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Author: Castan Centre

  • Peter Dutton wants to deport criminal dual citizens. We already have laws for that

    By Luke Beck

    Opposition Leader Peter Dutton has floated the idea of amending the Australian Constitution to allow government ministers to strip dual citizens of their Australian citizenship if they commit serious crimes related to terrorism.

    Almost immediately, Dutton’s coalition colleague and Shadow Attorney-General Michaelia Cash walked back the idea, saying the Coalition had “no plan” for a referendum.

    Dual citizens can already lose their Australian citizenship if they commit terrorism offences. 

    So what does the Constitution say about the issue?

    Citizenship cessation

    Under the Australian Citizenship Act, there are three main ways an Australian citizen can cease their Australian citizenship.

    First, a dual citizen can voluntarily renounce their Australian citizenship. Some people choose to do this if they move overseas and don’t intend to return to Australia.

    Second, the government can revoke a dual citizen’s Australian citizenship if they obtained it by fraud. The logic here is that the person was never really eligible for Australian citizenship in the first place.

    Third, and most seriously, a court can – if the government asks it to – strip a dual citizen of their Australian citizenship as part of the sentencing process for serious crimes such as terrorism and foreign incursions. 

    In deciding whether to impose this punishment, the court must be satisfied the person’s crime was “so serious and significant that it demonstrates that the person has repudiated their allegiance to Australia”.

    In other words, dual citizen terrorists can already lose their Australian citizenship.

    What does the Constitution say?

    Federal parliament can make laws only on certain subject matters, as listed in the Constitution. One of those subject matters is “naturalisation and aliens”. 

    In a 2022 case called Alexander, the High Court confirmed the naturalisation and aliens power allows the federal parliament to pass laws taking away a person’s citizenship if the person has done something that shows they had repudiated their allegiance to Australia. 

    That case concerned an Australian-Turkish dual citizen who travelled to Syria to fight with the Islamic State militant group. That kind of voluntary conduct clearly repudiates allegiance to Australia.

    But to be valid, a federal law must not only fall under one of the listed subject matters such as “naturalisation and aliens”, it also must not breach any limitation on the federal parliament’s power.

    An important limitation on the federal parliament’s lawmaking power is keeping federal judicial power separate from the power of the parliament and the executive. This is called the “separation of powers”.

    The separation of federal judicial power is an important constitutional concept. The idea is that it prevents the parliament or government ministers interfering in the role of the courts or usurping the role of the courts. 

    Attempts at legislation

    Only courts can exercise federal judicial power. Judicial power includes things like imposing punishments on people for criminal conduct. This is where past citizenship stripping laws have run into trouble.

    The problem with the law in the Alexander case was that it allowed a government minister to take away the terrorist’s Australian citizenship, rather than a court, and even if the person had not been first convicted by a court. 

    So while the High Court ruled the parliament could legislate under the aliens power, it found ministers cannot decide guilt or punishment.

    The government thought the problem with the law was simply the lack of criminal conviction. So the parliament passed a new law allowing a government minister to strip dual citizen terrorists of their Australian citizenship, but only if they had first been convicted by a court. 

    But the High Court struck down that law in a 2023 case called Benbrika.

    Benbrika had been convicted of terrorism offences in the courts, then a government minister made an order taking away his citizenship. 

    The problem with the law, the High Court said, was that a government minister was imposing a punishment. Only courts can impose punishment under the separation of powers.

    So in response to that decision, the federal parliament passed another law. This time the new law allowed the courts to strip a dual citizen of their Australian citizenship as a punishment as part of the sentencing process for serious crimes like terrorism. 

    This is the law that’s currently in place. It avoids the separation of powers issue. There is no constitutional problem with courts imposing punishment for crimes.

    So what does Peter Dutton want to do?

    Peter Dutton’s comments suggest he wants government ministers – rather than courts – to impose the punishment of removing citizenship. He hasn’t said why or what purpose this would serve, apart from “keeping our country safe”. 

    The only way to allow federal ministers to impose punishments is to change the Constitution through a referendum that inserts a new provision overriding separation of powers rules.

    Given Australia’s long history of defeated referendums, such a vote is unlikely to succeed. 

    That’s if it makes it out of the gate. Reported tensions within the Liberal party suggest it may not get off the ground to become official Coalition policy.

    Professor Luke Beck is an Academic Member of the Castan Centre for Human Rights Law and is a Professor of Constitutional Law within the Faculty of Law at Monash University.

    This article is published from The Conversation under a Creative Commons Licence. Read the original article here.

    This post was originally published on Castan Centre for Human Rights Law .

  • Three reasons why Australia is unlikely to follow Trump’s anti-trans campaign

    By Paula Gerber

    Many people’s heads are spinning at the rapid rate that Donald Trump has been signing executive orders since becoming president – 70 in the 30 days since he took office. This is in stark contrast to Joe Biden, who averaged 41 executive orders a year, and Barack Obama, who averaged 35 a year.

    Several of Trump’s executive orders, directly or indirectly, target the trans community.

    Take, for example, Executive Order 14168, signed on 20 January, 2025, the first day of Trump’s second term. With the grandiose title of “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government”, it states that:

    “Across the country, ideologues who deny the biological reality of sex have increasingly used legal and other socially coercive means to permit men to self-identify as women … It is the policy of the United States to recognise two sexes, male and female. These sexes are not changeable, and are grounded in fundamental and incontrovertible reality.”

    And Executive Order 14187, entitled “Protecting Children From Chemical and Surgical Mutilation”, which asserts that:

    “Across the country today, medical professionals are maiming and sterilising a growing number of impressionable children under the radical and false claim that adults can change a child’s sex through a series of irreversible medical interventions. … Accordingly, it is the policy of the United States that it will not fund, sponsor, promote, assist, or support the so-called ‘transition’ of a child from one sex to another, and it will rigorously enforce all laws that prohibit or limit these destructive and life-altering procedures.”

    Executive Order 14187 has been successfully challenged in a federal district court with a judge issuing a temporary restraining order that prohibits federal agencies from conditioning or withholding federal funding based on the fact that a healthcare entity or health professional provides gender-affirming medical care.

    Another Trump initiative is the removal of the T from the LGBTIQ+ acronym on government websites, including, for example, the national parks’ Stonewall Monument website and the State Department’s website providing information for people considering adoption, which has been changed from “Resources for LGBTQI+ Prospective Adoptive Parents” to “LGB Prospective Adoptive Parents”.

    These changes not only deny the existence of trans people, but also intersex people, being those born with sex characteristics that do not fit typical definitions for male or female bodies, including sexual anatomy, reproductive organs, hormonal patterns, and/or chromosome patterns.

    The Queensland government appears to be taking a leaf out of Trump’s playbook, issuing a directive last month that bans the use of puberty blockers and gender-affirming hormones for all new patients under the age of 18.

    These actions in the US and Queensland are causing significant distress to the trans community in Australia, who fear they’re about to become the target of similar attempts to erase their existence.

    It’s therefore timely to ask: “Is Australia going to go down the same path?”

    There are three recent developments that suggest the answer to this question is a tentative no.

    The first is that federal Minister for Health Mark Butler on 25 January announced a NHMRC review into gender-affirming care for trans and gender-diverse children, with a view to developing national guidelines for consistent and appropriate clinical practice for young Australians.

    The guidelines will be developed by experts and be based on the evidence, rather than leaving it to politicians to make decisions about who can access healthcare, and the nature of that care.

    The second indicator that the rights of the trans community in Australia will be protected is the Federal Court decision in Tickle v Giggle.

    In that case, decided last year, Justice Bromwich awarded damages to Roxanne Tickle, a trans woman, to compensate her for the discrimination she was subjected to when she was excluded from the Giggle for Girls app, which was promoted as being for women only.

    The court held that the sex that a person is presumed to be, and which is assigned to them at birth, is changeable. In other words, Trump’s assertion in Executive Order 14168, that sex is immutable, has already been considered and rejected by the Australian Federal Court.

    The third development that suggests Australia is unlikely to copy the anti-trans moves we’re seeing in the US is the decision of the Australian Administrative Review Tribunal in the case of Lesbian Action Group v Australian Human Rights Commission, handed down on 20 January – coincidently, the day Trump was inaugurated as president.

    The Lesbian Action Group (LAG) applied to the tribunal for a review of the Australian Human Rights Commission’s decision not to grant LAG an exemption under the Sex Discrimination Act that would allow it to hold events that were open only to “lesbians born female” – that is, events that excluded trans women.

    The tribunal upheld the decision of the Australian Human Rights Commission to not provide LAG with a licence to discriminate on the basis of gender identity, noting it would be tantamount to “endorsing overt acts of discrimination” that was contrary to the intention of the Sex Discrimination Act.

    While these two decisions upheld the rights of trans and gender-diverse individuals to not be discriminated against on the basis of their gender identity, the unsuccessful parties in both cases – Giggle for Girls and LAG – have filed appeals.

    This means there remains a degree of uncertainty as to the final outcomes. But for now, at least, the law is clear – sex is changeable, and it’s unlawful to discriminate against trans people on the basis of their gender.

    Professor Paula Gerber is a Professor in the Monash University Faculty of Law and an Academic Member of the Castan Centre for Human Rights Law.

    This article was originally published in Monash Lens. You can read the original article here.

    This post was originally published on Castan Centre for Human Rights Law .

  • How many deaths will it take before Australia has a Human Rights Act?

    By Scott Walker and Melissa Castan

    In January 2020, Veronica Nelson, a proud Gunditjmara, Dja Wurrung, Wiradjuri and Yorta Yorta woman, died in the custody of the state of Victoria, having been refused bail for relatively minor non-violent offences.

    In July 2021, XY, a proud young Wemba Wemba woman, died under the care of the Victorian Department of Families, Fairness, and Housing (DFFH) while living in a residential care unit. XY was just 17 years old at the time of her death, and had been removed from her family in 2013 by child protection services.

    Both cases reflect systemic failings in the care of these two vulnerable people – systemic failings that resulted from a failure to protect, respect, and fulfil their human rights, and led to their deaths.

    In each case, the coroner made significant findings of human rights breaches and deficiencies in the way in which public authorities protect people’s human rights.

    With the Parliamentary Joint Committee on Human Rights last month recommending that the Commonwealth Parliament enact a federal Human Rights Act, these cases provide an important demonstration of why human rights matter, and why specific laws protecting human rights are necessary across Australia.

    Why was the Coroner involved?

    The coroner has responsibility for investigating “reportable deaths”:

    • Violent, unnatural or unexpected deaths
    • Accidents or injury-related deaths
    • Deaths where the person’s identity is unknown
    • Deaths where the cause of death is unknown
    • Deaths in healthcare facilities or during or after a medical procedure
    • Deaths in care or custody, including people in inpatient mental health facilities, in police or corrective custody, or otherwise in care such as out-of-home care.

    When investigating a death, it’s the responsibility of a coroner to find the identity of the deceased individual and the cause of death. In addition, the coroner is empowered to make recommendations to the government or other public authority concerning the death, including recommendations relating to public health and safety or the administration of justice.

    The role of human rights in the work of the Coroner

    The Charter of Human Rights and Responsibilities Act 2006 (Vic) (Charter) sets out the human rights that are recognised in Victorian law and that are respected, protected and fulfilled through the requirement that other laws be interpreted compatibly with those rights, and that public authorities both act compatibly with those rights and give proper consideration with human rights when making decisions.

    The charter is relevant to the work of the Coroners Court of Victoria in three ways:

    • The charter applies to the Coroners Court itself
    • The charter applies to other public authorities
    • Charter rights may be engaged by the facts within the scope of the Inquest.

    In his findings into the death of XY, Coroner Simon McGregor also carefully articulated that when “considering whether a death is preventable, it is useful to have the human rights of the person in mind”, particularly as these “may identify future prevention opportunities”.

    In particular, the coroner ought to consider:

    • Whether one or more of the person’s human rights were engaged during the interactions that the person had with the state
    • If so, whether those rights were limited by the state during these interactions
    • If so, whether the limitations are reasonable and can be demonstrably justified
    • Whether alternative practices and procedures are available that more effectively balanced the right, and the limit on that right, including opportunities for prevention.

    How were human rights engaged in these cases?

    Veronica Nelson’s death occurred while she was in custody. Coroner McGregor identified six human rights that were engaged by the circumstances surrounding her death, and with which prison authorities were required to act compatibly, as a public authority.

    These included Veronica’s right to life and right not to be arbitrarily deprived of her right, her right to humane treatment when deprived of liberty, and her cultural rights as a First Nations person, which required assessment of “the cultural competence of those who interacted with her proximate to her passing, especially whether the treatment and care she received was culturally safe”.

    The coroner’s findings and recommendations in this case acknowledged the over-representation of First Nations people in the criminal justice system (particularly in custody), the failure of the criminal justice system to respond in a culturally safe way to the needs of First Nations people, and the over-representation of First Nations people in deaths in custody.

    Wide-ranging recommendations were made for improvement of responses within the criminal justice system, and recommendations for the parliament to amend the Bail Act because of its impact on people’s human rights.

    As XY was in out-of-home care at the time of her death, those providing her care were similarly required to consider and act compatibly with her human rights as a public authority.

    Coroner McGregor found that XY’s rights as a child and cultural rights as a young Wemba Wemba woman were each engaged in the facts of her death.

    Six months prior to her death, XY wrote a handwritten note to child protection services, pleading for the “support that a young Aboriginal female should be provided … This is a human right”, and stating that she “would like support … connecting with my Aboriginal heritage, Elders and community”.

    For Coroner McGregor, it was very clear that:

    “… XY had a voice, and it was articulate. Sadly it was not heard in time.”

    The coroner’s findings make for sobering reading, and reveal systemic issues in the child protection system, including racism and the inadequate consideration of cultural safety, which prevented XY from receiving adequate care.

    The coroner found that the DFFH’s “lack of action in pursuit of, and lack of documented consideration of XY’s voiced care goals, unjustifiably breached her human rights”.

    It was not enough merely to give XY the opportunity to express her views; those views must also have been meaningfully engaged with.

    The coroner made significant recommendations because of these failings, including the transfer of all Aboriginal and Torres Strait Islander children in state care to the care of an Aboriginal Community-Controlled Organisation, as previously recommended by the Yoorrook Justice Commission.

    What differences does protecting human rights in law make?

    In each of these cases, the human rights recognised in the Victorian charter enabled the coroner to consider the systemic issues surrounding the individual’s death, and provided a concrete legal basis to make recommendations for large-scale changes to practice and procedure to prevent other deaths in the future.

    In each case, it enabled large-scale failings in the protection of individuals’ human rights to be uncovered, particularly the rights of these individuals as First Nations people.

    Ensuring that similar laws are enacted across Australia, including in a federal Human Rights Act, would mean comprehensive human rights protections for vulnerable groups, and allow all people to flourish in freedom, equality and dignity.

    This article is part of the Castan Centre for Human Rights Law’s ongoing research into an Australian Human Rights Act, and forms part of the research under the Australian Research Council-funded project Real-time Rights-based Recordkeeping Governance.

    Scott Walker is a Research Fellow at the Castan Centre for Human Rights Law.

    Professor Melissa Castan is a Professor in the Monash University Faculty of Law and Director of the Castan Centre for Human Rights Law.

    This article was originally published in Monash Lens. You can read the original article here.

    This post was originally published on Castan Centre for Human Rights Law .

  • Roxanne Tickle’s Win in the Federal Court is a Historic Victory for Transgender Women

    By Paula Gerber

    It’s been a case closely watched by the transgender community and legal minds alike. Last week in the Federal Court of Australia, a judge ruled in favour of trans woman Roxanne Tickle in her anti-discrimination case against a social media app.

    Much of proceedings have centred around what constitutes a woman under Australian law, and whether someone’s sex can be changed.

    Federal Court Justice Robert Bromwich found Tickle was indirectly discriminated against on the basis of her gender identity when she was removed from women-only social media app Giggle for Girls.

    But the decision’s ramifications extend far beyond the key players in the case. It’s a landmark decision in favour of protecting the human rights of transgender people nationwide.

    What was the case about?

    Tickle is a trans woman who was initially allowed to join Giggle for Girls.

    Seven months later, that decision was reversed by the app’s founder and chief executive Sally Grover, after she looked at Tickle’s photo and formed the opinion that Tickle was a man. 

    Tickle then took Giggle for Girls to court, alleging discrimination on the basis of her gender identity: cisgender women were allowed to join Giggle, transgender women were not.

    What did the judge find?

    In addition to finding Tickle had been indirectly discriminated against on the basis of her gender identity, Justice Bromwich ordered the respondents, Giggle for Girls and Grover, to pay Tickle A$10,000 compensation. This is well short of the $200,000 Tickle was claiming. 

    The court also ordered the respondents pay Tickle’s legal costs, capped at $50,000. 

    Tickle had also sought an apology, but the judge declined to order that on the basis it would be “futile and inappropriate to require an inevitably insincere apology to be made”. 

    Grover may choose to appeal the decision.

    Defining ‘sex’

    The decision provides much needed clarity around the meaning of “sex”, a word not defined in the Sex Discrimination Act. Importantly, Justice Bromwich stated that “in its contemporary ordinary meaning, sex is changeable”.

