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  • Conference Conversations: Bringing Rights Home

    Conference Conversations is a 3-part blog series based on papers from key speakers at the Castan Centre Human Rights Law Conference 2021, which took place on Friday 23 July this year. The final blog in this series is based on a paper presented by the author, Emeritus Professor Rosalind Croucher AM, in session three of the conference on ‘Charters of Human Rights: the Victorian Experience and the National Potential’.

    Mapping an agenda on promoting, protecting and fulfilling human rights in Australia

    By Emeritus Professor Rosalind Croucher AM, President, Australian Human Rights Commission

    Everyone’s talking about rights …

    Have you noticed over this past year and a half that there’s been a lot of talk about human rights? There has been anger and resistance to the restrictions to our rights and freedoms as Australia deals with the COVID-19 pandemic, and there has been passionate defence of the need for such restrictions to fully protect the human rights of the entire community. 

    I think this has been a really good thing, speaking to a heightened ‘rights consciousness’ in the face of COVID-19 restrictions.  

    In some way or another, each and every one of us has encountered restrictions—on our freedom of movement, the right to peaceful protest, on our ability to spend time with our family and friends, to celebrate marriages, memorialise our dearly departed, in recording our every movement in the community and providing personal information for the purpose of contact tracing. 

    Australians for the most part have been willing to ‘do the right thing’, guided by public health advice informing the restrictions imposed by Federal, State and Territory governments. Trusting their governments. But some have not. Some have acted through a sense of invulnerability, ignorance or simple stupidity. Others have spoken about their rights. Some have even invoked the Universal Declaration of Human Rights, as did the protester at Bunnings last year, or other international human rights instruments in their refusal to follow public health directives. 

    At the Castan Centre two years ago I spoke about the need to reimagine our system of protections of human rights and freedoms in Australia, asking what kind of Australia do we want to live in? Our experience with COVID 19 responses has provided the national test case and setting for looking at answers.

    Government measures in the interests of protecting the health of the entire community have provided a range of conversations about our rights. 

    In part this is a conversation about public understanding of rights, and it is part of a much wider discussion—about the legal architecture, or grammar, for protecting rights and freedoms in Australia.  Our experience over this year and a half, of responding to a pandemic, has brought the contours of this conversation into stark relief.

    Australia’s response to the pandemic has involved Parliaments nationwide transferring extraordinarily wide powers to executive governments and agencies, with significant impacts on individual rights and freedoms.1 Emergency times required emergency measures.

    Different layers of scrutiny have applied, depending on whether measures are legislated; whether they are in the form of ‘disallowable’ instruments; or whether, as has been the case for a number of measures, they are introduced through instruments that are not disallowable or reviewable, and which have not included human rights compatibility analysis. 

    Some of these measures have been hugely controversial: like curfews and criminal sanctions for Australian citizens seeking to return to their homeland from overseas.

    In December 2020, the Senate Standing Committee for the Scrutiny of Delegated Legislation2 released an interim report in its inquiry into the exemption of delegated legislation from parliamentary oversight, using delegated legislation made in response to COVID-19 as a case study to ‘shine a light on the deeper, systemic issues which inhibit Parliament from effectively overseeing delegated legislation at all times, not just during emergencies’.3 The Committee noted that, in 2019, 20% of the 1,675 laws made by the executive were exempt from disallowance and that

    The significant volume of delegated legislation made by the executive, and the frequent exemption of this delegated legislation from parliamentary oversight, pose serious challenges to Parliament’s constitutionally recognised law-making role.4

    The checks and balances that ordinarily exist are integral to our democracy.

    The complexity of our federal system also makes it difficult to ensure appropriate scrutiny of these measures. The National Cabinet is not accountable in the same way as the federal, state and territory cabinets are, which ‘complicates the way responsible government functions in practice’.5

    We need to embed a human rights scrutiny process better into all emergency responses, to ensure that any intrusion on our rights is always fully justified, and the debate is had at the time the restrictions are considered—not afterwards.

    For the most part, governments have openly justified their decisions. The Premiers and first ministers have maintained a regimen of press conferences, often on a daily basis, that have assisted in the acceptance of the limits to rights and freedoms that have been part of the emergency response.

    But we need to ensure that ordinary accountability measures resume ‘as quickly as possible’.6 To maintain public trust and ensuring compliance with restrictions. To provide a safeguard that, when we plan for recovery from this crisis, no-one gets left behind. Embedding human rights thinking more broadly in decision-making, and the accountability measures that express it, will assist in ensuring the maintenance of trust in our governments and our parliaments, and those who are delegated to act on our behalf, especially in times of emergency, a trust that has been the foundation of our democratic structure since 1688.

    There are new expectations from the community generally about the dialogue around human rights and justification for limitations, more public discussion and explanation of the consideration of what is the least restrictive approach that can protect the community; and a broad consensus about the need to advance and protect the rights of the community as a major focus of what government does. 

    This creates the momentum for a ‘new normal’ in the post-COVID world. 

    A federal Human Rights Act or Charter is a key piece of architecture that can ensure a ‘dialogue model’ between the government of the day, as well as the Parliament, the courts and the community.

    In conducting the national conversation project, the Commission has been looking to ways to fully integrate human rights into our national systems of law, policy and programs. Not as an afterthought but as a deliberative tool to aid better government decisions.

    Our national conversation project has been framed in three parts: reforming discrimination laws; positive framing of human rights, including a federal Human Rights Act; and accountability measures.

