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Canberra Law Review Volume 16 Issue 1 CANBERRA LAW REVIEW Volume 16 Number 1 Canberra Law School University of Canberra 2019 Canberra Law Review (2019) 16(1) ii Canberra Law Review The Canberra Law Review is a peer-reviewed law journal published each year by the Canberra Law School at the University of Canberra. It brings together academics, other scholars, legal practitioners, and students within and outside the University. It provides a peer-reviewed open access venue for innovative, cross-disciplinary and creative scholarly articles and commentaries on law and justice. Submissions The editors of the Canberra Law Review seek submissions on aspects of law. We welcome articles relating to theory and practice, and traditional, innovative and cross-disciplinary approaches to law, justice, policy and society. Guidelines • Scholarly articles should be 5,000-14,000 words, case notes 1,500-3,000 words and book reviews 1,000-1,500 words (including references). • Submissions should conform to 4th edition of the Australian Guide to Legal Citation (AGLC4) and be 12 pt Times New Roman. • Scholarly articles should be accompanied by an abstract of no more than 250 words. • Submissions should not have been previously published in another journal. Submissions should be emailed as MS Office .docx or .doc documents to [email protected]. Peer-Review Scholarly articles are blind peer-reviewed by two reviewers. Open Access Consistent with the Canberra Law School’s emphasis on inclusiveness, the Review is open access: an electronic version is available on the University of Canberra website and on the Australasian Legal Information Institute (AustLII) website. ISSN ISSN 1320-6702 (Print) and ISSN 1839-2660 (Online) Canberra Law Review (2019) 16(1) iii TABLE OF CONTENTS Professor Wendy Lacey FAAL 1 Foreword The Editors 2 Introduction to Issue 16(1) Linda Crebbin 5 Looking forward, looking back: The wisdom of the Magic 8 Ball Matthew Rimmer 10 Australia’s Stop Online Piracy Act: Copyright Law, Site- Blocking, and Search Filters in an Age Of Internet Censorship Bede Harris 65 The Case for Codifying the Powers of the Office Of Governor-General Bruce Baer Arnold 79 On a screen darkly: Outback Noir, Erasure and Toxic Masculinity Drew Gough 99 Op Ed: When it comes to cybersecurity, lawyers don’t need to embrace Dr Strangelove Tom Round 109 ‘Recountbacks’ and Section 44 of the Constitution Student Section Clarissa Shortland 132 Face to Face with the Law: Moutia Elzahed v Commonwealth Renee Mastrolembo 143 Imminence and States’ Right to Anticipatory Self-Defence Josh Mills 175 ‘Job Security and the Theoretical Basis of the Employment Relationship’ Canberra Law Review (2019) 16(1) 1 Foreword 2019 is a special anniversary for Canberra Law School, the 25th anniversary of Law teaching at the University of Canberra. The School aspires to be a key part of the Canberra legal community and justice system. It seeks to produce work-ready graduates who are capable, curious and committed to excellence. Those attributes are of particular value in an environment where change is a constant, social ‘givens’ about social or personal values are eroded through practices such as fake news and marketisation, and graduates can seize opportunities to both serve clients and foster justice by being creative. The School also aspires to contribute to a broader community of understanding that encompasses specialists and non-specialists alike, locally and across Australia. In 2019, as in the past, stakeholders expect established and emerging scholars to engage in public discourse. The responsibility of academics extends beyond the lecture theatre and online teaching spaces. I am accordingly pleased to note the scope and relevance of this issue of the Canberra Law Review, a peer-reviewed journal that brings together academics from the Law School, distinguished outside contributors and – most welcome – some of our students. The contribution of those students is a reminder that legal scholarship is an adventure that does not stop when the last assessment item has been submitted and the student appears on stage to receive her/his testamur. As an anniversary issue the Review features the thoughtful address given by distinguished practitioner Linda Crebbin AM at the event last month marking the School’s 25th. She has been a valued contributor to teaching at the University in addition to exemplary work within the justice system. The Review includes incisive articles on technology and constitutional law by Professor Matthew Rimmer (QUT) and Senior Lecturer Bede Harris (CSU). Drew Gough critiques debate about cybersecurity. Canberra Law School’s Bruce Baer Arnold writes about Australian film’s understanding of sexual assault and power. Three student pieces draw on recent Honours dissertations. The