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Editors --- "DownUnderAllOver: Developments around the country" [2004] AltLawJl 92; (2004) 29(6) Alternative Law Journal 303

Developments around Australia

Federal Developments

Governments required by international human rights law to end homelessness

A major report released on 22 October 2004 calls on the federal and state governments to take concrete and targeted steps to end homelessness and to ensure that no-one needs to sleep rbugh or on the streets.

The replort, entitled Little Piece of Heaven: Recommendations of the Housing is a Human Right Project, was jointly prepared by the Victorian Council of Social Service, the International Centre on Housing Rights and Evictions, Women's f.-lousing Ltd and Shelter Victoria.

According to Deb Tsorbaris, Chief Executive Officer of the Council to Homeless Persons, almost 100,000 people experience homelessness in Australia every night. Only 1 in 7 of these people find a bed in the homelessness service system. More than 500 homeless people per day are turned away from homelessness services funded by federal and state governments through the Supported Accommodation Assistance Program (SAAP). Funding for SAAP is inadequate to meet demand. Every day, around 210,000 people wait for public housing and 750,000 live in ‘housing stress', meaning that their housing costs are so great t at they cannot meet other basic needs.

The report calls for a significant expansion of SAPP to provide a comprehensive safety net which will ensure that all homeless people in Australia can access crisis accommodation and home1E1ssness assistance as of right. The report also calls for the Commonwealth Government to develop and implement a National Housing and Taxation Plan that increases resources to public and community housing and that includes strategies to align the supply of affordable housing with demand.

According to Rivkah Nissim, author of the report, both of these measures are required for Australia to comply with its obligations under international human rights law. Ms Nissim said that article 11 of the lntemattona/ Covenant on Economic Social and Cultural Rights (ICESCR), ratified by Australia almost 30 years ago, provides that all people have the right to adequate housing which enables them to live in security, peace and dignity. Article 2(1) of the ICESCR obliges Australia to take concrete steps and use the maximum of its available resources to ensure that all people enjoy this fundamental right. To this end, Australia must develop a national housing strategy and increase the availability of affordable housing, including public and community housing, through direct expenditure and fiscal and taxation policy reform.

The Scottish Government recently enacted legislation meaning that, by 12012, every Scottish citizen will have an enforceable right to adequate housing. The Scottish Government has prioritised housing as a human right and has backed its legislation with significant financial commitments. It's time we did more to address our own "national disgrace"', she said.

Ms Nissim added that even while Australia is progressing towards full realisation of the right to adequate housing, it must ensure that 'core minimum standards' are met under the /CESCR, including provision of sufficient homelessness services to ensure that all homeless people can access crisis accommodation and support as of right. According to the Australian Federation of Homelessness Organisations, this would require at least a 40% increase in expenditure on SAAP.

Other key recommendations in the report include that

1. The human right to adequate housing should be recognised in law by federal and state governments.

2. Federal, state and territory governments should amend anti­ discrimination and equal opportunity legislation to prohibit discrimination on the ground of 'social status', including a person's status as homeless, unemployed or a recipient of social security benefits or welfare assistance. Contrary to articles 2(1) and 26 of the International Covenant on Civil and Political Rights and article 2(2) of the ICESCR, discrimination against people who are homeless, unemployed or social security recipients is widespread but lawful across Australia.

3. Consistent with Australia's obligations in relation to realisation of the right to social security under article 9 of the ICESCR, social security payments should be made available to all people who experience a loss of income beyond their control or who require income support for a dignified human life. Further, social security payments should be increased to levels above the Henderson Poverty Line so that recipients are able to meet their material needs and participate in society. Payments should be sufficient to ensure that recipients can afford adequate housing and maintain an adequate standard of living.

PHILIP LYNCH is Coordinator of the PILCH Homeless Persons' Legal Clinic.

New South Wales

NSW has been the real state of excitement in recent months (or does some other state make that claim on its car registration plates?) and here are some of the reasons.

Judges, juice and the Jones boy (no not that one)

Former NSW Attorney-General Jeff Shaw should not have resigned from the NSW Supreme Court. Only the NSW

Parliament can dismiss a judge and rather than accepting a tap on the ermine he should have waited for his erstwhile colleagues to move that way, a likely case of masterly inactivity if ever there was one.