    Engaging with this issue again as part of the human rights architecture is part of our conversation. It is also a missing piece in the architectural framework of the Commission.

    The framing of rights in Australia

    Our Constitution expressly speaks about some rights, but the ‘rights’ questions in the Australian constitutional context are framed through the lens of limitations on legislative power—and largely through arguing about the implications of such limitations. They are not about personal rights.7

    Contrast the ‘Bills of Rights’ approach as in the US, with its constitutionally entrenched rights and freedoms.8 Not driven by wars of independence from other nations, our Constitution was designed around the concerns of its time: foreign affairs, immigration, defence, trade and commerce, and industrial relations—as well as about ‘colonising activities of France and Germany in the region’. We saw ourselves as ‘essentially British’, as the Hon Robert French AC remarked, and the rights ‘most intensely debated’ were those ‘of the individual colonies as proposed states, vis a vis, the proposed federal parliament’.9 It was, in essence, a deal among the States.

    While the US approach has given strong protections to rights and freedoms, it is an approach that has led to a politicisation of appointments to the US Supreme Court—one, if I might say, that should not be emulated in our own constitutional context. I observe in contrast that the model of statutory rights protection in Commonwealth countries is a different one, which retains and emphasises parliamentary supremacy—and the clear separation of powers between the courts and the parliament.  

    The language of ‘human rights’ and international law

    It has been remarkable I think that people have been invoking human rights in the context of COVID responses. The Bunnings protester strongly invoked the Universal Declaration of Human Rights (UDHR). This landmark document, adopted by the UN General Assembly on 10 December 1948, was one of the first decisions of the United Nations. Australia’s own ‘Doc’ Evatt was in the Chair as President of the General Assembly on that significant occasion.

    It was a moment that was also embraced and marked across Australia. Michael Kirby remembers clearly the UDHR being given to every schoolchild in Australia, on that flimsy aerogramme paper that some of you may remember. 

    Australia was a founding signatory to each of the other major first human rights instruments—the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, as well as to the Charter of the United Nations itself. Overall, we have signed up to seven major treaties and a number of associated protocols.10 I note in this respect that if you look at the treaties Australia has committed to and their ratification, it is an equal split of Coalition and Labor support. It is neither a ‘Labor’ nor a ‘Coalition’ project.

    The UDHR was an aspirational document, without conferring rights as such, but the other treaties do, and governments commit to them in signing and ratifying them. However, little has been done to enact the rights and freedoms protected by these instruments into Australian law—despite the aspirations perhaps encouraged in the schoolchildren of Michael Kirby’s young years. This means that the rights and freedoms enshrined in these international human rights instruments are not directly enforceable in Australia—no matter how loudly protesters may invoke them. 

    The legislative framework of rights we got

    While Australia has not ‘domesticated’ these international commitments, we did get anti-discrimination laws. On this I should note that one of the big pieces in our national conversation project has been to look at these laws.  We will shortly release our final position paper on this subject, framed around four outcome pillars: building a preventative culture; modernising the regulatory framework; enhancing access to justice; and improving the practical operation of laws.

    But looking at rights and freedoms more generally, the central piece—direct implementation in a Human Rights Act—never happened, despite repeated and current pressure to do so..

    When the Commission was put on a permanent foundation in 1986, as HREOC, after its predecessor had completed its five years under the leadership of Dame Roma Mitchell, it was designed in tandem with an accompanying Australian Bill of Rights Act. The Bill was passed in the House of Representatives, but did not survive the Senate. More recently, the idea was the principal recommendation of the National Human Rights Conversation led by Fr Frank Brennan SJ, over a decade ago. The past President of the Law Council of Australia, Pauline Wright, in her Press Club address, called for an Australian Bill of Rights, joining many voices to do so, amplifying the conversation, to do at the federal level what the ACT, Victoria and Queensland have done in relation to State and Territory decision making and accountability. 

    Following Brennan’s report we got the Parliamentary Joint Committee on Human Rights, but we did not get a Human Rights Act.

    While the entire Commonwealth of Nations has moved forward by introducing comprehensive human rights protections in legislation, Australia stands alone in the Commonwealth for not having introduced such protection, at least at the Commonwealth level. 

    From the perspective of the Commission’s jurisdiction, it is still unfinished legal architecture. To continue along the allegorical lines, we are like a doughnut— with a hole in the middle.

    The functions under the ICCPR (and other treaties) for Australia are there, but essentially invisible to people like the Bunnings protester. Even without a formal enactment of the covenant as a Human Rights Act or Charter, people can bring a complaint on the basis of the ICCPR rights to us at the Commission. Our functions, since 1981, when the Commission was first established under Dame Roma Mitchell at the helm, have included a complaints mechanism. And ever since 1981 the Commission has been handling human rights complaints based on the instruments that are scheduled to our Act.12

    So, for example, we have a particular and growing set of complaints invoking the right to return to the country and for children to enter or leave Australia for the purpose of family reunification.13 These are complaints that do not sit under the category of ‘unlawful discrimination’ in the four anti-discrimination laws, but in what we describe as our ‘human rights’ jurisdiction that links to the treaties. 

    Complaints under our Act have increased 500% with COVID-19—masks, travel caps, travel bans, family reunion, people with disability and COVID restrictions, and vaccinations. Our overall complaint caseload has also increased nearly 100% over the past year.

