for 2022, brought to you by the incredible UTS LSS Education Portfolio! This edition of the publication, ‘The Full Bench: Reform the Norm’, is an insightful collection of student submissions which recognise that the law is ever-changing, requiring constant reform to maintain relevance in a contemporary world. This in turn sheds light on the privilege of law students, but also the role we play as future lawyers and members of the legal profession in actively addressing inequality, striving for justice and acting as advocates for change. This wonderful publication could not have been achieved without the efforts of the hugely talented team who have dedicated considerable time to putting it together. Congratulations and thank you to Georgia Neaverson, our Education (Publications) Director, and Anthony Ayoub, our Vice-President (Education), for their flawless coordination of all the behind-the-scenes work of a publication of this magnitude. I’d also like to thank our Education (Publications) Subcommittee for their dedication and teamwork. Finally, thank you to all of our law student contributors for their incredible insights. I hope you enjoy reading this volume of The Full Bench as much as I did.

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WELCOME ADDRESS

PRESIDENT& VICE-PRESIDENT

vice-president’s address Anthony Ayoub If the last two years have taught us anything, it is how the law must continually adapt. The pandemic has created unprecedented issues for legislators, which means much-needed reforms have been further sidelined. As this edition of ‘The Full Bench: Reform the Norm’ will explore, the law is not yet complete. It is not entirely just and requires reform. As law students and future leaders, we act as advocates for change. I want to extend an enormous thank you to our Education (Publications) Director, Georgia Neaverson. Georgia’s commitment and dedication to The Full Bench is unparalleled and flawless. Edit-by-edit, she has spent countless hours bringing this publication to fruition. Special thanks also go to our incredible Education (Publications) Subcommittee, who run a tight yet seamless operation to ensure our publications are at a gold standard. Alongside this, I would like to thank the UTS LSS President, Erika Serrano, whose ever-present guidance is a source of inspiration. Finally, to our contributors who make this fantastic publication possible. Their sincere interest in ‘The Full Bench’ allows the UTS LSS to showcase their fascinating and insightful perspectives to the broader UTS Law community. I hope you enjoy reading this publication as much as I did. What are you waiting for? Sit back, relax and enjoy your reading!

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[02.] (PUBLICATIONS) education director’s address & subcommittee Georgia Neaverson It is my pleasure to welcome you to The Full Bench I 2022: Reform the Norm. Reform the Norm is a collection of student essays surrounding areas of the law in need of reform. From white-collar crime, to privacy, to animal rights law, each essay is rooted in passion and a dedication to promoting the law as an ongoing vehicle for justice. As future legal practitioners, it is our responsibility to draw attention to law reform, to address the inequalities that seep through the cracks in our legal system. I would like to thank each of our contributors for their time and effort spent developing the insightful and thought-provoking essays you are about to read. I would also like to thank our Education (Publications) Subcommittee, and our exceptionally talented designer Tahlia Kho, for their unwavering efforts in bringing this publication to life. Finally, I would like to thank Erika Serrano, President, and Anthony Ayoub, Vice-President (Education), of the UTS LSS, for their continued support and leadership. I sincerely hope you enjoy reading The Full Bench I: Reform the Norm.

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Michelle Deng

2ND YEAR

Bachelor of Communication (Journalism) /Bachelor of Laws

Tamanaw Jaylar

4TH YEAR

2ND YEAR

Bachelor of Business / Bachelor of Laws

Lily Khumalo

2ND YEAR

Bachelor of Communication (Journalism) /Bachelor of Laws

Aryenish Kavarana

2ND YEAR

Bachelor of Medical Science / Bachelor of Laws

Bachelor of Business / Bachelor of Laws

Lara O’Shea

Elysia Cook

Priscilla Spalding

3RD YEAR

Bachelor of Business / Bachelor of Laws

2ND YEAR

Bachelor of Communication (Journalism)/Bachelor of Laws

Elise Matouk

3RD YEAR

Bachelor of Communication (Journalism)/Bachelor of Laws

UNIVERSITY OF TECHNOLOGY SYDNEY

LAW STUDENTS’ SOCIETY

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[03.] I Accept: The Privacy Consequences of Social Media Paris Gavenlock Documenting our everyday lives through various social media platforms has become common practice. To use these platforms, we agree to various privacy policies, but only 20% of Australians read these policies and are confident they understand them.1 This is an alarming statistic, given the information social media platforms can collect about people, both with and without profiles. We have never shared more about ourselves, yet we understand very little about the potential applications and uses of this data. The impact of this is explored in detail in Sacha Molitorisz’s book, ‘Net Privacy: How We Can be Free in an Age of Surveillance’, which observes that ‘data about you can reveal whether you’re gay, or pregnant, or depressed, before you even realise it yourself.’2 The key piece of legislation regulating privacy in Australia is the Privacy Act 1988 (‘the Act’) (Cth), which is currently under review by the Australian Government. Alongside this review, the Privacy Legislation Amendment (Enhancing Online Privacy and Other Measures) Bill 2021 (‘Online Privacy Bill’) has been introduced, which seeks to address the ‘pressing privacy challenges posed by social media and other online platforms’.3 It introduces a binding privacy code, called the OP code, which details how certain private organisations must comply with the Act’s Australian Privacy Principles, and imposes additional obligations on ‘OP organisations’, which includes social media providers.

1. Australian Government,Australian Community Attitudes to Privacy Survey(Survey, September 2020) 5 <https://www.oaic.gov.au/__data/assets/pdf_file/0015/2373/australian-community-attitudes-to-privacy-survey-2020.pdf>. 2. Sacha Molitorisz,Net Privacy: How We Can Be Free in an Age of Surveillance(NewSouth Publishing, 2020) 6. 3. Australian Government,Privacy Act Review(Discussion Paper, October 2021) <https:// consultations.ag.gov.au/rights-and-protections/privacy-act-review-discussion-paper/>.

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We have never shared more about ourselves, yet we understand very little about the potential applications and uses of this data. 4. Explanatory Paper, Privacy Legislation Amendment (Enhancing Online Privacy and Other Measures) Bill 2021 <https://consultations.ag.gov.au/rights-and-protections/online-privacy-bill-exposure-draft/user_uploads/online-privacy-bill-explanatory-paper.pdf>. 5. Diana Di Cecco,‘CMOpinion: The Privacy Act review – are we there yet?’,Mumbrella (online at 30 November 2021) <https://mumbrella.com.au/cmopinion-the-privacy-actreview-are-we-there-yet-715490>. 6. Denham Sadler,‘Privacy Act review delayed as reforms stall’,Innovation Aus(online at 8 July 2021) <https://www. innovationaus.com/privacy-act-review-delayed-as-reforms-stall/>. 7. Molitorisz (n 2) 6.

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The Online Privacy Bill also formalises existing guideline protections for children and vulnerable groups, who are not capable of making their own privacy decisions. This includes imposing requirements on social media services to take all reasonable steps to verify the age of users and ensure that the collection and use of a child’s personal information is ‘fair and reasonable’, in keeping with the best interests of the child.4 Commentary has recognised that reform of the Act has been notoriously slow,5 and even the current review has been plagued by delays.6 Instituting reform in an area where new technology, like social media, intersects with traditional notions of privacy can be difficult. When the Act was first introduced in 1988, online chatrooms were the closest comparison to today’s ‘social media platforms’. However, as observed by Molitorisz, ‘privacy has tended to be an afterthought’ even since the early days of the internet.7

PARIS GAVENLOCK

8. Data Reportal,‘Digital 2022: Australia’,Social media statistics (Web Page, 9 February 2022) <https://datareportal. com/reports/digital-2022-australia>. 9. Diana Di Cecco,‘CMOpinion: The Privacy Act review – are we there yet?’, Mumbrella (online at 30 November 2021) <https://mumbrella.com.au/cmopinion-the-privacy-act-review-are-we-there-yet-715490>. 10. Brady Robards,‘Randoms in my bedroom: Negotiating privacy and unsolicited contact on social network sites’ (2010) (January)Prism Online PR Journal 1. 11. The subject matter and teachings of UTS Law Elective 76105 Disruptive Technologies and the Law inspired this article. 12. Molitorisz (n 2) 22.

I ACCEPT: THE PRIVACY CONSEQUENCES OF SOCIAL MEDIA

The Online Privacy Bill seeks to develop privacy settings that ‘empower consumers’, but the speed at which social media and technology is developing continues to outpace the law. It is very much the norm to have a social media profile on one or more platforms, with 82.7% of Australians active social media users as of 2022.8 Additionally, it was observed only six years after Facebook was founded that abstaining from social media platforms could equate to social exclusion.9 This was at a time when Facebook just had 8 million Australian users. Today, there are approximately 11.56 million,10 and Facebook is just one of many popular social media platforms. 11

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‘privacy has tended to be an afterthought,’

even since the early days of the internet.

PARIS GAVENLOCK

I ACCEPT: THE PRIVACY CONSEQUENCES OF SOCIAL MEDIA

Personally, I never turned my mind to privacy when I first signed up to social media platforms like Facebook and Instagram. I simply clicked ‘I accept’ to any privacy or data policies without reading them. I would like to say as a law student I now know better, but a recent class discussion proved otherwise. I was asked if I had ever read the terms and conditions, to which I had agreed, when purchasing an Opal card.11 I had not and I was not the only one. Although the Opal system keeps record of when and where I travel, I never bothered to research what this information is used for, or how it is stored or recorded. The same can be said of social media platforms. It appears that if convenience outweighs concern,

users are untroubled by the quality of privacy protections, or are simply ignorant and unaware of the frameworks that exist to protect their data. Molitorisz describes privacy as a ‘shapeshifter’ but contends that even if ‘norms are shifting in favour of greater sharing and openness’, the right to privacy must be protected.12 This is a particularly important sentiment, given that further reform to the Act is almost certain as various technologies continue to re-shape our understanding and perception of privacy. For example, smart home assistants like Amazon’s Alexa or the Google Nest, which organise appointments, shopping lists and operate electrical outlets to control lights and power.

When law reform lags, social reform can help incite the development of informal safeguards, capable of responding swiftly to the shapeshifter that is privacy.

Thus, while the protections proposed by the Online Privacy Bill are a necessary and welcome change, I would argue that reform to social attitudes must occur simultaneously. Since 2017, fewer Australians have been taking measures to protect their privacy,13 and if the informal class survey I participated in is any indication, consumers frequently agree to privacy terms they have not read. The Online Privacy Bill seeks to develop privacy settings that ‘empower consumers’,14 but the speed at which social media and technology is developing continues to outpace the law. Social reform cannot replace statute, but if consumers take the initiative to improve their own understanding of privacy laws and their application to social media platforms, we will not be dependent on gradual law reform to empower us. This is particularly important for children and vulnerable groups, who may have little or no say in the creation of their digital identity by others.15 By reforming social attitudes towards privacy and social media, we can seek to repair the disconnect in our understanding that has emerged in our quest for connectivity. Social media users need to be empowered with the knowledge of what they are and are not sharing with platforms. When law reform lags, social reform can help incite the development of informal safeguards, capable of responding swiftly to the shapeshifter that is privacy.

13. Australian Government (n 1) 7. 14. Australian Government,‘Online Privacy Bill Exposure Draft’,Overview (Web Page, 6 December 2021) < https:// consultations.ag.gov.au/rights-and-protections/online-privacy-bill-exposure-draft/>. 15. Jessica Baron,‘Posting About Your Kids Online Could Damage Their Futures’, Forbes (online at 16 December 2018) <https://www.forbes.com/sites/jessicabaron/2018/12/16/parents-who-post-about-their-kids-online-could-be-damaging-their-futures/?sh=53f65fc27b71>.

