Insanity defense – A loophole for criminals?

Author: Meenakshi Iyer

Editor: Madhuli Kango 

   I. Introduction

   The defense of insanity is a type of defense[1] that seeks to protect a person who is unable to comprehend the nature of the act committed by him. Based upon ‘the moral assumption that it is wrong to punish those who, by reason of mental incapacity, are not capable of free and rational action’,[2] the defense puts forth a safeguard for defendants who admit to the commission of the crime but argue to the lack of understanding of its nature. 

This article endeavors to investigate the origins of the defense of insanity, its inclusion in the Australian Law, and its direct correlation with the United Nations Convention on the Rights of Persons with Disabilities. Through the viewpoint of several cases across the world, this article will also strive to prove whether this defense has done more harm than good and if so, then should it be replaced with a different mechanism.

 

   II. Background

   The notion of the insanity defense has existed since the ancient Greek and Roman empires.  However, under the English Common Law, Edward II introduced this concept and crudely stated that a person was insane if their mental capacity was no more than that of a wild beast. On this  basis, a test was developed which extended defense to a person who was "totally deprived of his understanding and memory so as not to know what he [was] doing, no more than an infant, a brute, or a wild beast."[3]

 

   The first-ever case that dealt with the law of insanity was R v Arnold (1724) where Edward Arnold was charged with a capital offense of attempting to murder Lord Onslow. The defense applied what was held to be known as the “wild beast” test of insanity and argued that Arnold was a “mad-man” who thought of himself as a victim of Onslow’s mistreatment and thus did what he did, nevertheless he was found guilty as charged.

 

   This was followed by the trial of James Hadfield in 1800. Hadfield was an army officer who was later discharged on the grounds of insanity. He was being tried for treason as he attempted to assassinate the then king of England, King George III. He did so because he believed that the second coming was conditional on him being executed and thus took a shot at George III. The counsel for the accused challenged the narrow doctrine of Arnold and asserted that Hadfield was not mindless but rather was not in his right mind. This came to be known as the “Insane delusion test.”

 

   Lastly, the third and final test was formulated in 1812, in Bowler’s case. In this case, Judge L Blanc instructed the jury to decide on whether the accused was capable of distinguishing between right and wrong from under the control of an illusion when he committed the offense. Thus, this test came to be known as “the test of capacity to distinguish between right and wrong.”

 

   III. Critique of the Defense of Insanity

   The criticism of the defense of insanity has been seen going as far back as 1874 when Lord Bramwell said that “the present law lays down such a definition of madness that nobody is hardly ever really mad enough to be within it.”, this criticism has since continued and it has now been universally acknowledged that the defense is in need of major reform. 

 

   The definition of insanity that is used today was formulated in the M’Naghten case from 1843, which stated that “the party accused was laboring under such a defect of reason from disease of the mind, as not to know the nature and quality of the act that he was doing, or as to know that what he was doing was wrong.”[4] The foremost problem with it is that it is a legal definition rather than a medical one[5] and experts have constantly disagreed on whether it contains a psychological meaning.

 

   The two key pieces of evidence that are required to prove insanity are that the accused suffered from a mental defect at the time he or she committed the criminal act and that because of the same they were unable to ascertain that the act committed was wrong.[6] One huge advantage of the insanity defense is that the accused could avoid a death sentence even if he were proven guilty. In the context of crime, the sentence can be very lenient as compared with an accused who is proven to be guilty but is not proven insane.

 

  However, in plenty of cases, this defense works adversely because it entails the usage of expert witnesses whose testimonies juries might have a difficult time understanding. The jury may be pushed beyond its competence. Most people can examine objective evidence and decide if a person is guilty. But how do you know what’s truly in a person’s mind? How does an average juror recognize whether or not someone has a minor mental incapacity or is truly unable to differentiate between right and wrong? That clearly calls for a higher level of professional expertise instead of just a layman making that decision.

 

   Also, it is recorded that only 25% of insanity defenses were successful, and they only account for about 1% of the total cases that are handled by the justice system each year. What does this mean? The majority of people are found capable of standing trial, even if they attempt to push for an insanity plea.[7]

 

   I personally believe that the insanity defense should not be a valid excuse to free criminals because as history has experienced, notorious criminals like Ted Bundy have tried to misuse the same even though their crime was very clearly pre-orchestrated.

_____________________

Footnotes:

[1] https://legal-dictionary.thefreedictionary.com/Insanity+defence

[2] Fairall PA & Johnston PW, ‘Antisocial Personality Disorder and the Insanity Defence’ (1987) 11 Criminal Law Journal 78, 79.

[3] https://law.jrank.org/pages/7664/Insanity-Defense-History.html

[4] R v M’Naghten (1843) 8 E.R. 718; (1843) 10 Cl. & F. 200

[5] Suresh Bada Math, Channaveerachari Naveen Kumar and Sydney Moirangthem, "Insanity Defense: Past, Present, And Future" (2015) 37(4) Indian Journal of Psychological Medicine.

[6] "6.1 The Insanity Defense", Open.Lib.Umn.Edu (Webpage, 2021) <https://open.lib.umn.edu/criminallaw/chapter/6-1-the-insanity-defense/>.

[7] "CRIMINAL COMMITMENTS AND DANGEROUS MENTAL PATIENTS: LEGAL ISSUES OF CONFINEMENT, TREATMENT, AND RELEASE—By David B. Wexler, J.D.; National Institute Of Mental Health, 1976, 94 Pages. Single Copies Available From The Public Inquiries Section, NIMH, 5600 Fishers Lane, Rockville, Maryland 20857" (1977) 28(9).

Regulating online harassment and abuse: What legal limitations and barriers are present, and has any progress been made to overcome them? 

Author: Mythili Gupta

Editor: Madhuli Kango 

   I. Introduction

   The emergence of Web 2.0 led to the development of networking communities and applications which provided a place for users to share information and communicate. However, it also gave way to various forms of online harassment and abuse - where users were able to access a platform that allowed them to post almost any kind of hurtful or offensive messages in the virtual community in a way that was previously difficult to attain.[1] Qing Li defines the seven main forms of cyberbullying as Flaming (sending angry, rude messages to an individual or group); harassment; cyberstalking; denigration (sending or posting harmful, or untrue statements); masquerading (impersonating someone else or defaming them); Outing or trickery (exposing or embarrassing someone through publicizing private material/information); and excluding (actions to specifically and internationally exclude a person from an online group).[2]  

 

   Looking at the statistics roughly four-in-ten Americans have personally experienced online harassment with 62% of them considering it a major problem that needs to be addressed.[3] This form of harassment is especially common amongst the adolescent and young adults as 67% of those targeted ranged between the age group of 18-29.[4]  In 2002 for instance, a study of 339 undergraduate students at the University of New Hampshire revealed that more than half the respondents received unwanted pornographic messages of pictures.[5] Another study of University students in Turkey showed a similar cyberbullying prevalence rate of 55.3% of the 666 students in the sample who also had higher risks of suicidal ideations, planning and attempts.[6] However, the growing prevalence of cyberspace harms has also led to limitations within the legal justice system’s ability to tackle it. While some states have recognized the impact of technologically-driven harms and made efforts to implement solutions within the legislative statutes, there are still substantial gaps that need to be filled.[7]

 

   II. Analysis

   One of the main legislative limitations that victims of online harassment and abuse tend to face, is the statutory focus on ‘telecommunication’ rather than the ever-growing forms in which online harassment can take place. Under the provision of ‘Electronic Harassment’ in the United States Code[8], the misconduct is defined as: 

 

   47 U.S.C. § 223 (a)(1) (C) (anonymously using telecommunications device to harass the person who receives communication);

   47 U.S.C. § 223(a)(1)(E) (repeatedly initiates communication with a telecommunication device solely to harass the person who receives communication)

 

   The phrasing of these statutes highlights misconduct only when the victim ‘receives communication’ which fails to acknowledge other forms of harassment as can be seen in the case of people v barber. 

 

   In 2013, court documents indicate that Ian Barber posted naked images of his then-girlfriend on Twitter and sent the photographs to her employer and sister.[9] He was charged with 3 offenses, specifically aggravated harassment to the second degree. 

 

   "A person is guilty of aggravated harassment in the second degree when, with intent to harass, annoy, threaten or alarm another person, he . . . communicates with a person, anonymously or otherwise, by telephone, by telegraph, or by mail, or by transmitting or delivering any other form of written communication, in a manner likely to cause annoyance or alarm.”[10]

 

   However, Judge Statsinger of the criminal court dismissed the charges on all counts. With regards to the aggravated harassment charges in particular, the offense required the defendant to communicate with the victim in some form or the other (either anonymously or otherwise, by telephone, telegraph, or by transmitting or delivering any other form of written communication).[11] Since Barber did not actually send the photos to his girlfriend (the victim in this case), the judge concluded that he could not be held responsible under this statute. 

 

   The second legislative limitation that is quite evident in many nations would be the controversy between citizen’s right to free speech vs the regulating hate speech online (i.e social media platforms, blogs, websites, and so on). The National Centre for Cyberstalking Research found that 63% of the women who reported experiencing online harassment, encountered it through social media platforms.[12] Whereas, another study showed that one in six students considered that people have the right to say whatever they want - even if it may be considered hurtful or violate someone’s privacy.[13] It also said that one in three students believed what happens online should stay online reflecting the general perception of keeping a distinction between cyberspace and the ‘real’ world.  The Freedom of Speech is constitutionally protected by the U.S First Amendment much like the Freedom of Expression in Section 2(b) of Canada’s Charter of Rights and Freedoms.[14]  Free speech has become a crucial cornerstone in cultivating our modern-day democratic societies however when balancing it with online harassment, there can be certain obstacles that may arise.[15]

 

   One of the notable cases from the Ontario Court of Justice illustrates the weighting that is given to freedom of expression causing difficulties in regulating online harassment.[16] The criminal case law of R v Elliott includes Gregory Elliott sending numerous homophobic tweets to two women over the course of two months.[17] The court ruled in the favour of Elliott stating that although those tweets were obscene and homophobic, they were not threating and therefore not illegal. Justice Knazman proceeded to emphasize that placing any limitations on Twitter’s use ‘that is not necessary to prevent criminality, will limit its potential. He went on to draw a comparison between the public nature of social media and platforms such as Twitter to the ‘billboard or an orator with a loudspeaker at a street corner’ in the terrestrial (or ‘offline’) public arenas.[18] This illustrated that, not only was the judge unwilling to tarnish the constitutional right of the freedom of expression but also that the distinction between what is acceptable to post online is unclear and has the potential to raise further conflicts with the growing forms of modern communication mediums. The unclear nature of regulatory statutes can also be reflected in the legislative protection offered by title 47 of the United States Code where section 230 states that "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."[19] This statute ensures that any information service provider or online intermediaries that host or enable the publishing of content are not held legally responsible for what other users say or do on their platforms.[20] Panellist Mary Ann Franks from the University of Miami Law School, states that this federal law is ‘very broad’ and offers ‘strong protection’ that shields social media platforms from liabilities regarding the actions of their users.[21]

 

   III. Discussion

   Nonetheless, steady but surely, legislative progress is being achieved in various areas with limitations. One of the issues that law enforcement and the justice system face is criminalizing conduct that occurred in cyberspace originating from a region that is out of their jurisdiction.[22] Cyberstalking and Cyberharassment are based on the foundation that permits perpetrators to be located nearly anywhere in the world and still conduct harmful behaviours towards other users.[23] This is why the law enforcement’s response must rely significantly on the trans-border cooperation and mechanisms to be able to successfully respond to criminal conduct.[24]

Minnesota’s statute on stalking and penalties states that ‘the accused may be prosecuted in any county in which one of the acts was committed for all acts… at the place where any call is made or received or, in the case of wireless or electronic communication or any communication made through any available technologies, where the actor or victim resides’[25]. Without this type of explicit acknowledgment of jurisdiction, a cyberharassment or cyberstalking case may end up going unpunished because it is unclear who is responsible for regulating and prosecuting offenses.[26] Therefore, Minnesota’s efforts to acknowledge the jurisdictional expansion through this statute create greater scope for the legislation to tackle the indefinite scale of the growing cyberspace and its ‘global’ nature.

 

   Secondly, New Jersey became the first to make it a criminal invasion of privacy to disclose images of sexual and intimate nature without consent in 2004, and by September 2013, it was one of the states to criminalize most forms of revenge.[27]

An actor commits a crime of the third degree if, knowing that he is not licensed or privileged to do so, he discloses any photograph, film, videotape, recording, or any other reproduction of the image of another person whose intimate parts are exposed or who is engaged in an act of sexual penetration or sexual contact, unless that person has consented to such disclosure.[28]

 

   Professor Danielle Keats Citron notes in a CNN documentary that in all states apart from one (New Jersey), turning people into objects of pornography, without their consent is essentially ‘legal’.[29] Though other states have implemented legislation to regulate revenge pornography, multiple loopholes could be found, leaving room for the perpetrator to find a way around it. For instance, even though forty-six states in the United States enacted statutes banning the disclosure and/or the distribution of sexually explicit images without the subject’s consent,[30] only twelve exclude the requirement for ‘intent’. Some states (such as Arkansas, Pennsylvania) require some type of current or former romantic relationship for the statutes to apply, possibly leaving way for an ex-partner to have someone else publish the intimate images.[31] California, for instance, attempted to legislate this but it only seems to apply when ‘any person who photographs or records by any means the image… of another identifiable person’[32] which does not consider if someone were to have shared a selfie with a partner who then went ahead and uploaded/shared it on the internet.[33] New Jersey’s statute also played a significant role in the criminal prosecution of Dharum Ravi, a Rutgers University Student, who was prosecuted for using a webcam to film and disclose intimate footage of his roommate and encouraging others to watch.[34] He was sentenced to thirty days in jail and was convicted for all the charges that were against him, including the section of the New Jersey Code of Criminal Justice addressing revenge porn. 

Lastly, certain alterations and amendments have also been made to improve the clarity in legislation and make it more applicable to the volatile nature of inflicting online harms and harassment. For instance, the previously mentioned legislation regarding the Federal  Telecommunication Harassment statute was amended by Congress in 2013.[35] The language was from ‘...to harass any person who receives communication’ to ‘... harass any specific person’.[36] Although a small change of detail, the potential for being able to better regulate cyber harassment drastically increases. 

 

   V. Conclusion

   Overall, we can see that despite the progress headed towards the right direction, substantial policy gaps - due to the pace at which online harassment is expanding - are still giving way to multiple perpetrators and offenders slipping away through the cracks. In the United States, for instance, the sharing of nonconsensual sexually explicit images has become criminalized in numerous states which do reflect the desire and efforts to take action (some more effectively than others) and recognizes the relationship between harassment and online communication.[37] However, due to the independent nature of the states’ legal framework, there is a lack of coherence and clarity regarding the criminalization of online harassment on a federal scale.[38]  As for the democratic nature of freedom of speech/expression, we can see that speech that is hurtful due to disgust or offense is quite comfortably protected by the constitutional legislation of the First Amendment.[39] This similarly also applies to Canada as well, where the core principles between freedom of expression and harassment continue to collide highlighting the unresolved paradox. Social media platforms also play a great deal in providing a liability-free platform for users to say and post as they please with limited regulation on the content. Therefore, in an ideal world, a range of specific and narrow legislation targeting online harassment and the responsibilities of social media would help clarify the murky boundaries between the right to free speech and what constitutes online harassment;[40] This would create a clear distinction between the two and solidify when each principle is applicable. Thereby theoretically, this would allow us to create a concrete, harmonized distinction between what is considered online harassment and what is a meaningful and liberal exchange of ideas. 

 

______________

Footnotes:

[1] Dawei Yin et al, "Detection Of Harassment On Web 2.0" <https://www.researchgate.net/publication/228978102_Detection_of_harassment_on_Web_20>, 1.

[2] Qing Li, "Cyberbullying In High Schools: A Study Of Students' Behaviors And Beliefs About This New Phenomenon" (2010) 19(4) Journal of Aggression, Maltreatment & Trauma, 373-374.

[3] Maeve Duggan, "Online Harassment 2017", Pew Research Center: Internet, Science & Tech (Webpage, 2017) <https://www.pewresearch.org/internet/2017/07/11/online-harassment-2017/>.

[4] Ibid.

[5] Ellen Kraft and Jinchang Wang, "An Exploratory Study Of The Cyberbullying And Cyberstalking Experiences And Factors Related To Victimization Of Students At A Public Liberal Arts College" (2010) 1(4) International Journal of Technoethics, 78.

[6] Allison M. Schenk and William J. Fremouw, "Prevalence, Psychological Impact, And Coping Of Cyberbully Victims Among College Students" (2012) 11(1) Journal of School Violence, 24.

[7] Steven D. Hazelwood and Sarah Koon-Magnin, "Cyber Stalking And Cyber Harassment Legislation In The United States: A Qualitative Analysis" (2013) 7(2) International Journal of Cyber Criminology<https://www.cybercrimejournal.com/hazelwoodkoonmagninijcc2013vol7issue2.pdf>.

[8] 1994 US Code :: Title 47 - TELEGRAPHS, TELEPHONES, AND RADIOTELEGRAPHS :: CHAPTER 4 - RADIO ACT OF 1927 :: SUBCHAPTER II - COMMON CARRIERS :: Sec. 223 - Obscene Or Harassing Telephone Calls In The District Of Columbia Or In Interstate Or Foreign Communications", Justia Law <https://law.justia.com/codes/us/1994/title47/chap4/subchapii/sec223/>.

[9] People v. Barber, 2013 NY Slip Op 50193(U)

[10] NY Penal L § 240.30 (2012), "Aggravated Harassment In The Second Degree", NY State Senate<https://www.nysenate.gov/legislation/laws/PEN/240.30>.

[11] Marlisse Sweeney, "What The Law Can (And Can't) Do About Online Harassment", The Atlantic (Webpage, 2014) <https://www.theatlantic.com/technology/archive/2014/11/what-the-law-can-and-cant-do-about-online-harassment/382638/>.

[12] Rachel N. Simons, "Addressing Gender-Based Harassment In Social Media: A Call To Action" [2015] The University of Texas at Austin iConference.

[13] Qing Li, "Cyberbullying In High Schools: A Study Of Students' Behaviors And Beliefs About This New Phenomenon" (2010) 19(4) Journal of Aggression, Maltreatment & Trauma, 384.

[14] "Online Harassment: A Comparative Policy Analysis For Hollaback By DLA Piper|Hollaback! Together We Have The Power To End Harassment", Hollaback! Together We Have The Power To End Harassment (Webpage, 2016) <https://www.ihollaback.org/online-harassment-comparative-policy-analysis-dla-piper-for-hollaback/>.

[15] Brendan Reilly, "Cyber-Bullying: Freedom Of Expression Vs. Freedom From Harassment" Loyola University Chicago<https://www.luc.edu/media/lucedu/law/centers/childlaw/childed/pdfs/2011studentpapers/reilly_cyberbullying.pdf>.

