Woroni | Law

Meanwhile, in Canberra… #5
May 6, 2018 3:21 pm Comments Off on Meanwhile, in Canberra… #5
So, you want to have a serious conversation about drugs?
Prepare to speak out against the two major parties who are united in their opposition and don’t expect a fair hearing from the capital city tabloids. Talkback radio won’t be kind either.
Society is told to look at illegal drugs equally, with fear and derision. Drugs are the domain of delinquents and good-for-nothing young people and no serious conversation is required, unless you’re talking about crackdowns, raids and policing.
But the tide has changed on medicinal cannabis in Australia, so maybe public opinion is shifting on recreational use too?
The Greens certainly hope so, announcing their a plan to legalise recreational cannabis while citing 55 per cent public support. Sales would be limited to people over 18, there would be no advertising, the drug would be sold in plain packaging and the tax revenue would fund education and drug treatment programs.
“Prohibition has failed,” the Greens leader said. Di Natale, who was a doctor before he was a senator, continued: “the ‘tough on drugs’ approach causes enormous harm. It drives people away from getting help when they need it and exposes them to a dangerous black market.”
The Greens’ policy would turn that black market into a lucrative one for the budget bottom line. Independent Parliamentary Budget Office costings released by the Greens show the policy would create a $1.8 billion a year windfall for the budget.
A 25 per cent excise on sales, like the one applied to tobacco, along with GST and a reduction in law enforcement costs, would generate $3.5 billion for the government by 2020-21.
Of course, the major parties have been quick to denounce the proposal. The federal health minister, Greg Hunt, said the policy was not “safe, responsible or something which should be allowed.”
The opposition leader, Bill Shorten, called the announcement “political clickbait” and said the Greens want to legalise ecstasy. Cripes! (It’s not true, although the Greens platform includes decriminalising all drugs.)
Shorten was right about one thing. The announcement is political clickbait.
Remember back a few weeks to the Greens’ loss in Batman. Labor’s popular trade unionist, Ged Kearney, is now installed in Canberra after the Greens failed to break through Melbourne’s Bell Street curtain.
Column inch after column inch has already been dedicated to this result, but most conceded the Greens’ flagship anti-Adani coal mine campaign failed to cut through. Although heinous, the reality of a mine which will be a bigger greenhouse gas emitter than the entire country of New Zealand wasn’t close enough to home.
The Greens, then, are clearly looking for something will resonate in their would-be heartland: the inner city. Is legalising cannabis the policy to do it?
Head to the official-sounding http://drugs.org.au/ and you will be under no false pretences about who the Greens are targeting with their campaign website. The site, titled “Just Legalise It”, is loaded with pictures of bright-looking young people enjoying a picnic and going to a gig. The kind of people who might turn their vote Green, if they haven’t already.
But the Greens are not seen as a governing force. Perhaps the lesson of Batman is that voters will choose a party with a real chance of governing in the hope that at least some progressive positions will be adopted. The Greens just don’t have that kind of clout.
Fans of legalising cannabis will take the win if, at some point in the future, Labor comes around to the idea and makes it happen. The Greens will cry foul over policy plagiarism, because a win on principle in this scenario doesn’t translate to political capital for the minor party.
And “makes it happen” is the key phrase here. Cannabis is a state issue. But it could pay off the Greens, who probably now realise they need to pursue issues closer to home, and to capture the kind of attention that only comes with announcing policies others are quick to label controversial.
What makes cannabis so controversial? Everyone who says we have to see it that way.
“We need to get real about cannabis. Almost seven million Australians have tried or used cannabis socially but right now just having a small amount of cannabis in your possession could get you a criminal record,” Di Natale said.
In 2008, Malcolm Turnbull, then opposition leader, gleefully told Tony Jones on ABC’s Q&A: “Yes, yes, yes. Yes, I’ve smoked pot. There you go.” This was a very different era, of course, where Turnbull was prepared to say Tony Abbott’s climate change policy was “bullshit”. How things have changed.
Some things don’t change, though. Or take ages doing it.
Would politics be better if policy could adapt faster? Chances are a politician will say the slow and deliberative process is what ensures we don’t rush a slew of madcap, harebrained policies through parliament and then need to apply constant legislative patches.
But that’s exactly what we have now: this slow process hasn’t stopped bad policy before. Once an idea finds its political legs, it’s hard to stop it running.
Before alcohol prohibition was adopted in the United States, Sweden and Russia in the early decades of the 20th century, expert commissions and committees in all three of those countries warned against the policy. It was later repealed after disastrous results.
But few experts are able to put a stop to an idea with political backing and popular support. The experts now calling for an end to drug prohibition probably feel they have something in common with those ignored a century ago.
Australia’s serious conversation about drugs has a long way to go. In Melbourne last month, 3AW host Tom Elliott said a safe-injecting room in North Richmond was a “Trojan horse”, predicted “probably” all drugs would be legal in five years in Victoria and said: “This is the thin edge of the wedge stuff.”
If all progressive proposals about drugs have to be thin edges of wedges, then maybe the Greens’ announcement could be a thin edge of the wedge to force the serious conversation about drugs that Australia needs to have.