UNIVERSITY OF TECHNOLOGY SYDNEY

LAW STUDENTS’ SOCIETY

[04.] Australia & Refugee Law: AN ASSESSMENT OF OUR POSITION Georgia Holmes

[noun]

asylum seeker an individual exercising a universal right to seek a foreign country's protection from persecution and harm.

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The likeness of Australian immigration detention and ‘enemy internment’ reflect Australia’s colonial history of ‘race-based exclusion as a way of securing national/racial identity.’ Australia’s 1992 dual refugee processing system has incited divisive and dehumanising rhetoric which victimises displaced persons. This essay will argue that the perpetuation of stereotypes and public policy labelling over three decades has unfairly subjected vulnerable populations to punitive offshore detention. The essay will consider the impact of the recent policy announcement to resettle 450 of Australia’s detained refugees in New Zealand. Importantly, the essay will propose that compassion and global perspective are essential for beneficial reform. The likeness of Australian immigration detention and ‘enemy internment’ reflect Australia’s colonial history of ‘race-based exclusion as a way of securing national/ racial identity.’ Dehumanising labels such as ‘boat people’ and ‘illegal aliens’ have been assigned to vilify displaced persons.1 However, to seek asylum is not a crime; it is a right. By definition, an asylum seeker is an individual exercising a universal right to seek a foreign country’s protection from persecution and harm.2 An asylum seeker becomes a lawful refugee if their claim succeeds, affording them access to international protection under International Law.3 The rhetoric upheld by both major political parties for over three decades culminates in the systematic disenfranchisement of an already suffering population in the pursuit of racist ideals. Australia’s primary legislation relating to displaced persons, the Migration Act 1958 (Cth) (‘the Act’), undermines the essence of International Refugee Law.4 Section 5AA of the Act legalises the indefinite imprisonment of asylum seekers who arrive by boat.5 Recognised con-

1. Kieran O’Doherty and Amanda Lecouteur “Asylum seekers”, “boat people” and “illegal immigrants”: Social categorisation in the media’ (2007) 59(1)Australian Journal of Psychology 1, 1. 2. ‘Refugees, Asylum-Seekers and Migrants’,Amnesty International (Web Page) <https://www.amnesty.org/en/what-we-do/ refugees-asylum-seekers-and-migrants/>. 3. Ibid. 4. Migration Act 1958 (Cth). 5. Ibid s 5AA.

Australia has an inherent duty to protect refugees. sistently by the United Nations (‘UN’) and many other countries, this system of processing refugees in a ‘regional processing country’ violates International Law.6 As a signatory to the Refugee Convention, the central source of rights and security for displaced persons, Australia has an inherent duty to protect refugees.7 The Refugee Convention expressly prohibits nation states from imposing penalties on account of a refugee’s illegal entry or presence.8 Further, the UN Human Rights Committee has found that automatic imprisonment and ‘manifestly inadequate’ ‘domestic procedures for review’ constitute arbitrary detention in breach of the International Covenant on Civil and Political Rights.9 Australian Refugee Law has devastating impacts on those who encounter it. A letter to Parliament written by the Refugee Council of Australia (‘RCOA’) earlier this year elucidates how immigration detention destroys lives.10 RCOA and their partners in Canada jointly sponsor ‘refugees affected by offshore processing’ in Australia.11 Despite working with ‘refugees from across the Middle East, Africa and Asia living in difficult… situations,’ RCOA’s partners assert that they have ‘never seen refugees as mentally unwell as those in locked detention in Australia.’12 The rapidly declining mental health of Australian immigration detainees has been termed a ‘crisis.’13 Common cries amongst those imprisoned in Australia’s offshore processing centres include complaints of the banality of perpetually waiting in an uncomfortable environment. Another is frustration from authorities’ failure to recognise displaced persons as humans with inherent value: ‘“When officer call me ‘0276,’ I said, ‘Oh God! I’ve got name. Your donkey or your dog and your cat has name. I’m a human like you…”’14

6. Refugee Council of Australia,‘UN Member States Challenge Australia’s Refugee and Asylum Policies’(Media Release, 22 January 2021). 7. Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954). 8. Ibid art 31. 9. Human Rights Committee,Views of the Human Rights Committee under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, 108th sess, UN Doc CCPR/C/108/D/2094/2011 (20 August 2013).

10. ‘Letter to MPs on ongoing detention’,Refugee Council of Australia(Web Page, 27 January 2022) <https:// www.refugeecouncil.org.au/letter_to_mps_ongoing_detention/>. 11. Ibid. 12. Ibid. 13. Ibid. 14. Lucy Fiske,‘Human Rights and Refugee Protest against Immigration Detention: Refugees’ Struggles for Recognition as Human’ (2016) 32 Refuge 18, 19.

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I’m a human

like you

Perhaps the most pervasive amongst refugee complaints is the hopelessness and uncertainty of detention. For recognised refugees, the trauma of fleeing an unsafe and persecutory environment is aggravated by every interaction with the system. The government has built anxiety into the legal infrastructure through ‘Temporary Protection Visas,’ which prevent refugees from ever accessing permanent protection. This legally mandated instability forces refugees to live in three-year increments. Dr Seyed Mirwais Rohani, a 32-year-old Afghan refugee who ended his life in immigration detention eloquently explained that the ‘psychological toll of years of detention, combined with the uncertainty and insecurity of having a temporary and ill-defined status in the Australian community did not provide the conditions required for recovery or survival.’15 In early 2022, the Australian Government momentarily wavered from its hard-line approach and accepted New Zealand’s offer to resettle refugees from Australian processing centres. The deal to send 450 refugees to New Zealand was initially proffered in 2013 and has been reiterated by New Zealand at ‘every meeting’ since.16 It is undeniable that the news is positive for the 450, but how does it ameliorate the systemic shortcomings that continue to affect the lives of thousands of displaced persons? Refugee resettlement is an official strategy of the UN usually reserved for when asylum seekers flee to countries 16

15. Michelle Bui et al. ‘Perpetual Insecurity: the weaponisation of mental suffering’,Deathscapes (Web Page, 2018) <https://www.deathscapes.org/ case-studies/perpetual-insecurity>. 16. ‘Why it took Australia nine years to accept New Zealand’s refugee deal’,Full Story, (The Guardian, 29 March 2022) < https://www.theguardian. com/australia-news/audio/2022/mar/29/why-ittook-australia-nine-years-to-accept-new-zealands-refugee-deal>.

GEORGIA HOLMES

AUSTRALIA & REFUGEE LAW: AN ASSESSMENT OF OUR POSITION

Less than 1% of refugees in need are resettled each year, primarily because countries have limits on how many resettled refugees they will accept. 17. ‘Resettlement’,UNHCR The UN Refugee Agency,(Web Page) <https://www.unhcr.org/en-au/resettlement.html>. 18. Ibid. 19. Ibid. 20. Natasha Yacoub,The Conversation,(online,April 7 2022) <https://theconversation.com/aus-nz-refugee-dealis-a-bandage-on-a-failed-policy-its-time-to-endoffshore-processing-180241>. 21. ‘A Platform For Change: Reforming Australian Refugee Policy’(Media Release, April 2022). 22. Jane McAdam,‘Australia and Asylum Seekers’(2014) 25,Views of the Human Rights Committee under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, 108th sess, UN Doc CCPR/C/108/D/2094/2011 (20 August 2013).

that cannot accommodate and support their needs.17 The resettlement strategy was not designed for countries as land and resource-rich as Australia. In 2020, there were 20.7 million refugees in need of resettlement.18 Less than 1% of refugees in need are resettled each year, primarily because countries have limits on how many resettled refugees they will accept.19 We must be cautious in praising the virtue of the New Zealand deal. The absence of sustainability and justice behind Australia’s decision is twofold. Australia is using a mechanism almost exclusively reserved for countries that cannot provide safe living conditions to refugees. In doing so, it is usurping the resettlement positions available in New Zealand for refugees stranded in volatile and impoverished conditions.20 This deal directly misaligns with Australia’s international responsibility to protect refugees.

Right now, organisations and advocates are campaigning for a permanent end to offshore processing and broader reforms to Australian Immigration Law. For example, supporters have cooperatively created a platform for policy change.21 Progress is grievously slow, largely due to the extremely limited public awareness surrounding the issue. The result of Australia’s ‘relative affluence and political stability’ is that Refugee Law has a ‘negligible impact on most Australians’ lives.’22 The reality of refugees is so far removed from most Australians that the issue is ignored. The current system of indifference, cruelty and ‘bandage solutions’ needs to shift from a hyperindividualised focus to a global one, in order to build compassion for the less privileged into our legal infrastructure.23 Australian Refugee Law needs to balance the protection of Australia’s national interests with the humanitarian underpinnings of International Refugee Law.

23. Refugee Council of Australia,‘UN Member States Challenge Australia’s Refugee and Asylum Policies’(Media Release, 22 January 2021).

‘When we deny humanity to others, we dehumanise ourselves.’24

24. Refugee Council of Australia,‘UN Member States Challenge Australia’s Refugee and Asylum Policies’(Media Release, 22 January 2021).

UNIVERSITY OF TECHNOLOGY SYDNEY

LAW STUDENTS’ SOCIETY

BIG COMPANIES

[05.] Big Reform for

Isabella Kidman When considering areas of the law in need of reform, document execution and electronic signing do not typically spring to mind. However, in light of the COVID-19 pandemic, it has become apparent that the need for change in this area is growing.

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CHAPTER 05

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The COVID-19 pandemic significantly adjusted the ways in which Australians work. In early 2020, after the World Health Organisation declared COVID-19 a pandemic and Australians were sent into lock-down, corporate lawyers faced a difficult challenge in transitioning online. This challenge can largely be attributed to a need for reform. More specifically, the Corporations Act 2001 (Cth) (‘Corporations Act’) was in need of significant amendment, particularly in relation to the electronic execution of deeds and documents. In early 2020 and prior, contracts were typically executed physically, pursuant to section 127 of the Corporations Act. Section 127 required that a document be physically signed, and the signature be physically witnessed. Prior to the pandemic, wet ink signatures never presented an issue. However, when companies sent their employees home, it became problematic. The Corporations Act is a federal law which applies to national companies. However, with regards to deeds and agreements, it is legislated at a state level. At the beginning of 2020, both the Corporations Act and equivalent state law had not considered the electronic execution of documents — as they had never needed to. Through the reform of both federal and state laws over the last two years, it is clear that Australia is not united in its response to electronic signing, creating colossal issues for multi-jurisdictional companies.

federal legislation In May 2020, Treasurer Josh Frydenburg introduced temporary measures which governed how companies can sign and execute documents. Under the emergency powers provided to the Treasurer during the pandemic, the temporary amendments to the Corporations Act allowed the electronic execution of documents by companies. This legislation was to expire six months after the commencement date and provided relief to companies operating in a national framework. Companies were able to sign documents electronically after uncertainty for years. However, this uncertainty did not disappear entirely. As the legislation was temporary, there was no guarantee that this approach would be standardised permanently. Additionally, state legislation was incohesive. Nothing further was heard in relation to the temporary legislation until February 2021, when it was announced that the temporary legislation would remain in place until September 2021. However, Frydenburg assured corporations that permanent legislation was coming. That was, until the Senate passed a resolution for extending the date for considering this legislation. This meant that between March and August 2021, Australia reverted back to the pre-pandemic execution of documents. No electronic signatures were permitted on a federal level and all progress had been lost. This was particularly problematic with the emergence of the Delta Variant and another lockdown. After five long months of physical signing required, finally there was movement at the station. In August 2021, the Treasury Laws Amendment Bill was passed by the Senate. While this was highly celebrated by corporate lawyers all across the nation the reality is that it didn’t permanently change anything.