[16] "Online Harassment: A Comparative Policy Analysis For Hollaback By DLA Piper|Hollaback! Together We Have The Power To End Harassment", Hollaback! Together We Have The Power To End Harassment (Webpage, 2016) <https://www.ihollaback.org/online-harassment-comparative-policy-analysis-dla-piper-for-hollaback/>.

[17] R v Elliott, 2016 ONCJ 35

[18] "Online Harassment: A Comparative Policy Analysis For Hollaback By DLA Piper|Hollaback! Together We Have The Power To End Harassment", Hollaback! Together We Have The Power To End Harassment (Webpage, 2016) <https://www.ihollaback.org/online-harassment-comparative-policy-analysis-dla-piper-for-hollaback/>.

[19] 47 U.S.C. § 230, a Provision of the Communication Decency Act.

[20] "Section 230 Of The Communications Decency Act", Electronic Frontier Foundation <https://www.eff.org/issues/cda230>.

[21] "Why Addressing Online Harassment And Discrimination Is So Difficult", Americanbar.Org (Webpage, 2017) <https://www.americanbar.org/news/abanews/publications/youraba/2017/may-2017/why-addressing-online-harassment/>.

[22] Artur Appazov, "Legal Aspects Of Cybersecurity" [2014] Faculty of Law University of Copenhagen<https://www.justitsministeriet.dk/sites/default/files/media/Arbejdsomraader/Forskning/Forskningspuljen/Legal_Aspects_of_Cybersecurity.pdf>.

[23] Steven D. Hazelwood and Sarah Koon-Magnin, "Cyber Stalking And Cyber Harassment Legislation In The United States: A Qualitative Analysis" (2013) 7(2) International Journal of Cyber Criminology<https://www.cybercrimejournal.com/hazelwoodkoonmagninijcc2013vol7issue2.pdf>, 165.

[24] Artur Appazov, "Legal Aspects Of Cybersecurity" [2014] Faculty of Law University of Copenhagen<https://www.justitsministeriet.dk/sites/default/files/media/Arbejdsomraader/Forskning/Forskningspuljen/Legal_Aspects_of_Cybersecurity.pdf>, 10.

[25] MN Stat § 609.749 (2016)

[26] Steven D. Hazelwood and Sarah Koon-Magnin, "Cyber Stalking And Cyber Harassment Legislation In The United States: A Qualitative Analysis" (2013) 7(2) International Journal of Cyber Criminology<https://www.cybercrimejournal.com/hazelwoodkoonmagninijcc2013vol7issue2.pdf>, 165.

[27] Clay Calvert, "Revenge Porn And Freedom Of Expression: Legislative Pushback To An Online Weapon Of Emotional And Reputational Destruction" (2014) 24(2) Fordham Intellectual Property, Media & Entertainment Law Journal<https://ir.lawnet.fordham.edu/iplj/vol24/iss3/2/>, 685-688.

[28] NJ Rev Stat § 2C:14-9 (2013)

[29] Clay Calvert, "Revenge Porn And Freedom Of Expression: Legislative Pushback To An Online Weapon Of Emotional And Reputational Destruction" (2014) 24(2) Fordham Intellectual Property, Media & Entertainment Law Journal<https://ir.lawnet.fordham.edu/iplj/vol24/iss3/2/>, 685.

[30] Evan Ribot, "Revenge Porn And The First Amendment: Should Nonconsensual Distribution Of Sexually Explicit Images Receive Constitutional Protection?" (2019) 2019(15) Chicago Unbound<https://chicagounbound.uchicago.edu/uclf/vol2019/iss1/15>, 522.

[31] Ibid, 530.

[32] CA Penal Code § 647 (through 2012 Leg Sess)

[33] Clay Calvert, "Revenge Porn And Freedom Of Expression: Legislative Pushback To An Online Weapon Of Emotional And Reputational Destruction" (2014) 24(2) Fordham Intellectual Property, Media & Entertainment Law Journal<https://ir.lawnet.fordham.edu/iplj/vol24/iss3/2/>, 689.

[34] Clay Calvert, "Revenge Porn And Freedom Of Expression: Legislative Pushback To An Online Weapon Of Emotional And Reputational Destruction" (2014) 24(2) Fordham Intellectual Property, Media & Entertainment Law Journal<https://ir.lawnet.fordham.edu/iplj/vol24/iss3/2/>, 685-687.

[35] Marlisse Sweeney, "What The Law Can (And Can't) Do About Online Harassment", The Atlantic (Webpage, 2014) <https://www.theatlantic.com/technology/archive/2014/11/what-the-law-can-and-cant-do-about-online-harassment/382638/>.

[36] 47 U.S.C. § 223 (a)(1)

[37] "Online Harassment: A Comparative Policy Analysis For Hollaback By DLA Piper|Hollaback! Together We Have The Power To End Harassment", Hollaback! Together We Have The Power To End Harassment (Webpage, 2016) <https://www.ihollaback.org/online-harassment-comparative-policy-analysis-dla-piper-for-hollaback/>, 40.

[38] Ibid.

[39] Clay Calvert, "Revenge Porn And Freedom Of Expression: Legislative Pushback To An Online Weapon Of Emotional And Reputational Destruction" (2014) 24(2) Fordham Intellectual Property, Media & Entertainment Law Journal<https://ir.lawnet.fordham.edu/iplj/vol24/iss3/2/>, 674.

[40] Ibid, 686.

 

The Law Against Racial Hatred: Fighting Asian Hate in the Age of COVID-19

Author: Mylene Masangkay

Editor: Madhuli Kango 

  I. Introduction

   After the horrific shooting in the United States, which resulted in the death of eight of which most were women of Asian descent[1], instances of racially motivated abuse experienced by Asian-Australians began to emerge as well.

 

   In April 2020, a Chinese-Australian's Melbourne home was covered in racist graffiti about the COVID-19 pandemic.[2]In March 2021, Vincent Chen, a Chinese-Australian owner of a café in Canberra, told a group of teenagers to stop smoking outside his restaurant and as a result, was called a virus.[3] Anthony, a cricket player of mixed Asian and English heritage, was repeatedly called ‘coronavirus’ by a member of the opposing team and no one, not even his teammates, came to his defence.[4] Nearly 400 people of Asian background claimed to have been a victim of racism in a survey taken in Australia in the early months of the pandemic.[5]

 

   This article thus examines the impact the Racial Discrimination Act 1975, as amended by the Racial Hatred Act 1995, has on the anti-Asian sentiment that has escalated during the COVID-19 pandemic. 

 

   II. The Law

   The Racial Hatred Act 1995 (An Act to prohibit certain conduct involving the hatred of other people on the ground of race, color, or national or ethnic origin, and for related purposes)[6] is an amendment to the Racial Discrimination Act 1975[7]. Under this law, people can complain about another person's publicly offensive or abusive behavior based on racial hatred.[8] According to the Australian Human Rights Commission, the statute “aims to strike a balance between two valued rights: the right to communicate freely and the right to live free from vilification.”[9]

 

   III. Analysis

   What may have prompted the enactment of laws regarding racial discrimination and racial hatred is the fact that the history of Australia is burdened with illustrations of racism. The book, Relating Worlds of Racism, illuminates racism in the country as follows:

 

   “To understand racism in Australia, we need to understand its inception, socially, historically, and politically. Australia was founded as a nation in 1901 on an explicit ideology of White supremacy whereby Australia was considered a British outpost from 1788 and the coming of the First Fleet. This ideology had two separate elements: anti-Black racism that managed Indigenous peoples, and anti-immigrant racism that restricted entry to those who were considered to be White. These two types of racism shaped relations between White Australia and, as a consequence, everyone else. Anti-Black racism was entrenched in the Constitution where it continues to enable differential treatment of Indigenous peoples. The new nation of Australia was imagined as a White nation; Indigenous peoples were purposely excluded from the national story and Whiteness was normalized and rendered invisible.”[10]

 

   Australia as a nation is, for the most part, not as badly shaken by the COVID-19 pandemic as the rest of the world. However, this does not mean that its inhabitants have been exempt from the emotions associated with this contagious disease. The negative aspects appear to be the rousing in a number of individuals of perhaps what was previously a suppressed tendency to be prejudiced against persons of different ethnicity.

 

   Because COVID-19 is believed to have originated in the Wuhan province of China, the media and indeed even some powerful leaders have in the beginning carelessly labeled the virus in relation to its known geographical origin.[11] This resulted in the Chinese and other Asian people being associated with the coronavirus and being unjustifiably blamed for its spread. The consequence of this unwarranted labeling is the aforementioned rise in Asians being the target of verbal abuse and violence in some parts of the world, including in Australia.

 

   What can decrease the cases of racism against Asians in the age of COVID-19?

 

   Mr. Chen, the café owner who became a victim of verbal abuse, believes that there is a need for education and compassion, rather than public shaming, to combat racism. He has since accepted the apology conveyed to him online by the teenagers.[12]

 

   There are however others who believe that it is Australia as a nation that needs to transform. The Australian psyche needs to shed its sense of white superiority and privilege and embrace its Asianness. Ending racism must involve giving immigrants fair treatment and reaping the full developmental and societal benefits of migration.[13]

 

   IV. Conclusion

   Australia has the weight of its racist history to either blame or learn from when it comes to overcoming what some believe to be a predisposition to racism and to a sense of white superiority. To move on from the scars of the past, the country needs to take the emphasis away from the concept of ‘us versus them’. Asian-Australians, for example, are not ‘them’; they are ‘us’. Or, to be more accurate, all Australians, regardless of ethnicity, are ‘us’; there are no ‘them’.

   Laws like the Racial Discrimination Act 1975 and Racial Hatred Act 1995 are a sign of a society rising from a blemished past and forging a new future. It will not always be perfect and, every now and then, racism will try to rear its ugly head, but an informed and compassionate citizenry can hammer this stain back to its rightful place of oblivion.

 

 

__________________

Footnotes: 

 

[1] The Sydney Morning Herald, Shootings at three Atlanta-area massage parlours, multiple deaths, suspect caught (March 2021) < https://www.smh.com.au/world/north-america/multiple-deaths-in-shootings-at-three-atlanta-area-massage-parlours-20210317-p57bi6.html >

[2] ABC News, Racist coronavirus graffiti sprayed on Chinese-Australian family's home in Melbourne (April 2020) < https://www.abc.net.au/news/2020-04-22/racist-coronavirus-graffiti-sprayed-on-family-home-in-melbourne/12170162 >

[3] News.com.au, Viral video shows teenage boy racially abusing staff at Folks Gallery cafe (March 2021) < https://www.news.com.au/technology/online/social/viral-video-shows-teenage-boy-racially-abusing-staff-at-folks-gallery-cafe/news-story/d0ebd8d6d1001542ea66591dea4e0e45 >

[4] ABC News, More than eight in 10 Asian Australians report discrimination during coronavirus pandemic (November 2020) < hhttps://www.smh.com.au/world/north-america/multiple-deaths-in-shootings-at-three-atlanta-area-massage-parlours-20210317-p57bi6.html >

[5] ABC News, Report reveals racist abuse experienced by Asian Australians during coronavirus pandemic (July 2020) < https://www.abc.net.au/news/2020-07-24/coronavirus-racism-report-reveals-asian-australians-abuse/12485734 >

[6] Federal Register of Legislation, Racial Hatred Act 1995 < https://www.legislation.gov.au/Details/C2004A04951

[7] Federal Register of Legislation, Racial Discrimination Act 1975 < https://www.legislation.gov.au/Details/C2016C00089 >

[8] Australian Human Rights Commission, The Racial Hatred Act: What is the racial hatred act? (accessed March 2021) < https://humanrights.gov.au/our-work/racial-hatred-act-what-racial-hatred-act >

[9] Australian Human Rights Commission, Guide to the Racial Hatred Act (accessed March 2021) < https://humanrights.gov.au/our-work/race-discrimination/publications/guide-racial-hatred-act >

[10] Philomena Essed, Karen Farquharson, Kathryn Pillay and Elisa Joy White, Relating Worlds of Racism: Dehumanisation, Belonging, and the Normativity of European Whiteness (Palgrave Macmillan, 2019) 168.

[11] The Conversation, Calling COVID-19 a ‘Chinese virus’ is wrong and dangerous – the pandemic is global (March 2020) < https://theconversation.com/calling-covid-19-a-chinese-virus-is-wrong-and-dangerous-the-pandemic-is-global-134307 >

[12] The Canberra Times, Racist incident in Canberra receives international attention (March 2021) < https://www.canberratimes.com.au/story/7161424/racist-incident-receives-international-attention/ >

[13] Pursuit, The University of Melbourne, Australia needs to embrace 'Asianness' as part of 'Australianness' (March 2021) < https://pursuit.unimelb.edu.au/articles/australia-needs-to-embrace-asianness-as-part-of-australianness >

 

Social Media Under Attack: The Law on Sharing of Abhorrent Violent Material

Author: Mylene Masangkay

Editor: Madhuli Kango 

   I. Introduction

   On 15 March 2019, forty-nine people were killed due to shootings in two mosques in Christchurch, New Zealand. The perpetrator, a 28-year-old Australian identifying himself as Brenton Tarrant, live-streamed the deadly attack on Facebook. Authorities later learned that Tarrant published a document online where he provided details about his planned attack. Facebook afterward announced that it had taken down the attacker’s Facebook and Instagram’s accounts and was working to remove copies of the footage from its platforms.[1]

 

   This deadly attack was one of the forces that drove the Parliament of Australia to propose a bill to make those who provide content or host services criminally liable for hosting materials described as abhorrent.[2]  The bill assented on 5 April 2019, less than a month after the Christchurch attacks.

 

   This article will elaborate on the formulated law, the early reactions to it, and its effects two years later.

 

   The Law

   In response to the Christchurch shootings, the Parliament amended the Criminal Code to penalize social media platforms if they fail to expeditiously remove abhorrent violent material uploaded to their site and, where applicable, refer the matter to the Australian Federal Police.

 

   The law defines ‘abhorrent violent material’ as any audio, visual, or audio-visual material[3]  produced by a person who commits or attempts to commit terrorism, murder. torture, rape, or kidnapping.[4]  It applies to people providing social media platforms and hosting services, whether located within or outside Australia, as long as the content is reasonably capable of being accessed within Australia. The maximum penalty for failing to remove and report or refer to abhorrent violent material includes fines for corporations and imprisonment for individual employees.

 

   By introducing the law, the government addressed the existing gaps in the current criminal laws and established mechanism to ensure that online platforms are not weaponized to perpetrate violence and spread hateful propaganda, as had previously been observed not only in relation to the Christchurch incident but in many other instances of violence all over the world.

 

   The law also contains a provision for the review of the legislation after two years of its commencement.[5]

 

   II. Analysis

   Upon its enactment, the law was met with widespread condemnation both for its contents and its rushed passing that did not allow for consultation with the concerned sectors. United Nations Human Rights Special Rapporteurs David Kaye and Fionnuala Ní Aoláin wrote to the Australian government for comments after the passage of the law,[6]  noting that they were not given the chance to do so while the legislation was being considered. In the letter, they urged the government to withdraw the law to seek public comments and to ensure that it follows general human rights standards.

 

   The rush may have been as the country was dragged into the matter by its citizen who committed the terrible Christchurch attack. Also, when the law was to be passed, Australia was about to hold an election and the personalities involved may have been eager to show the world that it was doing something significant to prevent something similar from happening again.

 

   While the law is admirable in addressing immediate concerns, rushing into things has not been known to result in well-thought-out decisions. This is specifically observed with legislations that contain penal provisions and are likely to curtail certain freedoms, most notably, freedom of speech, an in-depth study should not just be recommended, it should be made mandatory. Where individuals run the risk of paying a fine or going to prison, the extra time taken to ensure clarity of text is not a luxury; it is a necessity. 

 

   Unfortunately, the easiest angle to look at things from is ‘the impact of the internet. The internet has always been an easy target due to its sheer ubiquitousness. Since the internet is a vague entity, it needs to be personified in the minds of some people, the apparent targets then are the huge personalities that comprise this seemingly unlimited network. The law on sharing abhorrent violent material shows such minds at work. If you cannot get to the offender, aim at those who stand to lose a lot if they do not help you catch the offender. Who cares if it is not their job to do so?

 

   Two years forward, the law does not appear to have made much noise where sensational cases are concerned. Since the law’s passage, there have been other matters that supplanted the outrage over it. COVID-19 has become the predominant global and national concern. The Attorney-General at the time the law was passed ran into personal troubles and there is a new Attorney-General now that the law is up for review.

 

   III. Conclusion

   Two years have passed since the enactment of the Sharing of Abhorrent Violent Material law, and in line with the review provision in it, it is now up for evaluation. Following the government's recent online entanglement and subsequent concessions relating to social media networks, it will be interesting to see if the review will result in the law being modified significantly in accordance with the concerns raised when it was enacted.

 

   The law is strictly construed in favor of the internet service providers, social media networks, and hosting services thus does not pose much of a problem prior to its execution. Any criticism hurled at it is a vague attempt at perfectionism. It is when, in its implementation, basic individual freedoms are bypassed just to find someone convenient to blame that citizens should raise their voices. It is then that the law – any law – may be confronted and exposed for its travesty. Until then, it is merely a blueprint for action.

_____________________

Footnotes: 

 

[1] BBC News, Christchurch shootings: 49 dead in New Zealand mosque attacks (Mar 2019) < https://www.bbc.com/news/world-asia-47578798 >.

[2] The Parliament of the Commonwealth of Australia, Criminal Code Amendment (Sharing Of Abhorrent Violent Material) Bill 2019 Explanatory Memorandum (Mar 2019) < https://parlinfo.aph.gov.au/parlInfo/download/legislation/ems/s1201_ems_08b22f92-a323-4512-bf31-bc55aab31a81/upload_pdf/19081em.pdf;fileType=application%2Fpdf >.

[3] Criminal Code Amendment (Sharing of Abhorrent Violent Material) Act 2019 (Cth) s 474.31.

[4] Criminal Code Amendment (Sharing of Abhorrent Violent Material) Act 2019 (Cth) s 474.32.

[5] Criminal Code Amendment (Sharing of Abhorrent Violent Material) Act 2019 (Cth) s 474.45.

[6] Freedex, Comments on new Australian law on online “Abhorrent Violent Material” (Apr 2019) < https://freedex.org/2019/04/04/comments-on-new-australian-law-on-online-abhorrent-violent-material/ >.

 

Media and the Courtroom: What are its Impacts on the Trial and the Jury?

Author: Mythili Gupta

Editor: Madhuli Kango 

   I. Introduction: 

   With the rapidly growing audience that the media is now able to reach, one of the things that needs attention is the role that media plays during a trial. The public’s growing interest in high-profile trials has raised various questions regarding the presence of television cameras in the courtroom and the impact that the media presence has on the jury, the fairness of the trial, and the public’s right to freedom of the press. 

 

   II. Analysis:

   The first amendment in the U.S Constitution states that:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

   Focusing particularly on the aspect of ‘freedom of the press’, the amendment highlights the moral duty upon the constitution to grant people the right to know and allow the press to keep them informed. It highlights the people’s preliminary right to freely acquire knowledge. However, as we will come to see, this amendment may cross paths and collide with the 6th amendment of the constitution - the right to a fair trial.[1] The Supreme Court of the United States has referred to the right to a fair trial as the ‘most fundamental of all freedoms’; however, the majority of the legal discourse in this area interprets the first amendment as unalterable.[2] Therefore it is this conflict between the two that really brings out the impact of the media and the ability to achieve justice. 

