The Full Bench Vol. 2 2020

UNPRECEDENTED How the law has adapted to the events of 2020 | VOLUME TWO |

13

Up in flames: A poor alternative for bushfire volunteers

29

COVID-19 and Domestic and Family Violence

59

Pandemic Politics

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The Full Bench Volume Two 2020 Unprecedented Editor-in-Chief Isabella Marriott Editors Campbell Rice Milica Lazarevic Andrew Huynh Anthea Dinh-Tram Designer Judith Tan Special thanks to Samuel Guzman (President) Nicholas Plessas (Vice President of Education) The Full Bench is published bi-annually in Sydney by: UTS Law Students’ Society 61 Broadway, Ultimo NSW 2007 UTS Central, Level 14, Room 104 www.utslss.com UTS Law Students’ Society © This publication is copyright. Except where permitted under the Copyright Act, no part of this publication may form or by any means (electronic or otherwise) be reproduced, stored in a retrieval system or transmitted by any process without specific written consent of the UTS Law Students’ Society. Enquiries are to be addressed to the publishers.

Acknowledgement of People and Country The Full Bench and UTS acknowledge the Gadigal and Guring-gai people of the Eora Nation upon whose ancestral lands our university now 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 places.

Images and illustrations Unless provided by the designers and editors or commissioned specifically for the purpose of this publication, uncredited photographs have been sourced from Unsplash.com, licensed under the Unsplash License.

Pg 10: The Destruction of the Caroline by George Tattersall © Public Domain.

Pg 45: Photo of Jacinda Ardern, Prime Minister of New Zealand © World Economic Forum / Boris Baldinger 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.

Want to contribute to the next edition?

Email publications@utsslss.com

THE FULL BENCH VOL. 2, 2020 — 2

3 7

Gulf Wars — Episode 2020: The Empire Strikes First

13

p in flames: A poor alternative for U bushfire volunteers

17

Sovereign Citizens Unmasked

23 29

Contents

Welcomes

The Impact of COVID-19 on Women COVID-19 and Domestic and Family Violence

33

COVID-19 and People with Disability

37

T he Show Must Go On: The Legal Impacts of COVID-19 Over the Arts and Entertainment Industry

41

OVID-19 Challenges the Practice of Open Justice C in Australian Courts

45

overnance: The World Health Organisation G and The Sovereign States

49

Supplying Therapeutic Goods During COVID-19

53

I s Australia’s competition law framework capable of addressing the effects of COVID-19?

59

P andemic Politics: Investigating Civil Liberties in the Context of a Global Contagion

63 67 71

Do You Pull the Lever?

Killing in Silence Welcome to Country White Australia

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Editor-in-Chief’s Welcome ISABELLA MARRIOTT

On behalf of the UTS Law Students Society (LSS) and Publications Subcommittee, we would like to wish you a warm welcome to the second 2020 volume of the UTS LSS academic journal, The Full Bench.

With the Australian bushfires ravaging the country and COVID-19 fundamentally changing our way of life, it is no wonder that the word ‘unprecedented’ has become synonymous with the events of 2020. Further, as the injustices which have longfaced black and Indigenous peoples emerged in mainstream media, many took to the streets and protested Australia’s continued mistreatment of these communities.

These unprecedented events have brought with them many different complex legal questions. How has COVID-19 affected marginalised groups?

Have victims of the bushfires been adequately

compensated? Do we have the right to protest during a pandemic? Are there any merits to the arguments being raised by the ‘Bunnings Karens’?

These crucial questions and many more are explored in this volume of The Full Bench.

I would personally like to thank all contributors to The Full Bench, my editorial subcommittee, and our designer Judith Tan for their hard work. I would also like to thank the LSS Vice President of Education, Nick Plessas, and our President, Sam Guzman, for their ongoing support.

Enjoy the read!

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President’s Welcome

Vice President of Education’s Welcome

SAMUEL GUZMAN

NICHOLAS PLESSAS

My name is Samuel Guzman, the 2019/20 President of the University of Technology Sydney Law Students’ Society (‘UTS LSS’) and current penultimate year Bachelor of Business (Accounting) and Bachelor of Laws student at UTS.

Welcome to our second instalment of The Full Bench for 2020 — Unprecedented. The word unprecedented has been used throughout 2020 to describe the tumultuous year we’ve seen. From bushfires, civil rights movements, political unrest and a global pandemic, there is a lot that was unprecedented about the past year. This edition of The Full Bench looks to explore the intersection between these issues and the law.

A very warm welcome to the second edition of The Full Bench for 2020 — the official academic journal proudly brought to you by the UTS LSS! 1 January 2020 marked an exciting beginning of a new decade. Since then, we have been met with a chain of unexpected events, from Australia’s bushfire crisis, to a global pandemic, and the rise of social issues that have prompted global change.

This edition will explore how the law has adapted to such an unprecedented year, through the insightful and thought-provoking articles contained in the following pages.

This publication would not be possible without the efforts of an incredibly talented team who have continued to work tirelessly in order to produce another fantastic publication. Once again, I would like to extend my thanks and congratulations to Isabella Marriott, Publications Director; Nicholas Plessas, Vice President (Education); the Education Publication Subcommittee; and our designer, Judith Tan. As always, I would also like to express my gratitude to our sponsors for their constant support, and of course, our brilliant contributing members whose articles continue to serve as the heart of this publication.

I hope you enjoy reading this edition of The Full Bench.

In times of crisis, it is easy to feel ‘worn out’, causing what is known as, compassion fatigue. The idea that constant exposure of oneself to tragedies and empathy can lead to feelings of numbness and disillusionment. However, as future lawyers especially, we must do all that we can to remain vigilant. To ensure that injustices are fought and executive powers are kept in check. We in society are some of the best people placed to make a difference in our community and work to make our society a better place.

This edition will explore how we can do this by understanding the impacts of COVID-19 on the Arts Industry and the administration of justice in the Criminal Court of Appeal. Considering the protection of those with disabilities or safeguarding consumers in a state of emergency under the Therapeutic Goods Act 1989 (Cth). As well as looking beyond our nation, considering the governance of the WHO or the assassination of Qasem Soleimani.

Congratulations to the incredible work done by our Editor-In-Chief, Isabella Marriot, her hardworking team of editors, our designer Judith Tan, and all of our contributors who are responsible for the remarkable quality of this publication. On behalf of the UTS Law Students Society, I would like to thank our readers for their continued support of our publication. I hope you enjoy this edition of The Full Bench.

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Editorial Team Welcome

MILICA LAZAREVIC Bachelor of Economics/ Bachelor of Laws

ANTHEA DINH-TRAM Bachelor of Laws / Bachelor of Communications (Public Communications)

This edition of The Full Bench explores the ‘unprecedented’ occurrences of 2020. One must wonder, however, whether they are so unprecedented, since many of the issues have long existed, but have only intensified during this pandemic.

As we wrap up a year of sitting behind screens in pyjamas and unintentionally flinching every time we hear a cough, it is time to reflect on the unprecedented nature of 2020. Rest assured, 2021 can’t be any worse! This issue of The Full Bench is filled with articles that raise brows about government decisions, explore the impacts of quarantine measures on community groups, courts, and entire industries. It explores how bushfires, a global pandemic, police brutality, and protests have affected Australia’s legal landscape.

My article explores the gendered impact of COVID-19. This includes the prevalence of women in unsafe professions who were previously undervalued but now are essential, and women in service industries who have financially suffered from the pink recession. It will discuss the paradox of staying at home to protect your health, which may result in its deterioration through the emergence of the shadow pandemic — domestic violence. Further, women globally are experiencing increased hurdles in accessing reproductive products and services.

This essay contends that the frequent masculinisation of the pandemic due to many leaders trying to exude ‘toughness’, undermines feminist objectives.

Thus, prioritising human wellbeing by recognising the importance of cooperation and empathy will not only benefit women, but the entire global population.

My article examines the challenges that COVID-19 has presented to Australian courts as they attempted to maintain the principle of open justice, while operating online due to ‘social distancing’ rules. The principle of open justice ensures that the public has a privilege to observe justice being done in the courts. Yet, any members of the public sitting in on a hearing through videoconferencing struggle to ‘guess’ the nonverbal cues of court participants. Functionality issues, such as internet connection drop-outs, don’t make it any easier. Limits to the number of people accessing a live stream and the susceptibility of internet conversations to being recorded, edited, and shared raises questions as to the scope of the open justice principle, which was intended for in-person court procedures. With all these challenges, can virtual courtrooms be practically implemented in Australia’s future?

Read this issue of The Full Bench to join the discussion!

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ANDREW HUYNH Bachelor of Laws/Bachelor of Business

CAMPBELL RICE Bachelor of Laws

If 2020 can be summarised in one word, it would be, you guessed it — unprecedented. However, as unprecedented as this year has become or may continue to be, it has taught us a lot more about how governments and organisations have responded to this global pandemic. And if past pandemics are a previous track record to go by, then we know that the agency and meaningful engagement of individuals and communities are essential for effectively managing the spread of COVID-19.

This issue of The Full Bench examines how the law has adapted to the unpreceded events of 2020, and explores issues such as racism, emergency governmental powers, the right to protest, domestic violence, and much more.

The prominent theme in my article is the interplay between ‘Governance and Leadership’. Both of which are required to keep the nations and its citizens civil and safe. Evidently, in today’s stark reality, there are major social and economic contrasts to countries that have managed COVID-19 carefully, and those who have not.

Further, my article explores the responsibilities and effectiveness of the WHO’s management of the ongoing pandemic.

Nevertheless, welcome to the second 2020 volume of The Full Bench. This sequel, unlike many other sequels, is brilliant. So, equip yourself with your home-baked sourdough, dalgona coffee or a glass of wine depending on the time of day and enjoy the read!

In my article, I explore how laws and regulations that were implemented to protect Australians from COVID-19 may disproportionately disadvantage people with a physical or cognitive disability.

The article looks at two laws in particular, the Public Health (COVID-19 restrictions on Gathering and Movement) Order 2020 under the Public Health Act 2010 (NSW), and the Care Facilities Directions (No 8) under the Public Health and Wellbeing Act 2008 (Vic), and argues that they impose more onerous restrictions on people with physical or cognitive disabilities than the rest of the Australian population.

As with any emergency legislation that restricts civil liberties, ongoing parliamentary monitoring and oversight is essential to ensure that an appropriate balance is struck, and the government must ensure that any burden on people with physical or cognitive disabilities is proportionate to the risk that is posed by COVID-19.

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GULF W

HUE P

WARS

PHAM

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US President Donald Trump, from his Mar-A-Lago resort, justified the attack on the ground that there was an imminent threat that Soleimani was going to attack American diplomats in the region.2 This article will look at the international legal framework which governs the extra-territorial use of force and question the lawfulness of this strike on the grounds offered by the US administration. Why does this matter? Because, at least in this author’s opinion, maintaining the primacy of international law, especially in these volatile times, is the foundational duty of those in positions of power in the international community.

The UN Charter Article 2(4) of the UN Charter expressly prohibits the “threat or use of force against the territorial integrity or political independence of any state”.3 The only express exception to this rule is contained in Article 51, which reads:

ARTICLE 51

Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.4

Article 51 provides that the right to use force in self-defence arises “if an armed attack occurs”. A close analysis of this phrase is required as it is the condition precedent that allows a state to engage in the right to use force.

A strict literalist interpretation would mean that Country B must wait for an actual armed attack from Country A. However, this would seem inconsistent with a state’s “inherent right of… self-defence” if, for example, Country B would be required to absorb Country A’s attack before Country B could use force in self-defence.5 In this author’s opinion, requiring a state to absorb a military strike before the right to use force in selfdefence vests is illogical, and therefore, such a strict literal interpretation should not be used.

We can turn to a broader interpretation. A broader interpretation would mean that the right to use force in self-defence vests when an attack has not yet occurred, but is in its incipient stage. In other words, the right to use force in self-defence is triggered when a state becomes the object of aggression.

This interpretation is supported by the official French version of the UN Charter.6 A definition of aggression, in the context of international law, was agreed upon at the 2010 Kampala Review Conference for the Rome Statute.7 Aggression was defined as a state’s use of force in any manner inconsistent with the UN Charter. The definition provides a non-exhaustive list of acts which would fall within the definition of aggression.8 The benefit of the strict interpretation requiring an actual attack before self-defence is authorised is that this provides certainty as to when force can be used. However, this is at the cost of the potential loss of life, destruction and that the legitimacy of the UN Charter as an international instrument will become diminished over time. It can be argued, however, that the broader interpretation lacks clear and delineated threshold issues as to when force can be used in self-defence. The potential for abuse of the self-defence right is not an impossibility. A creative government could deliberately portray an adversary as being positioned to attack, in order to gain a blank cheque to use force under the flag of anticipatory self-defence.

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Customary International Law: The Caroline Affair It is important to remember that not all laws of war are codified in treaties such as the UN Charter. If we are dissatisfied with article 51 of the UN Charter, we can turn to another source of international law: customs.9 It leaves us with the question of whether Article 51 is an exhaustive explication of the right to use force in selfdefence, or whether there exists outside of the UN Charter some additional aspects to the right.

We can explore the status of the right to use force in self-defence in customary international law by looking at the Caroline affair.10 In 1837, Canadian settlers rebelled against the British colonial government. The United States remained neutral, however American sympathisers transported supplies and infantry to support the Canadian rebellion on the Caroline steamboat.11 In response, the British army entered the United States, and pushed the Caroline over Niagara Falls. One American was killed, and the British claimed self-defence. The US Secretary of State,

Daniel Webster, wrote to the British Ambassador that in order for the act to be a legitimate act of self-defence, it would need to be shown that the: necessity of self-defence was instant, overwhelming, leaving no choice of means, and no moment of deliberation ..., and that the British force… did nothing unreasonable or excessive; since the act, justified by the necessity of self-defence, must be limited by that necessity, and kept clearly within it.12 This formulation is now known as the Caroline test.

What are the key takeaway points that we can extract from Webster’s explication of self-defence?

1. Yes, imminence is important, but it is not the threshold issue to be satisfied that vests the right to use force in self-defence.13 2. The use of force in self-defence must be proportional to the threat.14

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On Proportionality: Is There a Legitimate End Here?

A test of proportionality requires two things: a legitimate object, and reasonably appropriate and adapted means to achieve that legitimate object. For the purpose of this article, let's look at the first requirement of a legitimate object. Broadly speaking, there are two objectives a military strategist will aim for in a self-defence strike.15 The first objective aims to use force to disrupt the aggressor’s ability to execute the attack, and the second uses force as a means of deterrence.16 A strategy of deterrence targets assets of the aggressor that are not necessary for the execution of the planned attack, and this is done with the aim of deterring the aggressor from following through on their plans.17

was a decision maker.21 He supervised military policy and strategy between Iran and Iraq.22 He was not an operational asset himself. At least one senior US military analyst has stated that killing him is neither necessary or sufficient to disrupt the execution of an ‘imminent plot’, but the shock value of the assassination would certainly affect Iran’s decision calculus and deter future attack plans.23

We can relate this back to the Soleimani assassination. The US Secretary of State, Mike Pompeo, explained that killing Soleimani was necessary insofar as assassinating Soleimani actually prevented some unspecified attack in which Soleimani would have been an active participant key to its execution.18 However, this is inconsistent with the statement of other US officials. The Department of Defence statement in relation to the assassination justifies the act on the grounds of deterrence in attempting to influence Iranian decision-makers from a particular course of action.19

In the present case, it is impossible to know whether Soleimani’s assassination would have a deterrent effect on the alleged imminent attacks. If deterrence was the end-goal, it seems difficult to envision how US decision-makers would reliably assess the extent of a deterrent effect on an Iranian attack. Surely, the only plausible conclusion is that deterrence cannot be considered a necessary or proportional use of force under Article 51, or customary international law.

Therefore, if we assume the permissibility of force for the purpose of deterrence, the problem is that it is impossible to quantify ex ante the deterrence effect of such a strike. The effectiveness of targeting operational assets directly involved in a planned attack lends itself a degree of objective assessment, the same cannot be said of an attempt to influence a state’s decision calculus.

At this current stage, the US has offered no evidence that killing Soleimani would have a concrete operational impact on some planned attack.20 In fact, this is unlikely because Soleimani Kathy Gilsinan and Mike Giglio, ‘US kills top Iran General Qassem Soleimani’, The Atlantic, (online, 3 January 2020) <https://www.theatlantic.com/politics/ archive/2020/01/us-kills-top-iran-general-qassem-soleimani/604378/>.

1

The White House, ‘Remarks by President Trump on the Killing of Qasem Soleimani’, Briefings and Statements, (Web Page, January 3 2020) <https://www.whitehouse.gov/ briefings-statements/remarks-president-trump-killing-qasem-soleimani/>.

2

3

Charter of the United Nations art 2.

4

Ibid art 51.

Thomas Oakley, ‘Through the Looking Glass: Re-Imagining Legal and Legitimate Force in the Contemporary Operating Environment’ (2020) 26(2) Southwestern Journal of International Law 289, 296.

5

See Charte des Nations Unies art 51 « …dans le cas où un Membre des Nations Unies est l'objet d'une agression armée » which translates as “in the event that a Member of the United Nations is the object of armed aggression” <https://treaties.un.org/doc/source/ docs/charter-all-lang.pdf>.

6

Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002) art 8 bis, as amended by RC/Res 6 (11 June 2010).