    This human rights jurisdiction is important, but it is limited, and essentially invisible. The process itself, however, may have impact for individuals through quiet diplomacy. But if the process does not lead to a successful result, there is no access to judicial consideration, nor to any enforceable remedies.

    Moreover, its central weakness is that it is a jurisdiction based on international treaties that are scheduled to our Act. It is not about direct obligations under Australian law. A similar weakness affects the operation of the Parliamentary Joint Committee on Human Rights. In both cases the weakness is stifling the effectiveness of the processes. 

    The beauty of a Human Rights Act, and other measures that frontload rightsmindedness, is that they are expressed in the positive: affirming rights and freedoms—not just implying them—and giving a clear anchor for decision making. It frontloads human rights thinking. It is also Australian legislation. It is parsed in the vernacular.

    This is the focus of the other major part of our national conversation project: advancing the case for a Human Rights Act and other complementary reforms.

    For my own part, I have had somewhat of a ‘Road to Damascus’ conversion to the idea of, and need for, an Australian Human Rights Act and embedding human rights thinking more directly in our laws and decision making.

    My journey along the road to Damascus

    It was not one specific Damascene moment, but a growing realisation, in three parts. 

    Part one—while the common law strongly embeds the idea of rights, the common law has its limits. 

    Protection of serious invasions of privacy, for example, has got stuck. The common law needs a great leap forward, as it achieved in Donoghue v Stevenson in relation to negligence, but we have not got there yet. Perhaps the ‘age of drones’, is the contemporary equivalent of the ‘age of railroads’ to provide the necessary catalyst for the common law. 

    Part two—was a realisation that the statutory expression of rights is played out in the negative, reliant on individual disputes; and what coverage there is, is patchy. They are framed in terms of what you can’t and, like the common law, they rely on a dispute before offering a solution.

    This is not to say that our discrimination laws are not important. They directly reflect international commitments, being domestic implementations of them, and they can achieve many positive systemic outcomes through the conciliation process that is the heart and soul of the complaints-handling processes, and the principal vehicle of operation of discrimination laws.14 

    Part three—was the realisation of the effectiveness of the complaint-handling jurisdiction of the Commission, when it is dealing with claims of unlawfulness under Australian law. This is a jurisdiction the Commission has had since the very first days under the Racial Discrimination Act of 1975. 

    Complaints usually start with just a phone call or email—some form of contact— by, on average, 15,000 people a year, individuals who consider that they have been badly done by in one way or another, and businesses just trying to understand their obligations. They are assisted or referred. About 2,000 people pursue the Commission’s formal complaints process—one that is based on conciliation. Only a tiny number of these ever end up in court—on average 2–4%; and most participants, both those who complain and those who are complained against, are very satisfied with the professionalism of the process and its outcomes.15

    Compare the situation now in relation to the implied freedom of political communication in the Constitution—this is entirely played out in High Court litigation for the most part. In contrast, only a tiny percentage of complaints matters handled by the Commission get anywhere near a Court.

    The kinds of objections that lawyers may have to the imprecision of rights language, when framed as laws, need to be set in a context in which most arguments about rights happen not in a judicial environment at all. It is also about seeing the experience of those common law jurisdictions that have made the leap into the legislative model, and that the world has not fallen in as a result.

    The essential idea that a Human Rights Act captures is a positive framing of rights. The beauty of a Human Rights Act, and other measures that frontload rights-mindedness, is that they are expressed in the positive—and they are ahead of any dispute. It provides the foundation for shaping human rights-based decision-making and for shifting towards a culture of human rights thinking.

    We don’t have a sufficient level of proficiency, or fluency, to converse in human rights terms when discussing issues of major concern to the community. 

    This year and a half has brought this into sharp relief. People are talking about rights. People are demanding their rights. Governments are defending their incursions on people’s freedoms in terms of rights. 

    Human rights approaches provide the parsing for the solution. A human rightsbased approach gives us the grammar we need─for approaching complex balancing issues where rights are engaged. A greater embedding of our promises to the world in Australian law would provide the pathway to do so. It provides the way for an Australian conversation about rights.

    A federal framing

    When I was involved in a panel that was looking at the protection of religious freedom in Australia over the summer of 2017–18, I was struck by the fact that both of the broad sides of the argument saw an answer in having a Human Rights Act as part of the commonwealth protections of rights and freedoms. This was even from those who had been ardent opponents in previous times. But it also struck me that having one was not an end, in and of itself, but the beginning or the unravelling of many more questions. Whether we introduce one; what it would look like; and what role the Australian Human Rights Commission will play, are all key questions, for example. 

    The purpose needs to be about changing the culture of decision-making and embedding transparent, human rights-based decisions as part of public culture.

    For me the outcome needs to be that decisions are made through a human rights lens.  It is the upstream aspect that is so crucial to change.

    The focus has often been on the downstream—in courts—because it is there that the tests are demonstrated in the public gaze. This has prompted jibes like ‘lawyers’ picnic’. Academic scrutiny—vindication or condemnation—follows.

    How do we shift the decisions themselves?

    Of course, education from the basis of a Human Rights Act is a solid foundation, as has been demonstrated well in Victoria.

    We are in the middle of consultations on what federal initiatives can be taken.