 

   Justice Brennan argues that the first amendment was designed to ensure public confidence in the justice system. He argues that the public could have limited belief in the fairness of the courtroom proceedings if they are unable to verify and witness it themselves. In this contemporary age, this verification tends to occur through mass media coverage giving access to those who couldn’t have otherwise.[3] He goes on to state that media coverage can also encourage the improvement of performance by the participants of the trial (lawyers, judges, jury and so on) as they know that they are being observed by the public. As for the conflict with the sixth amendment, Justice Brennan talks about the establishment of an actual threat of the right to a fair trial would be difficult and unlikely to justify a ‘gag’ order.[4] However, as we will come to see, the media and the press can have various negative impacts as well which ultimately may taint the purity of the trial. 

 

   One of the first groups that media coverage in this situation can impact, is the jury. Although every individual is entitled to the right to a fair trial, high-profile cases can make it difficult for the court to secure an unbiased jury. Pre-trial publicity, extensive media coverage, and now social media forums can lead to the preconceived notions for the vast majority of the public (including potential jurors).[5] If we look at the example of the Irvin v Dowd case, the voir dire examination showed that 90% of the 370 potential jurors and two thirds of the chosen jury had already formed a preconceived opinion of guilt prior to the trial due to the pre-trial publicity and media coverage.[6]

 

   Secondly, when understanding the impact on the jury, we can see that questioning the jurors about their prejudices cannot be relied upon as well. For instance, in the case of Beck v Washington, the court concluded that: 

 

   “[T]he pretrial publicity was so intensive and extensive or the examination of the entire panel revealed such prejudice that a court could not believe the answers of the jurors and would be compelled to find bias or performed opinions as a matter of law.”[7]

 

   According to a study conducted in 2007, jurors who are death certified tend to be prone to more exposure to pre-trial publicity and consequently tend to rule ‘guilty’. This is because these certified jurors were seen to be watching the daily news more than other civilians. This made them more aware of the circulating content in the media and caused them to lean towards a pro-prosecution ideology.[8]  There have also been instances of ‘stealth jurors’ where they purposely seek a seat on a specific cases’ jury in order to either incarcerate someone, they believe is guilty, benefit from the publicity (financially or otherwise), or simply gain some screen time from the media. Either way, the effectiveness of methods to detect prejudiced jurors are getting more and more difficult as reach of the media progresses.[9]

 

   Apart from the Jury, the impact of the media can also influence the behavior of the witness, the judges and other participants in these high-profile or televised trials. For instance, potential witnesses are traditionally excluded from the courtroom to ensure that the testimony submitted is not false or collaborated prior to taking the stand. However, the problem comes down to the fact of how the court can prevent the witnesses from watching or reading the proceedings after its first or second rerun on Court TV?[10]  Moreover, the presence of media in the courtroom can also lead to the manipulation of witness statements on the stand. For instance, the university of Minnesota used a research pool with 178 witnesses to test out this theory. Witnesses were asked to watch a videotaped crime and were asked to give their testimony whilst being recorded through a camera (resembling electronic media coverage).[11] Another group was asked to give their testimony with a conventional media coverage method (a journalist transcribing handwritten notes) and the last group was questioned under no media coverage. The results indicated that the witnesses reporting under electronic media coverage were more susceptible to being influenced by the presence of the camera due to nervousness and fear of scrutiny for mistakes compared to their no-camera counterparts.[12]  Camera coverage in the courtroom may also cause a witness to be intimidated by the exposure and risk of being threatened by it. For instance, testifying on camera against a gang, criminal organization or an influential individual can open up the gates to various scrutiny and risks towards that witness.[13]  

 

   As for judges, previously, the positive and more efficient behavior of the judges was discussed however, it may quite as easily impact the ruling negatively. A study conducted by Stanford University showed that the media and press coverage heightened the influence of the dominant voters’ preferences. Elected judges became more likely to lean towards the hegemonic consensus and seemed to sentence more rigorously as compared to a less publicized trial.[14]

 

   III. Conclusion: 

   Ultimately, we can see that televised court cases have both positive and negative implications. The focus and consensus of this discussion came down to the negative consequences outweighing the positives.[15] Although the public does have a right to freedom of the press and that can have various benefits whilst conducting a trial, the number of negative outcomes can obstruct the defendant's right to a fair trial. 

________________

Footnotes: 

 

[1] Edward G. Hudon, Freedom of the Press Versus Fair Trial: The Remedy Lies with the Courts, 1 Val. U. L. Rev. 8 (1966), pp8. Available at: https://scholar.valpo.edu/vulr/vol1/iss1/15

[2]  Gavin Phillipson,  "Trial by Media: The Betrayal of the First Amendment's Purpose." Law and Contemporary Problems 71, no. 4 (2008): 15-29. Accessed April 19, 2021. http://www.jstor.org/stable/27654682.

[3] James C. Goodale, Abraham Abramovsky, Helman R. Brook, James A. Cohen, George Freeman, David A. Schulz, and Carolyn Schurr, Impact of the Media on Fair Trial Rights: Panel on Media Access, 3 Fordham Intell. Prop. Media & Ent. L.J. 291 (1993). Available at: https://ir.lawnet.fordham.edu/iplj/vol3/iss2/4

[4] Ibid. 

[5] "Media Influence In Capital Cases | Capital Punishment In Context", Capitalpunishmentincontext.Org<https://capitalpunishmentincontext.org/issues/media>

[6] Edward G. Hudon, Freedom of the Press Versus Fair Trial: The Remedy Lies with the Courts, 1 Val. U. L. Rev. 8 (1966), pp8. Available at: https://scholar.valpo.edu/vulr/vol1/iss1/15

[7] Beck v. Washington, 369 U.S. 541 (1962)

[8] "Media Influence In Capital Cases | Capital Punishment In Context", Capitalpunishmentincontext.Org<https://capitalpunishmentincontext.org/issues/media>

[9] Gavin Phillipson,  "Trial by Media: The Betrayal of the First Amendment's Purpose." Law and Contemporary Problems 71, no. 4 (2008): 15-29. Accessed April 19, 2021. http://www.jstor.org/stable/27654682.

[10]  James C. Goodale, Abraham Abramovsky, Helman R. Brook, James A. Cohen, George Freeman, David A. Schulz, and Carolyn Schurr, Impact of the Media on Fair Trial Rights: Panel on Media Access, 3 Fordham Intell. Prop. Media & Ent. L.J. 291 (1993). Available at: https://ir.lawnet.fordham.edu/iplj/vol3/iss2/4

[11] Eugene Borgida, Kenneth G. DeBono and Lee A. Buckman, "Cameras In The Courtroom: The Effects Of Media Coverage On Witness Testimony And Juror Perceptions." (1990) 14(5) Law and Human Behavior.

[12] Ibid.

[13] "Media Influence In Capital Cases | Capital Punishment In Context", Capitalpunishmentincontext.Org<https://capitalpunishmentincontext.org/issues/media>

[14] Ibid.

[15] James C. Goodale, Abraham Abramovsky, Helman R. Brook, James A. Cohen, George Freeman, David A. Schulz, and Carolyn Schurr, Impact of the Media on Fair Trial Rights: Panel on Media Access, 3 Fordham Intell. Prop. Media & Ent. L.J. 291 (1993). Available at: https://ir.lawnet.fordham.edu/iplj/vol3/iss2/4

 

Assisted Suicide and its Legality

Author: Meenakshi Iyer

Editor: Madhuli Kango 

   Since the case of R v Johnstone[1] in 1987 where a 62-year-old man electrocuted his mentally ill wife at her own request, euthanasia has become the subject of an ongoing public, medical, political as well as a legal discourse in Australia. This article thus endeavors to measure up the legality of its advantages and disadvantages against the backdrop of international conventions, treaties, federal laws, etc.

 

   Assisted suicide is defined as “the suicide undertaken with the aid of another person.”[2] Assisted suicide, as well as voluntary euthanasia, is a significant yet morally challenging issue in the current Australian society. Contentions in support of it include respect for the patient’s bodily autonomy, personal liberty[3] and the ability of people to be able to choose to die with dignity. On the other hand, people against it argue that it is unethical due to religious and moral reasons.

  

   Assisted suicide concerns itself with the involvement of a third party who relieves a person’s suffering in response to the same person’s request. Generally, this third person is a medical practitioner and hence it is most commonly referred to as a doctor–assisted suicide. Currently, only Victoria[4] has a bill that facilitates this process. Although Tasmania has passed legislation regarding voluntary assisted dying, it will not come into effect until October 2022. Euthanasia was legalized in the northern territory[5] but it was later voided by a federal act[6] which took away the power of the territories to legalize euthanasia. No other state or territory has thus legalized assisted suicide. The decriminalization of assisted suicide has been a majorly contended debate in Australia and this proposition is supported by the Australian greens, the Secular Party of Australia as well as the Liberal Democratic Party.[7]

 

   There have been several attempts throughout Australia in order to enact legislation that is loosely based on the framework of the Northern Territory’s Rights of the Terminally Act, 1995. On the Commonwealth level, in 2018, a bill to remove the ban on the Australian Capital Territory, as well as the Northern territory on legislating for euthanasia, was introduced by the Liberal democrat’s legislator David Leyonhjelm. However, it was defeated at the second reading stage by 36 votes to 34.[8]

On the international front, Australia is a party to seven major human rights treaties. The most significant and relevant obligations that need to be considered are contained in the International Covenant on Civil and Political Rights (ICCPR)[9]. The right that is relevant to this discourse of euthanasia is the right to life (Art. 6). Another convention that is of crucial importance is the Convention on the Rights of Persons with disabilities[10] (the disability convention)

 

   Talking about the inherent right,[11] Article 6 of the ICCPR states that “Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.” This right has been asserted to be a “supreme right” for which no detraction is permitted and it is to be interpreted widely.[12] This article thus imposes on the states an obligation to take positive measures for the legal protection of the right to life.[13] Although laws that permit euthanasia are not inconsistent with the state’s obligations to protect life, they must however provide properly enforced procedural safeguards to protect against abuse.[14]

   Australia, being a party to the disability convention is under an obligation to make sure that the people with disability are not discriminated against and enjoy all of their human rights without any discrimination on the basis of their disability.[15] The relevant principle that underpins the disability convention is the right of the disabled person for “respect for inherent dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons”.[16] Article 25 of the conventions also prohibits the ‘discriminatory denial of health care or health services or food and fluids on the basis of disability.’[17] However, it can be contrastingly argued that respect for the right of people with disabilities also entails respect for their choice of whether they chose to agree to the medical treatment or not.

 

   Arguments for and against voluntary euthanasia and assisted suicide have continued to persist controversially in the public, medical and justice sectors. However, the actual possibility of it being decriminalized seems very limited as a result of the differing views in parliament. According to Plumb, there are several controversies that challenge the proposed legislation and bills for euthanasia and thus, sufficient evidence is needed so as to make reasonable decisions[18].

__________________

Footnotes: 

 

[1]  R v Johnstone (1987) 45 SASR 482.

[2] Nicola Davis, Euthanasia and assisted dying rates are soaring. But where are they legal? (July 2019) <https://www.theguardian.com/news/2019/jul/15/euthanasia-and-assisted-dying-rates-are-soaring-but-where-are-they-legal>

[3] Helene Starks, Physician Aid-in-Dying: Ethics in Medicine (April 2019)

[4] Melissa Cunningham, we’re on the right side of history': Victoria's assisted dying laws come into effect for terminally ill (June 2019).

[5] Rights of the Terminally Ill Act 1995.

[6]  Euthanasia Laws Act 1997 (Cth)

[7] "Assisted Suicide", Web.Archive. Org (Webpage, 2021) <https://web.archive.org/web/20100926233502/http:/www.ldp.org.au/index.php?option=com_content&view=article&id=1142:assisted-suicide&catid=101:policies&Itemid=290>.

[8] "Territories Euthanasia Bill Sunk In Senate", SBS News (Webpage, 2018) <https://www.sbs.com.au/news/territories-euthanasia-bill-sunk-in-senate>.

[9] Opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976).

[10] Convention on the Rights of Persons with Disabilities, opened for signature 13 December 2006, 2515 UNTS 3 (entered into force 3 May 2008).

[11] "CCPR General Comment No. 6: The right to life". UN OHCHR. 30 April 1982. Retrieved 10 October 2010.

[12] Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (NP Engel, 2nd rev. ed, 2005)

[13] "CCPR General Comment No. 6: The right to life". UN OHCHR. 30 April 1982. Retrieved 10 October 2010.

[14] UN Human Rights Committee, Consideration of Reports Submitted by States Parties under Article 40 of the Covenant: Concluding Observations Of The Human Rights Committee – Netherlands, Human Rights Committee, 72nd sess, UN Doc CCPR/CO/72/NET (27 August 2001) para 5(d).

[15] Convention on the Rights of Persons with Disabilities, opened for signature 13 December 2006, 2515 UNTS 3 (entered into force 3 May 2008), arts 4(1) and 5(1) and (2).

[16] Convention on the Rights of Persons with Disabilities, opened for signature 13 December 2006, 2515 UNTS 3 (entered into force 3 May 2008), art 3.

[17] Convention on the Rights of Persons with Disabilities, opened for signature 13 December 2006, 2515 UNTS 3 (entered into force 3 May 2008), art 25(f).

[18] Alison Plumb, The Future of Euthanasia Politics in the Australian State Parliaments (2006), Australian Parliamentary Review

< https://www.aspg.org.au/wp-content/uploads/2017/09/Future-of-euthanasia-politics.pdf>

 

The Business of Intimacy: Regulating Sex Work in Australia

Author: Mylene Masangkay

Editor: Madhuli Kango 

   I. Introduction

   Although the world has moved on from the sexual puritanism of the past, sex is still mostly a muted subject, indulged in private and merely alluded to in most forms of media. It is therefore not surprising, that something so provocative carries with it a stigma, especially when presented as a commodity or a service.

 

   Despite being unorthodox, sex work is a recognised occupation in the Australia and New Zealand Standard Classification of Occupations (ANZSCO). In this category, a sex worker or an escort is someone who “provides clients with sexual services or social companionship”.[1] The responsibility in Australia to regulate sex work falls on the state or territory. As a consequence, there are as many versions of the law on prostitution as there are the number of states and territories.

 

   II. The Laws

   Each state and territory has formulated its own law on sex work. Under the laws of New South Wales (including Brothels Legislation Amendment Act 2007) and the Northern Territory (Sex Industry Act 2019), prostitution is not a criminal offence. In Victoria (Sex Work Act 1994) and Queensland (Prostitution Act 1999), some forms of sex work have been legalised. In Tasmania (Sex Industry Offences Act 2005), private sex work is legal. Sex work is still penalised as a criminal act in South Australia (contained in Summary Offences Act 1953) and Western Australia (Prostitution Act 2000).

 

   In South Australia, the latest attempt to make changes to the laws on sex work was in April 2020, when a bill was presented to the Parliament seeking to amend Summary Offences Act 1953 to decriminalise prostitution.[2]  As of this writing, however, no such endeavour has been successful in the state.

 

   Scarlet Alliance of Australian Sex Workers Association, an organisation of sex workers in the country, is pushing for full decriminalisation of prostitution, arguing that this will protect sex workers by giving them access to existing civil laws.[3]Although the organisation’s briefing paper is a few years old, there has been no concrete legislative move towards full decriminalisation of sex work in the country.

 

   III. Case Study and Analysis

   I was introduced to Annie (not her real name) by a friend. Annie came to Australia as a young woman in her early 20s on a partner visa. Five years later, her partner left her for another woman. At that time, Annie had less than a thousand dollars of her own money, had no discernible skills, and could barely read, write, or speak English. Annie’s former partner paid for their rented home for six months after leaving her. During that time, she survived on the generosity of a few acquaintances who would give her food, old clothes, and occasionally, money. When her former partner stopped paying the rent, she started dipping in her savings, which was drained in no time. With the prospect of becoming homeless, Annie borrowed money from her neighbour to pay for a personal ad.

 

During an audio interview, I asked Annie what she was thinking about when she was on her way to her first client. “I was thinking that this will pay for a week’s rent,” she replied. “If I can only get one client a week, I don’t have to lose my home.” That first client was ten years ago and although Annie had gone on to finish a short course in aged care, she still considers herself, first and foremost, a sex worker. “It’s much easier for me because I decide when I want to work and who I want to work with.”

 

   It is perhaps a good indication of how a profession is perceived by the government and private sectors when there is hardly any data on the number of sex workers or any mainstream study conducted on why individuals end up in this profession. The data available comes from the United Nations, through the Joint United Nations Programme on HIV/AIDS, which reported an estimated 20,500 sex workers in the country.[4]

 

   The laws put in place by the states and territories are designed to contend with the known dangers associated with sex work, such as human trafficking and child prostitution, where individuals are forced to do sex work or are brought in via vitiated consent,[5] or the rise of sexually transmitted infections (STI).[6] They are not intended to protect individuals who willingly chose to do sex work or those like Annie who find sex work to be the easiest way for them to make a living. Consequently, sex workers are unable to openly access government support, especially with regard to their income-earning capacity.

 

   In April 2020, the United Nations released a statement to the press calling on countries to address the plight of sex workers. “As a result of the COVID-19 pandemic, sex workers all over the world are experiencing hardship, a total loss of income and increased discrimination and harassment. The criminalization of various aspects of sex work in majority of the countries serves to magnify their already precarious situation in the informal economy. As sex workers and their clients self-isolate, sex workers are left unprotected, increasingly vulnerable and unable to provide for themselves and their families,” the press release stated.

 

   While those employed in mainstream jobs faced with diminished or flattended income as a result of the pandemic, were able to access government services, sex workers in Australia were largely ignored in the government’s response to the pandemic.

 

   What would a law decriminalising prostitution and openly giving sex workers more rights mean to her? I asked Annie. “I still won’t come out as a prostitute,” she admitted, “but it would be good to receive some favours from the government sometimes.”

 

   IV. Conclusion

   While the current laws address many of the underlying dangers of the sex industry, like human trafficking, child prostitution, and STIs, these laws are also at best ambiguous when it comes to the government’s stance on sex work and sex workers. Is sex work work and can sex workers avail of the protections provided under employment and labour laws? If we look for a definitive response that is supported by existing statutes, the answer is probably no. As it looks presently, sexual puritanism may not truly be dead, and it may take more time for the stigma to be wiped off the concept of sex work.

 

_____________

Footnotes: 

[1] Australian Bureau of Statistics, Australian and New Zealand Standard Classification of Occupations, 2013, Version 1.3 (2019)<https://www.abs.gov.au/ausstats/abs@.nsf/Product+Lookup/1220.0~2013,+Version+1.3~Chapter~UNIT+GROUP+4518+Other+Personal+Service+Workers>.