    He also noted the concept of sex has broadened over the past 30 years, especially as people can change the sex listed on their birth certificates. He said: 

    The acceptance that Ms Tickle is correctly described as a woman, reinforcing her gender identity status for the purposes of this proceeding, and therefore for the purposes of bringing her present claim of gender identity discrimination, is legally unimpeachable.

    The court unequivocally rejected the argument that sex is immutable: that the sex that was presumed and assigned to a person at birth is the sex someone will always be. Justice Bromwich stated:

    the sex of a person may take into account a range of factors, including biological and physical characteristics, legal recognition and how they present themselves and are recognised socially.

    The court found Grover did not actually know that Tickle was transgender. She excluded her from the app based on her opinion that Tickle was a man. Justice Bromwich stated: 

    Of course, given Ms Grover’s views, her decision almost certainly would have been the same had she been aware of Ms Tickle’s gender identity. For Ms Grover, there is no legitimate distinction between transgender women and cisgender men.

    A cisgender person is someone whose gender identity corresponds with their sex assigned at birth.

    This judgement means it’s unlawful for a person to make decisions about whether someone is, or is not, a woman based on the sex that was originally recorded on their birth certificate, or based on how feminine they appear.

    It will constitute discrimination if a person is required to have the appearance of a cisgender woman as a prerequisite to accessing a particular service.

    Constitutional claim thrown out

    It was also argued by Grover and Giggle for Girls that Tickle’s claim of discrimination in breach of the Sex Discrimination Act should fail because that legislation is unconstitutional. 

    They argued this on the basis that the Commonwealth has no power under the Australian Constitution to make laws relating to anti-discrimination. 

    This argument was roundly rejected by Justice Bromwich. He found the foreign affairs power in the Constitution authorises the government to enact laws giving effect to Australia’s international treaty obligations. 

    The Sex Discrimination Act was enacted to give effect to Australia’s obligations under the International Covenant on Civil and Political Rights. Article 26 of the Covenant reads:

    […] the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

    The judge held the words “other status” include discrimination on the basis of gender identity. Thus, the Sex Discrimination Act, including the amendments made in 2013 to prohibit discrimination based on gender identity, are constitutionally valid.

    The judgement in this case provides much needed clarity around the legal recognition of trans women as women. It also better defines the meaning of gender identity discrimination in various sections of the Sex Discrimination Act. 

    It is a victory not just for Tickle, but for all trans women, who now know with certainty that federal sex discrimination laws protect them as women from discrimination based on their gender identity.

    Professor Paula Gerber is a Professor in the Monash University Faculty of Law and an Academic Member of the Castan Centre for Human Rights Law.

    This article was originally published in The Conversation. You can read the original article here.

    This post was originally published on Castan Centre for Human Rights Law .

  • Lawyer X Scandal: Denying the Rights of those Affected Comes at a Cost

    By Julie Delebjak

    The Victorian government has introduced legislation into parliament that will override the Charter of Human Rights and Responsibilities Act 2006 (Vic) (“Charter”).

    The State Civil Liability (Police Informants) Bill 2024 extinguishes civil actions arising out of the Lawyer X saga, in which criminal barrister Nicola Gobbo became an informant for Victoria Police.

    Gobbo informed on clients she was ostensibly representing, likely undermining her clients’ defence to criminal charges, for which they were ultimately convicted.

    The High Court of Australia described Gobbo’s actions as “fundamental and appalling breaches of [her] obligations”, considered Victoria Police’s conduct as “reprehensible” and constituting “atrocious breaches” of their duties, and concluded that the relevant prosecutions were “corrupted in a manner which debased fundamental premises of the criminal justice system”.

    The Royal Commission into the Management of Police Informants made 111 recommendations.

    Having had their criminal convictions overturned because of the associated miscarriages of justice, individuals are now seeking compensation from the state of Victoria arising from their wrongful conviction and false imprisonment.

    Bid to limit civil liability

    The bill aims to “limit the civil liability of the State” by extinguishing any cause of action against the state of Victoria through which an individual seeks damages or other monetary compensation “relating to, arising from or in connection to” specified human sources, naming Nicola Gobbo (and solicitor Joseph Acquaro, subsequently identified as another police informant).

    The bill will apply prospectively and retrospectively, including to proceedings that have already commenced but are not yet determined.

    The state of Victoria is broadly defined, including current and former members of Victoria Police and the Office of Public Prosecutions. Notably, it doesn’t extinguish causes of action brought against Gobbo.

    Extinguishing such causes of action will deny the rights of many involved. Gobbo has genuine reasons to fear for her safety, with the evidence before the High Court that her risk of death was “almost certain”, so she may pursue claims that rely on her rights to life and bodily integrity.

    Individuals who were imprisoned based on Gobbo’s informing may pursue claims of malicious prosecution, wrongful conviction and false imprisonment, and those claims may rely on their rights to a fair trial, not to be arbitrarily detained, to family and home.

    Such claims may not succeed because rights are not absolute. Under the Charter, rights can be restricted. First, some rights are conferred in qualified form, including the right to liberty, which protects only arbitrary deprivations of liberty (non-arbitrary deprivations of liberty, such as imprisonment upon criminal conviction following fair investigations and a fair trial, are allowed).

    Second, all rights are permissibly limitable – a limit may permissibly be imposed on rights where reasonable (for a legislative purpose that serves a pressing and substantial need) and demonstrably justified (where the legislative means chosen to pursue the legislative purpose is proportionate).

    Overriding the Charter

    Rather than allow these arguments to proceed to independent assessment through regular court processes, the Victorian government is overriding the Charter. The override allows parliament to pass legislation notwithstanding the Charter, such that Charter rights and all Charter enforcement mechanisms don’t apply.

    This means any rights arguments Gobbo or individuals may have pursued in the courts will not be aired. It also means the Victorian government’s analysis of the rights-impact of the bill, as per its Statement of Compatibility, won’t be tested, including the claims that the right to fair trial and against double jeopardy are not engaged, that the right to freedom from cruel, inhuman and degrading treatment or punishment isn’t violated, and that any limitations on the right to property are permissible.

    In addition, it means anyone interpreting the bill doesn’t have to consider rights in so interpreting, and any public authority need not align its actions and decisions under the bill with rights, nor give proper consideration to rights when making decisions under the bill.

    As an extraordinary power, an exercise of the override must be based on exceptional circumstances, and lasts for renewable five-year periods.

    Similarly to two earlier exercises of the power, the exceptional circumstances offered in the Second Reading Speech (to protect against additional expenditure linked to the royal commission and promote finality regarding the causes of action) don’t meet the internationally recognised threshold for suspending rights, and the five-year sunset requirement is expressly disapplied.

    A political compromise

    The override power supports parliamentary sovereignty – we all have rights, but parliament may seek to violate rights for the greater good via the override.

    This political compromise is at the heart of the Charter. Legally, the override isn’t needed – courts can’t invalidate rights-incompatible legislation, and parliament can enact rights-incompatible legislation.

    However, politically the government and parliament were only willing to guarantee rights if they could override the Charter when it suited political imperatives.

    Rights protect against the excesses of democracy; rights protect minorities, and the marginalised, vulnerable and unpopular, from majoritarian decision-making.

    Individuals imprisoned after criminal conviction are unpopular, yet rights are needed precisely to protect them. Such protection is most vital when the might of the state’s policing powers has been, as per the High Court, “so abused as to corrupt the criminal justice system”.

    The government is focusing on the cost of running the royal commission, the cost of delivering the royal commission’s recommendations, the cost of reforming VicPol’s human source management framework, the cost of IBAC oversight, and so on.

    But what is the cost of denying the rights of those impacted by this scandal, and the broader cost to society when rights can be so readily extinguished when an abuse of state power is uncovered?

    Associate Professor Julie Debeljak is an Associate Professor of the Monash University Faculty of Law and an Academic Member of the Castan Centre for Human Rights Law.

    This article was originally published in the Monash Lens. You can read the original article here.

    This post was originally published on Castan Centre for Human Rights Law .

  • An inquiry has recommended Australia legislate a Human Rights Act. Here’s why we need one

    By Paula Gerber and Melissa Castan

    Australia is the only Western democracy that does not have a national Human Rights Act, but this may be about to change.

    After an inquiry lasting more than a year, the Parliamentary Joint Committee on Human Rights has just delivered its report to parliament. The report sets out 17 recommendations, including that “the government introduce legislation to establish a Human Rights Act”.

    The report is a comprehensive 486 pages. Of particular note is that of the 335 submissions received, 87.2% (292) support the adoption of federal Human Rights Act. 

    So why do we need laws like this, and what might they look like?

    A ‘patchwork quilt’ approach

    Australia has a notoriously “patchwork quilt” approach to protecting human rights. We have some specific laws that aim to prevent discrimination based on particular attributes, such as sex, race, disability and age. 

    But these laws only prohibit discrimination. They don’t set out the basic human rights we all have, such as the right to a fair trial, the right to education and the right to freedom of religion and belief.

    Our existing anti-discrimination laws do not provide adequate protection against government conduct that violates human rights. As President of the Australian Human Rights Commission Rosalind Croucher noted:

    Policy failures like Robodebt and evidence from the Disability Royal Commission have focused community attention on the need for better human rights protections.

    Australia needs comprehensive laws that address the rights of all people across the country. Three of Australia’s eight states and territories have such acts, which means rights protection in Australia is a geographic lottery, with Victorians, Canberrans and Queenslanders the winners. 

    These state laws are having a positive impact on the lives of people in these jurisdictions. For example, in Queensland, a single mother who had experienced family violence was able to rely on the state Human Rights Act to stop her being evicted as a result of serious breaches of the lease caused by her ex-partner, who had refused to leave the premises. 

    A federal Human Rights Act in Australia would go a long way to fixing our current unequal and lopsided approach to protecting human rights.

    International broken promises

    It’s more than 40 years since Australia ratified the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR).

    When the government committed to these two landmark international treaties (along with more than 170 other countries), it promised to implement these human rights laws in Australia. It has not. 

    In 2017, the United Nations Human Rights Committee urged Australia to “adopt comprehensive federal legislation giving full legal effect” to the treaties. In the same year, the UN Committee on Economic, Social and Cultural Rights, stated:

    The Committee remains concerned that in spite of its previous concluding observations, the Covenant provisions are still not fully incorporated into the State party’s domestic legal order.

    Incorporating these treaties into a Federal Human Rights Act would bring us into line with all other western democracies who have implemented agreed global norms.

    What would a Human Rights Act look like?

    Helpfully, the parliamentary committee’s report includes a model Human Rights Act the government can use as a draft bill. The model legislation includes important fundamental rights, currently not well protected in Australia, such as, 

    • protection of children
    • protection of families
    • freedom of thought, conscience and religion
    • rights to culture
    • right to health
    • right to adequate standard of living
    • right to a healthy environment.

    What difference would laws like this make?

    Having a national Human Rights Act will not fix every human rights problem we have in Australia. It won’t magically end family violence, stop climate change or solve the housing crisis. No law alone can do this. 

    But it will create a more rights-respecting culture, in government decision-making and in the community broadly, which will contribute to a stronger society. Having a Human Rights Act will make government more attuned to respecting human rights and more accountable for the consequences if it acts contrary to human rights. 

    Laws like these won’t lead to human rights eclipsing other democratic values and concerns. This is because the proposed Human Rights Act allows reasonable and justifiable limits to be placed on rights. 

    For example, the right to free speech, is limited by defamation, privacy and hate speech laws, and the right to freedom of assembly can be limited by the need for public safety. The proposed Human Rights Act will “force parliament to be more transparent about the justifications for limiting rights, and this contributes to the democratic accountability of parliament”.

    So, will it actually happen?

    Unfortunately, this is not the first time that the government’s own appointees have recommended Australia enact a federal Human Rights Act. 

    In 2009, the National Human Rights Consultation Committee, led by Frank Brennan, recommended these laws. This recommendation was rejected, and we instead got a non-legislative “Human Rights Framework”. 

    It would be a brave government that rejects a second recommendation, particularly when it comes from their own parliamentary committee and has such wide community backing, as evidenced by the hundreds of submissions in support.

    Professor Paula Gerber is a Professor in the Monash University Faculty of Law and an Academic Member of the Castan Centre for Human Rights Law. Professor Melissa Castan is a Professor in the Monash University Faculty of Law and Director of the Castan Centre for Human Rights Law.

    This article was originally published in The Conversation on 31 May 2024. It is reproduced here under a Creative Commons License. You can read the original article here.

    This post was originally published on Castan Centre for Human Rights Law .

  • Launch of Australia’s National Prison Newspaper

    By Joseph Friedman

    In July of this year, a group of passionate individuals and criminal justice organisations will launch an ambitious project: Australia’s first national prison newspaper. The paper will be called About Time. 

    This will be a paper for incarcerated people, by incarcerated people. It will provide a window into the concealed world of incarceration and a voice to the incarcerated. It will be a platform for education and news, expression and hope. 

    There are approximately 42,000 people in Australian prisons. A staggering 38% of those are pre-trial detainees/remand prisoners; in other words, people who have not been convicted, yet remain in prison (though presumed innocent) because of Australia’s harsh bail laws. Of the 30,000 or so who have been convicted, most will leave within three years, and almost all will return to the outside world before they die. 

    These people must be treated with humanity. Under Article 10 of the International Covenant on Civil and Political Rights, the essential aim of treatment of incarcerated people in prisons is reformation and social rehabilitation. Punishment, deterrence, community protection and denunciation are all essential purposes of sentencing, but it is rehabilitation — to make one’s second chance a success — that takes precedence.

    How do we effectively rehabilitate convicted felons? How do we help them leave with a stronger moral framework, with a purpose that drives them to positive acts? 

    In conversations with currently and formerly incarcerated people, and in focus groups we ran in the lead up to launching this newspaper, one common theme we heard was that people in prison need something to do. They have so much time every day, and so little to do. They are pent up, frustrated, incredibly bored. 

    Our newspaper seeks to alleviate that problem, at least to some extent. People incarcerated in Australia have little or no access to the internet, few news sources and limited opportunities for self-expression. We understand that these people need a consistent, accessible and reliable platform for news and expression. We hope to provide them with an opportunity to share their stories and develop a sense of connection. We hope to act as a bridge between the prison and the outside world.

    We will report the news, specifically focusing on issues that affect people in prison — including changes to criminal laws and the justice system, new cases that affect incarcerated people’s rights, new policies and procedures inside prisons, and other issues that affect people in prison just as they would affect people outside.

    We will publish the letters of people who are currently and were formerly in prison, as well as letters from their friends and families. These letters will be a chance for incarcerated people to tell their stories; share advice; express concerns, fears and hope; and write about anything at all. 

    We will have a section dedicated to legal education and information. It will provide information about access to legal and social resources, how to seek and receive effective legal representation, what to believe and what not to believe about rumours going around the prison – which proliferate wildly. 

    And we will share jokes, poetry, songs, music lyrics and artwork. We will publish cartoons, games, riddles, brain teasers and recipes. We will offer tips about preparing for life outside prison, and how to stay healthy.

    The possibilities are endless. 

    Article 18 of the ICCPR provides that everyone shall have the right to freedom of expression, which includes freedom to seek, receive and impart information and ideas of all kinds. The United Kingdom understands this. Since 1990, a charity in London has published Inside Time, a 60+page, free monthly prison newspaper, to every cell in every prison across the UK. As their publisher and director, John Roberts, said, “Prisoners wanted their own newspaper that was solely for them. Rather than a journalist telling prisoners about their problems, they wanted to be saying it themselves.”

    That’s our aim, too. The majority of About Time’s content will come from currently or formerly incarcerated people. The paper will go out to every incarcerated person in Victoria, NSW and the ACT, each month for free. Hopefully, with permission from their corrections departments, the other jurisdictions will soon follow suit. 

    We are inspired by the UK’s success, and indeed, the success of reams of prison newspapers and prison journalism projects throughout Europe and the United States. Australia has very little when it comes to this space. We hope to help change that. 

    If you believe in our mission, we ask that you share the paper and our website (www.abouttime.org.au) far and wide. We ask that you contribute or suggest potential contributors. We ask that you donate (if you can) to make this project a reality. 

    Joseph Friedman is Managing Director and Publisher at About Time. He was most recently an Associate at the Supreme Court of Victoria, and previously worked as a solicitor at Allens. He is also a freelance journalist.

    Cover image credit: Ike Curtis

    This post was originally published on Castan Centre for Human Rights Law .

  • Tickle vs Giggle: in a world where transgender people are under attack, this is a test case for Australia

    By Paula Gerber

    Around the world, the human rights of transgender people are under attack. Media reports of trans women being vilified, excluded and discriminated against are frequent, and the consequences of this rise in hatred towards trans people can be deadly. 

    In the United States, animosity towards trans people is reaching fever pitch with 42 of the 50 states introducing laws that seek to limit trans people’s access to healthcare, participation in sport, use of bathrooms and serving in the military, as well as censoring education about gender identity.

    There is increasing concern that a US-style anti-trans campaign is underway in Australia. A spotlight was shone on these issues in the Federal Court, where a trans woman, Roxanne Tickle, has taken a women-only social media platform to court for discrimination. 