    We are looking at the rights and freedoms to be in the list. We want to give greater prominence to rights to participation and to procedural fairness. We are looking to address the limitations in the existing state and territory Human Rights Acts, by ensuring a direct cause of action—not requiring people to tie themselves in knots to bring claims through so-called ‘piggy-backing’ off other claims. 

    We are navigating all the constitutional issues—most notably the High Court’s Momcilovic decision and understanding how far judicial power stretches—and we are having wonderful, probing, engaged conversations. Not so long ago we actually had these conversations ‘in 3D’, in Melbourne. 

    We know that the political realities are as they are, but when we complete our work we will have three position papers, compiled as a report, providing our views as the national human rights institution as a roadmap to reform in protecting human rights in Australia – both aspirational and practical – with different horizons, short, medium and long-term.

    We are framing our work in terms of our view, as the National Human Rights Institution, of what the reform agenda needs to be to respect, protect and fulfil human rights in Australia in the future.

    Madeleine Albright was asked whether she was an optimist or a pessimist. Her answer, ‘I’m an optimist who worries a lot’. So in that vein, I will finish with optimism. 

    When I launched this project I referenced the last stanza of a poem by Indigenous poet, Oodgeroo Noonuccal, ‘A Song of Hope’. 

    To our fathers’ fathers

    The pain, the sorrow;

    To our children’s children The glad tomorrow.

    Let’s end on that note.

    References

    1. Sarah Moulds, ‘Scrutinising COVID-19 laws: An early glimpse into the scrutiny work of federal parliamentary committees’ (2020) 45(3) Alternative Law Journal 180, 180–181.
    2. The Committee was established in 1932.
    3. Senate Standing Committee for the Scrutiny of Delegated Legislation released an interim report in its inquiry into the exemption of delegated legislation from parliamentary oversight, 7 December 2020, xiii.
    4. Ibid.
    5. Janina Boughey, ‘Executive power in emergencies: Where is the accountability?’ (2020) 45(3) Alternative Law Journal 168, 169.
    6. Ibid, 174.
    7. McCloy v New South Wales [2015] HCA 34 [30]. See also Unions NSW v New South Wales (2013) 252 CLR 530 at 554 [36]. 
    8. See, eg, J L Hiebert, ‘Parliamentary Bills of Rights: An Alternative Model?’ (2006) 69 Modern Law Review 7; S Gardbaum, ‘The New Commonwealth Model of Constitutionalism’ (2001) 49(4) American Journal of Comparative Law 707, 710.
    9. R French, ‘Protecting Human Rights Without a Bill of Rights’, John Marshall Law School, Chicago, 26 January 2010, 7.
    10. The International Covenant on Civil and Political Rights (ICCPR); the International Covenant on Economic, Social and Cultural Rights (ICESCR); the International Convention on the Elimination of All Forms of Racial Discrimination (CERD); the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT); the Convention on the Rights of the Child (CRC); and the Convention on the Rights of Persons with Disabilities (CRPD).
    11. Most notably, however, these instruments do not include the ICESCR.
    12. For individuals alone—Art 12 ICCPR; for family groups—Art 12,17 and 23 of ICCPR; and family groups with children—all of the above plus Arts 3, 8, and 10 of the CRC.
    13. See my article on this topic, ‘”Seeking equal dignity without discrimination”: The Australian Human Rights Commission and the handling of complaints’, (2019) 93 Australian Law Journal 571.
    14. For example, if we look at the number of complaints the Commission has received and conciliated over the 20 years to 2018, the numbers represent successful alternative dispute resolution through conciliation for more than 30,000 people and organisations: looking at Annual Reports from July 1998 to July 2018.

    Emeritus Professor Rosalind Croucher AM is President of the Australian Human Rights Commission. She was appointed in July 2017, after seven and a half years as President of the Australian Law Reform Commission.

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

  • Conference Conversations: Interrogating Our Self-Image as a Champion of Gender Equality

    Conference Conversations is a 3-part blog series based on papers from key speakers at the Castan Centre Human Rights Law Conference 2021, which took place on Friday 23 July this year. The first blog in this series is based on a paper presented by the author, Dr Tania Penovic, in session one of the conference on ‘Confronting Persistent Gender Inequality and Harnessing Women’s Voices’.

    By Tania Penovic 

    Australia’s current level of engagement with the UN human rights system is perhaps unprecedented. We have two representatives on human rights treaty bodies and two experts serving on mandates of the Human Rights Council. All four of these individuals are women and on the world stage, we have presented ourselves as a leader in advancing gender equality. My paper will interrogate this self-image by looking at our international engagement and considering the way it is reflected at home. 

    Our recent history of engagement

    Our engagement has not always been constructive. It took a combative turn two decades ago, largely in response to findings of the Committee on the Elimination of Racial Discrimination on discrimination against Indigenous Australians. The Committee was said to have ‘failed to grapple with [our] unique and complex history of race relations’1 and castigated for its reliance on information from civil society rather than the more airbrushed image presented by Australia. Then Foreign Affairs Minister Alexander Downer declared that ‘[i]f a United Nations committee wants to play domestic politics here in Australia, it will end up with a bloody nose.’ 

    We disengaged to a degree with treaty bodies, resisted international visits2 and refused to ratify the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) on the basis that Australia already has a ‘world class regime of legal and institutional mechanisms to protect women against discrimination’.3

    Dianne Otto observed that this exceptionalist stance rests on the claim that our exemplary human rights record exempts us from having to respond seriously to the concerns of an international system which should be focused on undemocratic states (them) rather than us. 

