Court of Conscience - Issue 16, 2022

Court of Conscience Issue 16, 2022

People, Power and Perspectives: A Pandora’s Crisis

The Court of Conscience respectfully acknowledges the Bedigal, Gadigal and Nguunawal Peoples as the custodians and protectors of the land where each campus of UNSW is located.

5 Editorial Uditha Jith 8 Foreword Justine Nolan

Domestic Concerns 11 Refining and Agreeing on a Constitutional Amendment for a First Nations Voice Shireen Morris 23 The Aftermath of Kirk v Industrial Court of New South Wales: A Constitutional Right to Judicial Review for Jurisdictional Errors? Dane Luo 29 Privilege for Prejudice and Perverse Outcomes: The Proposed Religious Discrimination Bills Alan Berman and Mark Brady 37 Parliamentary Oversight of COVID-19 Pandemic Laws: Shifting from Emergency Law-Making to Longer-Term Pandemic Powers Sarah Moulds 45 A Legislative Vacuum: The Healthcare Crisis in Onshore Immigration Detention Lucy Geddes

International Issues

51 Unaccompanied Children in Limbo in the United States’ Immigration System Joseph Lelliott 57 For the People or Pick the People: Gerrymandering in a Post- Roe America Ashleigh Mills 63 Why the African Union’s Human Rights Record Remains Poor Samuel M Makinda 73 There and Back Again: The Philippines’ Struggle with Authoritarianism Gemmo Bautista Fernandez 79 Asia and the Death Penalty: Reassessing the Prospects for Abolition Catherine Renshaw

Uditha Jith*

* Editor-in-Chief, Issue 16, 2022.

It is my pleasure to welcome you to Issue 16 of the Court of Conscience, titled ‘People, Power and Perspectives: A Pandora’s Crisis’. This thematic Issue explores the often-fraught relationship between people and governments, legal institutions and political bodies in an era that has challenged civil liberties and human rights more than ever.1 In particular, it asks its contributors and audience whether governments adequately provide for their citizens’ needs.

This Issue is undeniably a product of its zeitgeist, more so than I envisaged when rst sending out the Call for Submissions in March of this year. Myriad events, including the Russian invasion of Ukraine, 2 the Supreme Court’s overruling of Roe v Wade (‘Roe’) 3 in the United States of America (‘US’), 4 the Sri Lankan economic crisis and the storming of the presidential address, 5 and the recent protests in Iran following the death of Mahsa Amini, 6 have entwined to ensure that the tension between the rights of the individual and the power of a governing body is at an all-time high.

In the ve years between 2016–21, the extent to which ‘people [were] free from government torture, political killings, and forced labor, … have property rights, and enjoy the freedoms of movement, religion, expression, and association’ decreased in 114 countries.7 Likewise, 60 countries faced a democratic decline in global freedoms from 2021–22, whilst only 25 countries improved their rankings. 8 In 2021, at least 67 countries introduced legislation to restrain ‘freedom of expression, association and peaceful assembly’. 9 Coupled with the rising inequalities arising from the COVID-19 pandemic,10 a grim picture of rights protection is painted worldwide.

These repeated infringements of human rights resonate with the publication’s titular allusion to Pandora of Greek mythology. Like Pandora’s release of endless strife into the world, many governing bodies have appeared to respond to various crises by unleashing more instances of human rights abuses and impediments to civil liberties upon the world.

It must be noted that such concerns are not isolated to one country or even a particular type of government. Accordingly, as the Court of Conscience has always endeavoured to develop discourse on contemporary social justice issues, it was particularly important that this Issue investigated disturbances to humanitarian rights both domestically and internationally.

Issue 16 opens with a foreword by Justine Nolan, the Director of the Australian Human Rights Institute, who reinforces the importance of human rights in today’s age of democratic transgressions and endorses the need for more accountability. We then launch a suite of Australian-focused articles through two distinct considerations of constitutional rights that could, one day, support civil liberties. Shireen Morris explores possible constitutional amendments that would best promulgate

the First Nations Voice to Parliament whilst Dane Luo re ects upon the possibility of a constitutional right to judicial review following the High Court’s decision in Kirk v Industrial Court of New South Wales.11 Alan Berman and Mark Brady then take us through three religious discrimination bills introduced in 2021 and analyse how they promote religious freedom at the expense of other human rights. Further questions are raised in the following two articles about a government’s ability to restrain individuals through healthcare. Sarah Moulds considers the South Australian and Victorian Governments’ exercise of emergency pandemic powers whilst Lucy Geddes formulates a passionate response to the inadequate access to medical care in onshore immigration detention.

The denial of civil liberties in immigration detention is a global concern also raised by Joseph Lelliott, who highlights the dif culty of balancing protection and deterrence with regard to the restrictions placed on unaccompanied child immigrants in the US. Focus remains on the US for Ashleigh Mills’ discussion on gerrymandering, concerning the inconsistencies between public opinion and judicial decisions in a post- Roe context. This is followed by Samuel Makinda’s evaluation of the African Union’s various human rights protections. The Issue concludes with a focus on the Asian region. Gemmo Bautista Fernandez examines the Philippines’ vacillating relationship with authoritarianism before Catherine Renshaw sheds light on the prevalence of capital punishment in Asia to close Issue 16.

The content of the ten articles that form this Issue is often sombre and concerns historical and current atrocities that have taken place with little regard for humanity. However, through the authors’ passion for societal improvement and the willingness to engage in these matters, the Court of Conscience, which has always served as a tool to develop awareness and discourse, aims to increase the presence of the nal element of Pandora’s box — hope.

I would be remiss in concluding this Editorial without expressing my sincere gratitude and appreciation to everyone involved in nalising the publication. Firstly, I would like to thank our esteemed authors for entrusting the Court of Conscience with your work. We remain indebted to you for your efforts and contribution to legal scholarship on such a diverse and meaningful theme. It has been a privilege to collaborate with you. I must also extend my gratitude to the anonymous peer reviewers for their dedication and thoughtful feedback, which signi cantly enhanced these nal drafts.

My warmest thanks must go to Justine Nolan for kindly agreeing to write the foreword and providing insightful analysis of the prevalence of human rights issues across the globe. We are honoured to have your support. I would also like to express my deepest appreciation to the University of New South Wales (‘UNSW’) Faculty of Law & Justice, UNSW Law Society and the Vice President (Social Justice), Thareni Parameswaran, for their continual support and encouragement of the Court of Conscience.

I am immensely beholden to the Editorial Team of Issue 16, who have gone above and beyond what is required to nalise this Issue. Thank you for your diligent commitment, enthusiasm and extraordinary effort to see this publication come to light amid all your other responsibilities. It has been my absolute pleasure to work with you.

Special thanks must be given to our artist, Alice Xu, and graphic designer, Maha Rauf, for illustrating the journal and our online platforms with beautiful artwork and inspiring graphics that epitomise the themes at the heart of this Issue. Thank you additionally to our designer, Alexander Tanazefti, for the emblematic design of this publication.

To my friends and family, without whom none of this could have been possible, I cannot thank you all enough for your advice, belief and support. I hope to have made you proud.

Whilst many moments, particularly in the last year, have questioned the universality of human rights, I would like to leave our readers with a reminder that, like Pandora, we have not lost hope. It is ever-present in the ght against abuses of liberties and rights, moments of kindness, and our commitment to a better world, as re ected in the following articles. Such actions resonate with a more inherent power than any government — our shared humanity. When reading the articles enclosed in these pages, I encourage our readers to keep that in mind and embrace the message of hope.

1 Sarah Repucci and Amy Slipowitz, ‘Democracy under Siege’, Freedom House (Web Page) <https://freedomhouse.org/report/freedom-world/2021/democracyunder-siege>. See also Annie Kelly, ‘Increased Repression and Violence a Sign of Weakness, Says Human Rights Watch’, The Guardian (online, 13 January 2022) <https://www.theguardian.com/global-development/2022/jan/13/increasedrepression-and-violence-a-sign-of-weakness-says-human-rights-watch>.

2 United Nations Of ce of the High Commissioner, ‘Independent International Commission of Inquiry on Ukraine to the Human Rights Council: War Crimes Have Been Committed in Ukraine’ (Press Release, 23 September 2022) <https://www.ohchr.org/en/press-releases/2022/09/independent-internationalcommission-inquiry-ukraine-human-rights-council>; ‘Human Rights Watch Documents More Accounts of Russian War Crimes against Ukrainian Civilians’, ABC News (online, 18 May 2022) <https://www.abc.net.au/news/2022-05-18/ hrw-report-on-russian-war-crimes-against-ukrainian-civilians/101078664>.

3 410 US 113 (1973) (‘Roe’).

4 ‘Roe v Wade: What Is US Supreme Court Ruling on Abortion?’, BBC News (online, 24 June 2022) <https://www.bbc.com/news/ world-us-canada-54513499>.

5 Michael Kugelman, ‘Sri Lanka’s Economic Crisis Is Still Spiraling’, Foreign Policy (online, 6 October 2022) <https://foreignpolicy.com/2022/10/06/sri-lanka-economiccrisis-protests-imf/>; Hannah Ellis-Petersen, ‘Sri Lanka: President Agrees to Resign amid Unrest’, The Guardian (online, 10 July 2022) <https://www.theguardian.com/ world/2022/jul/09/sri-lanka-protests-thousands-storm-presidents-residence-colombo>.

6 Farnaz Fassihi and Cora Engelbrecht, ‘Tens of Thousands in Iran Mourn Mahsa Amini, Whose Death Set off Protests’, The New York Times (online, 27 October 2022) <https://www.nytimes.com/2022/10/26/world/middleeast/iran-protests40-days.html>.

7 Bastian Herre and Max Roser, ‘Human Rights’, Our World in Data (Web Page) <https://ourworldindata.org/human-rights>.

8 Freedom House, Freedom in the World 2022 (Report, February 2022) 1–2.

9 Amnesty International, Amnesty International Report 2021/22: The State of the World’s Human Rights (Report, 2022) 16.

10 ‘The COVID-19 Pandemic Has Further Exposed Inequality in Australia’, SBS News (online, 10 September 2021) <https://www.sbs.com.au/news/article/ the-covid-19-pandemic-has-further-exposed-inequality-in-australia/vnw8rlnc0>. 11 (2010) 239 CLR 531.

Court of Conscience Issue 16, 2022

Justine Nolan*

The question of how to restore integrity and accountability to the government is top of mind for many right now on both the local and international stages. Despite attempts by some governments to cling to democratic values, the impacts of a global pandemic, climate change, ever-increasing refugee ows, enduring racial discrimination, populism, armed con ict and economic instability have triggered a parallel erosion of human rights and declining trust in governments. The conduct of some leaders in concentrating power and facilitating cultures of entitlement has additionally seen the elevation of impunity over accountability.

One casualty of poor governance has been human rights. The promise of human rights is vast yet there is often a signi cant gap between promise and reality. The responsibility for the ful lment of rights falls primarily on states and the institutions they create. However, human rights are not an optional extra. They are basic internationally-agreed standards to ensure that everyone — regardless of race, gender, sex, economic status, religion or ethnicity — is treated with dignity. Without good governance, including transparency and accountability of our public institutions, ‘the promise of human rights may remain just that: a promise unful lled. Enforcement of fundamental freedoms when it matters may be impossible.’1

As governments increasingly shut down channels of citizen participation and eschew transparency, they are perceived as undermining public integrity and protecting the powerful from accountability. Are checks, balances, and human rights simply seen as obstacles to the exercise of power rather than principles intrinsic to good governance?

An understanding of human rights, accountability and the rule of law (not rule by law) should be an integral part of every law school education. Indeed, it is part of the modus operandi of the University of New South Wales’s Faculty of Law & Justice, whose founding Dean, Emeritus Professor Hal Wootten noted that ‘a Law School should have and communicate to its students a keen concern for those on whom the law bears harshly…’. 2 Wootten was keen to ensure that students not only understood the law, but also its power, its limitations, and its consequences.

And so too should governments in both the design and implementation of laws and policies at a national, regional and international level. Laws should be designed to safeguard human dignity and empower people, not exclude or marginalise them. The stories told in this Issue about the disturbing demise of accountability, and the accompanying challenges to rights, tend to showcase the latter rather than the true promise and implementation of human rights.

This Issue, ‘People, Power and Perspectives: A Pandora’s Crisis’, is aptly named after Pandora from Greek mythology, who unleashed calamity and sorrow on the human race when she opened her box. It explores the consequences

* Professor at the Faculty of Law and Justice, and Director of the Australian Human Rights Institute, UNSW Sydney.

and casualties when governments and the public institutions they create act in a manner that is not always consistent with rights or, indeed, representative of the people who elected them to govern.

The articles traverse the globe and, while many people may associate a lack of transparency and accountability largely with authoritarian governments, the authors tell stories that showcase the curtailing of rights, which can and does also occur in countries with democratically elected leaders. The regulatory impact of laws introduced to stem the global pandemic, the lack of access to healthcare for children in immigration detention, the gerrymandering of electoral boundaries to suit the political party in power, and a bill that enables, rather than curtails, discrimination on religious grounds are all examples of governance gone wrong by democratically elected governments. But as Catherine Renshaw explains in her examination of the continued retention of the death penalty in Asia, the character of the government is one of the most signi cant factors in how well human rights are protected, and authoritarian-style governments have a consistently poor record on rights.

One of the greatest challenges for governments and the public institutions that they create is often not the process of lawmaking but implementation. That is why integrity and transparency are so important — to help ensure that all governments can be held to account and that the power of government remains with the people.

1 John von Doussa, ‘Promoting Human Rights: Good Governance, the Rule of Law and Democracy’ (Conference Paper, Paci c Judicial Conference, 26–30 July 2005) <https://humanrights.gov.au/about/news/speeches/ promoting-human-rights-good-governance-rule-law-and-democracy> quoting Michael Kirby, ‘Human Rights: Essential for Good Governance’ (Seminar on Good Governance: Practices for the Protection of Human Rights, Seoul, 15 September 2004) <https://www.michaelkirby.com.au/content/volume-54-2004>.

2 Hal Wootten, ‘Living Greatly in the Law’ (2008) 31(1), University of New South Wales Law Journal 258, 260 <https://www.austlii.edu.au/au/journals/ UNSWLJ/2008/10.pdf>.

Court of Conscience Issue 16, 2022

Re ning and Agreeing on a Constitutional Amendment for a First Nations Voice

Shireen Morris*

I Introduction

In 2017, the Uluru Statement from the Heart issued a powerful invitation to the Australian people: it called for a ‘First Nations Voice enshrined in the Constitution’.1 In July 2022, the Prime Minister released a draft constitutional amendment guaranteeing a First Nations Voice for further consultation. Adapting similar amendments proposed over the years, it reads:

There shall be a body, to be called the Aboriginal and Torres Strait Islander Voice.

The Aboriginal and Torres Strait Islander Voice may make representations to Parliament and the Executive government on matters relating to Aboriginal and Torres Strait Islander Peoples.

The Parliament shall, subject to this Constitution, have power to make laws with respect to the composition, functions, powers and procedures of the Aboriginal and Torres Strait Islander Voice. 2

This article applies the Referendum Council’s suggested parameters for constitutional drafting to compare alternative proposals and suggest avenues for re nement of the Government’s draft.

I make three suggestions to enhance the clarity of debate about the upcoming Voice referendum. First, the words ‘proposed laws’ should be included in the amendment to con rm and signpost non-justiciability. This will fortify the amendment against criticism and help answer concerns about uncertain High Court adjudication. Second, we should be clear that incorporating a duty to consult in the head of power, as some propose, will generally fall foul of the nonjusticiability criteria. Third, I outline an ef cient bipartisan process by which the Government, the Opposition and Indigenous representatives might collaboratively re ne and agree on the words of the amendment to put to the people.

II Proposed Parameters for Constitutional Drafting

The Referendum Council’s 2017 report endorses the idea of a constitutionally guaranteed First Nations Voice. The rst recommendation suggests that a constitutional amendment should require Parliament to establish a ‘representative body’ that enables a ‘Voice to the Commonwealth Parliament’. 3 It also provides principles to guide drafting discussions. First, the proposed Indigenous advisory body should

* Senior lecturer (PhD) and Director of the Radical Centre Reform Lab at Macquarie University Law School. The author is grateful for the generous support of Foundation Donors, Henry and Marcia Pinskier, and valuable research assistance by Billy McEvoy.

be guaranteed by the Constitution but set up in legislation, 4 with other functions provided in statute. 5 Legislation would articulate the body’s processes and institutional design, 6 allowing for exibility and evolution.

Second, the Referendum Council emphasised that the body should be advisory and should not have ‘any kind of veto power’.7 The amendment must not ‘interfere with parliamentary supremacy’ and so must ‘not be justiciable’. 8

This emphasis on parliamentary supremacy9 was informed by the political context and history. In recommending a constitutional Voice, the Referendum Council was responding to political objections to a racial non-discrimination guarantee as advocated by previous reports.10 It explained that the proposed approach took account of those objections and therefore endorsed ‘an institutional alternative — a Voice to the Parliament’.11 A constitutionally guaranteed First Nations Voice was the non-justiciable alternative to a racial non-discrimination guarantee.12 Non-justiciability addresses political concerns about legal uncertainty arising from judicially adjudicated rights guarantees and speaks to the desire to maintain parliamentary supremacy over policy questions.13

Third, the Referendum Council recommended an amendment requiring Parliament to establish an Indigenous ‘body’, describing a national Indigenous advisory and representative body. Records from the First Nations regional dialogues also envision a national Indigenous body guaranteed by the Constitution 14

Broad parameters to guide re nement of, and agreement on, the constitutional amendment can be drawn from the Referendum Council’s directives. The amendment should:

1. constitutionally guarantee an Indigenous advisory body;

2. not give rise to any veto;

3. be non-justiciable;

4. minimise legal uncertainty; and

5. defer most institutional design details to Parliament.15

To these considerations, I would add the related criteria that the amendment is in keeping with the text and structure of the Constitution to enhance predictability. Most of these criteria are self-explanatory and can be assessed through ordinary interpretation of any proposed amendment. The question of non-justiciability warrants further discussion.