Shaw was probably foolish on the night of his accident but he had been drinking. Who knows what his 'medical/drinking' problem is and he was wise to seek help.

The real issue though is not Shaw's conduct, and calls for breath testing of judges were fatuous. Within days of news stories appearing about evidence to the Police Integrity Commission enquiry into the 'missing' blood samples, a report was released about the extent of teenage drinking, especially the role of parents in providing the goods (Sydney Morning Herald, 24 November 2004) -perhaps we should breath test parents once a week?

Judges, unlike most others, have their activities assessed in the most open and transparent way. Their judicial conduct is open for all to see and subject to appeal. In all the political comment and media coverage about Shaw was there a single claim any of his decisions were shown to be flawed? Did anyone make a comparison of appeals against his decisions, their outcomes and how he fares on appeal compared to other judges? Of course not.

One commentator discussed the general question of having an 'independent' judicial appointments process (yawn). I would much prefer to see a far more open appointments process, including publication of the lists of names put forward for consideration of appointment (including why, and by whom). More broadly, publication of NSW District Court decisions on the Internet would be a practical contribution to assessment of judicial decision-making and accountability.

As to the 'Jones boy', does anyone remember Andrew Jones, federal member for Adelaide from 26 November 1966 to 25 October 1969, and at 22 the youngest MP ever elected to an Australian Parliament? He faced a spot of bother as a result of one of his first speeches after entering Parliament, when he stated that his fellow MPs were 'half-drunk half the time' (Sydney Morning Herald, 3 May 1967). Young Master Jones had to apologise to the House. The then Prime Minister, Harold Holt, observed 'I do not think that many people in Australia seriously believe that this Parliament is composed of idlers and boozers' (Hansard, 2 May 1967, 1575). What would they think these days? Alcohol use, unlike drug use, causes a great cost to the community and sacrificing a good judge will not reduce this cost.

Shaw may have broken the driving laws on the night in question but in paraphrasing and updating the conversation between Coke and James I, judges and all citizens, like kings, should be subject to no one save God and the law - Jeff should be back on the bench.

Cloud over James Hardie asbestos compensation

The fallout from the Jackson Report on the results of an Inquiry into the Medical Research and Compensation Foundation continues to float over NSW affairs. The report is available at <> and is a great read.

At the time of writing, proposals were still being considered about how to make up the massive shortfall of funds (about $2 billion) available to the Foundation. Provisional liquidation is a possibility. Whether James Hardie or government (read taxpayers) foot the bill will depend on the outcome of ongoing discussions.

The company apparently has had actual knowledge of the dangers of asbestos since 1938 (Report, Volume 2, Annexure J), so the real, unaddressed threshold issue is the limited liability of companies and the use of company law to achieve various non­accountable ends.

Sooner or later someone is going to wake up to the fact that the use of the corporate form to avoid liability has been nurtured and encouraged by all state and federal governments, especially over the last 20 years. Our Fede'ral Treasurer is quoted as telling Hardie to 'forget the legal issues, forget the restructuring, just get on and fix it' (The Australian, 26 November 2004). Doesn't he remember what has been said whenever corporations law is changed to facilitate corporate activities (eg look at comments about s 180 and directors' duties).

The Hansard debates over the enactment of the Special Commission of Inquiry Games Hardie Records) Act 2004 (NSW) make entertaining reading. The Act transfers relevant corporate records to ASIC for use in any action under its legislation; allows ASIC to give other agencies and people access to the records for their purposes, including civil litigation; and enables claims of client legal privilege to be overridden.

During the debates several important issues arose (see Hansard for 20 and 22 October 2004):

• What is the total likely exposure of the NSW Government · and local councils to potential claims, given that NSW assets may be more accessible than those of Hardie, now located elsewhere (legally, if not actually)?

• Should client legal privilege be removed in relation to the records taken by the Special Commission? The Attorney General still must approve use of the records but neither side asked why an artificial legal person, such as a corporation, should have the privilege in the first place.

• The NSW Government's knowledge of, and support for, Hardie's restructuring plans was raised but not answered. For some background on how corporations approach dealings with governments, one might read Annexure K of the Special Commission's report, which reproduces a copy of a paper to the Hardie board. Especially noteworthy is the pen-picture it provides of various NSW Ministers and their advisers, and their likely political response (see p147 of Volume 2 of the report). I wonder what the subjects thought of these portraits?