    This case is providing the court with a rare opportunity to determine the extent to which the Sex Discrimination Act protects a trans woman from discrimination on the basis of their gender identity. Although the act was amended more than a decade ago to prohibit discrimination on such a basis, this is the first time these laws are being tested in court.

    What’s the case about?

    Section 22 of the Sex Discrimination Act reads:

    it is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person’s sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, or breastfeeding […]

    Tickle is asking the Federal Court to find that excluding her from the social networking app, Giggle for Girls, breached this section and another in the Sex Discrimination Act.

    Tickle, whose birth certificate designates her sex as female, following her transition from male to female, downloaded the app, which is marketed as a platform exclusively for women to share experiences and speak freely in a “safe space”. 

    To access the app, Tickle had to upload a selfie. Artificial intelligence (AI) assessed the photo as being of a woman and Tickle was given access to the app. 

    However, seven months later, the chief executive of Giggle for Girls, Sally Grover, blocked Tickle from using the app on the basis that she was male. She stated:

    I looked at the onboarding selfie and I saw a man. The Al software had let them through, thereby making a mistake that I rectified.

    What legal issues are up for debate?

    The case highlights the distinction between sex discrimination and gender identity discrimination. 

    “Sex” is not defined in the Sex Discrimination Act. It is a term that is used to refer to whether a person is male, female or another non-binary status. It is assigned at birth according to biological attributes that are primarily associated with physical and physiological features. 

    Although some people don’t agree, a person’s sex is not fixed and can be changed, as reflected in the language of section 32I of the NSW Births, Deaths and Marriages Registration Act. It states:

    a person the record of whose sex is altered under this Part is, for the purposes of, but subject to, any law of New South Wales, a person of the sex as so altered. 

    Grover evidently sees a person’s sex as immutable. Tickle’s barrister put it to Grover that “a transgender woman who had a female birth certificate, hormone therapy, breasts, gender affirmation surgery, wore makeup and women’s clothes, had a woman’s hairstyle and used women’s facilities, […] is a woman in our society.” Grover replied “I don’t agree”.

    Gender refers to a person’s personal and social identity; how they feel, present and are recognised within the community. It is a social construct, and varies between cultures. 

    A person’s gender may be reflected in outward social markers, including their name, outward appearance, mannerisms and dress. A trans person’s gender identity does not correspond with the gender expected of them by society, given the sex assigned to them at birth.

    Tickle’s claim is that she was discriminated against on the basis of her gender identity. She asserts that she was treated less favourably than cisgender women (women whose gender identity corresponds with their sex assigned at birth), because of her gender identity. That is, because she is a trans woman.

    Giggle for Girls and Grover are defending the proceedings on the basis their refusal to allow Tickle to use the app constituted lawful sex discrimination. 

    They say the app counts as a “special measure” under a different section of the Sex Discrimination Act, because it helps advance equality between men and women, and therefore they are allowed to exclude men. Since Grover perceives Tickle to be a man, she submits that excluding Tickle from the app was lawful as a special measure. 

    These arguments are contrary to the submissions made to the court by the Sex Discrimination Commissioner Anna Cody, who, as a “friend of the court”, was permitted to make submissions about how the act should be interpreted. 

    The commissioner submitted:

    the Court need only conclude that, for a person to be of the female “sex”, it is sufficient if that sex is recorded on the person’s birth certificate and/or they have undergone gender affirming surgery to affirm their status as female.

    That is the case for Tickle.

    Cody also noted the Sex Discrimination Act was amended to prohibit discrimination on the basis of gender identity, to provide “maximum protection for gender diverse people”. 

    The evidence, as reported, suggests Tickle, as a trans woman, was treated differently to how the respondents treated people with a different gender identity, namely cisgender women. This is contrary to purpose of the act. 

    We will await the court’s decision with interest. Depending on the outcome, we may see Australia going down a very different path to the anti-trans trajectory the US is currently on.

    Professor Paula Gerber is a Professor in the Monash University Faculty of Law and an Academic Member of the Castan Centre for Human Rights Law.

    This article was originally published in The Conversation. You can read the original article here.

    This post was originally published on Castan Centre for Human Rights Law .

  • Following the Voice failure, Indigenous politicians are calling for the UN’s Declaration on the Rights of Indigenous Peoples to be implemented. What is it and what would it mean?

    By Wayne Atkinson and Kevin Bell

    The Voice referendum was a disappointing result for many, but there is hope that much of its vision could be achieved via a different path. The Joint Standing Committee on Aboriginal and Torres Strait Islander Affairs has presented a report to federal parliament calling for the implementation of the United Nations Declaration on the Rights of Indigenous Peoples.

    The committee was led by Uncle Patrick Dodson, a Yawuru poltician who is retiring from the senate on January 26, the anniversary of Australia’s invasion.

    The Declaration is essentially a list of human rights Indigenous peoples have under international law. These rights are presented as articles. These include the right to self-determination and participation in decision-making in matters that affect them. 

    If the committee’s call to implement the declaration is accepted by the federal government, this right to participation in decision-making could be achieved in many ways. This includes non-constitutional implementation of the Uluru Statement from the Heart.

    A strong majority of the standing committee including the Greens’ members supported the implementation of the declaration. The coalition members dissented on the key recommendations. DjabWurrung Gunnai Gunditjmara senator Lidia Thorpe supported the recommendation but went further to propose the declaration be enshrined in federal legislation. Thorpe’s proposal was rejected by parliament.

    What is the UN Declaration on the Rights of Indigenous Peoples?

    Indigenous peoples’ human rights in Australia (and elsewhere) were grossly violated by colonisation which resulted in past and ongoing injustices. The declaration recognises and lists those rights with the purpose of addressing those injustices.

    A key right in the declaration is Article 4:

    Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions.

    The declaration was adopted by the United Nations General Assembly in 2007 after 20 years of negotiation by Indigenous peoples and governments around the world. 

    Indigenous figures in Australia played leading roles in these processes. Development of the declaration involved people such as Uncle Les Malezer, a Gubbi Gubbi and Butchulla man who was the chair of the Indigenous peoples caucus and addressed the United Nations General Assembly when the declaration was adopted. 

    Yarawu barrister and academic Uncle Mick Dodson helped draft the declaration, and Professor Megan Davis, a Cobble Cobble woman, was part of the UN declaration working group.

    The declaration has garnered strong support among Indigenous communities in Australia. Noongar law academic Dr Hannan McGlade, a member of the UN Permanent Forum for Indigenous Issues, has supported the key findings of the committee and drawn attention to the importance of implementing the declaration in the light of the referendum result.

    The Joint Standing Committee on Aboriginal and Torres Strait Islander Affairs report states applying the declaration could improve access to land rights, help combat racial discrimination and support Indigenous businesses, social services and cultural organisations. 

    We suggest it would also add great momentum to historic processes already underway, such as truth-telling and treaty-making in Victoria. 

    The main purpose of treaty-making is to give effect to Indigenous peoples’ self-determination. Implementing the declaration would support treaty-making because it would involve recognising self-determination as a right.

    How the declaration could be implemented by law and/or policy

    The Joint Standing Committee on Aboriginal and Torres Strait Islander Affairs’ report examined how the declaration could be implemented in Australia and whether it should be through legislation, under policy, or both.

    Senator Thorpe’s private member’s bill called for the declaration to be enshrined in federal legislation. The bill would have required the federal parliament to ensure its legislation was consistent with the declaration. It would also have required the federal government to adopt an action plan for its implementation. The bill was rejected.

    The majority of the standing committee decided against supporting Thorpe’s approach, preferring a more flexible process. Their report examined how Canada and New Zealand’s legal and policy-based approaches for implementing the declaration appear to have been effective. This is different to senator Thorpe’s approach which requires legislating the declaration as an absolute minimum.

    The standing committee recommend instead that Indigenous peoples have a choice of approach, through negotiations with governments and others, based on their right to self-determination. Whether this would need at least the minimum standards and essential framework to be set down in legislation is an open question yet to be answered.

    The Voice offered a bold vision of a constitutionally protected say for Indigenous peoples in federal law-making and administration. This would have been consistent with the right to self-determination and to participation in decision-making specified in the declaration. 

    The committee’s report states the declaration offers a bigger vision than the Voice. 

    It recognises not only the importance of First Nations peoples’ self-determination and participation in decision-making, but also rights to housing, health, work and freedom from discrimination and other human rights. 

    Implementing the declaration does not necessarily require constitutional enshrinement.

    While the Voice would have given Indigenous people a powerful say in those areas, implementing the declaration could elevate that say and those areas to the level of human rights. This is greatly needed in the aftermath of a disappointing and painful referendum result.

    Dr Wayne Atkinson is a Senior Yorta Yorta Elder and Fellow of the School of Social and Political Science at the University of Melbourne. Adj Professor the Hon Kevin H Bell AM KC is an Academic Member of the Castan Centre for Human Rights Law and an Adjunct Professor of the Monash University Faculty of Law.

    This article was originally published in The Conversation on 15 January 2024. It is reproduced here, with amendment, under a Creative Commons License. You can read the original article here.

    This post was originally published on Castan Centre for Human Rights Law .

  • After the Voice defeat, we can never again allow politics to suspend the cause of Indigenous justice

    By Paula Gerber and Melissa Castan

    In the lead-up to the Voice referendum there was widespread consensus that Australia needed to do more to improve the lives of First Nations peoples but there was significant disagreement about how to go about this.

    Australians rejected the proposal for a Voice to Parliament embedded in the constitution. This week marked 100 days since that unsuccessful referendum. By now we expected those who campaigned against the constitutional reform would have stepped up with their proposals about how to improve the lives of Indigenous Australians. Alas, there has been only a deafening silence.

    The new year is a time to reignite conversations about what reconciliation with Indigenous Australians is going to look like in the short and long term. There is understandable concern that we are going backwards, with Noel Person commenting that we are now in a worse state than before the 14 October referendum. It is time for allies – the 40% of Australians who voted yes – to rebuild momentum and respect for the rights of First Nations peoples.

    Constitutional reform through the Voice proposal was never the only initiative being pursued to improve the lives of Indigenous Australians, although in 2023 it was certainly the most high-profile. There are other options. The four that appear to have the most support are: 1. negotiating treaties, 2. pursuing truth-telling, 3. legislating for Indigenous voices to parliament and 4. developing a national action plan to realise the rights set out in the UN declaration on the rights of Indigenous peoples.

    Treaty

    Before the referendum, progress towards treaties with First Nations peoples was being made in several states and territories. Victoria is the most advanced, with the well-developed work of the First Nations Assembly, the Yoorrook Justice Commission and the treaty advancement process, which includes legislative structures for the treaty authority, a self-determination fund, a treaty negotiation framework and a dispute resolution process.

    Queensland passed the Path to Treaty Act 2023 with bipartisan support but, after the referendum, the Liberal National party announced that if it were elected it would repeal that legislation. With the Queensland election due in October, it is time for Queenslanders to advocate for the continuation of this process.

    Although New South Wales has the largest population of First Nations people it is the only state not to have begun a treaty process. The NSW Labor government was committed to treaty negotiations at the state level but since the referendum has announced it is reviewing its position. It would be another blow to Indigenous peoples if this process was halted before it had even begun.

    Truth-telling

    The Uluru statement from the heart calls for truth-telling, whereby Aboriginal and Torres Strait Islander peoples have the opportunity to record evidence about past actions and share their culture, heritage and history with the broader community. The Recognising the Power of Community Truth-Telling report highlighted how: “Truth-telling is not just about Australia’s violent colonial history but also about the timeless history of First Nations connections to and care for this continent and the vast contributions our people have made to Australia’s economic development, culture, and defence.”

    The retiring senator Pat Dodson and other Indigenous politicians have called for truth-telling to be prioritised after a major survey found 80.5% of Australians would back such a process, despite the failure of the referendum.

    Legislated Voice

    Before the referendum, the South Australian government was well along the path of establishing a legislative state-based Voice process. The attorney general, Kyam Maher, has said the referendum outcome does not change that policy, and a South Australian voice to parliament is “absolutely going ahead”.

    The Indigenous leaders Thomas Mayo and Pat Turner have similarly called on the federal government to legislate a voice to parliament. Although a legislated Voice could easily be dismantled by subsequent governments, it would at least enable Indigenous input into government decisions that impact Aboriginal people.

    National action plan

    A decade ago the World Conference on Indigenous Peoples recommended that governments develop national action plans for the implementation of the United Nations declaration on the rights of Indigenous peoples, setting out legislative, policy and other approaches to implementing this seminal international instrument. Australia has yet to develop an action plan and this should now be a priority for the federal government.

    Assoc Prof Hannah McGlade, an expert member of the UN Permanent Forum on Indigenous Issues, has called for Australia to respect the declaration on the rights of Indigenous peoples and to be held to account for its compliance, both at home and in international forums.

    The late great Indigenous leader Yunupingu once commented that he had witnessed Bob Hawke shed tears over his failure to realise the 1988 Barunga statement which called for recognition of the rights of Aboriginal people. Yunupingu generously observed that Hawke had “genuine tears from a genuine man who tried leadership and was caught out by politics”. With the defeat of the referendum we must not allow politics to again suspend the cause of Indigenous justice.

    There has been a distinct loss of energy and depletion of public interest post-referendum, and with the sting of the failed referendum still in the minds of all politicians and allies, it is understandable there is nervousness about how to move forward. But the failure of the referendum is not a licence to walk away from addressing Indigenous disadvantage, and work must continue to provide Indigenous peoples with meaningful roles and decision-making power in matters that uniquely affect them.

    Professor Paula Gerber is a Professor in the Monash University Faculty of Law and an Academic Member of the Castan Centre for Human Rights Law. Professor Melissa Castan is the Director of the Castan Centre for Human Rights Law and a Professor in the Monash University Faculty of Law.

    This article was originally published by The Guardian Australia on 22 January 2024. Read the original article here.

    This post was originally published on Castan Centre for Human Rights Law .

  • The Voice: It’s a Marriage Proposal not a Divorce Petition

    By Paula Gerber

    The No campaign repeatedly says that Australians should not support the Voice because it is divisive. This fundamentally misconstrues what we are being asked to vote on. The Voice is like a marriage proposal, not a divorce petition. It is about unity, not division.

    The call for the Voice comes from the Uluru Statement from the Heart. The final sentence reads “We invite you to walk with us in a movement of the Australian people for a better future.” This is an offer work together for a more harmonious future. 

    The referendum is akin to Indigenous Australians ‘popping the question’ to the rest of Australia. The Voice is not about the end of the relationship between Indigenous and non-Indigenous Australians. It is about taking the relationship to the next level.

    Unlike the TV show Married at First Sight, the relationship between Aboriginal and Torres Strait Islander peoples and non-indigenous Australians is not one where match-makers have chosen strangers to marry each other. On the contrary, we have a long history of cohabitating on this land, and it is natural to want to take the next step in our relationship. 

    There are many ingredients to a successful marriage, including, respect, attention, good communication, sharing, listening, patience, resilience and give and take, also known as a willingness to compromise. 

    The Voice proposal epitomises these qualities. Aboriginal Australians are asking for recognition and to be heard as we continue to build our lives together. They are not demanding that we do as they say, just that we let them have a say. And like any marriage, we don’t always agree with what our partner says, but we do have to let them have their say.   

    The referendum is asking us whether we will we come together with Indigenous Australians, for better, for worse, for richer, for poorer, in sickness and in health? Deciding to marry requires a bit of a leap of faith, since none of us have a crystal ball. But as we know great marriages make the rewards worth the risks. Just think of Bert and Patty Newton, Eleanor and Franklin Roosevelt and Barack and Michelle Obama. Can Indigenous and non-Indigenous Australians be another great marriage? After all we have lived together in Australia for more than 250 years. That is not going to change. What can change is how harmoniously we do that. The ‘marriage proposal’ from Aboriginal Australians is an invitation to do better. 

    Marriages that last, change and evolve over time. The proposal from Indigenous Australians leaves the door open for future changes. This is because Parliament is being given the power to decide what the Voice will look like – its composition, functions, powers and procedures. Parliament also has the power to accept or reject any representations the Voice may make. So we can safely say yes to the marriage proposal, knowing that we retain the ultimate power over what our lives together will look like. 

    On the 14th October 2023, when you go to write your answer to the referendum question, you might like to remember that saying yes creates the opportunity for us to take the next step in our relationship and together build a better future. Saying no, makes it extremely difficult for the relationship between Indigenous and non-Indigenous Australians to grow and prosper. After all, how many couples remain friends after a rejected marriage proposal? 

    Professor Paula Gerber is a Professor in the Monash University Faculty of Law and an Academic Member of the Castan Centre for Human Rights Law.

    This article was originally published in The Hobart Mercury on Friday, 6 October 2023.

    This post was originally published on Castan Centre for Human Rights Law .

  • The untold story of disability discrimination in Australia’s election and referendum procedures

    By Ethan Katz

    Australian electoral practices are often thought to be an almost best-practice example of democracy in action. Voters are granted a secret ballot, so that only they know who they voted for. The nation holds its elections on Saturdays, provides an ample pre-polling window and postal voting for people who may not be able to vote in person on election day, and has all of its redistricting and election counts conducted by a genuinely independent electoral commission. It is also mandatory for Australian adults to vote. Malcolm Mackerras and Ian McAllister believe that this set of circumstances makes Australia ‘the most voter-friendly country in the world’.