Prior to the pandemic, wet ink signatures never presented an issue. However, when companies sent their employees home, it became problematic. 20

ISABELLA KIDMAN

BIG REFORM FOR BIG COMPANIES

It was certainly a relief to transition back to executing documents electronically with the amendments to sections 127 and 129 of the Corporations Act, but yet again it was only temporary. However, the key difference with the introduction of this Bill was the lack of an expiry date. The temporary legislation was introduced on the premise that the federal government was working to permanently amend the Corporations Act by the end of 2021. Unfortunately, the government missed the boat, and the legislation was not made permanent in 2021. However, in February 2022, permanent amendments were made to the Corporations Act. Companies can now execute documents electronically under section 127. Technically, under federal law, there is no longer a need for wet ink signatures for companies. However, as mentioned earlier, the federal law fails to include legislation of company deeds. The following section will discuss why state law must follow the progress made by the federal law, in order to reform the system and unify Australian law.

Companies were able to sign documents electronically after uncertainty for years. However, this uncertainty did not disappear entirely.

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While this was highly celebrated by corporate lawyers all across the nation, the reality is that it didn’t permanently change anything.

ISABELLA KIDMAN

BIG REFORM FOR BIG COMPANIES

state of law relating to execution of deeds As mentioned, the execution of deeds by companies is governed by state law, not the Corporations Act. Over the course of the pandemic, this has caused a serious lack of cohesion within Australia, and is in significant need of reform. Currently, only New South Wales, Victoria and Queensland allow companies to sign deeds electronically. The law in New South Wales and Victoria is permanent, whereas Queensland’s law still remains temporary. This means if the governing law of the deed to be signed is New South Wales, Victoria or Queensland, the deed can be electronically signed under section 127 of the Corporations Act. However, if the governing law of the deed is Western Australia, Northern Territory, South Australia, Australian Capital Territory or Tasmania, the deed must be signed with wet ink.

However, if the governing law of the deed is Western Australia, Northern Territory, South Australia, Australian Capital Territory or Tasmania, the deed must be signed with wet ink. For national companies, this presents a huge challenge. It also becomes difficult to interact with companies based in other states due to the significant discrepancies in state law. Electronic signing is a relatively new phenomenon but, given the drastic change that the pandemic has brought, it is necessary in order for state and federal governments to allow business to proceed as usual. While Australia has made progress in allowing companies to execute documents electronically on a federal level, differing state legislation continues to present a significant problem. State law regarding the electronic execution of deeds is in need of major reform, in order to allow for cohesion among large businesses in Australia.

UNIVERSITY OF TECHNOLOGY SYDNEY

LAW STUDENTS’ SOCIETY

[06.] Reform is not Enough for Sexual Assault Survivors Charlotte Regan

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It took me eight years to realise I was sexually assaulted by my ex-boyfriend. That was the first problem. You might wonder how on earth it can take so long for someone to realise they were sexually assaulted. Surely you would know, right? Well… no. I was sixteen. Like most teenagers, I had a very narrow understanding of what sexual assault was. I thought sexual assault only occurred if the victim was backed into a corner, forced to have sex against their will, held down kicking and screaming (literally and metaphorically). I did not know anything about sexual coercion. No-one had ever told me. That was my second problem; technically I had said ‘yes’. I was not drunk or unconscious. I had said ‘yes’ knowing full well what was about to happen. I had no education around consent other than what I learnt from my friends and saw on social media. I understood ‘no means no’, but what was a ‘yes’? Was the word itself enough to convey consent? Of course, it took me eight years to realise that I had said ‘no’. I said ‘no’ many times in many different ways. My ex-boyfriend pressured me over the entire course of our relationship. He made me feel obligated to do what he wanted, that sex was something I ‘owed’ him because we were in a relationship. He pushed me for months, despite my clear reluctance. I told him repeatedly that I wanted to wait and that I wasn’t ready. All my protests and reservations fell on deaf ears. He wore me down. I just wanted him to get off my back and stop asking. So I changed tactics. 25

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In the eight years since, I always knew I had not wanted any of it. I knew I had felt pressured. I rationalised that the experience had been physically painful because it was my first time. I am not a psychologist or an expert on trauma, but I guess it took me eight years to connect the dots because of the realisation of what happened to me. Living with the fact that someone had violated my body is a lot to bear. I needed to be in a different place — older and wiser — before I was able to admit to myself that I was a sexual assault survivor. I felt a lot of confusion and conflicting emotions about what to do. My inner firebrand-feminist knew I should report it, but my inner realist knew that getting any sort of accountability through the legal system was close to impossible. I knew the statistics. Only 1 in 10 reported cases of sexual assault results in a conviction. In the ten years to 2017, 1 in 12 sexual assault reports were rejected by police as ‘unfounded’. In the same period, police ‘cleared’ more than 25% of sexual assault investigations without making an arrest or taking other legal action. More than half of those investigations were withdrawn by the victim/survivor. And there is a reason. After everything I had already been through, the prospect of putting my life on hold, going through a gruelling trial, being cross-examined by a lawyer, and having my story picked apart and invalidated was overwhelming. And that was if I was even lucky enough to have my case go to court. I spoke to a detective who told me that because of the absence of a crime scene and the other complications of my case, I would need an admission from my ex-boyfriend to have any chance of getting justice. I know people often spout ‘innocent until proven guilty’. To be clear, I am firmly against imprisoning people arbitrarily without trial. Of course, you need to test the evidence ‘beyond reasonable doubt’, especially when the stakes are so high. It frustrates me that survivors have to clarify that. But what people fail to understand is sex crimes are incredibly hard to prove. These crimes do not happen on the street in broad daylight, in front of oodles of eye-witnesses. There is often a lack of

CHAPTER 06

1 in 10 reported assault results

In the ten years sexual assault repo by police as

CHARLOTTE REGAN

d cases of sexual s in a conviction.

s to 2017, 1 in 12 orts were rejected ‘unfounded.’

REFORM IS NOT ENOUGH FOR SEXUAL ASSUALT SURVIVORS

physical evidence. Even in ‘open-and-shut’ cases with the so-called ‘perfect victim’, it is not straightforward. Often, it is the victim’s word against the perpetrator. We live in a culture where victim blaming is still routine and rape myths abound. There is a confounding belief that rape is a result of men not being able to control their need for sex. Meanwhile, victims/survivors are liars or attention-seekers trying to ‘get back’ at a man. No matter the circumstances, we are always ‘asking for it’. It is no surprise that this affects trial outcomes. In 2018, an Irish man was acquitted of raping a 17-year-old child after his counsel argued the victim’s ‘lacy’ underwear did not rule out ‘the possibility that she was attracted to the defendant and was open to…being with someone’. Underwear is not consent. There is so much shame around being a victim/ survivor. We face an uphill battle just to be believed while perpetrators are given the benefit of the doubt. Ultimately, I chose to make an informal report. The details I provided, including his name, will sit on the NSW Police Force Database. It will not trigger an investigation unless someone else comes forward with an accusation. Justice was never about revenge. I take no pleasure from picturing my ex-boyfriend sitting in a jail cell. It is not even about hearing him say ‘sorry’. What I want is an acknowledgment. I want my ex-boyfriend to know what he did. I want him to know that pressuring someone until they say ‘yes’ is not consent. I want him to know it was a crime. Most importantly, I want his future partners to be safe. He will have other girlfriends. Things are slowly changing. The Affirmative Consent laws in NSW and the introduction of holistic consent education in Australian schools from 2023 are welcome. But legislation and education only go so far. No legislation or curriculum could possibly comprehend the lived experience of victims/ survivors. So, when people scratch their heads and cry ‘why don’t they just report their assault to the police?,’ my response is simple. Given everything we are up against, why would we?

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[07.] Strike Back: Reforming Industrial Action in the Age of COVID-19 Robert Close

...the FWA must allow workers more opportunity to take industrial action 1. Shae McCrystal,‘Why is it so hard to take lawful strike action in Australia?’ (2019) 61(1),Journal of Industrial Relations ,129, 130. 2. Jim Stanford,Historical Data on the Decline in Australian Industrial Disputes (Briefing Note, 30 January 2018) 1. 3. International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976) art 8(1)(d). 4. Andrew Stewart,Stewart’s Guide to Employment Law (The Federation Press, 7th ed, 2021) [18.2].

Australia has some of the most restrictive legislation on workers’ ability to take industrial action in the developed world. The circumstances in which workers in Australia can take industrial action, which may extend to measures such as overtime bans or refusal to wear a company uniform, are generally limited to bargaining for a new enterprise agreement, requiring a complex set of procedures to be complied with. Even when the red tape is conformed with, industrial action can easily be terminated by application from either the employer or the government.1 This legislative system, first enacted by Keating’s Industrial Relations Reform Act 1993 (Cth) and later modified by the Howard government in the Fair Work Act 2009 (Cth) (‘FWA’), has seen a sharp decline in days of work lost to strike action, correlating with a decrease in real wage growth during the same period.2 To help address this poor wage growth, reform of the FWA must allow workers more opportunity to take industrial action, while reducing the ability for this supposedly ‘protected’ action to be terminated. The International Convention on Economic Social and Cultural Rights compels signatory nations to protect the right to strike in Article 8(1)(d).3 With this international obligation in mind, it is perhaps surprising that a majority of the Australian High Court described the ability to take industrial action as a ‘privilege’.4 Australia has been criticised for breaching this international obligation due to highly restrictive requirements placed upon industrial action by the FWA.5 Indeed, Sally McManus, Secretary of the Australian Council of Trade Unions, has described the right to strike in Australia as ‘very nearly dead.’6

5. Paul Karp,‘Why unions are furious about the blocked Sydney train strike’,The Guardian,(online, 26 January 2018) <https://www.theguardian.com/australia-news/2018/jan/26/why-unions-are-furious-aboutthe-blocked-sydney-train-strike>. 6. Esso Australia Pty Ltd v Australian Workers’ Union, [2017] HCA 54, [53] (Kiefel CJ, Keane, Nettle, Edelman JJ).

8. Ibid s 423 - 424. 9. NTEU v Monash University (2013) FWCFB 5982. 10. A Forsyth and A Stewart ‘Of kamikazes and made men: The fallout from the Qantas industrial dispute’ (2013) 36(3)Melbourne University Law Review 785.

7. Fair Work Act 2009, (Cth) s 413(2), s 417 (‘FWA’).

Under the FWA, industrial action may be ‘protected’ if unions and employees meet several requirements. Protected Industrial Action (‘PIA’) may only be taken after bargaining for an expired enterprise agreement has commenced. However, PIA cannot be taken when bargaining for a ‘green-fields’ agreement.7 Part 3-3 of the FWA includes a variety of procedural steps that must be undertaken before PIA is authorised, including applying to the Fair Work Commission to conduct a ballot of members, conducting the ballot so that the PIA may be approved, and complying with various notice periods so that the employer may prepare for the industrial action. Even when these requirements have been met, PIA may be terminated if the action ‘threatens to endanger the welfare’ of the population or cause economic harm.8 This is an extraordinary provision, given much of the power of industrial action stems from disrupting the employer’s business to draw them back to the bargaining table. This provision has been used to terminate the PIA of university lecturers who withheld exam marks from publication, as the welfare of students was said to be threatened.9 If the threshold for termination is this low, it begs the question: what industrial action is acceptable and how effective can it be? Even when unions carefully comply with all requirements and frame their PIA to avoid the harm that may lead to termination, employers can force termination by responding to employee PIA with a lock-out. Effectively, the employer elects to shut down their own business, which, if of certain importance to the economy, will meet the requirements for PIA to be terminated. This occurred in 2011, when Qantas locked-out its engineers, baggage

handlers and pilots. The pilot’s terminated action merely involved wearing non-uniform union ties, and making announcements that supported their bargaining claims on the aircraft.10

Indeed, Sally McManus, Secretary of the Australian Council of Trade Unions, has described the right to strike in Australia as ‘very nearly dead’.