articles engage with questions about innovation, justice, public administration, commerce and law as a language sometimes misunderstood or contested by the underprivileged and privileged alike. In the coming year I look forward to special issues of the Review that engage with questions about #MeToo, about Open Science and about artificial intelligence. Professor Wendy Lacey FAAL Executive Dean Faculty of Business, Government & Law Canberra Law Review (2019) 16(1) 2 Introduction This issue of Canberra Law Review marks the 25th Anniversary of Canberra Law School, situated within the Faculty of Business, Government & Law at the University of Canberra. The articles in this issue look forward and backward, engaging with social, political, cultural and economic issues that have faced Australia in the past and will be salient in future as the nation – and legal practitioners, students and academics – grapple with questions about cybersecurity, the long shadow of colonialism, identity and how non-specialists understand the law. The latter aspect is especially relevant for law teaching amid controversy about democratic deficit and disengagement from mainstream politics or legal mechanisms in favour of poujadist fringe parties and assertions of sovereign citizenship, and perceptions that legal study is a matter of maximising revenue rather than justice. As an Anniversary issue the Editors have taken an inclusive approach, featuring work by academics, an adjunct and – for the first time – current students at Canberra Law School. That inclusiveness means the Review features work that is longer and shorter than usual, with a mordant ‘Op Ed’ by information technology analyst Drew Gough and an exhaustive piece by Matthew Rimmer. The issue kicks off with the speech by Linda Crebbin AM at the 25th Anniversary event on 12 September, which brought together current/past law students and academics with stakeholders from government, business and civil society. Ms Crebbin’s characteristically incisive, entertaining and humane view of law past and future reflects her contribution to the School and justice over many years. That is especially notable because excellent people are always in demand and ‘giving’ to the community comes at a personal cost. Matthew Rimmer’s ‘Australia’s Stop Online Piracy Act: Copyright Law, Site- Blocking, and Search Filters in an Age Of Internet Censorship’ offers an incisive critique of law around a recurrent controversy: access to online content. The article argues that Australia’s copyright regime for site-blocking and search-filtering poses a threat to consumer rights, competition policy, and Internet Freedom. Professor Rimmer first reviews the model of the Copyright Amendment (Online Infringement) Act 2015 (Cth) introduced by the then Minister for Communications & the Arts the Hon. Malcolm Turnbull. Secondly, the article explores the flurry of cases brought by the film, television, and music industries in respect of the legislative regime. Thirdly, the article evaluates the expansion of the regime with the Copyright Amendment (Online Infringement) Act 2018 (Cth). In light of such developments, Rimmer calls for a new approach for Internet regulation by the Australian Parliament. His conclusion highlights the need for a bill of rights in Canberra Law Review (2019) 16(1) 3 Australia for a digital age: a Magna Carta to protect an open and accessible Internet. Dr Bede Harris inspired a generation of graduate and undergraduate students at Canberra Law School, many of whom still use ‘what would Bede say’ as part of their mental map. His ‘The Case for Codifying the Powers of the Office Of Governor-General’ suggests that debate on the question of whether Australia should become a republic has masked a far more important underlying issue, namely whether the conventions of the office of Governor-General should be codified. The issues are linked in that opinion polls have consistently shown that if Australia was to become a republic, voters would prefer a model which included direct election of a President, yet the risk that an elected President might breach the conventions of the office has proved to be an obstacle to its adoption. Codification of the powers of the office would address this problem. It would also provide an opportunity to clarify areas of uncertainty that became evident during the constitutional crisis of 1975 and to bring the text of the Constitution into alignment with how responsible government actually operates. Codification would therefore be beneficial irrespective of whether Australia became a republic. The constitutions of many other countries – both those that have retained the link to the Crown and those that have become republics – provide examples of how this might be done. The article ends with
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