7

8

Ibid.

Leo van den Hole, ‘Anticipatory self-defence under international law" (2003) 19(1) American University International Law Review 69, 74.

9

14

Ibid 123.

David Kretzmer, ‘The inherent right to self-defence and proportionality in jus ad bellum’ (2013) 24(1) European Journal of International Law 235, 268.

15

16

Ibid.

17

Ibid 271.

Veronica Stracqualursi and Jennifer Hansler, ‘Pompeo: Strike on Soleimani disrupted an 'imminent attack' and 'saved American lives’, CNN (online, January 3 2020) <https:// edition.cnn.com/2020/01/03/politics/mike-pompeo-iran-soleimani-strike-cnntv/index. html>.

18

US Department of Defense, ‘Immediate Release Statement by the Department of Defense’, Release, (Web Page, January 2 2020) < https://www.defense.gov/Newsroom/ Releases/Release/Article/2049534/statement-by-the-department-of-defense/>.

19

Peter Baker and Thomas Gibbons-Neff, ‘Esper Says He Saw No Evidence Iran Targeted 4 Embassies, as Story Shifts Again’, The New York Times (online, January 12 2020) <https://www.nytimes.com/2020/01/12/us/politics/esper-iran-trump-embassies. html?campaignId=6WYWY>.

20

Missy Ryan et al, ‘How Trump decided to kill a top Iranian general’, The Washington Post (online, January 4 2020) <https://www.washingtonpost.com/national-security/howtrump-decided-to-kill-a-top-iranian-general/2020/01/03/77ce3cc4-2e62-11ea-bcd424597950008f_story.html>.

21

22

Ibid.

Ibid 95.

23

Ibid.

11

Ibid.

24

12

Ibid.

10

Niaz Shah, ‘Self-defence, anticipatory self-defence and pre-emption: international law's response to terrorism’ (2007) 12(1) Journal of Conflict and Security Law 95, 118.

13

Peter Baker and Thomas Gibbons-Neff, ‘Esper Says He Saw No Evidence Iran Targeted 4 Embassies, as Story Shifts Again’, The New York Times (online, January 12 2020) <https://www.nytimes.com/2020/01/12/us/politics/esper-iran-trump-embassies. html?campaignId=6WYWY>.

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Bringing Everything Together If youâ&#x20AC;&#x2122;ve taken nothing else from the above, I put to you three propositions.

I II III

The right to use force in self-defence under Article 51 of the UN Charter as extending to acts of aggression.

The threshold issues on the right to use force in self-defence is not imminence alone, but necessity and proportionality.

Deterrence is a legitimate military objective that can be deemed an exercise of proportional self-defence.

Then in applying the above, in order for the strike to become lawful, the US needs to establish that:

I II III

Soleimani was instrumental and directly involved in the execution of attacks against US personnel and assets.

Assassinating Soleimani would have prevented, or at least disrupted, the attacks.

Assassinating Soleimani was the only way to prevent or disrupt the attacks.

In this authorâ&#x20AC;&#x2122;s view, it is unlikely that the current US administration could produce evidence to satisfy the above.24 Although, it is not impossible that they could do so. Indeed, I would not go so far as to say it was definitely unlawful, but the assassination of Soleimani is prima facie unlawful.

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Up in flames: A poor alternative for bushfire volunteers TIANA DE SILVA

Twenty-twenty has brought widespread social, economic, and environmental disruption to the world as we know it. Federal governments around the world face an unprecedented burden to circumvent a global financial and environmental crisis. Earlier this year, the New South Wales and Victorian bushfires triggered a media uproar in ensuring that those who fought against or were affected by the fires were offered substantial assistance.

The fire season, which is now known as Australia’s Black Summer, began in September 2019 and continued into the new year. It only ended at the doorstep of the rise of COVID-19 in March 2020. The season saw over 18.6 million hectares of New South Wales, Victorian and Australian Capital Territory regional land burnt, at least 34 people killed, and a plummeting of the State’s air quality to below hazardous levels. The national recorded death toll included 14 firefighters, 6 of whom were from NSW.1

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October 2019 – February 2020

Australian Bushfire Death Toll

14 firefighters

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While the physical and environmental impacts were immediately and devastatingly apparent, Australia’s Black Summer also caused a myriad of silent, yet equally destructive and long-lasting, economic, social and emotional effects on rural and regional residents around the State. Combatting the deadly fires, career and volunteer firefighters, together with local residents, were under the command of the NSW Rural Fire Service. Many of these public servants experienced damage and losses of their property and livestock in the fires.

What Are Their Options?

The NSW workers compensation system applies to support those who have suffered an injury. Those who are eligible are compensated for losses in weekly earnings, treatment and medical expenses and compensation for permanent injuries.

The RFS relies primarily on volunteers for their operations. Traditionally, volunteers are excluded from being defined as a ‘worker’ for workers compensation entitlements. However, in NSW, section 5(b) of the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 2 extends its jurisdictions to cover volunteer firefighters who receive injuries while engaging in an “authorised activity”, i.e. firefighting and support services.

Despite this, many volunteer firefighters suffered economic losses alone. Questions were raised as to the compensation that would be available to those who have not suffered any injuries and yet have served the community at their own expense.

To that effect, the Federal Government in December 2019 brought in Volunteer Firefighter Payment for firefighters who were serving for extended periods and suffering income loss.

To have been eligible for the payment, a volunteer must have served for more than ten days. They must also be either self-employed or employed by a small or medium-sized business and have lost income as a result of their service. It was a $300 payment, capped at $6,000 per person and only accrues on the 11th day3 — a fundamental catch in the federal government’s generosity.

The Federal Government also offered a onceoff payment off Disaster Recovery Payment of $1,000 as well as access to a Disaster Recovery Allowance for those who suffered income loss or are from an affected rural or regional area.4

This article will explore the Federal and State compensation schemes available to those who served against the Black Summer fires and will critique the accessibility, eligibility criteria, effectiveness and their potential implications upon encouraging volunteers to join the RFS and establish homes in rural communities.

Other than the Government grants, a NSW resident, Ms Celeste Barber, was able to raise $51 million through crowdfunding. The campaign was directed to raise funds for the NSW Rural Fire Service & Brigades Donation Fund. The response was overwhelming, and comments left on the Facebook page echoed of concern for those who had lost property, possessions and memorabilia.

Comments also revealed that some had donated intending that the funds go towards residents in need of financial assistance and not just the RFS. Upon receipt of the sizable donation, the Trustees of the NSW Rural Fire Service & Brigades Donations Fund sought advice from the Equity Division of the Supreme Court of NSW regarding the provisions of the RFS Trust Deed. The Deed was said to stipulate the terms of the proper administration of funds.

Slattery J of the Supreme Court of NSW — Equity Division advised the Trustees that the trust could not pay money to other charities “to assist in providing relief to persons and animals affected by bushfires”.5 Many volunteers and donors were outraged that the funds could not lawfully be given to assist non-volunteering residents in rebuilding their homes. The Trustees were, nevertheless, able to utilise the funds to support injured firefighters and families who had lost a member that helped fight the fires. They provided counselling services to firefighters and in further volunteer training.

As a result, volunteers and residents were forced to rely on assistance from the government and emergency grants from charitable organisations, such as the Red Cross and Salvation Army. Many faced delays in accessing these grants.

L Granwal, ‘Bushfires in Australia — Statistics & Facts’, Statistia (Web Page, 29 April 2020) <https://www.statista.com/topics/6125/bushfires-in-australia/#dossierSummary__ chapter2>.

1

Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW) s 5(b).

2

THE FULL BENCH VOL. 2, 2020 — 16

Is This Enough?

Paige Cockburn of the ABC shared the devastating story of Joe Borgia, a Rural Fire Service volunteer firefighter. Mr Borgia lost his home in the firestorm that raced through the Wytaliba region in early January.6 As a father-of-one, he was required to use the entirety of his life savings on temporary accommodation and day-to-day expenses for his daughter and himself in the weeks following the fires. The cost of building a kit home on his property is estimated to have been $15,000.

Mr Borgia had applied for assistance through the Federal Government’s Disaster Recovery Payment, the Red Cross and the NSW Government. At the time of his interview, Mr Borgia was still awaiting assistance from the Red Cross and the NSW Government over a month after applying.

It is unclear whether Mr Borigia was eligible for the Volunteer Firefighter Payment. However, with a cap of $6,000, it is not farfetched to say that it would not have made a substantial difference to the lives of Mr Borgia and his daughter when considering the cost of only a kit home. The $1,000 recovery payment from the Federal Government is grossly disproportionate to financial means required for these residents to rebuild their lives.

Future Implications?

Australia’s Black Summer received both national and widespread international media resulting in an outpour of generous donations and relief assistance.

Undoubtedly, the lack of adequate assistance from the state and federal governments comes, as Mr Bacon termed it, a “slap in the face”.10 An insufficient response from our leaders creates a real deterrent to Australian’s contemplating either volunteering for their local RFS office or relocating to these rural areas. Indeed, if Australians do not feel supported and protected in living in these areas, what incentive remains to ensure production in these areas continue.

NSW Government, ‘New payments to support NSW volunteer firefighters’ (Media Release, 29 December 2019).

3

NSW Government, ‘Disaster Assistance: Financial Support’, Emergency NSW (Web Page) < https://www.emergency.nsw.gov.au/Pages/for-the-community/disasterassistance/financial-support.aspx>.

4

Re New South Wales Rural Fire Service & Brigades Donations Fund; Application of Macdonald [2020] NSWSC 604, 83.

5

Paige Cockburn, ‘Bushfire financial aid ‘a slap in the face’ as family receives $1,280 after their Wytaliba home burned down’, ABC News, (online, 17 January 2020) < https://www.abc.net. au/news/2020-01-17/bushfire-recovery-financial-aid-too-little-too-late/11869252>.

6

7

Ibid.

Jessica Clifford, Melinda James and Nick Rheinberger, ‘Conjola Park, Balmoral residents reflect on summer bushfires six months on’ (online, 1 July 2020) < https://www.abc.

8

Al Bacon, another resident of Wytaliba, reported to the ABC that the recovery payment was too little and came too late for him and his family.7 Mr Bacon stressed that it would not be enough for him and his family to obtain financial assistance to rebuild their lives. He emphasised the importance of the governments to provide access to professional opinion to reevaluate the burnt areas and approve construction on that land.

The NSW and Victorian Governments have pledged their commitment to assist bushfire-stricken areas in rebuilding their communities. Although these reports on state government websites may look like they are serving such a purpose, now in July, residents are still awaiting critical government assistance such as DA approvals and construction certificates.8 Some simply cannot afford to rebuild at all and are relying on caravans and the goodwill of other residents.

Through answering calls for more assistance, the NSW Government extended council rates relief by a further 6-months.9 Still, no one can say that this is sufficient for residents who have suffered losses of everything.

Conclusion With the shift in media focus from one disaster to the next, there has been both a shift in priority government spending and assistance and sympathy towards these areas. It is clear that, although COVID-19 and international human rights protests have since overrun twenty-twenty, many Australians seem to be battling on all fronts and continue to grapple with the aftermath of the bushfire season.

However, for residents in the affected areas, the nightmare is far from over. Experts have predicted that with the increasing global warming conditions, the bushfire seasons will worsen. While State and Federal Governments provided some assistance, it was undoubtedly inadequate and had the potential to deter future volunteers from assisting for less than ten days at a time. With worsening global warming conditions, residents are fearful of what the next bushfire season will bring them. net.au/news/2020-07-01/nsw-residents-reflect-on-summer-bushfires-six-monthson/12409768>.

Michael Weaver, ‘Rates relief extended for property owners hit by bushfires’, about regional (Web Page, 16 July 2020) <https://aboutregional.com.au/rates-relief-extendedfor-property-owners-hit-by-bushfires/>.

9

10

Cockburn (n vi).

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THE FULL BENCH VOL. 2, 2020 â&#x20AC;&#x201D; 18

Sovereign Citizens Unmasked BLAKE ROSS

Australian governments have taken strong action in response to the COVID-19 pandemic in order to slow the spread of the virus. Public health emergencies have been declared using existing statutory powers in various jurisdictions around the nation. Unprecedented public health measures like curfews and restrictions on assembly and movement have been put in place. There is no doubt that these measures have been disruptive to our way of life, and the recent Victorian experience shows liberties restricted in ways not seen in living memory.

The legal profession has a unique role to play in bringing proper scrutiny to these measures. Now, and going forward, it is important that measures infringing upon our rights and liberties are proportionate to the threat we face. Also, such measures should be enforced fairly, that is, without undue discrimination, proportionately, and consistent with the rule of law. The profession, and indeed all Australians, should not have blinkers on.

19 — THE FULL BENCH VOL. 2, 2020

But we are not living in normal times. A public health crisis of this global scale is unprecedented, and governments and public authorities have needed to respond quickly to save lives. So far, these measures appear to be genuinely aimed at dealing with an exceptional crisis. They have been accepted by most Australians as our best chance of effectively stopping or minimising the spread of the virus and returning to some normality.

However, the measures have not been accepted by all Australians. As lockdowns have continued and further measures have developed, there has been an emergence in Australia of a strange and confusing sub-culture that rejects and encourages evasion of Australian laws, including public health orders, and promotes conspiracy theories to all who will listen. It is a movement that is bubbling beneath the surface of the internet and social media. It is a movement that has, in recent times, posed problems for public authorities.

While Victoria struggles to deal with its secondwave outbreak, the Victorian Police Chief Commissioner has noted a trend of people who classify themselves as “sovereign citizens” or “living people”. These people refuse to comply with public health orders, including the current mandatory requirement in Victoria to wear a face covering or mask when out of the home.1 An alleged benefit of sovereign citizen status is immunity from Australian laws.

The Sovereign Citizen Movement

Who Are These So-Called Sovereign Citizens?

The sovereign citizen movement is a broad group, loosely organised, with diverse influences and a frequently incoherent narrative. Adherents of the movement promote and utilise various pseudo-legal theories and the movement’s ideas have extended into other fringe and conspiracy theorist circles. Some common beliefs are that governments are corporations and that Australian laws are like contracts, only applying if consented to. Additionally, there is a common law (separate from the real "common law"), which tends to be a mix of the real common law, maritime law and, usually, some part of the Magna Carta (for good measure) that can be uttered like a magic spell to avoid inconvenient laws regarding speeding fines or, say, wearing a mask. These claims have no basis in law.2

THE FULL BENCH VOL. 2, 2020 — 20

Whatever else might be said about the movement, the most fundamental idea common to all circles is that the government and its laws are illegitimate.

Quite simply, the people involved believe they have the right to make up laws and do as they please.

The movement originated in the United States, where there has always been a minority of people who reject any form of government interference, originally as a way to justify avoidance of federal income tax. The US-based Southern Poverty Law Centre lists the sovereign citizens movement as an extremist organisation and says that “sovereign citizens believe that they get to decide which laws to obey and which to ignore, and they don’t think they should have to pay taxes”.3 The FBI has closely watched the movement, and there have been occasions of violent behaviour in the US linked to the movement, including the impersonation of lawyers, murder of police officers and the attempted murder of judges.

In Australia, the movement is less violent but still concerns public authorities. In 2015, NSW Police classed sovereign citizens as a potential terror threat. One sovereign citizen “extremist” threw a bag of yellow liquid at a judge and separately attempted a citizen’s arrest of a judge.4 Prime Minister Scott Morrison has, in the recent context of a Melbourne sovereign citizen’s refusal to wear a mask, told them to “get real”.5 Ideas of the movement and conspiracy circles appear to build on one another. The leader of Australia’s biggest anti-vaccination group has promoted the movement’s language. 6 Private landowners have declared themselves independent of Australia, deploying the movement’s ideals in attempts to avoid tax. Members of the movement have claimed they do not require a licence to drive legally and that speeding fines do not apply to them. Some have been banned by YouTube for spreading misinformation about 5G, claiming that the network’s radio waves are spreading the virus.

But not all sovereign citizens believe that the virus is the dawn of a New World Order or that Bill Gates is conspiring with pharmaceutical companies to microchip the world population by vaccination.7

Leonie Thorne, ‘Victorian coronavirus rulebreakers warned as Melbourne woman charged with attacking police officer over mask’, ABC News (online, 4 August 2020) <https:// www.abc.net.au/news/2020-08-04/victoria-police-concerned-sovereign-citizens-amidmask-assault/12522332>.

1

Essenberg v The Queen B54/1999 [2000] HCATrans 385 (22 June 2000); Meads v Meads [2012] ABQB 571. The movement and its many different parts was exhaustively deconstructed by one determined Canadian judge in this case.

2

‘Southern Poverty Law Centre’, Sovereign Citizens Movement (Web Page) <https://www. splcenter.org/fighting-hate/extremist-files/ideology/sovereign-citizens-movement>.

3

The Rise of

“Bunnings Karen” Some adherents are more mundane.

Who could forget the social media storm sparked by a woman who has been dubbed “Bunnings Karen”? The woman involved rejected the apparently offensive request by Bunnings workers to wear a mask, on the basis that she was a “living woman” (common sovereign citizen terminology) and that such a request was in breach of her human rights.

There have been many more inflammatory videos posted to social media in recent days by a number of people flouting the public health orders.

It is clear that being a “living person” does not afford immunity to laws. Unless there is a good medical reason not to wear a mask or follow public health orders, government directives will be lawful and do not violate any rights under Victorian or international human rights law (that is they would be a proportionate restriction of any such rights).