• The Premier was quite emotional in supporting the legislation, using words and phrases like 'outraged', 'unsavoury', 'corporate manipulation', 'shock and disappointment', 'abhorrent corporate conduct' and 'ethical backbone' as he urged the passage of the legislation and the pursuit of remedies against Hardie. I wondered if our Americophile Premier had in the back of his mind the words of one of his heroes, President Chester A Arthur, who on 6 December 1881 spoke in similar terms about the so-called 'star route frauds' and emphasised his determination to pursue wrongdoers 'with the utmost vigor of the law'.

• The Premier noted one possible use for the records would be for the Office of the Legal Services Commissioner (OLSC) to 'scrutinise' the conduct of the lawyers who gave advice in the matter. This would be a useful project to follow up, as at the time of writing the website of the OLSC shows no reference to the Premier's implied invitation for it to act.

• ALP MP Paul Lynch observed, 'As one of the few members of this Parliament who is concerned about rights and liberties being taken away, I must say that it is a pleasure to see rights

being taken away from the big end of town rather than other parts of society'. Even though the Act does not actually do this, others have to approve action, the Premier recognised who should foot the bill when he stated: 'To put it directly, JHI-NV still has in its pockets the profits made by dealing in asbestos, and those profits are large enough to satisfy most, perhaps all, of the claims of victims of James Hardie asbestos'.

A little lateral thinking is now required, so here is a solution for fleshing out: the NSW Government merely needs to legislate to confiscate (ie resume) all land owned by any member of the James Hardie group (including that owned by any relevant director, executive officers, etc) and sell it back to them at a price to cover all potential claims, including those of the NSW Government and local councils. If Hardie did not want to buy, the land could be sold on the open market

Is there any NSW constitutional impediment? No, and several superior court decisions can be quoted to say so. Does the NSW Government still have such corporate law­ making powers? Yes, since the referral under the Corporations (Commonwealth Powers) Act 2001 (NSW) is highly specific and retains other law-making power for the NSW Government Would hot just compensation be required? No, since an amendment to section 3 of the Land Acquisition Gust Terms Compensation) Act 1991 (NSW) and other parts of the Act could solve that problem.

Who would object? In NSW, certainly not a tort victim, an injured motorist or a worker, and certainly not a builders' labourer.

Worries about universities, Fol and 'independent' bodies

We should be worried about proposals for states to cede their powers ,over universities to the Commonwealth Government Actions, by the Independent Commission Against Corruption (ICAC) ,and the Ombudsman demonstrate yet again how closely universities must be regulated. Federal 'non-control' would hasten the decline of universities as they are turned into carbon companies of companies operating in the marketplace.

The ICAC is conducting an inquiry into the handling of plagiarism by the University of Newcastle and the transcripts of the evidence make entertaining reading for anyone (especially the ghost of Michael Spautz) interested in the wider effect of fee-paying students on academic endeavours.

The ICAC also published a report in October into use of fraudulent documentation by students to obtain entry into three NSW universities.

Finally, the NSW Ombudsman's annual report detailed its conciliation of a complaint by a professional association about its contract with an unnamed university. Assets with a substantial dollar value and the right to run courses were transferred to the university by the association and their future relationship was to tie governed by a written contract. The university apparently took a postmodern, perhaps innovative, approach to the contract and felt the provisions could be safely ignored as they really did not mean what they said. The association thought otherwise. The university council played a minor role, treated he way company boards are often treated by senior managerj-lent The Ombudsman's office was able to conciliate the complaint and improve the working relationship. On this occasion a good result was obtained but given the ICAC's interest in universities it might borrow the Ombudsman's office file on the matter.

The NSW Ombudsman's annual report also noted two significant Fol issues:

• the seventh survey of Fol reporting showed a 45% increase in applications, a 16% fall in requests granted in full, and compliance with mandatory reporting requirements at its lowest level since 1997

• the need for amendment to the Freedom of Information Act 1989 (NSW) to protect the authors of documents released as a result of an Fol request. Following a NSW Court of Appeal decision and the High Court's subsequent refusal to grant leave to appeal, an author of a document can be sued for defamation over the words contained in a released document This result is clearly contrary to the policy underlying s 64 of the Act and has implications for citizens, agencies and MPs. The Ombudsman wrote to the Premier seeking an amendment (which should be retrospective) and is awaiting a response.