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Allowing workers to take industrial action more easily, and with decreased risk of the action being terminated, would address the power imbalance between workers and employers.

CHAPTER 07

ROBERT CLOSE

STRIKE BACK: REFORMING INDUSTRIAL ACTION IN THE AGE OF COVID-19

Limiting the power of workers to try to influence the bargaining process has been linked to the decline in wage growth in Australia. According to Jim Stanford at the Centre for Future Work, ‘every decline in the frequency of work stoppages of about 60 lost days per 1000 was associated with a one percentage point deceleration in wage increases.’11 The power of industrial action to influence wages and workplace conditions more generally was brought into sharp focus during the COVID-19 pandemic. Under Work Health and Safety (‘WHS’) laws enacted in each state, workers have the power to cease work if there is a ‘reasonable concern’ that the work risks the health and safety of the worker’.12 These stop pages are excluded from compliance with the FWA.13 Workers were able to use WHS committees to demand that employers provide protective mea-

sures such as face masks and alcohol-based hand sanitiser under the threat of work stoppages should these demands not be met. This threat materialised at a meat processing factory in Victoria, where 71 workers tested positive to COVID-19 before workers demanded further protections.14 They successfully returned to work with the demanded protections in place within the day.15 In the wake of the 2022 federal election, there is a general feeling from unions, businesses, the enlarged cross-bench and the incoming government that the FWA requires reform.16 Allowing workers to take industrial action more easily, and with decreased risk of the action being terminated, would address the power imbalance between workers and employers, leading to an improvement in employment conditions and an increase in wages.

11. Stanford (n 2).

15. Ben Schneiders,‘Meat plant workers back on the job after walk-off over growing outbreak’,The Age online, 28 July 2020) <https://www.theage.com.au/national/ victoria/meat-industry-staff-return-to-work-aftercovid-19-walk-off-20200728-p55g2w.html>.

12. See eg,Work Health and Safety Act 2011 (NSW) s 84. 13. FWA (n 7) s 19(2)(c). 14. United Workers union,‘JBS Cold Storage Workers Cease Work Over COVID-19 Safety Concerns’(Web Page, 28 July 2020) <https://unitedworkers.org.au/media-release/ jbs-cold-storage-workers-cease-work-over-covid-19safety-concerns/>.

16. Angus Thompson and Shane Wright ‘Handcuffs on the system: Will wage stagnation play into the polls?’, The Sydney Morning Herald (online, 25 February 2022) <https://www.smh.com.au/politics/federal/handcuffson-the-system-will-wage-stagnation-play-into-thepolls-20220224-p59z9v.html>.

UNIVERSITY OF TECHNOLOGY SYDNEY

[08.] FIRB: Friend or Foe? Aleksandra Chojnacki The COVID-19 pandemic was a stressful, terrifying, and extremely saddening time for so many, if not all, of us. During this extended period of uncertainty, like many governments around the world, Australia became focused on countering threats to its national security. Whilst national security is obviously critical, what effects will these reforms have on genuine foreign investment and investors, and how will it affect the Australian business landscape in the future? In the lead up to the scheduled Foreign Investment Review Board (FIRB) reforms, two drafts were released by the government for public consultation, which were widely discussed and resulted in amendments to the Foreign Acquisitions and Takeovers Act 1975 (Cth) and the Foreign Acquisitions and Takeovers Regulation 2015 (Cth). On 1 January 2021, significant changes to Australia’s foreign investment regime were introduced. The laws were amended to increase scrutiny of transactions that have national security implications, to encourage a more cautious approach by applications seeking foreign investment approval and give the Treasurer new powers to deal with them.

...what effects will these reforms have on genuine foreign investment and investors, and how will it affect the Australian business landscape in the future?

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Under the new ‘national security’ test: 1. Proposed investments concerning a ‘national security business’ or ‘national security land’ are subject to mandatory notification to the FIRB; There is now mandated FIRB approval for ‘notifiable national security actions’ taken by a foreign individual, regardless of the dollar value of the investment. This includes starting a national security business, acquiring a direct interest of 10% or more in a national security business, acquiring an interest in national security land, or acquiring an interest in an exploration tenement in respect of national security land. However, a key issue with these broad definitions is that it is not obvious whether a business falls within the categories of a business that engages in activities relating to Australia’s national security interest. Would investment in two Vodafone franchises be classified as telecommunications and development? Would Blackstone’s acquisition of Crown Casinos fall within ‘commercial real estate’ and be considered a national security risk (given the potential of espionage), therefore requiring review by FIRB? Would a foreign venture capital investor need to voluntarily apply to FIRB if they were to commit large seed round funding to an Australian FinTech start-up showing unicorn potential? Whilst some of those examples may seem farfetched, the risks involved in making the wrong judgement call may be enough of a deterrent against investing at all. This is especially so given it is also unclear to what extent an investor and their advisor must proactively undertake enquiries to determine whether their activities fall within the test.

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2. Investments not notified to FIRB may be ‘called in’ for review by the Treasurer on national security grounds; Where an investment has not been voluntarily notified, it may be called in at any time in the 10 years following the transaction, if the Treasurer believes that the investment may pose a risk to national security. Calling-in is met with a payable FIRB application fee and will then undergo review, resulting in either no objection, or a finding the investment is contrary to Australia’s national security. However, should an investor voluntarily elect to notify under the reviewable national security action provisions, the call-in power is extinguished. And, whilst investors are incentivised to do so via a 25% reduction on the application fee, the fees are generally low for applications relating to reviewable national security actions. As such, the fee reduction may not, in practice, be the determinative factor in voluntarily electing to notify FIRB.

3. In exceptional circumstances, the Treasurer may exercise ‘last resort’ powers to impose conditions, vary existing conditions, or require divestment of approved investments where national security risks emerge.

A more challenging reform for foreign investors is the Treasurer’s new ‘last resort’ power. Whilst three strict control rules for this power provide some comfort to investors and their advisers that it will only be used as a last resort regarding sovereign risk issues, this power provides the Treasurer the authority to review actions on national security grounds — even where FIRB approval has already been obtained. There is no time limit and the consequences may be devastating — up to and including divestment orders. 34

CHAPTER 08

ALEKSANDRA CHOJNACKI

FIRB: FRIEND OR FOE?

... this power provides the Treasurer the authority to review actions on national security grounds — even where FIRB approval has already been obtained. These reforms have also created the perfect opportunity to review existing legislative inconsistencies, which is not good news for private equity and institutional investors. Increased shareholdings from selective share buybacks in capital reductions and increased holdings in offshore holding entities of an Australian entity will now require voluntary notification to FIRB and will be subject to usual monetary thresholds for notification of transactions, rather than the current zero-dollar threshold. Furthermore, the severity of criminal and civil penalties for non-compliance has increased, giving the Treasurer new investigative powers to scrutinise foreign investment in Australia. Previously, an individual investor found to have breached FIRB conditions could be fined up to $166,500 and charged with three years’ imprisonment, and a corporation could be fined up to $832,500. Now, an individual can be fined up to $3,300,000, and 10 years’ imprisonment, and a corporation can be fined up to $3,300,000. The threat of these penalties is intended to act as a deterrent to investors and their advisers. They must consider the nature of the investment, ownership structure, whether the investment exceeds screening thresholds, and the target of the investment and related national security risk. This means that compliance in foreign investment requires a great deal of attention. Further, such increased attention requires more time, energy, money, stress and, potentially, great losses of opportunity. Will that bar be too high for some to jump? Have we, in the pursuit of safety and security, put a slowly tightening noose on Australia’s economic growth? How will the changes to FIRB affect investments in Australia, and what will Australia’s investment ecosystem look like in five years? Will we have protected Australians, or will we have fallen behind? 35

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[09.]

Exploring How Australia’s Lack of Digital Protection Laws have Failed Society’s Most Vulnerable Natasha Lloyd

> P RANKING MY KIDS FOR 24 HOURS **EPIC** > I GAVE MY SON A BLACK EYE TO SEE HOW HIS MUM WOULD REACT!!! **THIS HAPPENED**

These are real examples of videos published by parents online about their children, and these videos alone have over 16.5 million combined views. The rise of ‘family vlog’ style accounts on YouTube, Instagram and TikTok has seen children become the subject of their parent’s careers. Whilst many viewers of family content videos enjoy the genre’s lightheartedness, there is a growing movement against family channels and content based around the creator’s children. This essay will argue that Australia needs more stringent privacy protections for children online. First, it will explore what this type of content typically looks like and the arguments in favour of family vlogs, before turning to issues of consent and exploitation, exploring the absence of effective digital privacy regulation in Australia’s online landscape. 36

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WHAT DOES THIS CONTENT TYPICALLY LOOK LIKE?

Family vlogs centre around the lives of children, who often experience sickness, disability or hardships relating to their school or family lives. Since the appeal of the content stems from the viewer’s ability to gain an intimate look into the lives of others, the genre often involves filming and discussing everyday details of the subjects’ lives, as particular as when they wake up and when they go > W HILST MANY VIEWERS OF FAMILY to sleep. Within the genre, pranking other members CONTENT VIDEOS ENJOY THE GENRE’S of the family is a mainstay, with hidden cameras, elabLIGHTHEARTEDNESS, THERE IS A orate setups and extreme scenarios working to solicit GROWING MOVEMENT AGAINST FAMILY CHANNELS AND CONTENT BASED greater viewership from the channel’s audience. AnAROUND THE CREATOR’S CHILDREN. other distinguishing feature of family vlogs is parents’ speaking on behalf of their children, with many going as far as creating Instagram handles under their child’s name, posting photos exclusively of the child and writing captions from their perspectives. Whilst this started as a uniquely American trend, the family vlogging genre is becoming more popular in Australia, with large channels such as Sarah’s Day, the Norris Nuts, Life with Beans and the Bonnell Family. Section 13 of the Privacy Act 1988 (Cth) is notably silent on the issue in Australia, and currently family vlog content is at the behest of platforms themselves, including YouTube and Instagram, to regulate content in alignment with their terms and conditions.

IN FAVOUR OF FAMILY VLOGS

Before discussing the issues with privacy and consent, it is important to recognise the three main arguments in favour of family vlogging: it is entertaining, it helps to break down family stereotypes and it is informative. The first and most common view can be attributed to an audience demographic made up mostly of children, meaning that pranks and child-focused content are considered engaging. Notably, a number of other content genres exist that incorporate the same content-structure, with adults as the subjects rather than children. Another positive feature of this content lies in its ability to provide a source of income for stay-at-home parents, who are often women. This can help to break down stereotypes associated with being a full-time carer. However, the lives of the women in the families who typically appear in the vlogs conform to traditional expectations of a home-maker who cooks, cleans and cares for the children — an ideology that no longer accurately reflects real life. > F AMILY VLOGGING: 1) IT IS ENTERTAINING, 2) IT HELPS TO BREAK DOWN FAMILY STEREOTYPES 3) AND IT IS INFORMATIVE.