[2] South Australian Legislation, Statutes Amendment (Repeal of Sex Work Offences) Bill 2020 (2020) <https://www.legislation.sa.gov.au/LZ/B/CURRENT/STATUTES%20AMENDMENT%20(REPEAL%20OF%20SEX%20WORK%20OFFENCES)%20BILL%202020_HON%20TAMMY%20FRANKS%20MLC/B_AS%20INTRODUCED%20IN%20LC/STATUTES%20WORK%20OFFENCES%20BILL%202020.UN.PDF>.

[3] Scarlet Alliance Australian Sex Workers Association, Briefing Paper: Full Decriminalisation of Sex Work in Australia (2016) <https://scarletalliance.org.au/library/briefing_paper_full_decrim>.

[4] United Nations, Sex workers: Population size estimate (2015) <http://data.un.org/Data.aspx?d=UNAIDS&f=inID%3A111>.

[5] Coalition Against Trafficking in Women Australia, Australian Federal and State Prostitution Legislations (accessed April 2020) <https://www.catwa.org.au/australian-legislation/>.

[6] Australasian Society for HIV, Viral Hepatitis and Sexual Health Medicine, Sex work: Specific sex work laws relating to HIV infection(accessed April 2020) <https://hivlegal.ashm.org.au/sex-work/>.

 

Scandalising the Court: Contempt of Court and Free Speech in Australia

Author: Mylene Masangkay

Editor: Madhuli Kango 

   I. Introduction

   Contempt of court is an often-misconstrued concept. Those who consume popular media may have understood it to be a measure to protect a judge from personal insults. In truth, contempt of court is a doctrine of common law intended to protect the administration of justice by empowering courts to penalise those who interfere with it.[1]

 

   There are several kinds of contempt that may be punished.[2] These include:

  1. Contempt in the face of the court, which involves improper behaviour in a courtroom during a hearing;

  2. Sub judice contempt, which is the act of publishing materials which may prejudice a pending trial;

  3. Disobedience contempt, which involves a failure to comply with a court order.

 

   In 2019, many have raised concerns about another kind of punishable contempt referred to as ‘scandalising the court’. This was in reference to a high-profile case that culminated with the conviction of George Pell, a Catholic bishop, for child sexual abuse. Because of a non-publication order, a number of journalists were called to answer allegations that they had committed contempt by referring to the said case, and for some of those journalists, by openly criticising the court.[3]

 

   II. The Law

   Despite several calls for it to be converted into a statute, contempt is a common law provision that has so far defied attempts at codification. One of the reasons for this may be the mixed views of the legal associations who submitted their opinions. Whilst the Legal Services Commission of South Australia supported the codification of contempt laws as similarly recommended in the reports of the Australian Law Reform Commission and the New South Wales Law Reform Commission, the Law Council of Australia declared that the current law was satisfactory. Although it was not opposed to making contempt into a statute, the Law Council emphasised the need to remember that the law is a safeguard to the administration of justice.[4]

 

   Whilst the law on contempt is still imprecise, punishing contempt in the face of the court, sub judice contempt, and disobedience contempt is easier to appreciate as regards the administration of justice. The law that punishes scandalising the court, however, is not. The High Court of Australia, in the 1987 case of Gallagher v Durach, noted as follows:

 

   “[T]he law of criminal contempt in scandalizing the courts is so vague and general that it is an oppressive limitation on free speech. No free society should accept such censorship. The absence of a constitutional guarantee does not mean that Australia should accept judicial inroads upon freedom of speech which are not found necessary or desirable in other countries. At stake is not merely the freedom of one person; it is the freedom of everyone to comment rightly or wrongly on the decisions of the courts in a way that does not constitute a clear and present danger to the administration of justice.”[5]

 

    It may be argued that contempt in the face of the court, sub judice contempt, and disobedience contempt all have a direct link to the administration of justice. The same cannot be said of scandalising the court. In the case of reporting the verdict in the George Pell case for example, it tends to appear as a curtailment of the freedom of individuals to report on and to receive information on the goings-on in a branch of government.

 

   The next section analyses this legal concept of ‘scandalising the court’ as a limitation to freedom of speech. It attempts to expound on, but not give a definitive answer to, the following questions:

  1. How is the law used in protecting the administration of justice?

  2. Does the law subvert free speech?

 

   III. Analysis

   Upon the release of the verdict in the high-profile case for child abuse against high-ranking Catholic official Cardinal George Pell, the court subsequently issued a suppression order.[6] This was due to the other pending cases the convicted Pell was still about to face at the time. On its face, the order seeks to ensure that all pending allegations that Pell was still facing or about to answer would not be unduly influenced by the verdict and the matters presented during trial. Some journalists went on to report about the concluded case anyway, with many detailing it but omitting mentioning Pell’s name.

 

   Many of these journalists were called to answer for this act, with some being accused of relaying the news to overseas news organisations who could not have known about the details of the case but were able to write about it anyway, and others of being critical of the court and the verdict.[7]

 

   In the George Pell case, those who went against the suppression order were believed to have obstructed the smooth administration of justice. This may be a fair call as prosecutors at that time were planning to file another case against Pell and anything written about the decided case may tend to have an undue influence on the second case. However, it may also be considered an arbitrary move to prevent the public from getting informed. It may be argued that the second case involved details that were different from the previous one, and no details laid in court in the first case would have a bearing on the second case.

 

   That sixteen of the respondent journalists in the inquiry were deemed to have been accused of scandalising the court by being critical of it is also interesting. In popular media, audiences are made to believe that a person can be declared in contempt of court if they do anything that tends to personally insult or annoy a judge. As mentioned previously in this article, that is not the intention of the law on contempt. With the vagueness of the law, however, it is not a far-fetched idea.

 

Compartmentalising the personal and professional is not just extremely difficult, it may also seem impossible. A person is the sum total of her experiences and anything relating to her professional life is also a by-product of everything that happened to her. This is why it may be challenging to remove the person of the judge from the institution of the court where she holds office.

 

Giving a person who is naturally predisposed in a certain way because of her experiences with an unlimited latitude in deciding to cite persons or organisations in contempt is truly inviting disaster. Whilst it is sometimes good to believe in the goodness of every public official, there is a limit on their power for the simple reason that not everyone will do the right thing if we just rely on their willpower. This is true as well about the law on contempt. Whilst more judges will respect it enough to use it only when it truly impedes the administration of justice, some may use it to fortify a sensitive ego, an act that has no place in the administration of justice.

 

  IV. Conclusion

   The above analysis is merely a broad look into the law punishing the so-called ‘scandalising the court’. It will require a more intensive study into the effects of this law for specific conclusions and recommendations to be made. However, it is clear from the discussion that there is a need to achieve uniformity as to the matters of allegations, defence, and penalties. Whilst safeguarding the administration of justice is a paramount concern for the courts and its stakeholders, which makes the law on contempt important, it is dangerous in any democracy for free speech to be infringed on arbitrarily by a law that is susceptible to abuse because of its vagueness and imprecision. There is also no need for personal hurts derived from perceived insults to cross the hallowed threshold of the judiciary.

 

   Whether it is to codify the law on contempt or to heavily sanction magistrates and other officials who exploit it for their personal power wielding, the open-endedness of this law needs to be looked into and the issues found addressed for there to be an appropriate balance between the peaceful administration of justice and free speech.

__________________

Footnotes: 

 

[1] Australian Law Reform Commission, Contempt (1987) <https://www.alrc.gov.au/inquiry/contempt/>.

[2] Australian Law Reform Commission, Contempt, Report No 35 (1987) [20].

[3] ABC News, George Pell trial suppression orders breached by news organisations, Victorian prosecutor alleges (2019) <https://www.abc.net.au/news/2019-03-26/journalists-accused-of-breaking-george-pell-suppression-order/10939980>.

[4] Parliament of Australia, Law of Contempt: Terms of reference and conduct of the inquiry (2017) <https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Legal_and_Constitutional_Affairs/LawofContempt/Report/c01#c01f11>.

[5] Gallagher v Durack (1983) 152 CLR 238.

[6] ABC News, George Pell's trial for child sexual abuse was held in secret. This is why (2020) <https://www.abc.net.au/news/2019-02-26/george-pell-trial-why-cardinal-court-case-held-in-secret/10233118>.

[7] ABC News, George Pell trial suppression orders breached by news organisations, Victorian prosecutor alleges (2019) <https://www.abc.net.au/news/2019-03-26/journalists-accused-of-breaking-george-pell-suppression-order/10939980>.

 

The Legal Complexities in Regulating White-Collar Crimes

Author: Mythili Gupta

Editor: Madhuli Kango 

   Previous studies show that compared to street-level criminal activities, the approximate damages caused by, white-collar crimes have a much greater, overall impact.[1] ‘White-collar crime’ is described and classified in multiple ways as demonstrated by various scholars (dating all the way back to Sutherland, Aubert, and many more). Its definitions range from a “crime committed by one of respectable or high social status” or “...in the course of one’s occupation” to a crime that involves deceit or a breach of trust, a non-violent crime is undertaken for personal gain, and so on.[2] According to Sutherland’s definitions, these include crimes such as bank fraud, blackmail, bribery, counterfeiting, credit card fraud, and many more.[3] Due to the established and biological fear of ‘physical’ or ‘immediate’ harm, people tend to focus on ‘street-level' crimes overlooking the white-collar crimes that are persisting on a greater scale. Scholars suggest that unsafe workplaces, hazardous consumer products, and toxic chemicals cause much more damage in the ‘grand scheme’ of things.[4] Additionally, various legal problems arise when attempting to impose criminal liability on corporations. 

 

   1. Mens Rea

   To begin with, under the mens rea doctrine, individuals must have intentionally and recklessly engaged in prohibited conduct leading to a prohibited consequence.[5] In order to obtain a conviction, this legal structure would require the prosecutor to establish that the individual defendant acted with ‘guilty intent’ - or proving that the defendant intentionally or recklessly engaged in dishonest business practices. When looking at a large corporation, establishing a mens rea may be difficult and, in certain situations, almost importable because it is in the nature of the corporate form to diffuse corporate responsibility.[6]

 

   If we look at the Enron case study, professor Samuel W. Buell points out that the standard defence was not that the fraud did not occur, but that the perpetrators were not aware that they were doing something wrong. Looking at a large corporation, there may be many advisors or superior (such as accountants, lawyers, or supervisors) that said it was not legal wrongdoing and they could proceed.[7] Many decisions that were made by one member of the corporation may not be fully made aware to the many other members of the firm.[8]

 

   In the United States v. Bank of New England ruling, the case pointed out that “corporations compartmentalize knowledge, subdividing the elements of specific duties and operations into smaller components” making it difficult to pinpoint the guilty intent behind the company’s actions and who to hold accountable for the wrongdoings.[9] Similarly, in the United States v. Hilton Hotels Corp case, the court pointed out that “Complex business structures, characterized by decentralization and delegation of authority, commonly adopted by corporations for business purposes, make it difficult to identify the particular corporate agents responsible for ...violations.”[10] 

 

   2, Limited Liability Companies 

   The concept of Limited Liability Companies or ‘LLC’s were initially created to help small business owners or entrepreneurs to form new business and protect their personal assets from the liabilities that their companies may create. This legal structure allows the company to exist as an entity separate from the individual or in other words, as a legal ‘person’.[11]

 

   Furthermore, the limited liability company’s core requirement is to prioritize the interests of its investors due to its focus on profit which gives way for companies to place their employees and workers second, thereby compromising their safety and wellbeing for profit-maximizing incentives.[12] If certain company directors are found guilty of a company’s shortcomings, they can recycle the original company and open another one with a different name - also known as a phoenix company. Lastly, white-collar offenders can conduct one of (what Haines identifies as) the worst forms of exploitations of the LLC legal structure through the ‘Ponzi’ scheme. In this circumstance, promoters attract shareholders by promising massive dividends and when no real business is being conducted, the first-wave subscribers are paid handsomely from the second-wave and so forth, ultimately attracting more investors.[13] In the 2008-09 financial crisis, Bernard Madoff was found to be conducting a similar type of Ponzi scheme. 

 

   Regulatory action from the State may seem like the logical solution to such legal conflicts; however, it is important to remember the purpose of the limited liability company. The development of the LLC was considered to be an essential tool that stimulated capitalist activity and economic growth making it an essential legal mechanism.[14] Without this additional protection for wealthy investors and budding entrepreneurs, investments into businesses would significantly decrease resulting in lower taxation, reduced government revenue, and a lack of funds for essential public services. Therefore, attempts to remove the LLC would be faced with significant backlash from businesses and governments and would point out its prominent role in major capitalistic democracies.[15]

 

   3. Piercing the Corporate Veil

   The term "piercing the corporate veil" refers to the courts taking action against corporations and putting aside the ‘the limited liability’ prerequisite. This is done to allow the state to hold the corporation’s shareholders or directors personally liable for the company’s actions and debts.[16] This corporate veil can be pierced based on determining factors such as relevant statutory or other provisions, object sought to be achieved, impugned conduct, involvement of public interest, and the interest of the affected parties.[17]

 

   A recent example of where the court ruled to pierce the corporate veil was the Vodafone International Holdings v. Union of India case.[18] The misuse of the corporate structure to evade taxes lead to the court concluding that “Once the transaction is shown to be fraudulent, sham, circuitous or a device designed to defeat the interests of the shareholders, investors, parties to the contract and also for tax evasion, the Court can always lift the corporate veil and examine the substance of the transaction.”[19]

 

   However, the concept of ‘piercing the corporate veil’ comes with its fair share of difficulties.[20] According to the data collected in previous studies, the general observation was that the piercing of the corporate veil was generally limited to close corporations and decreased with a greater number of shareholders. When it came to public corporations, there was a total absence of piercing due to the economic benefits for the market by the limited liability corporations.[21] Courts tend to hold a strong reluctance towards piercing the corporate veil and only do so when serious misconduct has occurred. The States agree that the benefits of limited liability encourage the development of public markets for stocks and enable the liquidity and diversification benefits that investors may bear from them.[22]

 

   As for the Limited Liability Companies, Mukharji delves into this doctrine and states “neither the share-holder nor director, nor its staff, nor furniture, nor building for the matter of that, is the substance of the company. The doctrine that a limited company is an entirely independent separate legal entity is not a mere doctrine of form. It is equally, and more fundamentally, a doctrine of substance because a company continues even though its assets or liabilities or share-holder.”[23]

 

    Overall, his dissection of the legal structure does a particularly good job in emphasizing the difficulties that may arise when disrupting the very substance of the company - which lies upon the ability to compartmentalize the identity of the company and its shareholders.[24] Ultimately, it is the embeddedness of greed, monetary rewards, and profit-maximizing ideologies in the capitalist democracies, that have made it so difficult (and sometimes impossible) for the government to separate the harms inflicted on society from its economic benefits.[25]

 

_____________________

Footnotes:

[1] Martinez, J., 2014. Unpunished Criminals: The Social Acceptability of White Collar Crimes in America. Digital Commons @ EMU, [online] Available at: <https://commons.emich.edu/honors/382/?utm_source=commons.emich.edu%2Fhonors%2F382&utm_medium=PDF&utm_campaign=PDFCoverPages> [Accessed 16 May 2021], 5.

[2] Hasnas, John, "Ethics And The Problem Of White Collar Crime" (2005) 54(3) American University Law Review<https://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1705&context=aulr> , 585.

[3] Martinez, J., 2014. Unpunished Criminals: The Social Acceptability of White Collar Crimes in America. Digital Commons @ EMU, [online] Available at: <https://commons.emich.edu/honors/382/?utm_source=commons.emich.edu%2Fhonors%2F382&utm_medium=PDF&utm_campaign=PDFCoverPages> [Accessed 16 May 2021], 5.

[4] Ibid, 6.

 

[5] Hasnas, John, "Ethics And The Problem Of White Collar Crime" (2005) 54(3) American University Law Review<https://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1705&context=aulr> , 588.

[6] ibid , 592.

[7] Zbrog, Matt, "Why Are White-Collar Crimes Rarely Investigated & Prosecuted?", Forensics Colleges<https://www.forensicscolleges.com/blog/follow-the-money/unpunished-financial-crimes>

 

[8] Hasnas, John, "Ethics And The Problem Of White Collar Crime" (2005) 54(3) American University Law Review<https://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1705&context=aulr> , 592.

 

[9] United States v. Bank of New England, 821 F.2d 844, 856 (1st Cir. 1987).

 

[10] United States v. Hilton Hotels Corp., 467 F.2d 1000, 1006 (9th Cir. 1972).

 

[11] Kaplan, Dean, "Piercing The Corporate Veil To Create Personal Liability", The Kaplan Group (Webpage, 2013) <https://www.kaplancollectionagency.com/debt-collection-2/piercing-the-corporate-veil/>

[12] Haines, Fiona, ‘White-collar and corporate crime’, in Crime and justice : an Australian textbook in criminology (2017), Lawbook Co, ISBN: 9780455218311, 173–192. 

 

[13] Ibid. 

 

[14] Haines, Fiona, ‘White-collar and corporate crime’, in Crime and justice : an Australian textbook in criminology (2017), Lawbook Co, ISBN: 9780455218311, 173–192. 

 

[15] Ibid. 

 

[16] "Piercing The Corporate Veil", Legal Information Institute https://www.law.cornell.edu/wex/piercing_the_corporate_veil>

[17] Ahmad, K. B, "PIERCING THE CORPORATE VEIL TO IMPOSE CRIMINAL LIABILITY ON CORPORATIONS" academia.edu<https://www.academia.edu/9453267/PIERCING_THE_CORPORATE_VEIL_TO_IMPOSE_CRIMINAL_LIABILITY_ON_CORPORATIONS> ,4.

[18] Vodafone International Holdings B.V. v. Union of India & Anr. [S.L.P. (C) No. 26529 of 2010, dated 20 January 2012].

[19] Ahmad, K. B, "PIERCING THE CORPORATE VEIL TO IMPOSE CRIMINAL LIABILITY ON CORPORATIONS" academia.edu<https://www.academia.edu/9453267/PIERCING_THE_CORPORATE_VEIL_TO_IMPOSE_CRIMINAL_LIABILITY_ON_CORPORATIONS> ,4.

 

[20] Bahadur, Krishna, "PERSONALITY OF PUBLIC CORPORATION AND LIFTING THE CORPORATE VEIL" (1972) 14(2) Journal of the Indian Law Institute

[21] Thompson, Robert B., "Piercing The Corporate Veil: An Empirical Study" (1991) 76(5) Cornell Law Review, 1048.

[22] "Piercing The Corporate Veil", Legal Information Institute<https://www.law.cornell.edu/wex/piercing_the_corporate_veil>

[23] Bahadur, Krishna, "PERSONALITY OF PUBLIC CORPORATION AND LIFTING THE CORPORATE VEIL" (1972) 14(2) Journal of the Indian Law Institute

[24] Ibid. 

[25] Haines, Fiona, ‘White-collar and corporate crime’, in Crime and justice : an Australian textbook in criminology (2017), Lawbook Co, ISBN: 9780455218311, 173–192. 

 

Coming Soon to a Courtroom Near You

Hollywood Shows Reinvent the Law

Author: Mylene Masangkay

Editor: Madhuli Kango 

“Law school is for people who are boring and ugly and serious.”