III Non-Justiciability

Non-justiciable constitutional clauses respect parliamentary supremacy. Courts do not get involved in the adjudication of such clauses, which generally arise in relation to the internal workings of Parliament. Constitutional clauses relating to ‘proposed laws’ have long been considered non-justiciable. Non-justiciability recognises ‘the primacy of the political process and the subsidiary role of the judiciary’ on these matters.16

In the Indigenous constitutional recognition debate, the political concern to avoid legal uncertainty and maintain parliamentary supremacy has regularly been expressed through the inclusion of ‘no legal effect clauses’ in state constitutions that recognise Indigenous peoples in preambles or speci c clauses.17 This approach is undesirable for four reasons. First, it has been previously established that ‘no legal effect’ clauses would not be supported by Indigenous people.18 Second, such clauses are constitutionally odd, inelegant and ill- tting: there is no existing provision in the Constitution that uses such a caveat to prohibit legal effects. Third, respected constitutional scholars suggest that a ‘no legal effect’ clause would be ineffective.19 Fourth, such a clause is unnecessary, because non-justiciability can be elegantly incorporated into constitutional drafting and design without any ‘no legal effect’ clause.

There are existing non-justiciable provisions in the Constitution, 20 which can be sensibly emulated. Both the drafters of the Constitution 21 and the High Court have interpreted these sections as non-justiciable 22 because they refer to ‘proposed laws’, indicating they are internal rules to govern Parliament’s lawmaking processes. Grif th CJ explained in 1911 that provisions dealing with ‘“proposed laws” … are directed to the Houses of Parliament whose conduct of their internal affairs is not subject to review by a Court of law’. 23 The High Court in 1995 reiterated that Courts do not interfere in the ‘intra-mural activities of the Parliament’. 24

Shireen Morris, Refining and Agreeing on a Constitutional Amendment for a First Nations Voice

This is because the judiciary’s role is to deal ‘with what is law rather than proposals to make law’. 25 The non-justiciability of such clauses re ects the fact that, in the words of McTiernan J, ‘Parliament is master in its own household’. 26

A constitutionally guaranteed First Nations Voice is intended to be nonjusticiable. 27 In 2015, Professor Anne Twomey kicked off discussion about drafting a constitutionally guaranteed Indigenous advisory body with an amendment that utilised ‘proposed laws’ to indicate non-justiciability. Twomey explained that the amendment would create a ‘political and moral obligation upon members of parliament to ful l their constitutional role in giving consideration’ to the advice of the Indigenous body, but ‘it would be for the houses, not the courts, to ensure that this obligation is met’. 28

I would go further: such a non-justiciable obligation would be constitutional.29 Non-justiciable constitutional clauses do not necessarily carry less authority. As Gleeson CJ has noted, ‘the rule of law does not require all possible disputes to be justiciable, or all grievances to be resolved by litigation’.30 While a non-justiciable amendment would preclude recourse to the High Court, 31 a Voice established with the blessing of Australians through a referendum would carry special authority. 32

IV Previous Iterations of the Government’s Draft Amendment

It helps to understand previous iterations of the Government’s 2022 draft amendment, so these can be compared. The rst was Twomey’s 2015 proposal, referred to above, which suggested a new Ch 1A of the Constitution:

60A(1) There shall be an Aboriginal and Torres Strait Islander body, to be called the [insert appropriate name, perhaps drawn from an Aboriginal or Torres Strait Islander language], which shall have the function of providing advice to the Parliament and the Executive Government on matters relating to Aboriginal and Torres Strait Islander peoples.

(2) The Parliament shall, subject to this Constitution, have power to make laws with respect to the composition, roles, powers and procedures of the [body].

(3) The Prime Minister [or the Speaker/President of the Senate] shall cause a copy of the [body’s] advice to be tabled in each House of Parliament as soon as practicable after receiving it.

(4) The House of Representatives and the Senate shall give consideration to the tabled advice of the [body] in debating proposed laws with respect to Aboriginal and Torres Strait Islander peoples. 33

The amendment establishes three constitutional guarantees: the requirement that Parliament establishes the institution, the requirement that the advice is tabled, and the requirement that the Houses consider the advice. While s 60A(4) creates a constitutional obligation for Parliament to consider the body’s advice in debating proposed laws in the Parliament, s 60A(1) empowers the body to advise the Executive. Legislation or internal parliamentary practice could set in place further procedures for the body to engage with government on Indigenous policy development. The amendment is non-justiciable and use of ‘proposed laws’ signposts nonjusticiability. Importantly, the procedure is designed so it cannot delay Parliament if no advice is received, con rming respect for parliamentary supremacy.

V Omitting the Tabling Procedure

Other amendments have built upon Twomey’s 2015 proposal. Most prominently, Indigenous leaders Megan Davis, Noel Pearson and Pat Anderson with other experts at the University of New South Wales put forward similar drafting in 2018, omitting the parliamentary tabling procedure:

1. There shall be a First Nations Voice.

2. The First Nations Voice shall present its views to Parliament and the Executive on matters relating to Aboriginal and Torres Strait Islander peoples.

Court of Conscience Issue 16, 2022

3. The Parliament shall, subject to this Constitution, have power to make laws with respect to the composition, functions, powers and procedures of the First Nations Voice. 34

The change from ‘providing advice’ to ‘present[ing] its views’ is a shift in the nomenclature of mostly symbolic rather than substantive effect. The submission clari es that the Voice’s power to present its views ‘imposes no concomitant obligation on the Parliament’ to follow or implement those views, which is ‘[c]onsistent with the understanding that the Voice should not have the power of veto’. 35 Further, it ‘leaves to legislation the extent to which, and how, the Parliament and the Executive might respond to the views presented’. 36 Accordingly, the views presented would be non-binding — essentially advisory.

The submission argues that the amendment is non-justiciable because it would ‘be viewed by the Court as an intramural proceeding’ within ‘a pre-legislative process’. 37 This assertion is bolstered by sub-s (3). Any ambiguity arising regarding what constitutes a First Nations Voice is mitigated by sub-s (3), which indicates that such matters are for Parliament to resolve. However, non-justiciability could be more forthrightly demonstrated through the incorporation of ‘proposed laws’ and by minimising ambiguous language.

Ambiguity arises in two respects. First, there is ambiguity in relation to what constitutes a First Nations Voice: this is not concrete institutional language like ‘an Aboriginal and Torres Strait Islander body’ as used in Twomey’s 2015 drafting. Second, the phrase ‘shall present its views’ may entail uncertainty. While this issue is answered by sub-s (3), which emphasises that Parliament can legislate procedures giving effect to this constitutional imperative and demonstrating what constitutes ‘presenting its views’ is a political question, incorporating the language of ‘proposed laws’ would help con rm non-justiciability. Such language could be included in sub-s (2), which could be adjusted to provide: ‘The First Nations Voice shall present its views to Parliament and the Executive on proposed laws and matters relating to Aboriginal and Torres Strait Islander peoples.’

Dr Gabrielle Appleby published a re nement of the 2018 drafting in 2020:

1. There shall be a body, to be called the First Nations Voice

2. The First Nations Voice: - shall present its views to Parliament and the Executive on matters relating to Aboriginal and Torres Strait Islander peoples; and - may perform such additional functions as the Parliament provides

3. The Parliament shall, subject to this Constitution, have power to make laws with respect to the composition, functions, powers and procedures of the First Nations Voice. 38

This version addresses ambiguity surrounding what constitutes a First Nations Voice by clarifying it is ‘a body’ (and, under sub-s (3), the form of the body is for Parliament to determine) but retains ambiguity in relation to the words ‘present its views’ and still omits ‘proposed laws’, which would help signpost non-justiciability. Subsection (2) prompts Parliament to give the body some additional functions, which seems unnecessary; Parliament would not be precluded from conferring additional functions, consistent with the Constitution.

An important observation should be made with respect to the discretion given to Parliament to determine the form of the Indigenous body. In advocating this drafting and attempting to distinguish other formulations, 39 Appleby criticises amendments that ‘leave open’ how ‘hearing and speaking’ will occur. The problem with such alternative formulations, Appleby argues, is that

it would be up to the Commonwealth to decide whether it would be given effect by government action, legislation, a parliamentary committee, or a combination of all of them.

[T]he Commonwealth might choose simply to mirror the many current arrangements through which the government seeks input from Aboriginal and Torres Strait Islander people when developing policies and laws.

Shireen Morris, Refining and Agreeing on a Constitutional Amendment for a First Nations Voice

These include through government-appointed advisory bodies, such as the Indigenous Advisory Council, or through peak organisations that were established to provide key services such as health. 40

However, the same risks apply to Appleby’s own 2020 drafting and, indeed, all formulations discussed here. Under Appleby’s approach, sub-s (3) gives Parliament power to ‘make laws with respect to the composition, functions, powers and procedures of the First Nations Voice’, but a power to make laws is not a compulsion to use that power. Parliament retains discretion as to how to exercise its power. Any amendment 41 requiring Parliament to establish an Indigenous body and empowering Parliament to determine the makeup of that body relies on elected representatives to ultimately decide what form that body takes and to evolve the institution over time — hopefully in light of advice from the Indigenous body, as required by the constitutional amendment. The body may, therefore, be politically weakened, just as it may be strengthened. In 2015, Appleby noted this possibility with respect to the proposals by Cape York Institute and Twomey, highlighting ‘a danger that if the body’s operation is made non-justiciable’ it may have ‘insuf cient political power to negotiate with the Parliament should a disagreement arise about the interpretation of its role’. 42 This same risk applies to any amendment requiring political action for the establishment and design of an institution. Additionally, as advice would be non-binding and non-justiciable, it could obviously be ignored by Parliament and the government, highlighting the need for mechanisms to encourage productive engagement in the legislative design. 43

The constitutional directive that Parliament must establish the body would similarly operate through political and moral pressure because the ‘peremptory command’ that there ‘shall be’ an institution ‘is not self-executing and, no doubt, is unenforceable’44 — it cannot bring a non-existent body into being. However, the imprimatur of the Australian people via a referendum would create a powerful political and constitutional obligation for Parliament to establish the body, which could not realistically be disregarded. 45 This constitutional imprimatur would be a signi cant improvement on the status quo, creating an enduring constitutional requirement that Indigenous people should always be heard in their affairs.

In September 2022, the Indigenous Law Centre (‘ILC’) proposed a revision of the Government’s draft amendment:

1. There shall be a body, to be called the First Nations Voice.

2. The First Nations Voice: a. shall make representations to Parliament and to the Executive Government of the Commonwealth on matters it deems relevant to Aboriginal and Torres Strait Islander peoples; and b. may perform such additional functions as the Parliament provides, including, at the request or with the concurrence of the Parliament of a State or Territory, the function of making representations to the Parliament or government of that State or Territory.

3. The Parliament shall, subject to this Constitution, have power to make laws with respect to the composition, functions, powers and procedures of the First Nations Voice, and matters incidental to the execution of the powers vested by this Constitution in the First Nations Voice.46

This drafting adds signi cant complexity. First, s 2(b) emulates the request/ concurrence mechanism provided by s 51(xxxviii) of the Constitution, and echoes the procedure suggested by the Referendum Council for the enactment of an extraconstitutional Declaration of Recognition. 47 It appears intended to encourage engagement between the Voice and state/territory parliaments and governments. However, it is unclear why this additional constitutional prompt is necessary since Parliament could confer additional functions on the body that are consistent with the Constitution Procedures and requirements for engagement between the regional arms of the First Nations Voice with corresponding state/territory governments and parliaments can be articulated in the legislation setting up the Voice and complemented by state/ territory legislation and measures. This state/territory engagement was emphasised in the recent ‘co-design’ report, which examined options for legislative design. 48

Second, s 2(a) requires that the First Nations Voice shall make representations to Parliament and the Government on matters ‘it deems relevant to Aboriginal

Court of Conscience Issue 16, 2022

and Torres Strait Islander peoples’. This is a signi cant departure from previous iterations that leave matters of scope to be clari ed by Parliament through legislation, in line with Referendum Council directives. By contrast, this approach constitutionally requires that the Indigenous body decide what it advises. While I agree that the Voice should have exible discretion regarding the matters on which it provides advice, this can be addressed in the legislation. In this respect, the current debate about the scope of permissible advice is overblown, because we are talking about non-binding and non-justiciable advice. Is it a problem if the body wants to give non-binding advice on matters not directly targeted at Indigenous peoples but nonetheless of importance to Indigenous communities (for example, advice on environmental laws that might affect economic development on Indigenous land)? To ban such advice would undercut a key practical bene t of the Voice. Flexibility and common sense are needed here. However, it is unnecessary to mandate this discretion in the constitutional amendment.

Non-justiciability can be con rmed by removing the constitutional speci cation that the Indigenous body must determine which matters it advises on. Procedures to exibly manage the scope issue — including specifying how the body can exercise discretion — can instead be articulated in the legislation, con rming parliamentary supremacy over design and operation in line with the Referendum Council’s directives. And again, the words ‘proposed laws’ could be included to signpost non-justiciability.

VI One-Paragraph Formulations

In 2020, I proposed a shorter, one-paragraph formulation: ‘Parliament shall by law make provision for constituting a First Nations body to advise Parliament and the Executive on proposed laws and other matters relating to Aboriginal and Torres Strait Islander affairs.’49 Upon consideration, the words ‘Parliament shall by law…’ are not in keeping with the phraseology of the Constitution, so may not be appropriate. By contrast, ‘There shall be…’ emulates s 101 of the Constitution and is more in keeping with the Constitution’s text and structure.

In 2022, after the Government released its draft amendment, Frank Brennan proposed this alternative: ‘There shall be an Aboriginal and Torres Strait Islander voice with such structure and functions as the parliament deems necessary to facilitate consultation prior to the making of special laws with respect to Aborigines and Torres Strait Islanders.’50 There are several problems with this amendment. First, the word ‘voice’ is not de ned so creates ambiguity ripe for judicial interpretation. Second, while Brennan uses the phrase ‘special laws’ to echo the language of s 51(xxvi), the race power, 51 there is no mention of ‘proposed laws’ to indicate non-justiciability. Third, the amendment appears to require consultation with Indigenous people ‘prior to’ special laws being made about them. Presumably, laws enacted in contradiction to this requirement could be invalidated. Because it may be justiciable, this variation falls outside the Referendum Council’s parameters. It would be improved by adjusting the amendment to clarify that a Voice is an Indigenous body, by inserting ‘proposed laws’ to indicate non-justiciability, and by removing the requirement that consultation must occur prior to the making of relevant laws.

The above discussion shows there are many ways an amendment requiring the establishment of an Indigenous body can be achieved. Re nements can ensure non-justiciability and respect for parliamentary supremacy in line with the Referendum Council’s recommendations. The following part discusses how the Government’s draft might also be improved.

VII Refining the Government’s Draft Amendment

The Government’s draft amendment, reproduced at the start of this article, is compelling in its simplicity. There is no tabling procedure and no duty to consult. It only requires Parliament to establish an Indigenous body. Parliament retains full authority over the design and operation of the institution which, as Twomey explains, ‘balances stability and exibility’52 — institutional design can evolve over time as needed. Twomey says the Government’s draft amendment is a ‘simple and elegant proposal, which demands little but offers much’. 53

Others, like right-wing commentator Janet Albrechtsen, raise legal concerns, though many are far-fetched. For example, Albrechtsen argues the amendment

Shireen Morris, Refining and Agreeing on a Constitutional Amendment for a First Nations Voice

will force Parliament to consult with the Voice on ‘bureaucratic practices or procedures’ and ‘trivial matters’ unrelated to Indigenous affairs. She claims it will delay Parliament, hold government ‘to ransom’, and that ‘parliamentary democracy as we have known it will be dead’. 54 These exaggerated assertions give an important glimpse into the forthcoming ‘no’ case. It is well known that referendums can prompt divisive debate, unconstrained by measured adherence to fact. 55 As journalist Paul Kelly observed during the 1988 constitutional reform discussions, the ‘technique of scaremongering reaches its highest political art form in the eld of constitutional alteration’. 56

Many of Albrechtsen’s assertions are implausible. For example, cl 2 of the Government’s draft amendment provides that the Voice ‘may make representations to parliament and the executive government on matters relating to Aboriginal and Torres Strait Islander peoples’. It does not say ‘must’. Representations from the Voice to Parliament and government are not compulsory. Parliament and the government would have no duty to consult the Voice other than under rules which Parliament would articulate through legislation, as per sub-s (3). Subsection (3) emphasises parliamentary supremacy over institutional operation.

Albrechtsen’s main concern is the unpredictable High Court interpretation of the provisions, particularly cl 2. 57 This concern is answered by the intended non-justiciability of the amendment, 58 . A reference to ‘proposed laws’ in cl 2 would con rm and signpost non-justiciability. A revised sub-s (2) could therefore read: ‘The Aboriginal and Torres Strait Islander Voice may make representations to parliament and the executive government on proposed laws and matters relating to Aboriginal and Torres Strait Islander peoples.’ This would emulate existing non-justiciable constitutional clauses which the High Court refrains from adjudicating because they concern ‘proposed laws’.

Of course, some commentators especially anxious about judicial activism may argue that the High Court cannot be trusted to respect longstanding orthodoxies regarding non-justiciability, because judges cannot be trusted with anything. 59 Yet, the commentators most worried about judicial activism are worried now, even though the Constitution contains no Indigenous recognition provisions. 60 They condemn judges for activism in interpreting the current Constitution and tell Indigenous people they can’t have constitutional recognition on this basis — despite the Referendum Council recommending a non-justiciable amendment precisely to address those concerns.