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CHAPTER 09

CONSENT

Although it is clear why the genre has become so successful, there is a more insidious side to it — namely the inability of the children to consent to their depiction online. Opening up children to bullying and critique for parts of their lives that are deeply personal, when they never had the capacity to consent to such information being public, is particularly harmful. The nature of the content makes it uniquely difficult to consent to — family vlogs explore children’s medical experiences, social lives and hardships, rather than lighthearted > O PENING UP CHILDREN TO BULLYING family life. Consent becomes an even more serious issue AND CRITIQUE FOR PARTS OF THEIR given vlogs are typically filmed by parents, with children LIVES THAT ARE DEEPLY PERSONAL, generally featuring as, if not more, heavily. All of this means WHEN THEY NEVER HAD THE CAPACITY that children’s privacy is violated in a way that they never TO CONSENT TO SUCH INFORMATION have the capacity to consent to. BEING PUBLIC, IS PARTICULARLY HARMFUL.

EXPLOITATION

In addition to the total lack of regulation around consent of children, regulation also fails to protect children against exploitation. The ability of family channels to generate revenue depends on those children being featured heavily throughout their content. Often videos will be sponsored by childcare companies and children are expected to participate in the promotion of these products, in addition to an expectation to perform and constantly be on camera for the livelihood of the family. In addition, parents are incentivised to engage in behaviours that are potentially harmful to their children to gain more views, such > P ARENTS ARE INCENTIVISED TO ENGAGE as pranking their children and filming IN BEHAVIOURS THAT ARE POTENTIALLY particularly vulnerable moments such as HARMFUL TO THEIR CHILDREN TO GAIN tantrums, periods of illness and comingMORE VIEWS, SUCH AS PRANKING THEIR CHILDREN AND FILMING PARTICULARLY of-age experiences. Even if parents who VULNERABLE MOMENTS SUCH AS TANTRUMS, create the content are well-intentioned, PERIODS OF ILLNESS AND COMING-OF-AGE the practice is innately exploitative when EXPERIENCES. a family’s earning power derives from their children.

NATASHA LLOYD

THE WILD WEST OF PRIVACY LAW

CONCLUSION

Whilst family content might seem harmless and fun, there is a serious power imbalance between the children who are the subjects of the content, and the parents who curate it for their own benefit. This is made drastically worse by the government’s total silence on the issue and complete lack of regulation when it comes to publishing content about children online. By its very THIS IS MADE DRASTICALLY WORSE nature, family content severely BY THE GOVERNMENT’S TOTAL SILENCE intrudes on the lives of chilON THE ISSUE AND COMPLETE LACK dren throughout their develOF REGULATION WHEN IT COMES TO opmental years, and denies PUBLISHING CONTENT ABOUT CHILDREN them the chance to properly ONLINE. consent to being filmed for an audience of strangers. It opens these children up to criticism and abuse, and can perpetuate outdated stereotypes about the role of women in the home. Thus, reforming the norm of publishing content about children online is long overdue.

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[10.] Get your as* up and work — Advocating for meaningful sexual harassment reform that takes Directors to task Jaya Dadwal

Something insidious has happened to the corporate discourse surrounding sexual harassment in the workplace: it has been mythologised as a relic of the past. Often, we hear older women talk about their experience of discrimination, caveated by a one liner: ‘but it’s much better now.’ Our progress has been weaponised. Celebrating the empowerment of the women who have come forward is seen as evidentiary of the shift the workforce has made. Sure, women are still being harassed but we’re actually listening to them now. Isn’t that great? But, rather than just giving women a platform to discuss, grieve and share their stories, we need to discard the conflation of issue improvement with issue elimination, and accept that just talking about sexual harassment is not enough. One in two women shouldn’t even have these stories to begin with.1 ENTER THE RESPECT@ WORK REPORT.2

JUNE 2022

This report outlines how current legislative frameworks fail to sufficiently protect individuals who experience sexual harassment, and proposes a series of recommendations to address this issue. Several of these recommendations were adopted in the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 (Cth) (‘the Amended Act’) that passed Parliament in September. This article addresses a key recommendation that was not adopted in the Amended Act — Recommendation 17.

The Reform

Sexual harassment is conceptualised in legislation as a reactive phenomenon as opposed to a preventative one.

Recommendation 17 introduces a positive duty on all employers to take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment, and victimisation as far as possible. No such duty exists on a federal level within the Sex Discrimination Act 1984 (Cth) (‘SDA’). Rather, employers may be vicariously liable for sexual harassment by an employee (or agent), when harassment occurs ‘in connection with’ the employee’s employment or duties. The law remains outcome focused. Sexual harassment is conceptualised in legislation as a reactive phenomenon as opposed to a preventative one. Reactive legislation notoriously fails to address the systemic conditions that give rise to the subject incident in the first place. It gives victims a mechanism through which they can seek compensation, but fails to prevent them from suffering harm to begin with.

It gives victims a mechanism through which they can seek compensation, but fails to prevent them from suffering harm to begin with. Alternatively, victims may pursue an action under model Work Health and Safety laws (WHS), which impose a positive duty on officers within organisations to exercise ‘due diligence’ to ensure company compliance with the prescribed duties. The most relevant duty is the elimination (or minimisation, where elimination is not feasible) of risks to the health and safety of workers, so far as reasonably practicable. This duty is broadly defined and sexual harassment is not expressly denoted as a risk to minimise within the Act. Instead, it is absorbed in all other risks an employer may face, allowing its importance to be subsumed. It has been suggested that introducing a positive duty into the SDA would simply duplicate an existing framework, creating further confusion in an area of law that is already complex. 1. Jewel Topsfield,“ABS Report Finds One In Two Women Sexually Harassed, Following Jenkins Report”, Sydney Morning Herald (Webpage, 2022) <https://www. smh.com.au/national/half-of-all-australian-women-sexually-harassed-survey-20211207-p59fd6.html>. 2. Respect@Work: Sexual Harassment National Inquiry Report (Report, 29 January 2020) 451-70 (‘Respect@Work Report’).

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In response to this objection, the corresponding Consultation Paper3 argued that the introduction of an express sexual harassment duty into the SDA would actually complement and consolidate an employer’s pre-existing obligation to eliminate sexual harassment. This can be achieved if the proposed framework informs, rather than competes with the other. Examination of the WHS model highlights the ways in which Recommendation 17 can strengthen pre-existing inter-statute obligations. 3. Consultation Paper: Respect@Work — Options to progress further legislative recommendation (Report, February 2022) 1-53 (‘Consultation Paper’).

CHAPTER 10

JAYA DADWAL

ADVOCATING FOR MEANINGFUL SEXUAL HARRASMENT REFORM

How would Recommendation 17 work? Whilst Recommendation 17 refers to the imposition of a duty onto ‘employers’, the intended meaning of ‘employers’ is undefined, and the scope of the duty’s application is somewhat ambiguous. Within model WHS laws, the duty is imposed upon ‘Persons Conducting Business or Undertaking’ (‘PCBU’). The term PCBU is an umbrella term, and includes companies as legal persons, partnerships etc. Additionally, officers of an organisation must exercise due diligence, to ensure the PCBU complies with its various health and safety obligations, including the positive duty to eliminate sexual harassment. Theoretically, this framework may attribute personal liability to directors, for the sexual harassment of their organisation’s employees:

[the term]

officer

AS DEFINED WTHIN SECTION 9 OF THE CORPORATIONS ACT 2001 (CTH) (‘CORPORATIONS ACT’)

— includes directors. The provision that an officer must exercise due diligence to ensure the PCBU complies with their WHS obligations mirrors 180 of the Corporations Act, which attributes to directors the fiduciary duty of care and due diligence. A director who fails to ensure their organisation has proportionate and reasonable internal policies designed to eliminate sexual harassment, and refrains from remedying identified failures, is in breachof both the officer’s duty under WHS laws and their general section 180 duty under the Corporations Act. This provides a mechanism to hold directors liable in cases of sexual harassment. The legal framework in model WHS laws is under-used. Sexual harassment is cultivated and sustained in complacent corporate cultures that do not take firm positions on professional boundaries and respectful relationships. The tone of a company’s culture is largely influenced top-down. The social paradigm shifts necessary to ensure workplaces of the future are equitable and respectful must be embodied by senior levels of management. Directors are the apex of the management chain and thus are in the best position to generate this cultural shift. However, current rates of sexual harassment (1 in 2 Australian women),4 indicate that this culture shift is not happening. 4. Kate Shuttleworth,“More Than 1 In 2 Women Harassed At Work: Survey”,Actu. Org.Au (Webpage, 2022) <https://www.actu.org.au/actu-media/media-releases/2018/more-than-1-in-2-women-harassed-at-work-survey>.

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Sexual harassment is cultivated and sustained in complacent corporate cultures that do not take firm positions on professional boundaries and respectful relationships.

MORE THAN 1 IN 2 WOMEN HAVE BEEN SEXUALLY HARASSED AT WORK.4

Bluntly, the most efficient way to incentivise directors to take responsibility for their company’s culture, is to increase the risk of personal liability. Adopting Recommendation 17 to introduce a positive duty into the SDA, that mirrors the WHS framework, doubles the pre-existing litigation risk for directors. It also re-enforces the necessity of company measures to pre-emptively eliminate sexual harassment. Recommendation 17 actively tackles cultural complicity and the systemic circumstances in which sexual harassment arises, whilst also providing a secondary mechanism for victims to seek compensation.

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[11.] The Race for Law Reform: Uncovering the Grey Areas Lara O’Shea

Canine creatures have long been called man’s best friend, and adored by many, yet there remains slow progress in protecting these loveable creatures from harm. Numerous scandals have arisen regarding animal welfare, with an inquiry exposing the cruel treatment of greyhound race dogs in 2015. More recently, the Bourke Shire Council attracted criticism in 2021 for shooting 15 rescue dogs and puppies, despite animal rescue organisations offering to help rehome them. Both these shocking incidents have prompted reform in the animal welfare sphere. However, these measures do not adequately address the inhumane treatment of animals, as the reforms lack supporting efforts to ensure effective administration of the law.

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Greyhound racing in Australia

The 2015 Special Commission of Inquiry into Greyhound Racing in New South Wales, headed by the Honourable McHugh J, sought to uncover and address the brutal treatment and protocols used within the industry. This led to the discovery of live bating, animal cruelty and ‘wastage’, which prompted a recommendation for the industry to be ceased, aligning with local and international expectations. However, the NSW government instead founded the Greyhound Welfare and Integrity Commission (GWIC) through the enactment of the Greyhound Racing Act 2017 (NSW) (the Act), which introduced standards detailing how the industry needed to operate. This included banning live baiting and ensuring the enforcement of better conditions. What seemed like a step in the right direction was, in practice, a facade to appease the public, rather than enact any substantive change.

What seemed like a step in the right direction was, in practice, a facade to appease the public, rather than enact any substantive change.

In 2020 the Animal Justice Party conducted investigations which found limited improvements to the overall wellbeing of greyhounds and an increase in the rate of injury. The inquiry also revealed that no improvements were made to the quality of racetracks and that loopholes in the industry allowed for the ‘wastage’ and killing of greyhounds. These are all perpetuated by an underlying issue — the lack of accountability and transparency surrounding this industry. The 2017 legislation defines a greyhound as one which is ‘owned or kept in connection with greyhound racing’. This, in turn, excludes protection of retired greyhounds. Many retire due to injuries sustained while racing or stemming from age. This has resulted in a lack of records for race-dogs. Data reveals a gap in greyhound race dog records from 2017-2019, with over 7,500 greyhounds unaccounted for. However a shocking discovery in 2018 found a mass grave of unaccounted greyhound deaths at Marsden Park. This illustrates how the introduction of these laws have proved little benefit to the wellbeing of greyhounds.