    This may well be the case for people who are physically able use one of Australia’s prescribed voting methods. But people who do not have the physical or motor ability to mark a piece of paper in accordance with their preferences and submit it for counting without assistance are routinely extended a different ‘quality’ of vote, or a vote on a different basis. By this, I mean that the genuinely secret ballot which many people are granted is not granted in the same way to those who cannot independently use the standard ballot marking procedure. This is a significant problem.

    Attempts have been made to create alternative voting options for some electors in this category. For instance, people with impaired vision have, for over a decade, had access to a telephone voting service, where they can recite their vote to an operator who records it and deposits it in a ballot box on the voter’s behalf. Anybody who does not have impaired vision cannot use this method.

    Alternately, a provision exists which allows an election staff member or carer to assist with filling in a ballot when someone cannot do so themselves, and there is always the option for someone casting a postal vote to have another person assist to mark and post their ballot on their behalf.

    States and territories largely utilise similar systems. Until recently, New South Wales used a system called iVote, which allowed people to cast votes online using their own computer hardware. Fiona Given – a researcher and disability advocate – has cerebral palsy and uses an augmentative and alternative communication device to speak. She is unable to mark a ballot paper in the proscribed manner at elections, and therefore must rely on the assistance of another person. Whilst Ms Given reported that the iVote system functioned well for her needs, concerns around the software’s performance led the electoral commission to terminate its use prior to the 2023 state election.

    Setting aside iVote’s performance concerns, there is a larger issue: none of these alternate forms of voting are truly secret and secure. When using telephone voting, at least one other person becomes aware a voter’s intention, therein removing the option for that voter to keep their voting intention a secret to the world. When using iVote, the susceptibility of the software to hacking meant that a voter could not be genuinely certain that their vote had been received exactly as they submitted it.

    In a recently published research article, I explore these issues, and Australia’s obligations under international human rights law as they pertain to the right to vote for people with disabilities. Principally amongst these obligations is the political participation guarantee found in art 29 of the Convention on the Rights of Persons with Disabilities (‘CRPD’), which provides that Australia must ensure people with disabilities are able to participate ‘on an equal basis with others…including the right and opportunity…to vote by secret ballot in elections’ by ‘ensuring that voting procedures, facilities and materials are appropriate, accessible and easy to understand and use’.

    Challenging the status quo

    Following the 2013 federal election, Ms Given brought an individual communication against Australia, alleging that her right to a vote on an equal basis had been infringed. In its views, the UN committee tasked with deciding the matter determined that Australia had indeed breached its obligations under a number of articles, including article 29. Australia refuted the findings of the committee at the time, and has not actioned them since.

    What about referenda?

    In a matter of weeks, Australians will be asked to vote in our first referendum in a quarter of a century. Alternative forms of voting are also available at referenda as they are for federal elections, including a telephone voting service provided to people with vision impairments only. Anybody else who cannot independently mark a YES or a NO in the box on the paper will need to seek assistance from another person, compromising the secrecy of their vote.

    Fixing the problem

    A remedy to this fundamental human rights issue is long overdue. The Joint Standing Committee on Electoral Matters (‘JSCEM’), a bipartisan parliamentary committee, is due to report soon on the conduct of the 2022 federal election, including specifically on the ‘accessibility of…voting for persons with disabilities’. Submissions to JSCEM, such as cryptographer Vanessa Teague’s proposal advocating the use of ballot marking machines, should be given strong consideration. As proposed, these machines would allow voters to digitally input their voting preferences using a computer (ideally with their own compatible hardware) and then print out and sight their physical ballot before it is placed in a ballot box by the machine.

    When JSCEM makes its final report recommendations, they ought to include an endorsement of a suite of new voting options which would grant long overdue equal basis voting to people with physical and motor disabilities.

    Ethan Katz is a recent Monash University law graduate with interests in electoral law, discrimination law and international human rights.

    This article is adapted from Ethan Katz, ‘Australia, “the Most Voter-Friendly Country in the World”? Examining Voting Rights for People with Physical Disabilities‘ (2023) 48(3) Alternative Law Journal 216.

    This post was originally published on Castan Centre for Human Rights Law .

  • “For with them our futures rest”: Reflections on the Voice to Parliament from a lifetime advocating for the self-determination of Aboriginal and Torres Strait Islander children

    By Muriel Bamblett

    For me, like many Aboriginal people, there are many visible and invisible challenges when putting an Aboriginal voice in the room. You never really know the people in the room or what their knowledge and experiences of Aboriginal people are. Nor whether they believe the myths and stereotypes of ‘Aboriginal’. There is also the challenge of addressing theknowledge, skills, and awareness gaps that Australia has in relation to its First Peoples.

    For me, the Aboriginal voice is not a single voice. It is a collective voice of a people who all speak in unison, but not always unity, and in this is its strength. Aboriginal people carry thousands of voices, whether it be the voices of our past Elders, activists, pioneers or human rights leaders. For Aboriginal people, our voice includes our ancestors — patriarchal and matriarchal voices — because we believe we walk in the path our ancestors set for us and that our ancestors are always looking over us.

    Aboriginal people have a long history of trying to be heard and being inventive in how we use Western approaches to see if our voice would be listened to and acted upon. The first documented Victorian ‘protest’ took place in 1876 when the Coranderrk mission was to be closed as the land was deemed to be of too much value and government did not recognise the achievements of Aboriginal people nor their measures of success. William Barak led Aboriginal men who marched for 60 km to protest at the equivalent of the steps of Parliament. They did it again 10 years later and wrote lots of petitions seeking the same freedoms as the white population, who were gifted lands upon colonisation. In 1933 William Cooper established the Aborigines League to fight for a fair deal. In 1937our leaders tried to petition the King for direct representation in Parliament. On 26 January 1938, we had the first Day of Mourning that has since become the Aboriginal Tent Embassy in Canberra, a peaceful sit-in with handwritten signs. In 1939 there was the Cummeragunja Walk-off – a strike over unfair conditions. In 1949, if as an Aboriginal person you served in the armed forces, you could vote in Federal elections, but all other Aboriginal people didn’t get that right until 1962 when Aboriginal people became citizens of Australia.

    Then in 1967, there was a referendum to transfer the power to legislate for Aboriginal Australians from the states to the Commonwealth.

    This referendum also sought the power to include Aboriginal Australians in the national census. 91 per cent of the nation voted “Yes” and 95 per cent voted “Yes” in Victoria.

    So, it’s not like we as Aboriginal people haven’t tried to have a voice and a sophisticated one, that met Western expectations. These are but a few examples of an Aboriginal voice. Australian politics just has a history of not listening.

    The Voice forces governments to see Aboriginal people and acknowledge us, but it also places responsibility on the government to listen and act. At present the dominant voice is those who speak from privilege and often the loudest voice is the media. For those dominant voices, it’s much easier to blame others, to say that “the past is the past” and tell people to “get over it”. Sounds like the “No” campaign today, don’t you think?

    As Aboriginal people we see it all the time, we are forced to compromise, and water down our voice until it’s palatable for the masses. We have been so well trained that we as a community believe that small steps are better than none at all, that we have to pick our battles or we will compromise reform, meaningful change.

    The voice means we are replacing the tick-and-flick approach to decision- making, with an approach that is more about checks and balances. All we as a people have ever wanted is autonomy, equality, respect and self- determination. Self-determination is necessary if our children are to have a better future.

    The Voice to Parliament is not just a question of justice, it’s also a question of best practice. We need a human rights framework on top of this which respects Aboriginal communities’ rights to self-determination and protects them from racism is essential if we are to tackle disadvantage through the Voice.

    Fundamental to providing for Aboriginal self-determination and respecting Aboriginal governance, is also working with Aboriginal communities to restore their capacity to exercise their rights, freedoms and responsibilities in the context of the dominant culture.

    I strongly believe that a Voice to Parliament will make a difference to Aboriginal Australians. I hope you vote “Yes” when you get the chance. But I also hope that you will be able to have difficult conversations with colleagues, family and friends about giving a voice to others that doesn’t take away from your voice. Surely, it’s time that Aboriginal and TorresStrait Islander people are recognised in the constitution?

    Adjunct Professor Muriel Bamblett Hon DLittSw AO is a Yorta Yorta Dja Dja Wurrung woman who has been employed as the Chief Executive Officer of the Victorian Aboriginal Child Care Agency since 1999. Muriel is Chair of the Secretariat of National Aboriginal and Islander Child Care (SNAICC), the peak Australian agency for Indigenous child and family services. Muriel is active on many boards and committees concerning children, families, and the Indigenous community, including the Aboriginal Children’s Forum, the Dhelk Dja Family Violence Partnership Forum, the Aboriginal Justice Forum, the First Peoples’ Assembly and the Aboriginal Community Elders Service. Muriel is also a member of King & Wood Mallesons’ inauguralFirst Nations Leaders Circle. Muriel’s contribution to her community and to Victoria has been recognised in many awards. In 2019 Muriel was awarded an Officer of the Order of Australia (AO) in the Australia Day Honours for distinguished service to the Indigenous community in Victoria as an advocate for the self-determination and cultural rights of children. Muriel has been inducted into the Victorian Indigenous Honour Roll and the Victorian Honour Roll of Women.

    This article is an edited version of the Castan Centre and King & Wood Mallesons Annual Lecture given by Adjunct Professor Muriel Bamblett on 9 May 2023. For an unedited version of this speech, visit the Castan Centre Centre website.

    This post was originally published on Castan Centre for Human Rights Law .

  • ‘Ask Us First’: a student-lead Castan Centre for Human Rights Law Voice to Parliament Clinic project

    By Alexandra George

    This month, the Castan Centre for Human Rights Law launched ASK US FIRST, a video campaign advocating for a YES vote in the upcoming referendum on the Voice.

    ASK US FIRST centres First Nations voices in the debate and encourages non-Indigenous Australians to respond generously and from the heart to their invitation. The Uluru Statement from the Heart invited all Australians to walk together for a better future, and to start that process by enshrining an Aboriginal and Torres Strait Islander Voice in the Constitution. 

    However, polling suggests that the question undecided voters need answered is not really whether to but why Australia should enshrine this Voice. The data shows that many are looking for the right information to justify their YES – and the devastatingly simple answer is because Aboriginal and Torres Strait Islander peoples asked for it.

    With just a month until the vote on Saturday 14 October, the referendum conversation must return to what First Nations Australians, as the people who will be most impacted by this change, have asked for and why.

    Asking First Nations peoples first

    I came to law after a career in film, so it is not entirely surprising that it was an artist who led me to intern at the Castan Centre. Leah Purcell AM, proud Goa, Gunggari, Wakka Wakka Murri stage and film actress, writer, director and novelist, promoting her television series The Legend of Molly Johnson last year, said something that stuck with me:

    “If you are true about wanting to join and understand the plight of your Indigenous First Nations people, then be a part of that discovery.”

    The series was Purcell’s decolonised reimagining of The Drover’s Wife, a classic 1892 short story by Australian bush poet Henry Lawson. It exemplifies what Purcell’s craft is most celebrated, for allowing white audiences to see from a First Nations perspective.

    ASK US FIRST, the Castan Centre’s 11-minute film is designed to restore fact, nuance and personal perspectives on the Voice. It features a roll call of Aboriginal and Torres Strait Islander advocates, and gets right to the heart of the why question. Like the referendum proposal, the idea is simple: before you vote, Australia, ask First Nations peoples first.

    Together with three other Monash University law students, we created ASK US FIRST while taking part in the Castan Centre Voice to Parliament Clinic. Our brief was to develop an impact project that advocates for YES by utilising our skills and knowledge as law students. ASK US FIRST pitches itself as a blend of ‘You Can’t Ask That’ meets ‘Celebrities Read Mean Tweets’, featuring First Nations peoples across Australia responding to the nation’s questions and concerns about the Voice.

    Like Purcell’s acclaimed stage and screen dramas, ASK US FIRST platforms the voices of First Nations peoples, who lend this film their truth and teach us that our advocacy can take many forms when we get creative about it.

    Created to be factual, accessible and personal, ASK US FIRST reflects why we should have the Voice. It also demonstrates the rich, experiential possibilities the Clinic offered for understanding social justice advocacy in practice. It’s because we get meaningful insights when we work collaboratively and create space for First Nations peoples to speak. Mirroring the Voice Co-design principles of self-determination and representation, the film was developed out of careful consultation with its speakers. It asks all Australians to first listen to the diverse perspectives and lived experience of First Nations peoples on what really matters to them, so that we all can finally affect meaningful change.

    Take the step

    The work of the Yes campaign is only just beginning. Now is the time to actually start having the conversations with the people in our lives who are unsure.

    A simple way to start that conversation is to share this video. Sit yourself, your parents, grandparents, friends, colleagues, footy team, online communities down and have them actually listen to First Nations peoples speak! 

    As Monash University Pro Vice-Chancellor (Indigenous), Professor Tristan Kennedy tells us in the video:

    “When we’ve got everybody at the table having discussions about our own future, about everything we can contribute together—Indigenous and non-Indigenous perspectives, of migrants, young people, older people, people from so many diverse backgrounds—we get better results.”

    It’s simple. More than 80 per cent of Aboriginal and Torres Strait Islander peoples support the Voice. This has been fact-checked. 

    If you want to know why Australia should enshrine this Voice, then be a part of this discovery and watch ASK US FIRST. Like Jill Gallagher AO says, “It’s your backyard too”.

    Right now, we all have agency in this process of who we become. If you support the Voice but don’t feel confident talking about it yourself, take that step and allow First Nations Australians to speak for you: share ASK US FIRST.

    Alexandra George is a final year Juris Doctor student at Monash University and worked as a film producer for a decade. Special thanks to Thomas Ponissi and Chloe Hunt.

    ASK US FIRST was created by Monash University law students Alexandra George, Chloe Hunt, Meghna Mitra and Rose Russell in the Castan Centres Voice to Parliament Clinic.

    Share ASK US FIRST by re-sharing the Castan Centre’s posts on the following platforms: Linkedin, Instagram, Twitter and Facebook.

    This post was originally published on Castan Centre for Human Rights Law .

  • The Voice referendum is in the national interest

    By Melissa Castan and Lynette Russell

    Despite the political debate that has ensued around the Voice proposal, the choice of an institutional advisory body that informs Parliament and the executive government is entirely unremarkable.

    It is a modest proposal. We barely cast a glance at the work of the Productivity Commission or the Australian Law Reform Commission, both of which are mainstream advisory bodies to the national government. They inform law-making; their advice may be considered, or not.

    Similarly, the Voice to Parliament will have the capacity to inform policy and reform, but it is not a third chamber of Parliament.

    It will not make laws or distribute funding. It will not undertake program delivery. It will have no veto.

    The Bill that amends the Constitution makes it clear that “The Parliament shall have power to make laws with respect to matters relating to the Aboriginal and Torres Strait Islander Voice, including its composition, functions, powers and procedures”. Parliament retains control over the way the Voice works.

    Despite the myriad positive consequences of the Voice, many myths and much misinformation has been propagated about it.

    Certain concerns that have arisen at the time of writing will no doubt have dissipated with greater understanding of the proposal, while a number of counter-claims regarding the Voice have no foundation, as countless constitutional experts have testified.

    A Voice to, not in, Parliament

    o be clear, what is proposed is a Voice to Parliament, not a Voice in Parliament. It will have no role in passing legislation; that will remain in the hands of elected representatives in the federal Parliament, as required by the Constitution.

    The Voice can make representations to Parliament, but it will be up to Parliament to decide what it does with those representations. It should pay attention to them, but it will always take into account a wide range of advice from across the community.

    The Voice does not create special rights for Indigenous people or give them a veto – it just establishes an advisory body.

    Parliament will be better-informed about the impact of proposed laws on First Nations peoples, and can amend its laws where that is appropriate. So, for example, it will inform how Closing the Gap and other initiatives can best work to improve outcomes.

    The Voice will not damage our democratic institutions; it will enhance them. It will not “put race into the Constitution”, as the Constitution already allows for racially discriminatory laws by virtue of section 51(xxvi) (the race power).

    It will ensure that the silence and omissions of the past can be addressed in the future. It cannot be racist to address racism.

    A negative result means a loss of credibility

    A “No” vote is not a vote for the status quo. It will not have the effect of keeping the arrangements for managing Indigenous affairs as they are now.

    Rather, a negative result in the referendum will mean a loss of credibility, at a number of levels. It will amount to the end of reconciliation advocacy for many Indigenous leaders and their supporters.

    As Palawa scholar Ian Anderson put it in an opinion piece, a failed referendum will “spell the end of the long reconciliation walk”.

    Ian Anderson’s view is shared by many who have focused their efforts on developing coherent and constructive advocacy for Indigenous recognition.

    Noel Pearson says he will “fall silent” if the referendum fails, adding: “If the advocacy of that pathway fails, well, then … a whole generation of Indigenous leadership will have failed, because we will have advocated coming together in partnership with government, and we would have made an invitation to the Australian people that was repudiated.”

    ‘Racists will feel emboldened’

    But a loss will reverberate in other ways. Professor Marcia Langton states it clearly in the title of a recent article: “If yes campaign for Indigenous voice loses, ‘racists will feel emboldened’.”

