Hacking barriers to justice 101

By Crystal Holt

What do you get when you stick six law students and a cyber security professional in a tiny meeting room for 34 hours, fuelled by sugar, instant noodles and coffee? An innovative and user-friendly app that increases access to justice for those who have realised at last minute that they may need an interpreter to understand complex legal terminology in court.

This problem is all too common in Australian courts, namely the Supreme Court of NSW. A person will come before the court, wrongly believing that they understand an adequate amount of English to undertake proceedings. This problem is compounded by the fact that some may not want to bear the significant cost burden that comes with hiring an interpreter for an entire case. But quickly, this person may realise that, although they understand the majority of the proceedings, they are struggling to understand a specific part of the proceedings. In this case, the court may choose, for example, to simply explain in several different ways what an injunction is, but if this isn’t done correctly it could lead to appeals down the road. The other option is adjourning at the expense of the court until an interpreter can be sourced, which can typically take weeks, if not months.

This is the issue that the ANU Team ‘hACTivate’ aimed to resolve at the 2018 Innovate Law Hackathon. The Hackathon isn’t as scary as it seems. It’s not about hacking mainframes or bringing down servers; it is about hacking social justice issues within the legal system. So often we face issues in the legal profession that could be resolved through disrupting the field by developing modern technologies. Although it may not be the place for courts to be investing tax payers’ money in novel artificial intelligence or risky technological platforms, it is possible for the courts to utilise well established, secure technologies to ensure that we all have access to justice within our legal system.

From left: Deanna Constable of Lander and Rogers, representative of the Law Society of NSW, Chief Justice Bathurst of the NSW Supreme Court, Sam Exell, Christina Lee, Anneka Atley, Crystal Holt, Jeremiah Go, Jacob Wong and Kelvin Zhou.

‘Interpret Now’ is a platform where lawyers, litigants or court officials are connected with interpreters on demand. It streamlines the process of finding an interpreter by providing a simple, user-friendly app that provides the real-time availability of interpreters nearby. It allows for the interpreter to register their language, location and availability regularly, so that when a request is made a real-time solution is available. After a request is sent, the interpreter accepts and provides the service immediately, either in person or through video conferencing. This is the solution my team – comprised of Anneka Atley, Christina Lee, Jacob Wong, Jeremiah Go, Sam Exell, Kelvin Zhou and myself – presented to the New South Wales Supreme Court, and won the 2018 Innovate Law Hackathon with.

Technology is something that has created a huge amount of fear and stir in the legal community in the past couple decades. From the fax machine to smart contracts, lawyers are still grappling with how to use technology to best advantage the justice system. Dr Philippa Ryan, a visiting Fellow at the ANU from UTS, believes that systems like blockchain could go so far as to achieve the UN Millennium Development Goals. New technologies provide an opportunity for innovation and development in the legal system, so long as we are open to them.

As law students in 2018, it is our place to ensure we are educated and informed on the issues surrounding modern technologies, to avoid being left behind as our profession modernises. We should not see this as a threat to our livelihoods or job security, but as an opportunity to use technology as a resource to improve and streamline our profession, making it more accessible, effective, and just.

Hackathons are an opportunity to see what the law of the future looks like. To create disruption. To create change. We are so excited to see the positive impacts Interpret Now will have on access to justice, by providing vital interpretation services to those in need, exactly when they need it, on demand. We implore all ANU law students to get involved in a hackathon at some point in their legal journey, and to open your mind to the amazing opportunities that legal technology provides us.

Pigeon activist warns of impending ‘coo d’état’

By Katherine Duffy

Justice before the law is something of a platitudinous notion, evoking concepts of fairness for ‘the little guy’ and a picturesque statue of lady justice, blindfolded and holding her scales. The object of this article however, is not the statue of lady justice herself, but rather the ‘little guy’ who may be seen perched upon her shoulders from time to time, and who is continuously persecuted before the law without any opportunity to fend for itself. Today, we discuss Australian law’s egregious interference with the rights of the common pigeon.

