radiofree.asia

Author: Castan Centre

  • Is Empathy Training the Answer to Advancing Gender Equality?

    By Michaela Guthridge

    Allegations of trolling, upskirting, and a mocking apology by federal MP Andrew Laming are just the latest in a litany of reports which have revealed systemic issues of gender inequality in our nation’s capital. In response to these allegations, Prime Minister Scott Morrison directed Laming to undertake empathy training.

    These incidents are set within a wider context of generalised disrespect of women in the halls of parliament. Prime Minister Scott Morrison, whose government has reportedly paid $190,000 on empathy training in the past, has looked to his wife Jenny for guidance on invoking an empathic response. In relation to Laming, the Prime Minister is reported to have said “I would hope that we would see a very significant change in his behaviour”.  

    After attending the online course, Laming has now claimed that he has too much empathy.

    So, was empathy the answer?

    We may quickly answer a resounding ‘no!’ But it needs some unpacking to garner a deeper understanding of whether empathy can truly be a way forward or not.

    If we look to the neuroscience of empathy, we discover there is more than one dimension of empathy. The dimension we are most familiar with is cognitive empathy. This colloquially is stepping into another’s shoes to imagine another’s perspective. Through this perspective-taking we can appreciate our ‘sameness’ despite our many differences. Perspective-taking and prosocial behaviours develop when we are between 18-25 months old and by adulthood our trait empathy is relatively stable. This suggests that behaviour change based on cognitive empathy would require intensive and long-term dedication beyond the capabilities of any online short course.

    There also may be great danger in using cognitive empathy to achieve gender equality as one person’s understanding is not equivalent to another’s. To take the metaphor of stepping into another’s shoes, we only know how we feel in another’s shoes. Their shoes may be a perfect fit for us, but abrasive and uncomfortable for another. If we apply this notion to gender equality, we could say that a man has no point of reference in which to imagine what it is to be a woman. It appears that the training undertaken by Laming was based on the cognitive dimension of empathy given that he now considers himself with a surfeit of empathy.

    Another Dimension of Empathy

    There is, however, another dimension of empathy known as affective empathy. Affective empathy allows you to feel what another is feeling via the brain’s mirror neuron system. If cognitive empathy can be conceptualized as ‘I understand how you feel’, affective empathy is described as ‘I feel what you feel’. This second dimension of empathy may be ‘trainable’. In this respect, affective empathy is malleable, and much more than a social or emotional reflex. Affective empathy can be a choice and a skill that can be improved with attention, dedication and practice, and targeted brain training could be a powerful way to alter the function, connections and activity within and between our key neural networks. Because of this, racism, ageism, ableism, sexism and heterosexism are not inevitable. They can be learnt (and unlearnt) based on the acquisition of non-biased attitudes.

    Traditional strategies for overcoming gender inequality have generally focused on increasing knowledge or awareness rather than on modulating experience or behaviour. Compulsory diversity training is often ineffective, can result in backlash, and has shown only modest to weak impacts on gender-based discrimination. Indeed, fact-driven presentations that cite statistics can have the contrary effect of normalising discriminatory behaviour as ‘everyone is doing it’. Traditional education or training programs may not effectively influence our implicit biases in order to challenge or change harmful and discriminatory constructs, particularly when the principles that we are taught contradict what we see, hear and feel in our environments. While important steps forward have been taken, the limited effectiveness of strategies to combat gender inequality calls for consideration of alternative approaches that support the existing legal architecture.

    My Model

    I propose a new theoretical model that may lead to effective change through cultivation of empathic responses towards women and girls. The theoretical model is based on the neuroscience of affective empathy and has three elements: (1) Intersubjectivity, (2) Multisensory Engagement, and (3) Empathic Embodiment.

    In intersubjectivity, it is not the subject of two people that is important. It is the relationship that exists between them; in the shared third space. It mandates a perpetual response, transcending the temporal limitations of the human rights system. Intersubjectivity is important in the current context because gender equality is an ongoing goal that requires constant reinforcement and is not a static endgame achieved by an online course such as the one attended by Laming.

    The second element of the model of affective empathy is multisensory engagement. Operating in a multisensory environment can hone our empathic skills. In particular, the brain’s mirror mechanisms appear to convert sensory information from sights, sounds and sensations into a motor format, which enables us to feel what another is feeling. Whilst there is no equivalent to multisensory processing in the human rights-based approach, it could create an ‘enabling environment’ for the advancement of women’s human rights.  

    The final element in my model of affective empathy is empathic embodiment, which is a subjective element specific to the occurrence of embodying the experience of others. The rate of mirroring is low in interactions with outgroup members (such as women) because people generally do not mirror their outgroups. When mirroring basic emotions, the person mirroring does not necessarily have to feel the full emotion expressed or interpret its implications because it is the commonality, not the compassion, that generates equality.

    This model requires rigorous empirical testing and validation. As part of this testing, I am now seeking to explore the practical application of the model based on current NGO work. I hypothesize that this model is particularly suited young girls and boys as the next generation of feminists. This is important as there is a gap in NGO interventions that target pre-adolescents, a critical time when biases, stereotypes and empathy are formed.

    We can be assured that we will never live in a world devoid of all empathy. As integral to our sense of humanity, empathy inspires our greatest human sentiments; both love and hate. When we empathise with someone, we humanise them. It is this potential that gives empathy such power. But in order to disrupt the hegemony and initiate transformative equality, a seismic shift in thinking is required. In theory, this three-pronged model could be capable of supporting such a change.

    Applying the Model

    In dealing with the allegations levelled at Laming, Scott Morrison said “I don’t want to see gender become a defining thing in this nation”. Perhaps it should, but that takes leadership. Barnaby Joyce said you can’t “redesign people’s brains” with empathy training. You can, but it has to target the right dimension of empathy. It has to target affective empathy. Empathy is learnt, but as we see from the outcome of Laming’s training, teaching cognitive empathy can be dangerous and can make one believe they are too empathic, which unfortunately can be a hallmark of psychopathy.