    We’ve already watched aghast as leading Indigenous journalist and media identity Stan Grant stepped away from his national role on the ABC’s flagship Q+A program, pointing out the impact of corrosive racist discourse.

    We have already seen some mainstream and social media debate about the Voice referendum become divisive and hostile to Indigenous people, with abusive racism deployed to attack the proposal.

    An unsuccessful referendum will mean that, instead of moving towards a more united, mature and thoughtful nation, we will see greater division and disrespect.

    There is, unsurprisingly, disagreement about the proposal across Indigenous communities, although opinion polls suggest most Indigenous community members support the Voice.

    It’s important we respect differences of opinion and recognise that there has never been one unified Indigenous point of view. As we would expect when discussing hundreds of different cultures, there will always be divergences along with alignments.

    Ian Anderson notes that “most Indigenous Australians who don’t support the Voice do so because they think its ambitions are too modest. They do not think governments can or should be trusted.”

    Indeed, past experiences such as the Howard government’s abolition of ATSIC and the Hawke government’s failed Makarrata process suggest that, by and large, governments can’t be fully trusted.

    This is why proponents of the Voice are clear that they will need to be ever-vigilant. This is the very reason the Uluru Statement calls for constitutional recognition and permanency, not merely an Act of Parliament.

    A modest first step – but a vital one

    To those who seek more than the Voice, believing it falls short because it does not put in place treaty arrangements or a truth-telling commission, we say we agree. It is a modest first step.

    But if this step falters, the other steps will not occur. There will be little political or electoral will to pursue the agenda set out in the Uluru Statement, and all aspirations for justice and proper legal relations with First Nations peoples will be delayed indefinitely.

    It has been a long wait, but now is the time to listen, to truly hear, acknowledge and accommodate.

    The Voice to Parliament shifts the relationship between First Nations peoples and the state from a monologue to a dialogue, from unilateral to multilateral, from a majoritarian agenda to a consultative and participatory one.

    This recognition and relationship are not just essential for First Nations, but are fundamental to Australia as a constitutional democracy. The referendum to entrench it in the Constitution is unequivocally in the national interest.

    Professor Melissa Castan is the Director of the Castan Centre for Human Rights Law, a Professor in the Monash University Faculty of Law and Associate Dean (Staffing).

    Professor Lynette Russell AM is an ARC Kathleen Fitzpatrick Laureate Professor at Monash University’s Indigenous Studies Centre.

    This is an edited extract from the book Time to Listen: An Indigenous Voice to Parliament by Melissa Castan and Lynette Russell, published by Monash University Publishing. This edited extract originally appeared in the Monash Lens.

    This post was originally published on Castan Centre for Human Rights Law .

  • Gender apartheid in Iran and Afghanistan: Recognising the crime in international law

    By Helen Dosky

    The Ham Diley Campaign, together with Monash Law Clinics held an event for International Women’s Day in March to celebrate the courage of the brave women of Iran and Afghanistan. The Campaign is a volunteer initiative created by three human rights lawyers in response to the Taliban’s violent return to power in Afghanistan and supported by students at the Monash Afghanistan Support Clinic. Since the event, it has almost been one year since the protests in Iran began, sparked by the premature death of Jina Mahsa Amini. Many parallels exist between the treatment of women and girls by the Taliban in Afghanistan and the regime in Iran, and the focus of the event was to highlight the segregation and subjugation of women in both countries, which has crystallised in a global campaign for the recognition of gender apartheid as an international crime. 

    Iran 

    The death of the young Kurdish woman Jina Amini in police custody over an improperly fashioned hijab sparked violent protests across the country, beginning in Jina’s home city of Saqqez. It was only after the 1979 revolution that the hijab was mandated for all women and girls. Between 1936 to 1941, in an attempt to ‘modernise’ the country, it was in fact banned from being worn. As underlined by one of the speakers at the Ham Diley Campaign event, it becomes obvious that the issue is not with the hijab or lack thereof, but it being used as a vehicle by the Iranian regime to oppress, subjugate, and control women. 

    Jina was arrested by the so-called ‘morality police’ established after the 1979 revolution. As evidenced by Jina’s case and many others, the ‘morality police’ has employed cruel methods of punishment to enforce the strict dress code. Rights that women previously enjoyed in Iran, such as applications for divorce and freedom of movement, were also undermined after the revolution.

    As a young Kurdish woman Jina’s circumstances were further compounded by the long history of oppression faced by the Kurdish ethnic minority both before and after the 1979 revolution. Even her name, Jina (meaning life or to live, in Kurdish) could not be formally registered in Iran as only Persian or Islamic names are permitted, displaying the simple resistance of using her Kurdish name; the name her mother called her. 

    Additionally, most Kurds in Iran are Sunni Muslims (whereas the Iranian regime adopts Shi’a Islam) and therefore also face prejudice by the regime on the basis of religion. In 2008, a Kurdish Cleric was imprisoned and tortured for 13 days after giving a Friday prayer sermon. The targeting of Kurdish people by the Iranian regime is constant and ongoing; Jina’s death was no accident. 

    Protestors in Iran can be seen chanting “Jin, Jiyan, Azadi”, translating to “Women, Life, Freedom” and this slogan must give credit to her Kurdish heritage, as that is where the slogan originated from. The fact that this slogan was translated and popularised into Persian hints at another attempt to suppress the Kurdish identity. The slogan was popularised in 2015 by Kurdish women fighting against ISIS, as the word for ‘life’ in Kurdish, Jiyan, comes from the word ‘women’, Jin, and freedom cannot be granted where women are oppressed. As a young Kurdish woman myself, the death of Jina had an indescribable impact on me, as the only thing separating me from a similar fate was the random chance of being born in Australia. 

    Afghanistan

    In Afghanistan, the lives of women and girls underwent a complete upheaval after the Taliban’s violent return in August 2021. This was powerfully underlined by speakers at the Ham Diley Campaign event who referred to their own lived experience and that of their families. This includes the  banning of women and girls from education and work. Their lives are also heavily restricted in other ways, for example, they cannot travel far without a male guardian, and are ordered to remain inside their homes. They are also prohibited from entering public and amusement parks, gyms, or bathhouses, where many women who did not have access to hot water or bathing facilities previously went. Women report feeling invisible and suffocated, with many being unable to access medical aid or psychological support. A strict dress code is also imposed. Like in Iran, a form of ‘morality police’ has been established, checking the clothing of women and girls even under their burqas.

    Any form of resistance against the Taliban is met with brutality. In a show of solidarity, Kabul professor Ismail Mashal tore up his academic certificates on live television in protest of the education ban, and was later arrested by the Taliban. His whereabouts remain unknown. 

    Sexual violence against women is at an all-time high; women are found dead on the streets with indications of being sexually abused, others are taken in broad daylight and raped. Forced and child marriages are increasing at alarming rates, worsened by the economic and humanitarian crisis.

    Women are specifically targeted by the Taliban, especially women with intersecting identities, such as Hazara women who are often targeted on a combination of gender, ethnicity and religion. The Hazara people have suffered a long history of persecution in the country, including slavery, massacres, and genocide. In the 19th century, more than 60% of Hazaras were massacred or displaced, and now the Taliban continue to persecute more. The frequent killings of Hazara men have left many Hazara women and children left without a male guardian, rendering them at much higher risk of starvation as they have no way to support their families. 

    Gender apartheid

    The gender-based segregation and subjugation that is strongly illustrated in the two countries has led to a global call by women of Iran and Afghanistan to ‘end gender apartheid today’. Gender apartheid is the systematic discrimination against a person because of their gender or sex; a war on women. It includes a system of government and laws that systemically erases and excludes women from public life. 

    Although gender apartheid is not a crime under international law, the above-mentioned global call to action pushes for its recognition as such. Undoubtedly, the laws in Iran and Afghanistan are an attempt to systematically exclude and persecute women, subjugating their status in society which appear to contain elements of the crime of apartheid. Indeed, the UN Special Rapporteur on Afghanistan, Richard Bennett, has stated that the cumulative effects of these restrictions placed on women and girls are ‘tantamount to gender apartheid’.  

    Yet, as mentioned, their treatment cannot currently be recognised as gender apartheid under international law as the elements of the crime of apartheid concerns racial subjugation and segregation. The crime of apartheid is recognised as a crime against humanity under both the stand-alone Apartheid Convention and theRome Statute of the International Criminal Court. It requires that the inhumane acts which might otherwise fall under other crimes against humanity are committed in a context of an institutionalised regime of systematic oppression and with the intent to assert domination over a group to maintain that regime. However, both the context and the intent limit its application to race, explained by its emergence and application in response to the racial segregation and subjugation in South Africa.

    Another crime against humanity, that of persecution, does cover the persecution and deprivation of fundamental rights by reason of gender. However, this definition does not sufficiently capture the deteriorating situation of women in Iran and Afghanistan described above which is illustrative of systems of complete segregation of women in society. The call to action for the recognition of gender apartheid as an international crime is driven by women from both Iran and Afghanistan. The systematic and structural violation of their rights is taking place with impunity and with the eyes of the world watching. To end it, the international community must first recognise this treatment for what it is. 

    As Prof Karima Bennoune (former UN Special Rapporteur on cultural rights) has convincingly argued, there are many reasons why the international framework ought to be adapted in the fight against gender apartheid. This includes the symbolic significance of recognising gender apartheid as an international crime which can generate shame in a way the terms ‘discrimination’ or even ‘systematic discrimination’ cannot. According to Prof Bennoune, the mobilisation of shame acts as an important international law obedience tool by pressuring governments and international organisations to terminate engaging with these regimes, whilst simultaneously elevating the status of women in those countries in the international realm. The aim is for the international community to pressurise these regimes as occurred in South Africa. Failing to enact the crime of gender apartheid sends a message to both women in these countries and worldwide that their rights do not matter. 

    The women of Iran and Afghanistan remain strong in the face of their attempted elimination. Protests in Iran continue, where both men and women voice their strong disapproval at the actions of the regime, and many are met with imprisonment and executions. In Afghanistan, although the situation seems almost impossible, resistance against the Taliban continues, credit to Afghanistan’s long history of defying anyone who invaded their lands; the graveyard of empires. To stand in solidarity with these brave women, the international community must embrace their call to action and recognise gender apartheid as an international crime. 

    Helen Dosky is a final year Bachelor of Laws and Bachelor of Science student at Monash University and an alumna of the Monash Afghanistan Support Clinic.

    This post was originally published on Castan Centre for Human Rights Law .

  • Why is the Voice to Parliament focused just on Indigenous Australians?Why no Voice vote for all minorities?

    By Paula Gerber

    One of the questions people are asking about the Voice to Parliament is why the proposed amendment to the constitution is to create a voice for one group only? Why a Voice for Indigenous Australians, but not a voice for people with disabilities? Or for Muslims? Or for women? Or for LGBTQ+ people? This is a fair question. Let me try and answer it.

    To put it simply, Indigenous Australians are the only minority group who are actually asking for a Voice to Parliament. Other groups have other asks. For example, a priority for the LGBTQ+ community is that they are counted in the next census (in 2026) so we have data about how may people living in Australia are intersex or identify as lesbian, gay, bisexual, transgender or non-binary. Other priorities for this community include that all states and territories band unnecessary medical procedures on intersex children without their consent (as the ACT has just done), that all states and territories ban conversion practises that seek to change or suppress a person’s sexual orientation or gender identity (as Victoria, Queensland and the ACT have done) and to protect LGBTQ+ people from discrimination by religious schools and other faith-based organisations (as Tasmania and Victoria have done, and as Queensland has announced it will do). Similarly, the disability community is not asking for a Voice to Parliament. Rather, their priorities are to end the violence, abuse and neglect people with disabilities often experience, to improve the accessibility of public transport systems across Australia and to make the NDIS a system that is better, fairer and easier to navigate.

    We make better policies and laws if we listen to what the people most affected by the policies and laws are saying they want. If other minorities were asking for a Voice to Parliament then we would be having a conversation about that. But they are not. And it is not appropriate to impose a solution one minority group wants on an entirely different minority group, under the misguided belief all people should be treated the same.

    This is where the distinction between “equity” and “equality” is important. Equality is about treating everyone the same. The 2017 postal survey about whether same-sex couples should be allowed to marry was about achieving equality. It was about ensuring all couples have the same opportunity to marry, regardless of their sexual orientation or gender identity. Equity, on the other hand, is about ensuring everyone is able to achieve the same outcomes, which may require that they are allocated different resources. For example, we want all children to receive an education, but this will not be achieved if we use the same teaching methods and curriculum for all children. Students who have visual or hearing impairments require different resources and strategies to learn. Similarly, students who are neurodiverse—including those on the autism spectrum or who have ADHD—may need different adjustments to reach their full educational potential, including reduced visual distractions, the elimination of unnecessary noise and different assessment regimes, such as extended time to complete an exam, an alternative exam venue where distractions are minimised and an allowance for breaks during exams. Thus, ensuring equity often means not treating everyone the same.

    The referendum to amend the constitution to establish a Voice to Parliament is about achieving equity, not equality. Australia is the only British colonised nation that does not have a treaty with its First Peoples, and this has many ongoing consequences, including the legacy of peoples being disposed of their land, their children being removed, their culture and law not being recognised or respected and their youth being incarcerated at disproportionately high rates. Addressing these historic and contemporary wrongs requires a different approach to addressing the wrongs other minorities experience.

    People who say establishing a Voice to parliament for Indigenous Australians is unfair because it isn’t inclusive of other minorities are confusing equity and equality. Other minorities are not asking for constitutional recognition or a Voice to parliament. The concerns they face are different and require different solutions. It doesn’t mean their concerns are any less valid or less deserving; it simply means their pathway to achieving equity is different.

    Ye are a cleaver nation and we can walk and chew gum at the same time. We need to listen and address the concerns of all minority groups, and we need to recognise that respecting the rights of all peoples is not going to be achieved by adopting a one-size-fits-all approach. We need to support Indigenous Australians’ pursuit of equity by voting ‘yes’ in the referendum on constitutional recognition and establishing the Voice to parliament, and we need to also listen to the concerns of other minorities and remove the barriers that impede their enjoyment of human rights on an equal footing with other Australians. Everyone has a right to be treated equitably, which is not always going to be the same as treating everyone equally. We need to focus on ensuring everyone has a fair go, not that everyone has the same go. The Voice to Parliament will be a significant step towards ensuring Indigenous Australians get a fair go.

    Professor Paula Gerber is a Professor in the Monash University Faculty of Law and an Academic Member of the Castan Centre for Human Rights Law.

    This article was originally published in The Canberra Times on 22 July 2023. You can read the original article here.

    This post was originally published on Castan Centre for Human Rights Law .

  • Why is it legal to tell lies during the Voice referendum campaign?

    By Luke Beck

    A referendum to recognise First Nations Australians in Australia’s Constitution by establishing a Voice to Parliament will be held later this year. The Voice would be an advisory body allowing Aboriginal and Torres Strait Islander people to make representations to parliament and government on matters that affect them.

    Campaigning for the “yes” and “no” sides is well under way. However, misinformation and disinformation are a feature of some of the public discussion. Indigenous Australians Minister Linda Burney this week even accused the “no” campaign of engaging in “post-truth politics”.

    The Australian Electoral Commission has an online referendum process disinformation register. This is focused on disinformation about the referendum process rather than fact-checking claims made about the Voice.

    Several media outlets including RMIT ABC Fact Check, AAP Fact Check and AFP Fact Check are publishing articles fact-checking claims about the Voice.

    But why is it legal for politicians and other campaigners to lie to you?

    Telling lies is legal

    It is perfectly legal to spread misinformation and disinformation and tell outright lies about the proposed constitutional amendment, just as it is legal to tell lies during federal election campaigns.

    While Australia has laws banning businesses from engaging in deceptive and misleading advertising about their products and services, there are no equivalent federal laws that apply to politics. By contrast, South Australia and the ACT have truth-in-political-advertising laws applying to their state and territory election campaigns.

    There is one tiny exception to the current ability to mislead voters about the referendum. It is unlawful to mislead voters about how to fill in the referendum ballot form. For example, you would be breaking the law if your advertisement said people had to tick a box on the ballot form (when in fact you need to write “yes” or “no”).

    Parliament decided to allow lies during the referendum campaign

    The federal parliament passed up an opportunity to ban misinformation and disinformation during the referendum campaign. In January, the parliament’s Joint Standing Committee on Electoral Matters rejected calls to do this.

    The committee said “the forthcoming referendum is not the right time to establish a truth-in-political-advertising regime”.

    However, the same committee recommended in June that Australia adopt federal truth-in-political-advertising laws that would apply to all future federal elections and referendums.

    How do truth in political advertising laws operate?

    The South Australian laws have been in operation since 1985. Those laws work by making it unlawful for political advertisers to make purported statements of fact that are misleading to a material extent.

    Importantly, these laws don’t seek to stop people expressing their opinions, even the most silly and uninformed opinions.

    The key distinction is between purported statements of fact and opinions.

    So, for example, in 1995 the South Australian Supreme Court heard a case about an election ad claiming the state government had said schools with fewer than 300 students would be subject to closure. The ad was found to contravene the law. The government had never said that. The statement was a purported statement of fact and it was misleading.