    Resistance to human rights scrutiny has been reflected in hostility directed towards NGOs and former Australian Human Rights Commission president Gillian Triggs in the context of our seemingly intractable asylum seeker policy. Reports from UN special rapporteurs have been disparaged as lectures that ‘Australians are sick of’ or ‘the kind of nonsense we are used to from these armchair critics.’ But more recently, we have welcomed visits from these special procedures of the Human Rights Council and hosted visits by five special rapporteurs with a further three postponed due to COVID-19. We have sought election and served a three-year term on the Human Rights Council, fuelling speculation about a shift in our engagement with the UN system and a greater commitment to domestic implementation. 

     A retreat from exceptionalism?

    In examining whether Australia’s engagement has shifted from the exceptionalism of the past, I will apply the lens of rituals and ritualism drawn from sociology, anthropology and regulatory theory by Hilary Charlesworth and Emma Larking and applied to participation in the UN system. Charlesworth and Larking have described rituals are ‘ceremonies or formalities that, through repetition, entrench the understandings and the power relationships they embody’, a ‘means of enacting a social consensus.’4 Ritualism involves embracing human rights language and garnering the legitimacy associated with human rights commitments while, or even as a means of, deflecting scrutiny and avoiding accountability.5  

    So rituals encompass the processes of engagement with the human rights system, including the processes of reporting periodically to treaty bodies and the Human Rights Council’s Universal Periodic Review, responding to the recommendations emanating from these processes and engaging in international political negotiations.  

    I will consider whether Australia’s engagement is marked by human rights ritualism by examining our recent participation in the rituals of the UN human rights system and then considering whether this has translated into a commitment to the advancement of gender equality at home.    

    The rituals of engagement 

    A foundational ritual of UN engagement is treaty ratification. And despite previous its earlier refusal, Australia has ratified CEDAW’s Optional Protocol. In recent years, it has also ratified the Convention on the Rights of Persons with Disabilities, its Optional Protocol, two Optional Protocols to the Convention on the Rights of the Child and, after significant delay, the Optional Protocol to the Convention against Torture. 

    A focal point of our international engagement has been our recent term on the UN’s key intergovernmental body responsible for human rights, the Human Rights Council. In our bid for membership, we promised a principled but practical approach built on five pillars which represent areas in which we claimed to be positioned to advance human rights and to be leaders in promoting improvements. The first pillar is gender equality. 

    Our leadership in this regard derives from a foreign aid strategy introduced by our first female Foreign Affairs Minister and continued under our second. At least 80% of development investments are dedicated to gender issues, including violence against women and women’s empowerment. This significant commitment to gender equality abroad has yet to be matched with a broad-based gender policy at home. Susan Harris Rimmer and Marian Sawer have observed a longstanding tendency to champion our achievements in foreign policy while deflecting attention from the gendered impact of the ‘neoliberal reshaping of the welfare state’ in the form of shrinking public sector funding6 which may be seen, for example, in the chronic underfunding of the Office for Women. 

    During our final year on the Human Rights Council, we commenced a four-year term on the Commission on the Status of Women, the UN’s principal intergovernmental body dedicated to gender equality and women’s empowerment. At its 65th session in March 2021, Australia engaged actively in the rituals of membership, serving as Vice-Chair of its Bureau. Our national statement to the session was delivered by Senator Marise Payne at around about the same time that thousands of people marched across Australia for gender justice. 

    The statement noted the gendered impact of COVID-19 and the effectiveness of targeted measures for increasing women’s full, equal and meaningful participation and leadership in public life. It affirmed Australia’s commitment to the Security Council’s Women Peace and Security Agenda. It observed that women’s wellbeing and ability to participate in public life is inextricably linked to achieving women’s economic empowerment, and end to gender-based violence and sexual and reproductive health and rights. And it declared Australia’s commitment to ‘advancing women’s leadership at all levels and in all areas of our lives, free from discrimination and violence.’ In the performative rituals of membership and participation in key intergovernmental bodies concerned with human rights, Australia presents as champion of gender equality. For observers unapprised of events at home, Australia may indeed appear to have eliminated gender-based discrimination.     

    Nominating experts

    A further ritual of engagement has been Australia’s nomination of a number of human rights experts to thematic mechanisms and treaty bodies. 

    First, Megan Davis currently serves on the Expert Mechanism on the Rights of Indigenous Peoples, which advises the Human Rights Council. Her contribution to the UN human rights system is broad and significant. She has served as a member and chair of the UN Permanent Forum on Indigenous Issues and participated in drafting the UN Declaration on the Rights of Indigenous Peoples. At home, Professor Davis has played an important role in the Uluru Statement from the Heart.   

    Second, Australia’s former Sex Discrimination Commissioner Elizabeth Broderick was appointed in 2017 to the Working Group on Discrimination against Women and Girls, a body created by the Human Rights Council to address the failure of states to realise the commitment made at the Fourth World Conference on Women to revoke discriminatory laws. During Broderick’s tenure, the working group has undertaken important work to highlight the gendered impacts of laws and practices and advocated for the reform of discriminatory laws. 

    Third, Rosemary Kayess was elected to the UN Committee on the Rights of Persons with Disabilities in 2019 and now serves as chair. Kayess was involved in the drafting of the Convention on the Rights of Persons with Disabilities and lobbying for its ratification by Australia. She is the first Australian woman and second Australian to serve on the committee, with Ron McCallum having served two terms between 2009 and 2014. Australia’s nomination for her re-election was recently announced. 