Australian law has historically upheld principles that run contrary to the interests of the little guy. This was perhaps most blatantly obvious in Australia’s acceptance of the neighbour principle established by Donoghue v Stevenson, which – although hastening the development of tort law – showed a cruel lack of consideration for our snail brethren, imperilled by industry and ignored by the courts. Although we live in a time of rapid moral change, it is clear that the law continues to be heavily impacted by a primitive disregard for the little guys – snails and pigeons alike – who are vulnerable to the smashing fists of the law.

The common pigeon seems to be the latest target of the legal and political community’s agenda to reinforce its imperialist tenancies through the demoralisation of the plebeian pigeon population. In the Australian Capital Territory, veritable genocide of the common pigeon has been attempted. Territory and municipal services have launching initiatives such as the pigeon-proofing of Tuggeranong: netting and spikes have been erected, blocking crevices where the common pigeon perches. Although the government shows no sign of changing its pigeon policy, this has not been without pushback from local south-siders, one resident noting that her children referred to the Wanniassa underpass as ‘pigeon bridge’ and were ‘sad to see them move on’.

More forward-thinking states such as South Australia have placed a caveat on this discriminatory regime that plagues the common pigeon populace. Section 47 of the Summary Offences Act 1953 inflicts a $250 penalty for those who seek to interfere with a homing pigeon. Interference, in this instance, refers to a person who murders, injures or abducts a homing pigeon. Although South Australia has taken a step in the right direction, entrenching the rights of the homing pigeon in state law, it still leaves vulnerable the rights of its disease-infested, feral counterpart.

It is important that measures be taken quickly to address this systematic inequality perpetuated by Australian law. Should we fail to reform, serious action may be taken by the pigeon community. Whilst a coup d’état – or rather a coo d’état – seems like an unlikely consequence of inaction, it is undoubtable that the common pigeon has become an institution of Australian society alongside such icons as the kangaroo and bin chicken, and as such, should be afforded legal protection.

Whilst this common bird is not a bastion of cleanliness, what outdoor memory is not marked by their gentle coos or their rhythmic head-bobbing as they hoover up crumbs lining the city sidewalks. These flapping sky rats are an icon of Australian society, and if true justice exists in Australia, the law should inflict a blow greater than a $250 fine in seeking to protect this majestic creature.

 

Protect me not?

By Jessica Solari

Australia’s relationship with refugees is reported on heavily in the media. These reports usually concern Australia’s treatment of refugees arriving on our shores. In an interesting turn of events, however, attention has been directed towards Steven Utah, an Australian citizen who sought asylum in Canada. Recent revelations concerning a September 2017 decision of Canada’s Immigration and Refugee Board (IRB), to grant refugee status to Utah sparked public discussion of Australia’s witness protection programs.

Utah claimed refugee status due to threats against his life that arose as a direct result of his status as an informant to the Australian Crime Commission. Utah provided information to the ACC during its investigation into outlaw bikie gangs. The ACC outed Utah in a media release in 2006, after which murder contracts were placed on his life. The decision of Canada’s IRB is believed to be the first internationally to grant refugee status to an Australian and was described by the ANU’s Matthew Zagor as ‘unprecedented’.

The decision raises questions about the efficacy of witness protection programs in Australia. The IRB stated that Australian authorities failed to offer Utah adequate protection (it is unclear whether he was under formal witness protection), as part of a ‘broader pattern [of] corruption, ineptitude and structural difficulties’. Corruption is an historically significant Australian policing issue – one could point to the Fitzgerald Inquiry, which involved a wide-ranging investigation into police corruption in Queensland and resulted in the imprisonment of four ministers. Ineptitude is more difficult to measure and a politically contentious topic, while assessing any structural difficulties would involve a large-scale consideration of witness protection programs across Australia.

It is worth noting that the problems highlighted by the IRB arise at least in part from the fact that Australia lacks a cohesive approach to witness protection. Given the division of policing powers between federal and state agencies, it is not surprising that structural difficulties in witness protection arise.

