The Full Bench 2023

THE FULL BENCH

UNCHARTERED LEGAL TERRITORIES

Acknowledgement of People and Country

The UTS LSS acknowledges the Gadigal People of the Eora Nation, the Boorooberongal people of the Dharug Nation, the Bidiagal people and the Gamaygal people upon whose ancestral lands our university stands. We would also like to pay respect to the Elders both past and present, acknowledging them as the traditional custodians of knowledge for these lands.

Images & Illustrations

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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.

Acknowledgements

Editor Alexander Chan , Education (Publications) Director

Designed By Ashley Bokser

Special Thanks Georgina Hedge, UTS LSS President Peter Markopoulos, UTS LSS Vice-President (Education) Ryan Little, Education (Publications) Director

The Full Bench is published by the UTS Law Students’ Society.

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WELCOMES

PRESIDENT'S ADDRESS

by GEORGINA

HEDGE

Welcome to the 2023 edition of The Full Bench, crafted by our fantastic UTS LSS Education Portfolio!

Our 2023 edition of The Full Bench addresses the topic “Uncharted Legal Territories”. The publication brings together a collection of thought-provoking student submissions that deal with a wide variety of areas unaddressed by our legal system. Each piece deals with a discrete and relevant legal issue that the law is attempting to keep up with, including intellectual property, migration and refugee law, defamation, money laundering, and Indigenous Australian copyright. Each student has provided an insightful and detailed analysis into how the law can best adapt to address these issues. The caliber of these submissions truly reflects the fantastic hands the future of the legal profession is in.

This fantastic publication would not have been possible without the incredible dedication of our large Education (Publications) team who have worked tirelessly to develop a publication of such a high standard. I would like to extend a huge thank you to our Education (Publications) Director, Alexander Chan, with support from our wonderful Vice-President (Education), Peter Markopoulos. I would also like to thank our fantastic Education (Publications) subcommittee for their teamwork and cooperation in assisting in the preparation of this publication.

Finally, a huge congratulations and thank you to our wonderful student contributors. The Full Bench would not exist without your creative minds and support of the LSS. Thank you for your efforts.

Enjoy reading!

VICE-PRESIDENT (EDUCATION) ADDRESS by PETER MARKOPOULOS

The Full Bench 2023 is a thought-provoking edition that delves into the unexplored terrain of the legal system. The theme for this year’s volume is ‘Uncharted Legal Territories,’ which examines emerging legal issues that are yet to be addressed or situations where a particular group of people has an unethical advantage. This edition aims to provide a comprehensive perspective on the evolving legal landscape and invites readers to explore the uncharted territories of the law.

I would like to extend an enormous thank you to our Education (Publications) Director, Alexander Chan. Alex has demonstrated a great commitment to The Full Bench, through his immense dedication and behind-the-scenes efforts, allowing for an insightful publication of this magnitude.

A special thanks also goes to our incredible Education (Publications) Subcommittee, who run a seamless operation to ensure our publications are at a gold standard. I would like to thank the UTS LSS President, Georgina Hedge, for all her constant support throughout tenure.

Finally, to our contributors who have made this fantastic publication possible. Their sincere interest in this year’s edition of ‘The Full Bench’ allows the UTS LSS to showcase fascinating and insightful perspectives to the broader UTS Law community!

Enjoy your reading!

EDUCATION (PUBLICATIONS)

DIRECTOR ADDRESS

by ALEXANDER

CHAN

The Full Bench 2023 is a thought-provoking edition that delves into the unexplored terrain of the legal system. The theme for this year’s volume is ‘Uncharted Legal Territories,’ which examines emerging legal issues that are yet to be addressed or situations where a particular group of people has an unethical advantage. This edition aims to provide a comprehensive perspective on the evolving legal landscape and invites readers to explore the uncharted territories of the law.

I would like to extend an enormous thank you to our Education (Publications) Director, Alexander Chan. Alex has demonstrated a great commitment to The Full Bench, through his immense dedication and behind-the-scenes efforts, allowing for an insightful publication of this magnitude.

A special thanks also goes to our incredible Education (Publications) Subcommittee, who run a seamless operation to ensure our publications are at a gold standard. I would like to thank the UTS LSS President, Georgina Hedge, for all her constant support throughout tenure.

Finally, to our contributors who have made this fantastic publication possible. Their sincere interest in this year’s edition of ‘The Full Bench’ allows the UTS LSS to showcase fascinating and insightful perspectives to the broader UTS Law community!

Enjoy your reading!

SUBCOMMITTEE

CAITLIN FITCHDART

3RD YEAR

BACHELOR OF BUSINESS / BACHELOR OF LAW /

MICHELLE DENG

4TH YEAR

BACHELOR OF COMMS / BACHELOR OF LAW /

DESCRIBING AUTHENTICITY

CONCEPTUAL DISSONANCE IN DEFINING AUTHENTIC FOR THE FIRST NATIONS VISUAL ARTS AND CRAFTS MARKET

BY ANDRE MURRELL

I INTRODUCTION

The Aboriginal and Torres Strait Islander Visual Arts and Crafts Study Report (‘Report’), released on 13 December 2022, was centred on the preservation of authentic Aboriginal and Torres Strait Islander visual art and handicraft (‘VA&H’) market¹. The Report, produced by the Australian Productivity Commission (‘PC’)², sought to examine the nature of the market and provide recommendations addressing the proliferation of inauthentic First Nations VA&H³

Inauthentic works in this space make up a significant portion of the general vendor market4. The prevalence of inauthentic works risks reduced visibility of Indigenous-authored goods, weakened consumer confidence, perceived reduction in value of the market and misrepresentation of Aboriginal and Torres Strait Islander culture5

Despite authenticity being central to the Report’s objective, ambiguity surrounds how to succinctly define and deploy the term6. The Report’s main obstacle is incorporating all groups’ suggestions for definition criterion, and the aptitude for ‘authentic’ to describe and embody how Aboriginal and Torres Strait Islander artists view their works.

The present essay analyses the latter obstacle, concluding that a single definition of ‘authentic’ in this context cannot be responsive to all First Nations perspectives on the matter because of some parties’ contention to ‘authentic’ as being a culturally-responsive term describing the relationship between First Nations authors and their VA&H works.

¹ Australian Government Productivity Commission, ‘Aboriginal and Torres Strait Islander Visual Arts and Crafts’ (Study Report) (13 December 2022) (‘Report’); preceded by the Australian Government Productivity Commission, ‘Aboriginal and Torres Strait Islander Visual Arts and Crafts’ (Draft Report) (19 July 2022).

²The Australian Productivity Commission is the Commonwealth Government’s independent research and advisory body. Its focus areas are social, environmental and economic issues that affect the welfare of Australians. Its role is to inform governments on certain

issues, to assist in the Government’s implementation of better policy.

³ Report (n 1) 44.

4 Between 69-76% of online souvenir and gift shop goods depicting Aboriginal and Torres Strait Islander designs were not authored by Indigenous artists, Ibid 114.

5 Ibid 3.

6Ibid 3, 109.

A AUTHENTIC FOR WHOM

II DIFFERING LEGAL LENSES

While the final Report has no working definition of ‘authentic’, three factors with ‘significant bearing’ for assessing an ‘authentic’ work in this context are put forward: cultural authorisation7, Aboriginal and Torres Strait Islander authorship, and adherence to copyright laws8. The most significant obstacle to a succinct definition of ‘authentic’ within the Report is some First Nations parties’ rejection of the term as a responsive and salient descriptor of the works they produce. This contention presents a conceptual stalemate to an agreed and succinct definition.

The delineation between ‘authentic’ and ‘inauthentic’ goods in the Report is complicated by the lens through which the PC considers the issue. Making assessments on real as opposed to fake or counterfeit goods within the context of art is a decidedly artificial enterprise. The line of when something is real or imitation in art has itself been the subject of art movements and focus9. While the PC conducts its assessment of genuine art as it relates to Indigeneity (itself a very challenging legal concept),10 the directive of distilling ‘authentic’ into a workable model to assist a market necessarily precludes consideration of radically different and equally valid Aboriginal and Torres Strait Islander perspectives on the matter. It demonstrates an instrumentalist approach to defining authenticity, informed by the paradigm of those seeking to benefit from its definition.¹¹ That is, the PC has been tasked with considering authenticity so it can solve a problem within a particular

socio-legal paradigm. Certain conceptions of authenticity, albeit valid, will not be considered by the PC if they are irreconcilable with this paradigm. This poses the issue of restricting First Nations perspectives on the matter because input must necessarily favour ‘solving’ the issue within an inherently Anglo-European legal framework.

For example, submissions of the Indigenous Art Code to the PC noted that ‘authentic’ within this context is not a term used by most Aboriginal and Torres Strait Islander artists for their work. Rather, they submitted that the delineation between in/authenticity was predominantly deployed by non-Indigenous audiences as means to ‘understand this issue’.¹² Similarly, Elizabeth Coleman identified that ‘[t]he Australian arts establishment has constituted Aboriginal painting in its own image.’¹³ The crux of her argument being that the differing conceptions of paintings between nonIndigenous and Indigenous cultures were ontologically incompatible. The Indigenous Art Code would nonetheless make submissions to the Australian Parliament regarding a desired descriptor for ‘authentic’, demonstrating that submissions must be sufficiently amenable to the PC’s intended purpose to produce a material impact. This can come, as the Indigenous Art Code’s submissions indicate, at the expense of the PC conducting a proper appreciation of better incorporating First Nations artists’ views into their own market.

B CONCEPTUAL STALEMATE

One could counter that the PC was tasked with better understanding and making recommendations on reducing the excessive amount of counterfeit First Nations works on the VA&H market. One might argue that it is not, therefore, within the PC’s scope to mandatorily incorporate Indigenous perspectives on the matter, nor contemplate whether ‘authentic’ was a conceptually valid term to anchor the delineation between works with certain qualities (such as Aboriginal and Torres Strait Islander authorship).

Aversion to incorporating First Nations’ perspectives on protecting their own art market, would be counterproductive. Excising A&TSIs’ participation in describing their own VA&H market would not conform to the PC’s purported approach of: examining the nature of the market including authentic products, identifying deficiencies and barriers in the market and how they affect artists, and having regard to the impacts of policy responses to Aboriginal and Torres Strait Islander artists.14 Cumulatively,

ignoring A&TSI artists’ relationship to ‘authenticity’ in works produced for the market goes against the PC’s own nominated approach for conducting the Report.

Contemplating the nature and deficiencies of disjunct terminological structures for Aboriginal and Torres Strait Islander artists and their works, including the dichotomous assessment of in/authenticity must therefore follow as being within the scope of the Report. Aversion to these perspectives, especially as they are in the purported majority, creates an irreconcilable gap in creating an inclusive and culturally-responsive formulation of ‘authentic’ in this context. The PC need not discard the formulation of ‘authentic’ altogether. However, its use as a utilitarian framing device rather than being culturally and ontologically responsive to many Aboriginal and Torres Strait Islander conceptions of their works must be acknowledged and adapted into its use appropriately.