    The task of tackling the toxic culture of misogyny in the ‘Canberra Bubble’ and broader society is not advanced by empathy training, a PM for Women, confusing messages about sexual consent, and a cabinet reshuffle. While measures known to create change, such as gender quotas and legal sanctions are continually brushed aside by the current government, this only perpetuates a lack of accountability and commitment to gender equality. New models based on the neuroscience of affective empathy may be the way forward to achieving gender equality. Given the high stakes (as exemplified here) exploring a model based on affective empathy is paramount. 

    Michaela Guthridge is PhD Candidate at Monash University exploring how the neuroscience of affective empathy can advance gender equality. Contact: michaela.guthridge@monash.edu

    This is an abridged version of a talk given at the 65th United Nation Commission on the Status of Women parallel event: “Next Frontiers: Neurofeminism, #UsToo and Korean Unification” 16 March 2021.

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

  • COVID-19 Travel Bans and International Human Rights

    By Dr Heli Askola

    The recent travel ban on arrivals from India to Australia has been all over the news this week. There has been debate over whether the pausing of flights until 15 May 2021, and the potential use of the Biosecurity Act 2015 to fine those who return to Australia from India, is lawful or unconstitutional. Some have been concerned that these measures undermine the legitimacy of the liberal state. There has also been discussion about whether Australia is unique among democratic nations to adopt such severe targeted measures, leaving its own citizens out in the cold (it’s not, as New Zealand implemented a similar pause in April).

    Australia’s obligations under international human rights law

    This post examines these measures against international human rights law. Australia has ratified a number of human rights treaties which impose obligations to respect and protect the rights guaranteed in them. The two most relevant treaties are the International Covenant on Civil and Political Rights (ICCPR) and the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD).

    The ICCPR states in Article 12(4) that ‘no one shall be arbitrarily deprived of the right to enter his own country’. Articles 2 and 26 further prohibit any discrimination on the basis of, for instance, race and national origin. Similarly, ICERD requires States to ‘guarantee the right of everyone, without distinction… to leave any country, including one’s own, and to return to one’s country’ in Article 5, and prohibits discrimination based on ‘race, colour, descent, or national or ethnic origin’ (Article 1).

    The body overseeing the ICCPR, the United Nations Human Rights Committee, has further clarified that ‘the right of a person to enter his or her own country recognizes the special relationship of a person to that country’. The Committee has further emphasised, in relation to the prohibition of arbitrary interference with Article 12(4), that ‘even interference provided for by law should be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the particular circumstances’. Most importantly, the Committee has emphasised that ‘there are few, if any, circumstances in which deprivation of the right to enter one’s own country could be reasonable’ (emphasis added). The Committee overseeing the CERD has further underlined States have an obligation to ensure that Article 5 is ‘neither in purpose nor effect’ limited in ways that are incompatible with Article 1 of the Convention.

    The India travel ban

    Is it therefore reasonable to prevent citizens from returning to the country to keep Australia effectively Covid-free at this stage of the global pandemic? Some would say so, given the global number of deaths the SARS-CoV-2 virus has caused since early 2020. A less alarmist and more evidence-based view would however recognise that Australia has largely managed to suppress the virus over the last year, and that the population has in fact been tremendously compliant with quite extraordinary restrictions that have been imposed on individual liberty to maintain this situation.

    Despite minor outbreaks from hotel quarantine, Australia has in fact been generally successful in tracking cases and suppressing outbreaks, and certainly has the capacity and resources (not to mention the obligation) to put in place effective mechanisms to respond to the pandemic, based on, for example, lessons learnt from the Victorian outbreak. We are therefore, comparatively speaking, very well-placed to manage any risk posed by returning citizens, and ought to recognise that responsibility. Further, it is certainly the case that Australia’s current capacity to protect its citizens in India from the risks of Covid-19 is better than India’s at present.

    As regards Australia’s compliance with international human rights law, it is important to highlight that very little evidence has been provided to indicate that the federal government has even considered whether it is acting reasonably in imposing these drastic limitations, or that it has observed its obligation to consider the effects, not just the stated purpose of the restrictions. Unsurprisingly, some have suspected that the measures, in particular the pause on accepting arrivals, are racially motivated, given the lack of clarity as to why India has been singled out. It is incumbent on the federal government to explain its reasoning, including the role of human rights considerations in shaping its assessment of possible policy alternatives.

    However, apart from saying the measures were adopted to ‘protect Australia from a third wave’, the government has failed properly to justify the policy. For instance, the medical case for invoking the Biosecurity Act simply highlights the number of cases of Covid-19 recorded globally and in India, and claims that ‘quarantine leakage’ constitutes ‘a significant risk to the Australian community’. Though the advice then goes on to remark that the potential consequences for Australians left in India include ‘the risk of serious illness without access to health care, the potential for Australians to be stranded in a transit country, and in a worst-case scenario, deaths’, the advice simply suggests these extremely serious risks can be ‘mitigated through having the restriction only temporarily in place’.

    Statements like this brush away the potentially life-threatening consequences to Australians in India, and fall far short of providing a sufficiently detailed analysis of why the measures would be reasonable and not discriminatory. They certainly do little to justify any deaths that may result from the pause. Instead, the explanations suggest that the federal government is willing to sacrifice overseas Australians to their fate, because it refuses to tolerate any risk from Covid-19 inside Australia. Of course, the federal government is here taking its lead from the states and territories, whose premiers have manifested a similar tendency to opt for sudden and harsh measures to appear decisive in the face of the virus, such as snap border closures, lockdowns over one case and cutting places in the quarantine program as soon as a minimal outbreak is detected.