Its intended non-justiciability sets the Voice apart from all other options for Indigenous recognition, including a racial non-discrimination guarantee or a preamble as have been previously proposed. A new preamble would be justiciable, potentially shaping the interpretation of the whole Constitution 61 Constitutional conservatives oppose a symbolic insertion for this reason. 62 A racial nondiscrimination clause would also be justiciable and was maligned as ‘a “one clause bill of rights”’. 63

By contrast, a constitutionally guaranteed Indigenous body is a practical machinery amendment, intended to be non-justiciable. The concept germinated through collaboration between Indigenous leaders and constitutional conservatives precisely to avoid judicial activism and uphold the Constitution. 64 Properly understood, it is a ‘radical centre’ solution, intended to achieve Indigenous aspirations for substantive and empowering constitutional recognition in a way that also addresses constitutionally conservative concerns to eliminate legal uncertainty and maintain parliamentary supremacy. 65 As Shadow AttorneyGeneral and Shadow Minister for Indigenous Australians, Julian Leeser, wrote of the 2015 Twomey amendment, which used ‘proposed laws’ in 2016, this is the kind of machinery clause ‘Grif th, Barton and their colleagues might have drafted, had they turned their minds to it.’66

A non-justiciable, non-binding constitutional Voice is profoundly reasonable. The Government’s draft amendment can now be re ned to con rm and signpost non-justiciability.

VIII Why a ‘Duty to Consult’ Is Likely Unworkable

I turn now to explain why a ‘duty to consult’ incorporated into the Indigenous head of power is likely unworkable. While some argue this solution would be more modest, others argue it is more robust. I argue that a ‘duty to consult’ incorporated

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into the head of power will always fall foul of the non-justiciability criteria. On the other hand, a non-justiciable, standalone duty to consult offers Indigenous people too little of institutional substance: there is no guarantee that an Indigenous body will exist, which defeats the purpose of the whole exercise. All formulations of a ‘duty to consult’ are ultimately unviable for these reasons.

In 2016, Professors Megan Davis and Rosalind Dixon proposed a justiciable constitutional duty to consult, critiquing the non-justiciability of Twomey’s 2015 drafting. Davis and Dixon noted that Parliament would be able to ignore the advice of the Indigenous body, suggesting this made the amendment too weak. 67 To remedy this, they proposed a justiciable duty to consult, framed as follows:

In exercising its power to make laws under [s 51(xxvi)], and in all other cases in which laws have a signi cant or disproportionate impact on Indigenous peoples, the Commonwealth Parliament shall consult with Indigenous peoples in good faith, and through appropriate procedures. 68

This formulation does not require the establishment of any Indigenous body or bodies. It would in the rst instance be up to Parliament to decide what ‘appropriate procedures’ and/or institutions are needed to enable consultation. However, the duty to consult is also a limitation on the conferral of power, so justiciability is inherent. Accordingly, ‘failure to follow appropriate procedures for consultation could itself also provide a potentially powerful basis for affected ATSI peoples to challenge the validity of relevant legislation’. 69 This goes beyond the Referendum Council’s recommendations.

Along the lines of the Davis and Dixon proposal (but with an additional amendment requiring Parliament to establish an Indigenous body), Brennan in January 2022 proposed a power to make laws with respect to ‘Aborigines and Torres Strait Islanders for whom it is deemed necessary to make special laws after consultation with them’.70 Brennan argued this showed it is possible to ‘design the right constitutional hook for the voice without undermining parliamentary sovereignty’.71 While it is possible to draft an amendment that upholds parliamentary supremacy, Brennan’s duty to consult is also a justiciable limitation on the head of power which falls outside the Referendum Council’s directive for a non-justiciable amendment.

In August 2022, barrister Louise Clegg criticised the Government’s draft amendment as ill- tting to the Constitution (though describing it as non-justiciable) and proposed a variation of a similarly justiciable duty to consult, also requiring the establishment of a body. Conversely, Clegg argued her proposal was more modest and conservative than the Government’s approach. It reads:

The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to …

(xxvi) Aboriginal and Torres Strait Islander people for whom it is deemed necessary to make special laws after the Parliament has received representations about the proposed laws from a body established by the Parliament to represent Aboriginal and Torres Strait Islander people. 72

Like the above approaches, and despite the use of ‘proposed laws’, this amendment appears justiciable. If Indigenous people refuse to be consulted, the power cannot be exercised. Because the phrase is incorporated into a substantive limitation on the conferral of power, including ‘proposed laws’ in this instance appears insuf cient to ensure non-justiciability. Laws enacted under this power could be invalidated for any failure to consult, which fails the Referendum Council’s parameters.

In 2020, Twomey proposed a non-justiciable constitutional duty to consult. Twomey’s version is standalone, unattached to any constitutional head of power, and is, therefore, non-justiciable. The provision reads:

The Commonwealth shall make provision for Aboriginal and Torres Strait Islander peoples to be heard by the Commonwealth regarding proposed laws and other matters with respect to Aboriginal and Torres Strait Islander affairs, and the Parliament may make laws to give effect to this provision.73

Shireen Morris, Refining and Agreeing on a Constitutional Amendment for a First Nations Voice

This amendment is modelled on ss 119 and 120 of the Constitution and would oblige the Commonwealth of Australia — the entire nation — to act to ensure Indigenous peoples are heard in their affairs.74 However, Twomey clari es that the provision ‘leaves open the means of giving effect to that obligation — it could be by government action, legislation, a parliamentary committee, or a combination of all of them’.75 Parliaments and governments would have full discretion as to how the duty is executed. Unlike the above proposals which provide substantive limitations on the conferral of power to Parliament, courts would not be involved, and nonjusticiability is bolstered through the use of ‘proposed laws’.76

The biggest downside is that the amendment offers no guarantee that an Indigenous body will exist. It, therefore, also falls outside the Referendum Council’s recommendation that the Constitution should guarantee the existence of an Indigenous body and would likely be rejected by Indigenous people for guaranteeing too little.

When one understands the shortfalls of these ‘duty to consult’ formulations, the profound modesty of the Government’s draft amendment becomes more apparent. It is a sensible starting point for forging agreement on the words to put to the Australian people.

IX A Bipartisan Process to Refine and Agree on the Amendment

The Referendum Council’s report noted that Parliament would nalise the constitutional amendment, emphasising the importance of Indigenous involvement.77 Yet, s 128 of the Constitution requires a ‘double majority’ referendum and establishes the Parliament as the initiator of constitutional change. Parliament, therefore, has power to unilaterally decide the nal constitutional amendment guaranteeing a First Nations Voice, which must then be approved by the people. Morally and politically, however, Indigenous views will be decisive. The amendment should be negotiated and agreed to by Indigenous people in partnership with parliamentarians. Australians are unlikely to vote ‘yes’ to an amendment that Indigenous Australians do not champion. So how might agreement between Indigenous people and Australian legislators be facilitated?

Adapting a process proposed by Cape York Institute in 2021 to nalise the constitutional amendment,78 here I suggest a process of negotiations between Indigenous people and political representatives to nalise and agree on the words of the amendment. Given that the Coalition leader Peter Dutton has so far left open the possibility that his party may support the proposed referendum,79 a process to encourage bipartisanship is desirable.

The Indigenous negotiating team could be the Indigenous ‘working group’, or a subgroup thereof, that has been appointed by the Government to progress work towards a referendum, 80 which includes Indigenous leaders long involved in the recognition debate. Additional or alternative Indigenous representatives could also be appointed as negotiators by those Indigenous leaders on the basis of application and merit if desired. The political representatives in these negotiations could include the Prime Minister, the Minister for Indigenous Australians and the Attorney-General, with equal participation by the Opposition as well as representation of other parties, to facilitate multiparty support of the negotiated amendment.

A retired judge could be engaged to oversee and facilitate the negotiations. Supported by expert advisers on all sides, the negotiations could use the Government’s draft amendment as a starting point, enabling the Government, the Opposition and the Indigenous negotiating team to discuss, re ne and agree on the amendment to be put to referendum.

This is just one idea of how a process to facilitate Indigenous and bipartisan buy-in on the amendment could work, but an ef cient bipartisan process to facilitate agreement is necessary. This should be developed and undertaken with urgency to facilitate consensus on and co-ownership of the nal amendment.

X Conclusion

I have made three suggestions to enhance the clarity of debate about the upcoming Voice referendum. First, the words ‘proposed laws’ should be included in the amendment to con rm and signpost non-justiciability. This will fortify the amendment against criticism and help quell concerns about uncertain High Court

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adjudication. Second, we should be clear that incorporating a duty to consult with the head of power will fall foul of the non-justiciability criteria. Third, the Government should lead an ef cient, collaborative and bipartisan negotiation process so Indigenous people and political representatives can nalise and agree on the amendment to put to the people.

1 Referendum Council, ‘Uluru Statement from the Heart’ (Statement, First Nations National Constitutional Convention, 26 May 2017).

2 Michelle Grattan, ‘Albanese Releases Draft Wording for Indigenous “Voice to Parliament” Referendum’, The Conversation (online, 29 July 2022) <https:// theconversation.com/albanese-releases-draft-wording-for-indigenous-voice-toparliament-referendum-187933>.

3 Referendum Council, Final Report of the Referendum Council (Report, 30 June 2017) 2 <https://www.referendumcouncil.org.au/sites/default/ les/report_ attachments/Referendum_Council_Final_Report.pdf>. Records from the First Nations regional dialogues also emphasise that what is envisaged is a body that would provide Indigenous input into relevant laws and policies: see Pat Anderson et al, Submission No 479 to Joint Select Committee on Constitutional Recognition relating to Aboriginal and Torres Strait Islander Peoples, Parliament of Australia (3 November 2018) 7–10 n 9–18.

4 Referendum Council, Final Report of the Referendum Council (n 3) 36.

5 Ibid 37.

6 Ibid 36.

7 Ibid.

8 Ibid 38.

9 For discussion questioning the utility of this term, see Ryan Goss, ‘What Do Australians Talk about When They Talk about “Parliamentary Sovereignty”?’ [2022] 1 Public Law 55.

10 These objections are explained in Shireen Morris, ‘Undemocratic, Uncertain and Politically Unviable? An Analysis of and Response to Objections to a Proposed Racial Non-Discrimination Clause as Part of Constitutional Reforms for Indigenous Recognition’ (2014) 40(2) Monash University Law Review 488 (‘Undemocratic, Uncertain and Politically Unviable?’).

11 Referendum Council, Final Report of the Referendum Council (n 3) 38.

12 For more on the logic and development of this alternative, see Shireen Morris, A First Nations Voice in the Australian Constitution (Hart Publishing, 2020) chs 3, 6 (‘A First Nations Voice’); Shireen Morris, Radical Heart: Three Stories Make Us One (Melbourne University Press, 2018) chs 4–7 (‘Radical Heart’).

13 See further Morris, ‘Undemocratic, Uncertain and Politically Unviable?’ (n 10).

14 As noted above, the records from the First Nations regional dialogue envisage a body that would provide Indigenous input into relevant laws and policies: see Pat Anderson et al (n 3) 7–10 n 9–18.

15 Similar guiding principles have been repeatedly articulated in the submissions of Cape York Institute, a leading proponent of the idea of an Indigenous advisory body in the Constitution since 2014: see Cape York Institute, Submission No 38 to Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples, Parliament of Australia (October 2014) 15–16; Cape York Institute, Supplementary Submission No 38 to Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples, Parliament of Australia (January 2015) 23–5.

16 Henry Burmester, ‘Locus Standi in Constitutional Litigation’ in HP Lee and George Winterton (eds), Australian Constitutional Perspectives (Law Book, 1992) 148, 178.

17 For example, the Constitution Act 1975 (Vic) recognises Indigenous peoples in s 1A. The Constitution Act 1902 (NSW) recognises Indigenous peoples in s 2. The Constitution of Queensland 2001 (Qld) recognises Indigenous peoples in its preamble and provides a ‘no legal effect clause’ in relation to the preamble in s 3A. The Constitution Act 1934 (SA) recognises Indigenous peoples in s 2. Section 2(3) provides a ‘no legal effect’ clause.

18 See Expert Panel on Constitutional Recognition of Indigenous Australians, Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution: Report of the Expert Panel (Report, January 2012) 113–15; Megan Davis and Zrinka Lemezina, ‘Indigenous Australians and the Preamble: Towards a More Inclusive Constitution or Entrenching Marginalisation?’ (2010) 33(2) University of New South Wales Law Journal 239, 261.

19 Leslie Zines, ‘Preamble to a Republican Constitution’ (1999) 10(1) Public Law Review 67, 68. See also Jeremy Webber, ‘Constitutional Poetry: The Tension between Symbolic and Functional Aims in Constitutional Reform’ (1999) 21(2) Sydney Law Review 260, 269–70.

20 See, eg, Australian Constitution ss 53–4, 56.

21 Official Record of the Debates of the Australasian Federal Convention, Adelaide, 13 April 1897, 473 (Edmund Barton).

22 The non-justiciable character of s 53 was discussed in Osborne v Commonwealth (1911) 12 CLR 321, 336 (Grif ths CJ), 352 (Barton J), 355 (O’Connor J) ; Western Australia v Commonwealth (1995) 183 CLR 373, 482 (Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ). See also Gabrielle Appleby and Adam Webster, ‘Parliament’s Role in Constitutional Interpretation’ (2013) 37(2) Melbourne University Law Review 255, 272; James A Thomson, ‘Non-Justiciability and the Australian Constitution’ in Michael Coper and George Williams (eds), Power, Parliament and the People (Federation Press, 1997) 56, 57.

23 Osborne v Commonwealth (n 22) 336.

24 Western Australia v Commonwealth (n 22) 482 (Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ). The High Court agreed with the SolicitorGeneral for the Commonwealth, at 404–5, that (citations omitted):

Failure to comply with ss 53 or 54 of the Constitution is not justiciable and does not give rise to invalidity of the resulting Act when it has been passed by the two Houses and received the royal assent. The Convention Debates con rm that the language of ss 53 and 54 was deliberately chosen in contrast to that of s 55 to ensure that the matters of procedure with which the former deals were to be settled between the two Houses of the Parliament themselves and were not to come before the courts.

See also Official Record of the Debates of the Australasian Federal Convention, Adelaide, 13 April 1897, 472–3 (Isaac Isaacs); John Quick and Robert Randolph Garran, The Annotated Constitution of the Australian Commonwealth (Angus & Robertson, 1901) 664–5.

25 See Glenn Worthington, ‘How Far Do Sections 53 and 56 of the Australian Constitution Secure a Financial Initiative of the Executive?’ (Parliamentary Studies Paper 12, Australian National University) 4.

26 Victoria v Commonwealth (1975) 134 CLR 83, 138.

27 See Shireen Morris, ‘A Constitutional Voice to Parliament: Ensuring Parliament Is in Charge, Not the Courts’, The Conversation (online, 27 October 2022) <https:// theconversation.com/a-constitutional-voice-to-parliament-ensuring-parliamentis-in-charge-not-the-courts-193017>.

28 Anne Twomey, ‘Putting Words to the Tune of Indigenous Constitutional Recognition’, The Conversation (online, 20 May 2015) <https://theconversation. com/putting-words-to-the-tune-of-indigenous-constitutional-recognition-42038>.

29 Shireen Morris, ‘The Argument for a Constitutional Procedure for Parliament to Consult with Indigenous Peoples When Making Laws for Indigenous Affairs’ (2015) 26(3) Public Law Review 166, 179–82; Shireen Morris, ‘“The Torment of Our Powerlessness”: Addressing Indigenous Constitutional Vulnerability through the Uluru Statement’s Call for a First Nations Voice in Their Affairs’ (2018) 41(3) University of New South Wales Law Journal 629, 653–65; Morris, A First Nations Voice (n 12) 257–62, 268–73.

30 Murray Gleeson, ‘Courts and the Rule of Law’ (Rule of Law Series, Melbourne University, 7 November 2001).

31 This is pointed out in Megan Davis and Rosalind Dixon, ‘Constitutional Recognition through a (Justiciable) Duty to Consult? Towards Entrenched and Judicially Enforceable Norms of Indigenous Consultation’ (2016) 27(4) Public Law Review 255, 259.

32 Fergal Davis, ‘The Problem of Authority and the Proposal for an Indigenous Advisory Body’ (2015) 8(19) Indigenous Law Bulletin 23.

33 Twomey, ‘Putting Words to the Tune of Indigenous Constitutional Recognition’ (n 28). This drafting was developed through collaboration between Cape York Institute representatives, Noel Pearson and the author, and constitutional conservatives, Julian Leeser, Damien Freeman, Professor Greg Craven and Professor Anne Twomey. See further Morris, Radical Heart (n 12) chs 6–7.

34 Anderson et al (n 3) 6.

35 Ibid 8.

36 Ibid. In contrast to Twomey’s 2015 proposal, which constitutionally requires tabling of advice in Parliament and consideration of the advice by parliamentarians: Twomey, ‘Putting Words to the Tune of Indigenous Constitutional Recognition’ (n 28).

37 Anderson et al (n 3) 11.

38 Gabrielle Appleby, ‘The Uluru Statement Is Not a Vague Idea of “Being Heard” but Deliberate Structural Reform’, The Conversation (online, 24 July 2020)

Shireen Morris, Refining and Agreeing on a Constitutional Amendment for a First Nations Voice

<https://theconversation.com/the-uluru-statement-is-not-a-vague-ideaof-being-heard-but-deliberate-structural-reform-142820> (‘The Uluru Statement’).

39 Speci cally, formulations presented by Twomey in 2020: Anne Twomey, ‘There Are Many Ways to Achieve Indigenous Recognition in the Constitution: We Must Find One We Can Agree On’, The Conversation (online, 8 July 2020) <https://theconversation.com/there-are-manyways-to-achieve-indigenous-recognition-in-the-constitution-we-mustnd-one-we-can-agree-on-142163> (‘There Are Many Ways’).

40 Appleby, ‘The Uluru Statement’ (n 38).

41 Particularly a non-justiciable amendment. Appleby’s article links to the 2018 joint submission by Anderson et al (n 3), which provides very similar drafting and argues it is non-justiciable.