Businesses are legally able to refuse entry to a person not wearing a mask to protect the health of their staff and customers. Of course, it should be remembered that not all health conditions are visible, and there will be valid reasons for not wearing a mask or face covering. Wearing a mask may be inconvenient and uncomfortable, but surely it is the right thing to do where medically advised. In fact, wearing a mask will help protect our rights to life and health.

This view has been echoed by human rights organisations, including the Australian Human Rights Commission, the Human Rights Law Centre and Amnesty International.8

21 — THE FULL BENCH VOL. 2, 2020

Testing the Courts Bunnings Karen was not the first. The movement is familiar to Australian courts. In one QLD case, a man claimed that he had "an unalienable right as a private individual to use the common ways to travel as per the right to life, liberty and the pursuit of happiness" (another common sovereign citizen argument), which was dismissed by the court as "senseless and unmeritorious".9 In a NSW case, a man self-described as “Adrian Ashley of the House of Cooper” argued that he was a “self-governing person” not bound by the “laws and usages” of NSW and that the King James Version Bible 1611 was the supreme law. He attempted to develop a novel argument, relying on Genesis 1:29 (“all plants were given to man by God…”) to defend a possession of cannabis charge. McCallum J, the presiding judge, swiftly described his arguments as “manifestly hopeless”.10 The High Court, too, has not taken kindly to sovereign proclamations by individuals claiming that they are not subject to Australian laws (notably taxation laws) and has described these arguments as fatuous, frivolous and vexatious.11 Not exactly a judicial vote of confidence.

Enter the micronations. That High Court case concerned the immunity from taxation of the so-called Hutt River Province, an unrecognised micronation which was said to be independent of Australia and not subject to Australian laws.

Apparently dissolved earlier this year (after 50 years of alleged independence from the Commonwealth), Hutt River Province was for most of its time governed by the self-titled “Prince Leonard”. All of these strange arguments are one of many arrows in the sovereign citizen’s bow.

Oddly enough, Australia is no stranger to the micronation phenomenon and has the highest concentration of micronations in the world, with about a third found in Australia.12 Another, less well-known micronation, is the supposed inner-Sydney sovereign state dubbed “Atlantium” that its founder, the self-titled Emperor, His Imperial Majesty George II (formerly known as the much less regal George Cruickshank), insists is "a legitimate, functioning, proto-world state that possesses immanent, parallel global sovereignty".13 All of these claims are legal nonsense. The Constitution of the Commonwealth of Australia (the Constitution) recognises the Commonwealth of Australia and the States and Territories of Australia as the only constituent entities in the

federal polity. Apart from the provisions of the Constitution in Chapter VI providing for the establishment of new States or the acquisition of new Territories, there are no constitutional means available for the establishment of any separate political community in Australia. So, the selfstyled Hutt River Province and its residents always remained subject to the Constitution and the laws of Australia. The Australian Government has never recognised, legally or otherwise, the existence of self-styled ‘micronations’, 'provinces' or 'kingdoms' within Australia.

In fact, it appears that no court in Australia, or comparable countries like Canada or the United States has ever accepted the movement’s basic argument that they are not subject to the laws of that jurisdiction on account of being a sovereign citizen.

Conclusion There is some utility in recognising and detailing the sovereign citizen movement. While the movement in Australia is relatively small, and mostly nonviolent, it is a moderately widespread problem for our public authorities and citizens, heightened in the time of COVID-19. Further understanding of the movement may be important to develop appropriate responses, and more research could be warranted. The movement’s beliefs, while plainly wrong in law, may be genuinely held by some adherents, and the movement possibly provides a sense of safety and security to its adherents in undoubtedly anxious times. It may not be enough to simply insist that they “get real”.

James Thomas and Jeanavive McGregor, ‘Sovereign citizens: Terrorism assessment warns of rising threat from anti-government extremists’ ABC News (online, 30 November 2015) <https://www.abc.net.au/news/2015-11-30/australias-sovereign-citizen-terrorismthreat/6981114>.

4

Parliament of Australia, Hansard. Prime Minister’s Interview on Sunrise (5 August 2020) <https://parlinfo.aph.gov.au/parlInfo/download/media/pressrel/7481189/upload_ binary/7481189.pdf>.

5

Cameron Wilson, ‘Anti-Vaxxer Facebook Group Push Donations to Sovereign Citizens’ BuzzFeed News (online, 7 May 2020) <https://www.buzzfeed.com/cameronwilson/ anti-vaxxer-facebook-sovereign-citizen-form-letters>.

6

Ryan Broderick, ‘Bill Gates Conspiracy Theories Have Circulated For Years’ BuzzFeed News (online, 26 June 2020) <https://www.buzzfeednews.com/article/ryanhatesthis/ coronavirus-bill-gates-conspiracy-theories>.

7

Rosalind Croucher, ‘Wearing a mask will protect human liberties, not infringe upon them’ Australian Human Rights Commission (opinion, 28 July 2020) <https://humanrights.gov. au/about/news/opinions/wearing-mask-will-protect-human-liberties-not-infringe-uponthem>.

8

9

R v Stoneman [2013] QCA 209.

10

Application of Adrian Ashley of the House of Cooper [2017] NSWSC 533.

11

Casley v Commissioner of Taxation [2007] HCA Trans 590.

Kate Hedley, ‘How Australia’s latest micronation staged a coup that ended in court’ Western Australia Today (online, 6 June 2020) <https://www.watoday.com.au/national/ let-we-forget-how-australia-s-latest-micronation-staged-a-coup-that-ended-in-court20200606-p5504a.html>.

12

Atlantium, Global Sovereign State (Web Page) <http://www.atlantium.org/emperor. html>.

13

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Principality of HUTT RIVER

ATLANTIUM

23 — THE FULL BENCH VOL. 2, 2020

The Impact of COVID-19 on Women MILICA LAZAREVIC

The most evident ramifications of COVID-19 are the detrimental effects it has on one’s physical health, which can affect anybody. However, the extensive discussions on the physical aspect of COVID-19 and the world’s obsession with statistics frequently overlook the profound and often invisible structural inequalities affecting women and other marginalised groups. For instance, the prevalence of women in unsafe professions (i.e. nurses) who were previously undervalued but now are essential, and women in service industries (i.e. retail) who have financially suffered from the pink recession.

This crisis has demonstrated the power of the care economy as it helps sustain families and those in need. Furthermore, facilitated by technological solutionism, people work and undertake school from home to comply with safety lockdown laws. Paradoxically, this has seen a shadow pandemic emerge called domestic violence. These new changes also mean that women, globally, experience increased hurdles in accessing reproductive products and services. This essay contends that the frequent masculinisation of the pandemic due to many leaders trying to exude ‘toughness’ undermines feminist objectives.1 Thus, prioritising human wellbeing through recognising the importance of cooperation and empathy will not only benefit women, but the entire global population when recovering from the pandemic.

THE FULL BENCH VOL. 2, 2020 — 24

Feminist Economics and Policies Feminist policies highlight the value of care work — which involves both paid and unpaid work — in the progress of societies and economies, as it prioritises the wellbeing and importance of human life rather than solely production.2 The power of the care economy is that it sustains families and helps those in need physically, emotionally and socially. Care is typically manifested through stereotypically “feminine qualities”, which recognise the issues faced by women more effectively, therefore are of great importance in these difficult times. These traits include empathy, cooperation and openness to express vulnerability.3 Examples of countries whose female leaders have managed the crisis well are New Zealand, Taiwan, Denmark and more.4 These leaders have recognised the need for interdependency5 by openly expressing vulnerability. Rather than engaging in self-deception and acting more powerful than the virus, these leaders quickly responded to the dangers of coronavirus.6 This means that everyone will recover earlier from the impacts of the virus and return to ‘normal’, like New Zealanders have at the time of writing. This article does not suggest that women are better leaders than men, it merely demonstrates that societies with female leaders are generally more egalitarian7 and offer a more diverse understanding, and thus more appropriate solutions for the COVID-19 pandemic in general.

Nevertheless, this is not a perspective shared by most of the world’s leaders (i.e. from the USA, UK and Brazil). According to feminist scholar Cynthia Enloe, one of the critical issues in this pandemic is that politicians are using language pertaining to the virus with ‘militaristic overtones’.8 Thus, it ‘masculinises’ the pandemic, which overlooks the fact that two-thirds of workers that are most affected are females.9 Examples of this language include comments by State leaders suggesting that they are ‘tough’ or assertions by President Donald Trump and Press Secretary Kayleigh McEnany that the US has the lowest mortality rate when it is quite the opposite.10 In countries such as NZ, there is an infection rate of 160 for every 100,000 persons, as opposed to the higher rate of 451 for every 100,000 in the USA.11 Overall, Enloe suggests that we should change the system and tone to prioritise social harmony.12 Moreover, essential work is now synonymous with jobs in the caring industry, such as child care workers, teachers and nurses. However, they are most at risk of contracting the illness, especially since 70% of global healthcare workers are women.13 Additionally, these are lower-paying jobs, signifying less power to insist on protection. For example, Belly Mujinga, a railway worker in England, was denied PPE equipment after requesting it multiple times due to being spat on by a passenger who had COVID-19.14 She later died from the virus, which is reflective of the ‘social structural processes’ that restrict the rights of those workers most vulnerable, by imposing barriers to accessing equipment they need for survival.15 To address overall issues of gender equality, the UN suggests that we should gather sex-disaggregated data that shows the impact of the virus on men and women.16 Additionally, providing like paid leave in developed countries (i.e. Queensland’s pandemic leave to teachers and healthcare workers),17 safety equipment to workers and expanding community services in developing countries, can also be useful.

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Pink Recession According to labour market economist Barbara Pocock, another consequence of COVID-19 is the pink recession, where women are the â&#x20AC;&#x2DC;biggest losersâ&#x20AC;&#x2122; in the pandemic.18 A pink-collar worker refers to those who work in care or service industries that are typically female-dominated, such as retail, hospitality and tourism. These workers are more likely to be casual and parttime. The number of hours reduced for everybody in Australia, however, women lost 11.5% of their hours as opposed to the 7.5% of hours lost by men.19 Furthermore, women make up 39% of the global workforce but account for 54% of job losses. Taking action on this issue only after the crisis will lead to a loss of $5 trillion in the global GDP by the end of 2020.20 Consequently, there is an increase in unpaid labour, typically by women who bear greater responsibility in taking care of their children and the elderly.21 This is because the current structure of the workforce, and the innate susceptibility of the elderly and children, compels women to spend more time at home.

However, unpaid work has become slightly more appreciated during the pandemic, which contrasts with it typically being undervalued and invisible in the GDP.

THE FULL BENCH VOL. 2, 2020 — 26

Shadow Pandemic: Domestic Violence Moreover, lockdown measures that were enforced by most countries, due to the physical health risks posed by COVID-19, have paradoxically led to the emergence of another pandemic; domestic violence. An increase in gender-based violence is common during pandemics, wherein people must confine themselves in their homes per lockdown laws. It increases daily contact and control by the perpetrator. According to the United Nations, globally, violence against women has increased by 25%.22 In Australia, there was a 39% increase in emergency applications in the Family Court and a 23% increase in applications in the Federal Circuit Court from March to April regarding domestic violence.23 However, courts are inadequately funded to accommodate such an increase in applications.24 Further, early lockdown measures have signified an inability to leave home and reach out for support.25 Even pre COVID-19,

victims have typically experienced long waits for justice, and this pandemic has only heightened and further exposed the delays that victims experience to be heard. Hence, Australia has increased funding for anti-violence organisations as a way of alleviating these issues.26 Additionally, victims of gender-based violence commonly experience traumatic brain injuries (TBIs), which are often undiagnosed, and increase in frequency during pandemics.27 One in four women encounter severe intimate -partner violence.28 The most common injuries are to the neck and above, which leads to diminished “cognitive, psychological and neural health.”29 This reveals our ‘existential vulnerability’ in that it exemplifies the paradox that we self-isolate to avoid our physical health being at risk and, yet, this process puts our mental health at risk.30

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Access (or Lack of Access) to Reproductive Products & Services Previous pandemics, such as Ebola and Zika, offer valuable lessons regarding the impact that pandemics generally have on a woman’s reduced access to reproductive services. Access to abortions and contraceptives are typically reduced, which, for instance, has led to many babies being born with deformities such as microcephaly caused by Zika.31 The same issues are occurring during this pandemic, with 5633 clinics and community-based care outlets closed and 29 countries experiencing shortages in contraceptives.32 Italy and several US states cancelled abortions as a temporary safety measure.33 However, according to Van Pelt, the President of the National Organization for Women, the virus is being used as an excuse to halt women’s constitutional rights.34 This undermines a woman’s reproductive autonomy, which is crucial in such dangerous times. It forms substantial barriers for women in making proper financial and personal decisions about parenthood. To avoid this, in countries such as the Netherlands, midwives use hotels to provide safe reproductive services.35

Rita A Gardiner and Katy Fulfer, ‘Virus Interruptus: An Arendtian exploration of political world-building in pandemic times’ (2020) 27(4) Gender Work & Organisation 447.

1

Kate Bahn et al, ‘A feminist perspective on COVID-19 and the value of care work globally’ (2020) 27(3) Gender Work & Organisation 1.

2

Louise Champoux-Paillé and Anne-Marie Croteau, ‘Why women leaders are excelling during the coronavirus pandemic’ The Conversation (online, 13 May 2020) <https:// theconversation.com/why-women-leaders-are-excelling-during-the-coronaviruspandemic-138098> .

3

4

Ibid.

Donald Steinberg and Ruth Halperin-Kaddari, ‘What a “Feminist” approach to Fighting COVID-19 might have achieved’ Just Security (online, 28 May 2020) <https://www. justsecurity.org/70356/what-a-feminist-approach-to-fighting-covid-19-might-haveachieved/> .

5

6

Ibid.

7

Champoux-Paille (n 3).

8

Gardiner (n 1).

9

Ibid.

Ben Gittleson, ‘US coronavirus mortality rate not lowest in world, despite Trump claim: FACT CHECK’ American Broadcasting Corporation News (online, 8 July 2020) <https:// abcnews.go.com/Politics/us-coronavirus-mortality-rate-lowest-world-trump-claim/ story?id=71647615>.

10

11

Steinberg (n 5).

12

Gardiner (n 1).

‘Women in the health workforce’, World Health Organisation (online, 7 March 2018) <https://www.who.int/hrh/events/2018/women-in-health-workforce/en/>.

13

14

Gardiner (n 1).

15

Ibid.

16

Steinberg (n 5).

Stephanie Zillman, ‘School out early this year after Queensland Government offers teachers coronavirus “pandemic leave” amid pay freeze anger’, ABC News (online, 22 July 2020) <https://www.abc.net.au/news/2020-07-21/queensland-pandemic-leaveteachers-wage-dispute/12476696>.

17

Conclusion Conclusively, the consequences of COVID-19 for women include: that women in care industries such as health workers are at the greatest danger of contracting the virus, the pink recession affecting women in service industries, increased domestic violence and limited access to reproductive products and services. However, this pandemic has symbolically appreciated the power of both paid and unpaid work in terms of the care it offers in that it is deemed essential. Further action is still required globally to prioritise gender-aware policies and feminist economics as a way of achieving social wellbeing, or otherwise, it could lead to extremely delayed recovery for everybody and women’s issues will continue to be ignored.

Sheryle Bagwell, ‘Women have lost jobs faster than men during coronavirus but are getting less assistance, according to new research’, ABC News (online, 10 June 2020) <https://www.abc.net.au/news/2020-06-10/women-have-lost-jobs-faster-than-menduring-coronavirus-but-are/12338598>.

18

19

Ibid.

Anu Madgavkar et al, ‘COVID-19 and gender equality: countering the regressive effects’, McKinsey & Company (online, 15 July 2020) <https://www.mckinsey.com/featuredinsights/future-of-work/covid-19-and-gender-equality-countering-the-regressive-effects>.

20

21

Ibid.

Alexandra Villarreal, ‘Coronavirus pandemic exacerbates inequalities for women, UN warns’, The Guardian (online, 12 April 2020) <https://www.theguardian.com/ world/2020/apr/11/un-coronavirus-pandemic-gender-inequalities-women>.

22

Matthew Doran, ‘Coronavirus concerns see family courts rush through applications linked to COVID-19’, ABC News (online, 25 April 2020) <https://www.abc.net.au/news/202004-25/family-courts-to-fast-track-cases-coronavirus/12184498>.

23

24

Ibid.

25

Ibid.

Clare Wenham et al, ‘Women are most affected by pandemics — lessons from past outbreaks’, Nature (online, 8 July 2020) <https://www.nature.com/articles/d41586-02002006-z>.

26

Eve Valera, ‘When pandemics clash: Gendered violence-related traumatic brain injuries in women since COVID-19’, US National Library of Medicine National Institutes of Health (online, 27 June 2020) <https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7320710/>.

27

28

Ibid.

29

Ibid.

30

Gardiner (n 1).

31

Wenham (n 26).

‘COVID-19 pandemic cuts access to sexual and reproductive healthcare for women around the world’, International Planned Parenthood Federation (online, 9 April 2020) <https://www.ippf.org/news/covid-19-pandemic-cuts-access-sexual-and-reproductivehealthcare-women-around-world>.

32

33

Wenham (n 26).

34

Villarreal (n 22).