    Preventing Australians from leaving and returning home

    The criticisms that can be made about the India travel ban can also be made about the ban on leaving Australia and existing hotel quarantine caps, which have for over a year limited the actual ability of Australians to leave and return home. The possibility of penalising incoming passengers is also not new. The hotel quarantine caps are ostensibly based on the quarantine capacity of the states and territories, but are again set with very little evidence of the actual resources dedicated to managing quarantine, and the policy has resulted in thousands of Australians being stranded outside the country for more than a year. Among these are some extremely vulnerable and sick people, whose ability to return is prevented by inflated ticket prices and lack of quarantine places.

    In effect therefore, Australia has already taken the extraordinary step of banning people from entering the country, just on the basis of wealth, as opposed to race and national origin, as with the India travel ban. The justification for either measure, under human rights law, is questionable, given no attempt has been made to explain why, at this stage of the pandemic, such sweeping measures are necessary and reasonable. Not only have we now developed vaccines against the virus, but we also know much more than we did a year ago about who is most at risk of the virus, what works to prevent infection, and how to deal with local outbreaks. For months, hotel quarantine has been criticised as potentially ‘costly overkill’. The National Review of Hotel Quarantine, commissioned by the federal government, has also recommended consideration of less restrictive and expensive measures, such as home quarantine.

    Accountability for border restrictions

    The UN Human Rights Committee has already called on Australia to facilitate the return of two Australians as an interim measure under the Optional Protocol of the ICCPR in response to their claims that Australia is violating Article 12(4) of the Covenant by not allowing them to return home. Given the absence of a national-level charter of rights under Australian law, the Committee is the closest we presently have to a human rights oversight body that can assess whether these border restrictions are compatible with our existing international legal obligations (note that a domestic legal challenge would have to be brought on constitutional or administrative grounds, rather than on the basis of international human rights law).

    Notwithstanding the fact that international human rights obligations lack ‘teeth’ under domestic law, they draw much needed attention to the rights of individuals whose very lives are at stake a result of Australia’s border restrictions. International human rights law was created in the aftermath of the Second World War with the aim of recognising that all human beings are ‘equal in dignity and rights’, and should never be treated purely as a means to an end. The Covid-19 pandemic has shown the willingness of governments to reduce human beings to vectors of disease, who are ordered to stop doing ‘unnecessary’ things like attending funerals of loved ones.

    Human rights law makes the bold claim that all humans are equally valuable and hold basic rights, including the right to enter one’s country. Any limitations must be absolutely necessary and justified on the basis of evidence, and not discriminate. In this instance, the evidence is missing, the justification is questionable and the human costs are disproportionately borne by those with Indian background, and more generally by the nearly half (49%) of Australians who were born overseas or have at least one overseas-born parent.

    Dr Heli Askola is Associate Professor at the Faculty of Law, Monash University, and an academic member of the Castan Centre for Human Rights Law.

    • To receive notifications of new posts, click “sign me up” at the bottom
    • To join the Castan Centre mailing list, click here.
    • To follow the Castan Centre on Twitter, click here.
    • To follow the Castan Centre on Facebook, click here.

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

  • No, prime minister, sexual assault allegations are not only a matter for the police

    By Karen O’Connell and Liam Elphick

    Following the allegations of rape against attorney general Christian Porter, which he firmly denies, Scott Morrison has insisted that alleged sexual assault can only be dealt

    with in criminal law. “I am not the police force,” he said when asked for his response as prime minister. “That is a matter for the police. I am not the commissioner of police.”

    Treating an allegation of sexual violence as if it is, and can only ever be, a matter for police and the criminal law is legally incorrect and a dangerous message for the many women and men who have experienced sexual assault. It also kills off a measured, informed public conversation about how else we might respond.

    The criminal law remains, despite valiant attempts to reform it over the years, a terrible tool for dealing with gender-based sexual violence. Governmental data suggests that almost 2 million Australian adults have experienced sexual assault since the age of 15, yet only about 14% of sexual assaults in Australia are reported to police. An overwhelming majority of these reports do not end with a conviction.

    Without a living person to provide evidence, the very low prospect of a conviction evaporates. The police discontinued their investigation into the allegations against Porter largely because of this. Is that then the end of all possible legal or institutional responses as Morrison is suggesting?

    The answer is no: alleged sexual violence can be investigated without police or criminal proceedings. There are a range of legal responses available to victims and their families, including a civil action in battery, a sexual harassment claim, or pursuing compensation under other statutes. In each of these instances, victims do not have to rely on police to bring their claim, and the standard of proof required is lower.

    In battery, more commonly known as “assault”, a victim can sue their alleged offender for compensation. A recent US example is the cases brought by various women against movie producer Harvey Weinstein. These civil suits are separate to his criminal prosecution.

    In New South Wales, where the allegations against Porter are claimed to have occurred, it is also possible, if rare and difficult, for an alleged victim’s estate to bring a battery claim on behalf of the deceased. In a child sexual assault case it does not matter how many years have passed.

    Allegations of sexual violence can also be investigated under sexual harassment laws, without requiring determination of criminal guilt.

    Jemma Ewin, whose criminal case was unable to proceed because of problems with evidence, successfully argued under Australian sex discrimination laws that sexual intercourse which took place after a work function was “unwelcome sexual conduct”. Here the test was not the criminal “beyond a reasonable doubt” standard but that it was “probable” that she had not consented to the sex. Ewin was awarded a record amount of compensation.

    These actions can also be difficult to bring, and they are not an adequate response to the harm of sexual violence, but they are an important aspect of the legal picture that Morrison is disregarding.

    There has been intense concern expressed by the government and some media commentators that the principle of “innocent until proven guilty” is being undermined. It is true that a person should not be treated as if they have committed a crime if criminal standards of evidence and conviction have not been met. It is important that if there are findings against a person in civil cases or inquiries, this does not lead to a presumption that the person is guilty of a crime.