Jasper Lindell is Woroni’s political columnist and a former news editor

Jasper Lindell
‘Blurred Lines’ – When Creative Influence Becomes Theft
April 18, 2018 9:44 pm Comments Off on ‘Blurred Lines’ – When Creative Influence Becomes Theft
Inspiration must strike from somewhere, right? We were repeatedly told at school that there are no new ideas, that it has all been done before. The music industry has seemingly embraced this with welcoming arms. The use of sampling in popular music has been rampant since the 1970s, but what are the creative, legal, and personal ramifications of such a contentious lack of distinction between inspiration and theft?
The US Circuit Court of Appeals recently upheld the ruling that Robin Thicke and Pharrell Williams’ 2013 hit Blurred Lines infringed copyright by illegally copying Marvin Gaye’s Got to Give It Up. The case, which was monitored closely by industry experts for potential future impact, concluded in granting Gaye’s family USD$5.3 million. The Blurred Lines case is particularly interesting given the long and diverse history of music copyright infringement rulings. While this ruling was straightforward and with little consequence, some previous cases, however, presented much more complexity.
A famous Australian example is the considerable similarity between the 1934 children’s song Kookaburra Sits in the Old Gum Tree, rights owned by Larrikin Music, and the classic Men at Work 1981 hit Down Under. Identification of the identical melodies, voice and flute respectively, surprisingly originated in an episode of Spicks and Specks in 2007. By the next day, Larrikin Music had commenced legal action against the Down Under songwriters. The court case took just under a year, ultimately ruling that Down Under “reproduced a substantial part of Kookaburra”, with Larrikin to receive 5% of all royalties.
Flautist Greg Ham’s response to the copyright case highlights the unintended personal implications of court cases and copyright.
The issues with such a ruling were only just being revealed. Many in the Australian public considered that traditional children’s songs should be within the public domain due to extensive use within the community and the lack of openly recognised ownership. In turn, the case raised debate over the ability to privately ‘own’ tunes intrinsically tied to childhood nostalgia. If our initial introduction to melody and rhythm is withheld from adaptation, then where is the capacity or ambition to initiate artistic production?
The “Kookaburra/Down Under” infringement ruling had tremendous professional and personal impacts on Men at Work. The flautist Greg Ham said he was “terribly disappointed that that’s the way I’m going to be remembered – for copying something”, with the case tarnishing his reputation in the music industry permanently. The copyright case has been tied to his early death in the public’s eyes. Whether it was correlated or merely coincidental, it demonstrated a clear response to the personal ramifications of such theft, even when unintended.
Another infamous example of copyright infringement is between Queen and David Bowie’s 1981 Under Pressure and Vanilla Ice’s 1990 Ice Ice Baby – two songs with intros that I personally cannot differentiate. Vanilla Ice almost directly sampled Queen’s bass line without credit or royalties. Ice famously insisted that the melodies were not identical due to the addition of a beat between notes but later insisted he was joking when presented with an infringement lawsuit.
This case is fascinating for a vastly different reason to the ones above – Queen and Bowie, and Ice settled outside of court. Ice’s agreement to give financial recompense and song-writing credits signified his admittance of theft. This case initiated discussion about the legal system’s strength in protecting creative, as well as financial rights. Ice freely admitted in an interview with Smash Hits magazine that the idea of sampling came from “[going] through old records that my brother had… he had a copy of Under Pressure. And putting those sounds to hip-hop was great”. Ice drew from what he knew to construct a modernised musical piece, and this is an illustration of the support that should be granted for artists to experiment and produce original sounds.
The lines are blurred when it comes to copyright in the music industry.
So what influence do these copyright infringement cases have on the music industry? Sampling is never a clear issue, as certain chords are undeniably found in many pop songs. Due to the US doctrine of Fair Use (an abstract and unquantifiable phrase) limited use of copyrighted material may be used without prior permission if credit is given. Hence, lawsuits seem to do little for clarifying the future status of creative rights within the industry as legal recourse is case-by-case. Musical creativity is quashed through fear of legal disputes, as what we consider public work cannot be reinvented.
Nonetheless, creative endeavours do require protection, particularly the pioneers of the music industry who are deserving of copyright for their innovation. Such laws are necessary to allow profits to be acquired as well as the right to choose when and where the piece is used, but copyright must be enforced appropriately to not lead to suppression of imagination and reasonable use.
Imagine a world with music without creative protection, without risks, without inspiration. That’s what I think the Blurred Lines lawsuit is leading us to.

Isobel Klein
Seriously, Ten? A Guide to the Events that Saw the Australian Media Landscape Changed Forever
October 23, 2017 11:42 pm Comments Off on Seriously, Ten? A Guide to the Events that Saw the Australian Media Landscape Changed Forever
Just weeks after the network went into voluntary administration, it seems there has been another seismic shift in the Australian media landscape. US media company CBS (Columbia Broadcasting System) has bought Network Ten from administrators KordaMentha, marking its official launch into the Australian market. This brings to an end one of Australia’s most intensely fought battles for control of free to air TV. A casual observer of this saga can be forgiven for being oblivious as to how this actually happened and here’s a full recap of the evolution of this story.
It all began a few years ago as Ten Network drifted into decline. The network found itself in an all too familiar place for media companies operating in this age. A combination of the changing nature of content, the rise of online streaming services, falling advertising revenue and a series of expensive broadcasting agreements with US studios, forced the network to declare voluntary administration. This turn of events prompted the ongoing debate about the industry today and the need for it to reform.