- Legally Blonde (2001)

 

   This is an article that some may find facetious towards the legal profession. But it isn’t; it’s probably facetious towards show business. When Hollywood (which is to say, by way of a disclaimer, used in this article to refer to the entire movie and TV industry) steps in, you know they’ll want drama, not the humdrum reality of a monotonous recitation of facts and their legal arguments.

 

   You’ll find that the popular films discussed below have been reimagined to fit the Hollywood bill. It can’t be all about the law; it has to be the dramatic parts only. And what if there weren’t any dramatic parts at all? That’s easy -- invent them!

 

   For those planning to get into the legal profession (the brave souls who are planning or about to enter, and the even braver ones who have already entered law school), a fair warning: reading this may be the kiss of death on that ambition. If all you know about the legal profession is what you see in the movies, the toning down of those courtroom scenes in films to reflect everyday realities may make you want to reconsider.

 

   Still here? Let’s go then!

 

   The most popular outlet of drama in Hollywood films is lawyers yelling at each other or a lawyer yelling at the witness. Who wants the monotone of an attorney just casually asking questions because there’s another trial to go to after this one? We don’t want the overworked lawyer; we want someone who handles just one case at a time. This lawyer doesn’t need to preserve his voice because he’s using it in just one court case. We want the booming voice of Tom Cruise telling Jack Nicholson, “I WANT THE TRUTH!” and Mr Nicholson yelling back at him, “YOU CAN’T HANDLE THE TRUTH!” Notice how there’s no question in that exchange, notwithstanding some experts having the gall to define cross-examination like this: “After a witness for one party has given their evidence (called 'evidence in chief'), the other party in the case, or their lawyer, can ask the witness questions about their evidence. These questions are called 'cross examination'.”[1]

 

   Sometimes, a victory calls for colour if they can’t do it with a loud voice. In one movie, everyone's enthralled by the almost-lawyer who walks into the courtroom, all dressed in pink, like it's her personal runway. Oh, but wait, almost-lawyer is not quite a lawyer yet. There isn't anything in the books that says this non-lawyer can just take over this case, notwithstanding the lack of objection from the opposing counsel, and the enthusiasm of the person this girl is going to represent.

 

   The girl begs to differ. “Massachusetts' Supreme Judicial Court Rule 3.03,” she says, as her friend brings the heavy book to the judge. No one can argue with a heavy book, as we all know in the legal profession. So, Miss Elle Woods, first year law student, gets her first courtroom victory and continues winning in life in her pink high-heeled shoes.

 

   Except, well, Massachusetts' Supreme Judicial Court Rule 3.03 is, according to the Massachusetts government, not for first year law students; it is for a “senior law student in an accredited law school, or a law school authorized by statute of the Commonwealth to grant the degree of bachelor of laws or juris doctor, who has successfully completed or is enrolled in a course for credit in evidence or trial practice, with the written approval by the dean of such school of his character, legal ability, and training”.[2]

 

   Whew! All those words just to say, “You got it wrong, Legally Blonde movie”? No wonder lawyers always look tired.

 

   But here’s the really big thing. Lawyers can win cases without knowing much about the law. You don’t believe me? Read on.

 

   In a lot of movies, lawyers can win the case in a number of ways:

 

  • Tugging at the heartstrings of the judge and/or the members of the jury

In A Time to Kill (1996), the lawyer character played by Matthew McConaughey defends a black father accused of having killed the white men who abducted, raped, and beat his 10-year old daughter. In his closing statement, Matthew asks the jury to close their eyes, and then he proceeds to deliver an almost-5-minute closing statement which has Matthew choking back tears towards the end.

 

   I don’t think Matthew says anything about any piece of evidence he has presented, but why should he? Evidence is nothing but a “verbal or written statements of witnesses, documents and other items used to support a party's case in court.”[3] But who needs evidence? Matthew’s voice breaking down as he finishes his speech means his client is innocent, right?

 

  • Being learned in irrelevant topics

Our favourite legal anachronism, first year law student Elle Woods of Legally Blonde (2001) fame. is seen taking over the case from a seasoned attorney, with practically everyone in the courtroom supporting this decision. When it’s time to cross-examine the witness, Elle finds that what she has so far learned about the law in school does not result in knowing the right questions to ask. She rambles on and the judge allows this (albeit with a confused warning), until Elle stumbles on something really helpful: the witness lies about what she did with her hair after getting a perm.

 

   Because “the rules of hair maintenance are simple and finite”, Elle finds the real culprit in the courtroom, and we in the legal profession are forced to ask, “Where can I find a book that teaches me to cross-examine a witness successfully like that? Not this mumbo-jumbo that says, ‘Questions that are not relevant to the proceeding will not be allowed in cross-examination. If a party wishes to pursue a line of cross-examination whose relevance to the proceeding is not immediately obvious, they should be prepared to explain the relevance of the questions to the court and persuade it to allow them.’[4]

 

  • Finding a surprise witness or a piece of evidence that the other party had absolutely no idea exists or can be discovered

This gem of a tactic presupposes the ignorance of the opposing party of matters relating to the case. In the previously mentioned well-acted, low-on-realism movie A Few Good Men (1992), the lawyer character played by Tom Cruise gets Jack Nicholson’s character into a courtroom yelling match with him by implying that a surprise unnamed witness will pop into the picture to prove that Jack’s statements are lies.

 

   Assuming, for the sake of argument, that a tough persona such as that character would truly submit to this feeble intimidation strategy, are surprise witnesses truly allowed in courts? And assuming again that surprise witnesses are allowed, would the opposing party not have gone through this detail in his own research? And for that matter, is threatening future impeachment of testimony really the way to go about it? This article written for Indiana University’s law school seems to imply that it’s not: “Any party may impeach the credibility of any witness with evidence suggesting that the witness’s direct testimony is unworthy of belief.”[5] Again, with this evidence! What do these people know?

 

   And finally, whoever heard of and insists on using rules of procedure in the conduct of court proceedings isn’t a real Hollywood movie lawyer or judge. How do we know this?

 

  • In Hollywood shows, judges do nothing but bang their gavel because everyone in their courtrooms is prone to outburst. “Order! Order!”

  • Judges never have to rule on an objection, especially if the lawyer keeps talking over the opposing counsel who’s indignantly expressing his objection. (Refer to an episode of How to Get Away with Murder, where the main character cross-examines a witness and refuses to stop with the badgering despite the opposing counsel having expressed his objection. What does the judge do instead of ruling on the objection? Refer now to the previous item.)

 

   These are just a few of the instances when Hollywood makes the law more exciting than it can be in reality. But who’s complaining? No one goes to the movies because they enjoy watching actors conform with reality. Cue Elle Woods walking out of the courtroom, flipping her perfect blonde curls, followed by her adoring public, victorious because Elle reads fashion magazines and not law books.

 

________________________

Footnotes:

[1] LawAccess NSW, Legal dictionary - A to L (accessed June 2021) <https://www.lawaccess.nsw.gov.au/Pages/representing/lawassist_legalwords.aspx#C>

[2] Commonwealth of Massachusetts, Supreme Judicial Court Rule 3:03: Legal assistance to the Commonwealth and to indigent criminal defendants and to indigent parties in civil proceedings (2012) <https://www.mass.gov/supreme-judicial-court-rules/supreme-judicial-court-rule-303-legal-assistance-to-the-commonwealth>

[3] LawAccess NSW, Legal dictionary - A to L (accessed June 2021) <https://www.lawaccess.nsw.gov.au/Pages/representing/lawassist_legalwords.aspx#E>

[4] Gotocourt, What Happens During Cross-Examination? (accessed June 2021) <https://www.gotocourt.com.au/criminal-law/what-happens-cross-examination>

[5] Maurer School of Law-Indiana University Bloomington, Cross-examination and Impeachment (accessed June 2021) <https://law.indiana.edu/instruction/tanford/b723/10impeach/T10.pdf>

 

The #MeToo Movement and Australia's Defamation Laws

Author: Meenakshi Iyer

Editor: Madhuli Kango 

   One of the principal features imbibed in the Australian Constitution is the Rule of Law. Gleeson CJ describes the Rule of Law as an assumption that underlies the political process that makes our very system of government work in practice.[1]Dicey believed that there were two important aspects to the concept of rule of law and these were; the supremacy of regular as opposed to arbitrary power and, equality before the law.[2] Although the first aspect of it i.e., the absence of arbitrary power can be clearly seen as adopted by the constitution through various sections such as s 9, s 128, etc. the equality aspect of the same can be perceived to be absent in practical reality.

 

   As Sarah Judd asserts, the justice system is designed in a way that it proves insufficient for the survivors of violence as well as harassment.[3] Further emphasised by Charlotte Shane is the fact that our existing structures fails to prioritise parity of the genders because the structures act as a mechanism to enable patriarchal hierarchies where justice and restitution are impossible.[4]

A notorious example of this insufficiency of the justice system in Australia is the #Metoo movement and the defamation suits that flowed thereafter. The central issue put forth by the #Metoo movement was the pervasiveness of sexual harassment across every country in the world. The #MeToo movement aimed at eliminating some of the inequalities women experienced in speaking up about sexual harassment. It was argued that this sexual harassment not only undermined a woman’s authority in the workplace but also reinforced sexual stereotypes along with reducing their image to a mere sexual object. The #Metoo movement was a crucial tipping point in history that began as a Hollywood sexual assault scandal and soon transformed into a public reckoning across the globe.

 

   As per a research conducted in 2018 by the Australian Human Rights Commission, approximately 72% of Australians above the age of 15 have experienced sexual harassment in their lifetimes.[5] In the context of legal profession, sexual harassment can be seen to be even more prevalent. In a survey led by the International Bar Association and Acritas which included approximately 7000 individuals across 135 countries, it was found that about one in every two female respondents and one in every three male respondents, in the legal profession were found to be bullied or sexually harassed.[6] This survey was further supported by the study conducted by the Victorian Legal services board that highlighted the fact that women in the legal sector were significantly more likely to have experienced sexual harassment in their careers as compared to their male counterparts. Another statistic that the study put forth was the women in legal profession experienced higher rates of sexual harassment than compared to women in any other Australian workplace.[7]

 

   Thus, in this lax and uncertain regulatory environment, the #MeToo-style publication of sexual harassment and violence claims, could quite possibly be a very bold and effective strategy for women to attain justice, by means of the ‘tribunal of the public’. However, given the character of defamation law in Australia, there is great difficulty attributed to establishing the truth of allegations. Thus, throughout the world, when women came together in solidarity to fight against their sexual assaulters, the movement could not garner much momentum in Australia. The reason for it being the strong defamation laws of Australia which can lead to people making the allegations facing a threat of legal action.[8]

 

   The defamation law in Australia tends to protect a person against published statements that may cause harm in their personal or professional life by having a direct impact on their reputation.[9] Thus, the law in Australia puts the legal onus on the person making the allegation instead of other countries like the United States of America, where the onus is on the accused. Hence, it can be clearly seen that this law has proven as a major impediment to the #Metoo movement in Australia because it can be wrongfully used to silence someone who has actually been assaulted or harassed. An example of this would be the case of Rush v Nationwide News (No 7) [2019] FCA 946, where the federal court sent a clear message to the survivors and allied that they need to be careful when they speak up in the context of #Metoo. In the same case the judge also found that the appellants were reckless to the truth and falsity of their defamatory imputations and believed that the gravity of it was further exemplified by the #Metoo movement.

 

   The Supreme Court of Western Australian in Johnston v Ramsden [2019] WASC 84 reinforced this judicial inclination to contextualise proceedings in the #MeToo era. In this case, the issue was whether pinching a woman’s bottom constituted an indecent assault. In that case, the Magistrate found that in the ‘modern era of twerking and grinding, simulated sex and easy access to pornography’, a pinch on the bottom is not inherently inappropriate. In an ABC news article, journalist Hadeel Al-Alosi stated that “effectively shifts the blame on victims and implies that the sexualisation of society means women consent to being sexually harassed, which is far from the truth.” Thus, both those decisions clearly imply that the Australian Legal system has not yet caught up with the cultural shift in attitudes towards the survivors.

 

   As per Tarana Burke, the founder of the #Metoo movement, the law, in being so stringent, has debilitated the #metoo movement in Australia[10] as it has stifled the reporting of allegations of sexual harassment in fear of a defamation suit.  It is one of the biggest barriers to publishing stories concerning public interest matters as the law is stacked against them.[11]It tends to prioritise the right to reputation instead of the freedom of expression. This could also be due to the fact that Australia does not have a bill of rights or any explicit constitutional guarantee of freedom of speech. [12]

 

______________________

 

Footnotes:

 

[1] Chief Justice Gleeson, 'A Core Value' (Speech, Judicial Conference of Australia Annual Colloquium, Canberra, 6 October 2006).

[2] A V Dicey, Introduction to the Study of the Law of the Constitution (10th ed, 1960) 202-03.

[3] Sarah Jaffe, ‘The Collective Power of #MeToo’ (2018) 65(2) Dissent 80.

[4] Ibid.

[5] https://theconversation.com/72-of-australians-have-been-sexually-harassed-the-system-we-have-to-fix-this-problem-is-set-up-to-fail-141368

[6] https://www.ibanet.org/bullying-and-sexual-harassment.aspx

[7] https://lsbc.vic.gov.au/sites/default/files/2020-03/Sexual%20Harassment%20in%20the%20Victorian%20Legal%20Sector%20Report.pdf

[8] Frances Mao, ‘The ‘wary’ #MeToo conversation in Australia’ BBC News (online, 18 December 2018) .

[9] Slater Gordon, ‘Defamation’ Slater Gordon (Web Page, 29 April 2020) .

[10] Kate Sullivan, ‘Has #MeToo failed in Australia? It’s complicated, says the woman who started it’, SBS News (Online, 14 November 2019).

< https://www.sbs.com.au/news/has-metoo-failed-in-australia-it-s-complicated-says-the-woman-who-started-it>

[11] Media, Entertainment & Arts Alliance, ‘Defamation’, The war on journalism (Web page, 2 May 2019).

< https://pressfreedom.org.au/defamation-a834b5a881ce>

[12] Ibid.

 

The Criminal Law Conundrum of a Public Rape Accusation

Author: Mylene Masangkay

Editor: Madhuli Kango 

 

    I. Introduction

   The “Me Too movement” reached Australian politics when one month ago, Brittany Higgins, a former staffer to the Minister for Defence Linda Reynolds, alleged that she was sexually assaulted two years ago by an unnamed male colleague right inside the Parliament House. As if this were not traumatic enough, Ms. Higgins claimed to have been pressured into not reporting the matter to the police, effectively being made to believe that doing so would jeopardise her career. 

 

   Since then, several other allegations of rape and sexual assault committed by powerful politicians have surfaced, the most controversial of which is perhaps the historical rape allegedly committed by Attorney-General Christian Porter against a 16-year-old girl. This article will focus on analysing the Christian Porter case (“the Case”) by looking at the facts, the principles of criminal law, and their consequences. 

 

   II. The Case

   In February 2021, an anonymous letter was sent to several politicians, including Prime Minister Scott Morrison and Senators Penny Wong and Sarah Hanson-Young, in which it was alleged that a 16-year-old girl was raped in 1988 by a man who is currently a member of the Cabinet.[1] The name of the alleged perpetrator was not released to the public; however, Mr. Porter decided to reveal himself as the person being accused in the aforesaid letter. The Attorney-General admitted having met the woman in Sydney in 1988, but denied having had sexual relations with her.[2] It is reported that before the young woman commited suicide in 2020, she filed a report with the New South Wales Police. It is unclear if the NSW Police was able to launch a formal inquiry, but they have since confirmed that the investigation into the matter was closed.[3]

 

   III. Principles of Criminal Law

   There are four important principles of criminal law: the presumption of innocence, burden of proof, right to remain silent, and double jeopardy.[4] For the purpose of this article, the first two of these principles shall be discussed.

 

The Presumption of Innocence

   Australia is a signatory to seven core international human rights treaties, which contain the presumption of innocence clause.[5] In almost all jurisdictions, any person accused of having committed a crime is presumed innocent until proven guilty by competent authority, usually a magistrate, judge, or a jury. No amount of evidence available prior to a determination of guilt beyond a reasonable doubt shall overcome this basic presumption.

 

Burden of Proof

   The burden of proving that a person charged with an offence is guilty beyond a reasonable doubt lies on the prosecution. Should the prosecution fail to discharge this burden, the defendant must generally be acquitted, without giving regard to the strength or weakness of the defence he or she put up. It is not up to the defendant to prove his or her innocence.

 

   IV. Analysis

   This analysis does not aim to place merit on either side of the argument. It will focus on applying the aforementioned criminal law principles to the publicly known facts of the Case.

 

   There exists a challenge in proving rape because it is extremely rare for a third person to witness the commission of the offence, thus, usually making a rape case a he-said-she-said battle. In the Case herein analysed, there are the conflicting accounts of the rape as discussed by contacts of the alleged victim[6], who passed away in June 2020, and was subsequently denied by Mr. Porter.[7]

 

   When anything plays out in the public arena, especially in the age of social media when practically anyone can offer an opinion, the job of the magistrate or the jury of analysing evidence and making a determination of guilt or innocence is replaced by myriads of differing judgements that sometimes do not take into consideration the facts and any piece of evidence available. In any instance of trial by media[8], which is understood to be any circumstance where the public is apprised of the going-on about a certain case, there is an implied invitation to pick a side. 

 

   The criminal law concepts of presumption of innocence and burden of proof are rendered pointless where salacious headlines and selective perusal of articles regarding the case overpower detailed analyses of every fact available. Who has the time after all to dig deeper into matters when a user can type only 280 characters at a time on Twitter?

 

   In this case, Mr. Porter decided to out himself as the alleged wrongdoer, but it may also be argued that someone resourceful enough would have put two and two together anyway to arrive at the conclusion that it was the Attorney-General being accused of the offence. Does pre-empting a foreseeable eventuality afford Mr. Porter the right of being presumed innocent of this offence? In many sectors, especially where emotions are heightened and in view of the other rape and sexual assault allegations coming out at this time, it seems that it does not.[9]

 

   And what of the alleged victim? The young woman unfortunately took her own life last year and most of the details of this case that can be attributed to her, fall in the hearsay category[10], with them only being recounted to the media by those who were her close contacts. Whatever pieces of evidence that the alleged victim had in her possession that may theoretically discharge the burden of proof required of the prosecution are unusable at this stage, and perhaps, ever.

 

   V. Conclusion

   This is probably one of those instances where no amount of additional information, except if the piece of information is truly conclusive, can put to rest the issue at hand. Regrettably, whatever opinion the public has formed regarding the weight of the young woman’s accusation or the guilt or innocence of Mr. Porter shall most likely remain unverified and this case may go down the history books as one that either let a crime go unpunished or ruined the reputation of an innocent man.