    But these examples show that an absence of criminal prosecution is not the end of the conversation about legal responsibility and harm.

    An absence of criminal prosecution also does not limit institutional responses that are directed not to a person’s guilt or liability but to their suitability for a particular role.

    Independent inquiries are often commissioned by institutions in response to allegations. These include workplace inquiries, royal commissions, coronial inquests, anti-corruption bodies, and other everyday disciplinary proceedings. None of these processes require a previous criminal charge or prosecution. Indeed, they mostly occur in their absence.

    The high court recently conducted an independent investigation into sexual harassment, triggered by allegations against former Justice Dyson Heydon, which focused on allegations at work but also helped to maintain public trust in the integrity of the court. The attorney general is Australia’s highest law officer and trust in that role is institutionally important.

    Lawyers in particular are held to high standards of conduct and are required to prove that they are a fit and proper person to be admitted to practice law in Australia. Legal practice boards can consider complaints made against lawyers. Two legal academics have referred the attorney general to the Legal Practice Board of Western Australia, although the executive director of the board has indicated they are unlikely to investigate.

    There are a range of ways in which our legal system and our institutions investigate credible allegations and provide the opportunities for all parties to have their perspectives heard. It is misleading to suggest the criminal law is the be-all and end-all in such matters.

    If we let the end of police proceedings be the end of any discussion about alleged sexual violence, we continue the long legacy of ineffectual legal and governmental responses. We should not treat someone as guilty of a crime if allegations cannot be tested, but that does not mean that our only choice is no response at all.

    Karen O’Connell is associate professor at the faculty of law, University of Technology Sydney; and Liam Elphick is associate lecturer at the faculty of law, Monash University, and a member of the Working Group on Gender and Sexuality at the Castan Centre for Human Rights Law.

    This article is republished from The Guardian under a Creative Commons license. Read the original article.

    To receive notifications of new posts, click “sign me up” at the bottom
    To join the Castan Centre mailing list, click here.
    To follow the Castan Centre on Twitter, click here.
    To follow the Castan Centre on Facebook, click here.

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

  • 83% of Australians want tougher privacy laws. Now’s your chance to tell the government what you want

    By Associate Professor Normann Witzleb

    Federal Attorney-General Christian Porter has called for submissions to the long-awaited review of the federal Privacy Act 1988.

    This is the first wide-ranging review of privacy laws since the Australian Law Reform Commission produced a landmark report in 2008.

    Australia has in the past often hesitated to adopt a strong privacy framework. The new review, however, provides an opportunity to improve data protection rules to an internationally competitive standard.

    Here are some of the ideas proposed — and what’s at stake if we get this wrong.

    Australians care deeply about data privacy

    Personal information has never had a more central role in our society and economy, and the government has a strong mandate to update Australia’s framework for the protection of personal information.

    In the Australian Privacy Commissioner’s 2020 survey, 83% of Australians said they’d like the government to do more to protect the privacy of their data.

    The intense debate about the COVIDSafe app earlier this year also shows Australians care deeply about their private information, even in a time of crisis.

    Privacy laws and enforcement can hardly keep up with the ever-increasing digitalisation of our lives. Data-driven innovation provides valuable services that many of us use and enjoy. However, the government’s issues paper notes:

    As Australians spend more of their time online, and new technologies emerge, such as artificial intelligence, more personal information about individuals is being captured and processed, raising questions as to whether Australian privacy law is fit for purpose.

    The pandemic has accelerated the existing trend towards digitalisation and created a range of new privacy issues including working or studying at home, and the use of personal data in contact tracing.

    Australians are rightly concerned they are losing control over their personal data.

    So there’s no question the government’s review is sorely needed.

    Issues of concern for the new privacy review

    The government’s review follows the Australian Competition and Consumer Commission’s Digital Platforms Inquiry, which found that some data practices of digital platforms are unfair and undermine consumer trust. We rely heavily on digital platforms such as Google and Facebook for information, entertainment and engagement with the world around us.

    Our interactions with these platforms leave countless digital traces that allow us to be profiled and tracked for profit. The Australian Competition and Consumer Commission (ACCC) found that the digital platforms make it hard for consumers to resist these practices and to make free and informed decisions regarding the collection, use and disclosure of their personal data.

    The government has committed to implement most of the ACCC’s recommendations for stronger privacy laws to give us greater consumer control.

    However, the reforms must go further. The review also provides an opportunity to address some long-standing weaknesses of Australia’s privacy regime.

    The government’s issues paper, released to inform the review, identified several areas of particular concern. These include:

    • the scope of application of the Privacy Act, in particular the definition of “personal information” and current private sector exemptions
    • whether the Privacy Act provides an effective framework for promoting good privacy practices
    • whether individuals should have a direct right to sue for a breach of privacy obligations under the Privacy Act
    • whether a statutory tort for serious invasions of privacy should be introduced into Australian law, allowing Australians to go to court if their privacy is invaded
    • whether the enforcement powers of the Privacy Commissioner should be strengthened.

    While most recent attention relates to improving consumer choice and control over their personal data, the review also brings back onto the agenda some never-implemented recommendations from the Australian Law Reform Commission’s 2008 review.

    These include introducing a statutory tort for serious invasions of privacy, and extending the coverage of the Privacy Act.

    Exemptions for small business and political parties should be reviewed

    The Privacy Act currently contains several exemptions that limit its scope. The two most contentious exemptions have the effect that political parties and most business organisations need not comply with the general data protection standards under the Act.

    The small business exemption is intended to reduce red tape for small operators. However, largely unknown to the Australian public, it means the vast majority of Australian businesses are not legally obliged to comply with standards for fair and safe handling of personal information.