III CONCLUSION

Determining an inclusive definition of ‘authentic’ in the Aboriginal and Torres Strait Islander VA&H market from the Report is presently at a stalemate. The PC’s formulation and deployment of the term perpetuates a lack of responsiveness to the relationship many Aboriginal and Torres Strait Islander authors have between themselves and their VA&H works.

7Cultural authorisation describes gaining the appropriate consent and approval for depiction of Indigenous Cultural and Intellectual Property in a work as a means of respecting traditional customary laws - Ibid 111.

8Ibid 33.

9David E. W. Fenner, Ethics and the Art: An Anthology (Routledge Taylor & Francis Group, 1995) 12-13.

10Mabo v Queensland [No 2] (1992) 175 CLR 1; Love v Commonwealth (2020) 270 CLR 152.

11Marcus Banks, ‘Post-Authenticity: Dilemmas of Identity in the 20th and 21st Centuries’ (2013) 86(2) Anthropological Quarterly 481, 487.

12Report (n 1) 110; originally in Indigenous Art Code, Submission No

138 to the Parliament of Australia, The Growing Presence of Inauthentic Aboriginal and Torres Strait Islander ‘Style’ Art and Craft Products and Merchandise for Sale Across Australia (31 October 2017) 1; and cited in the joint submission of Arts Law Centre of Australia and Indigenous Art Code, Submission No 31 to the Productivity Commission, Issues Paper - Aboriginal and Torres Strait Islander Visual Arts and Crafts (9 February 2022) 23.

13Elizabeth Burns Coleman, ‘Aboriginal painting: identity and authenticity’ (2001) 59 The Journal of Aesthetics and Art Criticism 385, 388 (Identity and Authenticity).

14Report (n 1) iii.

THE POLITICS OF NAMING: EXPLORING THE IMPORTANCE OF RECOGNITION IN APPREHENDING GENOCIDE

BY WENDY LAM

-¹

In maintaining international peace and security, significant assumptions must be made about which lives are deemed worthy of protection under international law. This hierarchy of lives is implicit to the politics of the international forum, and can create considerable difficulty in ensuring that states are adequately accountable for their actions. With specific reference to genocide, the process of recognition within the narrow schema of the Convention on the Prevention and Punishment of the Crime of Genocide (‘Genocide Convention’) is often a ‘paralysing force’ in responding to breaches of human rights.² In this, it is argued that genocide ‘facilitates empathy and intervention’ in a way that other violence does not.³

“Lives cannot be apprehended as injured or lost if they are not first apprehended as living"

- Judith Butler

CONCEPTUAL DEVELOPMENT OF GENOCIDE

International law defines genocide as acts ‘committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group.’4 Although particular acts of violence may be indicative of genocide, a determination necessitates that violence is inflicted on individuals chosen ‘not for their individual qualities but for their group membership.’5 Through routinised, dehumanising narratives within the body politic, the stage is set for ‘rituals of violence’ against a group that no longer appears as lives, but rather as threats to life.6 When this implicit inequality of lives is juxtaposed to the equality of peoples under international law, accusations of genocide results in a ‘paralysing formulation of moral panic, outrage and inaction’ that highlights the systemic shortcomings in apprehending genocide.7

These shortcomings are reflected in the historical context of establishing genocide as a crime in international law. Raphael Lemkin first defined Genocide as the deliberate destruction of a group through immediate mass killings, or coordinated actions aimed at destroying the essential

¹ Judith Butler, Frames of War: When is Life Grievable? (Verso, 2009) 1.

²Peter Quayle, ‘Unimaginable Evil: The Legislative Limitations of the Genocide Convention’ (2005) 5 International Criminal Law Review 363, 371.

³ Amanda Alexander, ‘The Ethics of Violence: Recent Literature on the Creation of the Contemporary Regime of Law and War’ (2021) Draft submitted to Journal of Genocide Research 1, 9.

4 Convention on the Prevention and Punishment of the Crime of Genocide, opened for signature 9 December 1948, 78 UNTS 277 (entered into force 12 January 1951) art 2 (‘Genocide Convention’).

5Quayle (n 2) 369.

6Margaret Yard, ‘Grievability: The Social Marker for a Life That Counts’ in Marcelline Block and Christina Staudt (eds), Unequal Before Death (Cambridge Scholars Publishing, 2012) 138, 142.

foundations of group life.8 While the inclusion of cultural destruction was significant to the latter part of this definition,9 it was ultimately omitted from the Genocide Convention as many states were uncomfortable with likening it to the physical destruction of the Holocaust.10 There was also an underlying political motivation in that certain states did not want to criminalise their own behaviour e.g. the United States’ opposition of cultural genocide equivocates their historical relationship with Indigenous peoples.¹¹ The Genocide Convention’s limited codification of the crime and its victims is ultimately a product of political consideration, and ignores the fact that genocide is rooted in ‘structural inequality, as reflected by government policies and other social indicators’ or that cultural destruction is a risk factor for physical genocide.¹² By always ‘looking for Birkenau’, biases towards traditional interpretations informed by the legal canon inhibits the detection of new genocidal practices prior to mass violence.¹³ By only addressing past, unprevented grievances, the Genocide Convention confers significant power on politics to recognise and apprehend genocide.

7Quayle (n 2) 363.

8Raphael Lemkin, Axis Rule in Occupied Europe: Laws of Occupation, Analysis of Government, Proposals for Redress (Carnegie Endowment for International Peace, 1944) 79.

9Ciara Finnegan, ‘The Uyghur Minority in China: A Case Study of Cultural Genocide, Minority Rights and the Insufficiency of the International Legal Framework in Preventing State-Imposed Extinction’ (2020) 9(1) Laws 1, 3.

10Sixty fourth meeting, held at Palais de Chaillot, Paris, on Friday, 1 October, GAOR, UN Doc A/C.6/SR.64 (1 October 1948) 15.

11Lindsey Kingston, ‘The Destruction of Identity: Cultural Genocide and Indigenous Peoples’ (2015) 14(1) Journal of Human Rights 63, 65.

12Ibid 68.

13David Tobin, ‘Genocidal processes: social death in Xinjiang’ (2022) 45(16) Ethical and Racial Studies 93, 96.

THE POWER OF A LABEL

As recognition of a genocide is ‘constrained by the ideology of the global political system that constructs it,’14 the use or refrain of ‘the genocide label’ has significant implications in how a situation can be dealt with.15 While rhetorical reassurances of apprehension under international law serves as a substitute for policies of deterrence and counter-mobilisation, inaction is tantamount to denial.16 The withholding of the genocide label in the face of a mass atrocity can undermine efforts for international cooperation to halt further violence.17 Not only does this suggest that a life is meaningful only when and if the powerful acknowledge it,18 it also shows that the international forum does not take the sign of destroyed life as something they are responsible for unless it is politically incentivised.19

Although recognition of genocide must be carefully evaluated, some argue that falsely recognising genocide is a diminution of grave historical events that ‘degrades the meaning of the term…[and makes] defending against

a real genocide more difficult.’20 While it is possible that public consciousness of genocide as a crime in international law has been effaced by the use of the term in political rhetoric, comparisons to the Holocaust may preclude the observation of less planned or less total cases of genocide.21 The Genocide Convention precisely describes a single, historical event that has become ‘not simply the archetypal genocide but the only genocide.’22 In this sense, the effectiveness of the Genocide Convention is challenged by present unprevented atrocity.23 The fixation with genocide additionally obscures the fact that other crimes against humanity continue to be committed and that these acts are, in themselves, worthy of articulate prevention and prosecution.24 Nonetheless, the deliberation in labelling a situation as a genocide is marked by political procrastination that consigns the targeted population to an indeterminate limbo, suspending legal and moral protection while atrocities continue to be committed.25

CONCLUSION

The Genocide Convention’s definition of genocide reflects a process of political bargaining that has codified the lives that matter. However, this limited conception fails to identify emerging genocidal processes in pre-existing asymmetrical power relations, which are often supported by official narratives of dehumanisation and transformation.26 It also ignores the spectral quality of lives that are deemed ungrievable by the state but are not yet considered victims in international law. Subsequently, to label a situation as ‘genocide’ is to determine that some level of intervention is required to halt the atrocity. States are therefore hesitant to apply the label — they want to retain the option of acting, while avoiding the specific requirement of doing so depending on the political circumstances.27 This political calculation in applying the genocide label implicitly confirms a system that values lives differentially. However, this does not absolve the responsibility of the global community. Responsibility requires responsiveness, and that responsiveness ‘is not merely a subjective state, but a way of responding to what is before us with the resources that are available to us.’28 Therefore, in the absence of other available coercive legal mechanisms, marshalling of political will remains a key piece in formulating effective international responses to allegations of genocide to ensure that tacit permission is not provided for senseless violence.

14Zoe Samudzi, ‘Paradox of Recognition: Genocide and Colonialism’ (2020) 30 Postmodern Culture 1.

15Michael Kelly, ‘Genocide - The Power of a Label’ (2007) 40(1) Case Western Reserve Journal of International Law 147, 148.

16Samudzi (n 14) 8.

17Ibid.

18Moya Lloyd, ‘Naming the dead and the politics of the ‘human’’ (2016) 43(2) Review of International Studies 260, 262.

19Judith Butler, Precarious Life: The Powers of Mourning and Violence (Verso, 2004) 6.

20Joel Slawotsky, ‘Is China Guilty of Committing Genocide in Xinjiang?’ (2021) 20(3)

Chinese Journal of International Law 625, 633.

21Helen Fein, ‘Genocide: A sociological perspective’ (1990) 38(1) Current Sociology 1, 9.

22Quayle (n 2) 365.

23Ibid.

24Ibid. 137

25Yard (n 6) 144.

26Tobin (n 13) 98.

27Kelly (n 15) 162.

28Butler (n 1) 50.

LEGAL EVOLUTION: THE IMPERATIVE TO EXPAND THE MIGRATION ACT 1958 (CTH) S 5H-J.

BY PHOEBE THOMPSON

Humanity is on the verge of the largest crisis in human history – climate change. Urgent action is necessary, encompassing scientific, structural and legal advancements.

Climate refugees, expected to become the largest displaced population, face a legal gap as their imperative need for protection is not recognised in law as a valid basis for claiming refuge.¹

In 1951, the Refugee Convention adopted the definition of a ‘refugee’ into municipal law as someone with a wellfounded fear of persecution on the grounds of race, religion, nationality or membership of a particular social/political group.²³ This definition was formulated when the devastating consequences of human-induced climate change were largely inconceivable,4 confining the definition in a way that is most likely irreconcilable with the unavoidable reality of climate change and the existence of climate refugees.5

Climate change, unlike traditional reasons for seeking protection, is indiscriminate and does not affect people on the grounds of an innate or fundamental characteristic of

their identity as stipulated by the Refugee Convention and Migration Act 1958 (Cth) s5J (‘Migration Act’).