Antonio Guterres, ‘Policy Brief: The Impact of COVID-19 on women’, United Nations (Online, 9 April 2020) <https://reliefweb.int/sites/reliefweb.int/files/resources/policybrief-the-impact-of-covid-19-on-women-en.pdf>.

35

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COVID-19 and Domestic and Family Violence Two crises that Australia cannot avoid MILAN SHARMA

Every couple of months, a domestic violence case that exudes public shock, and disappointment is expressed towards the Australian justice system and government. Following these cases, there are promises of reform, yet legislative action is often slow and rigorous. The COVID-19 pandemic has forced Australians to engage in widespread healthprotective behaviours to help manage the spread

of the virus. This has led to mandatory lockdowns Australia-wide and the limiting of social gatherings.

These barriers have been positive in reducing infection; however, they have unfortunately contributed to an increase in domestic violence in Australia, predominantly due to the psychological impact of economic vulnerability, social isolation and job losses.

THE FULL BENCH VOL. 2, 2020 — 30

Accessing Domestic Violence Services The culmination of economic instability, social isolation, and lockdown has meant that women have been forced to be in a contained environment for extended periods of time with their perpetrator. Isolation has also profoundly affected Aboriginal women and children who are ‘five times more likely to be abused or killed at home…[and] are also 35 times more likely to be hospitalised due to domestic violence compared to nonIndigenous women.’1 The inability to engage with specialists in domestic violence services creates difficulty in protecting women and children.

Across the NSW metropolitan, regional, rural and remote regions, Women’s Safety NSW conducted research in May 2020, which revealed an increase in demand for domestic and family violence services. Some key findings include:

41.9 61% 43.9% %

of specialists reported an increase in client numbers since the COVID-19 restrictions began to lift.

identified women reporting that it is harder to engage with services and processes, such as court processes, at this time.

identified women reporting that violence and abuse escalated during the COVID-19 lockdown.

41.5%

39.0%

reported more women planning to escape violence.

reported women still finding it hard to engage with services safely.

One of the most concerning statistics is the increase of women finding it harder to engage with services safely. Gabrielle Williams, the Minister for Prevention of Family Violence and Minister for Women, has noted that ‘for many home is not a safe place to be, as sad a reality as that is’ and those who are seeking help from home have ‘limited opportunities to reach out for help when you are confined to your home.’2 In some scenarios, Catherine Gander (CEO of West Connect Domestic Violence Service) explains that some women who have lost their jobs ‘can’t afford their rent and have returned to live with the perpetrator to give their children the stability of a home….they are seeing returning to the perpetrator as the best choice, and that is very worrying.’3 Moreover, the fear of repercussions and judgement often hinders women from seeking treatment both for mental health and physical injuries. This can affect women who are from immigrant households, on temporary visas or who speak little to no English. This obstacle alone prevents a true reflection of domestic violence incidents currently being reported in Australia.

However, in response to the present climate, the Berejiklian Government has ‘altered its hospital fees policy, so that those ineligible for Medicare… no longer be required to report the crime to law enforcement in order to access public hospitals free of charge.’4 This change will allow women to access treatment without the fear of reporting the crime to law enforcement officials. Highlighting coercive control may be more prevalent than ever.

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Coercive Control The pattern of coercive control is the main factor in domestic and family violence cases. Coercive control, ‘includes structural forms of deprivation, including the micro-regulation of everyday behaviour which, among other effects, subverts victims’ rights to privacy.’5 Our current limited social environment does not allow for women who are suffering for their friends, family or peers to notice differences in their mood or physical injuries.

Technology in the past has facilitated protection as it allows women to message a domestic violence service. In some scenarios, women may be prevented from accessing these services and social contacts to allow others to help them.

Across Australia, there have been calls to establish legislation that would criminalise coercive control. Currently, South Australia is leading the Australian States, whereby a ‘new bill would allow judges to impose jail sentences of up to seven years for those convicted, setting a judicial precedent that such behaviour will be treated as a crime.’ 6 However, in New South Wales, Queensland and Victoria, little has been done to criminalise coercive control. CEO of Women’s Safety, Hayley Foster, has advocated strongly that ‘It’s essential that we criminalise coercive control if we want to prevent domestic homicides’ and that ‘the legislation is drafted effectively, that it doesn’t have unintended consequences of putting victims in the firing line… misidentified as the abusers themselves.’7 With the fluctuation of COVID-19 cases across the nation and the need to utilise lockdowns to prevent the spread, it has highlighted the need for legislative measures to be implemented effectively, allowing perpetrators to be prosecuted.

THE FULL BENCH VOL. 2, 2020 — 32

Funding Domestic and Family Violence Services The global pandemic has once again put domestic and family violence under the media spotlight with calls for immediate government action. In response, the NSW government has committed $21 million to domestic violence services. The funding will go towards supporting women’s refuges, pop-up safe houses, behavioural programs and duress alarms.8 Similarly, in Victoria, the second lockdown has specialist services worried that more women will become victims because some may not recognise family and domestic violence as abuse, and not report these incidents. An additional $20 million in funding is being provided in Victoria to help keep victims and survivors safe.

The effects of the COVID-19 pandemic has not only increased ongoing domestic and family violence but has contributed to new cases. Current and available research provides limited accuracy as to the extent of the effects, as well as the frequency of domestic violence in Australia. The pandemic is not the only crisis the Federal government should be focusing on.

Jane Lindhe ‘Aboriginal Domestic & Family Violence specialists issue plea for urgent action’, Women’s Agenda (online, 7 August 2020) <https://womensagenda.com.au/latest/aboriginaldomestic-family-violence-specialists-issue-plea-for-urgentaction/>.

1

AAP Newswire, ‘Extra family violence funding in Victoria’, The Telegraph (Online, 17 August 2020) https://www.seymourtelegraph.com.au/ national/2020/08/17/1508905/extra-family-violencefunding-in-victoria.

2

Women’s Safety NSW ‘Lockdown restrictions a relief to some, but new report reveals increasing numbers of domestic violence victims at “serious threat”’ (Media Release, 18 June 2020) <https://www.womenssafetynsw.org.au/wp-content/ uploads/2020/06/EMBARGOED-UNTIL-18.06.2012.01AM_Increasing-Numbers-of-Domestic-Violence-Victimsat-Serious-Threat.pdf>.

3

Tarla Lambert ‘Victims of family violence afforded easier access to NSW hospitals as part of ongoing COVID disaster 4

response’, Women’s Agenda (online, 14 August 2020) <https://womensagenda.com.au/latest/victims-of-familyviolence-afforded-easier-access-to-nsw-hospitals-as-part-ofongoing-covid-disaster-response/>.

Heather Douglas and Mark Burdon ‘Legal Responses to NonConsensual Smartphone Recordings in the Context of Domestic and Family Violence’ (2018) 41(1) UNSW Law Journal 157, 158.

5

Kelly Huges, ‘Hannah Clarke’s domestic violence murder highlighted coercive control — but has anything changed?’, ABC News (online, 10 August 2020) < https://www.abc. net.au/news/2020-08-10/anti-domestic-violence-laws-tocriminalise-coercive-control/12377952>.

6

7

Ibid.

Lily Mayers, ‘NSW government secures $21 million for domestic violence support during coronavirus lockdown’, ABC News (online, 26 May 2020) <https://www.abc.net.au/ news/2020-05-26/nsw-government-secures-coronavirusdomestic-violence-funding/12286956>.

8

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COVID-19 and People with Disability:

Have laws and regulations that were designed to protect Australians from COVID-19 disproportionately disadvantaged people with physical or cognitive disabilities?

CAMMIE RICE

State governments needed to take urgent action to help prevent the spread of COVID-19, including enacting emergency legislation that imposes potentially significant restrictions on the civil liberties of citizens. Two of those laws — the Public Health (COVID-19 restrictions on Gathering and Movement) Order 2020 under the Public Health Act 2010 (NSW), and the Care Facilities Directions (No 8) under the Public Health and Wellbeing Act 2008 (Vic) — have arguably imposed more onerous restrictions on people with physical or cognitive disabilities than the rest of the Australian population.

As discussed below, in order to ensure that Australians with a physical or cognitive disability are not disproportionately disadvantaged, it will be crucial to ensure continued monitoring and oversight of these laws.

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Public Health (COVID-19 restrictions on Gathering and Movement) Order 2020 On 30 March 2020, the NSW Minister for Health and Medical Research, Brad Hazzard, issued the Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020 pursuant to section 7 of the Public Health Act 2010 (NSW). The order prohibited anyone in NSW from leaving their place of residence without a reasonable excuse 1. The enactment of this emergency legislation in response to the COVID-19 pandemic has resulted in unprecedented restrictions on the civil liberties of the whole of the NSW population, and particularly people with a physical or cognitive disability (‘relevant impairment’).

Due to concerns that some people with a relevant impairment may not have the capacity to understand or follow the new social distancing and isolation requirements, there have been cases of guardianship orders being made or varied.

This was to grant additional functions to the Public Guardian to ensure that a person under the order complies with the Public Health Order.2 In NSW, the Guardianship Act 1987 (NSW) empowers the Guardianship Tribunal to make a guardianship order where a person requires one due to a disability that makes them incapable of managing all or part of their person.3 Although the Tribunal has the power to grant plenary guardianship — that is, an order that would give all control over the persons’ life and functions to the guardian — where possible it must grant limited guardianship over certain aspects of the persons’ life or functions.4

In the case of GZK [2020] NSWCATGD 5 (‘GZK’), a 76-year-old Aboriginal man’s guardianship order was varied, due to his “diminished insight as to how his need to access the community in which he lives, [which] whilst entirely understandable, is placing him at significant risk”.5 The additional functions allow his appointed guardian to authorise police and ambulance services to take GZK to a place approved by the guardian, keep GZK in that place using necessary physical restraint, environmental restraint or seclusion if required, and to return GZK to that place should he leave.6 Although these extra powers remove a persons’ autonomy and right to movement, the guardianship orders have been said to be justified due to the risk that if a person continues to move freely and frequently outside their home, they are not only at risk of catching COVID-19, but of also having vital services withdrawn due to the risk of others catching the virus from them.7 Indeed, in GZK, the disability support provider for GZK had stated that unless steps were taken to ensure GZK complied with the current restrictions, her organisation would have no option but to stop providing their services to GZK.8 Restricting Access to Aged Care Accommodation or Supported Disability Accommodation Due to the recent influx of COVID-19 positive patients in Victoria, new directions have been put in place for visitors to care facilities.9 However, the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability

THE FULL BENCH VOL. 2, 2020 — 36

has stated that restricting access to residential facilities such as aged care or supported disability accommodation (‘care facility’) in order to minimise the spread of infection, may have the unintended consequence of a reduction in formal and informal oversight provided by family, friends and advocates.10 The Commission is concerned that the decrease in oversight will result in an increase in the risk of violence, abuse, neglect and exploitation.11 Trevor Carroll, CEO of Disability Justice Australia (‘DJA’), has criticised the Australian Government’s response to the COVID-19 pandemic, and the impact it has had on the human rights of people living in care facilities.12 In a statement to the Senate Select Committee on COVID-19, Mr Carroll has detailed how DJA advocates are unable to meet face to face with their clients in care facilities, as they are not recognised as essential workers or visitors under the Care Facilities Directions (No 8), directions pursuant to section 200 of the Public Health and Wellbeing Act 2008 (Vic).13 As many of DJA’s clients are unable to communicate via telephone, email or online video due to their disability, the only way to communicate with them is through assistive technology and individual support.

However, as DJA advocates are no longer able to meet face to face with many of their clients, support to contact DJA advocates would need to be undertaken by staff at the care facility. This raises major privacy and confidentiality concerns, particularly as the residents’ complaints are often regarding the services being delivered by the care facility support staff that are assisting them with making contact to DJA.14

Where Next?

As with any emergency legislation that restricts civil liberties, there will be a need for ongoing monitoring and oversight to ensure that an appropriate balance is struck, and that restrictions remain in force for only so long as is necessary.

Such oversight is particularly important when it comes to ensuring that any burden on people with physical or cognitive disabilities — who may be less able to advocate for themselves — is proportionate to the risk that is posed by COVID-19. This will be a role that parliamentary oversight committees and human rights bodies need to play.

Public Health (Covid-19 restrictions on Gathering and Movement) Order 2020 (No 1) (NSW) cl 5.

1

2

See, eg, UZX [2020] NSWCATGD 3; GZK [2020] NSWCATGD 5 (‘GZK’).

3

Guardianship Act 1987 (NSW) s 14.

4

Ibid s 15(4), s 16(2).

5

GZK (n 2) [2].

6

GZK (n 2) [4].

7

GZK (n 2) [2].

8

GZK (n 2) [29].

9

Care Facilities Directions 2020 (No 8) (Vic).

Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, ‘Statement of Concern — The Response to the COVID-19 Pandemic for People with Disability’ (26 March 2020) 4.

10

11

Ibid.

Trevor Carroll, ‘Opening Statement to Senate Select Committee on COVID-19’ (Speech, Senate Select Committee public hearing, July 2020) 1 [1].

12

13

Ibid [5].

14

Ibid [5].

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The Show Must Go On: The Legal Impacts of COVID-19 Over the Arts and Entertainment Industry JENNIFER ANDRADE

THE FULL BENCH VOL. 2, 2020 — 38

The Arts and Entertainment industry has been recognised as the hardest hit sector by COVID-19.

With over 50 percent of businesses ceasing to trade in April, compared with 30% in most other industries, it is anticipated to have the slowest postpandemic recovery.1 Subsequently, many legal issues artists faced before the pandemic have exacerbated and are continuing to augment, which this article will focus on by discussing three main topics. It will discuss the difficulties restrictions have posed to performing contracts and setting aside obligations. It will then explore the limitations of legislation and government packages in protecting the versatile work structure artists assume. Lastly, it will examine the copyright issues posed by live streaming, ultimately concluding that greater consideration in providing artists with certainty in their precarious line of work is necessary.

Contractual Issues The arts and entertainment industry predominantly consists of contractual relationships between stakeholders, such as content producers and distributors.2 However, COVID-19 restrictions have prevented parties from fulfilling responsibilities under these contracts. Border restrictions have ceased interstate travel for festivals, and social distancing measures have halted events such as Vivid Sydney. All these hindrances to contractual performance have necessitated remedies to set aside these contracts. A ‘force majeure’ clause may accomplish this as it accounts for an extraordinary event preventing parties from fulfilling their contractual obligations which seems relevant in these times.3 Although the wording is vital in such clauses, few arts and entertainment contracts anticipate or properly characterise an extremely rare global pandemic. Alternatively, a contract may be discharged under the Frustrated Contracts Act 1978 (NSW). 4 As restrictions have made it impossible to undertake services without any festivals, concerts, or screenings, the circumstances anticipated by the contract have become ‘radically different’.5 However, frustration

requires a high standard of proof as it does not apply to mere difficulty in performing individual contracts. Therefore, in circumstances where COVID-19 has made it costly and slower for an artist to produce contracted work, frustration is inevitable. Artists, especially those early in their career, already tend to acquiesce to broken promises to showcase work after omitting formalised agreements or fail to recognise potential oral contracts. As certainty is essential for contracts, careful consideration over the wording is necessary to maintain flexibility in accessing remedies amid the pandemic. Additionally, it is crucial for inexperienced creatives, to formalise negotiations to protect their interests.

Employment Vulnerability Artists are struggling with the heightened precarity of employment during COVID-19. With twothirds of workers being casually employed or freelancers: the Media, Entertainment and Arts Alliance foresaw high job losses with mass event cancellations.6 Section 524 of the Fair Work Act 2009 (Cth) allows employers to stand down employees without pay during a work stoppage that is out of the employer’s control.7 With many artists, musicians, tech crews, venue staff stood down without leave during the pandemic, many have also had to turn to JobSeeker instead of JobKeeper, as the latter’s 12-month employment requirement excludes the gig to gig nature of employment in the industry.8 Those employed at regional galleries and suburban programming art centres have also been sidelined since the package excludes cultural organisations belonging to local or state governments. Even the most recent $250 million package introduced by the government to support the arts and entertainment sector excludes independent artists and smaller businesses, as it focuses on the commercial side of the industry such as event businesses and film productions.9 With the Coalition and Federal Arts Minister Paul Fletcher rejecting calls to broaden the scope of JobKeeper to include casuals employed for less

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than 12 months, changes to employment law and current COVID-19 packages should be modified to accommodate for ‘work structures unique to the arts industry’, and provide a safety net to those that are vulnerable in their precarious line of work.10 Live Streaming and Copyright Lastly, with virtual festivals such as ‘Isol-Aid’, live streaming has risen as an alternative business model. Social media platforms have even facilitated this new model with Facebook allowing artists to charge for access to livestreamed gigs.11 With this innovation, copyright and monetisation issues have driven the industry, as copyright owners are desperate to protect their creative property and retrieve royalties. Under the Copyright Act 1968 (Cth), the use of a person’s creative material is subject to their permission as the copyright owner.12 One can either negotiate with users directly, or join a collecting society who will negotiate licences on their behalf in order to ensure artists are paid when their music is incorporated in a monetised live-stream. However, the proliferation of live-streaming has made it difficult to monitor such activity, particularly as some media platforms stipulate in their terms of service that it is the responsibility of the person who uploads content not to infringe another person’s copyrights. Facebook even goes further to state they may seize ownership of the property once uploaded and may adapt without permission or paying money.13 Additionally, the abstract concept of appropriating a ‘substantial part’ of artistic work as detailed in the Copyright Act sees

Esther Anatolitis, ‘Australia’s arts have been hardest hit by coronavirus. So why aren’t they getting support?’, The Guardian (online, 8 April 2020) <https://www.theguardian. com/world/2020/apr/08/as-we-crave-the-return-of-our-cultural-life-arts-workers-andorganisations-are-being-left-behind>.