    Procedures for compulsory venue check-ins under COVID health regulations are just one recent illustration of why this is a problem. Some people have raised concerns that customers’ contact-tracing data, in particular collected via QR codes, may be exploited by marketing companies for targeted advertising.

    Under current privacy laws, cafe and restaurant operators are generally exempt from complying with privacy obligations to undertake due diligence checks on third-party providers used to collect customers’ data.

    The political exemption is another area of need of reform. As the Facebook/Cambridge Analytica scandal showed, political campaigning is becoming increasingly tech-driven.

    However, Australian political parties are exempt from complying with the Privacy Act and anti-spam legislation. This means voters cannot effectively protect themselves against data harvesting for political purposes and micro-targeting in election campaigns through unsolicited text messages.

    There is a good case for arguing political parties and candidates should be subject to the same rules as other organisations. It’s what most Australians would like and, in fact, wrongly believe is already in place.

    Trust drives innovation

    Trust in digital technologies is undermined when data practices come across as opaque, creepy or unsafe.

    There is increasing recognition that data protection drives innovation and adoption of modern applications, rather than impedes it.

    The COVIDSafe app is a good example. When that app was debated, the government accepted that robust privacy protections were necessary to achieve a strong uptake by the community.

    We would all benefit if the government saw that this same principle applies to other areas of society where our precious data is collected.

    Information on how to make a submission to the federal government review of the Privacy Act 1988 can be found here.

    Normann Witzleb is an Associate Professor at Monash Law School, and a member of the Castan Centre for Human Rights Law.

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

    To receive notifications of new posts, click “sign me up” at the bottom
    To join the Castan Centre mailing list, click here.
    To follow the Castan Centre on Twitter, click here.
    To follow the Castan Centre on Facebook, click here.

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

  • Mental health, happiness of Australian children among the worst of rich countries, according to UNICEF reporT

    By Professor Paula Gerber and Sue West

    A report published by UNICEF last week examined the happiness and wellbeing of children in the world’s richest countries. The data from the report was used to also compile a “league table”, and the results are a source of shame for Australia. Not only did we rank 32 out of 38 overall, but when it comes to the mental health of our children, we’re doing even worse – 35 out of 38 countries.

    What’s going wrong?

    Why are children in “the Lucky Country” not enjoying high levels of life satisfaction? Why is suicide the highest cause of death among adolescents aged 15 to 19? Australia, we have a lot of work to do – it’s clear that wealth doesn’t buy happiness.

    The data for this report was collected before the global pandemic struck, demonstrating that Australian children were already struggling. COVID-19 will only exacerbate that. Although children don’t suffer the worst of the virus’ health impacts, they’re the group that will most acutely experience the longer-term negative impacts.

    The statistics regarding youth suicide should sound an alarm. In Australia, we experience 9.7 deaths by suicide per 100,000 adolescents aged between 15 and 19. The vast majority of wealthy countries have far lower rates than this, starting with Greece, which experiences only 1.4 deaths by suicide per 100,000 adolescents aged between 15 and 19.

    We already know that Indigenous young people are three times more likely to kill themselves than non-Indigenous youths. Concerted and targeted efforts to improve the mental health of children must be inclusive of Indigenous children, families and communities.

    The climate effect

    How children feel about their future affects their mental health, and the data reveals that our children worry a lot about the environment:

    “In Australia, 59% of young people consider climate change to be a threat to their safety (only 14% disagree). Climate change and plastic pollution top their list of environmental concerns. Almost 90% want to move to renewable energy, while only 3% want to ‘stay with fossil fuels’. Three out of four adolescents in Australia want their government to act.”

    This suggests that acting on climate change would have a direct positive impact on children’s sense of wellbeing and contribute to positive mental health outcomes.

    Australia cannot ignore this damning report. We must promise our children that we will do better, and that by 2030, all children in Australia will be thriving. This requires action on many fronts.

    Start early

    We need to get things right for children starting in early childhood, when 90% of brain development occurs. The evidence tells us that children thrive when they have strong relationships, supportive environments, and social infrastructure that supports families.

    Consult children and families

    A key factor in children’s happiness is whether they feel they have a voice. Therefore, reforms to improve their wellbeing must be made with children, not just be about them. Children and their families must be included in the design and implementation of all initiatives that concern them. This is consistent with Article 12 of the UN Convention on the Rights of the Child, which provides that children have the right to express their views, and to have those views taken into account.

    Connect policies

    Social, education, health, environmental and economic policies, programs and services all have a bearing on children’s lives. Carefully integrated policies that complement and strengthen one another and provide the environments and conditions for optimal child development are key to improving child wellbeing. These include:

    • reducing poverty, and ensuring that all children have access to the resources they need
    • improving access to affordable and high-quality early-years childcare for all children
    • improving mental health services for children and adolescents.

    Although the UNICEF report is damning, it’s not all bad news. Australia scored higher for children’s physical health (28th), and their academic and life skills (19th). And we were ranked higher than New Zealand (35th) and the United States, which came absolute last on all three measures – mental health, physical wellbeing, and academic and life skills.

    America’s ranking is not surprising, given it’s the only country in the world not to have ratified the Convention on the Rights of the Child, and we’ve all seen how the Trump administration treats children.

    What is surprising is that Australian Prime Minister Scott Morrison has not been asked any questions about this report. He’s not been required to explain why Australia’s children are so unhappy, and what he intends to do about it. This is in stark contrast to New Zealand, Where Prime Minister Jacinda Ardern has been grilled about why New Zealand was ranked so poorly.

    This report gives us a baseline from which we can hopefully only go up. But COVID-19 will make that harder. Children’s wellbeing and mental health are likely to decline as a result of lockdowns, school closures, strains on family relationships, and economic uncertainty. To minimise the impacts of the COVID-19 crisis, governments must provide effective support that minimises inequalities amongschildren.