However, Climate Refugee Status cannot be indiscriminately applied to all whose traditional or preferred lifestyles are threatened.6

As with the harrowing prediction of 1.5 degrees global warming by 2050, all of humanity will likely be threatened.7 Extending refugee status without discrimination would not only contribute to additional bureaucratic disorder in an already complex and sluggish legal domain but also diminish the significance and credibility of conventional

refugee claims due to the overwhelming surge in eligibility or even the potential for universal eligibility.

Refugee Status must continue to be preserved as a last resort where human existence and life itself are threatened.

Accordingly, a climate refugee has no choice but to leave their country of origin due to threat, not to a traditional or preferred way of life, but to the ability to live at all.8

There are three ways in which this uncharted legal territory could be navigated to allow climate refugee’s unique status to be recognised in Australian domestic law.

¹ Bonnie Docherty and Tyler Giannini, 'Confronting a Rising Tide: A Proposal for a Convention on Climate Change Refugees' (2009) 33(2) Harvard Environmental Law Review 349, 359.

² Migration Act 1958 (Cth) s 5H-J.

³ Convention Relating to the Status of Refugees, open for signature 28 July 1951, 189 UNTS 146.

4 Issa Ibrahim et al, ‘Climate change and forced migrations: An effort towards recognizing climate refugees’ (2017) 84 Geoforum 147.

The first way is through reading the current definition of a Refugee as inclusive of Climate Refugees. This method would involve a very creative, radical, ‘Kirby-esque’ interpretation of the word ‘persecution’. It would argue that Climate Refugees experience persecution, which entails harm and suffering on the grounds of their nationality. The necessity to seek protection from such harm and suffering is dependent on being a citizen of a state severely impacted by climate change.

However, after drawing on a defining legal tragedy and failure of our time, the overturning of Roe v Wade9, it is clear that essential and life-giving laws must have an iron clad constitutional or legislative base centred around the group

5 Ibid.

6 Matthew Lister, ‘Climate Change Refugees’ (2014) 17(5) Critical Review of International Social and Political Philosophy 618, 621 (‘Climate Change Refugees’).

7 IPCC, ‘Climate Change 2022: Impacts, Adaptation, and Vulnerability’ (Assessment Report, No 6, IPCC, 4 April 2022) 4.

8 Climate Change Refugees (n 6) 621.

9 Dobbs v. Jackson Women's Health Org., 142 S. Ct. 2228, 213 L. Ed. 2d 545, 2022 U.S. LEXIS 3057, 29 Fla. L. Weekly Fed. S 486, 2022 WL 2276808 (U.S. June 24, 2022).

concerned and that existing legislation or active cases that are not inextricably linked to the matter or group concerned should not be used to circumvent the imperative to create strong laws for the sake of fast or convenient change in international laws.

Like Ruth Bader Ginsburg opposed the physician-centred rather than woman-centred Roe v Wade10, the recognition of Climate Refugees on such untenable ground leaves this group vulnerable to the discretions of decision-makers of the day.

The second way, expanding the Migration Act that would rely on an international treaty that does not yet exist. Assuming that an international treaty obligating nations to acknowledge the existence of Climate Refugees and legalise their claim for protection was created, this could form a potential basis for expanding the Migration Act 11

However, treaties are not self-executing,12 and with a legal system that is a slave to the political system, depending on the government’s will Australia may not even ratify let alone act on the obligations imposed by such a treaty.13

Perhaps the hasty and weak expansion of the Migration Act through creative judicial or statutory interpretation would be preferable to the lengthy process of waiting for potential national legal change contingent upon potential international legal change.

The third way Australian law could evolve to recognise those who will be displaced by Climate Change would be through an amendment to the Migration Act or new law passed under the ‘Immigration and Emigration’ power. 14

However, the legal system is arguably a tool for the most powerful. To generate enough momentum to even bring a bill, let alone pass a law through a conservative parliament, would require significant political, cultural and societal revolution and overwhelming national and international pressure to recognise this rapidly emerging claim of protection.

None of the abovementioned methods will likely fill this gaping legal void.

We must acknowledge the slow-moving and conservative reality of the legal system and the fact that the law responds well to slow incremental changes. As Chief Justice Kiefel refers to it as ‘little nudges in the right direction’,15 rather than radical developments, particularly in fields of human rights. So much so that in the landmark Mabo decision,16 considering contemporary notions of justice and human rights was held to amount to ‘fractur[ing] the skeleton’ of Australian Law.

Therefore, maintaining the correct legal position, recognition, and category – that is, the elusive refugee status – would actually do a disservice to the climatic diaspora.

We must create legal channels for climate immigration and acknowledge the imperative to allow for some stability and security for those who will flee climate change.

Whilst a climate immigrant does not reflect the true position of climate refugees, it is a temporary and rough solution that can be enacted within an imperfect and slow-moving legal system, without fracturing the skeleton of refugee law. It must then be applied in the hopes that it generates enough momentum and pressure to recognise the true status of Climate Refugees and the necessity to create iron-clad legislations to fill this gaping legal void.

10 Oliva Waxman, ‘Ruth Bader Ginsburg Wishes This Case Had Legalized Abortion Instead of Roe v. Wade’, Time (online, 24 June 2022) < https://time.com/5354490/ruth-baderginsburg-roe-v-wade/>.

11 Australian Constitution s 51(xxix).

12 Victoria v The Commonwealth (1996) [1996] HCA 56.

13 Ibid.

14 Australian Constitution s 51(xxvii).

15 Avril Janks, ‘A nudge in the right direction’, LSJ Online (Online, 28 November 2022) < https://lsj.com.au/articles/a-nudge-in-the-right-direction/#:~:text=Hal%20Wootten%20 believed%20that%20all,nudge%20in%20the%20right%20direction>.

16 Mabo v Queensland (No 2) (1992) 175 CLR 1, 18 (Brennan J).

TRADEMARK OFFENSIVENESS: BIAS, ENFORCEMENT, AND THE POWER OF PUBLIC OUTRAGE

BY SIDHANT CHAVAN

Trademarks are an important commercial right that protect business interests and allow brands to distinguish themselves. Recently, they have become increasingly prevalent in society due to the increased advertising mediums available to businesses. Due to this high visibility, the Australian Trademarks Office (‘ATMO’) prevents registration of ‘scandalous’ marks,1 which are marks causing a substantial level of ‘disgrace, shock, or outrage’ and go beyond mere offence.2 This is assessed by reference to the target audience of the relevant trademark.3 However, there have been proposals that s 42(a) of the Trade Marks Act 1995 (Cth) should have a wider scope and a lower threshold – such that mere offensiveness to any group could be sufficient to bar registration.4

This article firstly demonstrates how the current threshold unfairly prioritises the views of the predominant Western and Christian groups in society. However, it then advocates against lowering the threshold due to practical issues of enforcement. Finally, this article suggests public scrutiny and outrage will be the most effective method of allowing minority groups to be heard.

I. PREFERENCE OF MAJORITY PERSPECTIVES OVER MINORITY

PERSPECTIVES

By requiring a high degree of outrage from the consumer majority, the current legislation leaves inadequate recourse for minority groups who are offended by trademarks. The high bar of ‘scandalous’ can produce unfair results for minority groups in circumstances where a trademark is something that is highly offensive to them, but only mildly shocking or colourful to the majority. For example, the offensiveness of referring to African American women as ‘BLACK TAIL’ was overlooked in America since the trademark was directed towards a Caucasian audience.5 In Australia, the majority group is Western and Christian; in 2021, Christianity was the most common religion at 43.9%,6 and 69.9% of the population had an Australian or English ancestry.7 Thus, the views of groups not aligning with this demographic will have less weight when considering whether a trademark is scandalous.

¹ Trade Marks Act 1995 (Cth) s 42(a).

² Cosmetic, Toiletry and Fragrance Association Foundation v Fanni Barns Pty Ltd (2003) 57

IPR 594, 599.

³ Trademark Application No. 106321 by Eric Granville Mercy (1955) 25 AOJP 938.

4 Anne-Marie Cropley, ‘The Registration of Scandalous Trademarks’ [2008] (72) Intellectual Property Forum: Journal of the Intellectual Property Society of Australia and New Zealand 20, 26.

5 Ibid 26.

6 ‘Religious Affiliation in Australia’, Australia Bureau of Statistics (Web Page, 4 July 2022) <abs.gov.au/articles/religious-affiliation-australia>.

This is particularly an issue as controversial marks have an inherent appeal to brand owners, as their ‘edginess’ makes them more memorable and provides greater distinctiveness to their products.8 For example, the ‘FCUK’ mark by French Connection, which despite being difficult to pronounce, is very noteworthy and lends the brand an exciting and controversial image.9 Furthermore, minority groups only make up a ‘small percentage’ of a company’s market share, and so losing their patronage is not enough of a deterrence to prevent trademark owners from using such ‘offensive’ marks.10 Advertising and brand marketing means that successful trademarks are highly visible and almost inescapable for all consumers.11 Thus, the current regulatory framework has created a scenario where non-Western and non-Christian individuals may be regularly exposed to deeply offensive trademarks and have no legal means of address.

7 ‘Cultural Diversity: Census’, Australia Bureau of Statistics (Web Page, 28 June 2022) <https://www.abs.gov.au/statistics/people/people-and-communities/cultural-diversity-census/latest-release>.

8 Amanda Scardamaglia, ‘Are You Nuckin Futs? Registering ‘Scandalous’ Trademarks in Australia’ (2012) European Intellectual Property Review 34(9) 628, 629.

9 Patricia Loughlan, ‘Oh Yuck! The Registration of Scandalous Trademarks’ [2005] (61) Intellectual Property Forum: Journal of the Intellectual Property Society of Australia and New Zealand 38, 38-9.

10 Cropley (n 4) 20.

11 Ibid.

II. PRACTICAL ISSUES WITH LOWERING THE THRESHOLD

Although examining a mark from the perspective of any group which may take offence with the mark may produce fairer outcomes, it is extremely difficult to enact. The major difficulty would lie in assessing whether the minority group actually takes offence at the mark. Individuals within the same group will still have different opinions and values, and so not all members may find the mark offensive.12 For example, the US Courts found that the view of seven Native Americans that the football team ‘Redskins’ was offensive did not represent the opinion of the entire ethnic group.13 Although those individuals took offence with the name, the Court found other Native Americans took pride in their name

being used as a symbol of ‘strength and skill’.14 Similarly, while a part of the lesbian community found ‘DYKES ON BIKES’ offensive, others had re-claimed the label ‘dyke’ to represent themselves and so found the mark more humorous than offensive.15 Determining the group majority’s opinion in every instance of contentious trademarks would be arduous and complex, requiring surveys of all group members.16 This would render the trademark registration process extremely lengthy and expensive, and would not be an appropriate use of government funds by IP Australia.17 Thus, it would not be feasible to assess a trademark’s offensiveness to all groups in Australia.