Media reform has been on the cards for many years. The rise of Facebook, Apple and Google have not only changed the way content is created and shared, but it has also fundamentally removed geography from markets and placed a higher emphasis on legitimacy and speed. These factors primarily contributed to Channel 10’s cash flow situation in the form of an ongoing downward trend in advertising revenue. This led to consistent deficit spending and an over-reliance on capital from private investors. However, the network’s financial problems run deeper than just its decline in advertising revenue. The network made a strategic expenditure decision to switch its focus to competing with rivals Seven Network and Nine Network, as they did effectively in previous years. Shifting focus away from its usual youth audience, Ten spent big on programs to attract viewers and directly compete with the other two private broadcasters. As the situation failed to improve, the nail in the coffin was a refusal from primary creditors Bruce Gordon, Lachlan Murdoch and James Packer to extend more funds to service its deepening debts. It was a very strategic move from three already formidable media players in the Australian Market to force the network into voluntary administration.
The commercial interests of these three indicate very clearly why they made this move. Bruce Gordon is the owner of Win Corporation which provides a large quantity of regional Australian content. [U1] Holding the largest shareholding in Network Ten, he also owns a stake in Channel Nine. Lachlan Murdoch is a man who needs little introduction. As a member of the well-known media mogul family the Murdoch’s, he has been at the helm of Ten since 2011 serving in a variety of senior executive roles. James Packer, a personal friend of Murdoch’s also comes from a famous media-mogul family. He is a former owner of Channel Nine and currently owns a stake in Channel Ten and a large stake in the Crown Resorts business amongst other investments. Together, these three effectively lent their money as creditors to Ten when times were particularly tough on the network’s balance sheet. As it became clear the network was going to default on its loans, the three confirmed they were unwilling to stake further funding.
Here’s the interesting part; by going into voluntary administration, there are several benefits the network could reap. For one, the costly broadcasting deals with US studios could be renegotiated, saving potentially millions. Moreover, it opens the network up for sale to a private company, individual or individuals. News Corp, CBS and Fairfax already own significant equity of Network Ten, making it ripe for takeover. However, before it became open season [U2] for the media tycoons there were several caveats to be addressed by the Federal Government. Broadcasting legislation would have to be reformed to allow for the sale of the network to Gordon and Murdoch. This is because of the two-out-of-three rule; an ownership rule designed to promote a diversity of media voices and competition by preventing companies owning a television station, radio station and newspaper in a single city[U3] [U4] .
At any other time, the government would have passed the legislation and the network would have been sold to Murdoch and Gordon. However, the week Ten went into voluntary administration, was no ordinary week in Canberra. Discoveries of duel-citizenships, a busy legislative agenda for the government along with the crossbench stalling in the senate meant that the media reforms were placed on the back burner. Then, just when everyone least expected it, one of the other interested parties swooped in and snapped up a majority stake in the network.
US broadcaster CBS launched an all-out bid for complete control of the network which was signalled as the strongest bid so far.
What happens next is all but decided. Gordon and Murdoch continue to fight a battle for ownership of the network after launching costly civil litigation proceedings. The two have continued to appeal to the NSW Supreme Court to have the sale stalled and overturned by suing administrators KordaMentha for misleading creditors. [U5] The grounds behind this suit rise from the lack of consultation CBS had with creditors prior to the sale of Network Ten, which is labelled as discriminatory and misleading by Gordon’s legal team. This has been rebuked by the creditors who have explained that ample time was given to all parties involved. KordaMentha has also reiterated through its legal representation that it remains their statutory duty as a creditor to state a preferred or recommended buyer for the network. All the while, Gordon and Murdoch have tried to return with a more generous offer. While these proceedings are likely to before the courts in a variety of legal avenues for some time, offers for the network continue to be made more generous. At a recent creditor’s meeting in Sydney, CBS returned serve with a revised offer, beating Gordon and Murdoch yet again. The administrators KordaMentha have since agreed to recommend Ten be sold to CBS. The deal will pay out staff, and other creditors wholly, although ordinary shareholders will miss out on the payout.
As the fading media baron’s fruitless attempts at stalling the sale of Ten continues, media industry analysts have been trying to decipher what this will mean for the wider industry. In reality, it means more choice for the consumer choice and market diversity. Pending Foreign Investment Review Board approval, CBS will be a new market entrant on the revamped Australian media scene. It will likely launch its online streaming service down under, bringing what Aussie consumers want most- more online content available on demand.
It also brings what media regulations intended to achieve initially, greater diversity. An Australian media landscape for the many, not the few big players.

Rhys Dobson
The Snail Trail
October 4, 2017 6:44 pm Comments Off on The Snail Trail
It is now 85 years since the infamous decision in Donoghue v Stevenson that fundamentally altered the state of torts law in common law nations. It seems that contrary to the rise of the duty of care provision that emerged from this formative decision, there is a complete disregard to any ‘care’ for the wellbeing of snails and their predilection for the sweet, refreshing taste of ginger beer.

This landmark case precipitated the beginning of the end for the snail community and their affinity for ginger beer. While the quest to taste this ambrosia-like drink was not without danger for the bravest of the snail brethren, the sweet reward was worth the risk for the near thousands of snails that penetrated the barriers of the Glen Lane Manufacturing Plant annually. The opaque, uncapped bottles provided a near perfect cover for any creature tempted by that mouth-watering brew, but ‘near perfect’ was not enough.