    As the report notes:

    “A child living in a well-off family, with a room of their own, a good internet connection, and parents who have the time, skills and confidence to support home learning will suffer the educational impact of school closures less than a child in a family with poorer material and human resources.”

    It’s up to governments, families and communities to all play a part in helping to ensure that children growing up in “the Lucky Country” are cushioned from the worst effects of COVID19, and grow up in a country that prioritises children having a positive childhood and future.

    Paula Gerber is a Professor in the Monash Law Faculty and an internationally renowned scholar with expertise in international human rights law generally, with a particular focus on children’s rights and LGBTI rights.

     Sue West is the Associate Director at the Centre for Community Child Health, Murdoch Children’s Research Institute and Royal Children’s Hospital.

    This article is republished from Monash Lens. Read the original article here. 

    To receive notifications of new posts, click “sign me up” at the bottom
    To join the Castan Centre mailing list, click here.
    To follow the Castan Centre on Twitter, click here.
    To follow the Castan Centre on Facebook, click here.

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

  • Data privacy: stricter European rules will have repercussions in Australia as global divisions grow

    By Associate Professor Normann Witzleb

    A big year for privacy just got bigger. On July 16, Europe’s top court ruled on the legality of two mechanisms for cross-border transfers of personal data.

    The Court of Justice of the European Union (CJEU) struck down the “EU-US Privacy Shield”, an intergovernmental agreement on which thousands of US companies based their data processing with EU trading partners and consumers. At the same time, the CJEU generally upheld so-called “standard contractual clauses” (SCC) for data exports but imposed new requirements on their use.

    The decision has an immediate impact on data flows between the USA and the EU. But it will also create new challenges for Australian companies that engage with Europe.

    The global reach of European privacy laws

    In 2018, the EU brought into force the General Data Protection Regulation (GDPR), one of the world’s strongest privacy protection frameworks. This latest decision provides further evidence that the GDPR has impact far beyond the EU. It allows data about European citizens to be exported outside the bloc only if an adequate level of data protection is guaranteed.

    Adequacy can be demonstrated at country level, and some major trading partners of the EU (such as Japan, Canada and New Zealand) have been certified by the EU as having a comparable level of privacy protection. Until a fortnight ago, US companies could likewise rely on an adequacy decision for the EU-US Privacy Shield. The Privacy Shield allowed companies to self-certify their data practices against a set of minimum criteria and enhanced US regulatory oversight. The Court has now held that this is not enough.

    What does this mean for Australia?

    Australian companies and consumers need to be mindful of the new CJEU decision. Data exports are very common, particularly where companies operate multi-nationally, outsource some of their data processing or store data on overseas cloud servers.

    Australia was not a party to the EU-US Privacy Shield. It also does not have EU adequacy status. This is because our Privacy Act does not apply to small businesses, employee data, and political parties, amongst others. An EU entity that seeks to export personal data to Australia therefore needs to use other safeguards to ensure that EU personal data remains protected.

    This is commonly done in the form of standard contractual clauses, by which the sender and recipient of data agree that their data processing meets GDPR standards. The CJEU has now clarified that companies and regulators must verify in each case that the clauses stand up in light of the recipient country’s data laws.

    Governmental surveillance programs and access to effective legal remedies are a particular concern. Privacy professionals around the world now have to work out what this new requirement means.

    Deepening global divisions and the trend to data localisation

    To comply with the ruling, companies need to engage in a more detailed risk analysis than before. In some cases, data may no longer be transferred. This is likely to contribute to an international trend to house critical data locally. A recent example of this trend is the COVIDSafe app: the data it collects must remain in Australia.

    The CJEU decision comes at a time of intense public debate of privacy in Australia and many other countries. The COVID-19 pandemic has turbo-charged the digitalisation of many aspects of daily life. Every digital transaction leaves traces in the form of personal information, which could be a target for data mining and surveillance by corporate and state actors.

    It would be sensible to adopt internationally harmonised data protection standards to regulate global data streams. But the world appears currently headed in the opposite direction.

    Despite both the EU and US sides emphasising the need for cooperation after the CJEU ruling, the major trading powers and blocs are increasingly pitted against each other.

    Apart from the long-standing EU-US division over privacy, China, India and Russia have also begun to assert their own distinct data processing models. These powers generally give their citizens fewer privacy rights than the EU. They also make increasing use of data localisation requirements, which prohibit or impede data export, to enforce their own data protection protocols. The intensifying conflict between the US and China, most recently erupting over the new security laws for Hong Kong, also marks data governance and cybersecurity as significant battlegrounds.

    Australia’s new challenges in data protection

    Australia’s data regulation tends to be pragmatic and business-friendly. It steers a middle course between the conflicting privacy approaches of the US and the EU. However, in a world retreating from globalised regulation, it is becoming increasingly difficult not to take sides.

    Privacy is looming larger than ever in public consciousness, and Australia’s Privacy Act is due for an overhaul. More than ever, Australia needs to determine its own course in safeguarding personal information against potential overreach by corporations and governments.

    Normann Witzleb is an Associate Professor at Monash Law School, and a member of the Castan Centre for Human Rights Law.

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

    To receive notifications of new posts, click “sign me up” at the bottom
    To join the Castan Centre mailing list, click here.
    To follow the Castan Centre on Twitter, click here.
    To follow the Castan Centre on Facebook, click here.

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

  • Silent prayer should have no place outside abortion clinics

    By Tania Penovic and Ronli Sifris

    Introduction

    On June 3rd the Health Care (Safe Access) Amendment Bill 2020 was introduced into South Australia’s House of Assembly. The aim of this Bill is to establish “health access zones”(commonly known as “safe access zones”) around abortion clinics, prohibiting anti-abortion conduct from taking place with a 150m radius of premises at which abortions are lawfully performed. If this Bill passes, it will bring South Australia in line with all other Australian jurisdictions (except for Western Australia) with respect to the protection of women seeking to access the full range of reproductive health care. Such an initiative is to be commended and supported, particularly given that in Clubb v Edwards; Preston v Avery the High Court confirmed the constitutionality of safe access zone legislation (specifically in this case the Victorian and Tasmanian laws).