1

Belinda Breakspear et al, ‘Legal impact of Covid-19 on the entertainment industry’.

McCullough Robertson (Blog Post, 2 April 2020) < https://www.mccullough.com. au/2020/04/02/legal-impact-covid-entertainment-industry/>.

2

Jennifer Huby, ‘Covid-19: Contracts in the love performance force majeure and frustration of contract’, HWL Ebsworth Lawyers (Blog Post, 8 April 2020) <https://hwlebsworth.com. au/covid-19-contracts-in-the-live-performance-industry-force-majeure-and-frustration-ofcontract/>.

3

Anthony Borgese et al, ‘Covid-19: Force majeure and frustration of your contracts’ Minter Ellison (Blog Post, 24 March 2020) < https://www.minterellison.com/articles/covid-19force-majeure-and-frustration-contract>.

4

5

Davis Contractors Ltd v Fareham Urban District Council [1956] AC 696, 739.

Emilia Terzon, ‘Australia’s arts and entertainment industry thrown into turmoil by coronavirus crowd restrictions’, ABC News (15 March 2020) < https://www.abc. net.au/news/2020-03-15/arts-entertainment-industry-thrown-into-turmoil-bycoronavirus/12057082>.

6

7

Fair Work Act 2009 (Cth) s 524.

Ben Eltham, ‘Australia’s cultural sectoris haemorrhaging money, but the federal government isn’t interested in stemming the flow’, The Guardian (online, 26 May 2020) 8

the difficulty in characterising what an acceptable form of appropriation is, since even copyright bots have difficulty in identifying breaches.14 Therefore, it is critical that artists examine fine service prints and investigate intellectual property rights when monetising their performance and seek permission to avoid a take-down notification.

Moving Forward COVID-19 has unearthed the resilience of the Arts and Entertainment industry, with people reshaping their work to continue to connect with audiences.

However, the pandemic has also unveiled the need to protect the industry’s unconventional work model. Contract law needs to accommodate for the increased uncertainty COVID-19 poses for enforcing responsibilities, and re-evaluate the difficult threshold necessary to satisfy the termination of agreements. Modifications to legislation and packages are necessary to provide everyone in the industry with financial security in their inherently precarious employment, and a greater understanding of the issues behind live-streaming is essential to protect intellectual property rights. Overall, the struggle the industry faces during the pandemic is immeasurable, and Australia may be facing more than just an economic loss if it does not facilitate the creative passion that is vital during these dark times.

<https://www.theguardian.com/culture/2020/may/26/australias-cultural-sector-ishaemorrhaging-money-but-its-not-the-federal-government-stemming-the-flow>.

Elissa Blake, ‘How do we recover?: Australian arts sector fears rescue package won’t be enough to survive’, The Guardian (online, 25 June 2020), < https://www.theguardian. com/australia-news/2020/jun/25/arts-industry-cautiously-welcomes-250m-rescuepackage-saying-its-not-enough-to-ensure-survival>.

9

Paul Fletcher, ‘JobKeeper may not be a masterpiece but it’s keeping arts in the frame’, The Australian (online 9 June 2020) < https://www.theaustralian.com.au/commentary/ jobkeeper-may-not-be-a-masterpiece-but-its-keeping-arts-in-the-frame/news-story/ aa32715a1381a65414408c3726747c0a>.

10

Chris Cooke, ‘Facebook to let artists charge for access to online gigs’, Complete Music Update (Blog Post, 28 April 2020) < https://completemusicupdate.com/article/ facebook-to-let-artists-charge-for-access-to-online-gigs/>.

11

12

Copyright Act 1968 (Cth).

Stuart Green, ‘Making the screen your stage: Understand your IP rights when using online streaming services’, Davies Collison Cave (Blog Post, 30 March 2020) < https://dcc.com/ services/trade-marks/making-the-screen-your-stage-understand-your-ip-rights-whenusing-online-streaming-services/).

13

Copyright Act 1968 (Cth); Michael Andor Brodeur, ‘Copyrights bots and classical musicians are fighting online. The bots are winning.’ The Washington Post (online, 21 May 2020) <https://www.washingtonpost.com/entertainment/music/copyright-bots-andclassical-musicians-are-fighting-online-the-bots-are-winning/2020/05/20/a11e349c98ae-11ea-89fd-28fb313d1886_story.html>.

14

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ANTHEA DINH-TRAM

As COVID-19 was declared a pandemic on the 12th of March 2020,1 governments around the world rushed to shutdown commercial businesses and restrict access to public areas. In Australia, ‘social distancing’ rules forced courts to move their services online. Those rules limited physical in-person contacts to slow the transmission of the novel coronavirus between people.2 The principle of open justice maintains that there is ‘no inherent power of the court to exclude the public’3 from hearings, meaning that the public has the privilege to observe how the courts serve justice.

This article explores how the turn to telephone and videoconferencing by Australian courts following the COVID-19 pandemic,4 prompted a reconsideration of the principle of open justice because it presents several challenges to the way the public can view justice being done. Challenges include: how some non-verbal expressions are difficult to interpret over an online platform, and secondly, how functionality issues along with technology impact upon the formality of the court hearing process. Also, while open-access live streaming may resolve the open justice issue, it brings into question the intended scope of the principle. Although Australian courts will transition back to in-person hearings, this article sparks consideration about whether virtual courtrooms could be practically implemented in the near future.

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Non-Verbal Cues Over an Online Platform The movement to virtual courtrooms by Australian courts presents challenges to the principle of open justice because the public and media may struggle to interpret the facial expressions or body language of court participants. Video conferences are prone to delay, freezing, blurry camera displays, interrupted audio, and so on, which diminish the ability of groups to communicate as they would in person. Researching the impacts of COVID-19 on litigants in court, Sourdin and Zeleznikow found the ‘“building blocks” of trust to be lost’ when proceedings were digitised compared to face-toface communication in the courtroom.5 Hence, this information suggests that as litigants struggle to communicate online, any members of the public or journalists accessing virtual courtrooms would equally struggle to interpret justice being served.

Open justice is affected by online hearings because the non-verbal cues of communication between court participants cannot be accurately captured by video or telephone conversations, leaving room for error in interpretation via the public and media.

Perram J reinforced this idea through the online trial of Capic v Ford Motor Co of Australia Ltd, where he acknowledged the risks of participants being ‘coached’ by others outside of the camera’s view.6 Here, the public’s ability to judge the truthfulness of evidence given in court is limited by the scope of the camera’s view, which the participant controls.

Comparatively, actual court hearings serve justice within the physical walls of the courtroom, so participants’ reactions are scrutinised; they cannot be ‘coached’. Thus, virtual court services highlight challenges to the principle of open justice because difficulties in interpreting the non-verbal cues of hearing participants, especially when judging the truthfulness of their claims, affects the display of justice being served in the public eye.

Tedros Adhanom Ghebreyesus (Director-General, WHO), ‘WHO Director-General’s Opening Remarks at the Mission Briefing on COVID-19’ (Mission briefing, 12 March 2020).

1

Australian Government Department of Health, ‘Physical Distancing for Coronavirus (COVID-19)’ (Media release, 26 June 2020).

2

John Fairfax Publications Pty Ltd v District Court of NSW (2004) 61 NSWLR 344 (Spigelman CJ).

3

See, eg, ‘Online Services’, Federal Court of Australia (Webpage, 26 May 2020) <https://www.fedcourt.gov.au/online-services/online-hearings>.

4

5

Tania Sourdin and John Zeleznikow, ‘Courts, Mediation and COVID-19’ (2020) 48 ABLR

Functionality Issues Impacting Upon the Formality of Court Processes The turn to telephone and videoconferencing by courts, amidst the COVID-19 pandemic, presents another challenge to the principle of open justice, which include technological issues that impact upon the formality of court proceedings.

A literature review indicates that picture freezing, poor sound quality, and unstable internet connections, frequently affect video conferencing experiences.7 In particular, Forell, Lauger, and Digusto expressed that technical difficulties in setting up virtual courtrooms resulted in ‘delays’, which led to additional appointments.8 Although they did not report upon this within the COVID-19 context, the recent shift to online hearings likely faced similar delays because technical issues are so common. Hence, the disruption to the formal processes of hearings affects the delivery of open justice because the public and media may not see justice being served uninterrupted in real-time. It’s furthermore impractical to expect a journalist, who is reporting on a case, to re-attend the hearing at another time, for which they may not be available.

Overall, Australian courts are challenged to uphold open justice during these pandemic times because the public and media may struggle to access hearings, where functionality issues with technology affect the formality of proceedings, possibly disrupting their schedules.

138, 157.

Capic v Ford Motor Co of Australia Ltd [2020] FCA 486; Michael Legg and Anthony Song, ‘Commercial Litigation and Covid-19: The Role and Limits of Technology’ (2020) 48 ABLR 159, 164.

6

See, eg, Phillipa Ryan and Maxine Evers, ‘Exploring eCourt Innovations in New South Wales Civil Courts’ (2016) 5 JCivLP 65-68; Lisa Toohey et al, ‘Meeting the Access to Civil Justice Challenge: Digital Inclusion, Algorithmic Justice, and Human-centred Design’ (2019) 19 Macquarie Law Journal 133, 145.

7

Suzie Forell, Meg Laufer and Erol Digiusto, Legal Assistance by Video Conferencing: What Is Known? (Justice Issues Paper No 15, 2011).

8

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Open-Access Live Streaming and the Scope of the Principle of Open Justice Additionally, while open-access live streaming attempts to emulate the way face-to-face court proceedings publicly display justice being done, challenges to open justice remain, because the original principle9 didn’t necessarily account for an online environment. As some litigants have experienced in the United States,10 moving court processes online can potentially threaten the privacy and personal safety of those involved in the case. Any material published online is permanent and easily accessible to the public, who may convert, download, edit, and share the material.

Such activity cannot occur in a physical court hearing that is unrecorded and judged in realtime. Thus, the increased use of open-access live streaming raises the question of the scope of the principle of open justice, because it allows greater freedoms for the public and media who access the hearings online, to manipulate and distribute what they see. To an extent, it could mean an invasion of privacy, which does not align with the notions of open justice with hearings being conducted in single, sit-in sessions at court.

The other concern following the COVID-19 pandemic’s influence on the shift to online court procedures, is the fact that the court ‘discourages’ the extensive sharing of stream links ‘to minimise interruptions in the virtual courtroom environment’.11 Restrictions on how many people view online hearings affect the practice of open justice because, contrary to the principle belief that ‘anyone who wishes may see how justice is done’,12 not anyone from the public can witness justice being served if it would disrupt the flow of online proceedings.

While open-access live streaming allows courts to continue practising open justice during a pandemic period, it prompts a reconsideration of the intended scope of the principle because it may give the public too much freedom to manipulate content, which they wouldn’t be able to under usual in-person hearing circumstances. Also, the wider public cannot observe how justice is done if the courts must limit the number of people viewing a link at the same time to ensure that the technology runs smoothly.

9

See John Fairfax Publications Pty Ltd v District Court of NSW (2004) 61 NSWLR 344.

Sharon Rodrick, ‘Opportunities and Challenges for Open Justice in Light of the Changing Nature of Judicial Proceedings’ (2017) 26 JJA 76.

10

Conclusion In summary, the shift to videoconferencing and online courtrooms by Australian courts in response to the COVID-19 pandemic prompted a reconsideration of the principle of open justice.

That is because it presents challenges to the public and media’s ability to view justice being served. Most notably, difficulties arise for those viewing the virtual hearing as they struggle to interpret the non-verbal cues, discreet body language and facial expressions of parties in dispute. The public eye cannot judge the parties’ claims because their expressions cannot be accurately read when skewed by technological communication platforms.

Open justice is also challenged by the prevalence of functionality issues regarding technology, such as internet drop-outs, poor sound quality, because the public and media may struggle to access hearings that have been rescheduled. The rescheduling and technical issues diminish the formality of proceedings.

Finally, open-access live streaming suggests limitations to the scope of the principle of open justice. While live streaming services allow public access to a virtual hearing, as would occur with in-person hearings, the fact that internet materials can be saved permanently, downloaded, edited, and even shared, opposes how the public does not possess such manipulative power when visiting courts in-person. Live streaming further limits the number of people viewing the service of justice, which would not occur in the physical courtroom that the principle of open justice is intended to operate within. As the COVID-19 pandemic curve flattens and Australian courts transition back to in-person hearings, this article questions whether virtual courtrooms could be practically implemented in the near future.

Supreme Court of New South Wales, The Virtual Courtroom- Practitioners (Fact Sheet Version 1, 30 April 2020).

11

12

R v Richards & Bijkerk [1999] NSWCCA 114 (Spigelman CJ).

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Governance: The World Health Organisation and The Sovereign States ANDREW HUYNH

“It is not enough for any government to merely assert they are doing what is necessary or effective. The essence of human rights—and democracy—is that the authority of government resides in the people.

We are not passive targets of an oncoming virus, or of governmental programs. Governments must be able to provide adequate and transparent justification for the measures being taken (and those not taken) to contain the virus and protect public health.”

— Alicia Ely Yasmin and Roojin Habibi1 COVID-19 has highlighted how human health is intrinsically connected to the global economy. The pandemic has created political and economic paranoia, which has been exacerbated by the absence of any definitive medical research or the much-awaited panacea — a vaccine. This unprecedented year continues to plague not only society and the economy, but the global

community. International health law is increasingly recognised as integrally linked to traditionally defined realms of international legal concern.2 In a time like this, the world looks to the World Health Organisation (‘WHO’) for leadership. This article analyses the response of this intergovernmental body of the UN and the sovereign states’ handling of this global pandemic.

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Additionally, the theme of leadership will be discussed. Responding adequately to the COVID-19 crisis demands more than just new legislation.

As imperative as the law is when the community is confronted with a public health crisis, legal systems cannot stand on their own. Through strong and consistent leadership, it is possible to secure necessary coordination and co-operation between a state and its local governing authorities. In times of crisis, leadership matters more than anything else.

At the outset, the primary responses to combatting this pandemic, by necessity, have been made by individual states. In each country, leaders are required to coordinate with their state officials in order to support local measures to test, trace and isolate exposed individuals. A substantial connection exists between the significance of national responses to COVID-19 and the functioning global supply chain networks in medical supplies and research.3 Evidently, the individual nature of infection spread highlights the crucial coordination and leadership role that national governments need to play during this pandemic. The exponential spread in countries such as the United States (‘US’) and Brazil, along with unconscionably high fatality rates, tragically reveals what happens when leaders avoid responsibility.4 Thus, as interconnected as the world has become, COVID-19 has highlighted how much governance still remains at the level of the nationstate. Therefore, responses to a global public health emergency depend on a government’s capacity to respond. Notwithstanding centuries of globalisation, most governing capacity around the world still resides within countries, not across them.

Furthermore, the role of WHO is to provide leadership by improving national legal compliance, transparency, and accountability.5 Many nations lack basic laws and regulations that are needed to comply with WHO’s International Health Regulations, as well as to support effective public health systems. If the laws and regulations do exist, they are often outdated or poorly designed.6 The development of legal infrastructure is hindered by the inaccessibility of information regarding domestic health laws, which reduces transparency and a nations’ accountability for meeting their international obligations.7 Although the presence of specific laws is not adequate for a strong health system generally, or for effective legal interventions in specific threats, the law matters for effective health practice.8 Yet currently, the national legal situation in most countries that are at risk of a health crisis is opaque.9

The WHO’s capacity to succeed in global cooperation is contingent on political consensus.

The willingness of governments to support will depend on factors external and internal to WHO. Governmental support may also depend partly on the assessment of WHO’s organisational capacity, that is, the organisation’s existing strengths and past successes in contributing to the management of global health law. Recently, leaders at WHO failed to overcome institutional tentativeness to issue earlier warnings regarding COVID-19.10 As a result, the legal effectiveness of WHO has been severely criticised, to the point where the US has moved to formally withdraw from the organisation.11 Thus, in the future, nation-states will likely evaluate how WHO has handled COVID-19, and take note of its capacity to address global health law matters, recommendations, public health expertise, and legal capacity that is necessary for complex, multilateral negotiations and forming treaties.

A global pandemic has exposed how much, even in a globalised world, governance remains at the level of the nation-state. Responses to a global public health emergency depend on a government’s capacity to respond. Even though this article has focused on legal issues, it cannot be overlooked how much the effectiveness of the law, especially administrative law, depends on responsible leadership. Only with honest, informed, and active leadership, can governments even hope to stay afloat through the treacherous waters ahead. Thus, the extent to which WHO will be able to provide such leadership in the rapidly evolving field of international health law will have an important influence on the collective ability of intergovernmental organisations to promote effective global cooperation to address global health issues.

Yamin Alicia Ely and Habibi Roojin, ‘Human Rights and Coronavirus: What’s at Stake for Truth, Trust and Democracy’ (Blog post, 1 March 2020) <https:// www.hhrjournal.org/2020/03/humanrights-and-coronavirus-whats-at-stakefor-truth-trust-and-democracy/>.