Those interested in the nearness to death of Fol law in NSW should be raising hell with the Premier, their local MPs and their local media.

Finally, a report is awaited of a review of the ICAC. The trouble with 'independent' bodies is that once created they tend to be so in some cases. Some politicians do not seem to want their activities scrutinised by anyone, except each other, so one can only hope any review will reject watering down of the ICAC's powers. Is Ian Temby eligible for an encore term as Commissioner I wonder?

PETER WILMSHURST is a Sydney lawyer.


Shaping access to justice

The legal assistance community came together in Brisbane on 18 and 19 November 2004 for the Legal Aid Congress 2004, 'Shape the provision of legal aid services in Australia'. Julian Burnside QC kick-started proceedings with a passionate plea for increased funding for the many who cannot afford legal representation, pointing out the serious costs of denying access to justice.

Delegates then got down to business, discussing a range of hot topics.

The future of indigenous legal services and community legal centres

With the Commonwealth Government's tendering process for indigenous legal services a current concern (in Queensland, tenders are due in March 2005), there was examination of the tendering process, as well as exploration of ongoing issues such as the under-funding of the Aboriginal and Torres Strait Islander Legal Services (ATSILS) and retention of lawyers. The importance of co-operative relationships between ATSILS and Legal Aid Commissions was recognised.

Sharon Payne, Director of the Northern Australian Aboriginal Legal Aid Service, spoke about the future of indigenous justice, emphasising the importance of traditional law methods. She advocated circle sentencing, as the justice experienced by those participating is 'inclusive, restorative and healing'.

The question of how community legal centres can retain their grass roots heritage as well as adapting to ensure sustainability for the future was also discussed.

The lack of lawyers in the bush

Some practical ways of attracting lawyers to rural and regional Australia, and retaining them long term, were identified, including Legal Aid Queensland's (LAQ's) Regional Solicitor Program which involves LAQ paying the practical legal training course fee as well as 75% of a graduate's wage during their placement with a regional private law firm.

Legal aid research

An overview of themes explored in Australian legal aid research to date, as well as future directions for research, was provided by Professor Rosemary Hunter of Griffith University. There were also international researchers presenting on work undertaken in Canada, England and Wales.

Workshops looked at such topics as how to influence government so that access to justice is given priority, the relationship between human rights litigation and policy development work, best practice responses to children seeking legal help, and legal aid and civil law.

One of the many speakers the conference heard from was the President and CEO of Legal Aid Ontario, Angela Longo, who talked about challenges faced by the Canadian legal aid system, in many ways similar to issues in Australia.

Conference papers and outcomes of discussions are available at <>.

The right to a childhood

Queensland will soon be the only state in Australia where 17-year-olds are treated as adults by the criminal justice and prison systems. Victoria is soon to amend its legislation to come into line with other Australian states, leaving Queensland as the last state to address this human rights issue.

While many 17 year olds in Queensland are finishing grade 12 and are not allowed to enjoy adult privileges, including the right to vote or drink, others are incarcerated in adult correctional facilities and exposed to the negative influences of mature offenders and a potentially dangerous environment.

While some 17-year-olds are placed in a segregated environment within adult prisons, many are not. For those who are, their segregation often has the discriminatory effect of precluding them from participating in activities or visits reserved for the older prisoners.

It would seem that changes in Queensland are still some way off, even as interested bodies prepare submissions to government, and reports are prepared on Australia's implementation of the UN Convention on the Rights of the Child for consideration by the UN Committee in 2005.

These changes have been contemplated in Queensland since the enactment of the Juvenile Justice Act 1992 (Qid). That Act was drafted to allow for extension of its operation to cover 17 year olds by regulation rather than legislative amendment. Twelve years have passed since that Act was introduced and despite significant amendments to the Act, those changes have still not been made. With all the other states aligning themselves with UN standards, surely Queensland will not be too far behind?

KAY ROSOLEN and YASMIN GUNN are solicitors with Legal Aid Queensland.

South Australia

Sex(uality) and the church

Recently, the subject of sexual abuse by clergy has received considerable Australia-wide attention. The Anglican Church conducted its own inquiry and the Report of the Board of Inquiry into the handling of claims of sexual abuse and misconduct within the Anglican Diocese of Adelaide, authored by the Honourable

Trevor Olsson and Dr Donna Chung, was completed in May this year. Since then, the Church has been exposed to additional media attention.