    In the past few weeks, there has been some discussion regarding whether the Bill should be amended so as to permit silent prayer within the health access zones. As human rights academics and researchers who have conducted in-depth research into this issue, we strongly oppose such an amendment for the reasons set out below.

    Silent prayer should have no place within health access zones

    Between March 2017 and December 2019, we conducted nationwide qualitative empirical research which examined the experience and impact of anti-abortion conduct outside Australian clinics and the effectiveness of safe access zone laws. As such, we are familiar with the various forms of conduct which take place outside abortion clinics and believe that silent prayer outside abortion clinics has a harmful impact on patients seeking healthcare services. It causes shame, stigmatisation and a sense of being watched which undermines privacy and dignity in the context of access to lawful medical services. Silent prayer should not be permitted within health access zones.

    Unlike other picketing activity, silent prayer is not aggressive or individually targeted. But it is clear from our research that the presence of individuals engaged in silent prayer outside clinics has the effect of shaming and stigmatising women and undermining their privacy and dignity. The presence of people praying outside clinics has been described by our interviewees as deeply judgmental and distressing for women seeking access to reproductive health care services.     

    The distress caused to patients by such conduct was described in the following terms by Victoria Dolphin, Nurse Unit Manager at Marie Stopes in the Australian Capital Territory:

    We’ve had one woman that’s come in very distressed that ‘a man was out there praying for me, I know he was praying for me.’  And I think it’s because of that self-perceived shame as well, and I think that’s the real shame about patients in this setting, is they judge themselves before they even get here.  And to have to face that they feel even more judged even if they’re not approached, just from that visual. 

    Ms Dolphin observed that persons engaged in prayer were ‘not aggressive’ and were ‘older men’ who were ‘reading their bibles with their rosary beads.’ Their presence heightened the shame and stigmatisation experienced by women accessing abortion services. 

    The shaming and stigmatisation associated with such conduct was a common theme in our interviews. A general practitioner working in regional Victoria spoke of the sense of being judged and shamed in the following terms:

    You only need five people, or even three people, standing there … they’re men of a particular age and I think my gosh we know that men are a symbol in many cases… of authority in our society. I think that having an older man standing there, I think they do to a degree feel that’s the whole of society that’s judging them. Especially the young ones are not so good at making those rational assessments of the true situation.

    Susan Fahey, the former CEO of Women’s Legal Service Tasmania, described prayer activity occurring outside clinics as being intended to shame and stigmatise women. She elaborated as follows:

    I respect people’s right to religion and other things but I reject quite strongly anyone who says praying is not intended to shame and not intended to whatever-it’s highly judgemental and it’s highly upsetting to the people who have to pass that.   

    Prayer and stigmatisation in the United Kingdom

    Our conclusions with respect to shaming and stigmatisation are consistent with research undertaken in a number of cities in the United Kingdom: see Pam Lowe and Graeme Hayes, ‘Anti-Abortion Clinic Activism, Civil Inattention and the Problem of Gendered Harassment’, 53(2) 2019 Sociology 330-346.

    Lowe and Hayes concluded that those engaged in silent prayer understand their own actions to be supportive and empathic but that their conduct undermines women’s privacy and has a stigmatising effect. They observe that ‘[w]hile their stated objective might be praying to end abortion’ their conduct outside clinics constitutes a ‘deliberate attempt to deter women from exercising their reproductive rights, further contributing to the stigmatisation of abortion’. Such conduct was experienced by women seeking abortions as harassment and was found to undermine women’s expectations of privacy in accessing lawful medical services. Lowe and Hayes observe as follows:

    While it is the case that anyone could see people entering and exiting a building, anti-abortion activists who stand outside clinics are expressly there to draw attention to the building as part of their mission to bear witness. The harassment that women feel, we argue, stems from the presence of activists at clinic sites, rather than from their precise conduct…The failure by anti-abortion activists to civilly disattend directly challenges women’s expectations of privacy and confidentiality, and makes their access of a specific reproductive healthcare service material and public. Moreover, the context of abortion stigma heightens the discrediting that some women feel when seeking services. 

    What about freedom of religion?

    The freedom to manifest one’s religion is not absolute. Under international human rights law, the freedom to manifest one’s religion may be subject to limitations prescribed by law which are necessary to pursue a legitimate aim, including the protection of the fundamental rights and freedoms of others. The presence of individuals praying outside abortion clinics undermines women’s fundamental rights. It undermines the right to privacy and dignity. It undermines their right of access to healthcare services and to the highest attainable standard of health. It sends a message of shame and stigmatisation to women accessing lawful medical services.

    If South Australia is serious about protecting women’s privacy, well-being and dignity in the context of access to the full range of reproductive healthcare services, it should prohibit all forms of anti-abortion conduct outside of clinics, including silent prayer. 

    Both Dr Tania Penovic and Dr Ronli Sifris are Senior Lecturers at Monash Law School and members of the Castan Centre for Human Rights Law.

    To receive notifications of new posts, click “sign me up” at the bottom
    To join the Castan Centre mailing list, click here.
    To follow the Castan Centre on Twitter, click here.
    To follow the Castan Centre on Facebook, click here.

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

  • Was there slavery in Australia? Yes. It shouldn’t even be up for debate

    By Stephen Gray and Thalia Anthony

    Prime Minister Scott Morrison asserted in a radio interview that “there was no slavery in Australia”.

    This is a common misunderstanding which often obscures our nation’s history of exploitation of First Nations people and Pacific Islanders.