It was, however, the inability of the snail community to fully comprehend time, sound or movement, that saw their undoing. When bottle capping commenced on the morning of 1 August 1928, one unfortunate soul would meet his end; his undoing? The very elixir that inspired his journey to the Manufacturing Plant would inevitably lead him to his demise. While stories such as this were not uncommon among the snail community; there was no way that anyone could have anticipated that his final resting place would be the mouth of May Donoghue.

Despite numerous calls from within the snail community and the manufacturer himself, David Stevenson, for May Donoghue to ‘get over it’, life has never been the same for manufacturers and snails alike. Numerous publications report that, despite Stevenson’s eventual decision to close the doors of Glen Lane, the subsequent plight of the snail community was overlooked in the wake of the developing neighbour principle. While Lord Atkin distilled that people must take reasonable care not to injure those who could be affected by their actions or omissions, his decision apparently did not give thought to the ‘reasonable care’ for the wellbeing of snails.

So, what has become of the snail community since this landmark decision? Unfortunately, they have been experiencing a steady decline following this ruling. Banished to the peripheries of society, small communities of snails have retreated to the lettuce caves of Subway sandwiches, while many others now live the streets. There is, however, a movement brewing (very slowly) within a fringe snail sector, with one member commenting that they simply can’t keep their feelings ‘bottled up any longer.’ As the anti-neighbour movement comes to a head in these fringe groups, one must ask if there are any legal remedies available for the snail community. Although the common law system has not historically been in their favour, perhaps Australia can be the first nation to draft legislation to remedy this injustice.

Kat Duffy
PROTECTING PEACE OF MIND: THE ROLE OF TRAUMA PSYCHOLOGY IN LEGAL PRACTICE
August 4, 2017 2:19 am Comments Off on PROTECTING PEACE OF MIND: THE ROLE OF TRAUMA PSYCHOLOGY IN LEGAL PRACTICE
Something impressed upon me early in my law degree was the idea that law is a self-contained discipline. During my studies, I’ve seen that interpreting and applying legal concepts is a specialised skillset, quite independent from other academic fields. However, as I have watched the law in action – in courts, in police stations, in offices that range from the largest corporate conglomerates to the smallest conveyancing firms – it has become clear to me that the law does not exist in a vacuum. Rather the opposite is true: it touches upon the lives of all of us.
For your average citizen, the law is a monolithic edifice. The legal system remains a source of fear and discontent, rather than that which provides resolution and positivity. Often people are hesitant to engage with legal processes due to onerous stresses and pressures. A prevailing belief amongst lawyers was that a system based on zealous advocacy and adversarial engagement offered the most ethical options. This mindset centred on win and loss and placed no importance on the experience of the client.
Recently, a consensus has begun to emerge that emphasises the importance of clients’ experiences. A win for a client is a win in name only if they emerge traumatised from the legal process. Empathy for the client is vital to practising law that becomes therapeutic rather than competitive. This rhetoric is common sense, but a question arises: how can lawyers understand the trauma faced by their clients?
Up until now, understanding trauma by lawyers has been a question of trusting one’s gut and attempting to be sensitive. However, more concrete options are emerging which promise more consistent and positive outcomes: trauma-informed lawyering. This approach draws upon well-established research from the field of psychology of trauma and applies it to a lawyer’s work.
But what is trauma? It’s a word we hear thrown around daily, running the intensity from ‘There’s a huntsman spider in the bathroom, I’m traumatised!’ to our awareness of the post-traumatic stress disorder (PTSD) experienced by service people returning from war. Trauma is a response to an emotionally overwhelming event that renders the coping mechanisms of an individual inadequate. Common sources of trauma include witnessing or experiencing violence, or having bodily integrity or sanity threatened. It’s no coincidence that these experiences often result in people engaging with the legal system.
Trauma is subjective and highly variable, and no two people react to potentially traumatic events in the same way. However, common reactions include shock, denial, emotional turmoil, flashbacks and difficulty moving on with life. In severe instances, PTSD can arise. PTSD is a potentially destabilising condition characterised by reliving the trauma through things like memories and flashbacks, avoidance or emotional numbing about the traumatic incident, and hyperarousal (feelings of constantly being on edge). Having to relive or recount a traumatic incident can even result in a resurgence of these symptoms, in a phenomenon known as retraumatisation.
So how do trauma-informed lawyers go about minimising the impact of these symptoms? A crucial first step is making an effort to view these symptoms as adaptations to trauma, rather than pointless or shameful overreactions. For example, it has taken many in the legal profession a long time to understand why a victim of domestic violence might prioritise safety instead of justice against their abuser, and this difficulty in understanding has been strongly linked to ignorance about the impact of trauma.
Beyond this, the way forward is discretionary. Lawyers can take actions to avoid the risk of retraumatising their clients. These can range from small gestures like listening and responding with empathy when clients recount their stories, through to exploring alternatives to the client testifying at a trial – a stressful experience which can place them in front of someone who makes them fear for their safety. Involving clients in the problem-solving process can even help them address their own trauma and restore a sense of agency.
Throughout this process, there remains a distinction between lawyer and clinician. For lawyers, this movement is about integrating an understanding of trauma into the lawyering process, rather than a reformation of how lawyers do their jobs. Even so, it has produced benefits in research undertaken thus far. Trauma-informed lawyering gives practitioners more nuanced insights into legal ethics, improving their capacity for empathy and supportive interactions. For clients, the benefits abound. When clients’ needs are placed at the centre of the legal process, retraumatisation is less likely, and the justice received can restore them to a position of safety and security.