For example, the South Australian public saw Stateline's Ian Henscke drive nails into whatever future was left for former Archbishop ian George. We have also been kept informed of the pursuit and arrest of former St Peter's College chaplain Reverend Mountford, who fled the country after allegations against him of sexual abuse committed at the prestigious South Australian private school.

More recently, Australians were reminded that the Anglican Church is not a place of equality, when a meeting of the General Synod in Fremantle voted against ordaining women as bishops, and voted against affirming relationships between homosexual people. Suffice to say that at present the media has inflicted more wounds on the Church than Mel Gibson's recent gore fest, The Passion of the Christ

However, away from the limelight, the Anglican Church has been licking its wounds. The damning report by Olsson and Chung which led to the resignation of Archbishop lan George also stirred the behemoth from its slumber. Hand-picked moral crusaders have been doing what Anglicans do best: forming committees, establishing protocols and formulating policy.

In August, the diocese launched Healing Steps, an information booklet designed to help those who believe members of the Church have sexually abused them. It has appointed a Professional Standards Director, and produced an ordinance detailing what ought to be a minimum standard of professional behaviour among its clergy. The Church believes these actions will help to ensure that, in the future, those within the Church's care really will be within the Church's care. Then again, is it possible that the Church's machinations will preordain the same pattern of self-protection and aversion to public criticism of which its hierarchy was accused in the report by Olsson and Chung?

In the six months since the report was tabled, the Church has acted on further allegations of misconduct. No doubt, some of these allegations have been of a serious nature. However, how successful will the Church be at distinguishing abuse and misconduct from activities that are no more than the product of a liberal society, with all the joy and hurt that sometimes brings?

How, for example, will the Church deal with a disgruntled ex­ boyfriend when he approaches the diocese with claims that he and his clerical ex-girlfriend cavorted outside marriage? What should I do if I discover that my local vicar was once a vicaress? Should a parish be concerned about a priest and his wife when they're seen visiting a sex shop together?

The Church is concerned about the conduct of its clergy, but when does conduct become a cause for concern? A draft Code of Professional Ethics for the Practice of Pastoral Ministry, produced by the Child Protection Committee of General Synod, calls for church workers to be 'law-abiding and respectful of society's standards'. However, the same document also outlines what its authors believe to be appropriate conduct in matters of swearing, relationships and even attire. This author believes the Code would not look out of place as a feature article in CosmoTaliban.

In the current climate, the diocese of Adelaide has responded decisively to criticism about the way it has handled allegations of abuse and misconduct. For this it must be given some credit. However, amid conservative politics and armed with conservative policies and protocols, will the Church be able to distinguish abuse and misconduct from behaviour that simply falls outside the conservative pale?

If what the Church feared before the Olsson and Chung report is the same as it fears now, adverse public criticism, it may continue to respond poorly to allegations. The ramifications are that some of clergy will find themselves chastised, suspended and discharged when nobody has been abused and no misconduct has occurred.

The Anglican Church worries that if the behaviour of its clergy were known publicly it would bring evil report upon the Church. However, sometimes it is the manner in which the Church responds to allegations made about its clergy, or the Church's failure in view women and homosexuals as fully human, that brings evil report upon itself.

Hopefully, South Australians have seen the last of the media barrage about priests abusing children. Hopefully, we have seen the last of child abuse within the Church. However, if the Church continues to dehumanise women who wish to be bishops, homosexuals who wish to be blessed, and priests who do not live with ultra-conservative values, then hopefully we have not seen the last of what has been a very unchristian affair.

GREGOR DAWSON is a South Australian lawyer.


New Governor and Chief Justice

In late November Premier Paul Lennon is expected to announce that Chief justice William Cox is the new Tasmanian Governor, and that justice Peter Underwood is the new Chief Justice of the Supreme Court. The announcement has reportedly been delayed due to the fact that Justice Cox has been hearing a civil case involving the State of Tasmania.

Proposed new rape laws

Controversial new rape laws are to be debated by Tasmania's Upper House in late November. The proposed amendments to the Criminal Code deal primarily with the issue of consent, and direction1s to the jury.