LARA O’SHEA

THE RACE FOR LAW REFORM: UNCOVERING THE GREY AREAS

In 2020, a statutory review into the legislation was undertaken to determine whether the Act was valid and appropriate. This step provided some hope into the welfare of greyhounds. The findings were delivered in 2021 and declared both to be true. It also recommended the introduction of 16 amendments, mostly surrounding licensing, administration, greater transparency and increased compliance. A few alterations have been made to the Act, mostly addressing administrational issues, promotion of ethical breeding practices, ensuring owners care for the greyhounds responsibly and ensuring adequate rehoming. However, once again, these amendments were developed without improvements to the industry’s accountability and transparency practices, limiting the true effect on the wellbeing of greyhounds.

Recent bans regarding ‘convenient’ animal killings in shelters

This cruelty and lack of consideration for the welfare of animals extends beyond the racing industry, with recent controversies highlighting the horrific mistreatment of innocent animals in shelters. As noted earlier, the 2021 incident involving Bourke Shire Council sparked immense outrage within the community. Unfortunately, this was not an isolated incident as each year pounds and shelters kill more animals than they rehome. ‘Convenient killings’ refers to the killing of healthy and likely rehomeable animals. This is often due to insufficient resources and a lack of liaison with rescue organisations. Fortunately, in 2022 the Companion Animals Amendment (Rehoming Animals) Bill 2021 was passed, banning convenient killings and mandating animal shelters to work with rescue organisations to assist in the rehoming process.

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‘Convenient killings’ refers to the killing of healthy and likely rehomeable animals.

LARA O’SHEA

Where do we go from here?

THE RACE FOR LAW REFORM: UNCOVERING THE GREY AREAS

The greyhound racing industry and the treatment of animals in shelters presents a glaring look into the domestic animal industry, with mistreatment and harm being constantly uncovered. Indeed, there have been steps in the right direction for both these issues, however, for greyhounds these have been quite small and fail to address overarching issues of accountability and transparency. This inevitably leads to the inhumane treatment of race dogs. Despite recent changes to the legislation regulating the treatment of animals in shelters, an accurate evaluation of their success and the effect on the wellbeing of these animals cannot yet be measured.

The root of the greyhound racing problem is the lack of funding towards the GWIC to ensure these standards and protocols are adhered to by the industry.

However, it must be noted that neither of these issues will be adequately addressed without appropriate funding. The root of the greyhound racing problem is the lack of funding towards the GWIC to ensure these standards and protocols are adhered to by the industry. The development and introduction of a system that tracks the lifespan of greyhounds will ensure appropriate treatment during and after their career. These measures, which ensure the wellbeing of greyhounds, must be prioritised. Similarly, animal shelters have almost always had funding issues, relying on volunteers and donations for most of their functions. As inhumane as convenient killings are, they occur because of financial and time constraints. Although now illegal in NSW, similar practices will continue if additional resources are not provided. However, ideally more animals should be rehomed before this stage is considered. This can be achieved by making cooperation between rescue organisations and shelters mandatory, which will ensure a step in the right direction for these innocent animals.

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LAW STUDENTS’ SOCIETY

THE FULL BENCH

[12.] Achieving Fairness and Equality Before the Law For African Australians Priscilla Kyei Media representations of African Australians’ interaction with the law are often reduced to racialised and discriminatory language. Such rhetoric from public debates has filtered into the judicial space, influencing the achievement of fairness and equality before the law for African Australians. This paper will explore this notion through three lenses; theoretically contextualising social influences on the application of the law; responses of legal and social institutions; and proposing a judicial administrative reform. This critical discourse aims to reform the ‘norm’ of positions of law that have formed unjust outcomes and unequal experiences for African Australians.

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Theoretically contextualising social influences on the application of the law ...the legal system and its judicial processes institutionalise a notion of tolerance of their experiences 1. Nora Hanagan ‘Preferring Justice to Order: Martin Luther King on Responsibility, Extremism and Democratic Politics’ In Democratic Responsibility: The Politics of Many Hands in America(University of Notre Dame Press, 2019) 236. 2. Ibid.

Theoretic literature offers a unique view of social realities, often challenging the perspectives and constructs of authoritative institutions. Theoretical standpoints call into question whether the treatment of a particular social demographic is an expansion of punitive procedural and substantive law structures. Contemporary democratic theory exposes how liberal society prioritises individual rights over the social responsibility to investigate unequal distribution of power in structural justice spaces.1 African Australians have encountered the post-racial illusion of multiculturalism where the legal system and its judicial processes institutionalise a notion of tolerance of their experiences, thus removing critical racialising factors.2

The racialised media narrative of African Australians is also a credible source of unacademic analysation in this discourse. Arguably, the news media disseminates strategic portrayals of this demographic to impart biased legal treatment and harsh penalties. The government’s draconian Migration Amendment Act 2014 (Cth) provides reprimanding crime measures, which permit visa cancellations and deportations under the guise of maintaining public safety. 3 Such an amendment was furthered by media publications, serving as a tool for the government to control ‘unstable’ and ‘violently dangerous African gangs’.4 On the contrary, there is no courtapproved evidence of operating African gangs in Australia.5 Inaccurate media dialogue has continued a strained relationship between many African Australians and the legal system.6 Social representations theory is instrumental in deconstructing how authoritative bodies manipulate views of certain demographies, especially that of refugees and immigrants, to enforce discriminatory practices as rational policies.7 The ignorance of these social perceptions affects legal functions of achieving fairness and equality before the law for African Australians. 3. Joshua Kalemba,‘Global South to Global North youth migration: a decolonial exploration of Black African youth experiences of migrating to and being in Australia’ [2021] Journal of Youth Studies 1, 4. 4. Mandisi Majavu,‘The ‘African gangs’ narrative: associating Blackness with criminality and other anti-Black racist tropes in Australia, African and Black Diaspora’ (2020) 13(1)An International Journal 27, 32.

5. Ibid. 6. Kathryn Benier, Rebecca Wickes and Claire Moran ‘African gangs’ in Australia: Perceptions of race and crime in urban neighbourhoods’ (2021) 54(2) Journal of Criminology 220, 220. 7. Ibid.

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Responses of legal and social institutions Feeling uncomfortable and fearful around law enforcement is not reflective of the notion that all social members can be viewed equally by the law without doubts of racial prejudice. 8. Tebeje Molla,‘Racial moral panic and African youth in Australia’ (2021) 84(1)International Journal of Intercultural Relations 95, 97. 9. Stephane Shepherd, Aisling Bailey, and Godwin Masuka ‘The Experiences and Perspectives of African- Australian Community Service Providers Who Work with At-Risk and Justice-Involved Youth’ [2021] International Journal of Offender Therapy and Comparative Criminology 1, 4. 10. Ibid.

Proposal for judicial reform 11. Australian Human Rights Commission African Australians: human rights and social inclusion issues project (Report, June 2010) 158. 12. Daniel Haile-Michael, ‘Profiled’ In Maxine Beneba Clarke (ed), Growing up African in Australia (Black Inc., 2019) 102, 103. 13. Ibid 221. 14. Katie Fraser, ‘Out of Africa and into Court: The legal problems of African Refugees’ (June 2009) Footscray Community Legal Centre 1, 46. 15. Criminal Law (Raising the Age of Responsibility) Amendment Bill 2021 (Cth) 31.

To encapsulate a holistic perspective of the relationship between African Australians and achieving equality before the law, external legal and social institutions contribute a unique and more personable perspective to this debate. For African Australian youth in particular, who have migrated to Australia, the legal system and the application of the law have habitually failed to recognise the extent of how mitigating circumstances compels individuals to engage with the legal system. These factors may include trauma from previous countries, family breakdowns, financial stress, and fragile wellbeing due to social acceptance.9 Cultural adaptability and its impact on legal comprehension — although recognised by social hubs as a main legal barrier for African Australians10 — as well as negative experiences with law enforcement evidence inequality before the law. The Australian Human Rights Commission reported African Australian experiences with police to be from perceptions of racial profiling, over-policing, a saturation of officers in more ‘African populated neighbourhoods’, and extended surveillance issued by the federal police.11 Such information constitutes targeted legal measures that are unequally distributed across varying Australian social groups. Feeling uncomfortable and fearful around law enforcement12 is not reflective of the notion that all social members can be viewed equally by the law without doubts of racial prejudice.

Unfair social portrayals inform the perception of crimes that involve African Australian victims. Crimes including murders of African Australian young people like Liep Gony in 2007 were quickly assumed to be African gang-related, only for it to be revealed that two white men were responsible for the action.13 Systematic change can substantially influence reforming the social norm of racialised crime for African Australians. This change can act as an avenue for the recognition of possible unfair judgments and penalties delivered by judicial officers who appease discriminatory social demands. Change can be implemented through the introduction of increased coordination with legal centres to ensure African Australians narrate their life stories more clearly before the court. The African Legal Service would be critical in providing documented research, with the potential to serve as a guide to legal officers to articulately comprehend how African Australians may interpret or misinterpret Australian laws, regulations, and systems.14 The practicality of this strategy is preliminarily explored in the Criminal Law (Raising the Age of Responsibility) Amendment Bill 2021. The Queensland African Communities Council facilitates legal educational workshops which have ensured many African Australians are aware of their legal and judicial rights to assist in addressing impartialities that occur during court proceedings.15

PRISCILLA KYEI

ACHIEVING FAIRNESS & EQUALITY BEFORE THE LAW FOR AFRICAN AUSTRALIANS

This change can act as an avenue for the recognition of possible unfair judgments and penalties delivered by judicial officers who appease discriminatory social demands.

Conclusion This essay explored how social perceptions and media exacerbation of judicial processes are interrelated in African Australians achieving fairness and equality before the law. This essay proposed strategic reform of the presentation of evidence provided in court so as to better incorporate direct perspectives of the African Australian community and evade misrepresentation by the court. Such a proposal would also influence the approaches judicial officers apply to criminal penalties and understand the positions of victims in cases that involve African Australians. Reforming this norm will consequently improve the wellbeing and social livelihoods of African Australians. 53

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LAW STUDENTS’ SOCIETY

[13.] Cracks creating a paradise for financial deceit

Currently, Australia is the ‘paradise’ for white-collar crime, which has been experienced by over 57% of Australian companies in the past two years.1 The quest for fortune has seen individuals, corporations and government bodies lose millions of dollars through Ponzi schemes, tax evasion, fraud, and other forms of white-collar crime. The recent 2020 vanishing act of Melissa Caddick saw her create an estimated $40m Ponzi scheme and made her one of Australia’s most severe whitecollar crime cases.2 Furthermore, the 2016 insider trading case of Oliver Curtis and John Hartman saw them both jailed for two years and 15 months respectively.3 54

Brittany Cairns

What is white collar crime? Some forms of white-collar crime include fraud, bribery, tax evasion, insider trading and money-laundering. White-collar crime is defined as ‘financially motivated nonviolent crime committed by business and government professions.’4 However, offences committed by individuals have grown exponentially in Australia and the world. All in the quest for financial gain, and creating financial poison in the process. Westpac was convicted of money laundering in 2020 and fined $1.3 billion. This was the largest fine to date for white-collar crime related offences, however no Westpac executives were jailed as a result.5

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1. Sam Mitchell and Joyce Moullakis, ‘Australia a “paradise” for white collar crime; The Australian Financial Review (online, 22 October 2014) <https://www.afr.com/companies/australia-a-paradise-for-white-collar-crime20141021-11blos> 2. Kate McClymont, ‘Con artist of the century: Investors fear Melissa Caddick stole $40m’, The Sydney Morning Herald (online, 4 December 2020), <https://www.smh.com. au/national/nsw/con-artist-of-the-century-investorsfear-melissa-caddick-stole-40m-20201204-p56kn8.html>.