However, trauma-informed lawyering has its disadvantages. Asking lawyers to engage with clients’ emotional burdens leads them to shoulder some of that burden too. This may blur the lines around the legal practitioner’s typically neutral role in aiding their clients and may lead them to overinvest in success. More dangerous is the risk of vicarious trauma or compassion fatigue, which arises when traumatised clients convey confronting details about emotionally triggering events and feelings. Relentless exposure to these experiences can cause trauma for practitioners and has been well documented in settings such as drug rehabilitation, social work and emergency services. Adding trauma management to the existing stress faced by lawyers is perhaps unconscionable.
The greatest hurdle faced by trauma-informed lawyers is the corporate nature of much of the legal profession. It is near impossible to focus on client-practitioner relationships when the required time and effort is subdivided into value-based units. Maintaining a reasonable caseload is often unattainable in understaffed Legal Aid contexts, which sees many traumatised clients due to the link between trauma and disadvantage. While specialised legal centres can practice tenets of trauma-informed lawyering, practical implementation remains limited.
Though these challenges are significant, trauma-informed lawyering is not a fad to be abandoned: it is an interdisciplinary approach that encompasses teachings of substantial worth. When most law students enrol in their degrees, their motivation is to help others attain justice. By applying scientific knowledge to how lawyers do their jobs, the legal profession can evolve to prioritise the wellbeing of the people it serves.

Nick Wyche
ANU Funding a Frivolous Court Case with Cuts to Penalty Rates
July 7, 2017 7:03 pm Comments Off on ANU Funding a Frivolous Court Case with Cuts to Penalty Rates
In recent days we have had the misfortune to witness a political party, which is drifting further to the right by the hour, implement a policy of slashing penalty rates. There is no secret about who this affects first and most deeply: the poorest people in society, often those working in hospitality and other service industries. It is well known that the majority of those hurt by this are women – many of these women are single mothers relying on penalty rates to keep their houses and look after their children.
We know too well this government has no interest in this poorer echelon of society. They have aimed to cut them adrift and leave them floundering at every opportunity. To add insult to injury, they then foist blame onto workers themselves for their tough situations. We know, too, that most Australians – indeed even most of those who voted for the Coalition – oppose these cuts to penalty rates. Evidently, most people believe the weekend still means something: it represents time to spend with family and friends, and any work done on the weekend should be fairly compensated.
They tell us that maintaining fair penalty rates will mean small businesses are forced to close. In fact, many of the companies which stand to benefit from these cuts are closer in spirit to the Southern Cross Club, which currently rakes in over 50 million annually. They would continue to rake in profit at a massive rate even without these cuts, for which they have nonetheless pushed. And as for the cafes and restaurants, most were perfectly sustainable under fairer penalty rates arrangements. Those few that are not sustainable surely cannot seriously expect the poor and the single mothers of the world to sponsor the dreams of ambitious owners out of their own pocket?
In this light, it is hardly surprising that unions and civil society movements are united in their opposition to this unfair policy. Another group united in its opposition is students – a population heavily represented in those getting their penalty rates slashed, and a population heavily reliant on precisely these penalty rates. This becomes truer by the month, with the rental market overpriced and constantly shifting wealth out of the savings of the young, and upwards to landlords.
Where has the ANU been in all of this? Supporting its student population and speaking out against cuts to penalty rates? Has it been tactfully silent? No – the ANU is in the process of actively cutting the penalty rates of its own staff!
The ANU is in the middle of its enterprise bargaining. Far from being caught on the right side of history, the management team at the ANU is attempting to diminish the conditions of IT and library staff by lengthening the span of hours: the hours during which penalty rates are not paid. This is the same management team which has recently squandered tens of thousands from the ANU’s coffers on a battery of lawyers attempting to break their contract with an on-campus café. In the case of library staff, this means that even librarians working for the support of precisely the students themselves would not be paid penalty rates at all until after 10pm.
The petty cash this mean-spirited cut would save for the university – measurable in five figures per year – could easily have been saved elsewhere. If university management not been so negligent with public wealth on their litigious case against The Gods Café, they may have already saved this money. On some estimates, this case is currently costing the university more per day than what it would save with its proposed cuts to IT and library staff per year. They are due in court again on July 19. Even more easily, they could save this money by cutting down the exponentially increasing share of funding going to management and public relations teams. Arguably, it does not require advertising executives on half-million dollar salaries to come up with unsatirisable slogans – ‘Thought Leaders’, anyone? Let me put this charitably: I could do better.
The campaign against the ANU’s attempts to expand the span of hours for IT and library staff is part of the wider resistance to the cutting of penalty rates around the country. As long as the ANU refuses to respect its workers, and defend and act in the interests of its student community, it is acting illegitimately. And as long as it acts illegitimately, we will continue to fight back.

Dylan Clements
On Aboriginal Women and the Criminal Justice System
May 7, 2017 8:09 pm Comments Off on On Aboriginal Women and the Criminal Justice System
Louise Taylor is a Kamilaroi woman and lawyer currently the Deputy CEO of Legal Aid ACT. Louise is a former specialist family violence prosecutor, a long-time Convenor of the Women’s Legal Centre ACT, an Associate of the Indigenous Law Centre at UNSW and a member of the ACT Law Reform Advisory Council. She completed her degrees at ANU.