III. RESOLUTION OF ISSUE THROUGH PUBLIC DISCOURSE INSTEAD OF LAW

Rather than being regulated by legislation, offensive trademarks should be scrutinised by society and be curtailed via social activism and public backlash. The ATMO is not the appropriate body to adjudicate on the morality of marks and control social discourse. IP law is designed to protect and achieve commercial objectives, and so determining morality is ‘outside the function and purpose’ of the ATMO.18 Furthermore, preventing registration does not necessarily prevent offensive brand names from being displayed.19 In the United States, 53.45% of rejected marks were still being used,20 further reinforcing that IP law is not the appropriate body of law to resolve issues based on morality or political correctness.

Thus, rather than being prescribed by law, offensive trademarks should be scrutinised by society, driven by changing values. For example, the increased focus on cultural sensitivity and political correctness led to the

‘RedSkins’ and ‘Coon Cheese’ trademarks being voluntarily changed by businesses. Social activism is therefore a more powerful mechanism through which to hold businesses accountable and raise awareness of offensive terms.21 Further, restricting the content of trademarks via the law may be harmful to minority groups as it prevents them from reclaiming certain marks for themselves.22 Minority groups often re-claim disparaging names for themselves, such as the word ‘queer’ by gay activists or ‘n*gger’ by AfricanAmerican rap artists.23 The prominence of trademarks via mass marketing has meant they have become part of ‘society’s zeitgeist’,24 and arbitration by the ATMO risks stifling social discourse. Thus, there are strong policy reasons for preventing IP law from arbitrating on the offensiveness of trademarks, and instead relying on social activism and public backlash to assist minority groups in addressing scandalous marks.

Unfortunately, the current regulatory framework of trademark law majorly favours Western and Christian groups and allows for businesses to profit off offending minority groups. However, the complex social issues raised by this are better resolved through public discourse rather than a heavy-handed approach through law reform.

12 Jendi B. Reiter, 'Redskins and Scarlet Letters: Why "Immoral" and "Scandalous" Trademarks Should Be Federally Registrable' (1996) 6(3) Federal Circuit Bar Journal 191, 204-7.

13 Ibid 204.

14 Ibid 205.

15 Cropley (n 4) 28.

16 Anne Gilson LaLonde and Jerome Gilson, ‘Trademarks Laid Bare: Marks That May Be Scandalous or Immoral’ (2011) 101(5) The Trademark Reporter 1476, 1493-4.

17 Ron Phillips, ‘A Case for Scandal and Immorality: Proposing Thin Protection of Controversial Trademarks’ (2008) 17(1) University of Baltimore Intellectual Property Law Journal 55, 70-1.

18 Megan M. Carpenter, ‘Contextual Healing: What to Do about Scandalous Trademarks and Lanham Act 2(a)’ (2016) 68(1) Hastings Law Journal 1, 44; Sophia O'Sullivan, ‘Scandalous Trademarks in Australia and the United States: Constitutional Validity, Uncertainty and Inconsistency’ (2018) 3 Perth International Law Journal 10, 11.

19 LaLonde (n 16) 1485-6.

20 Carpenter (n 18) 362.

21 Phillips (n 17) 63.

22 Reiter (n 12) 207.

23 Ibid.

24 Ibid 208.

POLITICIANS' ADVANTAGES IN DEFAMATION LAWS: EXPLORING HOW CURRENT LAWS ALLOW THE MOST POWERFUL TO SILENCE THEIR CRITICS

BY ARIELLA TRACTON

WHAT IS DEFAMATION LAW?

Defamation law is an area of civil law with growing complexity. Defamatory material is defined as publication of material that is untrue or unsubstantiated, which causes serious harm to an individual’s reputation.1 These laws exist to protect individuals from undue harm to their reputation, aiming to provide the legal framework to balance the freedom to circulate information in the public interest, with the right to access remedies for the publication of defamatory material.2

There is a clear need for defamation law review. These laws are defined by each state and territory in Australia, creating inconsistency and unnecessary

complexity, evincing a need for unanimous regulations to be adopted across all jurisdictions. In NSW, the key legislation on defamation is contained in the Defamation Act 2005 3 While the legislation aims to protect the character of individuals from unfounded attacks to unreasonably harm their reputation, in practice it largely benefits the most powerful.4

This critical discourse will examine the harmful nature of current defamation laws, emphasising the critical need for law reform to protect public interest and promote fair democratic participation through the freedom of political communication.5

¹ Defamation Act 2005 No 77 (NSW) s 7.

² Rhonda Breit, ‘Uniform Defamation Laws in Australia: moving towards a more ‘reasonable’ privilege?’ (2011) 138 (1) Media International Australia Incorporating Culture & Policy 10.

³ Ibid.

4 Ibid.

5 David Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 established this implied right.

Defamation cases proliferate amongst politicians who derive their ‘electability’ through the maintenance of their reputation, aiming to maintain favourable attitudes from the public. Therefore, politicians have a greater incentive to sue over defamation than other plaintiffs as it enables claims that allegations are merely ‘fake news’.6 The current laws enable politicians to threaten defamation litigation on political

positions of power to protect themselves from scrutiny.

The recent case of YouTuber Jordan Shanks-Markovina publishing videos exposing John Barilaro’s corruption highlights the need for defamation law reform.10 Arguably, Shanks’ videos published on YouTube were related to public interest and freedom of information. Ultimately, the court ruled in favour of Barilaro, because of his parliamentary

WHAT’S NEXT?

Due to the rapidly changing landscape of Australian politics, the 2005 defamation laws are no longer fit for purpose. As such, organisations including the Law Council of Australia have criticised the way in which defamation laws in Australia stifle freedom of speech and reportage on issues in the public interest. There is no explicit right to freedom of speech under the Australian Constitution, which further reinforces the limitations on expression by journalists established by NSW defamation laws.

The need for defamation law review is recognised. The original national Model Defamation Provisions (‘MDPs’) were approved as a unanimous enactment of uniform provisions in 2005 across all Australian states and territories. In 2020, all Australian states and territories developed the Model Defamation Amendment Provisions, which have established the impetus for meaningful change to be made in defamation law.11 Statutory review has been ongoing ever since former NSW Attorney-General Mark Speakman committed to an overhaul of NSW defamation law in July 2020 by implementing the provisions.12 Ultimately, the national implementation of the 2020 MDP amendments will make defamation law more equitable.

A new proposed defence of public interest in the 2020 MDP amendments aims to increase protections of

Queensland are leading the enactment of these provisions, within an ongoing, two-stage approach of implementation and review.16

Proposed law reform is justified and can modernise the outdated Australian defamation laws. A national approach would be superior to an individual state and territory approach. The current permissive attitudes towards politicians using defamation claims as a knee-jerk reaction to criticism inhibits valid and crucial political commentary.17 The inclusion of a public interest defence would likely remedy these issues, by allowing citizens to be informed on matters affecting their democratic participation.18 Enabling litigation in defamation claims by Australian politicians at its current rate could establish a dangerous precedent, threatening the democratic principles of freedom and liberty in Australia.19

6 Ibid.

7 Garrett Mundy, Jacob Kagi and Eliza Laschon, WA Premier sues Queensland businessman Clive Palmer for defamation. ABC News (Online, 23 September 2020). https://www.abc.net.au/news/2020-09-23/mark-mcgowan-takes-legal-action-againstclive-palmer/12691798.

8 Ibid.

9 Rebecca Payne, NSWCCL on politicians and defamation. New South Wales Council for Civil Liberties (Online, 27 July 2021). https://www.nswccl.org.au/nswccl_on_politicians_ and_defamation.

10 Barilaro v Google LLC [2022] FCA 650.

11 Australian Law Reform Commission, Traditional Rights and Freedoms – Encroachments by Commonwealth Laws (Report No 129, January 2016).

12 Paul Karp, Defamation Nation: why are Australian politicians so quick to sue? The Guardian (Online, 13 June 2021). https://www.theguardian.com/law/2021/jun/13/

defamation-nation-why-are-australian-politicians-so-quick-to-sue.

13 Ibid.

14 Michael Douglas, ‘Defamation Actions and Australian Politics’ (2021) University of New South Wales Law Journal 6.

15 Ibid.

16 Law Council of Australia, Review of Model Defamation Provisions – Stage 2 Discussion Paper (June 2021).

17 Craig Burgess, ‘Criminal defamation in Australia: Time to go or stay’ (2013) 20 (1) Murdoch University Law Review 10.

18 Ibid.

19 Michael Douglas, Australia’s ‘outdated’ defamation laws are changing – but there’s no ‘revolution’ yet. The Conversation (Online, 28 July 2020). https://theconversation.com/ australias-outdated-defamation-laws-are-changing-but-theres-no-revolution-yet-143532.

HISTORY IS CALLING; IT’S TIME WE PICK UP THE PHONE.

BY TIFFANY ZWANINK

For the past 60,000 years, First Nations communities across Australia have been sharing stories, creating memories and shaping long-standing cultural traditions. Their voices have been spoken in 363 different languages, yet, they often go unheard in policy and legal decision-making processes.

In 2017, the Uluru Statement from the Heart advocated for constitutional reforms that would ultimately empower

Aboriginal and Torres Strait Islanders by recognising their past, present and future contributions to Australia’s history, paving a path for self-determination. The statement called for the “establishment of a First Nations Voice enshrined in the Constitution”1, and now Australia has the chance to make this a reality.

WHAT IS ‘THE VOICE TO PARLIAMENT’ AND WHY IS IT IMPORTANT?

The Voice to Parliament (‘the Voice’) is intended to act as a bridge between existing government practices and Aboriginal and Torres Strait Islanders, ensuring that Parliament can make better and more informed decisions on matters relating to First Nations people. In line with this overarching principle, the role of the Voice is to make representations about how various laws and policies will ultimately impact Indigenous communities, with the ability to

suggest how they could be made more suitable for all of the people. Academics such as Elisa Arcioni also recognise the importance of implementing such a mechanism, identifying that First Nations are incredibly underrepresented in our government and proposed the establishment of the Voice as a necessary first step in remedying this issue. 2

WHAT WILL THE VOICE LOOK LIKE?