The Bill provides that a mistaken belief of the accused may not be take to be honest and reasonable if

(a) the accused's belief arose out of self-induced intoxication, recklessness or wilful disregard; or

(b) the accused did not take reasonable steps, in the circumstances known to him or her at the time of the offence, to ascertain that the complainant was consenting to the act.

Model jury directions in the Bill specify that the complainant is not to be regarded as having consented to the sexual act only because she or he:

(a) did not say or do anything to indicate that she or he did not consent; or

(b) did not protest or physically resist; or

(c) was not physically injured; or

(d) on that or an earlier occasion, consented to another sexual act of the same type as the subject of the complaint, or another type, with the defendant or another person.

The Bill also specifies that the fact that the complainant did not say or do anything to indicate that she or he was consenting to the sexual act which is the subject of the complaint is normally enough to indicate that she or he did not consent.

The Law Society and a number of Members of Parliament have expressed concern that the amendments undermine the presumption of i11nocence. However, the Attorney General Judy Jackson argues that the amendments do not reverse the onus of proof, but simply put more responsibility on the accused to explain their actions.

SAMANTHA HARDY teaches law at the University of Tasmania.


States go it alone on defamation law reform

In the August 2004 issue of this column, it was reported that proposals for reform of the disparate defamation laws were mooted both at the state and federal level. Well, Victoria and the other states and territories have now decided to go it alone, leaving out the Commonwealth. In late 2002, the Standing Committee of Attorneys General set up a working group to look at defamation law reform. At their meeting in New Zealand in November this year they announced agreement on a uniform reform package which is to be introduced in each jurisdiction on 1 January 2006.

The model Bill ensures that truth (rather than truth and public interest) is an absolute defence. It removes the rights of surviving relatives to bring an action in defamation on behalf of a deceased, as well as finally removing the right of a corporation to sue an individual (hallelujah!). Hopefully, this will reduce the number of SLAPP (strategic litigation against public participation) suits considerably. Other notable provisions include imposing a time limit of 12 months for instituting a proceeding, capping damages to personal injuries levels (which, given the vast restrictions on personal injuries payouts thanks to the Ipp Report amendments, should be pretty low) and placing greater emphasis on offers to withdraw defamatory allegations and to publish apologies.

The Commonwealth, ever sceptical that uniformity among the states and territories can be achieved, has indicated that it is likely to proceed with its own Bill. Victorian Attorney General Rob Hulls has described the model Bill as a slap to the face of Darth Sidious ... err... Phillip Ruddock.

GLENN OSBOLDSTONE is a Melbourne lawyer.

Western Australia

Domestic violence: new Act

The Amendment (Family and Domesttc Violence) Bill was passed by the Western Australian Upper House on 19 October 2004 and came into operation on 1 December 2004. The Bill expands the grounds for violence restraining orders in family and domestic relationships and broadens the definition of family violence to include ongoing intimidating or offensive behaviour and emotional abuse.

In the Bill's second reading, WA Attorney General, Jim McGinty, said, The inclusion of emotional abuse is a new element, and acknowledges the insidious nature of this form of abuse'. This means behaviours that would have previously resulted in a . misconduct restraining order are now grounds for a violence restraining order if they occur within a family or domestic relationship.

Police will have a statutory obligation to investigate if they have a reasonable suspicion that a person is committing an act of family and domestic violence that is also a criminal offence. Police will also have the power to issue 24-hour on-the-spot restraining orders whether or not they have the consent of the protected person. In a provision that will bring WA into line with the rest of the country, consent as a defence to a breach of violence restraining order will be abolished. The Bill also provides for automatic life-long restraining orders (subject to the victim's consent) against perpetrators of serious offences such as sexual assault and grievous bodily harm.

The Bill followed a review of the Restraining Orders Act 1997 (WA) which compared the WA legislation with restraining orders legislation in other Australian states and overseas, the 2002 report of the Joondalup Family Violence Court, an Auditor General's report on the management and effectiveness of restraining orders, the state Ombudsman's investigation into the police response to assault in the family home and the Gordon inquiry.

Mr McGinty said that in WA police prepare approximately 12,000 family violence incident reports annually and that last year 15 people died at the hand of their spouse or partner, while four other family members were killed in domestic violence situations.

JULIAN HOSGOOD is a law student at Murdoch University.

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