    Finally, for the first time in almost three decades, the CEDAW Committee has an Australian member. Natasha Stott Despoja commenced her term in January after an election campaign conducted largely online. Stott Despoja will build on an important legacy. Her predecessor, Elizabeth Evatt served on the committee from 1984 until 1992 and chaired it from 1989-1991. Evatt helped achieve important procedural reforms to the Committee’s processes and played a critical role in the normative expansion of the prohibition of gender-based violence, promoting the understanding that violence in the private sphere is a violation of human rights.7 

    In a media release congratulating Stott Despoja on her election, Senator Marise Payne links the government’s support for the election of an Australian to the committee as a corollary of ‘Australia’s proud record of advocacy on gender equality’, building on our global leadership on gender equality and commitment to eliminating discrimination against women and girls in Australia and globally. I will now consider that commitment in Australia.   

    From the international to the domestic 

    So has our high-level engagement in UN rituals, including the nomination of leading experts, marked a retreat from the exceptionalist premise that the system is designed for others and not for us?  Or is it a manifestation of human rights ritualism? The answer lies in our stance towards domestic implementation, the degree to which we have embraced the standards that underpin our international engagement. 

    In recent years, recommendations by bodies such as the CEDAW Committee and Special Rapporteur on Violence against Women have been received politely, without public contestation. But many are not implemented and we have failed to manifest a commitment to the kind of transformative change needed to advance gender equality in Australia. 

    When UN High Commissioner for Human Rights Michelle Bachelet visited Australia in 2019, she revealed a significant understanding of Australia’s progress in achieving gender equality: 

    ‘Australia has a significantly better track record than many other countries, but still women continue to face many barriers, including unequal pay, workplace discrimination and pervasive sexual harassment. And I have heard for a long time about the exceptionally misogynistic approach to women politicians by many men in Australian political life, and elsewhere in society.’

    The ‘misogynistic approach’ referred to by the High Commissioner has been well ventilated in recent months and much has been said about Australia’s cultural ‘moment.’ But we are yet to see a sincere commitment to the transformative change needed to address sexual harassment, discrimination and gender-based violence. 

    The implementation of CEDAW requires states to combat gender stereotypes in the family and society and the CEDAW Committee has called on Australia to develop a comprehensive strategy to overcome discriminatory stereotypes. But we do not need to look much further than the treatment of women in political office to understand that stereotypes pervade our society and require so much more than an hour-long optional training session to dismantle. Female politicians are routinely depicted as housewives, housekeepers, child carers, school girls, head girls, headmistresses or weather girls, shamed for being deliberately barren, man-hating shrews, or outsourcing their parenting responsibilities. 

    Research undertaken by Blair Williams has found gender stereotyping in the media has intensified over time. Gender is often the primary descriptor of female politicians8, and significant attention paid to clothes, body shape, partners, families and childcare arrangements.9 ‘Celebritised’ depictions of female politicians have come with expectations about grooming and appearance, positioning ‘sartorial style as central’, making women ‘seem ‘other’ to their political role’10 and ‘detract[ing] from their reputation as serious political actors.’11

    This type of attention came into sharp focus during the leadership of our first and only female Prime Minister Julia Gillard. Even Germaine Greer weighed in on Gillard’s clothing choices with reference to her body shape, providing a license to others to weaponise the very tropes Greer has worked to dismantle. 

    Gillard received a lot more than gendered wardrobe advice. She was the subjected to intense hostility and gender-based mockery,12 described by Anne Summers as a manifestation of institutionalised resistance to women’s equality, rooted in entrenched assumptions about women’s full participation in Australian society.13 

    With her inquiry into Parliament House culture underway, Sex Discrimination Commissioner Kate Jenkins has a gargantuan task ahead. And there are many dark spots in Australia’s gender equality picture beyond the government’s failure to manifest the commitment necessary to change Australia’s culture of sexual violence and discrimination. These include the federal government’s failure to accept the Respect@Work report’s most transformative recommendation, requiring positive measures from employers to eliminate sexual harassment, discrimination and victimisation. 

    They include the imminent absorption of the Family Court of Australia into the Federal Circuit Court in the face of warnings by a preponderance of experts that the loss of a specialist court is likely to expose women to gendered harm.  

    They include the re-emergence of ‘religious freedoms’ on the government’s legislative agenda. UN Special Rapporteur on freedom of religion or belief, Ahmed Shaheed, whose mandate is focused on dismantling obstacles to religious freedoms, has cautioned against the enactment of such laws on the basis that they undermine gender equality and legitimise violations of fundamental rights. In a report to the Human Rights Council, he observed that similar laws have served as a rationale for the dismissal of pregnant employees for being unmarried; the denial of access to (and insurance coverage for) legal reproductive health services and refusals to discharge prescriptions for contraception.  

    Reports that religious freedoms will be an election issue raise the disturbing prospect of a radical departure from the standards we champion to the world. The enactment of such laws would not facilitate constructive engagement with the UN, or help Australia advance gender equality at home, in our region and beyond. 

    Facing our ritualism 

    Hilary Charlesworth and Gillian Triggs have observed Australia to be Janus-faced; with one face looking to the UN and championing human rights elsewhere while the other looks inwards and fails to implement human rights principles at home. When we consider Australia’s domestic implementation of the international standards it champions on the world stage, the ritualistic face is revealed. 