In some ways, this proposed mechanism will reflect existing systems in other jurisdictions. Many parallels have been drawn between the proposed Voice in Australia and Māori representation in New Zealand. Many have debated whether New Zealand’s Parliament has become “second fiddle” to the Māori Voice, raising concerns that a similar pattern would be embedded in Australia.3 Even though Australia can observe the practical implications of implementing such a body in Australia, some key distinctions between these two models exist. Firstly, in New Zealand, Māori representation is achieved through designated seats in parliament, creating a voice in parliament as opposed to a voice to parliament.4 The seat in parliament creates a direct power to make

decisions. Whilst this may be an appropriate model to achieve its intended purposes, Australia’s Voice will operate through a different framework.

Another key distinction is that the Voice will not have a veto power as it will not be able to directly determine new laws and policies. Instead, Australia’s proposed model is grounded in the fundamental idea that First Nations people have the opportunity to help inform and contribute new perspectives to decisions that impact them and their communities. Accordingly, the Voice is still likely to provide a mechanism that guarantees First Nations perspectives are appropriately considered in planning policies directly impacting First Nations peoples.5

THOUGHTS, THEORIES, QUERIES

The Voice’s operation as an external body offering recommendations will eliminate many concerns about disruptions to the separation of powers, or that Parliament would be forced to effectuate the Voice’s representations. In reality, the High Court is precluded from forcing the Parliament to enforce the Voice’s commentary to protect Parliamentary integrity and maintain fairness through the separation of powers. The only real way that courts could intervene is to review a government decision that does not appear to have been made fairly, considering all relevant or required representations.

A further argument has been made that courts might interpret the proposed Constitutional reform as a requirement to consult and accept recommendations from the Voice. Given the wording and purpose of the drafting, this seems an unlikely determination. Robert French, a former Chief Justice of Australia reinforces this sentiment, expressing that “[t]here is no constitutional legal obligation

for the Parliament or the Executive to accept or be bound by such submissions or advice.”6 This concern however provokes a crucial question of , whether the Voice will even be effective if there is no real requirement to listen?

I believe it is fair to say that establishing the Voice is intended to incite consideration of the impacts of pParliamentary decisions proactively as opposed to retrospectively. Assuredly, the guiding principles for the proposed Voice seem to favour the body’s independence, allowing for more sincere, community-led and culturally informed representations of community views to be conveyed. Having this platform to raise concerns that are typically overlooked or even disregarded is certainly a positive contribution to Australia’s system of governance. This viewpoint appears to be the majority view in Australia, with 80% of Australians affirming that there is a need to include some version of an Indigenous body in the Constitution.7

THE REFERENDUM – WHAT WILL BE ADDED TO THE CONSTITUTION?

Assuming the premise of the Voice is uncontentious, we can look at how it will be implemented. In order to enact these changes as proposed, there is a need for constitutional amendment, which can only take place through a referendum. It is expected that in late 2023, Australians will be asked to answer either ‘yes’ or ‘no’ to the following question:

‘“A Proposed Law: to alter the Constitution to recognise the First Peoples of Australia by establishing an Aboriginal and Torres Strait Islander Voice. Do you approve this proposed alteration?’”

3 Ellen McCutchan and David Campbell, ‘Does New Zealand’s parliament really play second fiddle to a ‘Māori Voice’?’, ABC News (online, 14 April 2023) <https://www.abc.net. au/news/2023-04-14/fact-check-checkmate-maori-voice-waitangi-tribunal/102217998>.

4 Dominic O’Sullivan, ‘What Australia could learn from New Zealand about Indigenous representation’, Charles Sturt University News (online, 21 March 2023) <https://news.csu. edu.au/opinion/what-australia-could-learn-from-new-zealand-about-indigenous-representation>.

5 Gabriella Appleby and Eddie Synot, ‘A First Nations Voice: Institutionalising Political

Whilst Australians will not be asked to contribute to a specific model through which the Voice will operate, it is safe to say that this is not a radical change. Rather, if the double majority agrees, we will simply be recognising the significance of First Nations peoples as part of the fabric of Australia’s society. This is a pivotal step in reconciling and closing the gap in a way that leads to better outcomes for all Australians.

Listening’ (2020) 48(4) Federal Law Review 529.

6 Robert French, ‘The Voice – A step forward for Australian Nationhood’ (online, 20 February 2023) <https://www.auspublaw.org/first-nations-voice/the-voice-a-step-forwardfor-australian-nationhood>.

7 ‘Voice to Parliament’ Reconciliation Australia (Web Page) <https://www.reconciliation. org.au/reconciliation/support-a-voice-to-parliament/#DoAustralianswantchange>.

LGBTQIA+ SAFE SPACE RIGHTS

BY BETHANY KELLY

INTRODUCTION

Recognising relevant social debate within international discourse today is simple. Looking at our politically charged ally, the US’ continual hyperbolic promotion of individual rights and freedoms is felt across the world. However, this political contention reached me, not through Donald Trump or Candace Owen’s Twitter handles, but at my hospitality job

During a routine bathroom check, our security and licensee approached me as I was leaving the female bathroom with a male patron. The patron was my friend who identifies as sexually and gender diverse (‘SGD’), but the policy was plain:

you can’t use the female bathrooms if you are male.

The discussion of a more inclusive community for SGD persons has been subjected to gross dissection by contemporary politics, leaving SGD individuals like my friend feeling vulnerable, unwelcome and without safe spaces. This essay evaluates existing legislation that aims to create and protect safe spaces for SGD persons. Further, I shall identify whether these safeguards effectively enhance society or if other communities are disadvantaged.

LEGISLATION

Gender discrimination laws have been championed in Australia since the passing of the Sex Discrimination Act 1984 (‘SDA’), making it illegal to discriminate against individuals on ‘the grounds of sex.’1 In 2013, the Federal Government passed amendments to broaden the scope of gender discrimination, defining sex discrimination to include sexual orientation, gender, and intersex status.2 Specifically, s 5B highlights that a person experiences discrimination if they are treated ‘less favourably’ than another because of their gender identity or characteristics of their appearance that associate with a specific gender identity.3 In other words, an SDG person experiences discrimination when their identifying gender is questioned or diminished in a gendersegregated bathroom. This is monumental for queer justice in Australia’s legal system as it enshrines within the legal definition of ‘gender’ respect for its social factors rather than biological. These reforms responded to emerging case law that reconsidered the definition of gender, such as the case of Norrie, which held that gender is a ‘non-binary term.’4

The SDA also prevents policies being imposed on safe spaces for SDG Australians. Distinctly, s 5B(2) identifies discrimination when a ‘condition, requirement or practice’ is imposed to directly disadvantage individuals on the

¹ Sex Discrimination Act 1984 (Cth), s 5. ² Attorney-General’s Department, Australian Government Guidelines on the Recognition of Sex and Gender (1st July 2013).

³ Sex Discrimination Act 1984 (Cth), s 5B (1)-(3).

4 Norrie v NSW Registrar of Births, Deaths and Marriages [2013] NSWCA 145.

5 Education Act 2004 (ACT); Education Act 1990 No 8 (NSW), s 4-6; Education Act 2015 (NT); Education (General Provisions) Act 2006 (Qld); Education and Children’s Services

basis of gender. This section benefits SDG individuals by embedding an implied right to protection against policies that restrict their integrity and freedom, such as use of facilities. It also encourages amendments to existing legislation influenced by institutional discrimination - such as access to medical treatment and disclosure of identity in government documents. This also extends to all-gendered bathroom access and policies. While case law and further legislation remains limited in this respect, agency policies have come into effect to protect SGD individuals. State and Territory policies have been issued by each state’s Department of Education, with power conferred from their relevant Education Acts,5 confirming that students may use school bathrooms and changing rooms that align with their gender identification. Other agencies, including government universities such as the University of Technology of Sydney (‘UTS’) passed a university policy implementing all-gendered bathrooms in 10 of its campus buildings. These bathrooms are still active and accessible today. Schools, alongside other agencies, are also prohibited from disclosing a student’s gender, pursuant to the Privacy and Personal Information Protection Act 1998 (Cth).6 This consequently limits the discussion and denial of a student’s identifying gender when using agency services and facilities.7

Act 2019 (SA); Education Act 2016 (Tas); Education and Training Reform Act 2006 (Vic); School Education Act 1999 (WA).

6 Privacy and Personal Information Protection Act 1998 (Cth), s 62(1); Ritson v Gay and Lesbian Community Publishing Ltd [2012] NSWSC 483.

7 Mark Bryan, ‘A School’s Legal Obligations With Respect to Transgender Students’, School Governance by Complispace (online, 21st September 2022),

CRITICISMS

Many criticisms and concerns of these laws have surfaced, such as the inability of current government policies and laws to promote the comfort and safety of SGD people. The Washington Post recorded that Australia’s SGD youth still feel unsafe using gendered bathrooms in 2019. Erik Ly, a Victorian transgender male, described the experience as ‘a really strong direct message … that the wider community is pretty much against [us].’

Further, the SDA’s legal enforceability is limited. Discrimination law is handled within private law, forcing SGD individuals who experience discrimination to lodge a complaint and to approach the matter through civil procedure. This can cause further distress for SGD individuals, as well burden victims financially and socially. The LGBTIQ Legal Service analysed the severe disadvantages faced by SGD communities when accessing legal support. The service found that in 2020, only 23.68% of discrimination victims sought legal aid due to a lack of resources to adequately support victims and facilitate a safe and welcoming process in seeking compensation.8

All-gendered bathroom implementation is also institutionally restricted under building regulation laws. The National Construction Codes outline the quantity of gendered and disabled bathrooms in Australian buildings by considering

factors such as size, number of users and the building’s specific use. This policy does not consider multi-stalled allgendered bathrooms for most buildings, resulting in many institutions being unable to implement a safe space for SGD people.9

Another large point of contention concerning all-gendered bathrooms is the safety and privacy of women. Hanover Welfare Services Ltd highlighted the issue of domestic violence survivors being triggered by transwoman utilising female facilities naked.10 This case influenced Victorian legislation to exempt discrimination against transgender women for the purposes of providing shelter, introducing the question of how governments will balance the rights to safe, accessible spaces for different vulnerable groups. This extends to Australia’s disabled community. Many handicapped bathrooms are being made less exclusive for disabled Australians for the benefits of SGD persons. UTS is an example of this, as conservatives argued that converting disabled bathrooms for the benefit of a ‘tiny subset of society’ affected the 1 in 5 Australians that live with a disability who already struggle to locate convenient bathrooms.11

CONCLUSION

The Australian community is taking steps to create safe and inclusive spaces for SGD members, both through legislation and independent policies. While the effectiveness of these steps is mixed, Australia’s increased legal awareness of SGD rights suggests a future that promotes inclusivity and acceptance for vulnerable Australians. However, pertinent questions still exist regarding how the government will balance these freedoms with the rights of other disadvantaged social groups.

8 LGBTIQ Legal Service, LGBTIQ Legal Needs Analysis: Reflections on legal need and future planning from our two-year pilot program, Article, 2020.