Hari Sridhar and Rachel Hao interview Louise Taylor, the Deputy CEO of Legal Aid ACT. Her expert insights reflect the complexity of this issue.
W: Two high-profile Aboriginal women, Marcia Langton and Josephine Cashman, have suggested that in advocating for reducing Indigenous incarceration rates, we forget the victims of crime who are, most often, Indigenous women. They also argue that the application of different sentencing principles for Aboriginal and Torres Strait Islander offenders carries with it an inherent devaluation of the lives of their Indigenous victims. In your opinion, what is the relationship between the reduction in Indigenous imprisonment and the right of Indigenous women to be free from family violence, especially when it is common for Indigenous women to distrust or struggle to access Australian legal remedies? Does a focus upon more nuanced sentencing for Indigenous offenders undermine the experiences of victims?
In my view, this is an incredibly complex area and reducing it to one or the other ignores those complexities. I don’t disagree with the idea that Aboriginal women and children suffering violence at the hands of men are often silenced and sidelined both within our communities and in mainstream discussions around violence against women generally. Aboriginal women are leaders in our communities, but that does not readily translate to us being seen as leaders by mainstream Australia or being given a platform to advocate for ourselves and for solutions.
I’m supportive of any advocacy that highlights the plight of Aboriginal women, who are at much higher risk of violence from men than their non-Aboriginal counterparts. I do think, however, that we can walk and chew gum. Tellingly, the highest rising cohort of incarceration is Aboriginal women, many of whom are victims of violence and caught up in the child protection system), so acknowledging the appalling incarceration statistics does not take away from the prioritising the safety of Aboriginal women and children. A life free from violence should be the right of every Australian woman and her children.
But simply saying so does not make it happen and we must open up conversations about the realities and practicalities of people’s lives. For instance, in many relationships where violence is a feature, it will continue in one form or another – either with people reforming as a couple or needing to go on and co-parent their children together. Ignoring this reality is simplistic, and misses the opportunity for the development of practical solutions.
The focus must be on how we change behaviours and give people the tools to live a life free from violence. It is clear that in many instances a period of incarceration is necessary to protect members of the community but one thing I do know is that we are not going to jail our way out of this problem. The criminal justice system is rarely changing the lives of perpetrators or victims for the better – rehabilitation of perpetrators within that system, if it even does happen, occurs through luck and not by design. The criminal justice system has a fraught relationship with Aboriginal women, and historically it has not served any women victims of male violence well – let alone Aboriginal women.
We only need to look at the experience of Ms Dhu in WA and Ms Daly in NSW to see recent examples of the dismissive (and I would argue racist) way in which Aboriginal women were dealt with by that system. Ms Dhu, in particular, shines a light on the institutionalised racism and bias that permeates the interaction Aboriginal women have with the criminal justice system (and the health system). It is naïve to encourage Aboriginal women to report violence to police and not recognise the complexities involved. Aboriginal women often sit at intersecting systems playing a number of roles – victim, perpetrator and mother, subject to state scrutiny in multiple ways. So a focus on incarceration rates is also a focus on the position of Aboriginal women – many of whom are incarcerated and also victims of male violence.
And to be clear, there are no ‘different’ sentencing principles for Aboriginal offenders. The High Court made that abundantly clear in Bugmy. To suggest otherwise is wrong. Aboriginal offenders are subject to the application of the same sentencing principles as any other offender who comes before a court.
Ultimately, we must come to grips with the very limited remedy that is the criminal justice system – it narrows the discussion and sidelines other important factors which can assist victims to move beyond a life characterised by violence.
W: Australia has an international legal obligation to act with due diligence when protecting and preventing domestic violence. However, the Australian response against domestic violence is overwhelmingly about legal remedies after the fact (offence). In light of the recent Victorian ‘respectful relationships’ education policy, do you believe more onus should be placed on developing preventative policies to prevent domestic violence before the fact? What do you think are some examples of preventative policies?
Experience has shown me that the criminal justice system provides a very limited, largely punitive and short-term solution to this issue. If we seriously want to tackle family and domestic violence we need to fund programs and initiatives that target prevention, particularly targeting young people so that it becomes part of their development.
We need to recognise as a community that for many victims, the criminal justice system is not the answer they are seeking and provide them with alternative pathways beyond that system. As I say above, many of these relationships will continue in some form – we must tailor solutions and policy to take account of that.
The long-term solutions to the successful prevention of family and domestic violence lie in the education, housing and health sectors, not the criminal justice system. I’m neither an expert in nor a student of successful preventative policies, but part of the difficulty here is the lack of long-term funding, evaluation and data – how do we know what actually works?
However, I am absolutely convinced that prevention must start with our children and an education that encompasses and targets this issue.

Rachel Hao
Who Really Cares About Section 18C?
May 4, 2017 2:57 pm Comments Off on Who Really Cares About Section 18C?
Hari Sridhar is a sixth-year law student interested in the racialised and gendered impacts of the law.
In 1999, Stephen Hagan, an Aboriginal Toowoomba resident, asked the Toowoomba Sports Ground to remove a sign that read ‘E.S. N***** Brown Stand’, which was erected in honour of a white, blonde, blue-eyed footballer. The Toowoomba Sports Grounds refused, and Mr Hagan took his complaint to the Federal Court, pursuant to s18C of the Racial Discrimination Act 1975 (Cth), which prohibits acts which are reasonably likely to offend, insult, humiliate or intimidate someone due to their race.