 

[1] Scott Morrison, senators and AFP told of historical rape allegation against Cabinet Minister (February 2021) < https://www.abc.net.au/news/2021-02-26/pm-senators-afp-told-historical-rape-allegation-cabinet-minister/13197248 >

[2] Read the full press conference transcript, Christian Porter denies historical rape allegation (March 2021) < https://www.abc.net.au/news/2021-03-03/christian-porter-press-conference-transcript/13212054 >

[3] NSW Police clarify handling of historical rape allegation denied by Christian Porter (March 2021) < https://www.abc.net.au/news/2021-03-04/nsw-police-clarify-historical-rape-allegation-christian-porter/13215504 >

[4] Legal Services Commission of South Australia, General Principles in Criminal Law (March 2018) < https://lawhandbook.sa.gov.au/ch12s02.php >

[5] Attorney-General's Department, Presumption of innocence: Public sector guidance sheet (accessed March 2020) < https://www.ag.gov.au/rights-and-protections/human-rights-and-anti-discrimination/human-rights-scrutiny/public-sector-guidance-sheets/presumption-innocence >

[6] Sexual assault counsellor says Christian Porter's accuser told her of alleged rape eight years ago (March 2021) < https://www.abc.net.au/news/2021-03-08/woman-told-counsellor-of-porter-rape-allegations-eight-years-ago/13221438 >

[7] Christian Porter identifies himself as unnamed Cabinet minister and strenuously denies historical rape allegation (March 2021) < https://www.abc.net.au/news/2021-03-03/christian-porter-denies-historical-rape-allegation/13206972 >

[8] Wikipedia, Trial by media (March 2021) < https://en.wikipedia.org/wiki/Trial_by_media >

[9] The Sydney Morning Herald, Perception rules all: Christian Porter’s political career is over (March 2021) < https://www.smh.com.au/national/perception-rules-all-christian-porter-s-political-career-is-over-20210303-p577jv.html >

[10] Sydney Criminal Lawyers, What is Hearsay Evidence? (March 2014) < https://www.sydneycriminallawyers.com.au/blog/what-is-hearsay-evidence/ >

 

Does the Jury System work Fairly in Every Case?  

Author: Meenakshi Iyer

Editor: Madhuli Kango 

   Trials by jury involve both the best and worst aspects of democracy in one.[1] Where on one hand, the jurors in England went to prison themselves instead of convicting Quaker William Penn, contrastingly, on the other, Socrates was sentenced to death by the jurors in Athens for committing religious crimes against the state. [2]

    This article will attempt to show that despite the legal system’s multiple efforts at making a trial fair and adherent to the rule of law, a jury’s inherent biases, one way or the other play an important role in deciding the outcome of the cases, thereby threatening the integrity of the judicial system.

A jury trial is a legal proceeding where a jury settles on a decision, which then directs the actions of a judge.[3] The members of a jury are a group of independent citizens. They have no interest in the case before them, nor is their judgment coloured by the regular experience of the business of the Court.

 

   Their decision is based on the evidence in front of them and testimonies of the witnesses.

   The right to a jury trial is one of the most crucial rights that a criminal respondent has while appearing in court. Section 80 of the Australian constitution provides for a trial by jury.[4] This section has been derived from a provision mentioned in the United States' Constitution[5], which is based on the notion that individuals accused of serious offences are qualified to have their blame or blamelessness controlled by the judgment of their peers.[6]

Juries are an important element of the Australian criminal justice system. There is a constitutional guarantee of their utilization in specific circumstances. Be that as it may, there is still evidence of the disproportionate effect of many factors like inherent biases, expert evidence, etc on jury deliberations. Juries may face specific problems in interpreting certain types of expert evidence.

 

   There have been numerous discussions about the points of interest and burdens of the jury framework; the ability or deficiency of the members of the jury as fact-finders, and the consistency or inclination of the equity they direct. The jury has been depicted by one author as "an energizing and brave trial in the lead of genuine human issues." Since they are fact-finders, juries are, in some cases, expected to play out a job like a falsehood indicator, particularly when given testimony from witnesses.[7]

 

   In relation to export witness testimony, Kovera, Russano, and McAuliffe have proposed that not only does it influence juror decision-making but may also assist the jurors in making better decisions in relation to eyewitness testimonies.[8]The available literature additionally demonstrates that jurors consistently find the expert's professional experience to be a crucial factor in determining their credibility over factors such as the absence of inclination or impartiality and academic training.[9]

 

   On the contrary, while juries come with plenty of benefits, there are downsides to it too. Juries are constituted by 12 adults from the Australian electoral roll. There are no requirements in terms of educational qualifications before someone can be selected as a part of the jury, thus proving a barrier for the less-educated to understand expert witness testimony which involve scientific terms and evidence. Seldomly is expert evidence presented in a way that can be understood and comprehended by the layperson.

 

   For a court to arrive at a properly informed decision about the expert evidence before it, it is rudimentary that the Court must be able to acknowledge that evidence.[10] post-trial interviews of jurors in six criminal trials uncovered that member of the jury who conceded trouble in understanding expert evidence nonetheless proceeded to convict. When jurors are unable to comprehend the expert's testimony, they have been shown to take heuristics, or mental shortcuts depending on the appearance and communication skills of the expert as a measure of their credibility.[11]

In the context of sexual assault cases, Convictions rely heavily on circumstantial evidence as opposed to corroborative ones[12], jurors tend to draw their conclusions from their existing knowledge. Hence, the jury plays a primary role in deciding the outcome of the cases thus, it is necessary to consider their importance in connection with the credibility of a witness.

 

   Extensive research in the area has shown that jurors in their deliberation are influenced by several stereotypes about ‘appropriate’ behaviour that should have been followed[13]. It has also been established by a variety of studies that the jury’s perception of the witnesses’ credibility is not only influenced by the content of their testimony but also by the way in which it was presented.[14][15] Studies show that complainants who do display emotions like being visibly upset are regarded as more cautious as well as less responsible for their rape than women who remained calm.[16]

When an assault is different from what is dictated by the ideal offense stereotypes and when victims stray away through their behaviour from victim or gender stereotypes[17], the victims are more likely to be blamed for their assault[18]while simultaneously their claims are treated with enhanced skepticism [19].

 

   Another factor that heavily affects the jury is the media. The camera has infiltrated every nook and cranny of the world imaginable. The rationale behind using them is that they result in a better–informed citizenry. However, it can be argued that it has become a perverse form of entertainment. Whether it be social media or mass media, the institution’s distinct ability to shape societal attitudes through its utilization of its power of publication and narrative techniques is simply unmatched. Media coverage of racial and sexual violence perpetuated the existence of harmful stereotypes about victims and perpetrators thereby reinforcing the social acceptance of these stereotypes.[20]

In conclusion, it can be said that juries are not always fair and are affected by several factors mentioned above that directly affect the outcome of the case.

 

______________

Footnotes: 

 

[1] Jeffrey B. Abramson, We, the Jury: The Jury System and the Ideal of Democracy: with a New Preface (Harvard University Press, 2000).

[2] Ibid.

[3] ‘Jury trial and verdict’, Communites and Justice (Web page).

<http://www.courts.justice.nsw.gov.au/Pages/cats/jury_service/trial_verdict.aspx>

[4] Commonwealth of Australia Constitution Act 1900 (Imp).

[5] Constitution of the United States of America 1787.

[6] Graham Fricke, ‘Trial by Jury’ (Research Paper No 11/1996-97, Law and Balls digest group)

<https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/RP9697/97rp11#INTRO>

[7] Suzanne Blackwell & Fred Seymour, ‘Expert Evidence and Jurors’ Views on Expert Witnesses, (2015) 22(5) Psychiatry, Psychology and Law, 673-681.

[8]Suzanne Blackwell & Fred Seymour, ‘Expert Evidence and Jurors’ Views on Expert Witnesses, (2015) 22(5) Psychiatry, Psychology and Law, 673-681.  

[9] Ibid.

[10] Justice J D Henry, ‘EXPERT EVIDENCE – A VIEW FROM THE BENCH’ (Conference Paper, Australian Lawyers Alliance National Conference, 22 October 2016).

[11] P. Rosenthal, ‘Nature of jury response to the expert witness’,(1983) 28 Journal of Forensic Science, 528-531.

[12] Denise Lievore, Victim Credibility in Adult Sexual Assault Cases (Trends & Issues in crime & criminal justice No. 288, November 2004).

[13] Mark Kebbell and Nina J Westera, ‘Promoting pre-recorded complainant evidence in rape trials: Psychological and practice perspectives’ (2011) 35 Criminal Law Journal 376.

[14] Amina A Memon, Aldert Vrij and Ray Bull, Psychology and law: Truthfulness, accuracy and credibility (John Wiley & Sons, 2003).

[15] Olga Tsoudis and Lynn Smith – Lovin, ‘'How Bad Was It? The Effects of Victim and Perpetrator Emotion on Responses to Criminal Court Vignettes' (1998) 77(2) Social Forces 695.

[16] F. W. Winkel and L Koppelaar, ‘Rape Victims' Style of Self-Presentation and Secondary Victimisation by the Environment' (1991) 6(1) Journal of Interpersonal Violence 29.

[17] Janice Du Mont, Karen-Lee Miller and Terri L Myhr, ‘The role of real rape and real victim stereotypes in the police reporting practices of sexually assaulted women’ (2003) 9(4) Violence against women 466.

[18] Julie Horney and Cassia Spohn, ‘The influence of blame and believability factors on the processing of simple versus aggravated rape cases’ (1996) 34(2) Criminology 135.

[19] Jane P Sheldon and Sandra L Parent, ‘Clergy’s attitudes and attributions of blame towards female rape victims’ (2002) 8(2) Violence against Women 233.

[20] Mia Moody-Ramirez & Hazel Cole, ‘Victim Blaming in Twitter Users’ Framing of Eric Garner and Michael Brown’ (2018) 49(4) Journal of Black Studies 383.

 

Defamation: A Dichotomic Set of Scales

Author: Eamon Doyle

Editor: Madhuli Kango 

   For Lawmakers, the reputational tort of defamation is often viewed as a dichotomic set of scales, each side with competing public policy interests. On one side of the scale is the protection of personal reputation consideration which ensures that public discourse is kept healthy, and individuals are afforded protection from those seeking to tarnish their reputation. However, on the other side is the freedom of expression factor. In Australia, it is arguable that the protection of personal reputation has long been outweighing freedom of expression, resulting in Australia being branded as the defamation capital of the world. This is reinforced by the fact that Australians experience twice the amount of defamation litigation than our UK counterparts, despite only having one-third of the population. 

 

   As a result of the imbalance, most jurisdictions around Australia have passed sweeping reforms to defamation legislation in favour of freedom of expression. Such changes are invariably aimed at reducing the overall amount of defamation cases, and promoting settlement when it does take place. The new provisions have been passed in three states - NSW, Victoria and South Australia, with the other jurisdictions expected to pass the legislation by the end of 2021. Defamation laws in Australia were last updated in 2005, when all the States and Territories agreed to be governed by uniform legislation in order to prevent forum shopping by potential litigants. 

 

   The ensuing discussions will summarise the changes made to the defamation law in Australia. 

 

   Procedural changes

   Serious harm threshold

   One of the most significant reforms to the defamation law is the introduction of the serious harm threshold. This now means that plaintiffs must show that a publication has caused, or will be likely to cause, serious harm to the plaintiff's reputation. The question of whether a publication has caused serious harm to a person’s reputation is to be determined by a judge, not a jury. 

 

   Introduction of Single Publication Rule

   Another significant change to the defamation law is the introduction of the single publication rule. This essentially means that the limitation period on a publication will run from when it’s first uploaded. Under the previous laws, time began each time the material was uploaded or electronically sent. The aim of these changes is to keep defamation law contemporaneous with developments in technology.

 

   Requirement for a Concerns Notice

   Before defamation proceedings are commenced, plaintiffs must serve a Concerns Notice on the defendant and wait 14 days before commencing litigation. By doing this, lawmakers are incentivising settlement in relation to potential claims, as well as utilising the new offer of amends provision (below).

 

   Clarification of Offers to make Amends

   Defamation laws currently provide a defence where a reasonable offer of amends is not accepted. The new reforms make a number of changes including that an offer of amends must be open for acceptance for at least 28 days. Further, the new rules provide that only a judge can be responsible for determining the availability of this defence.

 

   New Defences

   Public Interest Defence

   Significantly, the new reforms introduce the defence of public interest. This change is modelled off both the existing defence of qualified privilege, as well as United Kingdom defamation legislation. There are essentially two elements that the defendant must show in order to invoke this defence. 

 

   i) The matter concerns an issue of public interest

  ii) The defendant reasonably believed the publication of the matter was in the public interest. 

 

   Defence of Scientific or Academic Review

   The reforms to defamation law also introduces a defence of peer reviewed matters in the scientific and academic realms. In order to successfully evoke this defence, a defendant must prove three elements.

i) The matter was published in a scientific or academic journal

ii) The matter relates to a scientific or academic issue

iii) The matter’s scientific or academic merit was independently reviewed prior to the publication by an editor of the journal or an expert in the field.

However, if the plaintiff shows that the material was not published honestly, or for the purpose of the advancement of education, then the defence will be quashed. 

 

   What next?

   Many of these changes have been considered overdue in Australia. It will be interesting to see where the new balance on the scales will lie between the two competing interests of defamation law, namely freedom of speech and protection of reputation. Further, will Australia’s reputation as the defamation capital of the world remain?

 

Animal Rights versus Human Benefits

Author: Meenakshi Iyer

Editor: Madhuli Kango 

   Since the very beginning of the world, there have been several heated debates about numerous topics, however a fact that remains undisputed is that Animals have existed on this planet long before human beings and humans for several centuries have been dependent on them for their survival be it for food, protection, illicit-substance detection etc. However, somewhere along the way this dependence turned into blatant exploitation thereby giving rise to one of the heavily contested topics of the past decade which is “animal rights.” Thus, this article will look at the concept of animal rights and the legal and moral arguments surrounding the same.

 

   Animal right is defined as the concept according to which animals are entitled to the possession of their own existence and have the most basic right of living free from human exploitation and abuse.[1] Thus, the proponents for animal rights attempt to distinguish animals from the inanimate object that they are most often considered by exploitative industries and the law. The basic principle surrounding animal rights is autonomy.[2] The fundamental ideology underlying the animal rights argument is that human beings and animals are equal.

 

   Tom Regan, an American philosopher who specialized in animal rights theory, in his book “the case for animal rights”[3]puts forth that the use of animals should be totally abolished in science, in commercial animal agriculture along with the complete elimination of commercial sport hunting and trapping. He believes that the basal crime that human beings commit is perceiving animals as their resources “to be eaten, or exploited for sport or money.” Reagan 's main argument supporting animal rights is that they are sentient beings which is proven by their ability to interact with their environment. He is of the opinion that since these are sentient they have inherent value, and thus should be treated as an end, not a means.

 

   In contrast, numerous issues and discrepancies can also be found in Regan’s argument. The foremost being in his argument of animals being sentient beings. Regan believes that animal’s sentient value should give them rights however if sentient value is considered enough to grant something rights, then everything in nature should have rights. The primary example being that of plants and trees. Plants and trees are able to perceive sunlight and a lot of them move towards it. Another example of the same is the touch me not plants whose leaves tend to close up when touched. All these examples clearly demonstrate the plants are sentient beings too and therefore should have rights as well which in reality is almost impossible to achieve.

 

   In the context of Australia, there is very little animal welfare legislation at the national level. Therefore, most of the legislations concerning animal welfare is at the state and territory level where each state has its own distinct animal welfare legislation.[4] For example, the Australian Capital Territory’s legislation is called the Animal Welfare Act 1992, in New South Wales it’s the Prevention of Cruelty to Animals Act 1979 and in South Australia it's called the Animal Welfare Act 1985. Likewise, Victoria, Tasmania, Queensland, Western Australia and the Northern Territory too have their own separate version of an ‘animal welfare act.’ All of these acts prohibit cruelty to animals however each of these acts contain certain exceptions which exclude some animals from these protections. These provisions are specifically aimed at animals which are defined as ‘stock’ or farm animals, or animals used in research. Thereby, these provisions suggest that the law tends to protect or exempt animals by their value or use to humans.[5]

 

   Thus, a consequence of accepting animal rights is that humans would no longer be able to use them for experimentation. It has additionally also been observed that toxicological testing produces far more suffering than just overt cruelty. It has also been seen that housing animals under conditions that are convenient for us but different from their biological natures far exceed the suffering that is generally produced by invasive research protocols.[6] However, it can also be argued that researchers are not intentionally malicious but are rather motivated by decent intentions for example to further knowledge, cure disease, etc. Therefore, a new set of concepts are needed to discuss the issues of research animal use that go beyond the single elements of cruelty and kindness.

 

   Thus, to conclude the totality of the arguments stated above, I believe the reform that needs to be brought in should address not only animal welfare or suffering but also its use against human control and use which may be compatible with decent lives for animals. The problem currently surrounding this debate is that the interests of animals are not counted at all or it is seen that human interests tend to outweigh all others. Hence, once the animals’ interests are really taken into account, several of our practices may not possibly be justified.

 

_________________

 

Footnotes:

[1] Inc. US Legal, "Animal Rights Law And Legal Definition | Uslegal, Inc.", Definitions.Uslegal. Com (Webpage, 2021) <https://definitions.uslegal.com/a/animal-rights/>.

[2] https://thehumaneleague.org/article/animal-rights

[3] https://www.wellbeingintlstudiesrepository.org/cgi/viewcontent.cgi?article=1003&context=acwp_awap

[4] World Animal Protection (2 November 2014). "Australia".

[5] https://www.animalsaustralia.org/issues/codes-of-cruelty.php

[6] Rollin, Bernard E. “Animal Rights as a Mainstream Phenomenon.” Animals : an open access journal from MDPI vol. 1,1 102-15. 19 Jan. 2011, doi:10.3390/ani1010102

 

Moving the Australian Project Forward: Indigenous Recognition in the Australian Constitution

Author: Eamon Doyle

Editor: Madhuli Kango 

   I. Introduction

   Indigenous culture in Australia significantly pre-dates the inscribing of the Constitution, yet until recently, this history had remained in the periphery of Australian federal law. In 2017, a National Constitutional Convention was held, in which Aboriginal and Torres Strait Islander people were brought together to discuss what changes could be made to the Constitution to properly recognise their place in Australia’s history and laws. The product of this convention was the “Uluru Statement from the Heart,” a proposal for the establishment of a First Nations Voice to be enshrined into the Australian Constitution. The Federal Government acknowledged this statement, and subsequently created a co-design process, in which submissions would be made as to how this constitutional enshrinement would take shape. While moments like the 2017 convention indicate an improvement in the extent Indigenous Australians are represented in the Constitution, the situation remains complex. 

 

   II. What does the Constitution currently say?

   At the present moment, Indigenous Australians are not expressly mentioned in the constitution, but many High Court challenges to parliament on the power to make or restrict laws pertaining to indigenous peoples have fallen under s 51 (xxvi), also known as “the races power.”