42 Gabrielle Appleby, ‘An Indigenous Advisory Body: Some Questions of Design’ (2015) 8(19) Indigenous Law Bulletin 3, 3.

43 See also Shireen Morris, ‘Parliamentary Scrutiny and Insights for a First Nations Voice to Parliament’ in Julie Debeljak and Laura Grenfell (eds), Law Making and Human Rights: Executive and Parliamentary Scrutiny across Australian Jurisdictions (Lawbook, 2020) 703; Gabrielle Appleby and Eddie Synot, ‘A First Nations Voice: Institutionalising Political Listening’ (2020) 48(4) Federal Law Review 529.

44 Michael Coper made this point in relation to s 101 of the Constitution which requires the existence of an Inter-State Commission, which has not operated for most of Australia’s history: see Michael Coper, ‘The Second Coming of the Fourth Arm: The Role and Functions of the InterState Commission’ (1989) 63(11) Australian Law Journal 731, 733, 738.

45 I have explained why a non-justiciable amendment requiring the establishment of a First Nations Voice can be distinguished from, and is likely to carry much more authority than, s 101 of the Constitution, which requires the establishment of an Inter-State Commission: Morris, A First Nations Voice (n 12) 255–62.

46 Gabrielle Appleby, Sean Brennan and Megan Davis, ‘Constitutional Enshrinement of a First Nations Voice: Issues Paper for Public Discussion’ (Issues Paper 1, Indigenous Law Centre, September 2022) 17.

47 See further Shireen Morris, ‘An Australian Declaration of Recognition: The Case for Semi-Entrenched Symbolism’ (2020) 44(1) Melbourne University Law Review 267

48 National Indigenous Australians Agency, Indigenous Voice Co-Design Process: Final Report to the Australian Government (Report, July 2021) 11–12, 69, 175–6.

49 Morris, A First Nations Voice (n 12) 275.

50 Frank Brennan, ‘Why Their Voice Must Be Heard’, The Australian (online, 20 August 2022) <https://www.theaustralian. com.au/inquirer/why-their-voice-must-be-heard/news-story/ bff90c222c1f769bb5035220d977b8ad>.

51 Prior to the 1967 referendum, the power was not used. For example, the power is said to support the World Heritage Properties Conservation Act 1983 (Cth), the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth), the Native Title Act 1993 (Cth) and the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth).

52 Anne Twomey, ‘Creating a Constitutional Voice: The Words That Could Change Australia’, The Conversation (online, 30 July 2022) <https:// theconversation.com/creating-a-constitutional-voice-the-words-thatcould-change-australia-187972>.

53 Ibid.

54 Janet Albrechtsen, ‘The Albanese Amendment Ensures a Voice Will Be a Disaster’, The Australian (online, 13 August 2022) <https://www. theaustralian.com.au/inquirer/the-albanese-amendment-ensures-avoice-will-be-a-disaster/news-story/4054d17ea5ca1fb868c777a44de0 ccb6>.

55 See the discussion of referendum tactics and exaggerated claims in Scott Bennett, ‘The Politics of Constitutional Amendment’ (Research Paper No 11, Parliament of Australia, 23 June 2003).

56 Paul Kelly, ‘The Referendums: Myths and Bogeys’, The Australian (Sydney, 2 September 1988), quoted in George Williams and David

Hume, People Power: The History and Future of the Referendum in Australia (UNSW Press, 2010) 82. See also Enid Campbell, ‘Southey Memorial Lecture 1988: Changing the Constitution’ (1989) 17(1) Melbourne University Law Review 1, 12 .

57 See also Chris Merritt, ‘Judging the High Court’s Justices’, The Australian (online, 19 February 2020) <https://www.theaustralian.com. au/inquirer/judging-the-highcourts-justices/news-story/6c819b096c601 80d761d0ca9ab38b2eb>.

58 Referendum Council, Final Report of the Referendum Council (n 3) 38.

59 James Allan, ‘Constitutional Fiddling Brings Inherent Danger’, The Australian (online, 9 December 2011) <https://www.theaustralian.com. au/national-affairs/opinion/constitutional- ddling-brings-inherentdanger/news-story/1852ab65ba1b70d2f14f036d530b6ee0>.

60 Shireen Morris, ‘Love in the High Court: Implications for Indigenous Constitutional Recognition’ (2021) 49(3) Federal Law Review 410, 428–32.

61 Stephen Gageler and Mark Leeming, ‘An Australian Republic: Is a Referendum Enough?’ (1996) 7(3) Public Law Review 143, 145–7; Jeffrey Goldsworthy, ‘The Preamble, Judicial Independence and Judicial Integrity’ (2000) 11(2) Constitutional Forum 60, 62; Dan Himmelfarb, ‘The Preamble in Constitutional Interpretation’ (1991) 2(1) Seton Hall Constitutional Law Journal 127, 203; George Winterton, ‘A New Constitutional Preamble’ (1997) 8(3) Public Law Review 186, 187–8.

62 See Shireen Morris and Noel Pearson, ‘Indigenous Constitutional Recognition: Paths to Failure and Possible Paths to Success’ (2017) 91(5) Australian Law Journal 350.

63 These objections are explained in Morris, ‘Undemocratic, Uncertain and Politically Unviable?’ (n 10) 495.

64 See also Morris, Radical Heart (n 12) chs 5–7.

65 See Shireen Morris, ‘A New Radical Centre’ (John Button Oration, Wheeler Centre, 10 September 2022).

66 Julian Leeser, ‘Uphold and Recognise’ in Damien Freeman and Shireen Morris (eds), The Forgotten People: Liberal and Conservative Approaches to Recognising Indigenous Peoples (Melbourne University Press, 2016) 78, 87.

67 Davis and Dixon (n 31) 258.

68 Ibid 262. Note that, in the Davis and Dixon article, s 51(xxxvi) is cited, but I presume this is an error and that it should read s 51(xxvi).

69 Davis and Dixon (n 31) 259.

70 Frank Brennan, ‘Most Australians Are Tolerant and Inclusive, So Stop the Hectoring on Our National Day’, The Australian (online, 27 January 2022) <https://www.theaustralian.com.au/commentary/letters/mostaustralians-are-tolerant-and-inclusive-so-stop-the-hectoring-onour-national-day/news-story/5df6d8d9cce30994761c822899f19281>.

71 Ibid.

72 Louise Clegg, ‘The Voice to Parliament: Past and Present’ (Speech, Sydney Institute, 18 August 2022) <https://thesydneyinstitute.com.au/ blog/the-voice-to-parliament-past-and-present-greg-craven-louiseclegg/> (emphasis in original).

73 Twomey, ‘There Are Many Ways’ (n 39).

74 Ibid.

75 Ibid.

76 Ibid.

77 Referendum Council, Final Report of the Referendum Council (n 3) 36.

78 Cape York Institute, Submission No 2720 to National Indigenous Australians Agency, Indigenous Voice Co-Design Process (30 April 2021). This submission was written by the author.

79 Tom McIlroy, ‘Dutton Admits “Mistake”, Will Consider Indigenous Voice Plan’, The Australian Financial Review (online, 30 May 2022) <https:// www.afr.com/politics/federal/dutton-admits-mistake-will-considerindigenous-voice-plan-20220530-p5apnl>.

80 Lorena Allam, ‘Government Appoints First Nations Leaders to Guide Referendum on Indigenous Voice’, The Guardian (online, 8 September 2022) <https://www.theguardian.com/australia-news/2022/sep/08/ government-appoints- rst-nations-leaders-to-guide-questions-aboutreferendum-on-indigenous-voice>.

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* Bachelor of Commerce (Honours) and Bachelor of Laws (Honours), The University of Sydney; Winner of the Sir Anthony Mason Constitutional Law Essay Prize, 2021. This piece was written in the author’s personal capacity and does not necessarily re ect the views of any past or present employers. The author thanks the two peer reviewers for their assistance with this piece.

The Aftermath of Kirk v Industrial Court of New South Wales

A Constitutional Right to Judicial Review for Jurisdictional Errors?

Dane Luo*

I Introduction

In Kirk v Industrial Court of New South Wales (‘Kirk ’),1 the High Court held that the Constitution entrenches the supervisory jurisdiction of a state Supreme Court to review state executive and court decisions infected by jurisdictional error. When combined with the express constitutional protection of judicial review over decisions of the Commonwealth executive and federal courts (other than the High Court), 2 post- Kirk academic commentary has described the Constitution as entrenching a ‘minimum provision’ of judicial review. 3

Protections of judicial power, independence and processes derived from Ch III have generally been applauded on the basis that they incidentally protect individual rights. 4 Indeed, Justice Virginia Bell described the Constitution’s constraints on Parliaments’ ability to oust judicial review as a ‘guarantee of protection under the rule of law’. 5

This article critically evaluates the impact and limitations of the entrenchment of state judicial review following Kirk. In the context of the current academic debate about whether the ‘entrenched minimum provision’ of judicial review is merely jurisdictional or incorporates more substantive legal principles, 6 this article argues that the former view should be preferred. It argues that, whilst Kirk may defeat privative clauses in some circumstances, there remains severe limitations to accessing judicial review remedies. The article casts doubt on whether it can truly be said that there is a ‘constitutional guarantee’ or ‘right’ to judicial review in Australia.7

II Kirk v Industrial Court of New South Wales

The Kirk Group owned a farm near Picton. One of its directors was Mr Kirk but he had no farming experience. So, he left the day-to-day management to Mr Palmer, the farm manager. Mr Palmer recommended that the Kirk Group buy an All-Terrain Vehicle (‘ATV’). Tragically, Mr Palmer was killed when the ATV overturned. The Industrial Relations Commission in Court Session (later known as the Industrial Court) convicted and sentenced Kirk and his company of two offences under the Occupational Health and Safety Act 1983 (NSW) (‘OHS Act ’).

Eventually, the matter reached the High Court, which found that the Industrial Court had made jurisdictional errors in both its construction of the OHS Act and conduct of the trial with respect to rules of evidence. It would ordinarily follow that orders infected by jurisdictional error can be quashed by an order in the nature of certiorari. 8 However, s 179 of the Industrial Relations Act 1996 (NSW) contained a privative clause, which stated:

(1) A decision of the Commission (however constituted) is nal and may not be appealed against, reviewed, quashed or called into question by any court or tribunal.

(5) This section extends to proceedings brought in a court or tribunal for any relief or remedy, whether by order in the nature of prohibition, certiorari or mandamus, by injunction or declaration or otherwise.

The High Court held that, because s 73(iii) of the Constitution provides that there shall be appeals from ‘the Supreme Court of a State’ to the High Court, there must be a body tting that description. 9 The majority’s historical analysis explained that it was well-accepted that state Supreme Courts had been inherited from the Courts of the Queen’s Bench in England supervisory jurisdiction to grant writs of prohibition, certiorari and mandamus for jurisdictional error (and habeas corpus).10 Relevantly, an early Privy Council authority established that privative clauses did not oust this jurisdiction.11 These historical reasons 12 meant that the supervisory role to grant prerogative relief to state executive and inferior judicial bodies was at Federation, and remains, a ‘de ning characteristic’ of state Supreme Courts.13 Accordingly, ‘[l]egislation which would take from a State Supreme Court power to grant relief on account of jurisdictional error is beyond State legislative power’.14

The High Court held that the Industrial Court is subject to the supervisory jurisdiction of the Supreme Court, notwithstanding that both courts were of equivalent status under state law.15 This could be facilitated if the expression ‘[a] decision of the [Industrial Court]’ was read as only referring to a decision made within the limits of the Court’s power. It would not include a decision attended by jurisdictional error (commonly coined as a ‘purported decision’) because they are ‘“no decision at all”’ in law.16 Therefore, s 179 did not prevent the Court of Appeal of the Supreme Court of New South Wales quashing the convictions and sentences imposed by the Industrial Court.

III Analysis: A Constitutional Right to Judicial Review?

The signi cance of Kirk ’s holding must be understood in its broader constitutional and administrative law framework. Section 75(v) of the Constitution expressly conferred a power in the original jurisdiction of the High Court to grant a ‘writ of Mandamus or prohibition or an injunction … against an of cer of the Commonwealth’. This ensured that decisions of Commonwealth Ministers,17 statutory bodies 18 and judges 19 could be subject to review by the High Court. It had been settled that the power to grant relief under s 75(v) ‘cannot be removed by or under a law made by the [Commonwealth] Parliament’. 20 Thus, Kirk had the effect of extending the entrenchment of judicial review to state executive and judicial bodies other than the Supreme Court 21 where the decision involves jurisdictional error. 22

One question to consider is whether it can now be said that there is a ‘right’ for an individual to seek judicial review of jurisdictional errors in decisions made by the executive or inferior courts. This part argues that there are three limitations that make the constitutional protection identi ed in Kirk very thin indeed in the face of a determined legislature.

A Kirk ’s Limitation Only Extends to Jurisdictional Errors

The rst issue is that the constitutional protection identi ed in Kirk is limited to legislation that infringes on a state Supreme Court’s power to grant relief on account of jurisdictional error. 23 A decision is infected by ‘jurisdictional error if the decision-maker makes a decision outside the limits of the functions and powers conferred on him or her, or does something which he or she lacks power to do’. 24 In contrast, a non-jurisdictional error is when a power has been exercised within its proper limits but another legal error is alleged. Although this distinction has been criticised for yearning in vain ‘for bright lines and a clear legal rule’, 25 the High Court has repeatedly emphasised the need for, and utility of, maintaining this distinction.

Certiorari lies not just for jurisdictional errors but also for non-jurisdictional errors of law on the face of the record. 26 However, Kirk made clear that legislation which denies the availability of relief for the latter is not beyond state legislative power. 27 The consequence is that privative clauses can close a ground of review that would otherwise be available by certiorari. This is particularly

Dane Luo, The Aftermath of Kirk v Industrial Court of New South Wales

signi cant because some errors of law by inferior courts, as well as some tribunals, 28 have been treated as non-jurisdictional. 29

Take for example, an aggrieved party seeks redress for non-jurisdictional errors of law by the Industrial Relations Commission. As discussed above, s 179 would preclude judicial review for this kind of error. Apart from limited exceptions, 30 there is no statutory right of appeal from the Commission to a court. This demonstrates that, notwithstanding Kirk, there may be circumstances where an inferior tribunal’s authority over non-jurisdictional errors of law is unreviewable by any court. 31 Therefore, the ‘guarantee of protection’ over executive decision-makers and inferior courts is still heavily dependent on balancing by Parliament of nality in decision-making and the rule of law. 32

B Parliament May Undermine Judicial Review by Legislative Devices

It follows from this fact that Kirk, at most, protects judicial review of jurisdictional errors and is thus vulnerable to legislative devices such as a no invalidity clause. These provisions ultimately remove a substantive ground of review and validate acts. Such provisions can signi cantly affect the availability of judicial review because whether a decision-maker has exceeded their jurisdiction is ultimately an exercise of statutory construction. 33

The effect of a ‘no invalidity’ clause can be seen in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme 34 This case involved a statute that provided a breach of the duty to give reasons does not affect the validity of the decision. The Court held that the decision could not be attacked on that ground, but the decision could be attacked if the reasons disclosed reviewable errors. It is thus clear that a ‘no invalidity’ clause can transform an otherwise jurisdictional error into a non-jurisdictional one. 35

Similarly, Parliament may oust traditional judicial review grounds that would usually be jurisdictional errors. For example, the rules of natural justice, whether considered to be common law rules 36 or represent an implied legislative intention, 37 can be excluded by clear legislative drafting. 38 The effect is to reduce the available grounds upon which the decision may be attacked on judicial review. 39

Further, a provision that deems a previously invalid act, decision or omission to be valid retrospectively may stymie judicial review for jurisdictional error. Such a clause was held in Duncan v Independent Commission against Corruption to not infringe on the principle in Kirk because state legislatures are competent to alter the substantive law. 40 Retrospective validating acts can cure previously invalid decisions provided that the legislature transforms the decision into a valid decision. 41 Such provisions are valid provided that the legislature is not requiring a state Supreme Court to treat acts that remain invalid as valid and does not withdraw entrenched jurisdiction from the Supreme Court. This has the practical effect of withdrawing the power of the Court to declare an act, decision or omission as invalid notwithstanding that it was in fact invalid at the time it occurred.

A state parliament may also be able to undermine the availability of judicial review. In some jurisdictions, there is legislation that sets an absolute deadline for accessing judicial review. 42 Although the High Court has held that a statutory deadline in Commonwealth legislation would be invalid if it operated in practical terms to defeat a person’s chances of accessing the Court’s constitutional writ jurisdiction, 43 it has been stated in obiter dicta that the same conclusion may not necessarily be reached in relation to state legislation. 44 It appears that considerations, such as the nature of the decision under review, context, public interest and reasonableness of the limitation, are relevant factors in determining their validity. 45 It is thus conceivable that a state parliament can, subject to some presently unclear limits, practically prevent judicial review remedies by legislating absolute time limits.

Thus, it is clear that a state parliament can undermine the constitutional protections from Kirk by minimising the potential grounds on which a decision may be reviewed in a state Supreme Court’s entrenched jurisdiction or by practically preventing such review. 46

C

Kirk Is Limited to Prerogative Relief

Another weakness of Kirk is that it appears to have only entrenched the power of a state Supreme Court to grant prerogative relief 47 and does not extend to equitable remedies. This is signi cant because declarations and injunctions are commonly sought

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in judicial review proceedings as a result of the ‘inadequacy’ and ‘technicalities hedging the prerogative remedies’. 48 A declaration is a exible and noncoercive remedy that is commonly used to a declare a decision to be invalid or a ground of review to have been established. 49 An injunction, however, is a coercive remedy. But, like a declaration, it too is a exible remedy that may be granted to prevent a decision-maker from proceeding in a way that would be unlawful. 50 An important function served by equitable remedies is that they may be available to vindicate a public law right where prerogative remedies are not. 51 For example, although prerogative relief is not available against the Governor-General or Governor,52 it is well-accepted that declarations may attach to actions or decisions by the Vice-Regal Of cer in Council. 53

This weakness of Kirk was exposed in Kaldas v Barbour 54 Here, the plaintiff sought judicial review over ndings made in an Ombudsman’s report. However, certiorari did not lie to quash an Ombudsman’s report because the report did not, and was not part of a process that would, affect an individual’s rights. 55 Thus, the plaintiff had to rely on equitable relief. But this kind of relief appeared to be foreclosed by a privative clause in the Ombudsman Act 1974 (NSW) that precluded a claim for judicial review of the Ombudsman’s acts unless done in bad faith. 56 As such, the issue was whether the power to grant a declaration in aid of a state Supreme Court’s supervisory jurisdiction was constitutionally entrenched.