At a federal level, witness protection is governed by the Witness Protection Act 1994. The Australian Federal Police Commissioner has sole responsibility for deciding whether to place a witness in the National Witness Protection Program. In reaching a decision, the Commissioner must have regard to seven criteria listed under section 8(3) of the Witness Protection Act. These criteria focus on: the criminal history of the witness, the witness’ suitability to be placed in the program, the nature of the offence which they are a witness to, the relevance of the evidence the witness can give, the availability of alternative and viable methods of protection, the perceived danger to the witness, and the nature of the witness’ relationships with other witnesses in the witness protection program.

The use of the word ‘must’ in section 8(3) confers an obligation on the Commissioner to consider the criteria in reaching his decision. The Commissioner therefore – although having discretion in the making of their final decision – does not have discretion as to whether to consider these criteria.

However, unlike most administrative processes, it is unclear whether a failure to consider the criteria in section 8(3) is reviewable, creating a structural issue akin to those referred to by the IRB. The Australian Federal Police’s 2011-2012 Witness Protection Annual Report states that decisions made in relation to the National Witness Protection Program are not subject to review under the Administrative Decisions (Judicial Review) Act 1997, meaning that such determinations are not subject to judicial review. Review of these decisions is carried out differently between jurisdictions – for example, in Tasmania, a decision by the Police Commissioner may be reviewed by an ombudsman, while in NSW the Commissioner’s decision can be reviewed by the Law Enforcement Conduct Commission.  The Report does not state which alternative avenues for review – that is, administrative review – are available. A possible rationale for this lack of review would be the necessity for secrecy in witness protection programs. However, a lack of review processes could point to a potential structural deficiency in the National Witness Protection Program.

At a state level, most witness protection programs mirror the National Witness Protection Programs, with some distinguishing features. For example, New South Wales, Victoria, South Australia, Western Australia, the Northern Territory contain provisions equivalent section 8(3) in their own witness protection legislation.

However, the ACT does specify that a decision made ‘must be in accordance with’ section 8. Queensland offers comprehensive assessment criteria, borrowing on what the Federal Act offers, and expanding on it to include information provided to the relevant body. Tasmania leaves any decisions to the sole discretion of the Police Commissioner.

Queensland’s Witness Protection Program is the nation’s wild card. It is governed by an independent commission, with a chairperson – as opposed to a Police Commissioner or Chief of Police – at the helm. Thus, Queensland’s witness protection scheme functions differently to the majority of other such programs in Australia, serving as an example of how the inconsistencies of our witness protection programs are exacerbated by the federal system.

These structural differences in how Australia’s various witness protection programs are run may not be the same structural difficulties outlined in the IRB’s decision. Yet, they do point to a lack of cohesion between these programs, which represent a key protective strategy for witnesses, whose evidence is extremely valuable to law enforcement bodies.

This lack of cohesion results in a potentially vulnerable witness protection system, in which witnesses who are under threat – such as Steven Utah – are left vulnerable. Fear of insufficient protection upon providing evidence may also leave potential witnesses reticent when it comes to assisting law enforcement. When this occurs, the system fails.

The fact that refugee status was granted to Steven Utah suggests that reform of Australia’s witness protection systems is needed. Such reform could involve increasing cohesion between the various state and federal approaches through uniform legislation, establishing an independent statutory body to regulate the practice and approach of witness protection programs, or introducing better review procedures for decisions pertaining to witness protection.

Although it is not apparent which of these reforms would be the most effective, what is clear is that it is quite embarrassing (and anomalous) to have a citizen of a first-world country with a quality of life that is the envy of the world to be granted refugee status overseas.

Dim sum with a side of scones: on exchange in Hong Kong

By Tiger Lin

 

As Super Typhoon Mangkhut tore through Hong Kong, flattening trees, snapping cranes and granting levitational skills to roofs, I was stuck within the confines of my tiny studio apartment watching one of the most densely populated cities in the world turn into a ghost town. Like countless prisoners before me, I discovered that a term of imprisonment is a good time for reflection – in this case, on my exchange semester at the University of Hong Kong.