 

   The races power is what is referred to as a head of power. By this, it is understood that Commonwealth Parliament does not have the legislative ability to create laws on whatever topic it likes, instead it can only create laws that expressly, or sometimes by implication, fall under a head of power. As such, the races power, which until 2017 failed to include Aboriginal and Torres Strait Islander peoples, grants parliament the power to pass laws about the people of any race. It is important to note, however, that the races power does not restrict the Commonwealth to making laws representing the interests of these Indigenous communities; for example, in the case of Kartinyeri v Commonwealth (1998), the Commonwealth government was successful in arguing that they had the legislative ability to pass laws allowing construction on sacred indigenous land without permission. This is because the races power has been drafted and subsequently interpreted in such a way that allows the creation of laws that may disadvantage Indigenous Australians.

 

   Another area of discrimination is found in section 25, which declares that states are given the legislative ability to ban people from voting in State elections based on their race. This is now prevented by virtue of the Racial Discrimination Act (1975) which overrides racially discriminate State and Territory legislation pursuant to section 109 of the Constitution. This section provides that if a State law is inconsistent with a Commonwealth law, the Commonwealth law shall prevail. While having little effect today, s 25 is the very antithesis of the modern, forward-thinking, and multicultural nation that Australia can be, and therefore has no place in the Constitution.

 

   In the past, changes to the Constitution have coincided with important developments to recognise the rights of Indigenous Australians. For example,  section 127, which has now been repealed, held that Indigenous Australians would not be included in population counts. This fundamentally racist provision was removed in 1967 by referenda, with an overwhelming high proportion of Australians (90.77%) voting to strike out s 127. This indicates that although constitutional change is difficult to achieve, requiring a majority number of votes in a majority of states (only being successful 8 times from 44 proposals), changes in societal attitudes and sentiment can develop such that change can take place. 

 

   III. Moving Forward

What is next for the Constitution? The current proposals are numerous and evolving. They include efforts to:

 

1.   Delete s 25, thereby aligning Australia with the values of a forward-thinking and multicultural nation;

2.   Insert a statement recognising the rights of Indigenous Australians as these land’s first peoples;

3.   Delete s 51 (xxiv) (“the races power”), thereby replacing it with a new, re-drafted version that limits parliament to make laws that benefit indigenous Australians (and by implication, other races). 

 

   However, difficulty arises when it comes to alteration of the races power, which must be dealt with tactfully. Many existing laws that benefit indigenous people, such as native title, are only valid because they fall within parliament’s legislative powers by virtue of s 51(xxiv). Therefore, deleting the races power would invalidate all of these laws. Considering this, it is not a matter of simply removing the races power, but also ensuring that it is replaced with a power that validates current laws benefiting Indigenous Australians. These efforts can be assisted by:

 

4.  Inserting a new section that expressly prohibits negative racial discrimination against any race and allow laws that acknowledge and respect the peoples of any race, for example laws that uphold cultural heritages; 

5.  Enacting a constitutionally enshrined Voice to Parliament which allows indigenous peoples to work with the government on laws that affect indigenous peoples.[1]

 

   The constitutionally enshrined Voice to Parliament has, however, been met with scepticism and criticism, with many arguing that it will create a “third chamber of parliament” that will dilute the legislative process [2]. Conversely, others highlight the need for an advisory approach that will ensure an indigenous voice is heard when the parliament makes laws about Indigenous Australians.

 

   IV. Conclusion

   While steps have been made to advance the cause of Aboriginal and Torres Strait Islander peoples in Australia, there is still  much that needs to be done before Indigenous Australians are adequately accounted for in the Constitution. In June 2021, 2500 submissions were made to the Federal Government's Indigenous Voice Co-design process, which have overwhelmingly supported constitutional enshrinement (90% of the total submissions) [3]. It is the hope that these submissions will help form the Voice to Parliament and the basis for various other forms of constitutional change, to properly recognise, acknowledge and accept Australia’s Indigenous heritage in the cause for a united Australia. 

_____________________

Footnotes:

[1] ANU College of Law, see Justine Poon, ‘Constitutional Recognition Explained in four minutes’, (Video, 10 August 2015)<https://law.anu.edu.au/news-and-events/news/constitutional-recognition-explained-four-minutes>

[2] Call Wahlquist, “Indigenous Voice Proposal ‘Not Desirable’, Says Turnbull”, The Guardian (Webpage, 2017)<https://www.theguardian.com/australia-news/2017/oct/26/indigenous-voice-proposal-not-desirable-says-turnbull>

[3] Damien Carrick,  “Overwhelming support for constitutionally enshrined indigenous voice” (Recording, 29 June 2021) <https://www.abc.net.au/radionational/programs/lawreport/overwhelming-support-for-indigenous-voice-in-constitution/13401840

 

Policing Powers : Use of Excessive Force 

Author: Apoorva Singh

Editor: Rebekah Prystupa

   Police force, the supposed protector of the people, has now evolved into an institution most feared by the people. People fear the power of unaccountability that the police force has and the way it can always justify its actions and is sheltered by and from the law. Under International Human Rights Law everyone is and should be treated equally, ideally the police force is used to uphold this rule and ensure compliance. Unfortunately however, policing powers have become the major violators of the rule of discrimination and instances of discriminatory behaviour by the police are rising rapidly.

 

   The very recent and unfortunate event of George Floyd in the United States has forced each and every nation to monitor their policing powers and their use of force. Recently, Australia has also fallen prey to the brutality of the policing force which is faced by the marginalised groups within our society. In South Australia, a video emerged of three policemen arresting an Indigenous boy, one police officer was shown to be striking the boy while the other two officers were restraining him. A similar case was seen in NSW where during an arrest a police officer was filmed kicking an Indigenous teenager. 

 

   Australia and New Zealand use of force principle guide states that police officers are allowed to use force only in cases where it is necessary and reasonable to do so, and excessive force shall not ever be used by the policing powers. This guideline raises the question of what does reasonable use of force means? And when is it reasonable for police officers to use force?

 

   Reasonable use of force 

   There is no universal definition for the reasonable use of force, but in NSW reasonable use of force is circumstantial and is outlined in section 231 of the LEPRA. Section 231 states that force can be used in situations where it is required, in situations where avoiding force could mean the escape of the felon or injury to victims or the officers, and the use of force must be reasonable but not excessive.

 

   There is a need to establish proper grounds for reasonable use of force as the current rule allows police to bend the situation according to their convenience, or use excuses like the person was trying to attack, run or resist arrest. This also created the issue of unaccountability of the police force.

 

   Unaccountability 

   Because policing powers are put in place to maintain the peace and security of society and police have been able to cultivate an atmosphere of fear regarding their power, very few people question police even when they go beyond the scope of the law and their duties. It is the core of any democratic nation to create an adequate system of checks and balances, in which the government ensures the police force owes accountability to the state regarding their conduct, behaviour and performance. It is accountability which keeps the police force in check and helps to minimise the excessive use of force.

 

   Recently, Australia has been facing the problem of interruption in their daily life by the police since the lockdown during the COVID-19 pandemic. There have been instances of the officers following people in the car, interrupting events like funerals and carrying firearms with them which is a threat for citizens. This is also a product of unaccountability, police power is being allocated to  officers as no one questions their actions or authority. Instead, citizens must follow their orders and try not to upset police officers in fear of the potential consequences of agitating the authorities. 

 

   Need for Reform 

   It is because of these instances of excessive force and a lack of accountability that makes reform necessary. A recent article by the Washington post outlined how 5 countries including Britain, Ireland, Iceland, New Zealand and Norway have changed the way their police force works.  These reforms have meant police officers don’t carry firearms with them unless it is a special circumstance because of the belief that possessing a gun will only increase the violence it creates. Such reformative methods are the way forward and will enable increasing checks on  policing powers and ensure accountability to the citizenry and the state.

 

   The police force needs to be taught compassion and how to adequately use  force only doing so when absolutely necessary. Thus, the state government should also keep a tight check on the conduct and behaviour of the police force. 

 

   Conclusion 

   The function of the police is to maintain peace and security in the society, yet they have become one of the biggest law breakers in our nation in dire need of a source of accountability. The police force needs to know that there will be consequences for their actions and they cannot use violence and force for their own purposes, nor can they justify such actions. For this to happen we need the government to tighten their grip on the powers of police. 

 

The Clemency Process in Malaysia - a Retentionist of Capital Punishment 

Author: Anh Q Tran

Editor: Madhuli Kango 

   It was a Saturday morning like all others in July 1986. Barbara Barlow, in preparation to visit her son, brought him a gift. The gift, however, was far from what can be described as conventional. It was a cocktail of 75 sleeping pills dissolved in gin, whisky and brandy that she poured in a water bottle and Barbara was on her way to Kuala Lumpur’s Pudu Prison to see her son for the last time. She was the mother of Perth man Kevin Barlow - a half of the pair of the first Westerners to be executed under Malaysia’s new tougher drug laws, together with Brian Chambers. 

 

   The potion was never received by Kevin Barlow, who was sentenced to death, as Barbara wanted to continue to hold out hope for a successful last-minute attempt to save her son from the death row. That successful attempt never came despite multiple efforts from Australia’s then-Prime Ministers Bob Hawke and Bill Hayden, alongside Barbara herself, to make an appeal for clemency to the Malaysia government. Barlow and Chamber were hanged together in Pudu Prison on 7 July 1986. 

 

   Since then, as the anti-death penalty advocacy becomes more prevalent, the clemency process in Malaysia has become a highly controversial topic subject to debates and literature due to its lack of transparency as well as its seeming arbitrariness. This writing aims to provide some insights into the subject matter while also critiquing its shortcomings to offer premises for future reforms. 

 

   What is clemency?

   Clemency refers to a process whereby a person convicted of a criminal offence is granted relief by the Pardons Board of their court ordered sentence. This may come in many forms including pardon or commutation of sentence. The purpose of this process is to preserve the life of those on death row and more specifically, signify the Agong’s, who is the King, the constitutional monarch or the head of state of Malaysia, forgiveness and benevolent sovereign, rather than a power comparable to judicial reviews. 

 

   Following the judicial process of trial and appeal which consist of innocence-based argument, executive clemency may be sought if the person convicted is sentenced. At this stage, families can petition to the Pardon Board for clemency and put forward non-legal arguments as an attempt to reduce their loved one’s death sentence. The process largely premises on the leniency of the decision makers involved as opposed to the trial process which revolves around the determination of guilt. Ideally, a successful clemency petition will afford the death row inmates a commuted sentence either to life imprisonment or natural life sentence. 

 

   Issues with the clemency process

   a. The Pardon’s Board’s inherent bias and excessive influence 

Per Article 42(1) of the Federal Constitution, pardons or clemency are granted by the Ruler or Governor of the state where the crime was committed, or the Agong if the crime was committed in the Federal Territories comprising Kuala Lumpur, Labuan and Putrajaya. However, saving some exceptional cases subject to the unique political landscape of certain regions, the Ruler has historically followed the recommendation of the Pardon’s Board in relation to clemency petition. It is thus not wrong to say that the Pardon Board has the most influence on the final decision. 

 

   As the grant of clemency is a matter of life and death, it is easy to make the assumption about a carefully and impartially constructed Pardon Board. That could not be further from the truth. The Board comprises the Attorney-General, who previously acted as a prosecutor of the inmate and now an advisor for the Board, the Chief Minister and three members of the public that were selected by the Agong. Looking through the lens of Australian administrative law, the composition of the Pardon Board blatantly violates the standard of procedural fairness. It seems almost ignorant of impartiality to have the Attorney-General, who is so apparently biased against the inmate from his prosecutorial capacity, to advise the Board on that exact inmate’s clemency petition. This practice has persisted despite constant criticism and Malaysia seems to have turned a blind eye to it.

   b. A display of leniency or a political tool?

As stated above, the clemency process was established for the Ruler to display his forgiveness and benevolent sovereign towards those who strayed from the right path. Rulers and the Agong are revered figures in Malaysia whom are looked at with much respect and admiration. They are meant to be the embodiment of exemplary behaviour and moral values, including leniency, and clemency is a means for them to demonstrate that. 

 

   However, over time, the notion proves to be too idealistic and with the ever-increasing power of the media and the fierce political tug-of-war, the grants of clemency appear to have been distorted, becoming more and more politically motivated. Statistics have revealed that clemency is commonly granted on celebratory periods, such as the first day of Ramadan, or the Ruler’s birthday. This is seen as a way of the Ruler to improve his image and give a boost to the public confidence in himself. Numbers have also indicated that a foreign national on death row is much more likely to be granted clemency, attributable to diplomatic reason. It is obvious that the assessment of clemency petition has transcended beyond the merits of the inmates, being subjected to various external factors, especially political species. It is a product of the lack of transparency of the process and a common framework to assess all petitions. 

 

   Conclusion

   There are conspicuous problems with the clemency process in Malaysia. However, it needs to be acknowledged that justice systems are unique and this practice has been firmly entrenched in Malaysia. Changes may result from consistent and long-term efforts to advocate, but for the time being, focus should be on helping the inmates navigate and survive the status quo.

 

History and Evolution of Vicarious Liability 

Author: Meenakshi Iyer

Editor: Levi Faulkner

   A tort is generally defined as wrongdoing of a personal nature. Or to put it another way, a person is usually considered liable only for breaches or damages that have been caused due to their actions. However, an important exception arises in certain circumstances where one person can be held liable for the actions of another.[1] This concept, referred to as ‘vicarious liability,’ is quite significant in tort law, warranting consideration. As such, this article will examine how the concept has evolved since being incorporated into the legal system. 

 

   One of the earliest cases to address the issue of vicarious liability is Dyer v Munday [2], in which the presiding judge summarized that if a servant, in the course of his employment, goes beyond the authority that has been allotted to them, then the master can be held liable for the same.[3] While legislation has come a long way since this order, the case played a very influential role in the formation of the doctrine of vicarious liability.

 

   Historically, however, the majority of cases that carried a claim for vicarious liability were untenable due to the reality that an employer does not generally employ a person to carry out crimes or be dishonest. Nonetheless, it has been argued that if a master has given orders to their servant, then they are in part responsible for any actions that are carried out on their behalf.[4] Curiously, this has also included cases where the master has ratified the servant’s acts after they had been committed, thereby signifying their approval for the act.[5] As a result, the law developed a view that some relationships, due to their basis, require the person who engages others to undertake certain actions to account for the wrongdoings as well. This in turn developed the concept of vicarious liability as it is employed today.

 

   Based on the understanding that has been outlined, the doctrine has the most relevance for employer-employee relationships wherein the employer can be held liable for the torts committed by their employees in the course of employment. However, it has to be established that the person who committed the wrongdoing was indeed an employee and not an independent contractor.[6] Once this is done, the next step is to prove the conduct has taken place within the course of employment, indicating that it is likely to have been authorized by the employer or be so closely connected with the act authorized that it cannot be differentiated.[7]

 

   In the above relationship, even though the employer is liable, the employee would also be held jointly liable for the act. This raises questions about whether the other can be indemnified if only one of them is sued. To solve this problem, it is necessary to turn to common law, where it is stated in regard to employment contracts that there is a duty to take reasonable care. Therefore, the employer is entitled to obtain from the employee a certain proportion of damages that have been caused on account of the negligent conduct. Additionally, if the employer has not been negligent at all then he can be fully indemnified by the employee.

 

   Another instance where the doctrine of vicarious liability arises is in the case of a principal–agent relationship, which is considered to be similar to the employer-employee relationship. Additionally, it has been argued by several critics that parents should be held vicariously liable for the torts that are committed by their children. As seen in the case of Smith v Leurs (1945)[8], the court emphasized that vicarious liability in the case of parents can only be established if there was a personal fault on the parent’s part. While the duty exists, the onus is much lower than what is expected from a school authority.[9]

 

   The nature of certain relationships makes the concept of vicarious liability problematic, but it is still evolving, adapting to the needs and requirements of the particular legal system in which it exists.

 

_____________________

Footnotes: 

[1] Commonwealth v Griffiths (2007) 245 ALR 172.

[2] Dyer v Munday [1895] 1 QB 742

[3] Ibid

[4] Smith v Keel (1882) 9 QBD 340.

[5] Ewbank v Nutting (1847) 7 CB 797.

[6] Clayton v Bant (2020) HCA 44.

[7] Deatons Pty Ltd v Flew [1949] HCA 60.

[8] Smith v Leurs (1945) 70 CLR 256

[9] Hogan v Gill [1992] Aust Torts Reports 81 – 182.

 

Law as a Tool to Repress Individuals

Writer: Meenakshi Iyer

Editor: Madhuli Kango

   Sir John Salmond, a legal scholar, a public servant, and a judge at the High Court of New Zealand defines Law as "The body of principles recognized and applied by the state in the administration of justice".[1] Bentham’s definition for the purpose of the law was from a practical perspective and as per him, Law was the tool for “maximization of the happiness of the greatest number of the members of the community."[2]

 

   Even though Law is a crucial and pervasive institution of social life, it possesses specific dysfunctions that may develop into genuine operational troubles if they are not seriously considered.[3] Law does not always protect individuals and end in gainful social advancement but contrastingly can be used to repress individuals and limit their rights in some instances. The respect that is accorded to the legal system can veil the dysfunctional role of Law[4], this possible dysfunction of law is examined in this article from the angle of Justice and Gender and Justice and Race. 

 

   This article endeavors to investigate the dysfunctions of Law in thorough detail with a specific focus on its occasionally discriminatory nature. Through various instances of laws around the globe, it will conclude that ever so often, the Law indeed promotes inequality and tends to serve the interests of a lesser number of individuals and is impeding the enjoyment of human rights rather than promoting the welfare of the society at large.

 

1. JUSTICE AND GENDER

   The Universal Declaration of Human Rights in 1948 declared discrimination based on gender as a common civil rights violation,[5]  and since then various efforts in legislation, policies, and programs have been made to eradicate it. Regardless, even today after more than 70 years later women around the world are still grappling with various forms of gender discrimination. This problem of gender discrimination is prevalent across the world and no nation on the planet has closed its gender gap, regressive laws across the globe have been of no assistance. 

   Even today in the 21st century in 47 countries[6], non-consensual sex within marriage is not a criminal offense and does not constitute rape as long as the wife is above a certain age, which is only thirteen in Singapore. Section 375 of the Indian Penal Code[7] considers forced sex in marriage a crime only when the wife is under fifteen years old. Men controlling the legal process along with the way how the law is interpreted is a crucial factor in contributing to the imposition of patriarchal privilege that exists in Indian law-making.

 

   Another example of these outrageously sexist laws is the National Identity laws in Jordan and Lebanon. A child needs a Jordanian or Lebanese father to gain citizenship in the respective countries automatically, their mother's nationality is not passed on. The children do not have the right to become Jordanian citizens if a Jordanian woman gets married to a foreigner and are therefore often denied access to vital public services like healthcare and education. [8] In the United States, some states allow rapists to claim parental rights, and the victim could find herself in a custody battle with her rapist.[9]

2. JUSTICE AND RACE

   Discrimination in the administration of justice, whether set in sentencing, criminal prosecutions, policing, trials, or imprisonment has enduring ramifications on future generations and causes harm to numerous individuals and society alike. Law enforcement authorities, prosecutors and the courts often met out abusive and unequal treatment towards individuals of racial, ethnic minorities, or vulnerable groups in the form of harassment, arbitrary detainment, etc.[10]Courts, in many situations, are utilized as cognizant instruments of constraint.[11]

 

   An example of a racist law that existed in Australia was the "White Australia Policy" which operated from 1901 to 1950. Formally called the "Immigration Restriction Act of 1901," it more or less discontinued all non-European immigration into the country, which in turn contributed to the development of a racially segregated white society. [12] Many believed that it echoed a long-standing outlook of the many Australian colonies. 