The New South Wales Court of Appeal held that the power to grant declaratory relief was not a de ning, irreducible characteristic of the Supreme Court. 57 This is because, although courts of equity historically could grant declarations against the Crown in proceedings brought against the Attorney-General, those courts had no jurisdiction to review decisions of inferior courts or tribunals in the same way as the Court of King’s Bench. 58 At Federation, there was no jurisdiction to make bare declarations of right 59 and it was not until 1911 that Dyson v Attorney General 60 heralded a ‘new willingness to grant bare declarations’. 61

This is a rather curious result especially given that s 75(v) of the Constitution expressly confers the power on the High Court to grant injunctions against of cers of the Commonwealth. In this respect, it may be observed that the entrenched minimum provision of judicial review for state decisions is of a narrower breadth than that for Commonwealth decisions. Moreover, the consequence is that a state parliament can validly oust judicial review of decisions that would not be amenable to the prerogative writs — even if the decisions are vitiated by jurisdictional error. Lisa Burton Crawford and Janina Boughey explain that the constitutional guarantee of judicial review is ‘primarily delineated by the ambit of the judicial review remedies, not the underlying concept of jurisdictional error’. 62 Thus, it would be ‘over-broad’ to say that Kirk established a guarantee of judicial review for jurisdictional error at the state level. 63

IV Conclusion

Kirk has been heralded as a major decision that furthers the rule of law in Australia. This article has considered three legal issues that casts doubt on the argument that the entrenched minimum provision of judicial review incorporates substantive protections. Kirk does not protect judicial review of non-jurisdictional errors. Parliament can, through carefully drafted legislative devices, determine whether errors are jurisdictional or not. Even if jurisdictional error is established, there may be no remedy if the strict rules for issuing prerogative writs render them unavailable. Thus, Kirk does not even ensure that all jurisdictional errors are within the purview of judicial supervision.

It is dif cult to reconcile these substantive issues with the warning in Kirk against the creation of ‘islands of power immune from supervision and restraint’. 64 And it is more dif cult to say that the Constitution confers a positive ‘right’ or ‘guarantee’ to judicial review in Australia. Thus, the scope of the protections enunciated in Kirk is determined by the text and structure of the Constitution, not the requirements of the rule of law considered in abstract.

Dane Luo, The Aftermath of Kirk v Industrial Court of New South Wales

1 (2010) 239 CLR 531 (‘Kirk’).

2 Australian Constitution s 75(v).

3 See Will Bateman, ‘The Constitution and the Substantive Principles of Judicial Review: The Full Scope of the Entrenched Minimum Provision of Judicial Review’ (2011) 39(3) Federal Law Review 463.

4 See, eg, George Winterton, ‘The Separation of Judicial Power as an Implied Bill of Rights’ in Geoffrey Lindell (ed), Future Directions in Australian Constitutional Law: Essays in Honour of Professor Leslie Zines (Federation Press, 1994) 185; Fiona Wheeler, ‘The Rise and Rise of Judicial Power under Chapter III of the Constitution: A Decade in Overview’ (2001) 20(3) Australian Bar Review 282.

5 Chief Justice Wayne Martin, ‘Peripheral Vision? Judicial Review in Australia’ (Lecture, Australian Institute of Administrative Law National Conference, University of Western Australia, 24 July 2014) 11.

6 See Leighton McDonald, ‘The Entrenched Minimum Provision of Judicial Review and the Rule of Law’ (2010) 21(1) Public Law Review 14; Bateman (n 3); Lisa Burton Crawford, ‘The Entrenched Minimum Provision of Judicial Review and the Limits of “Law”’ (2017) 45(4) Federal Law Review 569.

7 Lisa Burton Crawford and Janina Boughey, ‘The Centrality of Jurisdictional Error: Rationale and Consequences’ (2019) 30(1) Public Law Review 18, 19, 30.

8 Leighton McDonald, ‘Jurisdictional Error as Conceptual Totem’ (2019) 42(3) University of New South Wales Law Journal 1019, 1023.

9 Forge v Australian Securities and Investments Commission (2006) 228 CLR 45, 76 [63] (Gummow, Hayne and Crennan JJ).

10 See Australian Courts Act 1828 (Imp) 9 Geo 4, c 83 s 3. See Kirk (n 1) 581 [98] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

11 Colonial Bank of Australasia v Willan (1874) LR 5 PC 417, 442 (Colville, Peacock, Smith, Collier and Peel JJ).

12 Mark Aronson, Matthew Groves and Greg Weeks describe the High Court’s historical analysis as ‘unconvincing’ but notes that ‘no-one will complain too much about Kirk’s legal history, because it is a good result’: Mark Aronson, Matthew Groves and Greg Weeks, Judicial Review of Administrative Action and Government Liability (Lawbook, 6th ed, 2017) 1055–6 [18.30].

13 Kirk (n 1) 581 [98] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

14 Ibid 581 [100]. Whether the supervisory jurisdiction to review action by executive of cers of a territory for jurisdictional error is entrenched by Ch III has never been determinatively settled by the High Court. The issue was mentioned but left open by Gageler J in North Australian Aboriginal Justice Agency Limited v Northern Territory (2015) 256 CLR 569, 616 [113]. To so hold would be to accept that there is a rationale other than the inherent supervisory jurisdiction of the state Supreme Courts at Federation for entrenching the jurisdiction. Lower courts have held that Kirk’s entrenchment applies to the territory Supreme Courts: DPP (ACT) v Martin (2014) 9 ACTLR 1, 28 [104] (Murrell CJ, Katzmann and Wigney JJ); Faull v Commissioner for Social Housing (ACT) and Residential Residencies Tribunal (2013) 277 FLR 61, 81 [109] (Refshauge J). The author suggests that a potential rationale may be that the jurisdiction of territory of cers is sourced from, and limited by, laws of the Commonwealth Parliament and there is a need to address jurisdictional errors in the integrated court system for which Ch III provides.

15 Industrial Relations Act 1996 (NSW) s 152(2), as at 3 February 2010; Constitution Act 1902 (NSW) s 52(2)(d). It is noted that the Industrial Court referred to in s 52(2) (a) of the Constitution Act 1902 (NSW) was a reference to the Industrial Court that existed before its abolition by the Industrial Relations Act 1996 (NSW). An effect of this Act was to create the Industrial Relations Commission in Court Session, which, by virtue of s 152, was established as a ‘superior court of record’ and is a ‘court of equivalent status to the Supreme Court and the Land and Environment Court’. A legislative amendment in 2005 added s 151A to the Industrial Relations Act 1996 (NSW), which named the Commission in Court Session as the ‘Industrial Court of New South Wales’: Industrial Relations Amendment Act 2005 (NSW) sch 1 cl 4.

16 See Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123, 133 [24] (Kiefel CJ, Gageler and Keane JJ), quoting Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597, 615 [51] (Gaudron and Gummow JJ).

17 See, eg, Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 257 CLR 42, 95 [127] (Gageler J).

18 See, eg, Church of Scientology Inc v Woodward (1982) 154 CLR 25, 65 (Murphy J). But see Australasian College of Cosmetic Surgery v Australian Medical Council Ltd (2015) 232 FCR 225, 233–4 [42] (Katzmann J); Janina Boughey and Greg Weeks, ‘“Of cers of the Commonwealth” in the Private Sector: Can the High Court Review Outsourced Exercises of Power?’ (2013) 36(1) University of New South Wales Law Journal 316.

19 See, eg, R v Judges of the Federal Court of Australia; Ex parte Western Australian National Football League (Inc) (1979) 143 CLR 190, 201 (Barwick CJ), 241 (Aickin J). But not Justices of the High Court: Re Carmody; Ex parte Glennan (2003) 77 ALJR 1202, 1203 [6] (Gummow, Hayne and Callinan JJ).

20 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, 512 [98], 513 [103] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ); Graham v Minister for Immigration and Border Protection (2017) 263 CLR 1, 25–26 [42]–[44], 27 [48] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ). See also Jeremy Kirk, ‘The Entrenched Minimum Provision of Judicial Review’ (2004) 12(1) Australian Journal of Administrative Law 64.

21 Kirk does not result in state Supreme Courts having an entrenched supervisory jurisdiction over Commonwealth judicial and administrative power: Nguyen v Commissioner of the Australian Federal Police (2014) 292 FLR 10, 18–19 [26] (Fraser JA, Holmes JA agreeing at 11 [1], Muir JA agreeing at 11 [2]).

22 Kirk (n 1) 580–1 [98] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

23 Ibid 581 [100].

24 Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82, 141 [163] (Hayne J).

25 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59, 86 [121] (Kirby J). See also Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57, 123 [212] (Kirby J) (‘Ex parte Miah’); Crawford and Boughey (n 7) 29; Margaret Allars, ‘The Distinction between Jurisdictional and Non-Jurisdictional Errors: Its Signi cance and Rationale’ in Debra Mortimer (ed), Administrative Justice and Its Availability (Federation Press, 2015) 74; Justice John Basten, ‘Jurisdictional Error after Kirk: Has It a Future?’ (2012) 23 Public Law Review 94.

26 Craig v South Australia (1995) 184 CLR 163, 181 (Brennan, Deane, Toohey, Gaudron and McHugh J) (‘Craig’); Bros Bins Systems Pty Ltd v Industrial Relations Commission of New South Wales (2008) 74 NSWLR 257, 264 [31] (Spigelman CJ, Giles JA agreeing at 274 [87], Handley AJA agreeing at 274 [88]). See Amnon Rubinstein, Jurisdiction and Illegality: A Study in Public Law (Oxford University Press, 1965) 72. The record does not include the stated reasons for decision unless they are deliberately incorporated into the decision itself: Craig (n 26) 183 (Brennan, Deane, Toohey, Gaudron and McHugh J). However, statutory reform has deemed reasons of tribunals and courts to form part of ‘the record’: see, eg, Supreme Court Act 1970 (NSW) s 69, Administrative Law Act 1978 (Vic) s 10.

27 Kirk (n 1) 581 [100] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

28 Re Carey; Ex parte Exclude Holdings Pty Ltd (2006) 32 WAR 501, 525 [118] (Martin CJ), 536–7 [181] (McLure JA); Absolon v NSW Technical and Further Education Commission [1999] NSWCA 311, [146] (Fitzgerald JA). See also Toms v Harbour City Ferries Pty Ltd (2015) 229 FCR 537, 549–51 [51]–[59] (Buchanan J, Allsop CJ agreeing at 540 [1], Siopis J agreeing at 540 [2]).

29 Boele v Rinbac Pty Ltd (2014) 88 NSWLR 381, 416–7 [139]–[140] (Rein J); Returned & Services League of Australia (Victorian Sub-Branch) Inc v Liquor Licensing Commission [1999] 2 VR 203, 214–5 [28] (Phillips JA); Re Robins; Ex parte West Australian Newspapers Ltd (1999) 20 WAR 511.

30 See, eg, Industrial Relations Act 1996 (NSW) s 197B.

31 Lisa Burton Crawford and Janina Boughey reject the view that the idea of non-remediable legal error is either incoherent or incompatible with the rule of law: Crawford and Boughey (n 7) 21–2. They suggest that every system will likely tolerate a certain level of legal error and therefore will need to devise doctrine or ltering mechanisms for that purpose.

32 See generally Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, 522–3 [125] (Callinan J).

33 See generally Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355.

34 (2003) 216 CLR 212.

35 Harvey v Commissioner of State Revenue (Qld) [2015] QCA 258, [77]–[79] (McMurdo P, Philippides JA agreeing at [86], Burns J agreeing at [87]). See also Federal Commissioner of Taxation v Futuris Corporation Ltd (2008) 237 CLR 146.

36 Kioa v West (1985) 159 CLR 550, 584 (Mason J).

37 Ibid 612, 615 (Brennan J).

38 Ibid 584 (Mason J), 615 (Brennan J); Ex parte Miah (n 25) 70 (Gleeson CJ and Hayne J), 83 (Gaudron J), 93 (McHugh J), 112 (Kirby J).

39 See generally Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252.

40 Duncan v Independent Commission against Corruption (2015) 256 CLR 83.

41 Ibid; Australian Education Union v General Manager of Fair Work Australia (2012) 246 CLR 117.

42 See, eg, Environmental Planning and Assessment Act 1979 (NSW) s 101, as at 19 November 2004. However, this provision was held to only apply to the Land and Environment Court of New South Wales (not the Supreme Court) and, in any case, has a very limited scope: Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707, 722 [75] (Spigelman CJ, Mason P agreeing at 734 [136]); Vanmeld Pty Ltd v Fairfield City Council (1999) 46 NSWLR 78, 106 [131]–[132] (Spigelman CJ).

43 Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 228 CLR 651, 672 [58] (Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ).

44 Trives v Hornsby Shire Council (2015) 89 NSWLR 268, 280–1 [48]–[49] (Basten JA, Macfarlan JA agreeing at 283 [63], Meagher JA agreeing at 283 [64]).

45 Ibid; Hoxton Park Residents Action Group Inc v Liverpool City Council [2010] NSWLEC 242, [53] (Biscoe J).

46 Other legislative devices may also be available. For example, a statute may empower a decision-maker to exercise a power for a purpose or taking account of consideration beyond the subject-matter, scope and purpose of the Act: see Bateman (n 3) 467, 480–1.

47 It is noted that, in most states, legislative provisions have provided for the Supreme Court to issue orders in the nature of the prerogative writs, as opposed to the writs themselves: see, eg, Supreme Court Act 1970 (NSW) s 69(1). It is generally accepted that this is a mere procedural change and does not alter the grounds or discretion for determining whether to grant relief. In this article, references to prerogative relief or remedies should include orders in the nature of such relief or remedies.

48 Bateman’s Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247, 257–8 [24]–[27] (Gaudron, Gummow and Kirby JJ).

49 See, eg, Ainsworth v Criminal Justice Commission (1992) 175 CLR 564. A recent example was in Huynh v A-G (NSW) (2021) 107 NSWLR 75 where the Court of Appeal made a declaration ‘that the power conferred by s 79 of the Crimes (Appeal and Review) Act 2001 (NSW) … (b) is not available with respect to a

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conviction or sentence for an offence against a law of the Commonwealth heard and determined in a New South Wales court’: at 112 [127] (Basten JA, Bathurst CJ agreeing at 80 [1], Gleeson JA agreeing at 112 [128], Payne JA agreeing at 140 [251]). This highlights the exibility of a declaration and the utility for appellate courts to lay down rules and principles for lower courts, executive of cers or, as in this case, a judicial of cer exercising an administrative power as a persona designata. The High Court has granted special leave to appeal the Court of Appeal’s decision: A-G (Cth) v Huynh [2022] HCATrans 91.

50 See, eg, Federal Commissioner of Taxation v Futuris (2008) 237 CLR 146, 162 [47] (Gummow, Hayne, Heydon and Crennan JJ). The exibility of an injunction, unlike prohibition or mandamus, makes it an attractive remedy. For example, a mandatory injunction can restore an applicant to the position she was in prior to unlawful conduct: see Smethurst v Commissioner of Police (Cth) (2020) 280 A Crim R 356, 382 [69] (Kiefel CJ, Bell and Keane JJ).

51 Enfield City Corporation v Development Assessment Commission (2000) 199 CLR 135, 157–8 [58] (Gaudron J).

52 R v Governor (SA) (1907) 4 CLR 1497, 1512 (Barton J for the Court); Banks v Transport Regulation Board (Vic) (1968) 119 CLR 222, 241 (Barwick CJ). But see R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170, 220 (Mason J).

53 See, eg, FAI Insurances Ltd v Winneke (1982) 151 CLR 342, 351 (Gibbs J), 372 (Mason J), 404 (Wilson J), 419–20 (Brennan J); Mark Leeming, ‘Judicial Review

of Vice-Regal Decisions: South Australia v O’Shea, Its Precursors and Its Progeny’ (2015) 36(1) Adelaide Law Review 1, 11.

54 (2017) 326 FLR 122.

55 Ibid 163–4 [160]–[168] (Bathurst CJ). See also Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, 580–1 (Mason CJ, Dawson, Toohey and Gaudron JJ); Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149, 159–62, 164 (Brennan CJ, Gaudron and Gummow JJ); Greiner v Independent Commission against Corruption (1992) 28 NSWLR 125, 148 (Gleeson CJ), 193 (Priestley JA). But see City of Port Adelaide Enfield v Bingham (2014) 119 SASR 1.

56 Ombudsman Act 1974 (NSW) s 35A(1).

57 Kaldas v Barbour (n 54) 166 [177] (Bathurst CJ), 209 [360] (Basten JA, Macfarlan JA agreeing at 213 [380]).

58 Ibid 166–7 [178]–[184] (Bathurst CJ), 207–8 [354]–[357] (Basten JA, Macfarlan JA agreeing at 213 [380]).

59 Ibid 168 [187] (Bathurst CJ), 206 [349], 208 [355] (Basten JA, Macfarlan JA agreeing at 213 [380]).

60 [1911] 1 KB 410.

61 Kaldas v Barbour (n 54) 208 [355] (Basten JA, Macfarlan JA agreeing at 213 [380]).

62 Crawford and Boughey (n 7) 33. 63 Ibid. 64 Kirk (n 1) 581 [99] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

Dane Luo, The Aftermath of Kirk v Industrial Court of New South Wales

Privilege for Prejudice and Perverse Outcomes

The Proposed Religious Discrimination Bills

* Associate Professor (BA (Magna Cum Laude), JD, LLM (Hons 1), PhD), Dean of Law, Charles Darwin University School of Law.