However, in comparison, their 2020 net profit alone was $2.292bn.6 Questions were raised as to whether the charges were inadequate or too harsh. The fact that banking executives did not accept liability for their actions, breaching their executive duty in conjunction with the Corporations Act 2001 (Cth) (‘Corporations Act’), and were not criminally charged raises alarm bells. Although Westpac’s CEO, Brian Hazter, resigned in 2019 following the scandal, he received no jail time. This clearly demonstrates the moderate treatment of white-collar crime offences for individuals and corporations. Despite several reviews from ASIC and Senate Economic Reference Committees to provide

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3. Misa Han, ‘Oliver Curtis and John Hartman: two privileged young men broke the lsw and turned on each other’ Australian Financial Review (online 3 June, 2016) <https:// www.afr.com/politics/oliver-curtis-and-john-hartmantwo-privileged-young-men-broke-the-law-and-turned-oneach-other-20160531-gp7t2p>. 4. Penalties for white-collar crime and corporate and financial misconduct in Australia (n 1) 2.

recommendations to reform white-collar crime legislation, the path to reform the norm has been stagnant. There is a common theme of penalties for white-collar crime being inadequate, conveying Australia’s soft treatment within this area compared to its international counterparts.

5. James Eyers, ‘Westpac settles AUSTRAC case for $1.3b’, The Australian Financial Review (online 24 September 2020) < https://www.afr.com/companies/financial-services/westpac-settles-austrac-case-for-1-3b-20200924-p55ymt>. 6. Westpac, 2020 Annual Report, (Report, 2020) <https://www. westpac.com.au/content/dam/public/wbc/documents/pdf/aw/ ic/Westpac_AU_2020_Annual_Report.pdf>.

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Issues with the current approach to white-collar crime The current prevailing issue is the inconsistency of high evidentiary standards of proof against the low penalties given. The high evidentiary conventions that apply in proving white-collar offences allow corporations and individuals to escape sufficient liability under the Corporations Act, despite breaches of ethical responsibility. Corporations with ‘superior legal and financial resources can ultimately wear down ‘regulatory and prosecutorial agencies’ ultimately causing settlements that fall far below full accountability for breaching the law.7 Companies will extend litigation to drain the regulator’s resources and encourage a settlement that fails to hold them sufficiently accountable for breach.8 For example, in 2021, Westpac’s statutory profit increased by 138% to $5.48 billion, yet their money laundering scandal fine was $1.3bn. Furthermore, there is a large inconsistency between state and Commonwealth provisions, particularly in the level of penalties awarded for white-collar offences.9 This inconsistency brings to the fore the lack of uniformity in the law. In evaluation, significant changes are needed to reform the norm of whitecollar crime.

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...high evidentiary conventions that apply in proving white-collar offences allow corporations and individuals to escape sufficient liability.

Path to reform The path to reform started with the 2014 reports from both ASIC and Senate Economic References Committee, expressing the importance of reviewing the legislative penalties for white-collar crime. In 2016, the federal government introduced the ASIC Enforcement Review Taskforce to determine whether criminal and civil penalties for white-collar crimes and contraventions of ASIC legislations were sufficient. However, over the last five years, there has been no substantial change in the approach to penalising white-collar crime. There are still many loopholes that white collar criminals exploit — all for the quest for fortune.

OVER 57% OF AUSTRALIAN COMPANIES HAVE EXPERIENCED WHITE-COLLAR CRIME IN THE PAST TWO YEARS.

CRACKS CREATING A PARADISE FOR FINANCIAL DECEIT

BRITTANY CAIRNS

Push for reform Increasing penalties is the most pressing area where reform is needed. There needs to be a substantial change to the Corporations Act for maximum imprisonment sentences. Rather than a fine and a maximum of two years’ imprisonment, ten years’ imprisonment would hold individuals and company executives to account for illicit activities, and deter others from committing related offences. Reform on the evidentiary standards and ‘rules of procedure’ on civil and criminal proceedings needs to be implemented to hold corporations and individuals accountable for illegal acts that seek financial gain. Furthermore, proposed increases in monetary penalties in proportion to a corporation’s annual net profit should be enforced to ensure corporations are held accountable for deceptive activities. If Westpac had incurred a greater fine, costing more than their net profit for the year, this would be greatly consequential. In addition, companies would not have sufficient funds to extend litigation to force regulators to settle and ‘drain out’.10

...over the last five years, there has been no substantial change in the approach to penalising whitecollar crime.

Conclusion Australia continues to be a ‘paradise’ of white-collar crime due to the lack of uniformity and lenient approach to penalties. The cracks in the moderate approach are causing financial gain for some, as well as allowing large corporations to escape with inadequate punishment. Despite the several Senate reviews and ASIC inquests to review and recommend change, reform of white-collar crime remains stagnant. Will Australia continue to be a paradise for the illegal quest for financial gain, or will a stricter approach to penalising offenders be introduced?

7. Senate Standing Committees on Economics,Parliament of Australia,Lifting the fear and suppressing the greed: ‘Penalties for white-collar crime and corporate and financial misconduct in Australia,’ Report,March 2017 4 (‘Penalties for white-collar crime and corporate and financial misconduct in Australia’). 8. Ibid. 9. Mirko Bagaric and Theo Alexander,‘A Rational Approach to Sentencing White-Collar Offenders in Australia’ (2014) 34,Adelaide Law Review , 318,321. 10. Senate Standing Committees on Economics,Parliament of Australia,Lifting the fear and suppressing the greed: ‘Penalties for white-collar crime and corporate and financial misconduct in Australia,’ Report,March 2017 4 (‘Penalties for white-collar crime and corporate and financial misconduct in Australia’).

UNIVERSITY OF TECHNOLOGY SYDNEY

LAW STUDENTS’ SOCIETY

[14.] The Role of Law Reform in Protecting the Future of Australian Families Priscilla Spalding In recent years, the government and the media have addressed the ongoing need to amend the law to protect families who rely on the legal system and provide them with the best outcomes for their children. The Family Court hearing process changed drastically in 2021, following the Commonwealth’s decision to merge the Family Law Court with the Federal Circuit Court. The Australian Law Reform Commission has made two proposals to amend the Family Law Act 1975 (Cth): one in 2020 and one in 2021. 1,2 These reports have been tabled by members of Parliament but are yet to be actioned. The passing of bills or successful law reform will provide the support for the interests of children that mustbe seen in our legal system to help shape the future. The Australian Government has acknowledged the need to engage in reform for victims of family violence. However, the media has shunned light on many women who have previously lost their lives to domestic abuse. This issue has been a confronting reality for many Australians who are fighting for change. In 2017, Malcom Turnbull expressed his concern and acted through law reform to protect women experiencing violence. In his address at the White Ribbon Day Parliamentary Breakfast, he expressed his concern that the ‘law has not provided the necessary safety and reprieve for victims.’3 He also announced an amendment to the Family Law Act 1975 1. Nora Hanagan ‘Preferring Justice to Order: Martin Luther King on Responsibility, Extremism and Democratic Politics’ In Democratic Responsibility: The Politics of Many Hands in America(University of Notre Dame Press, 2019) 236. 2. Ibid. 3. Malcolm Turnbull, Address at the White Ribbon Day Parliamentary Breakfast 5 December 2017.

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(Cth) (‘the Act’), to ensure that the Act no longer allowed for perpetrators to directly cross-examine a victim. This change was significant as victims often feel too afraid to attend court as a witness when facing perpetrators. However, there are still several areas of the Act that have not been reformed to address other issues affecting families in the court process. Any law reform which addresses the hardship experienced by those who need to attend court as a witness is a significant change. However, the level of action taken by the Turnbull Government to address family justice issues is not something that continues to be demonstrated.

the ‘law has not provided the necessary safety and reprieve for victims.’

Amendment and passing of legislation designed to assist all people experiencing a family legal matter will lead to change in society and the lives of Australian families. In 2019, the Australian Law Reform Commission published a report suggesting 60 ways that the family legal system in Australia can be improved. The proposed amendments included ways to achieve justice for domestic violence victims and children. Sections 4-10 suggested ways that the law can recognise justice for children as well as enhance its enforceability in court. This included simplifying the Act so that it is understandable for families, as well as simplifying the factors which need to be considered by the court to promote the best interests of the child. This would include removal of mandatory and specific living arrangements. The report also provided a solution to the lack of compliance with children’s orders, suggesting increased engagement with family consultants and limitation of the number of items in which a party can call an interim court hearing.

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A common problem which occurs in family law hearings is a lack of voice for the child. Recent changes to the family law system as well as recurring social problems further highlight the need to ensure reform of this issue occurs soon. In 2021, the Family Court ceased to exist. The Family Court has now been merged because of the 2019 Australian Law Reform Commission Report, tabled by Christian Porter. His main argument for this change was that merging the courts would result in less opportunity for the voice of the child to fall through the cracks. This decision was heavily opposed by the Labour Party and the crossbench.4 It is important Australia continues to uphold the rights of children, not only by abiding by the International Covenant on the Rights of the Child, but by extending domestic protections beyond this obligation. Ensuring that the legal system is especially fair to the children of divorced couples is necessary, as injustice is heavily seen when children’s needs are overlooked. It is unfortunate that in many circumstances children are to adhere to what

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their parents desire. However, the closing of the Family Court is one of the most heavily criticised bills ever passed. Angela Lynch, CEO of Women’s Legal Services Australia, noted that abolishing the Family Court now places a restrain on the ability of the legal system to have specialists deal with matters. Hayley Foster, CEO of Women’s Safety NSW, also commented that it will be a traumatic experience for domestic violence victims to have to have their case re-heard in an entirely different court.5 Alternatively, Porter and the Morrison Government’s decision to close the Family Court was also based on the inference that combining the courts would reduce backlog and costs incurred by the legal system. This change has demonstrated that there is potential for the government to emphasisethe need for change in the family legal system. Adhering to the suggestions outlined in the Australian Law Reform Commission report would further support justice for families.

A common problem which occurs in family law hearings is a lack of voice for the child.

THE ROLE OF LAW REFORM FOR THE FUTURE OF AUSTRALIAN FAMILIES

PRISCILLA SPALDING

In conclusion, reforming the Act is something that has been given much attention in recent years, but is still yet to see change in some respects. Ensuring that families get the best legal support is important to ensure children receive favourable outcomes, despite being subject to their parents’ decisions. Furthermore, greater legislative measures and funding towards protecting domestic violence victims is also an area of law and government policy that can be at the forefront of ensuring access to justice is delivered for victims of family violence. By adhering to suggestions made by the Australian Law Reform Commission and increasing awareness of the volume of family law issues that occur, justice for families will improve significantly.

Michael Pelly, Family Law, Class Actions top Porter agenda (2021) Financial Review. https://www.afr.com/ politics/family-law-class-actions-top-porter-agenda20210208-p570n5

5. Kishor Napier Raman, ‘Christian porter finally abandons the federal court’ (2021) Crikey. https:// www.crikey.com.au/2021/02/19/christian-porter-family-court-one-nation/

It is important Australia continues to uphold the rights of children... by extending domestic protections beyond this obligation.