    The power of participating in rituals in which we position ourselves as a leader has yet to translate to a deeper commitment to advancing gender equality and accountability for violations of women’s human rights. Significant work remains to be done to bring our implementation of international norms into line with our vainglorious view of ourselves.  

    References

    1. Daryl Williams, Attorney-General, ‘CERD Report Unbalanced’ (Press Release, 26 March 2000).
    2.  Alexander Downer, Daryl Williams and Philip Ruddock, ‘Improving the effectiveness of United Nations Committees’ (Joint Media release, 29 August 2000). 
    3. Minister for Foreign Affairs, Alexander Downer, ‘Minister’s Reply’ [to letter from Professor Maddocks] (2000) 147 UNity News 2.
    4.  Hilary Charlesworth and Emma Larking, ‘Introduction: the regulatory power of the Universal Periodic Review’in Hilary Charlesworth and Emma Larking, Human rights and the Universal Periodic Review: Rituals and Ritualism (Cambridge University Press, 2014) 8. 
    5.  Ibid, 18. 
    6. Susan Harris Rimmer and Marian Sawer, ‘Neoliberalism and Gender Equality Policy in Australia’,(2016) 51(4) Australian Journal of Political Science 742, 753-754.
    7.  Evatt was a driving force behind the Committee’s first comprehensive statement on violence against women, General Recommendation 19. The statement recognised gender-based violence as a form of discrimination within the ambit of CEDAW and has been built upon by a General Assembly declaration and the work of thematic mandates of the Human Rights Council, regional human rights bodies and the CEDAW Committee’s views and inquiries under CEDAW’s Optional Protocol. In 2017, General Recommendation 19 was updated by the more comprehensive General Recommendation 35 which affirms the position that the prohibition on gender-based violence had evolved into a principle of customary international law. 
    8.  Blair Williams, ‘A Tale of Two Women: A Comparative Gendered Media Analysis of UK Prime Ministers Margaret Thatcher and Theresa May, Parliamentary Affairs (2021) 74, 398–420; Blair Williams, ’A gendered media analysis of the prime ministerial ascension of Gillard and Turnbull: he’s ‘taken back the reins’ and she’s ‘a backstabbing’ murderer’, (2017) Australian Journal of Political Science, 52:4, 550-564, DOI: 10.1080/10361146.2017.1374347, 558. 
    9.  Ibid, Blair Williams, ‘It’s a man’s world at the top: gendered media representations of Julia Gillard and Helen Clark, (2020) Feminist Media Studies, DOI: 10.1080/14680777.2020.1842482
    10.  Blair Williams, A tale of Two Women’ note 8 above, 413. 
    11.  Ibid 411. 
    12.  See generally Samantha Trenoweth (ed), Bewitched and Bedevilled: Women Write the Gillard Years (Hardie Grant, Melbourne, 2013).  
    13. Anne Summers, The Misogyny Factor (NewSouth, Sydney, 2013) 19-21; see also Helen Pringle, ‘The Pornification of Julia Gillard’, in Samantha Trenoweth (ed), Bewitched and Bedevilled: Women Writethe Gillard Years (Hardie Grant, Melbourne, 2013)

    Dr Tania Penovic is a Senior Lecturer, and Deputy Associate Dean (International) in the Faculty of Law at Monash University. She is also the Research Program Group Leader in Gender and Sexuality for the Castan Centre for Human Rights Law.

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  • What the launch of Team Trump’s social media platform tells us about free speech

    By Madeleine Hale

    On Independence Day this year, Donald Trump’s Team launched GETTR, an alternative social media platform, and Team Trump’s answer to mainstream platforms Facebook and Twitter, which both censored and de-platformed the former US President in 2020.

    The platform, founded by former advisor to Donald Trump, Jason Miller, advertises itself as a “marketplace of ideas” that allows “anyone to express their opinion freely”. It has been promoted as an island of free speech in a sea of liberal social media censorship.

    Within only a few weeks of operation however, the platform already appears to be failing. Without content moderation, the platform has descended into a cesspool of spam, hackers, MAGA merchandise, fake accounts, pornography and lewd sonic hedgehog memes. Although Trump himself has so far refrained from officially endorsing the platform, many accounts have been set up impersonating the former President. Even the Australian political landscape is not immune, with apparently fake accounts appearing on GETTR for politicians Peter Dutton and Pauline Hanson.    

    GETTR administrators are now furiously moderating content to regain control of the platform. The social media site without censorship – ironically – is now censoring its own users. The free speech utopia is not such a utopia after all.

    The recent experience of GETTR gives rise to important considerations about free speech principles, the right to freedom of opinion and expression, and the limitations of free speech in a democratic society.      

    Free Speech and the Right to Freedom of Opinion and Expression

    In political theory, free speech is generally conceived of as a ‘negative right’ – that is to say, the government cannot abridge the free expression of its citizens. Nevertheless, some limitations of free speech may be justifiable in certain circumstances.

    For example, seminal political theorist John Stuart Mill developed the ‘harm principle’. This principle allows for the restriction of free speech where the speech itself is likely to cause imminent harm to another person. Other limitations also apply to free speech, however, these vary across different jurisdictions.