** (BA, LLB (Hons 1), PhD, AALA), Lecturer in Law, Charles Darwin University School of Law.

Alan Berman* and Mark Brady**

The bill says this is about freedom for faith, but it’s not, it’s really about privilege for prejudice.1

In a world where, historically, religion has been the cause of much suffering and oppression,2 the rights around freedom of religious expression are often in tension with other human rights. 3 The Religious Discrimination Bill 2021 (‘RDB’), 4 the Religious Discrimination (Consequential Amendments) Bill 2021 (‘RDCA’) 5 and the Human Rights Legislation Amendment Bill 2021 (‘HRLA’) 6 (collectively, ‘the religious discrimination bills’) propose inter alia to give equal weight to rights of religious expression with other human rights, and to allow religious bodies to engage in conduct that further erodes the already limited protections for LGBTIQ+ individuals under existing anti-discrimination legislation in Australia. While this is the stated aim of the bills, in practice, it privileges freedom of religion and religious expression over other human rights, which is problematic as religion has often been a main cause underlying the abrogation of human rights throughout history.

Where freedom to discriminate is granted to a religious body, an even greater potential arises for an unfair or unjust outcome due to the power imbalance between the religious body and individual natural persons. Where that religious body is a corporation, the extended right to interfere with or abrogate human rights is being granted to a non-human entity. This paper examines some problems arising from the proposed religious discrimination bills in Australia.

I Introduction

While the intended operation of the religious discrimination bills was to protect the integrity of religious parties and organisations, the actual legal operation serves to increase the likelihood of discrimination against minorities. The potential for discrimination is exacerbated where those minorities live contrary to the ethos of religious organisations, which includes members of the LGBTIQ+ community. It has been estimated that between ‘one third and one half of the workforce in education, aged care, healthcare and welfare agencies in Australia are employed in organisations with religious af liations’,7 which are almost entirely government-funded to provide services to the general public. 8 For this reason, the religious discrimination bills may have potentially wide-ranging implications for the LGBTIQ+ community. The relevant provisions include, inter alia, cl 7 of the RDB, which broadens the de nition of a religious body9 beyond educational institutions or registered charities to include ‘any other kind of body (other than a body that engages solely or primarily in commercial activities)’.10 Clauses 9–11 of the RDB allow organisations having a publicly stated policy, grounded in religious belief, to hire and re according to

that policy.11 Clause 12 further provides the right to make a statement of belief that may be offensive or demeaning to the recipient of that statement,12 provided such a statement is in accordance with religious belief.13

II Background

In 2016, the Australia-wide LGBTIQ+ population was estimated at 651,800.14 The phenomenon of homophobia and transphobia in Australia signi cantly impairs the health and wellbeing, and dignity of those who identify with the LGBTIQ+ community.15 This impairment compromises the productivity and participation of LGBTIQ+ individuals in the workforce, and jeopardises the social, economic and cultural contribution this community makes to Australian society. Recent literature has found this group particularly vulnerable to poorer mental and physical health outcomes.16 The proposed religious discrimination bills compound the problems facing the LGBTIQ+ community and expose and reinforce societal homophobia, thereby slowing progress towards genuine substantive equality.17 It is arguable that the provisions will have unintended consequences, fostering discrimination against people who don’t t within the ethos of religious organisations. As a Member of Parliament (‘MP’), Garth Hamilton, stresses, ‘those unintended consequences should be unacceptable to a diligent House’.18

Helen Haines MP argues that this bill ‘rolls back current anti-discrimination laws in favour of a proactive right to discriminate on religious grounds’.19 Of equal concern is the effect this legislation might have on vulnerable members of the Australian community. Rebekha Sharkie MP asserts:

[T]his bill has the potential to cause a real harm to women, to people with disabilities, to people from the LGBTQIA community and to people who rely on other anti-discrimination laws to protect them from offensive, insulting, humiliating and intimidating conduct. 20

Scholars view the recent amendment to the Marriage Act 1961 (Cth) (‘Marriage Act ’) providing same-sex couples with the right to marry as the impetus for the religious discrimination bills. 21 As Douglas Ezzy et al assert:

[W]hile the right to employment discrimination may be held as central to religious freedom, LGBT+ people are also deserving of equality and respect and evidence suggests that any increase in discriminatory practices is harmful to LGBT+ people in many ways. 22

Adam Bandt MP claims the Bill is ‘a Trojan horse for hate’ and argues ‘if you’ve got existing protections under state laws, because you and your community have fought so hard for equality, those protections are going to be taken away’. 23

III Response to the Marriage Act

The primary drivers behind the religious discrimination bills are groups that view the amendments to the Marriage Act as an offence to the religious susceptibilities of their adherents. 24 The politicisation of marriage equality has been present in Australian political discourse and parliamentary debates surrounding changes to the Marriage Act stretching back to before the passage of the Marriage Amendment Bill 2004 (Cth), which entrenched the common law de nition of marriage as the ‘union of a man and a woman for life’. 25 Moreover, the Howard era reforms greatly expanded the role of religious organisations in providing social services, 26 education, health care, aged care and social welfare. 27 Senator Grieg of the Australian Democrats identi ed debates surrounding the Marriage Act as being pushed by ‘religious zealots and deeply conservative MPs’ and in the future would be viewed by history as similar to ‘the introduction of the White Australia Policy’. 28 As Yvonne Sherwood notes:

The con ict between religion and sexuality (and particularly homosexuality) has become an incendiary cultural ashpoint and a stage for the trial of competing freedoms because religious belief and (homo)sexuality are more insecure and vulnerable than age, maternity, disability, or race 29

Court of Conscience Issue 16, 2022

Elenie Poulos asserts the push for religious freedom has ‘become the dominant discursive frame for the political debate on marriage equality’.30 Moreover, these debates are often politicised by MPs as ‘position taking’31 to appeal to their constituents.32 Peter Khalil MP stated the religious discrimination bills are being used ‘for base political purposes, to try and nd or even create a problem that’s not quite there’ and cautioned ‘under this government it’s been weaponised for political purposes — in the eleventh hour, a few months out from the federal election’.33 Some scholars contend political discourse is often the location of battles for power by various groups in society. The discourse surrounding the religious discrimination bills re ects a struggle for power by Parliamentarians seeking to appeal to the alleged sensitivities of their constituents by arguing marriage equality poses a threat to religious freedom. The countervailing argument suggests that the encroachment of various rights has seen religious organisations and bodies put in a dif cult place with respect to the ability to continue to exercise their faith unimpeded by the rights of minorities. Patrick Parkinson on behalf of Freedom for Faith argues ‘[f]aith-based organisations should not have lesser rights than secular groups’.34 While this might be a legitimate fear for some sections of the community, it has been described as ‘a monumental steamrolling of our antidiscrimination laws, based on two hypotheticals in an explanatory memorandum and a lack of broad based support’.35

IV Proposed Changes

The religious discrimination bills propose a raft of changes involving Australia’s antidiscrimination legislation.36 One area subject to amendment is the insertion of a clause that provides all human rights are to be regarded equally, which according to the Explanatory Memorandum to the HRLA ‘echoes the well-established international human rights law principle that all rights must be treated with equal importance’.37 At rst blush, this might seem innocuous, but, when subject to closer scrutiny, some problems arise. The right to freedom of thought, conscience and religion is a fundamental right acknowledged throughout the world.38 However, where the right to religious expression interferes with other human rights, which it often does, it is argued that individual human rights should always take precedence. Under the new religious discrimination bills this is not the case. The religious discrimination bills prioritise freedom of religion over ‘the most basic principles underlying international human rights law: equality and nondiscrimination’.39 As Kerry Weste of Australian Lawyers for Human Rights observes:

Rather than increasing protection against discrimination in Australia, the Religious Discrimination Bill seeks to create an anti-human rights situation whereby all Australians can potentially be harmed by permissible discrimination on the basis of religious faith. 40

The Explanatory Memorandum to the RDB provides under ‘rights to equality and non-discrimination’, ‘laws should prohibit discrimination and guarantee to all persons equal and effective protection against discrimination on any ground’ including ‘sex … or other status’. 41 This suggests that the prohibition of discrimination on the basis of sexual orientation or marital status has equal standing to religious freedom. Nonetheless, the religious discrimination bills would amend various anti-discrimination legislation in Australia to ensure freedom of religious belief with respect to the provision of facilities, goods or services which are reasonably incidental to the solemnisation of marriage. In other words, any activities related to a wedding could be withheld, if such marriage con icts with religious beliefs. According to Australian Lawyers for Human Rights, ‘[t]he “right to believe” is an absolute personal right exercised internally, but there is no absolute right to manifest or act upon one’s religious belief externally so as to impact upon others.’42

Where these rights impact others, the argument for the equality of all rights transforms religion into a cudgel to visit harm upon vulnerable people. Signi cantly, the religious discrimination bills extend the exemptions in anti-discrimination legislation to religious bodies. The Australian Human Rights Commission (‘AHRC’) argues that the de nition of religious bodies in the religious discrimination bills is too broad.43 According to the AHRC, the current RDB de nes religious bodies as:

[A] religious body is one of the following kinds of bodies established in accordance with the doctrines, tenets, beliefs or teachings of a particular religion:

Alan Berman and Mark Brady, Privilege for Prejudice and Perverse Outcomes

- an educational institution,

- a registered charity (whether or not it is engaged in commercial activities)

- any other kind of body (other than a body that engages solely or primarily in commercial activities). 44

Under the religious discrimination bills, religious bodies will now be able to discriminate against individual natural persons whose religious beliefs regarding marriage con ict with those of such individuals, presumably including same-sex partners, 45 in order to ‘avoid injury to the religious susceptibilities of adherents to that religion’ where that organisation has as part of its objects a statement of belief to that effect. 46 The AHRC argues that the proposed legislation involves:

Special rules that provide a more limited scope to engage in religious discrimination … [by] religious educational institutions, hospitals, aged care facilities, accommodation providers, disability service providers and operators of camps or conference sites that provide accommodation. 47

V Non-Human Rights

Where a religious body is a corporation or a body corporate the religious discrimination bills effectively grant the right to abrogate human rights to a non-human entity. Bodies corporate are arguably amoral entities, 48 and bestowing religious ‘morality’ on them is deeply concerning where individual human rights may be threatened. The countervailing argument by Patrick Parkinson of Freedom for Faith asserts ‘it would be perfectly possible to adopt a rule of “attribution of belief” for a corporate body that has regard to the genuine beliefs of the leaders of the institution, its documents, and its conduct.’49 However, the availability of human rights should be restricted to natural persons as provided for in the Preamble to the International Covenant on Civil and Political Rights (‘ICCPR ’) which recognises that these ‘rights derive from the inherent dignity of the human person’. 50 The granting of such rights to unnatural persons in the form of a religious organisation or a body corporate represents a paradigm shift in the application of human rights and is arguably in contravention of art 18(3) of the ICCPR, which provides that ‘[f]reedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.’51

VI Other LGBTIQ+ Impacts

The amendments contained within the religious discrimination bills effectively allow religious bodies to ‘discriminate generally in the hiring of staff, regardless of whether religious belief or activity was an inherent requirement of the role’. 52 Basic principles of human rights, such as ‘privacy, personal dignity, autonomy and equality necessarily subsume within their reach’ the prohibition of discrimination on the basis of sexual orientation, particularly for sexual minorities. 53 For LGBTIQ+ people, the proposed changes in the HRLA represent a serious encroachment on human rights as many religions condemn same sex relationships, not just Judeo-Christian religions, making the impact of these amendments even greater. Currently, in some jurisdictions such as New South Wales, there are wide-ranging exemptions to anti-discrimination legislation. Carolyn Evans and Beth Gage assert such legislation allows schools or organisations associated with particular religions to be excepted from actions involving ‘education in or employment by a “private educational authority” based on the attributes of “sex” … “marital or domestic status”, “trans-gender” [and] “homosexuality”’. 54 It is important to note that the current Sex Discrimination Act 1984 (Cth) (‘SDA’) already provides the ability

for a person to discriminate against another person on the ground of the other person’s sex, sexual orientation, gender identity, marital or relationship status or pregnancy in connection with employment as a member of the staff of an educational institution that is conducted in accordance

Court of Conscience Issue 16, 2022

with the doctrines, tenets, beliefs or teachings of a particular religion or creed, if the rst-mentioned person so discriminates in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or creed. 55

The amendments contained in the religious discrimination bills will enable this right to be broadened to encompass not just individuals but also religious bodies or institutions which will be exempted from discrimination claims when acting within their reasonably held beliefs, 56 and effectively privileges discrimination based on religious belief above other basic human rights. This adds to the existing discrimination allowed under s 38 of the SDA 57 In the second reading speech to the religious discrimination bills, Anthony Albanese MP demanded the deletion of s 38(3) of the SDA ‘in full, to remove discrimination against all children, whether they’re gay, lesbian, bisexual or transgender…’. 58

Recent studies suggest such exemptions to anti-discrimination legislation have a deleterious impact on the experiences of students and teachers who identify as LGBTIQ+. 59 This leads to the inescapable conclusion that the right of religious bodies to discriminate based on sexual orientation in the religious discrimination bills enjoys primacy over the right of LGBTIQ+ individuals to personal dignity, autonomy and equality. As Peta Murphy MP notes, ‘[e]veryone deserves the opportunity to lead their best life, and to not feel that being ful lled in who they are also means being hated or despised or discriminated against’. 60

VII Conclusion

While the religious discrimination bills have not been passed in Parliament, they have potentially unintended consequences for marginalised and vulnerable groups in society, including members of the LGBTIQ+ community. The religious discrimination bills operate to negatively impact the health, wellbeing and dignity of those who identify as LGBTIQ+ individuals. Once again, this privileges prejudice and oppression under the guise of religious freedom and reinforces regressive societal homophobia. Moreover, the politicisation of religious freedom in response to long overdue changes to marriage equality, for political gain, is problematic. It undermines the participation of LGBTIQ+ individuals in the workforce and compromises the social, economic and cultural contribution this community makes to Australian society. Furthermore, where religious organisations are bodies corporate, the religious discrimination bills will effectively prioritise the rights of non-living entities over the rights of living human beings, arguably breaching Australia’s international human rights obligations under the ICCPR. In the 120 years since Federation, Australia has made giant strides towards equality, inclusivity and participation by all members within society. Despite the progress made thus far, the passing of the religious discrimination bills would represent a signi cant retrograde step on the path towards a truly egalitarian Australian community.

1 Caroline Riches, ‘What is the Religious Discrimination Bill and How Could It Affect Australia?’, SBS News (online, 18 November 2021) <https://www.sbs. com.au/news/article/what-is-the-religious-discrimination-bill-and-how-could-itaffect-australia/b5wp47cn2>.

2 See generally Ian G Hansen, Valerie W-Y Jackson and Andrew Ryder, ‘Religion and Oppression: Cross-National and Experimental Investigations’ (2018) 8(4) Religion, Brain & Behavior 369–93.

3 See Alice Donald and Erica Howard, ‘The Right to Freedom of Religion or Belief and Its Intersection with Other Rights’ (Research Paper, ILGA Europe, January 2015).

4 Religious Discrimination Bill 2021 (Cth) (‘RDB’).

5 Religious Discrimination (Consequential Amendments) Bill 2021 (Cth) (‘RDCA’).

6 Human Rights Legislation Amendment Bill 2022 (Cth) (‘HRLA’). While not passed in Parliament, these bills represent a signi cant threat to LGBTIQ+ rights by

prioritising religious belief over actual extant rights, such as the right to the opportunity to gain a living by work. See International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976) art 6(1).

7 Douglas Ezzy et al, ‘LGBT+ Equality, Religious Freedom and GovernmentFunded Faith-Based Religiously Af liated Educational Workplaces’ (2022) 57(1) Australian Journal of Social Issues 185, 186.

8 See generally Marion Maddox, God Under Howard: The Rise of the Religious Right in Australian Politics (Allen & Unwin, 2005).

9 RDB (n 4) cl 7.

10 Ibid cl 5(1) (de nition of ‘religious body’).

11 Ibid cls 9–11.

12 Ibid cl 12.

13 Ibid cl 5(1) (de nition of ‘statement of belief’).

Alan Berman and Mark Brady, Privilege for Prejudice and Perverse Outcomes

14 Tom Wilson et al, ‘What Is the Size of Australia’s Sexual Minority Population?’ (2020) 13(535) BMC Res Notes 1, 1.

15 LGBTIQA and LGBTIQ+ are the inclusive queer terms used for the non-heterosexual population and includes lesbian, gay, bisexual, transgender, intersex, queer and asexual and/or allies (LGBTIQA). For a discussion of LGBTIQA health outcomes, see Karinna Saxby, ‘The Religious Discrimination Bill Is Not Just Words: It Will Make LGBTIQ+ Australians Sick’, The Conversation (online, 26 November 2021) <https://theconversation.com/the-religious-discrimination-bill-is-not-just-wordsit-will-make-lgbtiq-australians-sick-163649>.

16 This includes suicidal ideation, suicidal attempts, destitution, homelessness and substance abuse. See Bep Uink et al, ‘The Time for Inclusive Care for Aboriginal and Torres Strait Islander LGBTQ+ Young People is Now’ (2020) 213(5) Medical Journal of Australia 201; LGBTIQ+ Health Australia, Snapshot of Mental Health and Suicide Prevention Statistics for LGBTIQ+ People (Report, October 2021) 1 <https://assets.nationbuilder.com/lgbtihealth/pages/549/attachments/ original/1648014801/24.10.21_Snapshot_of_MHSP_Statistics_for_LGBTIQ__ People_-_Revised.pdf?1648014801>.