    By contrast, in a 2010 case the South Australian Supreme Court rejected an argument that a leaflet accusing a politician of being “soft on crime” breached the law. That statement was simply an opinion.

    Most cases in South Australia don’t end up in court. The law allows the Electoral Commission to request that misleading advertisements be taken down and a retraction issued.

    Do these laws actually work?

    The most important goal of truth-in-political-advertising laws is to improve political practice and promote a better political culture. That is, the goal is prevention of misinformation and disinformation, rather than punishment.

    The South Australian electoral commissioner, who enforces the state’s truth-in-political-advertising laws as the independent regulator, has commented that such laws have a meaningful impact in reducing misleading electoral advertising and do so because of the political culture the existence of the law has helped to create.

    Federal parliament’s Joint Standing Committee on Electoral Matters says “lies, misinformation and disinformation are spreading at an exponential rate” and that the South Australian model of truth-in-political-advertising laws is “successful”.

    So it is a great shame that the federal parliament decided to allow misinformation and disinformation during the referendum campaign.

    Professor Luke Beck is an Academic Member of the Castan Centre for Human Rights Law and is a Professor of Constitutional Law within the Faculty of Law at Monash University.

    This article is published from The Conversation under a Creative Commons Licence. Read the original article here.

    This post was originally published on Castan Centre for Human Rights Law .

  • LGBTQ+ people are facing increasing persecution globally, but refugee status is still extremely hard to get

    By Paula Gerber

    The newly passed Anti-Homosexuality Act in Uganda has made a country that was already dangerous for LGBTQ+ people truly treacherous. 

    The new law includes the death penalty for the so-called offence of “aggravated homosexuality”, defined as same-sex relations involving someone who is HIV positive or under the age of 18.

    Many countries around the world are moving towards decriminalising same-sex relations (most recently Barbados, Singapore and the Cook Islands). Others, however, are seeking to impose harsher laws. 

    For example, in Tanzania, the leader of the women’s wing of the government has called for the castration of men convicted of same-sex related offences. Ghana, meanwhile, appears to have watered down a draconian anti-gay bill, but only after US Vice President Kamala Harris expressed concerns about it ahead of her visit.

    This increasing hostility towards LGBTQ+ people in some African nations is causing many to flee. But gay and gender-diverse people have historically faced enormous obstacles finding refuge abroad. Today, they remain among the most vulnerable and marginalisedof all asylum seekers. 

    LGBTQ+ Ugandans have few options

    For LGBTQ+ Ugandans, finding a safe haven is not easy when four of the five countries that border Uganda also criminalise same-sex sexual conduct (South Sudan, Kenya, Tanzania and the Democratic Republic of the Congo). 

    Kenya is the most common destination for asylum seekers fleeing Uganda. However, there’s been a backlash against LGBTQ+ people in that country after the Supreme Court recently ruled that discrimination on the grounds of sexual orientation violated the constitution.

    LGBTQ+ Ugandans in one Kenyan refugee camp reported facing daily hostilities, saying the situation there is “as terrible as you can imagine”.

    There are now increasing calls in western countries to open their doors to LGBTQ+ refugees from Uganda, but even in countries with progressive gay rights laws, the process is not so simple. 

    In Australia, for example, just 1,100 asylum seekers were granted a protection visa because of their sexual orientation from 2018-23. This is barely a drop in the ocean of the reported need. The LGBTQ+ advocacy group Rainbow Railroad says it receives an average of 10,000 requests for assistance a year from LGBTQ+ people fleeing persecution. 

    What international refugee treaties say

    The 1951 Refugee Convention is the leading international treaty governing the rights of people seeking asylum. When it was drafted, however, homosexuality was still a crime in a majority of countries. As a result, LGBTQ+ people are not explicitly protected by the convention, even today.

    The convention defines a refugee as a person who has a well-founded fear of persecution based on

    • race 
    • religion 
    • nationality 
    • membership of a particular social group
    • political opinion. 

    In the 1990s, many western countries such as the US, Canada and Australia began recognising LGBTQ+ people as a “particular social group” under this treaty, who could seek asylum if they have a reasonable fear of persecution. 

    Finally, in 2008, the UN High Commissioner for Refugees issuedguidance on refugee claims relating to sexual orientation and gender identity. 

    This should have streamlined the process for those seeking asylum. But many refugee claims made by LGBTQ+ people are still unsuccessful. Why is this the case? 

    Reasons LGBTQ+ refugees are turned down

    Let’s look at Australia as a specific example. Even though Australia recognised LGBTQ+ people as a persecuted group under the Refugee Convention, many claims were still being rejected until 2003 on the basis that gay people could be safe in their home countries if they were discrete about their sexuality. 

    Then, in December 2003, the High Court ruled it is fundamentally wrong to expect a person to hide their sexual orientation in order to be safe from persecution. 

    This, however, did not result in the expected increase in successful asylum seeker applications. Many LGBTQ+ people found themselves facing a new obstacle – officials questioning whether they were, in fact, members of the LGBTQ+ community.

    For example, in 2020, the Federal Court considered a decision of the Refugee Review Tribunal rejecting the asylum applications of two Pakistani men who feared persecution in their home country because of their relationship. 

    The tribunal said it did not believe the men were gay or in a relationship. It questioned the men’s credibility for various reasons. These included the fact the men visited gay venues in Melbourne when they said they wanted to keep their relationship a secret and because of how they responded to questions about their first sexual encounter. 

    On appeal, the Federal Court found the tribunal’s conclusions about the men’s credibility to be flawed and irrational. The court sent the case back to the tribunal to be heard again.

    It is difficult to understand how such assessments are still being made when there are comprehensive resources available to assist government decision-makers to avoid such mistakes.

    The high rate of rejection of LGBTQ+ asylum claims is not unique to Australia. A recent study found that across Europe, one in three claims by LGBTQ+ asylum seekers were denied because officials did not believe the claimants’ assertions about their sexual orientation. 

    And four in ten were turned down because officials didn’t believe they were at risk of persecution in their home countries.

    Is there a path forward?

    Many western countries have opened their arms to refugees fleeing war in Iraq, Syria, Afghanistan and most recently, Ukraine. But armed conflict is not the only reason people need to flee their countries. Uganda is waging war against its LGBTQ+ citizens, and they need to urgently escape.

    It is up to countries that respect the rights of LGBTQ+ people to offer them a safe haven. Canada provides a useful illustration of how this can be done. Prime Minister Justin Trudeau announced this month his government is partnering with Rainbow Railroad to “help LGBTQI+ people start a new, safe chapter here in Canada.”

    For LGBTQ+ people fleeing Uganda, one can hope this is not the only door open to them.

    Professor Paula Gerber is a Professor in the Monash University Faculty of Law and an Academic Member of the Castan Centre for Human Rights Law.

    This article is republished from The Conversation under a Creative Commons Licence. Read the original article here.

  • Our chance to vote for unity, justice

    By Paula Gerber

    Later this year we are all going to be asked to vote in a referendum on whether the Australian Constitution should be amended to establish a Voice to Parliament. Some people are understandably unclear about precisely what this means, and when you are unsure, it seems like a good idea to just vote “No”; to keep things the way they are, to maintain the status quo. However, a “No” vote is not a vote to keep things the way they are. A negative result in this referendum will in fact, be a huge step backwards. Ian Anderson, Deputy Vice Chancellor Academic at the University of Tasmania, believes it could even spell the end for reconciliation. 

    A successful referendum will help bring our country together and lead to the development and implementation of better laws and policies because they will be informed by Indigenous voices, who understandably want a say in the decisions that affect them and to be able to propose solutions for the challenges we face.

    A failed referendum will be felt as a deeply personal “slap in the face” by Indigenous Australians. Wardaman woman, Dr Josie Douglas, eloquently captures the potential consequences of a “No” vote when she says:

    Our distrust and alienation will grow, any remnant faith in settler systems will wither. We will continue to be viewed as a problem to be overcome, rather than as people offering solutions, solutions based on our rich cultures and care for country and our intimate knowledge of our people and societies.

    It will be a day where we will feel invalidated and judged to be of no consequence to a country we have called home, not for a mere seven generations, but thousands. How will we explain this to our children and grandchildren? How will we explain it to ourselves?

    Similarly, Professor Marcia Langton fears that an unsuccessful referendum will result in racists feeling emboldened. In other words, rather than ending up being a more united country, we will end up being more divided. Rather than giving a voice to the most marginalised people, we will be giving a megaphone to the most bigoted.

    There are many Tasmanian Liberals who have fiercely rejected Peter Dutton’s decision to oppose The Voice, including the premier, Jeremy Rockliff who argues that “it’s high time we took responsibility and found another way, and another way that moves us forward as a nation.” Similarly, Bass MP, Bridget Archer describes Dutton’s support for the “No” campaign as “shortsighted and detrimental to the long-term interests of the nation.” It is in Australia’s interests to recognise First Nations peoples in the Constitution and to give them a Voice, it is not in our interests to reject the invitation, set out in the Uluru Statement from the Heart, to walk together towards a better future. 

    The consequences of the referendum failing would not only be felt locally. It would also cause a serious dent in our international reputation. Australia has signed treaties that commit us to recognising and protecting the human rights of Indigenous peoples. We must keep our promises and fulfil our treaty obligations.

    The last time we had a referendum concerning how our Constitution addresses Aboriginal and Torres Strait Islander peoples, was in 1967. It saw the highest “Yes” vote of any referendum in Australian history. Over 90% of the population said “Yes” to Indigenous Australians being counted as part of the population and to the Commonwealth having power to make laws for them, and every state and territory had a majority “Yes” vote. The 1967 “Yes” vote paved the way for the referendum we are going to be having later this year. If we want to continue down the path of reconciliation, if we want to a more unified and democratic country, then we must vote “Yes”. There will be no second chance. 

    Professor Paula Gerber is a Professor in the Monash University Faculty of Law and an Academic Member of the Castan Centre for Human Rights Law.

    This article was originally published in the print version of The Mercury on 20 May 2023.

    This post was originally published on Castan Centre for Human Rights Law .

  • Will this Voice carry or will it become yet another referendum that fails to pass Australia’s history test

    By Paula Gerber

    Much has been written about the “yes” and “no” campaigns for the Voice. Less has been written about the actual chances of the referendum being successful. There are lots of ways that we can try to determine the probability of the referendum being carried. We can look at polls. We can analyse the merits of the different campaigns. We can even look at the odds betting agencies are giving on the outcome. We can also look at history.

    Australia has had 44 referendums, with only eight being successful. That represents a success rate of just 18.8%. However, we get a lot more insight by taking a nuanced look at the history of referendums in Australia, rather than just counting successes and failures. 

    For a referendum to carry, there needs to be a double majority, that is, 

    • a majority of voters in a majority of states (a minimum of four of the six states. The Northern Territory and ACT are not included in this aspect of the double majority) 

    AND 

    • a national majority of voters (more than 50 per cent of the Australian voting population say yes). 

    The most recent figures indicate that there are 17.3 million Australians who are enrolled to vote, so in addition to a majority in four states, around 8.65 million “yes” votes will be needed for a successful referendum.

    Although only eight referendums have been successful, 13 referendums achieved more than 50% of the national popular vote, but did not achieve a majority vote in four or more states. 

    Tasmania has always been on the winning side in the successful referendums; in each of the eight referendums that were carried, Tasmania had a majority of voters in support of the referendum. The most recent Roy Morgan poll, conducted between26 – 29 May, revealed a clear plurality of people in Tasmania are in favour of the Voice, saying they will vote ‘Yes’.

    For Tasmania to be one of the four states voting “yes”, requires that approximately 208,000 Tasmanians support the Voice in the referendum. This would represent 50% of the 416,366 eligible voters. However, some eligible voters have not yet registered to vote. According to the Australian Electoral Commission, as at 31 December 2022, there were 13,495 Tasmanians over the age of 18 who had not yet registered to vote. As voting in referendums is compulsory, these unregistered electors will need to get on the electoral roll within seven days of the federal Government issuing the ‘writ’ for the referendum (the document directing the Australian Electoral Office to hold the referendum).

    The eight successful referendums included the very first referendum in 1906, which related to changing the start date for terms of senate to coincide with the House of Representatives, and the most recent successful referendum in 1977, which introduced a mandatory retirement age of 70 for federal judges.

    The referendum that bears the most similarity to the one we will be voting in later this year is the 1967 referendum, which is the only other referendum that has been about Indigenous Australians. That referendum asked voters whether Indigenous Australians should be counted as part of the Australian population. It was the most successful referendum in Australian history. Every state and territory secured a majority vote, with Victoria (94.68%), New South Wales (91.46%) and Tasmania (90.21%) recording the highest levels of support.

    What can we learn from the 1967 referendum? One of the factors that contributed to its success was support from both major sides of politics. There was no formal “no” campaign. However, this does not mean there was not opposition. Western Australian newspapers advocated strongly for a “no” vote on several grounds, including the lack of detail about the proposed change that was provided ahead of the referendum. While Western Australia recorded the lowest “yes” vote of any state (80.95%), there was still a clear majority in favour of counting Indigenous people as part of the Australian population, with the electorate clearly unswayed by the “lack of detail” argument.

    Whether there is bipartisan support for the referendum on the Voice is open for debate. Federal politicians such as Peter Dutton, Pauline Hanson and David Littleproud have loudly proclaimed their support for a “no” vote. However, they are increasingly becoming outliers in their own parties. New South Wales Member for Calare, Andrew Gee, was the first federal Nationals MP to resign from the party in response to the Nationals opposing the Voice, and the West Australian branch of that party has declared that they support the Voice. Similarly, there have been several high-profile members of the Liberal Party who have resigned their party membership or portfolios or distanced themselves from Peter Dutton on this issue, including, Ken Wyatt, Julian Lesser, Bridget Archer, and, of course, Tasmania Liberal Premier Jeremy Rockliff.

    With so much dissension within the Liberal Party ranks, it can be argued that there is a degree of bipartisan support for the Voice, and that just like the 1967 referendum, the country will come together in a resounding vote of support for our continuing journey of reconciliation with the First peoples of Australia.

    Professor Paula Gerber is a Professor in the Monash University Faculty of Law and an Academic Member of the Castan Centre for Human Rights Law.

    This article was originally published in the print version of The Mercury on 7 June 2023.

    This post was originally published on Castan Centre for Human Rights Law .

  • A strong Indigenous Voice to Parliament is a sign of ‘healthy democracy’

    By Paula Gerber and Katie O’Bryan

    The shadow Attorney-General, Michaelia Cash has asserted that the Voice to Parliament is divisive, and breaches discrimination laws. She is wrong. Seeking to overcome the systemic discrimination that Indigenous Australians face, is entirely consistent with our racial discrimination laws.

    As the former Chief Justice of the High Court, Robert French noted, the Voice is not about race, but rather ‘rests upon the historical status of Aboriginal and Torres Strait Islanders as Australia’s Indigenous peoples’. Indeed, the Australian Race Discrimination Commissioner, Chin Tan, says that the Voice to Parliament will lead to less racism, and will promote equality, not inequality. This is based on the fact that, ‘denying Indigenous Australians a voice in decisions that affect them will only serve to maintain racial inequality and continue the marginalisation and disempowerment of First Nations people.’ Thus, rather than breaching our race discrimination laws, the Voice will help to prevent discrimination and alleviate inequality.

    The Voice to Parliament is also consistent with our international law commitments, including in the United Nations Declaration on the Rights of Indigenous Peoples and the Convention of the Elimination of All forms of Racial Discrimination. The Declaration on the Rights of Indigenous Peoples recognises the right of Indigenous people to ‘participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures’ and governments must consult with Indigenous representative institutions ‘before adopting and implementing legislative or administrative measures that may affect them’. The Voice is doing no more than this. It is not giving Indigenous peoples any power to veto laws and is not a ‘third chamber’ as critics like Scott Morrison have claimed. 

    Senator Michaelia Cash also says that the Voice will embed “superior rights” in the Constitution. Again, she is wrong. The Voice does not create special rights or breach discrimination laws. Rather, it gives Aboriginal and Torres Strait Islander peoples a permanent mechanism by which they can put their views to Parliament and the Executive Government. The constitutional amendment does not require Parliament or the Executive Government to act on those views. All Australians have the right to make representations to Parliament which is guaranteed by the constitutional implied freedom of political communication. Indeed, there are lobbyists who arguably enjoy very privileged access to members of parliament and who can put forward their views with much less transparency than would be the case for The Voice. Indeed the secrecy shrouding federal lobbying undermines democracy, whereas The Voice will enhance democracy.  

    The Constitutional Expert Group comprising nine experts (including former High Court judge Kenneth Hayne) has confirmed that the “draft amendment [establishing The Voice] is constitutionally sound” and does not amount to a “veto” power or provide anyone with “special rights”. 

    As it currently stands, our Constitution does not protect equality, and actively allows for racially discriminatory laws by virtue of s 51 (xxvi) (the race power). Further, the race power has only ever been used to make laws for Aboriginal and Torres Strait Islander peoples, laws which are not required to be beneficial laws. It is only fair that First Nations peoples be entitled to put forward their views to the Parliament and Executive Government when such laws are being developed.