I’m originally a Melbourne boy, so whenever anyone back home hears I’m at ANU, I automatically bear the brunt of the usual ‘nothing-ever-happens-in-Canberra’ jokes. But I must say, I much prefer Canberra’s peace and tranquillity to the hustle and bustle (or rather lack of hustle when trying to drive into the Melbourne CBD) of ‘big’ city life.

Hong Kong, however, is another beast entirely. Not only is it an incredible feat of city planning (squeezing two million more people than Sydney into an area ten times smaller, all the while still managing to boast swathes of hiking tracks in the surrounding mountains), its status as an international commercial hub has opened my eyes to the plethora of opportunities available once one leaves behind the isolated confines of Australia.

Hong Kong’s colonial history has left it a valuable legacy as a fusion between east and west – it is a city where all children grow up bilingual, Starbucks cafés mingle with cha chaan teng (‘tea restaurants’ – cheap Hong Kong-style cafés serving cheap Cantonese-western cuisine), and gleaming new Bentleys compete with the iconic red taxis to squeeze into a gap in traffic.

It is fascinating to see how this distinctly Asian city comforts Westerners with its familiar British atmosphere. Its position as a gateway to investment in China makes it an attractive destination for huge firms from all around the world. Combined with its proximity to Australia, Hong Kong has become a very popular destination for graduates interested in a global legal or financial career.

Its politics, however, are another story. It is very easy in Australia to just sit back and spend our time following the latest prime ministerial crisis. Many Australians’ knowledge of international politics probably does not extend past reading Donald Trump’s latest outrageous tweet. Hong Kong’s politics simply do not appear often enough in our news outlets for it to register as a source of controversy. Hence, imagine my surprise when I stumbled into a fervent pro-democracy, anti-China politics class about a conflict I did not even know existed!

This mistrust of the socialist Chinese government was an inevitable by-product of the return of Hong Kong (an ethnically Chinese society with democratic British institutions) to Chinese rule in 1997. A ‘one-country, two systems’ policy was established, whereby Hong Kong would retain its capitalist system for at least another 50 years. What will happen after that is a major sore point.

While Hong Kong has its own mini-constitution (the Basic Law) which sets out a British institutional arrangement (including a common law judicial system separate to that of Chinese national law), one of the recent legal controversies is the central Chinese government’s power of final interpretation of the Basic Law, leading to fears over judicial independence and protection of democratic rights. As a unique interaction between a democratic territory subject to the ultimate rule of a communist mainland, the Hong Kong-China relationship presents a fascinating legal and political challenge.

 

If the hustle and bustle of Hong Kong has piqued your interest, or you’re keen to examine Chinese-Hong Kong politics first hand through an exchange, here are my top three tips for exchange:

1. Plan your trips

This is a great opportunity to see your destination and the world – once you manage to escape the island we call home, the world is your oyster! Also, don’t forget to do your research – if you are going up a mountain to take spectacular photos – say Kowloon Peak – and want to avoid a two-hour hike down, remember that Uber drivers can choose to accept rides, and they will definitely not want to drive 20 minutes up a mountain to get you. That being said, you can’t really go wrong when the metro system has trains coming every two minutes!

2. Try something a bit different

I’ve always admired those who can comfortably play contact sports, but I have always been quite scared of them given my diminutive stature. Hong Kong seemed to be the perfect opportunity to try some rugby with people my own size – unfortunately, I forgot it is actually most popular among tall, broad British expats…

3. Catch your breath

Sometimes it is quite easy to get caught up in the frenzied pace of these global cities. Don’t forget to take some time to catch your breath – one of my own favourite ways to achieve this was enjoying an Earl Grey (milk, four sugars) 100 floors above Hong Kong, admiring the remarkable juxtaposition of ocean, dense skyscrapers and lush, forested mountains.

 

 

The unknown victims of trafficking

By Annika Reynolds

When you picture the ‘typical’ victim of trafficking, who comes to mind?

The average Australian looks at her and sees someone of Middle Eastern descent. They see a woman that has been smuggled into the country by an international organised crime network. They say poor English skills, no freedom of movement, and no personal documents are evidence of her situation.