1

Allyn Taylor, ‘Global governance, international health law and WHO: looking towards the future’(2002) 80(12) Bulletin of the World Health Organization 975.

2

Cary Coglianese, ‘Law, Leadership, and Legitimacy in a Time of Disease’, The Regulatory Review (Opinion piece, 6 July 2020) <https://www.theregreview. org/2020/07/06/coglianese-lawleadership-legitimacy-time-disease/> (‘Law, Leadership, and Legitimacy in a Time of Disease’).

3

4

Ibid.

Géraldine Marks-Sultan et al, ‘National public health law: a role for WHO in capacity-building and promoting transparency’ (2016) 94(7) Bulletin of the World Health Organization 534-539.

5

6

Ibid.

Dominique Sprumont, ‘Options to streamline the reporting of and 7

communication with Member States, Internal report to WHO on EB132/5 Add. 4 (2013) Neuchâtel Institute of Health Law. Lawrence Gostin et al, ‘SARS and international legal preparedness’ (2004) 77(2) Temple Law Review 155–74.

8

Amir Attaran et al, ‘Healthy by law: the missed opportunity to use laws for public health’ (2012)` 379 Lancet 283.

9

Coglianese, Law, Leadership, and Legitimacy in a Time of Disease (n 3).

10

‘US to leave WHO next July after Donald Trump criticism of coronavirus response’ ABC News (Online, 8 July 2020) <https:// www.abc.net.au/news/202007-08/us-president-donaldtrump-withdrawal-from-whocoronavirus/12432814>.

11

Tedros Adhanom Ghebreyesus, ‘WHO Director-General’s opening remarks at the media briefing’ (Speech, 9 March 2020).

12

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“We are not at the mercy of this virus,” — “Let hope be the antidote to fear.”

“Let solidarity be the antidote to blame.”

“Let our shared humanity be the antidote to our shared threat” — DR TEDROS ADHANOM GHEBREYESUS12

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Supplying Therapeutic Goods During COVID-19 Can You Expedite Safety and Quality?

LAUREN KREJCI

COVID-19 has transformed everything by leaps and bounds — the supply of therapeutic goods in Australia has been no exception.

In the months since the onset of the virus, there has been a surge in demand for the manufacture, importation and sale of important medical supplies.

COVID-19 has revealed the intricate balance between safeguarding the efficacy of therapeutic goods and hastening regulatory approval, which begs the question — can you expedite safety and quality?

‘Business as Usual’ The Therapeutic Goods Act 1989 (Cth) (‘the Act’) sets out the requirements for legally supplying therapeutic goods in Australia, which is administered by the Therapeutic Goods Administration (‘TGA’).

The definition of a ‘therapeutic good’ under the Act is very broad. Goods that are represented to have, or that have, a ‘therapeutic use’1 such as the prevention or cure of a disease, defect or injury, will be considered a ‘therapeutic good’. This definition also includes testing for pregnancy, controlling or preventing conception, as well as influencing, prohibiting or modifying a physiological process.2 In ‘business as usual’ circumstances, all therapeutic goods must be entered in the Australian Register of Therapeutic Goods (‘ARTG’) before they can be legally supplied in Australia. Therapeutic goods are classified according to the level of risk that they pose to the patient and different regulatory requirements apply depending on the classification. For example, manufacturers of higher risk medical devices (class III) are required to make a Declaration of Conformity with essential quality principles and classification rules.3

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Therapeutic goods must also be manufactured in accordance with ‘good manufacturing practice’ (‘GMP’), which is ‘certified’ by the TGA through site inspections. Available evidence must be evaluated prior to inclusion on the ARTG. Higher risk devices also have extensive post-market regulation, including ongoing monitoring of performance and safety.

A State of Emergency It may take several years for certain therapeutic goods to satisfactorily comply with the usual regulatory requirements. Evidently, this is inefficient during a state of emergency and the TGA has implemented various measures to expedite the process.

An important pre-existing tool is the use of timelimited exemptions. The Act vests emergency powers in the Minister for Health to adjust the regulatory requirements for legally supplying therapeutic goods in Australia. Under section 18A of the Act, the Minister may exempt specified therapeutic goods from inclusion on the ARTG and listing requirements in order to prepare for a potential threat to public health or to deal with an actual threat caused by an emergency.4 A number of these exemptions have been granted since the onset of COVID-19. The Therapeutic Goods (Medical Devices — Ventilators) (COVID-19 Emergency) Exemption 2020 exempts manufacturers of ventilators from inclusion on the ARTG, essential quality principles and conformity assessment procedures. Ventilators supplied under the exemption must be manufactured within Australia and only supplied to Australian healthcare facilities.5 Another example is the Therapeutic Goods (Medical Devices — Accredited Pathology Laboratories) (COVID-19 Emergency) Exemption 2020 for COVID-19 test kits.6 The TGA has also established an expedited reviews pathway. Any applications for medical devices that are associated with the detection, prevention or treatment of COVID-19 are currently being prioritised. An expedited recall pathway has also been established to ensure that products that do not meet the requirements of the COVID-19 exemptions are quickly removed from the market.

Finally, the TGA has entered into agreements with international authorities such as the US Food and Drug Administration (‘FDA’). Some of these agreements allow the TGA to use evidence of GMP provided by international regulatory authorities as part of the clearance process in Australia.

The Post-Pandemic World The TGA’s response to the pandemic has already raised some concerns about safety, particularly in regards to the use of time-limited exemptions from compliance with regulatory requirements such as the essential quality principles.

The devastating effects of inadequate pre and post-market regulation for medical devices has been observed before. In Gill v Ethicon Sarl & Ors,7 it was held that the medical devices giant Johnson & Johnson had contravened several sections of the Trade Practices Act 1974 (Cth) (now the Competition and Consumer Act 2010 (Cth)) in its distribution of vaginal mesh products to treat urinary incontinence and pelvic prolapse.

The products caused chronic pain and serious complications in over 1,000 Australian women. The lack of clinical evidence and non-compliance with post-market regulatory requirements constituted a ‘safety defect’ in the product.8 The TGA’s approval of a medical device is not a complete defence to a defective goods claim.

Unlike the United States, Australia has not granted immunity to suppliers of medical devices during the pandemic. It is arguable that some defences under section 142 of the Australian Consumer Law,9 such as compliance with a ‘mandatory standard’10 or the state of scientific knowledge,11 may be applicable.

However, manufacturing and supplying therapeutic goods under an exemption is at the discretion of the sponsor or manufacturer and is therefore not ‘mandatory’. Further, if a defect causing injury was discoverable but not investigated due to expedited product development, it is likely that the ‘scientific knowledge’ defence would not apply.

As we slowly navigate our way into the postpandemic world, it is important that the TGA continually conducts post-market reviews of any high-risk therapeutic goods that were supplied under exemptions. This way, there can be some assurance as to the safety and quality of these products.

1

Therapeutic Goods Act 1989 (Cth) s 3 (definition of ‘therapeutic goods’) (‘TGA’).

2

Ibid s 3 (definition of ‘therapeutic use’).

3

Therapeutic Goods (Medical Devices) Regulations 2002 (Cth) r 1.8.

4

TGA (n 1) s 18A(2).

Therapeutic Goods (Medical Devices — Ventilators) (COVID-19 Emergency) Exemption 2020 (Cth) s 6.

5

Therapeutic Goods (Medical Devices — Accredited Pathology Laboratories) (COVID-19 Emergency) Exemption 2020 (Cth) s 6.

6

7

Gill v Ethicon Sarl & Ors (No 5) [2019] FCA 1905.

8

Ibid [2826].

9

Competition and Consumer Act 2010 (Cth) sch 2.

10

Ibid s 142(b).

11

Ibid s 142(c).

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Is Australia’s competition law framework capable of addressing the effects of COVID-19?

MERIAM AYAD

THE FULL BENCH VOL. 2, 2020 — 54

In times of economic crisis — as observed during COVID-19 — many issues arise in the competition sector, particularly the formation of cartels and an increased need for mergers and acquisitions (‘M&As’). Australia’s competition framework has deviated somewhat from the response of its international counterparts. While some jurisdictions have broadly authorised the formation of cartels (what some may consider to be crisis cartels), the Australian Competition and Consumer

Commission (‘ACCC’) has instead relied on the interim authorisation model. Furthermore, while some jurisdictions have relaxed their M&A screening processes, and accepted the Failing Firm Defence (‘FFD’), the ACCC has made clear that it will do no such thing. Finally, Australia’s competition law framework has adapted to the realities of COVID-19 through amendments to legislation that seeks to protect the national interest and market competition.

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Crisis Cartels Versus Interim Authorisation Competitors must not collaborate to fix prices, rig bids, share markets or restrict outputs. 1 However, economic theory suggests that during times of economic crisis there is an increased incentive to cartelize.2 As demand for certain products soar or plummet, businesses may find themselves struggling to maintain supply and remain competitive. Cartels in times of economic crisis then almost become a necessity.3 Competition frameworks must subsequently address cartel formation in a way that balances the need for them with a long term competitive market.4 During previous economic crises, some countries have broadly authorised the formation of crisis cartels.5 Recently, the UK issued guidance that coordination between competitors undertaken solely to address concerns arising from the current crisis will not be pursued by the Competition and Markets Authority (‘CMA’).6 The US, Iceland, Norway and South Africa have taken similar approaches.7 The ACCC has avoided authorising crisis cartels so broadly, instead adopting a case-bycase assessment and granting interim authorisations.8 Given the international examples, it is interesting to consider whether interim authorisations are in fact an appropriate response, or if the ACCC should instead authorise crisis cartels.

Interim authorisations are conditional upon evidence that the public benefits of the proposed conduct outweigh detriment to the public. 9 While academics have noted the high threshold this test imposes, 10 the ACCC appears to be granting interim authorisations relatively liberally.11 Furthermore, the ACCC can attach conditions to authorisation, such as reporting or that ACCC officials observe meetings. These conditions were part of the interim authorisation granted to the NBN and telecommunication organisations.12

It is also important to note that interim authorisations are readily revocable. For example, the ACCC recently revoked an interim authorisation granted to car rental companies, due to a change in market conditions brought on by COVID-19.13 These elements demonstrate the flexible nature of interim authorisations, which allow the ACCC to control authorised cartels in a way that broad crisis cartel authorisation cannot. For example, the ACCC is able to actively monitor the unwinding of authorised collaborations after the crisis.14 The ACCC has continued to grant numerous interim authorisations which provide profound benefits to the public, including through the authorisation granted to the Australian Banking Association to allow banks to coordinate and implement relief packages.15 The ACCC’s reluctance to broadly authorise crisis cartels may be prudent in light of criticism that the US’ encouragement of crisis cartels during the great depression may have impeded recovery from the crisis. 16 The OECD has also concluded that the merits of crisis cartels do not warrant the risk of profound competition issues post-crisis.17 Commentators have praised the ACCC’s approach as providing a higher level of certainty for businesses who may be left wondering whether their conduct falls within the limits of a broad authorisation.18 Therefore, given the strict requirements authorisation, conditions imposed and their revocable nature, interim authorisations appear to appropriately equip the ACCC to balance the need for cartels during times of economic crisis with the need to protect consumers through a competitive market.

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Mergers and Acquisitions (M&A) Domestic As some businesses have financially collapsed due to the pandemic, many have found that a merger of acquisition by a larger, more stable, firm is the solution. In response, some international competition authorities have historically accepted the FFD.19 FFD is usually applied during times of economic crisis, where a firm would exit the market if not for the proposed M&A.20 The defence allows for the merger to go forward — even if it would otherwise be considered anti-competitive.21 The reasoning is threefold: Firstly, consumers could be disadvantaged when a competitor leaves the market; secondly, the assets of the failing firm continue to operate; and thirdly, fewer jobs are lost.22 Academics have recognised that a new wave of M&As to rescue companies may be inevitable.23 Indeed, the CMA allowed Amazon’s investment in Deliveroo after the latter submitted evidence that the impact of the pandemic had compromised the company financially and exiting the market was imminent without Amazon’s investment.24 The CMA reasoned that the loss of Deliveroo as a competitor would be more detrimental to competition than allowing Amazon’s investment.25 The decision has been hailed by some academics as a prime example of why other competition authorities should revive or embrace FFD.26 Nonetheless, the ACCC announced screening processes will not be relaxed,27 and will continue to refuse authorisation for M&As that are likely to substantially lessen competition.28 In light of the international example, it is intriguing to consider whether the ACCC’s current approach is sufficient, or if Australia should adopt FFD. The ACCC’s approach focuses on the long term impacts of the proposed merger on competition in the market.29 Consequently, a number of failing firms will not receive merger authorisation, and will be forced to exit the market. This leaves the market with one less competitor, less assets and job losses. 30 Conversely, the ACCC’s approach allows them to ensure that large firms do not collect others to increase their market power. FFD

mergers inherently mean that the market will have one less competitor post-merger and one firm will enjoy increased market share/ power.31 Therefore, both FFD and the ACCC’s approach result in one less competitor in the market. The difference is that under FFD, the merged entity acquires more market power which can be detrimental to competition in the long term. Comparatively, the ACCC’s approach is more controlled, as no market player acquires more market power. This reasoning has been adopted by academics, with many urging to temporarily ban mergers involving companies with more than $100 million in annual revenue in order to avoid market concentration.32 On this basis, it appears the ACCC’s reluctance to adopt the FFD is well founded. The current framework maintains the scrutiny necessary to ensure the competitiveness of the market postcrisis and recognises that short-term gain may be doubly detrimental in the long term. The ACCC will still consider and authorise mergers where appropriate; the current framework balances the current circumstances and needs of competitors with the need to maintain a competitive market.

Foreign In light of the pandemic, concerns have been raised that overseas investors may seek to acquire Australian assets and companies under the cover of COVID-19.33 In view of this, legislative amendments were introduced to effect the Treasurer's decision to reduce all monetary screening thresholds for foreign investment to $0.34 The Treasurer will consequently review a wider range (and greater number) of applications from foreign investors. This is to ensure that foreign investments are not detrimental to the national interest. Whether an investment is contrary to the national interest includes considerations of competition implications.35 This precautionary measure is a step in the direction of ensuring the competition framework is capable of addressing the effects of COVID-19.

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Conclusion While Australia’s competition framework has strayed from the international response to the COVID-19 pandemic, it is by no means inferior.

The response thus far has been focused on taking temporary measures to address new realities, and ensuring that post-crisis markets remain competitive. Interim authorisations provide businesses a definitive answer about whether their conduct falls outside of the ACCC’s limits, and see that collaborations between competitors are heavily scrutinized, monitored and controlled.

The ACCC’s decision against relaxing the M&A screening process, and rejection of FFD, is vital in ensuring that the post-crisis market is a competitive one. Given the permanent nature of M&As, the ACCC can seldom be condemned for being cautious of predatory activity from large firms seeking to take advantage of the situation.

Furthermore, the reduction of monetary screening thresholds for foreign investments safeguards Australia’s national interest and seeks to preserve competition. In light of these measures, it appears that Australia’s current competition law framework is sufficiently capable of addressing competition issues arising from the reality of COVID-19. It is important to remember that the purpose of Australia’s competition framework is to protect competition in markets.36 The current framework seeks to balance this objective with the needs of businesses and corporations — the scale cannot be tipped one way or another. While it is certainly a challenging task, Australia’s competition framework seems well equipped.

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1

Competition and Consumer Act 2010 (Cth) s 45AD (‘CCA’).

Lia Vitzilaiou, ‘Crisis Cartels: For Better or for Worse?’ (2011) 2 Competition Policy International Antitrust Chronicle 1, 5.

2

Alison Jones, ‘Cartels in the time of COVID-19’ (2020) 8(2) Journal of Antitrust Enforcement 287, 287.

3

4

Vitzilaiou (n 2) 1.

Spencer Weber Waller, ‘The Antitrust Legacy of Thurman Arnold’ (2004) 78(3) St. Johns Law Review 569, 572.

5

Competition & Markets Authority, CMA approach to business cooperation in response to COVID-19 (March 25, 2020) 1.5.

6

Ivana Rakić, ‘Competition Law in the age of COVID-19’ (2020) 68(2) Annals of the Faculty of Law in Belgrade 25, 37.

7

8

CCA (n 1) s 88.

9

Ibid s 90(7).

Jessica Apel and Barbora Jedlickova, ‘Competition in “Lockdown” After the Attack of COVID-19 in Australia’ Competition Policy International (6 April 2020) < https://www. competitionpolicyinternational.com/competition-in-lockdown-after-the-attack-of-covid-19in-australia/>.

10

Frederic Jenny, ‘Competition Law Enforcement and the COVID-19 Crisis: Business As (Un) usual?’ SSRN (May 20, 2020) <https://ssrn.com/abstract=3606214>.

11

Australian Competition and Consumer Commission, ‘NBN Co Limited and Ors — application for authorisation AA1000483’ (Interim authorisation decision, 31 March 2020).

12

Australian Competition and Consumer Commission, ‘Car rental operators at Cairns Airport — Application for authorisation’ (Interim authorisation decision, 13 February 2020).

13

Rod Sims ‘Competition law in times of crisis—tackling the COVID-19 challenge: Australian Competition and Consumer Commission’ (2020) 8(2) Journal of Antitrust Enforcement 264, 265.