 

   One of the foremost examples of a racist and sexist law that currently operates is the "Stand your ground" (SYG) Law of the United States of America. SYG law allows individuals to use force under certain circumstances if they believe that there was an imminent threat or danger to them, supporters suggest that this law empowers self-defence and hinders crime, but in reality has become one of the most polarizing legal institutions in the United States [13]. Critical views show that SYG law enforces and authorizes racial domination, i.e., white supremacy over people of color and male supremacy over female domestic partners. SYG law appears to frequently benefit white people much more in comparison to their colored counterparts.[14]

Researchers Nicole Ackermann, Keon Gilbert, Cassandra Arroyo-Johnson, Melody S. Goodman and Marcello Pagano, in "Race, law, and health: Examination of 'Stand Your Ground' and defendant convictions in Florida,"[15] examined 204 cases from 2005 to 2013 in which Stand Your Ground was cited as a defence against homicide. They also raked through information from a Tampa Bay Times investigation. It was found by them in the course of their research that juries were “twice as likely to convict the perpetrator of a crime against a white person than against a person of color.”[16]

 

   It can thus be concluded that though Law performs the function of the regulation of social relations and setting standard rules which are acceptable to the community or society at large but, often the Law fails to play out its capacities appropriately, and dysfunctions of Law occur.  

 

____________________

 

Footnotes:

[1] ‘Supremacy of the law’, Law teacher (Web Page, 6 August 2019)

<https://www.lawteacher.net/free-law-essays/administrative-law/the-supremacy-of-the-law-administrative-law-essay.php#:~:text=Woodrow%20Wilson,same%20as%20that%20of%20Holland.>

[2] Tesfaye Abate, ‘Functions of Law’, Abbysinia Law (Web Page)

https://www.abyssinialaw.com/online-resources/study-on-line/item/480-functions-of-law>

[3] Steven Vago, Law and Society (Routledge, 10th ed, 2016)

[4] Mathhew Lippman, An Introduction to Law and society (Sage Publications, September 2017)

[5] ‘Gender discrimination’, Find Law ( Web Page)

<https://civilrights.findlaw.com/discrimination/gender-discrimination.html>

[6] Stephanie Thompson, ‘8 sexist laws you won’t believe exist’ ,World Economic Forum (Web page, 8 May 2017)

<https://www.weforum.org/agenda/2017/05/8-sexist-laws-you-won-t-believe-still-exist/>

[7] India Penal Code 1860, s 375

[8] Suchita Srivastava v. Chandigarh Administration, (2008) 14 SCR 989 (India)

[9] Stephanie Thompson, ‘8 sexist laws you won’t believe exist’, World Economic Forum (Web page, 8 May 2017)

<https://www.weforum.org/agenda/2017/05/8-sexist-laws-you-won-t-believe-still-exist/>

[10] ‘Racism and the administration of justice’, Racism and human rights (Web page)

<https://www.hrw.org/legacy/campaigns/race/criminal_justice.htm>

[11] Mathhew Lippman, An Introduction to Law and society (Sage Publications, September 2017)

[12] ‘White Australia Policy’, Britannica (Web page, 12 May, 2020)

<https://www.britannica.com/event/White-Australia-Policy>

[13] Jeannie C. Suk, ‘The True Woman: Scenes From the Law of Self Defense’(2008) Harvard Journal of Law and Gender.

[14] Martin, Susan Taylor, Kris Hundley, and Connie Humburg,” Race Plays Complex Role in Florida's ‘Stand Your Ground’ Law.” (Research paper, Tampa Bay Times, June 2012)

[15] Erin Meisenzahl-Peace, ‘Stand your ground laws are racist – new study reveals’ Vice (Web page, 2nd December 2015)

<https://www.vice.com/en_us/article/nz8pek/stand-your-ground-laws-are-racist-new-study-reveals>

[16] Susan Taylor Martin, ‘Florida's Stand Your Ground Law yields some shocking outcomes depending on how law is applied’ Tampa Bay Times (Online, 17 February 2013) 

<https://www.tampabay.com/news/publicsafety/crime/florida-stand-your-ground-law-yields-some-shocking-outcomes-depending-on/1233133/>

 

 

Supporting Australian Businesses: Insolvency in a Time of Crisis

Writer: Victoria Hidalgo 

Editor: Levi Faulkner

   In times of crisis, such as those being experienced worldwide under the ongoing COVID-19 pandemic, insolvency is a reality that many companies will need to consider when navigating the financial distress that inevitably arises in these circumstances.

 

   As an overview, this article will review insolvency by referring to the inability of businesses to pay a debt when it is due. In this way, insolvency is differentiated from bankruptcy under Australian law, with the former applying to companies under the Corporations Act 2001 while the latter is applied to individuals under the Bankruptcy Act 1966.[1]

 

   Crucially, there are opposing views about the claim of insolvency as a solution or a problem. To elaborate, it is generally considered as a solution when a viable firm is accurately using  the remedies offered but a problem when a zombie company uses insolvency to stay afloat. 

 

   It should be noted, however, that insolvency procedures were created as a response to prevent early liquidation of viable firms and all the consequences that may arise as a result. This includes the possibility of unemployment and asset loss alongside the legal insecurity that is introduced when creditors come knocking.  Since the introduction of COVID-19 into the global economy, these concerns continue to play a large factor in how firms manage themselves. 

 

   In response to the pandemic, governments around the world have adopted different methods to mitigate the associated risks, with Australia responding by triggering the most significant reform to Australia’s corporate insolvency regime in almost 30 years [2].

Considering that going into insolvency is not an option for all businesses on account of the costs and processes required, Australia has introduced a simplified insolvency method where SMEs (Small and Medium Enterprises) will have access to a simple, cheaper and faster restructuring and liquidation process.

 

   On the other hand, Australia is experiencing intense economic hardship on account of the pandemic, with cities like Melbourne and Sydney having to implement harsh lockdown measures. In these places, people can only leave home for essential services, with many organisations operating under capacity.

 

   On the basis of these arguments, it is worth considering if the early adoption of financial responses indicated by the new insolvency procedures will be enough to address the distress caused by the pandemic.

_____________

Footnotes: 

[1] The Difference Between Insolvency and Bankruptcy (And How To Avoid Both) | Atkinson Vinden Lawyers (avlawyers.com.au)

[2] https://www.nortonrosefulbright.com/en/knowledge/publications/cd46e9a1/insolvency-law-reform-in-australia

 

 

COVID-19 and the Rise of Family Violence in Australia 

Writer: Meenakshi Iyer

Editor: Saara Stenberg

   The covid-19 pandemic has caused immense social and economic disruption worldwide. Simultaneously, unparalleled challenges to both public health and social relationships have emerged[1], leading not only to a dramatic loss of human life but also a drastic alteration to the way humans interact with each other[2]. This shift in interactions led to an extreme rise in family violence in Australia amidst the pandemic. This article will thus explore how the onset of Covid-19 impacted familial relationships in Australia, leading to an exponential increase in family violence.

 

   The United Nations refers to domestic violence as an indispensable concern that needs to be addressed in order to help solve problems of gender inequality[3]. Prior to the pandemic, it was estimated that 1 in every 3 Australian women have faced physical violence after the age of 15[4]. Accompanying statistics also revealed that Australian women were three times more likely than their male counterparts to experience violence from their partners [5]. However, these numbers have risen dramatically since the outbreak of the pandemic. A study by the Australian Institute of Criminology surveying 15,000 women revealed a rise in cases of domestic violence against women during the initial three months of the pandemic [6] Out of these women, approximately two-thirds agreed that the violence they experienced had either started or escalated during the Covid-19 pandemic[7]. More than 30% of these women stated they were unable to seek help because of the covid-19 restrictions [8] and were therefore trapped in their volatile home situation. 

 

   These increases, however, are not just observed in Australia but in several other countries including China and the United States of America. The United Nations reaffirms this view in their 2020 statement that pandemic restrictions imposed worldwide led to a ‘shadow pandemic” of violence against women and girls in the home[9]. This points to a pattern of social isolation, in which increasing vulnerability and restricted access to support services lead to an increase in domestic violence[10]. For instance, in China, the first country to impose a lockdown, domestic violence cases in February 2020 saw a threefold rise as compared to the previous year[11]. Likewise, France reported an average of 35% increase in domestic abuse complaints following the imposition of self-isolation and quarantine measures [12]. This family violence has also been observed to be followed by subsequent homicides events in several countries.

 

   Not only does this violence have an effect on the person experiencing it but also on other members of the family including children. Several studies have found that the adverse effects on children resulting from family violence exist long after the violence has stopped[13]. Moreover,  children who witness this violence are also harmed by the emotional dynamics that persist in the family[14]. Domestic and family violence has been found to be one of the leading causes of homelessness for children in Australia[15] causing long-term effects on their physical and mental wellbeing.

 

   Thus, to resolve these issues, it is necessary to investigate family violence through the perspective of the covid-19 pandemic, and the subsequent, financial problems and social isolation which contribute to the rise in domestic violence. The absence of a comprehensive approach is particularly pertinent given the prevalence of concerns about domestic and family violence and child abuse and neglect in family law cases.

 

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Footnotes:

 

[1] https://www.who.int/news/item/13-10-2020-impact-of-covid-19-on-people's-livelihoods-their-health-and-our-food-systems

[2] https://jech.bmj.com/content/jech/early/2021/08/18/jech-2021-216690.full.pdf

[3] United Nations (UN) (2015) Sustainable Development Goals – 17 Goals to Transform Our World. United Nations General Assembly. www.un.org/sustainabledevelopment/development-agenda/.

[4] Australian Bureau of Statistics (ABS) 2017. Personal Safety Survey, Australia, 2016, ABS cat. no. 4906.0. Canberra: ABS.

[5] ABS 2017. Personal Safety, Australia, 2016, ABS cat. no. 4906.0. Canberra: ABS.

[6] Boxall, H., Morgan, A. & Brown, R. (2020). The prevalence of domestic violence among women during the COVID-19 pandemic. Statistical Bulletin, 28. Australian Institute of Criminology: Canberra.

[7] Ibid.

[8] Boxall

 

 

Jurisdictional error in a nutshell: explaining an enigmatic creature of Administrative Law

Writer: Anh Tran

Editor: Levi Faulkner

   I remember when I was going through Administrative Law and first ran into the notion of ‘jurisdictional error’, I was puzzled. It was as clear as mud to me and I thought to myself, ‘what on earth are jurisdictional errors and why do we even bother grappling with this ill-defined concept in the first place, given that the Administrative Decisions (Judicial Review) Act 1977 (“ADJR Act”) has clearly set out for us the pathway to seeking reviews?”. 

 

   So rest assured, if you are having the same thoughts, you are not alone. A lot of us do too and that is totally normal. Jurisdictional error is a loosely defined term, or in fact, hardly defined at all. It is an amorphous species of common law that has been developed over time through case laws where a fair share of changes have been seen made to it by judges. This article aims to provide some clarity on the current position and the process that took us to where we are today.

 

   When we think of appeals against administrative decisions, we often think about the statutory law avenue or the ADJR Act. Within the Act, grounds for review are distinctly laid out. They are generally divided into broad and narrow ultra vires. Narrow ultra vires is where the action is taken is literally outside the scope of the legal powers conferred on the actor, while broad ultra vires are where although the action itself is within the actor’s legal powers, the manner in which it was done is the vitiating factor.

 
   However, a more hazy avenue to appeal for reviews of decisions through the common law. Section 75(v) of the Commonwealth Constitution confers jurisdiction on the High Court of Australia where "a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth". In short, the Constitution entrenches the High Court’s jurisdiction to review administrative decisions by issuing prerogative writs. 

 

   But what are the common law equivalents to the ADJR’s grounds of review? The High Court cannot simply arbitrarily go around and fix every decision that upsets them right? That would be a breach of separation of power! And that is when the notion of jurisdictional error comes into play. It acts as the threshold for administrative decision-making error to entitle the appellant to a remedy. 

 

   But why is jurisdictional error important? Isn’t it redundant to have a review system running parallel to the ADJR judicial review? Those were the exact questions I asked myself when facing the concept of jurisdictional errors. The answer is yes and no. Substantively, jurisdictional errors could hardly be said to add anything conceptually new to the decision reviewing practice. It is not a separate ground of review. However, neither is it redundant. Jurisdictional error is an important preventive mechanism against the potential parliamentary intent to oust any ADJR-enabled review avenue. By simply adding a type of decision to schedule 1 of the ADJR Act, the legislature can immunize it from the statutory avenue for appeal. 

 

   So, what are jurisdictional errors? It is quite noticeable that I have been ranting for a while without touching on the most essential substance of the term - its definition. It is because I see little use in giving a definition that is of no aid to understanding the term. Kirk[1] did attempt to conclusively define jurisdictional error as ‘a conclusionary label to be attached to any error of law which, upon the proper construction of the empowering legislation, is sufficiently serious that the ensuing decision should be set aside, yet, did little to help with understanding the metes and bounds of jurisdictional errors as fully comprehending the term necessitates a whole discussion of its history and developments.

 

   In the past, there was a distinction between jurisdictional and non-jurisdictional errors of law. Jurisdictional errors of law correspond to the narrow ultra vires while non-jurisdictional errors are similar to broad ultra vires grounds of review. In the simplest terms, jurisdictional errors are made when the decision makers were not conferred upon the decision-making authority. When they have conferred that power but used it incorrectly, that was not a jurisdictional error. Decisions attended by jurisdictional errors could be set aside pursuant to a successful judicial review application. That did not follow for decisions infected with non-jurisdictional errors.

 

   In England, the taxonomy has been wholly abolished and there is no longer any distinction between jurisdictional and non-jurisdictional errors of law. Under English administrative law, all errors of law are jurisdictional. This position was arrived at after the famous case of Anisminic[2]

 

   The current position in Australia is slightly different. Courts have adopted an ‘interesting and radical’ approach. For tribunal and single administrative decision makers level, there is effectively no distinction between non-jurisdictional and jurisdictional errors. This position was reached after the case of Minister for Immigration and Multicultural Affairs v Yusuf[3] which concerned appeals against the denial of refugee visas by the Refugee Review Tribunal. The decision makers failed to provide sufficient reasons for the rejection of to grant which was mandated under s430 of the Migration Act. The court held that that constituted a jurisdictional error and added that any errors in exercising the decision-making power of the administrative arm will render the decision maker ‘exceeding the authority or powers given by the relevant statute’ and give ground for appeal.

 

   It is not as straightforward at inferior courts where the High Court has decided to retain this distinction. In Craig[4], the court ruled that a non-jurisdictional error will not make the court decision reviewable. This might not sit well with most at first as the general sentiment is that judges should not be held to a more lenient threshold when making decisions, but it actually makes sense. Judges are legally qualified people that should be afforded more latitude to err because they are more capable of arriving at the correct decision despite their errors than administrative decision makers. The case of Hossain[5]  actually echoed this belief. An error of law must be material to the final decision in order to be a jurisdictional error and any statute that imposes a condition to be observed for the decision-making process will be supplemented with this materiality threshold. Another justification for the retention of this distinction is that inferior courts are parts of a legal hierarchy, therefore, if the decision is infected by a non-jurisdictional error, appeals can still be made to superior courts and there is no sole reliance on the judicial review process. 

 

   Jurisdictional error is a slippery concept made hard to understand by the varied positions between countries and its continuing development, yet extremely important to the understanding of the appeal and review process. However, over time, judicial guidance has managed to reach a point now where the parameters of the concept have been quite definitively marked. As we move forward, it is unlikely that there will be any major change to the current position, but further clarity upon the question of degree will still be appreciated.

_____________

Footnotes:

 

[1] Kirk v Industrial Relations Commission of NSW (2010) 239 CLR 531.

[2] Anisminic v Foreign Compensation Commission [1969] 2 AC 147.

[3] (2001) 106 CLR 323

[4] Craig v South Australia (1995) 184 CLR 163.

[5] Hossain v Minister for Immigration and Border Protection [2018] HCA 34.

 

 
 

Bodily Autonomy vs Public Health

The covid-19 vaccine has been a popular topic of conversation, for obvious reasons. But can it be mandated?

 

Australia’s prime minister, Scott Morrison, received major backlash upon his statement that the vaccine will be & quotas mandatory as you can possibly make it". Consequently, he retracted his statement and announced that the vaccine will not be compulsory. Yet, the question still stands, can the vaccine actually be “as mandatory as you can possibly make it?”.

 

The Public Health and Wellbeing Act 2008 (Vic) allows the CFO to issue a public health order requiring the vaccination of a specific person. However, this power is only enforceable on an individual basis, and not opulation-wide as the prime minister’s initial statement suggested. So, what was Scomo’s statement based on?

 

Section 200 of Victori's Public Health and Wellbeing Act 2008 (Vic) provides health authorities with emergency powers. This section authorizes the enforcement of a mask requirement in public places, for example. However, scholars have emphasized the unlikeliness of successfully relying on this section as authority to mandate a population-wide vaccine. Why? Bodily autonomy.

 

This begs the question, what should we, as a society, prioritize? Public health? Or bodily autonomy? Is it fair to those who consent to the vaccine to live in a world where covid still exists because of those who refuse to get vaccinated? But then is it fair that anti-vaxxers be subject to a vaccine they do not consent to? And do we really want to live in a world where that is possible? But then is it fair...but then is it...

Illness Narrative

Writer: Apoorva Singh

Editor: Rebekah Prystupa

 

   Until 1990, underdeveloped or developed countries viewed AIDS as a western disease that spread due to the cultures and attitudes of the westerners. (Lakkimsetti, C. (2014). “HIV Is Our Friend”: Prostitution, Biopower, and the State inPostcolonial India. Signs: Journal of Women in Culture and Society, 40(1), 201 226.https://doi.org/10.1086/676898). This belief system is very contrary to what we know about AIDS today. Society has been very ungracious regarding certain types of illnesses, which is why people lie about their disease or hide it and try to live in secrecy about AIDS. Such a restrictive way of life had to be adopted by the LGBTQ community and people with illnesses like AIDS or other STDs.  AIDS is an example of an Illness that has certain prejudices attached to it and was mainly perceived to be contracted through sexual intercourse. The reason for such beliefs was a lack of awareness about the disease during the 1900s. I recently came across an article about the famous movie star, Rock Hudson, exploring his life and battle with AIDS, not just the disease but with the societal stigma that it carried 60-70 years back and his path-breaking actions. The article talks about how AIDS and sexuality impacted Rock Hudson's life including his health, sexuality, gender, and fame. Hudson's life allows us to reflect on the attitudes of those diagnosed and of society towards them. The article indicates that both AIDS and the social burdens that come attached with it need to