    Morrison followed up with “I’ve always said we’ve got to be honest about our history”. Unfortunately, his statement is at odds with the historical record.

    This history was widely and publicly documented, among other sources, in the 2006 Australian Senate report Unfinished Business: Indigenous Stolen Wages.

    What is slavery?

    Australia was not a “slave state” like the American South. However, slavery is a broader concept. As Article 1 of the United Nations Slavery Convention says:

    Slavery is the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised.

    These powers might include non-payment of wages, physical or sexual abuse, controls over freedom of movement, or selling a person like a piece of property. In the words of slavery historian Orlando Patterson, slavery is a form of “social death”.

    Slavery has been illegal in the (former) British Empire since the Act for the Abolition of the Slave Trade of 1807, and certainly since 1833.

    Slavery practices emerged in Australia in the 19th century and in some places endured until the 1950s.

    Early coverage of slavery in Australia

    As early as the 1860s, anti-slavery campaigners began to invoke “charges of chattel bondage and slavery” to describe north Australian conditions for Aboriginal labour.

    In 1891 a “Slave Map of Modern Australia” was printed in the British Anti-Slavery Reporter, a journal that documented slavery around the world and campaigned against it.

    Reprinted from English journalist Arthur Vogan’s account of frontier relations in Queensland, it showed large areas where:

    … the traffic in Aboriginal labour, both children and adults, had descended into slavery conditions.

    Seeds of slavery in Australia

    Some 62,000 Melanesian people were brought to Australia and enslaved to work in Queensland’s sugar plantations between 1863 and 1904. First Nations Australians had a more enduring experience of slavery, especially in the cattle industry.

    In the pastoral industry, employers exercised a high degree of control over “their” Aboriginal workers, who were bought and sold as chattels, particularly where they “went with” the property upon sale. There were restrictions on their freedom of choice and movement. There was cruel treatment and abuse, control of sexuality, and forced labour.

    A stock worker at Meda Station in the Kimberley, Jimmy Bird, recalled:

    … whitefellas would pull their gun out and kill any Aborigines who stood up to them. And there was none of this taking your time to pull up your boots either. No fear!

    Aboriginal woman Ruby de Satge, who worked on a Queensland station, described the Queensland Protection Act as meaning:

    if you are sitting down minding your own business, a station manager can come up to you and say, “I want a couple of blackfellows” … Just like picking up a cat or a dog.

    Through their roles under the legislation, police, Aboriginal protectors and pastoral managers were complicit in this force.

    Slavery was sanctioned by Australian law

    Legislation facilitated the enslavement of Aboriginal people across the Northern Territory, Western Australia, South Australia and Queensland. Under the South Australian Aborigines Act 1911, the government empowered police to “inspect workers and their conditions” but not to uphold basic working conditions or enforce payment. The Aboriginals Ordinance 1918 (Cth) allowed the forced recruitment of Indigenous workers in the Northern Territory, and legalised the non-payment of wages.

    In Queensland, the licence system was effectively a blank cheque to recruit Aboriginal people into employment without their consent. Amendments to the Aboriginal Protection and Restriction of the Sale of Opium Act 1897 gave powers to the Protector or police officer to “expend” their wages or invest them in a trust fund – which was never paid out.

    Officials were well aware that “slavery” was a public relations problem. The Chief Protector in the Northern Territory noted in 1927 that pastoral workers:

    … are kept in a servitude that is nothing short of slavery.

    In the early 1930s, Chief Protector Dr Cecil Cook pointed out Australia was in breach of its obligations under the League of Nations Slavery Convention.

    ‘… it certainly exists here in its worst form’

    Accusations of slavery continued into the 1930s, including through the British Commonwealth League.

    In 1932 the North Australian Workers’ Union (NAWU) characterised Aboriginal workers as “slaves”. Unionist Owen Rowe argued:

    If there is no slavery in the British Empire then the NT is not part of the British Empire; for it certainly exists here in its worst form.

    In the 1940s, anthropologists Ronald and Catherine Berndt surveyed conditions on cattle stations owned by Lord Vestey, commenting that Aboriginal people:

    … owned neither the huts in which they lived nor the land on which these were built, they had no rights of tenure, and in some cases have been sold or transferred with the property.

    In 1958, counsel for the well-known Aboriginal artist Albert Namatjira argued that the Welfare Ordinance 1953 (Cth) was unconstitutional, because the enacting legislation was:

    … a law for the enslavement of part of the population of the Northern Territory.

    Profits from slaves

    Australia has unfinished business in repaying wages to Aboriginal and South Sea Islander slaves. First Nations slave work allowed big businesses to reap substantial profits, and helped maintain the Australian economy through the Great Depression. Aboriginal people are proud of their work on stations even though the historical narrative is enshrined in silence and denial.

    As Bundjalung woman Valerie Linow has said of her experiences of slavery in the 1950s:

    What if your wages got stolen? Honestly, wouldn’t you like to have your wages back? Honestly. I think it should be owed to the ones who were slave labour. We got up and worked from dawn to dusk … We lost everything – family, everything. You cannot go stealing our lousy little sixpence. We have got to have money back. You have got to give something back after all this country did to the Aboriginal people. You cannot keep stealing off us.

    Thalia Anthony is associate professor of law at UTS, and a Core Member, SIC – Strengthening Indigenous Communities. Stephen Gray is Senior Lecturer at Monash Law School, and a member of the Castan Centre for Human Rights Law.

    This article is republished from The Conversation under a Creative Commons license. Read the original article. This article was one out of 50 chosen for the Conversation’s yearbook from over 4000 articles. It was Monash University’s top article for June 2020, with over 219,000 reads.

    To receive notifications of new posts, click “sign me up” at the bottom
    To join the Castan Centre mailing list, click here.
    To follow the Castan Centre on Twitter, click here.
    To follow the Castan Centre on Facebook, click here.

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