14

Australian Competition and Consumer Commission, ‘Australian Banking Association — Application for authorisation AA1000475’ (Interim authorisation decision, 20 March 2020).

15

James Miller et al, ‘Industrial Policy: Reindustrialization Through Competition or Coordinated Actions?’ (1984) 2(1) Yale Journal on Regulation 1, 18.

16

Organisation for Economic Co-operation and Development, ‘Review of the Recommendation of the Council concerning Effective Action against Hard Core Cartels’ (4 July 2019).

17

18

Apel (n 10).

19

Rakić (n 7) 50.

20

Ibid 51.

Francisco Costa-Cabral et al, ‘EU Competition Law and COVID-19’ SSRN (27 March, 2020) <https://ssrn.com/abstract=3561438>.

21

22

Ibid.

23

Ibid.

Competition and Markets Authority, ‘Anticipated acquisition by Amazon of a minority shareholding and certain rights in Deliveroo’ (Summary of provisional findings, 16 April 2020).

24

25

Ibid.

26

Jenny (n 11).

Rod Sims, ‘Will competition survive the current crises’ (Speech, Australian Financial Review Banking & Wealth Summit Crisis Briefing, 30 March 2020).

27

28

Ibid; CCA s 50.

Australian Competition and Consumer Commission, ‘COVID-19 pandemic — what it means for ACCC merger clearances, authorisations, notifications and CTMs’ (Media Release, 27 March 2020).

29

30

Costa-Cabral (n 21).

31

Ibid.

32

Ibid.

Foreign Investment Review Board, ‘Q&A — Temporary changes to foreign investment framework’ (Media Release, 29 March 2020).

33

34

Foreign Acquisitions and Takeovers Amendment (Threshold Test) Regulations 2020 (Cth).

35

Interview with The Hon Josh Frydenberg (Virginia Trioli, ABC Radio, 30 March 2020).

Australian Competition and Consumer Commission, ‘ACCC protects competition not competitors’ (Media Release, 12 October 2007).

36

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Pandemic Politics: Investigating Civil Liberties in the Context of a Global Contagion ADRIAN ZAJACZKOWSKI

We are living in a time of global turmoil and crisis.

COVID-19 has killed countless people, crippled entire economies, and caused serious ramifications to the way we work, study and socialise. The last thing we need is to add another item to the long list of casualties to our way of life in 2020.

And yet depending on who you speak to, there is one particular issue that is missing from this list: our civil liberties. This article explores claims of administrative overreach, allegations of human rights abuse and the removal of our civil liberties all in the context of a global pandemic.

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Mask Mandates To help combat growing numbers of infections in the State of Victoria, the Chief Health Officer ordered that from mid-July, the use of masks would be mandatory in certain regions.1 Now, of course, it only took a few days for instances of non-compliant behaviour to surface, some of them in a spectacular fashion. Humble Bunnings Warehouse employees had even become a target of ridicule — accused of abusing a customer’s human rights.2 The question here is: is there any merit to this claim?

The task of identifying what explicit rights we have would be made easier with an Australian Bill of Rights that would enshrine and protect those said rights. Instead, at a Federal level, we rely on the common law, international law and various ethical and jurisprudential schools of thought to derive our human rights. Fortunately, the jurisdiction in which we are interested does have a codified law — the Charter of Human Rights and Responsibilities Act 2006 (Vic). Any new piece of Victorian legislation must be checked for compatibility with the charter before its enactment. This is likely the case because

the charter itself is a standard piece of legislation and were it to come into conflict with another law, there is no priority rule on inconsistencies that would allow the charter to prevail. The inconsistencies are eliminated at the outset by this ‘compatibility’ assessment.

We know then that there is a mechanism in place to ensure human rights are protected. But has there been a case of administrative oversight or is there simply no corresponding right that would allow a person to refuse compliance with a mandatory mask order? It appears that the latter would be the case. In fact, international law, namely the 1948 Universal Declaration of Human Rights, would appear to support a mask mandate: ‘[e]verybody has the right to life, liberty and the security of person.’3 There is a large web of law that covers the intricacies of human rights, but ultimately the Chief Health Officer has broad powers to issue any order that is necessary to protect the residents of Victoria during a health crisis.4 Mandatory mask orders do not impinge on our civil liberties and rights.

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Freedom of Assembly The world reacted with anger over George Floyd’s death in the USA. Protests around the world were planned and executed in quick succession although there was fierce debate as to whether the timing of these protests was appropriate. Any civil liberties proponent should balk at the idea of public health orders that restrict our freedom to assemble and in turn, fight for other freedoms. In addition, protests are a vital part of government accountability: it is arguably one of the most effective ways that citizens can get involved in politics and social issues. What takes priority?

And how do we reconcile with the idea that we need to choose one cause over another? As with most things in the law, it comes down to a balancing exercise.

The Lange test considers whether a law is validly executed in accordance with the implied freedom of political communication.5 In this case, we are enquiring into the validity of public health orders made under the authority of the Public Health Act 2010 (NSW), which temporarily restricts assemblies and large gatherings.6 The test asks whether the law: 1. burdens communication on government and political matters; 2. if so, is the law legitimate in its purpose; and 3. is the law reasonably appropriate and adapted to advance that purpose and still be compatible with the ideas of responsible and representative government?

It is quite clear that COVID-19 restrictions are a burden on our freedom to express political views.

However, this burden does serve a legitimate purpose: the orders were put in place to ensure the safety of the community. To determine if the law could have been drafted better, i.e. with fewer restrictions to be appropriately adapted, we come to the McCloy proportionality analysis.7 This stage of the test is an enquiry into the proportionality of the law. Maria O’Sullivan, a Member of the Castan Centre for Human Rights Law, writes that the public health orders fail the Lange test at the third step.8 That is to say, they are not a proportional response to the pandemic, the reason being that a blanket ban on gatherings is too restrictive. She argues that if protesting was defined as one of the ‘essential’ activities in the regulations, then so long as protesters abide by social distancing, mask mandates and other requirements safely, then the freedom of political communication could continue to exist uninhibited.

Professor Rick Sarre from the University of South Australia also makes a valid argument. In the context of mandatory mask orders, he says that all rights compete with one another.9 He provides an example too, stating that a person's right to speak freely ends when it comes within the scope of defamation laws. This simple black-letter-law approach could be applied to this scenario. The restrictions are in place to protect the well-being of the community which conflicts with and overrides any freedom of assembly. However, this would appear to be more anecdotal than anything as it does not purport to utilise any real constitutional tests.

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Contact Tracing In April 2020, the Federal Government launched the COVIDSafe app as a way to stem further outbreaks in the community.10 Despite being advertised as a critical weapon in the fight against a global pandemic, it failed to achieve the desired bipartisan support, with the opposition ridiculing the app and its $2 million price tag.11 By early June, the app had identified no close contacts,12 (this has since changed with over 500 new contacts being identified of which two tested positive — a small percentage of the thousands of confirmed cases domestically).13 The apparent ineffectiveness of the COVIDSafe app only exacerbated existing concerns as many were left wondering if trading in their privacy rights was worth the negligible benefits.

At launch, the NSW Council for Civil Liberties (NSWCCL) raised questions over how data would be stored online rather than on-device.14 In particular, the organisation argued for stricter privacy policies regarding information collection and when data would cease to be stored. There was also a recommendation that a person should not be able to subpoena COVIDSafe data.

Interestingly, the NSWCCL raised hypothetical questions such as how a mandatory scheme would work, including refusing entry to places for those who do not have the app installed.

privacy concerns or breaches of best practices. This is a great example of government accountability in action, which has resulted in greater transparency.

Since then, some of the initial fears surrounding the app have been allayed. It appears that so long as the use of the COVIDSafe app remains opt-in, the service is fairly benign. It is up to the end-user to consent to data collection.

Conclusion The nature of the current crisis has caused widespread changes to many facets of life, including how we gather, what we are told to do, where we can go and how we are tracked.

While some claims of rights abuse can be easily dispelled, others take a little more consideration and will be found to have merit. Current restrictions stemming from legislation attempt to be objective, but there will always be an element of subjectivity. To whom do exemptions apply? Has the government’s response been proportional?

The law is never static. Ideally, it would be easier to make a determination as to whether clear civil liberties abuses have occurred if Australia opted to enact a human rights charter. Perhaps one thing to come out of this pandemic would be a renewed debate on that topic.

Amendments made to the Privacy Act 1988 (Cth) in May gave effect to some recommendations made by civil liberties advocates.15 New penalties were introduced for unauthorised disclosure of app data and provided broader powers to the Office of the Australian Information Commissioner to oversee matters relating to the app. The recent amendments even allow a user to withdraw consent by requesting all their data to be deleted off servers.16 The source code of COVIDSafe was also disseminated so that software developers and the broader public could identify any potential Department of Health and Human Services Victoria, ‘Face coverings mandatory for Melbourne and Mitchell Shire’ (Web page, 19 July 2020) <https://www.dhhs.vic.gov.au/updates/ coronavirus-covid-19/face-coveringsmandatory-melbourne-and-mitchellshire>.

1

‘Melbourne Bunnings customer who refused to wear mask slammed by medical and legal experts’, SBS News (online, 26 July 2020) <https://www. sbs.com.au/news/melbourne-bunningscustomer-who-refused-to-wear-maskslammed-by-medical-and-legal-experts>.

2

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

3

Public Health and Wellbeing Act 2008 (Vic) ss 199–200.

4

5

Lange v Australian Broadcasting

Corporation [1997] HCA 25 (subsequently modified by further case law).

Public Health (COVID-19 Restrictions on Gathering and Movement) Order (No 4) 2020 (NSW).

6

7

McCloy v NSW [2015] HCA 34.

Maria O’Sullivan, ‘Protest in a Pandemic — The Special Status of Public Spaces’, AUSPUBLAW (Blog post, 27 July 2020) <https://auspublaw.org/2020/07/ protest-in-a-pandemic-the-special-statusof-public-spaces/>.

8

Sophie Meixner, ‘Face mask requirement does not infringe on human rights or constitutional freedoms, lawyers say’, ABC News (online, 28 July 2020) <https://www.abc.net.au/news/202007-28/face-mask-melbourne-mitchellshire-coronavirus-legal-humanright/12494100>.

9

‘COVIDSafe: New app to slow the spread of coronavirus’, Department of Health (Federal) (Web page, 27 April 2020) <https://www.health.gov.au/ news/covidsafe-new-app-to-slow-thespread-of-coronavirus>.

10

Jane Norman, ‘Deputy CMO urges Australians to download and activate coronavirus contact-tracing app following updates’ ABC News (online, 9 August 2020) <https://www.abc.net. au/news/2020-08-09/australiansencouraged-to-activate-covidsafecoronvirus-app/12539494>.

11

Ariel Bogle, ‘COVIDSafe has been downloaded by millions, but yet to identify contacts (and authorities say that’s a good thing)’, ABC News (online, 11 June 2020) <https://www.abc.net.au/ news/science/2020-06-11/coronaviruscontact-tracing-app-covid-safe-no-closecontacts/12343138>.

12

13

Norman (n 11).

Amanda Keeling, ‘Privacy and digital COVID-19 contact tracing’, New South Wales Council for Civil Liberties (Web page, 20 April 2020) <https://www. nswccl.org.au/privacy_and_digital_ covid_19_contact_tracing>.

14

Privacy Amendment (Public Health Contact Information) Act 2020 (Cth).

15

Patricia Monemvasitis and Yue Lucy Han, ‘COVIDSafe App — Part Two: Legislation passed to address privacy concerns — What it means for you’, Mondaq (online, 18 May 2020) <https://www.mondaq. com/australia/operationalimpacts-and-strategy/935542/ covidsafe-app-part-two-legislationpassed-to-address-privacy-concerns-what-it-means-for-you>.

16

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THE FULL BENCH VOL. 2, 2020 — 64

Do You Pull the Lever?

ANASTASSIA SIMONIAN

2020 has been eventful — that goes without saying.

After all, that is the subject of this entire publication.

This article will look at an interaction of two of these events and how the law responded to it: Black Lives Matter (BLM) Protests during a global pandemic.

In particular, this article will discuss the BLM protests in Australia and the Supreme Court decision concerning the legality of these protests.

By way of introduction, the overall BLM movement is understood to have commenced in 2013. It was a response to the acquittal of Trayvon Martin’s murderer, George Zimmerman. BLM is a social movement that aims to liberate Black people with the primary aim being to fight against institutional and systemic violence.1 In 2020 the BLM movement has resurfaced, garnering international attention following the death of George Floyd at the hands of Minneapolis police. It is estimated that 15-26 million participated in the BLM protests in the United States (US), making it one of the largest movements in US History.2 Indeed, it inspired protest globally.3 Australians who watched the footage of George Floyd’s death have been pointing to a similar incident that took place in Long Bay gaol involving the life of a young Aboriginal man, David Dungay Junior.4 It is not an isolated incident, either. There have been 432 such deaths in our backyard since 1991 without a criminal conviction.5 In showing solidarity with US protestors, a rally at Sydney’s Town Hall ‘Stop All Black Deaths in Custody — Black Lives Matter’ took place on Saturday the 6th of June.

However the day prior, the Police Commissioner moved to have the event banned, and the NSW Supreme Court ruled it could not go ahead, drawing on evidence from NSW Health. The thousands set to attend were suddenly all about to break the law — so they thought.

Part 4 of the Summary Offences Act 1988 (NSW) contains the authorisation of a public assembly.

Section 23 provides that a rally organiser must present to the Commissioner an official notice that outlines details of the assembly at least seven days before its scheduled date. Amendments may be made to a sectioned assembly under Section 24 of the Act, given that the Commissioner agrees to those changes. Finally, Section 26 provides that if a notice is served less than seven days before an assembly, then a court must provide an authorisation.6 In short, amendments were made to the Notice of Assembly. In the first instance, Justice Fagan found that they were not agreed to, and that they were not lodged seven days prior. The rally could not go ahead. So, an urgent appeal with the Supreme Court was lodged, three hours before the planned rally.

Ten minutes later, it was announced that the appeal had been successful.

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On appeal, Justices Tom Bathurst, Andrew Bell and Mark Lemming found that: Justice Fagan had erred in finding that the form had not been lodged within the set time, that the changes had led to a new notice and that the Commissioner had not approved the amended notice. Accordingly, there was no need to consider whether court authorisation was needed.

The rally could go ahead, and it did — successfully.

Despite the concerns about transmission, those that attended the rally in Sydney remained at a safe distance from one another. For that reason, there have been no recorded transmissions traced to the Sydney rally (to date).

Okay — so why the title? What’s the relevance of a lever? Well, this situation is reminiscent of the famous trolley problem. It’s a thought experiment that models an ethical dilemma, and it goes like this:

Black Lives Matter, ‘Herstory,’ Black Lives Matter <https://blacklivesmatter.com/ herstory/>.

1

Larry Buchanan, Quoctrong Bui and Jugal K. Patel, ‘Black Lives Matter May Be The Largest Movement in U.S History,’ The New York Times (Online, 3 July 2020) <https:// www.nytimes.com/interactive/2020/07/03/us/george-floyd-protests-crowd-size.html>.

2

Aleem Maqbool, ‘Black Lives Matter: From Social Media Post to Global Movement,’ BBC News (Online, 10 July 2020) <https://www.bbc.com/news/world-uscanada-53273381>.

There is a runway trolley barrelling down a set of railway tracks, headed towards five people that are tied to the tracks. You can pull a lever that switches the trolley to a different track where there is only one person tied to them. You have only two options: do nothing or pull the lever?7

Lorena Allam, ‘’Deaths in our backyard’: 432 Indigenous Australians have died in custody since 1991,’ The Guardian (Online, 1 June 2020) <https://www.theguardian. com/australia-news/2020/jun/01/deaths-in-our-backyard-432-indigenous-australianshave-died-in-custody-since-2008?fbclid=IwAR1fSvrqONMvXb7Cn__mcP7rTgD1Jq8rJONMX8AFEJN4Ed3I5ssYOlzhtw>.

5

6

3

Paul Gregoire, ‘“I can’t breathe”: ISJA’s Raul Bassi on the George Floyd-David Dungay Rally,’ Sydney Criminal Lawyers (Online, 2 June 2020)<https://www. sydneycriminallawyers.com.au/blog/i-cant-breathe-isjas-raul-bassi-on-the-george-floyddavid-dungay-rally/>.

4

Summary Offences Act 1988 (NSW) pt 4.

Omid Panahi, ‘Could There Be A Solution To The Trolley Problem?’, Philosophy Now (Online, 2016) <https://philosophynow.org/issues/116/Could_There_Be_A_Solution_ To_The_Trolley_Problem#:~:text=No%20Solution%2C%20No%20Problem&text=Like%20 most%20philosophical%20problems%2C%20the,as%20moral%20agents%20are%20 recognized.>.

7

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This problem is an ethical challenge for us today.

We know that the BLM movement exists because the lives of Black and Indigenous peoples are at stake. We also know that the pandemic has called for the need to restrict large gatherings. Many of us had genuine concerns about the rally and about attending the rally.

That was the sentiment globally. Other countries had already been protesting (and with worse community transmission numbers). The judgement to risk COVID-19 transmission in favour of protesting had already been made and cultural momentum meant that Australians had the choice to jump off the cart, or hop on the 1-person track.

Let’s construct some new premises for this scenario.