    Michaelia Cash’s claim that The Voice to Parliament will be divisive does not stand up to scrutiny. The Voice will help to unite our nation because it will be a major step towards reconciliation. A successful referendum on the Voice will mean that the Australian people have emphatically said that they want Parliament to listen to First Nations people. It will be an acceptance of the invitation in the Uluru Statement from the Heart to walk together for a better future. 

    There are people who disagree with the idea of The Voice, and who will disagree with representations that the Voice might make. That is nothing to fear. A healthy democracy relies on the ability of people to be able to express their views, particularly on matters which affect them. The Voice to Parliament merely facilitates Indigenous Australians expressing their views on laws that affect them. It does not prevent others from also expressing their views.   

    Professor Paula Gerber is a Professor in the Monash University Faculty of Law and an Academic Member of the Castan Centre for Human Rights Law.

    Dr Katie O’Bryan is a Lecturer in the Monash University Faculty of Law and an Academic Member of the Castan Centre for Human Rights Law.

    This article was originally published in the The Australian on 23 May 2023. Read the original article.

    This post was originally published on Castan Centre for Human Rights Law .

  • Government’s family law bill is a big step forward. But it doesn’t do enough to address family violence

    By Becky Batagol and Jessica Mant

    The Labor government’s Family Law Amendment Bill 2023 is making its way quietly through Australia’s federal parliament. It will become one of the most important laws passed this year.

    It proposes to overhaul the family law system to make it “safer and simpler for separating families to navigate, and ensure the best interests of children are placed at its centre”. 

    We should celebrate the fact this bill is passing through parliament. It shows the government has responded to insistent calls for change to protect families. 

    But here’s why it doesn’t go far enough in addressing family violence.

    What’s the bill for?

    The bill will make important changes to the rules that govern parenting arrangements after separation.

    It will remove the presumption of “equal shared parental responsibility”. Under the current law, this presumption means both parents have a role in making major, long-term decisions about their children.

    However, it’s often misinterpreted. Many people believe it means parents are entitled to equal time with their children, regardless of domestic and family violence or abuse.

    This bill will finally make it clear that equal time isn’t always appropriate or safe for families with a history of abuse.

    The problem of family violence

    The grim reality is that family violence is the norm, not the exception in family law. Recent data shows well over half of cases before the family court involve allegations of family violence against children or one parent.

    Separation often doesn’t mean an end to the violence, but more harm and control, especially at contact changeover times for children or during the court process.

    Helen Politis, a victim-survivor of abuse and veteran of the family law system explains what this meant for her:

    The reign of chaos my children and I experienced prior to separation escalated post separation. Even worse was that this damaging behaviour was inadvertently enabled, legitimised, perpetuated and, I fear, normalised for my children.

    Victim-survivors face a common belief from family law professionals that children need a relationship with their father, no matter the abuse they have suffered. As Helen explains:

    Despite the overwhelming evidence of continued abuse and countless examples of the ways in which my children were being used as pawns, my own lawyers denied my situation. Routinely my desperate pleas to my lawyers were met with dismissive responses such as “it takes two to tango” and “you can’t clap with one hand”.

    This is even worse when the system itself is deliberately used by perpetrators to control and intimidate victim-survivors. Research in Australia and the United Kingdom demonstrates this “legal systems abuse” is common in family law. 

    For Helen, the legal system was a core component of family violence:

    Being caught in the family law system felt very dangerous. I was in an impossible situation, with no way out and no way of protecting my children.

    What needs to be done?

    This bill makes important progress, but there are two main reasons why it doesn’t go far enough.

    It must allow histories of violence

    First, the bill needs to be stronger in recognising where family violence has occurred. 

    In the bill, there will be six principles to help judges, lawyers and parents decide what arrangements would be in children’s best interests. The bill includes reference to “safety” as one of these six principles, but at the same time proposes to remove a reference in the current law to a history of violence in considering the best interests of children. 

    Simplification of the law shouldn’t come at the cost of harm. As family law expert Zoe Rathus from Griffith University explains:

    Talking about safety is talking about the future. Talking about violence is talking about the past – and talking about the past is critical to women and children being able to tell their stories when they have experienced family violence.

    There’s significant evidence that many victim-survivors’allegations of family violence aren’t believed, and their experiences are minimised in the family law system.

    Helen’s own lawyers advised her not to raise her experiences of past family violence in her case, for fear it would be held against her:

    I believed that the family law system would provide my children with the safety and support that they rightfully deserved. What I experienced was an incredibly lengthy, frightening and financially depleting process. Family violence is what led me into the family law system, yet despite the irrefutable evidence, it was routinely ignored.

    As it stands, this bill reinforces this problem. It suggests we should ignore information and evidence about past violence, and pretend it isn’t relevant to the future safety of victim-survivors or the children at the heart of these arrangements. 

    To address this, the bill should retain the provision that allows evidence of any family violence to be considered.

    It must recognise legal systems abuse

    Second, the bill needs to do more to address legal systems abuse. 

    A major achievement of this bill is it will introduce a new power for judges to make orders that stop people bringing court proceedings where it would cause harm to the other family members involved.

    However, it needs to go further. The bill needs to reflect global evidence and finally recognise “systems abuse” as a form of family violence. 

    Systems abuse could be explicitly listed as an example of family violence in the Family Law Act 1975, as recommended by a recent unpublished study by Lucy Foster from Monash University. 

    We believe the bill could add systems abuse into the existing definition of family violence used in law.

    It’s important parliament takes this opportunity to get our family laws as strong as possible on the issue of family violence. 

    We support Helen in her hope for this new law:

    Although too late for me and my children… I am hopeful this time we have the courage to step up and deliver a Family Law Act that does not further damage the lives of vulnerable people. Simple changes such as recognising past violence can make all the difference. The proposed changes do not seem to go far enough to address the harms inflicted on vulnerable people before the family law system, overwhelmingly women and children.

    The authors would like to acknowledge Helen Politis, who coauthored this article. Helen is a workplace advisor and advocate. She works with organisations, including 1800 Respect and the Judicial College of Victoria towards ending family violence.

    Assoc Profesor Becky Batagol is an Associate Professor in the Monash University Faculty of Law and an Academic Member of the Castan Centre.

    Dr Jessica Mant is a Lecturer in the Monash University Faculty of Law and an Academic Member of the Castan Centre.

    This article is republished from The Conversation under a Creative Commons Licence. Read the original article here.

    This post was originally published on Castan Centre for Human Rights Law .

  • Minorities supporting minorities: Why the LGBTIQA+ community should support the Voice

    By Paula Gerber

    The International Day Against Homophobia, Biphobia and Transphobia, celebrated on 17 May each year, is generally a time to reflect on the advances that have been made in increasing respect for the rights of LGBTIQA+ people, as well as think about the work that still needs to be done. However, this year, rather than looking at how we can better protect the rights of the LGBTIQA+ community, it is appropriate to consider how the LGBTIQA+ community can help to secure better protection for the rights of another minority.

    Later this year, all Australians will be required to vote in a referendum that will determine the extent to which we will respect the human rights of Australia’s Indigenous peoples. In particular, we will be voting “yes” or “no” to amending the Constitution to recognise Indigenous peoples and to establish a Voice to Parliament.

    The LGBTIQA+ community is the only other minority group in Australia that has lived through the stress and strain of a campaign in which the majority got to vote on the extent to which the human rights of a minority will be respected. In 2017, Australians were invited to answer the question “Should the law be changed to allow same-sex couples to marry?”. The outcome was a resounding “yes” with 7,817,247 people (61.6% of respondents) supporting the institution of marriage being opened up to same-sex couples. 

    In many ways the marriage equality “vote” is not comparable to a vote on The Voice, because it was a non-compulsory postal survey, rather a mandatory referendum. There was no legal necessity for the marriage equality postal survey; the Marriage Act 1961 could have been amended to allow same-sex couples to marry by the passage of a simple Bill through Parliament. There is, however, a legal necessity for the referendum on the Voice, since that is the only way the Australian Constitution can be amended.

    Indigenous Australians and LGBTIQA+ Australians have a long history of supporting and inspiring each other. As Tasmanian LGBTIQA+ activist Rodney Croome observed,

    Indigenous activists played a greater role in inspiring the Australian LGBTIQA+ movement than is often acknowledged. The Aboriginal civil rights movement that led up to the 1967 referendum showed LGBTIQA+ advocates that change in Australia was possible. It was a forerunner of the early movement to decriminalise homosexuality.

    There is, of course, overlap between the two minority groups with many queer Indigenous people organising “Yes” campaigns for marriage equality, including by setting up groups such as Black Fellas for Marriage Equality.  

    Indigenous Australians and LGBTIQA+ Australians also share similar experiences of discrimination and persecution. A response of bigotry or hatred is common for people identifying as an Aboriginal or Torres Strait Islander person, just as it is for people coming out as gay, bi, trans or queer. And as Professor Dennis Altman observed, there is overlap between those who opposed marriage equality and who are now opposing The Voice, including Peter Dutton, Tony Abbott and David Littleproud.

    LGBTIQA+ people know first hand how toxic a “No” campaign can be. The postal survey emboldened opponents of marriage equality to freely express their bigoted opinions, and it is feared that the lead up to the referendum will see a similar surge in hateful speech, only this time the risk is racist vitriol rather than homophobic and transphobic hatred. However, the trauma that such hate speech inflicts will be similar and the LGBTIQA+ community can play a role in sharing the “ugly learnings” from the postal survey, so that Indigenous Australians can put in place protective strategies to deal with any hatred and fearmongering.

    Change is hard and constitutional change can be particularly scary because it is altering a document that has been the bedrock of our legal system for more than 200 years, However, the Constitution needs to be a living instrument that remains relevant in contemporary society. The drafters of the Constitution recognised this by including provisions that allowed for changes to be made. 

    Opponents of equal rights for LGBTIQA+ people engaged in relentless scaremongering, making unfounded claims that a marriage equality would lead to boys having to wear dresses to school and children receiving radical gay sex education. We are seeing that “The Voice is being demonised in exactly the same way LGBTIQA+ human rights are demonised. Through fear of the unknown, predictions the sky will fall in, claims of ‘special rights’ and vague allusions to ‘unintended consequences”. 

    More than five years have passed since Australia achieved marriage equality and none of the outrageous assertions about what would happen if same-sex couples were allowed to marry have come to fruition. This recent history can be used as evidence to support the campaign for The Voice and to dismiss fearmongering and scare campaigns that have no basis in fact.

    It has been observed that, 

    all LGBTIQA+ people, Indigenous and not, will benefit from a Voice to Parliament. It will show that Australia can be a fairer and less prejudiced society where the voices of marginalised and disadvantaged communities matter.

    The LGBTIQA+ community can use this IDAHOBIT as an opportunity to add their voice, their experience and their wisdom to another “yes” campaign that as the potential to significantly increase respect for the rights of another vulnerable minority. 

    Professor Paula Gerber is a Professor in the Monash University Faculty of Law and an Academic Member of the Castan Centre for Human Rights Law.

    This article was originally published on the Monash Lens. You can read the original article here.

    This post was originally published on Castan Centre for Human Rights Law .

  • Victoria could protect LGBTQI people from hate. Why won’t the government act now?

    By Liam Elphick

    The City of Monash last week became the latest Victorian council to cancelan LGBTIQ+ event under the weight of a barrage of abuse, vilification and threats of violence.

    The council will no longer be running a drag story-time event planned for the International Day Against Homophobia, Biphobia, Intersex discrimination and Transphobia on May 17.

    This is the latest chapter in a worrying trend, imported from the United States and disrupting at least 15 Victorian councils in recent months, of far-right groups intimidating local LGBTIQ+ communities. While the safety of local communities should always be paramount, giving in to the demands of extremists has clearly only emboldened them further.

    Councils have been put in a difficult position and need greater support to address these threats. There needs to be a co-ordinated effort across state government, councils and law enforcement, working with local communities to stop hate in its tracks.

    But they are missing a major tool in their potential arsenal: vilification laws.

    For more than 20 years in Victoria, it has been unlawful to vilify people on the basis of their race or religion. Quite rightly, this means action can be taken against white supremacist speech, or hate speech which targets, for example, the Jewish or Muslim communities.

    But other communities in Victoria have no such protection. It is lawful to vilify people on the basis of their sex, sexual orientation, gender identity or sex characteristics.

    In 2019, then-Victorian MP Fiona Patten put a bill to parliament that would rectify this gap, extending Victoria’s vilification to apply to sex, sexual orientation, gender identity, sex characteristics and disability.

    The state government sent the bill to a parliamentary inquiry, which I gave evidence to in early 2020 and which released its report a year later.

    The report provided bipartisan support for extending Victorian hate speech protections to the LGBTIQ+ community – and to women and people with disability. In September 2021, the government declared in-principle support for 34 of the 36 recommendations.

    Importantly, the government announced it “will also extend the state’s anti-vilification protections beyond race and religion to cover areas such as sex, gender identity, sexual orientation, disability and HIV/AIDS status”.

    Almost two years later, the government has still not produced a bill to legislate that commitment. In response to a question in parliament last week, Attorney-General Jaclyn Symes re-committed to the reforms – but only “within the next 18 months”.

    There is no doubt the attorney-general and her department have a stacked legislative agenda this year. But these delays are unacceptable.

    While we wait, LGBTIQ+ people remain unprotected against an ever-growing barrage of abuse, threats and hate speech.

    Many had hoped that the horrific scenes at the anti-trans rights protest outside state parliament on March 18, where far-right figures made Nazi salutes and held up hateful anti-trans signs, would lead to greater urgency on anti-vilification reform. Instead, the government responded by announcing it would ban the Nazi salute.

    While that is an important step, it does little to stop abuse targeted at the LGBTIQ+ community – or, indeed, at women or people with disability.

    Extending Victoria’s hate speech protections to the LGBTIQ+ community would do far more in helping respond to events like those we saw on March 18, and to the threats being levelled at councils and other LGBTIQ+ community events.

    First, these protections would allow LGBTIQ+ people to bring legal action against individuals engaging in hate speech and, if they are successful, receive damages for the harm caused.

    Second, they would provide criminal offences for “serious” vilification, as we already have for race and religion. This would mean police have stronger powers to investigate, arrest and charge offenders.

    And third, we should not underestimate the societal impact of our parliament publicly marking LGBTIQ+ hate speech as wrong by passing laws to that effect. Our laws have long had a moralising effect in marking certain conduct as wrongful and deterring actions which are against the standards set down by our society.

    Prohibiting LGBTIQ+ hate speech will not stop all vilification overnight. But it will undoubtedly have a chilling effect on those who are abusing the current gap in our hate speech laws.

    This is not about stifling the kind of rigorous debate and free speech we should all expect to see protected in a liberal democracy such as ours. It is about stamping out that which crosses the line into hate speech.

    The parliamentary inquiry into hate speech deemed this to be speech which is likely to incite hatred against, serious contempt for, or revulsion or serious ridicule of a particular person or group – or speech which a reasonable person would consider hateful, seriously contemptuous, or reviling or seriously ridiculing.

    This still sets a high bar to meet. It would not include the sort of everyday raising of concerns or disagreement that has long been a feature of local government meetings.

    In Victoria, we have banned vilification based on race and religion for over two decades without the sky falling in. Many other jurisdictions in Australia go further and protect various other groups.

    Fiona Patten’s bill, which gets the balance right, is still sitting on a shelf and ready to be implemented. So, too, the parliamentary inquiry report into anti-vilification.

    How much longer is the state government going to allow these extremist threats and abuse to continue? It’s well and truly time Victoria protected its LGBTIQ+ community from hate.

    Liam Elphick is an Academic Member of the Castan Centre for Human Rights Law and a Lecturer in the Monash University Faculty of Law.

    This article was originally published in The Age 9 May 2023. You can read the original article here.

    This post was originally published on Castan Centre for Human Rights Law .

  • Be assured the Voice will be a grassroots, diverse process

    By Paula Gerber

    Australians have many questions about what The Voice to Parliament will look like, how it will work and why it is needed. These are all important questions and it is reasonable that people want to know the answers before they cast their vote in the referendum later this year. This piece explains the principles that will underpin the process of appointment of people to The Voice and how we can have confidence that the chosen representatives are indeed Indigenous.

    Who will make up the Voice and how will they be appointed?

    The Design Principles recommend that The Voice consist of 24 members, made up of two representatives from each state and territory, five from remote communities, two from the Torres Strait, and one representing Torres Strait Islanders living on the mainland. This means that Tasmania is guaranteed to have two representatives who will be part of The Voice.

    It is important that members of The Voice come from a broad geographical spread because Aboriginal and Torres Strait Islander communities are many and varied, each having their own unique culture, identity and often, language. It would not be appropriate for the Wurundjeri Woi Wurrung people who are the traditional owners of Naarm (Melbourne), to represent the Muwinina people from Nipaluna (Hobart) or other Palawa (Tasmanian Aboriginal peoples).

    The design principles, developed by the First Nations’ Referendum Working Group, require that, in addition to having a broad geographical representation, The Voice must also be gender balanced and include youth. This is important to ensuring that The Voice genuinely represents the diverse voices of Australia’s many First Nations communities.

    Who gets to be a member of the Voice is determined by local Aboriginal and Torres Strait Islander communities, not the government. This is appropriate since the whole point of The Voice is that First Nations people have a channel to have their concerns heard by decision makers.  Therefore, they should be the ones who decide who will speak for them. So it is local communities who will determine who they want to represent them on The Voice.