The Federal Court dismissed Mr Hagan’s claim, stating that the public display of the word was in a ‘context which [did] not … have any racist connotation’ – even though the basis for the nickname was rooted in racism – and because other Indigenous Toowoombans did not find the sign offensive. The High Court then refused to hear his appeal, flippantly asking whether if he were a pink person, he would find a pink cement truck offensive. When Mr Hagan sent his complaint to the UN Committee for the Elimination of Racial Discrimination, the Committee found the word to be offensive and recommended Australia take appropriate steps to remove it. The then Attorney-General, Darryl Williams, and Prime Minister, John Howard, refused to do so, despite being a signatory to the Convention under which this UN body was established. Ultimately, in late October 2008, almost a decade after the initial complaint, the sign was quietly removed, citing a white ant infestation of the grandstand.
Despite political rhetoric about a proliferation of frivolous grievances, the Australian Human Rights Commission only hears approximately 100 complaints a year on the basis of s18C, with only 77 received in 2015-16. Of these, only a few ever proceed to formal hearing, and perhaps one may reach the Federal Court. In this way, Stephen Hagan was one of the ‘lucky’ ones, despite being refused access to the High Court. The point is, a minuscule proportion of racial discrimination complaints are successful.
These figures certainly don’t support all the catastrophising about the threats to free speech that Senators Cory Bernardi and David Leyonhjelm have been fearmongering about. The so-called ‘right’ to free speech has been distorted in the s18C debate into a polarising binary: either speech is unregulated, and you have an unfettered right to make racially hateful statements, or it is regulated, and you live in an ‘Orwellian’ 1984-esque world. This dichotomy subjugates the indisputable right of all people to live a life free of racial vilification. I believe that what the figures really suggest is a profound lack of legal protection against racial discrimination. This is partly due to judges’ enculturated in white supremacist thinking, which is rendered invisible due to its normalisation in Australian society, and which also prevents most victims of racism from bringing their complaints forth in the first place.
‘Casual’ racism – which is not really casual at all and instead indicative of internalised racial understandings – is an everyday part of the lives of many people living in a country in which they constitute a racial minority. Section 18C does not reflect the lived experiences of People of Colour in Australia – most people who endure racism are likely to be either too disempowered to complain to the AHRC, too tired or marginalised to fight, or have simply normalised it.
Making an act an offence, even if just civil rather than criminal, is a common tool for Parliament to declare its understandings of what society deems acceptable or not. Let us focus for a moment on what the current Liberal government believes we, as Australians, find acceptable. They say that a ‘reasonable member of the community’ believes that we have a right to insult someone on the basis of their skin colour, offend them because of their race, or even humiliate them due to their ethnic origin. The idea of free speech has a long history of being invoked by conservatives to reflect what is, in fact, a very narrow concept: speech which is only free when it is beneficial to dominant groups. In this instance, the continuing oppression of racial minority groups is in the interest of the small group of Benchmark Men elites seeking to foster an increasingly nationalistic, xenophobic society.
I do not think that the debate around amending s18C will create a significant amount of tangible change in the lives of those it is designed to protect. What the amendment debate has done is bring out the true colours of the common Australian body politic: a populace which seems to support the ascendancy of so-called ‘freedoms’ (for whom? from what?) over substantive equality and justice for those historically oppressed by the white majority of this nation.

Hari Sridhar
Asking Uncomfortable Questions About Punishment, Racism and Prison
May 2, 2017 10:31 pm Comments Off on Asking Uncomfortable Questions About Punishment, Racism and Prison
Mary Spiers Williams is a former legal practitioner in criminal law and lectures at the ANU College of Law in subjects concerning criminal law, social justice, ethics, evidence, law reform and Indigenous perspectives on state law.
This short piece is a polemic, a provocation. The aim is to challenge some of our ‘common sense’ about imprisonment and the criminal justice system more generally, to disturb our fatalism about the numbers of people that we put into penal penitentiary type institutions favoured in Australian states and territories, and to disrupt complacency about the Indigenous Australians who are entangled by the criminal justice system.
What is our problem with imprisonment?
In Australia, the rates at which we incarcerate people is at an all-time high and increasing. At any one time, there are almost 40000 people in prisons and 12500 of them have not been convicted.
The conditions of custody are consistent with the volume of people we imprison: they are punitive. Not every inmate is held in a penal penitentiary style prison, but every jurisdiction in Australia has at least one such facility, and that is where the greatest proportion is imprisoned. These prisons are concrete and steel secure facilities, with no natural horizon. Personal autonomy is nugatory, and daily routines are highly regimented and include long periods locked overnight in shared cells. Overcrowding is a persistent issue. Personal possessions are strictly limited, occupation is participation in prison industry production lines. Education, welfare and other social services tend to be limited. Contact with family is strictly controlled and limited. That we deprive liberty of so many people and additionally punish so many of them in inhumane conditions raises some serious questions about what sort of a society Australia is.
Punishing Indigenous people
Indigenous peoples in Australia are now an estimated about two per cent of the Australian population – unless you are in a prison, in which case it is 28 per cent of the prison population, or worse in a women’s prison where it is now 34 per cent. And if you are a youth detention centre: 54 per cent of detainees are Indigenous. In the Northern Territory, 97 per cent of the children detained are Aboriginal. At any one time in Australia, there are almost 11000 Indigenous people imprisoned; more than 3200 of them are not convicted.