Alas, time and time again the law is at a crossroad like this. And, though the Supreme Court decision had a lot more to do with procedure than public policy — we understand that the law has real social outcomes. As for the lever, the trolley problem is not designed to have a clear solution. It is designed to provoke discourse that appreciates the difficulty in resolving moral dilemmas and that highlights our limitations for being moral agents.

1. We know for a fact that Black and Indigenous lives are at stake.

2. We understand that maybe, but not necessarily, doing something about it (in this scenario pulling the lever is rallying) can cause a spike in transmission — but again, not necessarily — only without taking precautions.

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Killing in Silence MERU SHARMA

This year saw issues relating to police brutality rise to the forefront of social concern. Amid this discussion, it is important to recognise that no police officer has been successfully prosecuted in Australia for an Indigenous death that has occurred in custody.1 A significant barrier to holding police officers accountable is a lack of transparency. In April 2020, the Supreme Court of South Australia confirmed that the officers involved in Wayne Fella Morrison’s death could rely on the penalty privilege (a civil law brother of the privilege against self-incrimination) to object to giving evidence. The focus of this essay is the use of this privilege by police officers, especially in light of contemporary calls for greater police accountability.

The Penalty Privilege The Death of Wayne Morrison On the morning of 23 September 2016, South Australian Aboriginal man, Wayne ‘Fella’ Morrison, was restrained, handcuffed behind his back, ankle-cuffed, bound by a spit mask, and carried horizontally face-down into a van by five correctional officers.2 The van containing Morrison and the officers was driven to a police station.

Upon its arrival, Morrison was found unresponsive, his face had changed colour, and he was not breathing.3 Morrison later died due to the events that occurred in the van. What occurred during the transit remains unknown, as the correctional officers have refused to tender evidence on the basis of a fear of self-incrimination. 4 In April

2020, the Supreme Court of South Australia confirmed that the correctional officers who were involved in Morrison’s death could rely on the penalty privilege.5 It was held that a coroner’s inquiry into a death in custody (which the Coroner is required to hold under section 21(1)(a) of the Coroners Act 2003 (SA)) does not overturn the penalty privilege.6 It was also confirmed that the Deputy Coroner of South Australia could not draw an adverse inference from the silence of the correctional officers.7 What is the Penalty Privilege?

The effect of the penalty privilege is that a party cannot be ordered to give evidence if there is a fear that the party may open themselves up to a civil penalty.8 Police disciplinary actions attract the protection of the penalty privilege,9 and thus, police officers are able to rely on the penalty privilege in a coroner’s inquest if there is a fear of a statutory disciplinary action.10

Using the Penalty Privilege in a Coroner’s Inquest There are many cases of the successful use of the penalty privilege by police officers in coroners' inquests. In Victoria, for example, members of the police were able to rely on the penalty privilege relating to a death that occurred at the police station. The privilege was relied on because, had

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evidence been given, the police officers could be charged with engaging in misconduct in a public office and face disciplinary action.11 In a report into Indigenous deaths in custody, it was noted that there was a similar reliance on the penalty privilege in Queensland when an indigenous man died in custody after being arrested for public drunkenness.12 This presents a significant issue in investigating indigenous deaths in custody, especially because the circumstances of the death were noted as being of ‘dubious legality’.13 Similarly, in NSW, Senior Constable Borland refused to give evidence due to a risk ‘of a civil penalty in the form of disciplinary action’14 in relation to the death of Maxwell Philips, who died after he crashed his motorcycle while being pursued by Borland. 15 The use of the penalty privilege was affirmed by the Supreme Court of NSW and the Court of Appeal.16 There appears to be no notable movement in the reformation of the use of the privilege.

Reforming the Use of The Penalty Privilege Police Accountability In conducting their duties, police officers are exercising government authority to use force and violence. ‘[B]rutality; misuse of force, especially deadly force; over-enforcement of the law…and discrimination against particular individuals or groups are just some of the concerns that are attached to the exercise of this authority.’17 Under these circumstances, it is essential that officers exercising public authority are held accountable for actions that may be unlawful or illegitimate. It is noted that greater accountability will itself lead to better policing: higher accountability will lead to less problematic officers, which will lead to a greater trust and greater cooperation by citizens.18 Investigation of police misconduct also leads to greater public confidence in the police.19 This arises from a need for police officers to exercise a moral authority along with their public authority.20 Both the United Nations Office of Drugs and Crime and the International Code of Conduct for Law of Enforcement Officials have found that accountability and integrity of police officers are a ‘prerequisite for effective policing’.21 An essential part of an accountable police force is that ‘the police accept being questioned about their decisions… and accept the consequences of being found guilty of misconduct’.22 Under such an understanding of accountability, it becomes difficult to justify the use of the penalty privilege by police officers. The decision to compel evidence despite the privilege is currently based on a consideration of the ‘interests of justice’: whether the interests of justice lie with the public in compelling the witness to give evidence, or whether they lie with the witness to allow them to rely on the privilege.23 There are a variety of factors that may be considered by a court in determining where the interests of justice lie. However, reformation to the use of privilege requires implementing an assumption that the interests of justice must always lie in the favour of the public to hear about the death of a civilian by police officers.

There are significant shortcomings in a coroner's inquest when police officers are able to frustrate the process by reliance on their privilege.24 Morrison’s sister, Latoya Aroha Rule, noted the great impact of the inquests, stating that it provides a ‘grieving family… an account of what happened to our loved ones’ and raises the spotlight on undue and unreasonable

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behaviours of ‘correctional and police officers — like those that piled atop of my brother’s body’.25 The shortcomings have a direct effect on the public faith in the coroner and any finding that may be made about impropriety in the case.26 There is enormous public interest in learning about a death by a police officer in the exercise of their duty. This was recognised by the Deputy Coroner in an inquiry into the death of Elijah Holcombe, a 24 year old undergraduate student. Holcombe was shot and killed by police officer Andrew Rich when Holcombe attacked Rich with a butter knife in a confrontation at a cafe.27 The Deputy Coroner noted that: [t]he right of a police officer to carry and use a firearm is an entitlement allowed to few others. To give the Court and the family of [Holcombe] his explanation of why [Rich] shot [Holcombe] may fairly be expected as a counterpart in public accountability of that entitlement.28 The Court of Appeal later echoed the Coroner’s findings, noting that '[Holcombe’s] family have a legitimate interest in learning how [Holcombe] died’.29 Until adequate accounts of the circumstance in which a death occurs at the hands of a police officer are received, it is impossible to determine what needs to be implemented in order to restrict the unlawful or unreasonable violence. Since no adverse inference may be drawn from the silence, the public is forced to accept a facade that the events took place in the common course of policing nature. Yet, the facade may not be subjected to questioning or critique. On this basis, the penalty privilege is a serious obstacle to reforms of police processes. Reforms to the use of the penalty privilege are necessary in order to restore faith in the police force within the public.

Alison Whittaker, ‘Despite 432 Indigenous deaths in custody since 1991, no one has ever been convicted. Racist silence and complicity are to blame’, The Conversation (online, 3 June 2020) <https://theconversation.com/despite-432-indigenousdeaths-in-custody-since-1991-no-one-has-ever-beenconvicted-racist-silence-and-complicity-are-to-blame-139873>.

[5] (Handley AJA, McColl and App JA agreeing) (‘AttorneyGeneral (NSW) v Borland’).

Bell v Deputy Coroner of South Australia (No 1) [2020] SASC 59 [16]–[20] (Blue J) (‘Bell (No 1)’).

17

1

2

3

Ibid [32]–[35].

4

Ibid [91].

5

Ibid [316].

6

Ibid [195].

7

Ibid [355].

Rich v Australian Securities and Investments Commission (2004) 220 CLR 129 [23]; Bell (No 1) (n 2) [135]–[137].

15

Ibid [3].

16

Ibid [21].

George Kelling, Robert Wasserman and Hubert Williams, ‘Police Accountability and Community Policing’ (Report No 7, US Department of Justice, November 1998) 1.

18

United Nations Office on Drugs and Crime, Handbook on police accountability, oversight and integrity (New York United Nations, 2011) 1.

20

Ibid 8.

21

Ibid.

22

Ibid 9 (emphasis added).

23

Attorney-General (NSW) v Borland (n 14) [6].

24

Indigenous Deaths in Custody 1989-1996 (n 12) [10.4].

8

9

Police Services Board v Morris & Martin (1985) 156 CLR 397.

See, eg, Coroners Act 2009 (NSW) s 61; Coroners Act 2003 (SA) s 23(5).

10

Ian Freckelton, ‘The privilege against self-incrimination in coroners' inquests’ (2015) 22(3) Journal of Law and Medicine 491, 502.

11

Office of the Aboriginal and Torres Strait Islander Social Justice Commissioner, Indigenous Deaths in Custody 19891996 (Report, October 1996) ch 6 (‘Indigenous Deaths in Custody 1989-1996’).

12

13

Ibid.

14

Attorney-General (NSW) v Borland [2007] NSWCA 201

Ibid 22.

19

Latoya Aroha Rule, ‘Who is accountable for our deaths?’, @ IndigneousX (Blog Post, 9 January 2019) (emphasis added) <https://indigenousx.com.au/who-is-accountable-for-ourdeaths/>.

25

26

Indigenous Deaths in Custody 1989-1996 (n 12).

27

Rich v Attorney General (NSW) [2013] NSWSC 877 [3]–[9].

28

Ibid [23].

Rich v Attorney General (NSW) [2013] NSWCA 419 [55] (Leeming JA, Beazley P and Bathurst CJ agreeing).

29

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Conclusion In April this year, the Supreme Court of South Australia provided a judgement that, in effect, grants police and correctional officers the complete ability to object to giving evidence that incriminates them. The penalty privilege is a popular mechanism that police officers have relied on to avoid giving evidence about deaths in

custody. However, the use of the penalty privilege presents a significant challenge to sufficient police accountability. Police accountability requires that the exercise of police force is transparent and ultimately subject to commentary. A limit or restraint on the use of the penalty privilege is necessary to restore the faith in the police force and begin to reform processes that are unjust and undue.

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Welcome to Country White Australia PREETI SOMASI

The door to justice for Aboriginal people has been closed for over two centuries, but it took the death of George Floyd in the United States for Australians to reopen their history books.

Black Lives Matter, as a movement, is ever-present, and the Uluru Statement from the Heart is one such example. It invites conversation into Australia’s ‘birth certificate’ — the Constitution — and our broken identity as a body politic. More narrowly, the Uluru Statement aims to substantively reform the constitutional relationship between the First Nations and the Australian Government.

Formed in the 1890s, the Constitution paints a careful picture of ‘White Australia’. It explicitly fails to recognise the rights of Indigenous Australians — formalising a culture of systematic racism. This article sheds light on key constitutional flaws in the form of ss 25, 51(xxvi) respectively, and details the practical reasons for any structural amendments.

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The ‘Races’ Power Firstly, s 25 provides that certain races may be excluded from voting in State elections.

The question now arises — just because the disqualifying factor is race-based, is the provision necessarily racist? It prima facie serves to adjust the number of people that represent the State in the House of Representatives. However, the legal possibility that members of a certain ‘race’ may be denied voting rights is entirely punitive.

On balance, Australia’s values as a multicultural entity, paired with the need to engage with our Indigenous content, proves that these racial identity markers are simply passé. Thus, s 25 must be repealed.

Regardless, the notion of ‘special measures’ under articles 1(4) and (2) of the ICERD does not mean that Indigenous rights will be upheld, even after the aims for these measures have been met.

Similarly, s 51(xxvi) must be addressed. Indeed, the provision declares that race is a valid criterion in which ‘special’ legislation can be made. The discretionary nature of this power is concerning.

It inherently reflects the framers’ intention to rely on this limb in support of racially discriminatory laws. This also raises the issue of whether the Commonwealth has plenary power over the people of any given ‘race’ (a term which is now accepted as a social construct). Likewise, the broad language used in s 51(xxvi) points towards the enactment of laws that could also be potentially detrimental to members of any race. As explained

by Stephen J in Koowarta v Bjelke-Petersen1, this power allowed the Parliament to make laws based on the ‘special needs’ of the people of a certain race, and the special threat or problem they present’.2 Arguably, if the Australian government sought to curb the entry of asylum seekers and mobile ethnic populations, then this would be better served by the migration and aliens power.

It need not be codified in the form of s 51(xxvi), which goes so far as to perpetuate the possibility of systematic racism and race politics. Thus, it is inappropriate to retain the current construction of this provision in light of shifting social and cultural attitudes.

Non-Discrimination Clause Regardless, amending s 51(xxvi) will not prevent discriminatory laws from being passed. Kartinyeri 8 is testament to this claim. Here, the High Court reasoned that the Hindmarsh Bridge Act 9 was validly enacted under s 51(xxvi) and could, therefore, construct on land that was sacred to the Ngarrindjeri people.

However, s 51(xxvi) cannot be repealed. This would risk the Commonwealth being unable to make positive grants of power in favour of Indigenous affairs and their treatment per state.

In effect, it would also undermine the validity of existing laws in significant areas of cultural heritage, corporations and native title — all of which are supported by this provision. It must be noted that proponents of the removal of s 51(xxvi) argue that the external affairs power may provide federal legislative competence.3 Certainly, the external affairs power supports the Racial Discrimination Act,4 giving effect to the ICERD.5

Following this, the revision of s 51(xxvi) is critical.

The words of French J in Kartinyeri 6 resonate — the current provision should be replaced by a head of power that enables the Commonwealth Parliament to legislate with respect to the special status of Australia’s First peoples.7 This may operate to protect the culture, heritage, and language of Aboriginal people, in addition to rectifying disadvantage.

This calls for a constitutionally protected First Nations Voice, that prevents racial discrimination, covering both legislative and executive action.

This must apply to States, Territories and the Commonwealth. Such a clause must maintain the principle that the race of an individual, actual or alleged, should never be the means to exercise unjust treatment.

Section 25 of the Canadian Constitution has a non-derogation clause that we may draw from.10 This may be repurposed in Australia to stipulate that any such non-discrimination clause should not be interpreted to detract from the rights of Aboriginal and Torres Strait Islander peoples.

As a result, detrimental laws may be repealed, such as the Aboriginal Ordinance11 — this legislation authorised both the estrangement of Indigenous children from their parents and the mandatory detention of Indigenous peoples for ‘welfare’ reasons.

Broadly, the goal is to align the Constitution with Australia’s duty to protect Indigenous culture under Article 27 of the International Covenant on Civil and Political Rights and the UN Declaration on the Rights of Indigenous People. Yet, our Constitution currently breaches these human rights standards.

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‘Voice to Parliament’ Overall, the Constitution is silent on the relationship between the Indigenous minority and government majority. The Uluru Statement urges for Indigenous voices to be fairly heard in political affairs regarding them, without compromising parliamentary sovereignty.

This may be answered by a procedural requirement in the Constitution, which elicits a political obligation for State and Federal governments to work with an Indigenous advisory body on relevant legislation and policy. Such a requirement could take the form of a new Chapter, stating the specific function of the Indigenous board — that is, to provide formal, non-binding input over parliamentary decisions in their affairs. This will ensure that the representing committee has no veto and will be non-judicial. It will be non-judicial as it involves internal matters of Parliament and ‘proposed’ Indigenous laws and policies, rather than imposed laws, similar to s 53 of the Constitution. Contrary to Turnbull’s argument, the Indigenous board will not be a third-chamber of Parliament. It will simply be akin to a parliamentary committee, albeit with higher political bearing.

Further, the enshrined body may form or work with the proposed Makarrata Commission.12 The purpose of the Makarrata Commission is twofold — it oversees truth-telling about Aboriginal peoples’ rich cultural history and enforces governmental agreement-making. Notably, the Makarrata Commission does not require Constitutional change. It can even be established by legislation, or through the prerogative powers

of the Governor-General on the Prime Minister’s advice.13 Together, these initiatives can practically realise reconciliation and self-determination for Aboriginal people.

Conclusion 2020 marks a year-long standstill of sober reflection. At best, change-driven imperatives must be driven by constitutional acknowledgement and political agreement-making alike. It may be uncomfortable to grapple with Australia’s modern-day identity, given our divisive birth certificate. However, we must lead by example as accountable members of the global community, and a multicultural nation that gives hold to equality.

This proposal gives Aboriginal Australians a fair and active system of constitutional recognition, with the potential to enhance the value and practicality of Indigenous laws and policy.

1

Koowarta v Bjelke-Petersen (1982) 158 CLR 168.

2

Ibid 210.

3

Koowarta (n 9).

4

Racial Discrimination Act 1975 (Cth).

International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 21 December 1965, 660 UNTS 195 (entered into force 4 January 1969) (‘ICERD’).

5

6

Kartinyeri v Commonwealth (1998) 195 CLR 337.

Sarah Pritchard, ‘The Race Power In Section 51(xxvi) Of The Constitution’ (2011) 15(2) Australian Indigenous Law Review 44.

7

8

Kartinyeri (n 15).

9

Hindmarsh Island Bridge Act 1997 (Cth).

10

Canada Act 1982 (UK) c 11, sch B pt I (‘Canadian Charter of Rights and Freedoms’).

11

Aboriginal Ordinance 1918 (NT).

‘Uluru Statement from the Heart’, (Web Page) <https://www.referendumcouncil.org.au/ sites/default/files/2017-05/Uluru_Statement_From_The_Heart_0.PDF> 12

13

McKay (n 6).

We must not remain silent.