But she is not. She is not Middle Eastern; in fact, she is mostly likely from a South-East Asian country, likely Thailand or Malaysia. She has not been smuggled in. Rather, she walked in through an airport on a student or working visa. The people that got her here are not members of foreign crime syndicates, but Australia-based recruiters. The only determinative characteristic that she holds is that she likely comes from a background of extreme poverty. Not illiteracy. Not age. Not lack of personal documents or freedom of movement. But desperation.

She is the unknown victim of trafficking.

Australia is a country preoccupied with its borders. A country that feels justified in limiting Humanitarian Program visas to roughly thirteen thousand a year and boasts that it has ‘stopped the boats.’ And that fear of the unknown, of the foreign, has bled into the Australian psyche. So much so, that when asked what a victim of trafficking is, the average Australian recites the offence for people smuggling.

In reality, the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children defines trafficking as:

The recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation.

The exploitative nature of the conduct is key, usually translating into sexual exploitation, forced marriage, forced labour, slavery, servitude or the forced removal of organs. Whereas people smuggling is merely illegal movement, trafficking is concerned with forcing individuals into a situation of modern slavery.

In Australia, only thirteen people were convicted of a trafficking offence (under Division 270 and 271 of the Commonwealth Criminal Code Act 1995) between 2004 and 2011, which suggests that trafficking is not a serious issue in Australia; that perhaps a warped Australian perception of trafficking is relatively harmless; that maybe it is okay that Australians blur the lines between trafficking and people smuggling. Is it really a threat to Australia, or to our community if this is such a minute problem?

But the story woven by official convictions, like Australia’s general perception, intersects only marginally with the reality of trafficking in Australia. The AFP’s Transnational Sexual Exploitation and Trafficking Teams investigate an average of 50 cases a year. But the Global Slavery Index casts an even bleaker picture, estimating there are roughly 15,000 people who have been trafficked or are in servitude in Australia as of 2018. A figure equal to the number of undergraduate students at ANU, living in modern slavery. Enough people to fill a campus, suffering exploitation, abuse and coercion.

The Australian government’s response has been regulated by the National Action Plan to Combat Human Trafficking and Slavery (2015-2019). The document outlines Australia’s commitment to a ‘future where no one is subjected to human trafficking or slavery’, and does in fact lay out a comprehensive and rigorous plan to achieve this vision. The strategy covers everything from AFP, state and territory investigation processes, to victim support groups during investigation, trial and afterwards, to regional engagement with the Asia Pacific in the hope of limiting the flow of trafficked persons. NGOs, like Anti-Slavery Australia, praised the document upon its release as establishing a regime that is capable of realising the Plan’s ambitious purpose.

So why is it that in 2018 there are still 15,000 people suffering? Why is it that convictions are so low? Why is it that the average Australian cannot define trafficking, let alone pinpoint the demographics most affected?

The problem is not the framework. The problem is that we have closed our eyes to the reality of modern slavery. The problem is that we have developed a culture that fears the external, the unknown, and by doing so has sacrificed the self-reflection necessary to fight back against the exploitation occurring within our borders.

In its 2016 review of the National Action Plan, the Law Council of Australia called for two major reforms: That the government ‘take a human rights approach to all efforts to prevent and combat these offences,’ and ‘protect, assist and provide redress to victims’. The review recommended the establishment of a national compensation scheme, and of an independent review of the Minister for Immigration’s power to unilaterally cancel a visa that a trafficking victim may be staying on. This review demonstrates a reality in which the basic components of the National Action Plan have not been implemented.

It is an indictment on the Australian government – not just Parliament, but the whole machinery of the public service – that the only major review of its National Action Plan asks for human rights to be given priority.

Truth and perception rarely intersect on the issue of trafficking. The Australian government’s commitment to end trafficking is a glossy palimpsest over the cold reality. But like all superimpositions, this carefully crafted humanitarian image is cracking around the edges.

It is our responsibility to make sure those cracks widen. To hold our government responsible for the victims of modern slavery that walk amongst us. To change the Australian narrative, so that rhetoric and reality do intersect.

To make the unknown victims of trafficking known.