Indigenous people are overrepresented at every stage of the criminal justice system: over-surveillance and contact by police, proportionately more are charged and prosecuted for offences generally but especially in relation to petty public order offences, and so imprisoned without conviction. More Indigenous people are imprisoned than any other cohort – not for longer terms but more often. That this happens ‘systematically’ veils the fact that this system is driven by the discretionary choices of people: it is police who surveil and decide whether to charge, prosecutors determine charges, defence lawyers legitimise the process, judicial officers convict and sentence including order imprisonment, and corrections staff imprison. These people (and I am one of them) can usually justify our decisions and actions within the limited frame of this system. All this is done by these criminal justice actors for us.
What can these numbers mean?
The overrepresentation of Indigenous Australians in the criminal justice system is so gross that it amounts to racial discrimination. These criminal justice statistics demonstrate consistent and increasing discrimination that negatively affects Australians descended from the original Australians. This type of racism is anti-Indigenous. Discrimination against Indigenous peoples here has been the subject of repeated criticism by human rights organisations and investigators, such as Amnesty International and United Nations Special Rapporteur on the Rights of Indigenous Peoples as recently as April 2017.
The rate of removal of children and the proportion of Indigenous children that are detained in the juvenile justice system is deeply shameful. Detention has a shattering effect on the young person, their families and communities, and will continue to reverberate for future generations. The lived reality that juvenile statistics represent is only just starting to penetrate the awareness of mainstream Australia, as images from Don Dale Detention centre disrupt the complacent and fatalistic discourse that normally accounts for this situation. That discourse is more effective at soothing our conscience about adult prisoners, because of our deeply ingrained ideas about responsibility that are inflected with pejorative attitudes about Indigenous people’s capacity to work, reliability, sobriety, morals, etc. The common sense of this is not so easy to apply to children, for whom we all are responsible.
Making sense of overrepresentation
Many scholars make sense of Indigenous overrepresentation by narrowing their consideration on whether the individual was culpable or deserved to be punished. The criminal justice system is predicated on liberal reasoning, which tends to examine an individual’s culpability for an offence in a limited context. Law is a product of its culture. The frame and perspective of state legal systems in Australia reflect Western mainstream perspectives and tend to privilege the position of the coloniser-settler, and subordinate that of others.
Focussing on the individual so closely allows one to ignore the scale and the pattern of discrimination that is clear when one expands the frame of one’s consideration: the scale of criminalisation of Aboriginal people is startling. Liberal accounts of individual responsibility cannot explain away the racist effect of criminal justice processes. Criminal justice cannot be considered in isolation from larger social systems and forces that also tend to marginalise Indigenous people, but this is not a reason to deny its racist effect.
Other scholars have expanded their field of inquiry and observed that coincident with criminal offending are poverty, ill health, unemployment, low levels of education (in mainstream schools), and being a victim to crime. But this scholarship does not explain why as a cohort Indigenous people are so overrepresented. It also does not address the other obvious question – why is it that Indigenous peoples, including those not entangled by the criminal justice system, experience the greatest extremes of that social marginalisation?
Some critical criminologists argue that criminal justice processes are criminogenic, in particular, the use of the prison and the juvenile detention centre. These arguments are complex and are contested by influential conservative criminologists who maintain that the criminal justice system does not criminalise, and rather point to social marginalisation. These concerns in relation to deep social and economic marginalisation of Indigenous peoples are legitimate, but they do not explain coincidences of imprisonment.
The Australian Bureau Statistics found that of all the prisoners released in 2011-2012, 40 per cent of them were sentenced to prison again by June 2013; 46 per cent of them were caught up again in the criminal justice system, and were subject to punishment that was not imprisonment. It is not possible to say definitively that the penitentiary-style prison causes reoffending; at best, we should be concerned that prison has little impact on diverting people from the criminal justice system, and at worst may even contribute to it.
Prisons cost us more than money
Prisons are extraordinarily costly. We spend $292 per day for each inmate’s on costs. This figure does not include the infrastructure cost. Released inmates suffer poor health, are impoverished and dependent, struggle to reintegrate, de-skilled and institutionalised. Many die soon after release. Their families experience strain and related social dysfunction. This is costly to all of us.
Why do we imprison so many people and why in penitentiary-style prisons?
We know then that prisons are costing us a lot. Why, then, do we persist with the penitentiary -type institution? Are we so addicted to punishment and revenge? Are we bent on perpetuating the deep social marginalisation of those we imprison? Are we prepared to do this even if it means that those we imprison are more likely to reoffend and more seriously? Is it because we feel like we have no other choice, or can’t we imagine any other option?
Imagining an alternative future
This is not an argument about abolition of imprisonment; we need to be able to incapacitate some people for a period, compulsorily removing them from their ordinary social environment when necessary.
This is an invitation to think about how and to what degree we imprison. Do we need to incarcerate as many people as we do? Do we need to incarcerate the groups of people that we imprison the most, and why do we discriminate most against Indigenous peoples? Lastly: do the conditions of the penal penitentiary type prison or detention centre cause us and those we imprison more harm than good?
How we answer these questions will say a lot about who are, and who we want to be to each other.

Mary Spiers Williams