    After the referendum, there will be a process of deep consultation with Aboriginal and Torres Strait Islander communities about the fine detail of The Voice, following which, Parliament will enact legislation to establish The Voice. This is in keeping with how our democratic system of government works. For example, section 71 of the Constitution gives the federal government power to establish the High Court and federal courts. Parliament used this constitutional power to pass the Judiciary Act 1903 (Cth) setting out the ‘mechanics’ of our judicial system. It will be the same for The Voice. We, the Australian people, will decide if the Constitution should be amended to include The Voice, and then Parliament – assuming the referendum is successful – will give effect to that vote, by passing legislation setting out the requisite mechanics.

    Determining if a person is Indigenous

    A question that many people have is how do we know if a person is Indigenous. We can take guidance on this issue from the 1998 Tasmanian case of Shaw v Wolf, in which the court noted that “Aboriginality as such is not capable of any single or satisfactory definition”. Rather a three-part test is used. This three-part test provides that a person will be considered Indigenous if:

    1. they are of Aboriginal or Torres Strait Islander descent;
    2. they identify as an Aboriginal or Torres Strait Islander; and
    3. they are accepted as such by the community in which they live.

    What is meant by descent was considered by the High Court in Tasmanian Dams case which held that words which relate to ‘race’, which ‘descent’ does, have a wide and non-technical meaning. Thus, an ‘Aboriginal person’ is a person descended from the inhabitants of Australia prior to European settlement.

    The elements of the three-part test are interwoven and while some degree of descent is necessary, the court in Tasmanian case of Shaw v Wolf noted there are often a lack of written records regarding descent and therefor community recognition may be the best evidence of proof of descent.

    This approach was endorsed by the High Court in the Mabo case and essentially leaves the decision about who is Indigenous in the hands of Indigenous communities. 

    Ultimately, who makes up the 24 members of The Voice will be determined by local communities from all around the country. The precise details of how this will occur will be finalised after the referendum, but what we do know is that it will be a grassroots Indigenous led process that they will culminate in a democratic, representative body that will listen to all Indigenous communities and facilitate their views being heard by Parliament.

    Professor Paula Gerber is a Professor in the Monash University Faculty of Law and an Academic Member of the Castan Centre for Human Rights Law.

    This article was originally published in print version of The Mercury on 10 May 2023.

    This post was originally published on Castan Centre for Human Rights Law .

  • Why the time is right for Australia to enact a Charter of Human Rights

    By Julie Debeljak

    Last month we saw two major advances in the push for a national Charter of Human Rights, namely:

    This is the most progress we have seen on this issue since the National Human Rights Consultation, undertaken nearly 15 years ago.

    The 2009 report that followed the consultation committee’s widespread consultation noted that 87% of people who expressed a view about whether Australia needed a Human Rights Act were in favour, and recommended that “Australia adopt a federal Human Rights Act” (Recommendation 18). However, although the Rudd government did implement a number of the consultation committee’s recommendations, it did not enact human rights legislation.

    In the intervening years, the public’s appetite for a national Charter of Human Rights has remained relatively constant.

    In 2022, Amnesty International found that 73% of Australians support the introduction of a Human Rights Act. These results are not surprising, given the many daily examples of serious human rights problems across Australia, including:

    Australia is an outlier in not having comprehensive human rights legislation. The countries that we like to compare ourselves to – Canada, New Zealand and Britain – have all had human rights legislation for decades.

    Several jurisdictions within Australia have grown impatient with the lack of action by the federal government, and enacted their own Human Rights Acts (ACT, Victoria and Queensland).

    The experience in these three jurisdictions demonstrates that human rights legislation is not a “lawyer’s picnic”, and protecting human rights does not require inordinate amounts of additional government expenditure.

    Australia’s failure to enact national human rights legislation means that we’re not fully implementing our treaty obligations under the International Covenant on Civil and Political Rights (ICCPR) and International Covenant on Economic, Social and Cultural Rights (ICESCR), which is a source of significant embarrassment on the international stage.

    When Australia’s human rights record is reviewed by the United Nations Human Rights Council as part of the Universal Periodic Review process, many countries comment on this omission, and strongly recommend that Australia remedy this failure by enacting a Human Rights Act.

    Of course, comprehensive legislation will not fix every human rights problem, but it will go a long way to creating a more rights-respecting culture, and a system of governance that is more responsive to the human rights impacts of its actions.

    A Charter of Rights will ensure that rights concerns will influence the government and parliament as they develop public policy and make laws.

    However, it will not lead to human rights “trumping” other democratic values and concerns. This is because a Charter of Rights allows limits to be placed on rights, provided they’re reasonable and demonstrably justified.

    A Charter of Rights will fill gaps in our current human rights protection, such as the gap in prohibiting discrimination on the basis of religion.

    However, rather than introducing divisive legislation as proposed by the former coalition government, and another piece of anti-discrimination legislation that adds to the problems associated with a patchwork of rights protections, freedom of religion can be protected within an overarching human rights instrument that protects all of the rights enshrined in the ICCPR and the ICESCR.

    A Charter of Rights will require government and the courts to implement human rights principles in their work, but it will not affect parliament’s ability to pursue policy and pass laws that are inconsistent with human rights.

    Some people are worried that human rights legislation will stop parliament from making laws it considers necessary, but we need look no further than the Victorian parliament during the COVID-19 pandemic. With human rights legislation in place, the Victorian garliament was able to pass laws that impinged on human rights, but it had to demonstrate that it had considered the implications of its laws on human rights, and justify why the public health concerns outweighed the human rights concerns.

    Quite simply, human rights legislation forces parliament to be more transparent about the justifications for limiting rights, and this contributes to the democratic accountability of parliament – if Australians dislike parliament making laws that violate rights, they can demonstrate their displeasure at the ballot box.

    Human rights legislation is a normal part of living in a modern democratic country that prides itself on respecting human rights.

    It’s time that Australia joined all other Western nations by creating a comprehensive legal framework that supports and upholds the human rights of everyone living in Australia.

    The federal government might actually find that having a Charter of Rights assists it in deciding how to respond to the many threats we’re facing, ranging from endemic gender-based violence and systemic racism, to massive cyber attacks and climate change.

    Associate Professor Julie Debeljak is an Associate Professor of the Monash University Faculty of Law and an Academic Member of the Castan Centre for Human Rights Law.

    This article was originally published in the Monash Lens. You can read the original article here.

    This post was originally published on Castan Centre for Human Rights Law .

  • Legal experts weigh in on Indigenous Voice to Parliament referendum question

    By Paula Gerber and Katie O’Bryan

    Now that we have the wording of the constitutional amendment and the referendum question, it is important to consider what these words actually mean and whether there is anything in the proposed text that we should be worried about.

    The Solicitor-General, Stephen Donaghue, has concluded that the wording of the amendment to the constitution poses no threat to Australia’s democratic system of government. 

    This is reassuring, and it is still important for everyone who will be voting in the Voice referendum (to be held between October and December this year), to understand these five aspects of the question and the proposed change to our constitution.

    How is the Constitution going to be amended?

    A new, very short chapter (less than 100 words) will be inserted into the Constitution, which says:

    In recognition of Aboriginal and Torres Strait Islander peoples as the First Peoples of Australia:

    1. There shall be a body, to be called the Aboriginal and Torres Strait Islander Voice;
    2. The Aboriginal and Torres Strait Islander Voice may make representations to the Parliament and the executive government of the Commonwealth on matters relating to Aboriginal and Torres Strait Islander peoples’
    3. The Parliament shall, subject to this constitution, have power to make laws with respect to matters relating to the Aboriginal and Torres Strait Islander Voice, including its composition, functions, powers and procedures.

    This amendment does not in any way diminish the powers of Parliament to make laws.

    The Voice simply facilitates First Nations people making representations to Parliament and the executive government, which they are free to accept or reject. Having input directly from our First Nations peoples will help our politicians make better informed decisions.

    Why is the question so brief?

    The referendum question that will be asked of the Australian people is: “A proposed law: to alter the constitution to recognise the First Peoples of Australia by establishing an Aboriginal and Torres Strait Islander Voice. Do you approve this proposed alteration?”

    It is important to keep the question brief so that it can be easily understood by every Australian who will be voting in the referendum. This is quite normal for referendum questions. The more complicated the question (and associated constitutional amendment) the greater chance of misunderstanding and misinterpretation, and the greater the chance of people voting “no” because they are confused by the wording.

    This is the approach that has been taken in the past. For example, the successful 1967 referendum for Aboriginal people to be counted in the population, and the 2017 marriage equality postal survey asked the following very short and simple questions:

    1967 referendum: Do you approve the proposed law for the alteration of the constitution entitled “An act to alter the constitution so as to omit certain words relating to the people of the Aboriginal race in any state and so that Aboriginals are to be counted in reckoning the population?”

    Marriage equality postal survey: “Should the law be changed to allow same-sex couples to marry?”

    The Voice referendum takes a similar approach. It is worth noting that this this language is also a requirement of the Referendum (Machinery Provisions) Act 1984 which provides the framework for the conduct of referendums.

    What is the significance of the inclusion of executive government?

    The executive government is where government policy and most proposed laws are initially developed.

    It includes cabinet, which is made up of the prime minister and approximately 19 senior ministers, but can be up to 30 ministers. Cabinet is the main decision-making group within executive government.

    The executive also includes the public service. Thus, the Voice would be able to have input into not only the development of laws, but also the work of the public service in the implementation of those laws. The inclusion of “executive government” is not a cause for concern, because the wording explicitly limits the role of the Voice to making representations. 

    There is no compulsion on Parliament or the executive to accept or act on those representations.

    Including the executive arm of government does not open the floodgates to court challenges. As former High Court chief justice Robert French observed, “There is little or no scope for constitutional litigation arising from the words of the proposed amendment. The amendment is facilitative and empowering.”

    Including executive government in the proposed amendment makes clear that the Voice may make representations when a law or policy is being developed, rather than only when it is introduced as a bill into Parliament, which is very late in the process of creating laws and policies.

    Why should Parliament get to decide the composition, functions, powers and procedures of the Voice?

    Parliament is given the power to make laws with respect to the composition, functions, powers and procedures of the Voice because our constitution is about basic structures and principles, not the day-to-day operation of our system of government. The constitution contains many examples of Parliament being given powers to pass laws. For example, section 51 provides that, “Parliament shall, subject to this constitution, have power to make laws … with respect to … ” This wording is very similar to the wording of the Voice amendment.

    It is the role of Parliament to make laws. Thus, giving it the power to enact and amend legislation establishing the Voice is entirely consistent with how our democracy has operated since Federation in 1901.

    There have been calls for further detail about what the legislation will look like, but this should happen after the constitutional amendment has been approved. 

    The people are being asked to vote on amending the constitution to establish a Voice, not on draft legislation that will follow a successful referendum; legislation which is likely to change over time, as circumstances change.

    The government has released a detailed set of design principles that will guide the drafting of the bill to establish the Voice. We should not pre-empt Parliament’s decision regarding what the Voice will look like, given the extensive consultations with Indigenous communities that will be needed with. Indeed, consulting with Indigenous peoples about the laws implementing the Voice, exemplifies the way the Voice can and should operate in practice.

    How much input did Indigenous people have into the final wording?

    The final wording was reached in consultation with the referendum working group, comprising 21 Indigenous people from around Australia. There will be further opportunity for input – from both Indigenous and non-Indigenous Australians – now that the referendum bill has been introduced into Parliament, as it has been referred to a parliamentary inquiry. 

    This could result in changes to the wording.

    The result of the 2017 marriage equality postal survey (61.6 per cent said “yes”) should give us confidence that we can come together to better protect the rights of minorities, and that changing laws won’t result in a lawyers’ picnic or the breaking down of society.

    This referendum gives all Australians an opportunity to make a real difference in the lives of Indigenous Australians. The Voice will help Indigenous people be heard in matters that affect them specifically. 

    It will also help address institutionalised inequities, build a stronger, more inclusive democracy and facilitate us working together to build a society that reflects the Australian value of making sure everyone gets a fair go.

    Professor Paula Gerber is a Professor in the Monash University Faculty of Law and an Academic Member of the Castan Centre for Human Rights Law.

    Dr Katie O’Bryan is a Lecturer in the Monash University Faculty of Law and an Academic Member of the Castan Centre for Human Rights Law.

    This article was originally published in The Canberra Times on Sunday, 23 April 2023. You can read the original article here.

    This post was originally published on Castan Centre for Human Rights Law .

  • The Voice: nothing to fear

    By Luke Beck

    John Farnham’s 1980s hit You’re the Voice opens with the lines ‘We have the chance to turn the pages over / We can write what we want to write.’ This nicely fits what Australians will do later this year when they vote in a referendum to enshrine an Aboriginal and Torres Strait Islander Voice in Australia’s Constitution. 

    The referendum will be a chance for all Australians to ‘make a noise and make it clear’ that Aboriginal and Torres Strait Islander Australians should be recognised in our Constitution and enshrine the idea that Aboriginal and Torres Islander Australians should have a voice on matters that affect them.

    The idea for a Voice to Parliament comes from the Uluru Statement from the Heart. There are two important things to know about the Uluru Statement released in 2017.

    The first is that the Uluru Statement is a grassroots document. It is the outcome of a series of regional dialogues involving ordinary Aboriginal and Torres Strait Islander Australians and community groups. It is not a statement from Aboriginal elites or self-appointed leaders.

    The second thing to know is that the Uluru Statement is an invitation from ordinary Aboriginal and Torres Strait Islander Australians to other ordinary Australians to ‘walk with us in a movement of the Australian people for a better future.’ It is not an angry demand or an attempt to divide Australians.

    Only ordinary Australians can change the Constitution by voting Yes in a referendum. And one group of ordinary Australians is asking all ordinary Australians to do so in the national interest. As John Farnham sings, ‘we know we all can stand together / With the power to be powerful / Believing we can make it better’.

    A Voice to Parliament ‘fits’ the Australian system. The idea affirms and respects the supremacy of the democratically-elected Parliament. 

    The Voice will be an advisory body only. It won’t make decisions. It won’t get to veto government decisions. But it will ensure that Aboriginal and Torres Strait Islander Australians are heard on matters that affect them.

    New Zealand’s approach of having special Maori seats in Parliament wouldn’t really fit Australia’s system. Australia is quite different to New Zealand on indigenous issues. Maori have a common language and a broadly shared culture. In Australia, there are literally hundreds of distinct Aboriginal and Torres Strait Islander nations and languages. 

    Our parliamentary systems are also different. Australia is a federation. New Zealand is not. And New Zealand’s modern parliamentary system has had Maori seats since 1867. Australia’s modern parliamentary system has not evolved with that kind of thing in place.

    A Voice to Parliament also ‘fits’ the Australian system in another way. Parliament will decide what the Voice looks like and how it operates.

    Multiple constitutional law experts have pointed out that Australia’s Constitution does not do policy details. The Constitution sets up systems and structures while giving Parliament power to decide the details and to change the details over time. 

    When the Constitution was first written nobody wanted the details about how many courts there would be or the details of what each court would do. Everybody knew that Parliament would decide those details and change them over time. 

    When Australians voted Yes in a referendum in 1946 to give Parliament power to set up a social security payments system nobody wanted the details of each type of payment. Everybody knew that Parliament would decide those details and change social security payments over time.

    It is the same with the Voice. Parliament will decide what the Voice looks like and how it functions. 

    If at some point you don’t like the details of the court system, the social security payments system or the Voice, you can vote out the government and vote in a new one to change the details.

    The only thing the referendum will set in constitutional stone is the idea that Aboriginal and Torres Strait Islander Australians should have a voice in matters affecting them.

    A third way the Voice proposal ‘fits’ Australia’s constitutional traditions is that other Australians lose nothing from this proposal. Australians have voted Yes to change the Constitution only eight times since Federation. On those eight occasions ordinary Australians had nothing to fear and lost nothing.

    John Farnham sings ‘We’re not gonna sit in silence / We’re not gonna live with fear’. When Australians voted Yes in 1977 to allow territorians to vote in referendums, other Australians didn’t lose anything. There was nothing to fear. It is the same with enshrining an Aboriginal and Torres Strait Islander Voice to Parliament in the Constitution. Other Australians will not lose anything.

    Community discussion will ramp up this year. Australians will discuss and ask questions about how referendums work. Fair enough given Australia’s last referendum – the republic referendum – was held in 1999, almost a quarter of century ago! 

    Australians will also discuss and ask questions about the Voice to Parliament. 

    Good faith discussions and questions are a good thing. They are civic engagement. Australians take seriously their civic responsibility for changing the Constitution.

    Politicians in Parliament will ultimately decide what a Voice looks like and how it operates. But in deciding whether there should be a constitutionally-enshrined Voice to Parliament, it is not politicians who will make the decision. It’s ordinary Australians. ‘You’re the voice, try and understand it.’

    Professor Luke Beck is an Academic Member of the Castan Centre for Human Rights Law and is a Professor of Constitutional Law within the Faculty of Law at Monash University.

    This article was originally published in the print version of the Herald Sun on 10 January 2023.

    This post was originally published on Castan Centre for Human Rights Law .