    Free speech protections under international human rights law also provide that limitations are necessary in certain circumstances. For example, free speech is recognised and protected as the right to freedom of opinion and expression in various human rights law instruments including the Universal Declaration of Human Rights and its legally binding counterpart, the International Covenant on Civil and Political Rights (ICCPR).      

    Again, the right, as it exists within these instruments, is not absolute, and may be subject to certain limitations. For example, Article 19(3) of the ICCPR states that freedom of expression may be subject to restrictions, only as provided by law and necessary for the ‘respect of the rights or reputations of others’ or the protection of national security, or public order, health or morals. Article 20 further adds that freedom of expression does not protect vilifying speech of individuals on the grounds of their race, religion or nationality.

    At a domestic level, the approaches taken by various jurisdictions vary. In the US, the existence of the First Amendment and the jurisprudence that has developed around it has allowed for the development of broad protections for speech, which allow for the spread of hate speech and other forms of harmful content.

    Free speech on social media must have limits    

    This unfortunate episode in GETTR’s origin story shows us that the utopian ideal of a social media platform completely free from censorship is in fact a dystopian reality. Entirely unbridled free speech cannot work in this context. Indeed when free speech principles were strictly applied in the microcosm of GETTR, we saw a clear rise in spam, disinformation, fake accounts, bullying, hate speech and anti-democratic speech online.

    The very architecture of social media platforms is in part to blame for this. Driven by the ‘attention economy’, platform algorithms reward the most attention-grabbing, emotionally engaging material. It is the most shocking content that captures and sustains our attention, appears highest in our newsfeeds and ultimately goes viral.

    Applying free speech principles, in an absolute sense, further exacerbates this. To prevent platforms from moderating content altogether makes it impossible for social media companies to remove harmful content. This kind of content is accordingly free to spread, with potentially devastating consequences.

    Further, rather than creating a space where multitudes of diverse opinions can flourish, a platform that allows content such as hate speech to be widely disseminated may actually have a chilling effect on free speech. Victims may be effectively silenced by the intimidatory, discrediting and humiliating effect of hate speech. This undermines the free speech of hate speech target groups and reduces the diversity of voices in the ‘marketplace of ideas’ first envisaged by Holmes J’s seminal judgment in Abrams v United States.

    Additionally, if disinformation and false news is protected by free speech laws on social media, this may lead to a rise in anti-democratic speech and foreign election interference, of the kind seen in the 2016 U.S. election. This undermines effective self-government through democracy, which is a defining justification for free speech propounded by theorist Alexander Meiklejohn. Through its truth distorting effect, the protection of disinformation and false news also undermines another prevailing purpose of free speech advanced by John Stuart Mill – the discovery of truth through rational, intelligent debate. 

    The above illustrates that, albeit counter-intuitively, applying free speech principles to social media absolutely may actually threaten free speech, rather than protect it. Some limits on speech are therefore necessary to facilitate intelligent debate. Free speech must be – and has always been – counter-balanced with competing interests like personal autonomy.

    Careful limiting of free speech can help free speech flourish – but these limits need to be decided carefully

    Notwithstanding the irony of GETTR’s dilemma, the platform’s abject failure to thrive is also cause for concern.

    We should be concerned about the dominance of only a few social media superpowers like Facebook and Twitter and the inability of a niche platform like GETTR to survive in this environment.      

    We should also be concerned about the hugely silencing effect of Twitter and Facebook decision to de-platform a politician like Trump. Indeed, international leaders such as Angela Merkel and Alexei Navalny have both rightly expressed concern over Trump’s ban from mainstream social media.      

    Since his removal from the platforms, discussion of Trump on social media has gone down by 91 percent. The ability of Trump to challenge the bans is limited, particularly given that Facebook and Twitter, as private companies, are not bound by free speech norms (which traditionally only apply to the State under US law). He is nevertheless attempting to argue in court that the platforms are extensions of the State. Team Trump’s failed attempt to launch an independent blog is further evidence of his loss of political traction since the de-platforming.

    While Trump clearly violated free speech norms against incitement to violence, the silencing impact of de-platforming Trump should serve as a warning. It shows us the enormous power of social media companies in governing speech – who speaks, how much and when. Should only a few autocratic, profit-centric social media companies be able to govern so much speech without restraint or guidance? 

    A way forward

    GETTR shows that free speech is under threat on social media from two directions.

    From one perspective, the proliferation of rampant disinformation, false news, foreign interference and hate speech, threatens the very founding principles of free speech and democracy itself. This is significantly worsened where free speech principles are strictly applied on social media platforms.

    On the other hand, the immense power of private social media companies to engage in content moderation that in effect may silence political discourse, including that of a President in office presents an arguably larger threat to free speech than governments themselves.

    Rather than the absolutist approach to free speech of the United States, a more nuanced tool is required. Given the global superpowers that these large social media companies have become, perhaps international human rights law holds the key. We should require social media companies to make their standards and policies compatible with international human rights law. This would enable a more nuanced approach that would balance the protection of freedom of expression with other competing human rights, whilst simultaneously protecting users from hate speech and discrimination.

    Madeleine Hale is a PhD Candidate and Sessional Academic at Monash University and was previously a corporate lawyer at Herbert Smith Freehills. She is also a PhD Affiliate member of the Castan Centre for Human Rights Law. Madeleine’s PhD is examining the application of freedom of speech rights to social media companies.

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  • 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.

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  • 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.

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  • 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. 

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  • 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. 

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  • 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. 

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  • 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.

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  • 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.

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