9 Australian Building Codes Board. National Construction Code 2019 Volume 1 amendment 1, (at 1st May 2019), s F2.

10 Hanover Welfare Services Ltd (Anti-Discrimination Exemption) [2007] VCAT 640; Karen Gurney & Eithne Mills, Eithne, ‘VCAT, Hanover and the Transgender Conundrum’ (2007) 32(4) Alternative Law Journal 203.

11 Mark Powell, ‘What’s so good about transgender toilets?’, The Spectator Australia, (online, 21st February 2019), <https://www.spectator.com.au/2019/02/whats-so-goodabout-transgender-toilets/>

EDUCATIONAL EVOLUTION: THE FUTURE WITH AI

BY ALEKSANDRA CHOJNACKI

ChatGPT was released by OpenAI in November of 2022, which immediately threatened the academic integrity of student work and kicked off a relatively limited conversation. However, it’s certainly not the only piece of AI that is revolutionising almost every aspect of our lives, to which education is no exception.

Artificial Intelligence (AI) is a brand of computer science that studies the development and implementation of algorithms and software, allowing machines to think and act like humans. It can take on many forms, is fit for many different purposes, and is rapidly evolving. As a result, there are numerous and complex challenges and benefits that it presents for our society, and its role in the future of education.

The potential of AI in education is enormous. It has the power to enhance teaching and learning by providing personalised teaching experiences. It can transform research and administration. It can provide access to custom content and feedback for students and teachers that are currently limited by monetar, location, and time constraints. It can also make high-quality education universally accessible – all of which is what our Australian education system desperately needs.

In the Productivity Commission Report released in January 2023, it found that despite a 21% increase in higher education funding in the past decade there has been no noticeable improvements in student learning outcomes. It further identified that the single most influential factor to improve results is teacher effectiveness. However, teaching

time is increasingly encroached by low-value administrative tasks which lead to longer working weeks, low morale and poor mental health. Most teachers are now working 45 hours per week, but only 55% of this time is spent actually teaching or preparing for lessons. 1

Another particularly concerning finding from 2022’s NAPLAN results showed that “13.5% of year nine boys did not reach the national minimum standard for reading, while a staggering 20.8% did not meet it for writing” 2 This means one in every five boys could be described as functionally illiterate – just three years before they head into university or the workforce.

Correspondingly, there has been a big push towards scientifically proven ways of teaching, rather than treating

¹ Ronald Mizen, ‘Gonski billions had ‘little impact’ on literacy, numeracy’, Australian Financial Review, 20th Jan 2023 <https://www.afr.com/politics/federal/gonski-2-0-moneyshould-be-linked-to-clearer-goals-for-students-pc-20230119-p5ce3a>

² Julie Hare, ‘’A lot of pseudo-science’: The problem with schools’, Australian Financial Review, 3rd February 2023 <https://www.afr.com/politics/federal/a-lot-of-pseudoscience-the-problem-with-australia-s-schools-20230201-p5ch6y>

³ Julie Hare, ‘The cold call that delivered this uni teaching program a $2.5m boost’,

it as an artform (see the $2.5 million donated by serial philanthropist Neville Bertalli to La Trobe University for their work retraining teachers within their Science of Language and Reading Lab). 3 These approaches have been supported by studies for the past three decades but have always been too difficult to operationalise at scale. Just take a look at Benjamin Bloom’s research in 1984, where he compared student learning in three different conditions: conventional, mastery learning, and tutoring. Overwhelmingly, students in the one-to-one tutoring groups considerably outperformed those in the other groups by multiple standard deviations.4

The implementation of such customised high-impact evidence-based programs however requires teachers to undergo additional training, to spend more time with their students individually, and for students to have access to

Australian Financial Review, 30th April 2023 <https://www.afr.com/work-and-careers/ education/philanthropist-gifts-2-5m-to-la-trobe-reading-program-20230425-p5d36e>

4 Benjamin Bloom, ‘The 2 sigma Problem: The Search for Methods of Group Instruction as Effective as One-to-One Tutoring’, Educational Researcher, Vol 12, No 6 (Jun - Jul 1984) pp 4-16.

custom content for their specific learning requirements. This kind of learning experience is one that only the wealthiest families could afford for their children – so they get the best marks, get into the best courses in the best universities, and have access to the best opportunities in life.

With the current state of the education system, to offer this level of personal attention is an impossible task … That is unless, and until, we leverage the power and potential of AI driven tools appropriately and sensibly.

For example, by leveraging AI tools schools and universities could:

1. Make administrative tasks simpler, freeing up time for teachers and those in administrative roles within an educational institution;

2. Provide personalised learning experiences with AI-driven tutoring with course material catered to individual student abilities, and strengths and weaknesses;

3. Empower teachers to meet the needs of their individual students more efficiently;

4. Create more universal and accessible learning opportunities for students who have different needs, backgrounds, and are in regional locations;

5. Prepare students for a workforce that expects skills in using AI.

As Darwin's theory suggests, it's not the strongest or the most intelligent that survives, but the ones that are most adaptable to change. By thoughtfully adopting AI, schools and universities can leverage powerful technology to stay competitive and create greater opportunities for all members of society. So it needs to be clear that generative AI like ChatGPT is only the most recent inflection point for education. Just consider the internet; how it changed the way in which we study, the value we place on critically analysing authorship and bias, and the speed at which we can create. This modern inflection point has an enormous potential to alleviate the pains in this under-resourced sector.

While there are reasonable concerns about the potential impact of AI on inequality, testing and training, it is equally important to remember that technological advancements

have historically led to increased productivity and economic growth. Consequently, AI is increasingly embedded into the fabric of our society, which shifts the set of skills expected in the workforce.

According to a study conducted by the International Data Corporation, 92% of institutions are already using AI technology regularly.5 And so, as businesses embrace AI it also presents an opportunity to create new, different jobs and provide more valuable products and services.

Naturally, due to the rapid advancements in generative AI – largely due to the rise of ChatGPT – there has been significant progress in the regulation of AI by governments around the world. While AI is difficult to regulate due to its broad range of uses across a diverse range of industries,

the European Commission has made the most progress in the space so far, having been drafting an AI Act since 2020, which if passed will see AI tools ranked according to their perceived risk level (minimal, limited, high, and unacceptable).6 Likewise in Australia, it’s recommended that individual regulators are empowered, and dedicated AI agencies are employed to monitor the progression of AI and advise governmental bodies on the appropriate courses of action – just as we have for other fields.

Notably, educational institutions can already take reasonable steps to prevent plagiarism by implementing tools such as Turnitin, who successfully developed an AI writing detector that has identified 97% of ChatGPT and GPT3 authored writing.7

So, when we discuss the future of AI in higher education and the impact it could and is likely to have, we must consider all of its varied forms.Policymakers, educators, developers, and students all have a significant role to play in ensuring that the benefits of AI are shared fairly, that it is used appropriately, and that measures are in place to address any negative impacts. However, we must also be mindful that the, no doubt necessary, incoming regulations and legislation do not stifle innovation, particularly for sectors who stand to see enormous benefits. This is a balancing act that we will all have a responsibility to monitor, manage, maintain, and develop as AI continues to evolve.

european-union-s-ai-act-explained/>

6 Spencer Feingold, ‘The European Union’s Artificial Intelligence Act, explained’ World Economic Forum, 28th March 2023 <https://www.weforum.org/agenda/2023/03/the-

7 ‘Turnitin announces AI writing detector and AI writing resource center for educators’, 13th February 2023 <https://www.turnitin.com/press/turnitin-announces-ai-writingdetector-and-ai-writing-resource-center-for-educators>

5 Michael Shirer, ‘IDC Survey Illustrates the Growing Importance of Purpose-built AI Infrastructure in the Modern Enterprise’ 10th February 2022, <https://www.idc.com/ getdoc.jsp?containerId=prUS48870422>.

FICTION TO FACT: THE RISE OF DEEPFAKES AND THEIR LEGAL IMPLICATIONS IN AUSTRALIA

BY ZACHARY BOSWELL INTRODUCTION

In an increasingly digital age, individuals and communities have the power to reach anyone through the internet, convey anything, and showcase the real experiences of people all over the world. But what happens when a video isn’t real at all? When something that doesn’t exist has the power to influence millions of people?

A deep learning fake (‘deepfake’) is a form of digital media, typically an image or short video, that has been

manipulated using artificial intelligence (‘AI’).1 The altered videos usually depict persons doing or saying something they have not said,2 yet they are often virtually indistinguishable from real video.

This piece will explore who benefits from the distribution of deepfakes, the scope of the problem, and pose some potential solutions Australia could adopt to address this issue.

WHO BENEFITS?

It’s difficult to identify a specific person or group who benefits from the distribution of a deepfake as it is inherently difficult to identify the media’s creator.3 Whilst it would be easy to claim that the creator is the one who benefits, this is not always the case.

Towards the end of March 2023, images depicting former US President Donald Trump being arrested prior to his indictment began circulating. These deepfakes were initially created using Midjourney,4 an incredibly effective generative AI, by journalist Elliot Higgins. Despite Higgins clearly stating that the pictures were created using generative AI,5 other sources went on to reshare and claim the authenticity of these images, highlighting how easily deepfakes can cause misinformation to run rampant.

Ukrainian President Volodymyr Zelensky was also exposed to deepfake news when images depicting

¹ Ted Talas, ‘Real or (deep)fake? Responding to the legal challenges created by the emergence of deepfakes’ (2022) 18(9) Privacy Law Bulletin 181 (‘Talas’).

² Dean Gerakiteys and Natalie Coulton, ‘is that you? Deep dive into deepfakes part 1: What is a deepfake?’, Clyaton Utz Knowldege (webpage, 2 March 2023) <https://www. claytonutz.com/knowledge/2023/march/is-that-you-deep-dive-into-deepfakes-part-1what-is-a-deepfake>

³ Dean Gerakiteys, Lex Burke and Natalie Coulton, ‘is that you? Deep dive into deepfakes part 2: Legal issues and regulatory landscape’, Clyaton Utz Knowldege (webpage, 24 March 2023) <https://www.claytonutz.com/knowledge/2023/march/is-that-you-deepdive-into-deepfakes-part-2-legal-issues-and-regulatory-landscape>; see also John Channing Ruff, ‘The Federal Rules of Evidence are Prepared for Deepfakes. Are you?’ (2021) 41(1) Review of Litigation 103 <https://www.proquest.com/docview/2635270713?accountid=17095&parentSessionId=GNG14%2F1BDnX86yBg17Qo6B7OB31vogHvb2Ndi-

him telling Ukrainian soldiers to lay down their arms were posted to Facebook in early 2022.6 Though the video was quickly deleted and was low quality, a deepfake such as this has incredibly dangerous consequences, potentially affecting a country’s future. Had this deepfake been sufficiently convincing, it may have turned the tide of the Russia-Ukraine war in Russia’s favour.