17 This is analogous to the attitudes underpinning laws having a negative differential impact on the LGBTQ+ community, such as the non-violent homosexual advance defence in Queensland and South Australia which until recently operated as a partial defence to murder. See Alan Berman and Sher Campbell, ‘“Homosexual Advance Defence” Is a Source of Shame for Queensland’, The Sydney Morning Herald (online, 31 March 2014) <http://www. smh.com.au/queensland/homosexual-advance-defence-is-a-source-of-shamefor-queensland-20140331-35tze.html>; Alan Berman, ‘A Gay Advance Is No Excuse for Murder’, The Sydney Morning Herald (online, 27 April 2011) <http:// www.smh.com.au/federal-politics/a-gay-advance-is-no-excuse-for-murder20110426-1duyi.html>; Alan Berman, ‘Queensland’s “Homosexual Advance Defence” Puts Gay Men’s Lives at Risk’, Crikey (online, 18 March 2014) <http:// www.crikey.com.au/2014/03/18/qlds-homosexual-advance-defence-putsgay-mens-lives-at-risk/>; Alan Berman, Heather Douglas and Paul Kelly, ‘It Is Better Late than Never to Scrap the Antiquated “Gay Panic” Defence’, ON LINE Opinion (online, 28 June 2012) <http://www.onlineopinion.com.au/view. asp?article=13795>.

18 Commonwealth, Parliamentary Debates, House of Representatives, 9 February 2022, 142 (Garth Hamilton) (‘Parliamentary Debates’).

19 Ibid 139 (Helen Haines).

20 Ibid 145 (Rebekha Sharkie).

21 Ezzy et al (n 7) 187, citing Carolyn Evans, Legal Protection of Religious Freedom in Australia (Federation Press, 2012) 147–70.

22 Ezzy et al (n 7) 187.

23 Parliamentary Debates (n 18) 142 (Adam Bandt).

24 Ezzy et al (n 7) 187–8. Note that there are already several state and territory legislative provisions around discrimination: Discrimination Act 1991 (ACT); Anti-Discrimination Act 1977 (NSW); Anti-Discrimination Act 1992 (NT); Anti-Discrimination Act 1991 (Qld); Equal Opportunity Act 1984 (SA); AntiDiscrimination Act 1998 (Tas); Equal Opportunity Act 2010 (Vic); Equal Opportunity Act 1984 (WA).

25 Sandra Berns and Alan Berman, ‘Homophobia Perpetuated: The Demise of the Inquiry into the Marriage Amendment Bill 2004 (Cth)’ (2005) 30(3) Alternative Law Journal 104, 104.

26 See generally Maddox (n 8).

27 Ibid.

28 Berns and Berman (n 25) 105. See Alan Berman, ‘The Experiences of Denying Constitutional Protection to Sodomy Laws in the United States, Australia and Malaysia: You’ve Come a Long Way Baby and You Still Have a Long Way to Go!’, Oxford University Comparative Law Forum (Forum Post, 2008) (‘Experiences of Denying Constitutional Protection’). See also Elenie Poulos, ‘The Power of Belief: Religious Freedom in Australian Parliamentary Debates on Same-Sex Marriage’ (2020) 55(1) Australian Journal of Political Science 1, 10–11; Sven-Oliver Proksch and Jonathan B Slapin, ‘Institutional Foundations of Legislative Speech’ (2012) 56(3) American Journal of Political Science 520, 521.

29 Yvonne Sherwood, ‘On the Freedom of the Concepts of Religion and Belief’ in Winnifred Fallers Sullivan et al (eds), Politics of Religious Freedom (University of

Chicago Press, 2015) 29, 41 (emphasis in original). See also Ezzy et al (n 7) 188.

30 Poulos (n 28) 1.

31 Proksch and Slapin (n 28) 521.

32 Poulos (n 28) 2.

33 Parliamentary Debates (n 18) 198 (Peter Khalil).

34 Freedom for Faith, Submission No 96 to the Senate Standing Committees on Legal and Constitutional Affairs, Parliament of Australia, Inquiry into the Religious Discrimination Bill 2021 and Related Bills (December 2021) 5.

35 Parliamentary Debates (n 18) 140 (Helen Haines).

36 Explanatory Memorandum, Human Rights Legislation Amendment Bill 2022 (Cth).

37 Ibid 5.

38 International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) art 18 (‘ICCPR’).

39 Alan Berman, ‘Human Rights Law and Racial Hate Speech Regulation in Australia: Reform and Replace?’ (2015) 44(1) Georgia Journal of International & Comparative Law 45, 53.

40 ‘Religious Discrimination Bill Fundamentally Flawed and Must Be Rejected’, Australian Lawyers for Human Rights (Web Page, 4 February 2022) <https:// alhr.org.au/religious-discrimination-bill-fundamentally- awed-must-rejected/> (‘Religious Discrimination Bill Fundamentally Flawed’).

41 Explanatory Memorandum, Religious Discrimination Bill 2021 (Cth) 12, quoting ICCPR (n 38) art 26. The United Nations Human Rights Committee has previously ruled that sex should be taken to include sexual orientation: see Human Rights Committee, Views of the Human Rights Committee: Communication No 488/1992, UN Doc CCPR/C/50/D/488/1992 (31 March 1994) (‘Toonen v Australia’).

42 ‘Religious Discrimination Bill Fundamentally Flawed’ (n 40).

43 Australian Human Rights Commission, Submission No 97 to the Parliamentary Joint Committee on Human Rights, Parliament of Australia, Religious Discrimination Bill 2021 and Related Bills (21 December 2021) 38.

44 Ibid 37–8.

45 Where the expansion of the rights of religious organisations to discriminate against rights of natural persons who engage in behaviours which the speci c religion deems unacceptable or ‘sinful’ are privileged, these rights tend to run counter to international human rights legislation. In particular, article 18(3) of the ICCPR (n 38) speci cally provides: ‘[f]reedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others’.

46 Explanatory Memorandum, Religious Discrimination Bill 2021 (Cth) 17. See also, Public Interest Advocacy Centre, ‘Extremely Disappointing Reports Fail to Address Fundamental Problems in Religious Discrimination Bill’ (Media Release, 4 February 2022) <https://piac.asn.au/2022/02/04/extremely-disappointingreports-fail-to-address-fundamental-problems-in-religious-discrimination-bill/>.

47 Australian Human Rights Commission (n 43) 38.

48 James Hazelton, ‘The Amorality of Public Corporations’ (2005) 6(2) Essays in Philosophy 366, 366–84; Explanatory Memorandum, Religious Discrimination Bill 2021 (Cth) 18.

49 Freedom for Faith (n 34) 14 (emphasis in original).

50 ICCPR (n 38) Preamble (emphasis added).

51 Ibid art 18(3) (emphasis added).

52 Australian Human Rights Commission (n 43) 38.

53 Berman, ‘Experiences of Denying Constitutional Protection’ (n 28).

54 Carolyn Evans and Beth Gaze, ‘Discrimination by Religious Schools: Views from the Coal Face’ (2010) 34(2) Melbourne University Law Review 392, 397; Ezzy et al (n 7).

55 Sex Discrimination Act 1984 (Cth) s 38 (‘SDA’).

56 Explanatory Memorandum, Religious Discrimination Bill 2022 (Cth).

57 SDA (n 55) s 38.

58 Parliamentary Debates (n 18) 192 (Anthony Albanese).

59 Ezzy et al (n 7) 188.

60 Parliamentary Debates (n 18) 195 (Peta Murphy).

Court of Conscience Issue 16, 2022

Parliamentary Oversight of COVID-19 Pandemic Laws

Shifting from Emergency Law-Making to

Longer-Term Pandemic Powers

Sarah Moulds*

I Introduction

In response to the complex and potentially devastating threat posed by COVID-19, parliaments around the world transferred unprecedented powers to executive governments and their agencies,1 often with the full support of the communities they represent. Many of the COVID-19 powers relied upon in Australian states and territories were derived from emergency management laws designed for very different purposes, such as responding to bush res or oods. 2 These laws gave Ministers the power to make declarations of a ‘state of emergency’, conferring signi cant discretionary powers on senior government of cials, such as Commissioners of Police or Chief Health Of cers. When used in the context of the COVID-19 pandemic, these powers take on a different complexion and their scope and duration have extended far beyond what might have previously been contemplated as proportionate and necessary responses to emergency situations. The speci c powers used under these laws — including curfews, travel restrictions and ‘lockdowns’3 — have led to signi cant intrusions into the lives of everyday Australians (both positive and negative) that are still reverberating widely today. 4

As the nature of the COVID-19 pandemic evolved from immediate crisis into an ongoing challenge, many Australians began questioning the legitimacy and appropriateness of continuing to maintain legal ‘states of emergency’ whilst they were also being encouraged to return to ‘COVID-normal’. 5 While Australian governments responded by allowing their declarations of ‘states of emergency’ to expire, they were also simultaneously amending emergency management laws to preserve some of the signi cant legal powers previously held by executive of cers. Ironically, this was done whilst governments were promising the community more democratic oversight of the way these laws were developed and enforced. 6 This article provides a brief glimpse into the extent to which the promise of democratic oversight has been achieved with respect to emergency management laws recently amended in Victoria and South Australia and offers some thoughts on the role that parliamentary committees play in that process.

II Key Features of the COVID-19 Emergency Legal Framework in South Australia and Victoria

The full range of laws that can be utilised by state and federal governments to respond to an emergency in Australia are far too numerous and complex to outline in this brief article.7 However, it is useful to describe some of the key features of the COVID-19 emergency legal frameworks operating in Victoria and South Australia. For example, in both jurisdictions, government Ministers have been given a power

* Senior Lecturer in Law (PhD), University of South Australia.

to make a declaration of a ‘state of emergency’ or a ‘state of disaster’ in response to situations that pose a serious risk to public health. In Victoria, a declaration of a ‘state of emergency’ was made on 16 March 2020, pursuant to the Public Health and Wellbeing Act 2008 (Vic) (‘Public Health and Wellbeing Act ’). 8 A ‘state of disaster’ was declared some months later under the Emergency Management Act 1986 (Vic), giving police greater power to enforce public health directions. 9

In South Australia, a ‘major emergency’ was declared under s 23(1) of the Emergency Management Act 2004 (SA) (‘Emergency Management Act ’) 10 on 22 March 2020.11 This declaration gave a broad range of powers to the State Emergency Management Committee and the State Coordinator, who was additionally the Commissioner for Police.12 On 9 April 2020, South Australia also enacted the COVID-19 Emergency Response Act 2020 (SA), amending the Emergency Management Act and the South Australian Public Health Act 2011 (SA) (‘SA Public Health Act ’), and adding additional temporary and permanent powers to be exercised in response to a major emergency.13

In both jurisdictions, these declarations of a ‘state of emergency’ triggered the use of broad powers by executive of cers (including Chief Health Of cers, Police Commissioners and their delegates) to respond to the public health emergency. For example, these of cers were given the power to:

- detain any person or group for as long as reasonably necessary to eliminate or reduce a serious risk to public health;

- restrict the movement of any person within the relevant State;

- prevent any person or group from entering the State; and

- make any other direction considered reasonably necessary to protect public health.14

In both Victoria and South Australia, the initial declarations of a ‘state of emergency’ were extended multiple times. In Victoria, the relevant legislative provisions at the time made it clear that declarations of emergency could be extended by the Governor every four weeks but were required to be reviewed by Parliament every six months.15 Re ecting the ongoing nature of the COVID-19 pandemic, on 10 March 2021, the Victorian Parliament amended this legal framework via the Public Health and Wellbeing Amendment (State of Emergency Extension) Act 2021 (Vic) to enable longer extensions of the ‘state of emergency’ to be made.16 In October 2021, this framework was again amended by the introduction of the Public Health and Wellbeing Amendment (Pandemic Management) Bill 2021 (Vic), which is discussed in further detail below. In South Australia, the declaration of a ‘major emergency’ made under the Emergency Management Act could be extended every 14 days, potentially for an unlimited period.17 This occurred more than 26 times before eventually being replaced with the introduction of the South Australian Public Health (COVID-19) Amendment Act 2022 (SA) (‘SA Public Health Amendment Act ’) in early 2022.18

III Victorian Experience: Attempt at Improving Safeguards and Oversight with Some Weak Spots

The COVID-19 State of Emergency ended in the state of Victoria on 15 December 2021.19 Prior to this, the Victorian Government introduced amendments to the Public Health and Wellbeing Act to provide a legal framework speci c to pandemics to be contained in a new pt 8A of the Act. This was the rst pandemic speci c legislation enacted in Australia. 20 These laws are designed to be used for managing COVID-19 or any future pandemics where the Premier is satis ed on reasonable grounds that a pandemic disease or a disease that has the potential to cause a pandemic poses a serious risk to public health. 21

Under the new laws, the Minister for Health can make ‘pandemic orders’ to protect public health. These orders can include things like requiring the use of face masks to stop transmission of a virus, imposing stay at home orders, enforcing limits on public gatherings or public events, restricting entry to and exit from the state of Victoria and limiting entry to aged care facilities and hospitals. 22

Many commentators, legal experts and community organisations were critical of the proposed amendments on the grounds that they preserved many of the exceptionally broad executive powers utilised during the COVID-19 pandemic,

Sarah Moulds, Parliamentary Oversight of COVID-19 Pandemic Laws

but, this time, placed them in the hands of the Minister for Health (rather than the Chief Health Of cer). 23 Concerns were also raised that the proposed amendments included insuf cient safeguards to protect against misuse or overuse of power, or disproportionate impacts on the rights of Victorians. 24 For example, the following concerns were raised in an ‘Open Letter Against Victoria’s New Pandemic Laws’, which was signed by academics and lawyers and published in The Age newspaper on 29 October 2021:

The content of a pandemic order is unlimited — the minister can make ‘any order’ (s 165AI(1)). The minister is effectively given plenary legislative power. …

These include, among many others, orders requiring detention of persons, restricting movement, regulating public or private gatherings, requiring provision of information and requiring testing and medical examination of persons (s 165AI(2)). …

These directions can target multiple people in certain circumstances, including if the direction ‘relates to a particular activity at a particular location and is given to persons undertaking that activity (including, but not limited to, a direction to restrict movement, require movement or limit entry)’ (s 165BA(4)(b)).

Thus, an individual authorised of cer will single-handedly have the power to shut down a political protest if the of cer subjectively believes that this is ‘reasonably necessary to protect public health’.

These directions are, again, effectively unreviewable. 25

The Victorian Government attempted to respond to some of these concerns by including a requirement that the Minister must consult widely before making new directives or imposing new restrictions. 26 When making a pandemic order, the Minister for Health must also publish a statement of reasons explaining why the pandemic order was reasonably necessary to protect public health, release the Chief Health Of cer’s advice and publish an assessment of any human rights that are limited by the pandemic orders. 27 An Independent Pandemic Management Advisory Committee was also established with the power to review pandemic orders and provide advice to the Minister for Health and Parliament. 28

In response to calls from the Human Rights Law Centre and others, 29 the Victorian Parliament also set up a special non-government controlled Pandemic Declaration Accountability and Oversight Committee, with the power to recommend that the Victorian Parliament disallow directions that they consider to be without clear and express authority, retrospective in effect, inconsistent with criminal law safeguards, or incompatible with human rights standards. 30 However, it is important to note that only Parliament — with its majority of government members — can actually disallow directions made under the Act. 31

The amendments also contain speci c protections with respect to any detention ordered in response to a pandemic. 32 This includes a process of review by a Detention Appeals Of cer, as well as a right to complain to the Victorian Ombudsman if there are concerns about the lawfulness, duration or conditions of detention.

IV South Australian Experience: Minimalist Model with Limited Committee Oversight

On 24 May 2022, the South Australian State Coordinator rescinded the Major Emergency Declaration made in relation to the COVID-19 pandemic, and the SA Public Health Amendment Act came into effect. 33 The revocation of the Major Emergency Declaration was contingent upon the commencement of this Act. 34

However, unlike the Victorian experience, the South Australian amendments did not attempt to set up a new legal framework for responding to pandemics in the future. Rather, the public health amendments aimed to simply preserve or reinstate certain powers previously exercisable by the Commissioner for Police. 35 The amendments did not include a multi-stage process of committee review or

Court of Conscience Issue 16, 2022

other safeguards to ensure oversight of the new legislative powers. In fact, the South Australian provisions did not set out any clear criteria to guide the Minister when issuing new directions or imposing new restrictions and do not appear to be designed to set up a process for dealing with future changes to either the health threat, or the broader socio-economic landscape that might be around the corner. For example, when rst introduced, the South Australian amendments did not include:

- appeal rights for detention;

- any clear limits on the scope of key powers;

- any human rights related safeguards or a requirement of proportionality in the exercise of executive powers;

- a requirement to disclose public disclosure of health advice; or

- the establishment of any independent review committee or parliamentary committee to provide oversight on the use of the new powers. 36

Following criticism from the Law Society of South Australia, as well as cross bench parliamentarians from the Greens and SA-BEST, the Premier Peter Malinauskas ‘struck a deal’ to enable the amendments to pass. 37 Part of the deal was a promise to convene a COVID-19 Direction Accountability and Oversight Committee — comprised primarily of non-government MPs — to provide scrutiny of how the Public Health Act laws are applied. 38 The Committee can make recommendations to parliament that laws, directions or new restrictions under the Act be disallowed. Further changes were made to enshrine an appeals mechanism for nes and breaches issued under the Act. 39

However, it is important to note that, unlike Victoria, South Australia does not have human rights legislation, and the COVID-19 Direction Accountability and Oversight Committee’s functions do not extend to conducting a review of the rights impacts or proportionality of the directions issued under the new provisions. 40 Instead, the Committee is limited to ensuring directions made adhere to the scope of the authorising provisions, do not apply retrospectively and do not reverse criminal burdens of proof. In addition, the Committee’s disallowance and review powers do not apply to a direction that had already been made by the Commissioner of Police under the previous arrangements that ‘continue[s] in force’ thanks to the amending provisions. 41 In other words, the COVID-19 rules set out by the Commissioner of Police just prior to the enactment of the amendments continue to apply under the SA Public Health Act without being subject to parliamentary oversight or scrutiny.