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LAW STUDENTS’ SOCIETY

THE FULL BENCH

JUNE 2022

[15.] The Norm for Law Students Mark Curry

What is the norm for a law graduate? Presumably to become an amazing solicitor or barrister? Well, that may not be the case for some of you. The Australian Financial Review recently revealed that almost 15,000 students graduate from law school every year into a profession that consists of only 66,000 solicitors. Doesn’t add up, does it? Unsurprisingly and fortunately, it is common for law graduates to work in areas indirectly related to law, or in different professions. The degree is a sensational launching pad into many industries. I encourage you to complete it, but I also encourage you to start thinking about what you want to do after graduation. I say this because I never took the time to explore my likes and interests until I completed university and was working in a top-tier firm. I would sit at my desk wondering how I got there and realise I was sitting in the seat of someone who would much rather be there. Discovering what I really wanted to do was a slow but liberating task. It took a long time, and I’m still

not 100% certain about what I want. But I do feel a lot better getting up every day doing what I do now. Everyone has a passion and taking the time to find it is worthwhile. I do not plan on deterring you from the legal profession in any way. It may turn out to be everything you ever wanted and more. But, I want to warn that it may leave you feeling unfulfilled and jaded. It is an amazing job, but it is not for everyone. You must find something that really drives you. I left my corporate gig as a lawyer and started a business I’m truly passionate about. Savvy Beverages helps people’s mental performance and health. It is a totally different industry and I feel out of my depth daily. Starting a business was extremely challenging, but the skills I developed from working as a solicitor really helped me get started. Having a law degree is extremely helpful whether or not you choose to practise law. I will now go through the steps that led me to make this decision. If you have any questions, please get in contact with me.

First step — Be real with yourself

Second step — Find purpose

Third step — Try to make sense of it all

I was a lawyer for over a year when I realised I wasn’t happy. I was told to stick it out and keep going. It took me a while before I actually did something about it. I began doing ridiculous things to fill the void. I tried to up-skill myself by learning how to play American football, brew beer, do opera singing, play piano, and sadly the list goes on. I realised I needed to give myself permission to leave my job. To do something that empowers me. To change my lifestyle and work on myself. I was always doing something and rarely had the chance to sit and self-reflect. No matter how I cut it, the bulk of my time was spent doing something I didn’t enjoy and I knew, deep down, I was wasting time. So I made change an urgent priority.

I attempted to find some sort of passion. This was awkward. I seemed not to have one initially. I felt inadequate. I was missing some key and fundamental drive that others seemed to have. However, I discovered that replacing the question ‘what should I do with my life?’ with ‘what is an important way to use my time?’ It was easier to unpack. I decided to dig deeper and searched online for ways to find my passion. I took any kind of sage wisdom from supposedly reputable websites. I searched for things like: • ‘How to find your passion’ • ‘Personality tests’ • ‘How to find out what is important to me’ • ‘Jobs I’m suitable for’ I did a lot of soul-searching alongside personality and job-aptitude tests to find my ‘passion’. It’s eye-opening to think about why you think and enjoy the things you do. It took me a few years to figure out how to connect the dots. Hopefully, you can do it quicker!

What I did: 1. I planned the day out. I purchased an A3 visual arts diary and a lot of colourful pens. 2. I called in sick one day, so I had the house to myself. Put on my trackies and got myself comfortable with a cup of tea. 3. I searched a few websites looking for inspiration about the type of questions to ask myself. I only wrote down the most intense questions. 4. I turned off my phone and focused solely on these questions. I wrote them down and thought deeply about each one, writing down everything I could. Make sure you really consider your answers and are brutally honest with yourself. 5. I used the ‘five whys’ technique. I asked myself: ‘why did I write that?’; ‘why is that important to me’; ‘how does that make me feel?’; and ‘why does it make me feel like that?’ The mere act of writing out all these thoughts is amazing! Your feelings are out of your head and on a page. 63

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‘Don’t worry about what the world needs. Ask what makes you come alive and do that, because what the world needs is people who have come alive.’ — Howard Thurman

MARK CURRY

THE NORM FOR LAW STUDENTS

Third step — continued

Once they were out on a page, I had a better idea of what I wanted to do. With this new realisation I began to mould a rough idea of the steps I needed to take. I had dreamt of a nutrition business for many years, and I knew if I didn’t act, I never would. Instead I would have allowed myself to remain in the comfort and familiarity of the law firm I worked at. Not acting upon my dream was suffocating. So, I wrote and tendered my resignation letter. I was terrified. Right after quitting I literally Googled, ‘how to start a supplements company.’

I had dreamt of a nutrition business for many years, and I knew if I didn’t act, I never would. When things became clearer, I got the courage to take bigger steps. I developed a supplement that improves brain function and addresses mental health from scratch. Having created a brand in mental performance and wellbeing, I hope to improve people’s lives by educating them about the importance of nutrition for the mind and body.

Not acting upon my dream was suffocating.

This move enabled me to tie many of my interests into one. It is only the beginning, but so far it is absolutely fantastic. Don’t rush yourself too much. It took me about two years before I made the leap and decided to change jobs. But, don’t wait around - start the process now! Do it today! If I can do it, you definitely can!

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LAW STUDENTS’ SOCIETY

THE FULL BENCH

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[16.] Stranded: Observations on a Stagnant Sai Muthukumar Refugee Law Framework

1. Violeta Moreno-Lax and Efthymios Papastavridis (eds), ‘Boat Refugees’ and Migrants at Sea: A Comprehensive Approach: Integrating Maritime Security with Human Rights(Vol 7, Brill Nijhoff, 2016) 303. 2. Nan Seuffert, ‘Sexual Minorities and the Proliferation of Regulation in Australia’s Asylum Seeker Detention Camps’ (2015) 19 Law Text Culture 39, 42. 3. Moreno-Lax and Papastavridis (n 1) 309. 4. Seuffert (n 2) 59; Maria Rae, Rosa Holman and Amy Nethery ‘Self-represented witnessing: the use of social media by asylum seekers in Australia’s offshore immigration detention centres’ (2018) 40(4) Media, Culture and Society 479, 480. 5. Rae et al (n 4) 482. 6. Savitri Taylor and Jodie Boyd, ‘The Temporary Refuge Initiative: A Close Look at Australia’s Attempt to Reshape International Refugee Law’ (2020) 42(3) Sydney Law Review 251.

The Australian Government’s blatant reluctance to accommodate long-term resettlement plans for refugees is a testament to lawmakers’ conservative and unsustainable methodology. Refugees indefinitely remain in detention centres across various islands in the midst of a rigid and deflective legislative framework.1 The secrecy surrounding offshore detention centres cultivates a field for severely inhumane treatment and violence.2 The secrecy persists in the protocols undertaken by government bodies conducting maritime interceptions against boat refugees.3 The absence of active discourse and stringent confidentiality agreements permits undocumented violence from evading public scrutiny.4 However, refugees have taken action by detailing the excessive violence and inhumane practices plaguing detention through social media. In turn, this signals a potential shift in refugee and migration law in Australia.5

The secrecy surrounding offshore detention centres cultivates a field for severely inhumane treatment and violence.

No entry: refugees fleeing to Australia Under the UN Refugee Convention, nation states are not permitted to return refugees to danger.6 The government holds a united front on preventing the vast majority of refugees from resettling in Australia by redirecting them to yet another country.7 The reprehensible conditions in detention centres and the scarcity of ‘durable solutions’8 serve as deterrents for refugees coming to Australian shores. The issues surrounding permanent resettlement for refugees is enlivened by a lack of clarity surrounding refugee law, which offers neither a minimum standard of treatment nor a durable solution.9 Australia’s overly conservative stance on providing refugees permanent resettlement ‘fails to address the protection needs or human rights of those refugees to whom Australia has obligations’10 under international law. The notion of temporary refuge and maritime interceptions is an ‘unsustainable attempt’,11 as well as a deflection mechanism for Australia to divert refugees to neighbouring countries and islands. However, a silver lining is evident in the nation’s bid to promote temporary refuge. Australia’s disquieting minimum standards of treatment for refugees have catalysed multiple developments in international protection law.12

7. Moreno-Lax and Papastavridis (n 1) 303. 8. Taylor and Boyd (n 6) 252. 9. Ibid. 10. Moreno-Lax and Papastavridis (n 1) 303. 11. Ibid.

THE FULL BENCH JUNE 2022

CHAPTER 16

Inhumane treatment and violence: a norm in detention Inhumane cruelty and violence are common in arbitrary detention.13 Human rights organisations, particularly the UNHCR, have characterised detention centres as ‘return-oriented environments’,14 whereby countless international law violations force refugees to return to their countries of origin to escape gross mistreatment. Asylum seekers determined to be refugees are advised ‘they may only receive temporary settlement in Papua New Guinea or Nauru, or permanent resettlement in Cambodia’.15 Cases of mistreatment are largely kept confidential by way of signed agreements from various staff members. Breaching confidentiality agreements can result in imprisonment, which deters witnesses from filing complaints and voicing disdain against the cruelty and mistreatment. The covert nature of operations is observable in ‘on-water’ matters, where the geographical location of interceptions and treatment of refugees aboard government vessels remains unknown.16 In instances where the mistreatment is documented, it is shown to have far-reaching consequences on a refugee’s emotional and physical wellbeing. Asylum seekers at Manus Island are ‘accommodated in a number of compounds consisting of demountable buildings or temporary structures’.17 Organisations such as UNHCR and Amnesty International cite living conditions and lengthy claim processes as key issues which conflict with requirements imposed by the ICCPR. Potential ICCPR breaches concern rights ‘to humane conditions in detention and the prohibition against arbitrary detention, torture, and inhumane treatment’.18 Inevitably, the failure to meet ICCPR guidelines nurtures unfairness and unjust outcomes for refugees.

Breaching confidentiality agreements can result in imprisonment,

which deters witnesses from filing complaints and voicing disdain against the cruelty and mistreatment.

12. Taylor and Boyd (n 6) 280. 13. Moreno-Lax and Papastavridis (n 1) 304.

16. Ibid 309.

14. Ibid.

17. Ibid 313.

15. Ibid.

18. Ibid 314.

SAI MUTHUKUMAR

STRANDED: OBSERVATIONS ON A STAGNANT REFUGEE LAW FRAMEWORK

Self-representation and technology: refugees’ bid for justice and reform The Australian Border Force Act 2015 (Cth) hinders pathways to transparency by having workers at detention centres sign confidentiality agreements, rendering them liable to two years’ imprisonment if found in serious breach of an agreement.19 The workers consist of ‘current and former security guards, caseworkers and medical staff’.20 Despite the excessive control on information regarding detention centre practices, refugees and support groups have commenced social media campaigns to shed light on the harsh conditions and practices experienced. The case of a Kurdish journalist detained in Manus Island, Behrouz Boochani, is noteworthy in the ambit of social media and its influence on promoting refugee rights.21 Boochani recorded and uploaded footage of mistreatment and violence at the detention centre to Facebook using a smartphone, whilst concealing the smartphone to prevent its confiscation.22 In 2016 via Whatsapp, Boochani told journalist Claire Reilly that ‘without access to technology the Australian Government could do anything to us, even kill us, and no one would know.’23 Boochani requests of his audience that they become ‘active witnesses’ so as to promote active public discourse on the mistreatment of refugees in arbitrary detention.24

‘...the Australian Government could do

anything to us,

even kill us, and no one would know.’

Conclusion

19. Rae et al (n 4) 484. 20. Seuffert (n 2) 59. 21. Rae et al (n 4) 485. 22. Ibid. 23. Ibid 486. 24. Ibid 489. 25. Moreno-Lax and Papastavridis (n 1) 326.

Analysis and scrutiny of the Australian Government’s response to refugees perceives the current legislative framework to be inadequate and in need of urgent reform. A need for greater transparency regarding maritime and detention centre practices is warranted. A stricter obedience to UN conventions is crucial to protect refugees from violence and harsh living conditions whilst in detention. Conversely, a more lenient stance is required for granting permanent resettlement to refugees to ensure delays are minimal and international commitments are met.25 Ultimately, a more balanced framework is vital in protecting the rights of refugees and promoting a shift from an inflexible and abusive system. 69