The potential benefits vary depending on the type and target of the deepfake. While the intended outcome of the distribution may also play a factor, not all deepfakes are intended to cause harm. Thus, a better question to consider is not who benefits but rather the scope of the harm caused by the distribution of the deepfake and what consequences can arise.

TyXh%2F4%3D&pq-origsite=primo>

4 Ultan Byrne, ‘A Parochial Comment on Midjourney’ (2023) 21(1) International Journal of Architectural Computing’ https://doi-org.ezproxy.lib.uts.edu.au/10.1177/147807712311 70271open_in_new

5 ‘AI-generated images of Trump being arrested circulate on social media’, AP News (online, 22 March 2023) <https://apnews.com/article/fact-check-trump-NYPD-stormy-daniels-539393517762>

6 Jane Wakefield, ‘Deepfake presidents used in Russia-Ukraine war’, BBC Technology (online, 18 March 2022) <https://www.bbc.com/news/technology-60780142>

SCOPE:

On the surface, issues surrounding deepfakes would do little more than affect a small group of people. The harm caused by a revenge porn deepfake, a type of deepfake often depicting a naked individual in sexual activity,7 could only be viewed as affecting the individual depicted. However, the scope of this problem is much deeper and may have heightened consequences with long-term harm. In the case of the Zelensky deepfake, a deepfake had the potential to detriment a nation’s political identity at the height of a crisis. Moreover, the fact that a deepfake can be generated using only a single image, and, as a result, can ‘humiliate, shame and harass individuals’ is telling of the wide scope of the problem.8

In Australia, the bar required for defamation claims to succeed is incredibly high, with the quality and likeness of the deepfake being considerations in determining a successful claim.9 As a result, victims may be unsuccessful irrespective of the harm caused.

Alternatively, victims of a revenge porn deepfake may be able to pursue criminal charges. In New South Wales, under Division 15C (Recording and distributing intimate images), s 91N (1) of the Crimes Act 1900 defines image as ‘a still or moving image whether or not altered’.10 This was illustrated in the New South Wales District Court case of R v PW,11 in which the accused was convicted of 31 offences, including child pornography he had digitally altered.12

The number of deepfakes will likely continue to increase as technology develops, giving rise to more victims of deepfakes exacerbated by the inaction of many jurisdictions. With over 130 million views and 96% of deepfakes consisting of pornographic content in 2019,13 deepfakes cannot be viewed as a minor problem or trend, and relevant legislation should be enacted to combat this growing threat.

POTENTIAL SOLUTIONS

Australia is yet to take a direct legislative position regarding deepfakes. Other jurisdictions, however, have implemented specific legislation to combat this issue.

From 10 January 2023, the Cyberspace Administration of China began enforcing regulations on deep synthesis, which includes AI generated media,14 to prevent ‘one of the most explosive and controversial areas of AI advancement’.15 Similar legislation could be enacted in Australia, particularly Article 6, which upon translation states ‘any organisation and individual shall not use [deepfake] services to produce, copy, publish, and disseminate information prohibited by laws … [or] to engage in activities prohibited by laws’.16

Moreover, Chinese legislation has developed methods to track the creators of deepfakes, requiring verification of identity to utilise a deepfake service provider.17 Whilst this will not lock out those creators with specialist equipment, it is undoubtedly a step in the right direction and drastically reduces the spread of misinformation wrought by deepfakes. The Chinese legislation also reflects that service providers and regulators are, at a minimum, partially responsible for any harm caused.

Although Australia has recognised the issue in the form of a statement from the eSafety Commissioner,18 the government has no legal position, instead claiming to protect the public through approaches such as raising awareness and supporting people who have

been targeted. Though image-based abuse breaches Part 6 of the Online Safety Act 202119 administered by the eSafety Commissioner, a perpetrator will only receive a civil penalty, as jail time is not admissible.20 This reactive approach does not minimise the irreparable harm caused and only seeks to exacerbate the potential complications of deepfake media.

In Australia, we do have specific legislation in which victims of deepfake could theoretically take legal action. However, the difficulty in identifying the creator and specific legislative requirements mean that victims are unlikely to see justice taken. For example, a victim who had their face deepfaked onto another individual’s body would not be able to claim damages under copyright infringement as the original owner of the creative work must bring the claim.21

CONCLUSION

In summary, deepfake service providers are easily accessible and are not adequately regulated to guarantee compliance with the laws of Australia. The laws we have to ‘protect’ victims of image-based abuse cannot continue to act only in response as this issue requires efficacious preventative measures Ultimately, Australia has not yet met the challenge posed by deepfakes. It will have to do so, and no doubt will, for it is not necessarily the mother of invention.

7 Tyrone Kirchengast, ‘Deepfakes and image manipulation: criminalisation and control’ (2020) 29(3) Information and Communications Technology Law 308 <https://www-tandfonline-com.ezproxy.lib.uts.edu.au/doi/pdf/10.1080/13600834.2020.1794615?needAccess=true>

8 Alexander Ryan and Andrew Hii, ‘Deepfakes: the good, the bad and the law’, (2021) 18(7) Privacy Law Bulletin 128, 129 (‘Ryan and Hii’).

9 Talas (n 1).

10 Crimes Act 1900 (NSW) s 91N(1).

11 [2019] NSWDC 963.

12 Ibid [62], [78], [80].

13 Henry Adjer et al, ‘The State of Deepfakes: Landscape, Threats and Impact’, (Report, September 2019). <https://regmedia.co.uk/2019/10/08/deepfake_report.pdf>

14 [Internet Information Service Deep Synthesis Management Regulations] (People’s

Republic of China) Cyberspace Administration of China, Order No 12, 10 January 2023 (‘Deep Synthesis Regulations’).

15 Karen Hao, ‘China, a Pioneer in Regulating Algorithms, Turns Its Focus to Deepfakes’, Wall Street Journal (online, 8 January 2023) <https://www.wsj.com/articles/china-a-pioneer-in-regulating-algorithms-turns-its-focus-to-deepfakes-11673149283>

16 Deep Synthesis Regulations (n 14), art 6.

17 Ibid, art 10.

18 ‘Deepfake trends and challenges – position statement’, eSafety Commissioner (webpage, 23 January 2022) <https://www.esafety.gov.au/industry/tech-trends-and-challenges/deepfakes>

19 Online Safety Act 2021 (Cth) pt 6.

20 Ibid.

21 Ryan and Hii (n 8).

THE HOUSING CRISIS

BY LORENZO CAVALLARO

WHAT IS IT?

The housing affordability crisis facing Australia is one that has silently culminated over more than two decades, with ineffective housing policy at its centre. Housing policy is a delicate, yet complex issue as it has far-reaching consequences on areas such as housing affordability, homelessness, the rental market, the cost of living, investment property and urban planning. Therefore it is imperative that key stakeholders such as legal experts, economists, policy experts and legislators cooperate on this issue to ensure long-term solutions. By observing successful examples of housing policy overseas and extensive research on the topic, the Australian government has the potential to revolutionise the state of housing in Australia, and improve people’s livelihoods on a large scale.

WHERE ARE WE NOW?

The lack of housing affordability has disproportionately affected younger generations Homeownership has decreased considerably in the 25-34 year demographic in the last two decades, from 52.2% in 1996 to 29.2% in 2014. A major contributing factor to the decline in home ownership is that the price of housing has ballooned, especially in the last decade.

From March 2015 to March 2022, the average price of private housing nationwide has increased by over 60%.

Although the increase in housing prices has slowed in the last two quarters, home ownership remains exceedingly expensive, rendering the prospect of home ownership a distant dream.

In addition to the cost of owning a home, the rental market has also become difficult to navigate. This is often blamed on the oversaturation of renters in the market and the limited number of properties available. It Market saturation is exemplified by the queues of property inspections, which limit the number of people able to view the property. . Further, wages in Australia have, failed to keep up with nationwide increases in rent. Wages have increased by 3.6% in the last year, but the average rent has increased at more than double the rate of wage growth, causing rent to be comprised as tenant’s biggest living expense. For a significant proportion of single-income adults, a stable job is insufficient to secure a rental property.

The social housing system today has been subsumed into welfare, and is struggling due to significant underfunding. The system makes up a smaller proportion of government spending and the government portfolio than it did in the 1900s. Therefore, eligibility has been subject to more stringent conditions and extremely long waitlists to prioritise housing for the most vulnerable and disadvantaged. Hence, waitlist data does not capture the full picture, and likely underrepresents the number of individuals in need of social housing. Ultimately, insufficient funding only makes it harder to build and maintain adequate and affordable non-profit dwellings.

Homeownership, an affordable rental market, and an efficient and well-funded social housing programs are vital pieces to solving the issue of homelessness. Although the government has not collected exact figures for the number of homeless Australians since 2016, it is almost certain that the recent housing crisis and the failure to mitigate homelessness have further exacerbated the issue, and that homelessness is an issue facing far more Australians than ever before.

WHERE TO FROM HERE?

With the election of a majority (Labor) Federal Government, and a sitting Labor government in almost every Australian state and territory (barring Tasmania), there is ample opportunity for coordinated, progressive housing policy to be enacted on both the federal and state level.

On the Federal level, the Government has set a goal of 30,000 social and affordable houses over 5 years. It intends to achieve this through the Housing Australia Future Fund Bill 2023, a $10 billion housing fund put forward by the Albanese government. According to section 2A of the bill, its purpose is to ‘provide a funding mechanism … to address acute housing needs … and to enable support to be provided to increase the availability of social housing and affordable housing.’ This scheme forms part of its 10-year ‘National Housing and Homelessness Plan’ for affordable housing, which will foster collaboration between important stakeholders such as the federal and state governments, the construction industry, and experienced investors. Whilst there arehere are concerns that the 30,000 affordable homes target is insufficient to keep up with demand, this is the largest investment in social housing in decades, opening the door to greater investment in public housing in the future.

At the state level, the newly appointed NSW government is introducing a shared-home equity scheme, being the last Australian state to do so. It will be approved for 3,000 applicants in the 2023-2024 period, allowing buyers to jointly purchase a home with the government, subject to eligibility criteria. The program will allow eligible buyers to live in the property and have the flexibility to make voluntary payments to lower the government’s equitable interest in the property and allowing owners to retain the ability to make the decision to sell.

The NSW scheme is focused on increasing housing affordability by targeting single-income households such as single adults under 50, single parents with dependent children, and frontline ‘essential workers’ seeking to buy their first home. The success of the program in other states provides that shared-equity schemes such as these have some role to play in promoting housing affordability.

Furthermore,the Federal Government made a recommendation to the Fair Work Commission in 2022 to increase the minimum wage by 5.1%, proportional to inflation. . If adopted, the new minimum wage will be in force from July 2023. It would likely ease the burden for homeowners seeking to rent or save for a mortgage down payment.

THE MAIN TAKEAWAY

The housing sector is complex, pervasive and can only truly be resolved through long-term planning and investment. How will future generations judge our response to the crisis, three, four decades from now? Predict as we may, only time will tell. The only certainty is that charting through uncharted legal territory and considering bold ideas is a necessity in reaching effective and comprehensive solutions to complex legal issues.

AUSTRALIAN ANTI-MONEY LAUNDERING LAWS ARE FAILING TO ADDRESS GROWING LOOPHOLES IN THE PROPERTY AND ENTERTAINMENT SECTORS

BY BRITTANY CAIRNS

Money laundering, which saw over 82 offences and 70 people charged in 2022, has had detrimental effects on the Australian economy and its citizens.1 Urgent action has been called to address the significant loopholes in the system that the current Anti-Money Laundering and Counter-Terrorism Financing (‘AML/ CTF’) frameworks are not tackling. Criminal groups have escaped liability and imprisonment due to loopholes in the property and entertainment markets. Individuals have not been charged from the extensive enquiries into Star Entertainment Group and Crown Resorts Ltd, where billions of dollars of illicit funds were injected into their firm's accounts. ‘Dirty’ money

entering casinos and the property market continues to rise. The Australian Crime Commission estimates that organised crimes, including money laundering, cost around $10-15 billion per annum.2 Over $1.5 trillion of illicit funds is laundered worldwide each year, with $200 billion in Australia.3 Money laundering will continue to rise without immediate action. On 20 April 2023, the Attorney-General announced a public consultation on AML/CTF reform.4 The significant inquiries affecting Crown Resorts, Westpac Banking Corporation, and Star Entertainment Group have catalysed urgent calls for more action, particularly on charging company directors and executives.

MONEY LAUNDERING, AUSTRAC AND THE AML/CTF FRAMEWORK

Money laundering is defined as disguising criminal proceeds to make them appear legitimate. It involves the process of making illegally obtained funds appear ‘clean’ in order to hide illicit proceeds ors ‘dirty funds’. Offenders pass the funds through a series of transactions and disguise their trustworthy source. They often use casinos and the property market as a ‘vacuum’ to hide the ‘dirty funds’. For example, according to the Australian Transaction Reports and Analysis Centre (‘AUSTRAC’), over $69 billion was laundered through Crown Resorts over a 5-year period.5

AUSTRAC, Australia’s money laundering agency, is the Australian government agency responsible for disrupting and detecting the ‘criminal abuse’ of Australia’s financial system, aiming6 to protect the public from organised criminal activity. The question is whether AUSTRAC and the current AML/CTF frameworks are doing enough to minimise money laundering in Australia.7 8 Are the current laws sufficiently addressing the loopholes in property and casino markets?

MONEY LAUNDERING AND THE CRIMES ACT 1900 (NSW)

Pursuant to s 114B of the Crimes Act 1900 (NSW), a person commits a money laundering offence if he/ she deals with money or other property that are proceeds of crime.9 Importantly, under s 114B(c), the person must know that the respective money or other property is derived directly or indirectly from an unlawful activity.10 Currently, there are urgent calls for the penalties of money laundering to increase, particularly for company directors and executives who reasonably ought to know money laundering has been occurring within their firm. Under s 193B, a person who deals with the proceeds of crime knowingly and intends to conceal the proceeds of crime is guilty of a money laundering offence. The maximum penalty for

this is 20 years. However, this is rarely given. Pursuant to s 193B(2), a person who deals with crime knowingly is guilty of an offence with a maximum imprisonment of 15 years. Recklessly dealing with proceeds of crime has a maximum imprisonment penalty of 10 years. These laws may sound reasonable; however, the increasing loopholes are allowing for offenders to escape liability. For example, over $69 billion was illegally funded into Crown Resorts for five years before AUSTRAC filed an enforcement action. The Crown Resorts inquiry shows that no directors have been charged or held accountable for their negligent or reckless conduct in this scandal. Are the current laws failing to address director accountability?

¹ Australian Federal Police, ‘AFP targets the lifeblood of organised crime in 2022’ (Media Release, 17 December 2022) < https://www.afp.gov.au/news-media/media-releases/ afp-targets-lifeblood-organised-crime-2022>.

² Diane Heriot, ‘Money Laundering in Australia’, Parliament of Australia, (Web page, 22 November 2011) <https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/FlagPost/2011/November/Money_Laundering_in_Australia>.

³ Ibid.

4 Attorney’s General Department, ‘Modernising Australia’s anti-money laundering and counter-terrorism financing regime’ Australian Government: Attorney-General’s Department, (Web page) <https://consultations.ag.gov.au/crime/aml-ctf/>.

5 Nathan Lynch, ‘AUSTRAC claim alleges A$69 billion laundered through Crown Resorts’ Thompson Reuters (Web page, Tuesday 8 March 2022) <https://insight.thomsonreuters. com.au/business/posts/austrac-claim-alleges-a69-billion-laundered-through-crownresorts#:~:text=As%20a%20result%2C%20a%20total,Chinatown”%2C%20and%20 Alvin%20Chau>.

6 AUSTRAC, ‘AUSTRAC Overview’, Australian Government: AUSTRAC, (Web page) <https://www.austrac.gov.au/about-us/austrac-overview >.

7 Ibid.

8 Diane Heriot (n 2)

9 Crimes Act 1900 s 114B (‘Crimes Act’).

10 Ibid, s 114B(c).

CROWN RESORTS AND STAR ENTERTAINMENT GROUP SCANDALS

AUSTRAC filed its first enforcement action against Crown Resorts in March 2022. Crown Resorts allegedly had over $69 billion laundered into the business over a five-year period.11 According to AUSTRAC, the Crown ‘failed to maintain a compliant AML/CTF program to identify, mitigate and manage the risk’ of services being misused for money laundering.12 Following this scandal, Australian Securities and Investment Commission (‘ASIC’) stated that ’10 former Crown Resorts directors and senior executives will not face charges’ for breaching director duties.13 The anti-money laundering laws are clearly not holding those accountable despite ss 114B and 193B being implemented in the Crimes Act.14

Meanwhile in November 2022, AUSTRAC filed its case against both Star Sydney and Star Queensland in the Federal Court.15 The casino group ‘seriously and systematically’ breached federal law. International groups travelling on ‘junket tours’ laundered over $125 billion between November 2016 and October 2020. The NSW inquiry into the Star Entertainment Group discovered ‘triad gangs’ were involved in ‘large scale money laundering activities’.16 These scandals called for significant reform to current anti-money laundering laws to eliminate loopholes, particularly in the casino industry.

THE AUSTRALIAN PROPERTY MARKET BECOMING A DESTINATION OF CHOICE

Money laundering activities have become increasingly evident in the Australian property market. The ‘weak and outdated’ regulations are allowing money laundering in the property market, ultimately 'locking’ Australians out of purchasing homes.17 The property market is becoming a ‘destination of choice’ for money laundering activities.18 The property market loophole has become a problem due to AUSTRAC being unable

to detect financial-motivated crime. Transparency International Australia’s submission to the Senate inquiry in August 2021 mentioned how ‘a significant amount’ of money laundering activities are occurring due to AUSTRAC’s inability to use current laws to detect.19 The weak and outdated laws are causing the loopholes in the property market to increase, therefore allowing criminal groups to escape.20

TIME FOR REFORM

The Crown Resorts and Star Entertainment Group scandals have sparked major calls for money laundering reform to minimise the growing loopholes to launder illicit funds. Along with the property market loopholes, urgent reform is essential to create stricter laws which prevent criminal groups escaping liability and imprisonment. On April 20 2023, the Attorney-General announced ‘public consultation’ on proposed reforms to the AML/CTF regime.21 The main objective is to ‘harden Australian businesses’ against organised money laundering activities by criminals.22 Furthermore, the reforms aim to reduce the ‘complexity’ and burden on industry. The general public has been invited to submit recommendations by June 16 2023. Recommendations for money laundering reforms may be timely and not address

the significant, growing loopholes in a quick fashion. Should the government impose harsher and stricter reforms? Recommendations are a step in the right direction; however, this could be time costly, allowing criminals to continue to launder illicit funds in the vulnerable industries of property and entertainment. Furthermore, no transparent reform addresses director repercussions or harsher penalties for those involved in money-laundering activities. Directors involved in the Crown Resorts scandal have yet to be formally charged, which calls into question whether the current laws are too lenient. Hopefully, with public recommendations, stricter laws will be enforced to address these growing issues.

CONCLUSION

With around $10-15 billion per annum being illicitly laundered into Australia every year, urgent action and reform are essential to minimise the growing loopholes used by criminal groups.23 The extensive inquiries into the Star Entertainment and Crown Resorts money laundering scandals, in which no directors were charged, call for urgent action for harsher penalties. Despite s 114B and s 193B of the Crimes Act imposing imprisonment penalties, directors and executives associated with money-laundering

practices are not held accountable.24 The law is yet to address this area, which should be considered in the public consultation papers released by the Attorney General in April 2023. However, with the Australian government's cooperation, along with AUSTRAC and AML/CTF frameworks, there is hope that the issue of money laundering can be addressed and minimised over the next few years. Ultimately, reform would hold directors, executives, and criminal groups accountable for engaging in illicit money laundering conduct.

11 Nathan Lynch, ‘AUSTRAC claim alleges A$69 billion laundered through Crown Resorts’ (n 5).

12 Ibid.

13 Elouise Fowler and Hannah Wootten, ‘ASIIC lets Crown directors, execs off the hook; AUSTRAC sues casinos, Australian Financial Review, (online, Tuesday, 1 March 2022) < https://www.afr.com/companies/games-and-wagering/austrac-takes-crown-to-court-forwidespread-aml-non-compliance-20220301p5a0kw#:~:text=The%20corporate%20regulator%20has%20told,%2470%20billion%20through%20its%20casinos>.

14 Crimes Act (n 9) ss 114B,193B.

15 Elouise Fowler, ‘Star broke money laundering laws ‘innumerable’ times AUSTRAC’ Australian Financial Review (online, Wednesday 30 November 2022) <https://www.afr. com/companies/games-and-wagering/austrac-sues-star-entertainment-for-money-laundering-20221130-p5c2fi>.

16 Ibid.

17 Christopher Knaus, ‘Widespread money laundering in property locking out Australians from owning homes’ Guardian (online, Tuesday 9 November 2021) < https://www. theguardian.com/australia-news/2021/nov/09/widespread-money-laundering-in-property-locking-out-australians-from-owning-homes-senate-told>.

18 Ibid.

19 Ibid.

20 Ibid.

21 Australian Government: Attorney General’s Department (n 4).

22 Ibid.

23 Diane Heriot (n 2).

24 Crimes Act (n 9) ss 114B, 193B.