V Lessons for Democratic Oversight of Longer-Term Pandemic Powers

These two experiences in the evolution of emergency lawmaking in the face of the COVID-19 pandemic hold important lessons for those interested in rebuilding relationships of trust between lawmakers, law enforcers and community members, particularly when delegating lawmaking power to executive government. They suggest that, while the executive must retain the legal and political power to act decisively in response to the COVID-19 pandemic (and any emergency), the quality of the legislative framework authorising the use of these extraordinary emergency powers is critical to ensuring there are meaningful incentives for decision-makers to focus on proportionality of impact and fairness in process, as well as effectiveness of outcome.

As a starting point, this can be supported by ensuring that parliamentary scrutiny frameworks in all Australian jurisdictions include a prescribed focus on the principle of proportionality when it comes to assessing the validity of directions or directives made under emergency management laws. Proportionality principles have been developed by the Inter-Parliamentary Union, the global organisation of national parliaments. These have been designed to assist parliaments around the world to ‘strike the right balance’ when it comes to responding effectively to emergencies and crisis and adhering to international human rights standards. These principles are:

- proclamation — sets out a clear process for declaring an emergency in legislation that includes not just an assessment by the executive

Sarah Moulds, Parliamentary Oversight of COVID-19 Pandemic Laws

about the nature of the event, but also the active involvement of the parliament in the rati cation, proclamation or extension of a state of emergency;

- communication — explains to the community the nature of the powers being invested in executive agencies and public reporting on their use and their effectiveness in countering the threat posed by the emergency;

- temporality — includes a process for ensuring that a state of emergency cannot be extended multiple times or allowed to continue for many months without being subject to parliamentary oversight and review, for example by including sunset clauses or mandating periodic, independent review; and - exceptional threat — requires an ongoing assessment of the nature of the crisis to ensure that emergency powers are invoked only in response to a real and imminent danger to the community. 42

Oversight committees — particularly parliamentary committees like those established in Victoria — play an important role in scrutinising laws containing widereaching pandemic powers against these criteria and ensuring that laws made to protect public health do not have a disproportionate impact on individual rights. 43 However, in order for these committees to provide effective scrutiny and review of executive power they must have certain minimum key features. These include:

- deliberative capacity, 44 including the power and capacity to engage meaningfully with community organisations and individuals; - access to relevant executive agencies, 45 as well as the ability to conduct private hearings to provide a ‘safe space’ for members to seek sensitive expert advice from public servants and experts; - independence from the government of the day, 46 such as a nongovernment chair or a majority of government members, to ensure scrutiny functions are conducted with rigor rather than lip-service; - a rights-based mandate, 47 such as a requirement to consider the extent to which the laws or powers comply with international human rights standards or other rule of law-based criteria; and - disallowance powers, 48 which can be invoked to stop a non-compliant direction or directive from commencing.

The Victorian Pandemic Oversight Committee has many of these features although it lacks a direct power of disallowance, which may signi cantly limit its capacity to prevent the operation of directions it considers are disproportionate or rightsabrogating in nature, particularly in the face of a strong government majority within the Parliament. The situation in South Australia is similarly problematic with the COVID-19 Direction Accountability and Oversight Committee also lacking direct disallowance powers. This weakened form of parliamentary oversight is made even worse in South Australia by the lack of human rights legislation or an effective Scrutiny of Acts and Regulations Committee, 49 and the lack of safeguards within the Emergency Management Act itself. Unlike the amended Public Health and Wellbeing Act, the South Australian laws generally do not require decision makers to have regard to the impact any emergency directions might have on the rights, dignity or well-being of vulnerable groups within the community, and there are limited public reporting requirements or other oversight mechanisms to guard against misuse or overuse of these powers in future emergency settings.

In Victoria, the Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘Charter ’) provides an alternative legal pathway for individuals to challenge the proportionality of emergency directives that impact their human rights. An example of a legal challenge to Victoria’s COVID-19 laws is Loielo v Gilles, 50 wherein Victoria’s tough curfew directions were challenged by small business owners on the grounds that the relevant directions were:

a. not in fact made by the Chief Health Of cer herself, but through the inappropriate direction of the Premier; b. unreasonable, illogical or irrational; and c. contrary to human rights recognised under the Charter

Court of Conscience Issue 16, 2022

Ginnane J rejected each of these grounds, nding that, in this case, the Chief Health Of cer had followed the appropriate procedure when issuing the directive and had regard to the human rights implications of the directive in line with her responsibilities under the Charter 51 Ginnane J also found that there was an abundance of evidence to support the conclusion that the measures adopted were ‘proportionate’ in their impact on human rights having regard to the speci c advice received by the Chief Health Of cer at that point in the pandemic. 52 It was noted that ‘the existence of other options does not mean that there were “less restrictive means reasonably available to achieve the purpose” of protecting public health’. 53 However, in making this nding, Ginnane J reminded lawmakers of the importance of strict adherence to the legal principles and safeguards set out in the Charter and Public Health and Wellbeing Act, observing that:

The importance of the person with legal authority not only making the decision, but being seen to make it, is not just a point of procedure. Far more importantly, it is about the legal principle that the person who has the legal authority to exercise extraordinary statutory power in times of emergency, in this case Giles, actually exercises it. When basic human rights such as freedom of movement are being restricted, it is particularly important that legal procedure is followed. 54

Thus, the decision still provides a salient warning to governments in that they must take care to:

a. identify the source of legislative power for each decision they make;

b. identify the speci c decision-maker who is exercising power in an emergency context; and

c. explicitly discharge the burden of demonstrating that a particular limitation is justi ed and, at least in the case of jurisdictions covered by charters of rights or human rights acts, that the relevant decision involved a proper consideration of human rights. 55

Taken together, this suggests that Australia still has a long way to go when it comes to ensuring the proportionality of its legal responses to emergencies, including with respect to the COVID-19 pandemic. While the majority of Australians may have been willing to comply with directions and requirements that have infringed their daily freedoms and impacted their livelihoods, it may be unrealistic to expect the same to happen again without greater transparency and independent oversight of the use of such wide-reaching powers. For this reason, the Australian community must continue to call for strong parliamentary oversight of COVID-19 directions — along the lines of the Victorian Pandemic Declaration Accountability and Oversight Committee but with stronger disallowance powers — as well as looking to strengthen other legal tools, including human rights legislation, to enable multiple legal pathways to challenge disproportionate or ineffective laws.56 Both pathways for scrutiny are vital to recalibrate current legal frameworks and to restore public con dence in democratic approaches to pandemic management.

1 In all states and territories except New South Wales, a public health emergency was declared under respective public health acts. Tasmania, Western Australia and South Australia also declared a ‘state of emergency’ under their respective emergency management acts. New South Wales used general powers provided by the Public Health Act 2010 (NSW). See, eg, Emergencies Act 2004 (ACT); Emergency Management Act 2013 (NT); Disaster Management Act 2003 (Qld); Emergency Management Act 2004 (SA) (‘Emergency Management Act’); Emergency Management Act 2006 (Tas); Emergency Management Act 2005 (WA). See also Andrew Edgar, ‘Law-Making in a Crisis: Commonwealth and NSW Coronavirus Regulations’,

AUSPUBLAW (Blog Post, 30 March 2020) <https://auspublaw.org/2020/03/ law-making-in-a-crisis-commonwealth-and-nsw-coronavirus-regulations/>.

2 See Holly Mclean and Ben Huf, ‘Emergency Powers, Public Health and COVID19’ (Research Paper No 2, Parliamentary Library and Information Service, Parliament of Victoria, August 2020) 5–7 <https://www.parliament.vic.gov.au/ publications/research-papers/download/36-research-papers/13962-emergencypowers-public-health-and-covid-19>.

3 See, eg, Emergency Management Act (n 1) s 25; Public Health and Wellbeing Act 2008 (Vic) ss 199–200 (‘Public Health and Wellbeing Act’). See also Anthony Gray, ‘Executive Detention in the Time of a Pandemic’ (2020) 27(4) Australian

Sarah Moulds, Parliamentary Oversight of COVID-19 Pandemic Laws

Journal of Administrative Law 198.

4 These impacts include restrictions on freedom of assembly, interference with privacy rights, denial of migrant worker’s rights, increased threats to the rights of persons with disabilities and limits on the right of women to live free from domestic violence. See UNSW Sydney, ‘Examining the Australian Government’s Response to COVID-19 and Human Rights’, Australian Human Rights Institute (Web Page) <https://www.humanrights.unsw.edu.au/news/examining-australiangovernments-response-covid-19-and-human-rights>. See also Benjamin Jones et al, ‘COVID-19 Pandemic: The Impact on Vulnerable Children and Young People in Australia’ (2020) 56(12) Journal of Paediatrics and Child Health 1851; Jane RW Fisher et al, ‘Mental Health of People in Australia in the First Month of COVID-19 Restrictions: A National Survey’ (2020) 213(10) Medical Journal of Australia 458; David Isaacs, Philip N Britton and Anne Preisz, ‘Ethical Re ections on the COVID-19 Pandemic: The Epidemiology of Panic’ (2020) 56(5) Journal of Paediatrics and Child Health 690.

5 See, eg, Sarah Moulds, ‘Pandemic and Human Rights: Watching over the Watchdogs’, InDaily (online, 22 April 2020) <https://indaily.com.au/opinion/ 2020/04/22/pandemic-and-human-rights-watching-over-the-watchdogs/>.

6 Sarah Moulds, ‘New COVID Laws a Missed Opportunity to Lock in Accountability’, InDaily (online, 5 May 2022) <https://indaily.com.au/news/ analysis/2022/05/05/new-covid-laws-a-missed-opportunity-to-lock-inaccountability/> (‘New COVID Laws a Missed Opportunity’).

7 For an overview of current laws and restrictions relating to COVID-19 in each Australian state and territory, see ‘State and Territory Information’, Australian Government (Web Page) <https://www.australia.gov.au/states>. For a summary of past COVID-19 laws, see Joseph Lelliott, Andreas Schloenhardt and Ruby Ioannou, ‘Pandemics, Punishment, and Public Health: COVID-19 and Criminal Law in Australia’ (2021) 44(1) University of New South Wales Law Journal 167; Guzyal Hill, John Garrick and Nat Barton, ‘Faultlines of Federation: Australia’s Intergovernmental Cooperation and Human Rights during the Pandemic’ (2020) 30 Journal of Transnational Law and Policy 119.

8 Public Health and Wellbeing Act (n 3) s 200. See also ‘What Does a State of Disaster Mean for Human Rights?: Aug 2020’, Victorian Equal Opportunity and Human Rights Commission (Web Page) <https://www.humanrights.vic. gov.au/resources/what-does-a-state-of-disaster-mean-for-human-rights/>; Premier of Victoria, ‘State of Emergency Declared in Victoria over COVID19’ (Media Release, 16 March 2020) <https://www.premier.vic.gov.au/ state-emergency-declared-victoria-over-covid-19>.

9 Premier of Victoria, ‘Statement on Changes to Melbourne’s Restrictions’ (Media Release, 2 August 2020) <https://www.premier.vic.gov.au/ statement-changes-melbournes-restrictions>.

10 Emergency Management Act (n 1) s 23(1).

11 ‘Emergency Management Act (2004)’ in South Australia, South Australian Government Gazette, No 13, 2 March 2022, 654 <https://governmentgazette. sa.gov.au/sites/default/ les/public/documents/gazette/2022/March/2022_013. pdf>.

12 Emergency Management Act (n 1) ss 9, 14, 15.

13 COVID-19 Emergency Response Act 2020 (SA) sch 2 pts 1, 5, as enacted. See generally Emergency Management Act (n 1); South Australian Public Health Act 2011 (SA) (‘SA Public Health Act’) ss 199–200.

14 Public Health and Wellbeing Act (n 3) ss 199–200. Similar powers are available under the Emergency Management Act (n 1) s 25.

15 Public Health and Wellbeing Act (n 3) s 198(7), as at 16 March 2020.

16 Public Health and Wellbeing Amendment (State of Emergency Extension) Act 2021 (Vic) s 3, amending Public Health and Wellbeing Act (n 3) s 198(7)(c).

17 Emergency Management Act (n 1) s 23(2).

18 South Australian Public Health (COVID-19) Amendment Act 2022 (SA) pt 2 (‘SA Public Health Amendment Act’). See also ‘Declaration and Extensions of Major Emergency Declaration under Emergency Management Act 2004’, Government of South Australia (Web Page, 30 April 2022) <https://www.legislation.sa.gov. au/legislation/CV19/superseded-declarations-of-major-emergency-under-theemergency-management-act-2004>.

19 Premier of Victoria, ‘Implementing Victoria’s New Pandemic Framework’ (Media Release, 10 December 2021) <https://www.premier.vic.gov.au/ implementing-victorias-new-pandemic-framework>.

20 ‘Victoria’s Pandemic Management Framework’, Department of Health (Web Page, 2 September 2022) <https://www.health.vic.gov.au/covid-19/ victorias-pandemic-management-framework>.

21 Public Health and Wellbeing Act (n 3) s 165AB(1).

22 Ibid s 165AI.

23 See, eg, Josh Taylor ‘Victoria’s Pandemic Powers: How Will the New Laws Work and Why Are They Controversial?’, The Guardian (online, 12 November 2021) <https://www.theguardian.com/australia-news/2021/nov/12/ victorias-pandemic-powers-how-will-the-new-laws-work-and-why-are-theycontroversial>.

24 Ibid.

25 Ross H Gillies et al, ‘An Open Letter against Victoria’s New Pandemic Laws’, The Age (online, 29 October 2021) <https://www.theage.com.au/politics/ victoria/an-open-letter-against-victoria-s-new-pandemic-laws-20211029p5948y.html>.

26 Public Health and Wellbeing Act (n 3) s 165AE(4).

27 Ibid s 165AG(1).

28 Ibid s 165CE.

29 Human Rights Law Centre, ‘Victoria’s Pandemic Law: New Human Rights and Accountability Safeguards Welcomed’ (Media Release, 16 November 2021) <https://www.hrlc.org.au/news/2021/11/16/victorias-pandemic-law-newhuman-rights-and-accountability-safeguards-welcomed>.

30 Public Health and Wellbeing Act (n 3) ss 165AS–165AV.

31 Ibid s 165AU. This section sets out the procedure for responding to a recommendation by the Pandemic Declaration Accountability and Oversight Committee that a direction be disallowed.

32 Ibid ss 165BF, 165BI.

33 ‘COVID-19 Requirements under the Public Health Act’, South Australia Health (Web Page) <https://www.sahealth.sa.gov.au/wps/wcm/connect/ public+content/sa+health+internet/conditions/infectious+diseases/covid-19/ response/covid-19+requirements+under+the+public+health+act/covid-19+requi rements+under+the+public+health+act>.

34 Moulds, ‘New COVID Laws a Missed Opportunity’ (n 6); Premier of South Australia, ‘Lifting COVID Emergency Management Declaration’ (Media Release, 4 May 2022) <https://www.premier.sa.gov.au/media-releases/newsitems-2022/lifting-covid-emergency-management-declaration>; Premier of South Australia, ‘COVID Major Emergency Declaration Ends’ (Media Release, 24 May 2022) <https://www.premier.sa.gov.au/media-releases/news-items-2022/ covid-major-emergency-declaration-ends>.

35 See, eg, SA Public Health Act (n 13) s 90C, as inserted by SA Public Health Amendment Act (n 18) s 3.

36 See, eg, Moulds, ‘New COVID Laws a Missed Opportunity’ (n 6).

37 Rory McClaren, ‘Government Strikes Deal with Greens and SA Best to End COVID-19 Emergency Declaration’, ABC News (online, 17 May 2022) <https:// www.abc.net.au/news/2022-05-17/sa-covid-management-bill-set-to-pass/101073360>.

38 Parliamentary Committees Act 1991 (SA) pt 5F (‘Parliamentary Committees Act’).

39 SA Public Health Act (n 13) s 90G, as inserted by SA Public Health Amendment Act (n 18) s 3.

40 Parliamentary Committees Act (n 38) s 15F.

41 SA Public Health Act (n 13) s 90G(2), as inserted by SA Public Health Amendment Act (n 18) s 3.

42 Inter-Parliamentary Union, ‘Human Rights and COVID-19: A Guidance Note for Parliaments’ (Guidance Note, 2020) <https://www.ipu.org/ human-rights-and-covid-19-guidance-note-parliaments>.

43 See Shawn Rajanayagam, ‘Urgent Law-Making and the Human Rights (Parliamentary Scrutiny) Act’ in Laura Grenfell and Julie Debeljak (eds), Law-Making and Human Rights (Thompson Reuters, 2020) 647.

44 For a discussion of this feature of effective scrutiny undertaken by parliamentary committees, see, eg, Dominique Dalla-Pozza ‘Promoting Deliberative Debate? The Submissions and Oral Evidence Provided to Australian Parliamentary Committees in the Creation of Counter-Terrorism Laws’ (2008) 23(1) Australasian Parliamentary Review 39.

45 This relationship between committees and the executive is explored in Sarah Moulds, ‘Forum of Choice? The Legislative Impact of the Parliamentary Joint Committee of Intelligence and Security’ (2019) 29(4) Public Law Review 277, 287–94.

46 For a discussion of this feature of effective scrutiny undertaken by parliamentary committees, see, eg, Ian Holland, ‘Senate Committees and the Legislative Process’ (Parliamentary Studies Paper No 7, 2009). See also Brian Horrigan, ‘Reforming Rights-Based Scrutiny and Interpretation of Legislation’ (2012) 37(4) Alternative Law Journal 228.

47 For a discussion of this feature of effective rights-scrutiny committees, see, eg, David Kinley and Christine Ernst, ‘Exile on Main Street: Australia’s Legislative Agenda for Human Rights’ (2012) 1 European Human Rights Law Review 58.

48 For a discussion of this feature of effective rights-scrutiny committees, see, eg, Daniel Reynolds and George Williams, ‘Evaluating the Impact of Australia’s Federal Human Rights Scrutiny Regime’ in Laura Grenfell and Julie Debeljak (eds), Law-Making and Human Rights (Thomson Reuters, 2020) 67.

49 The South Australian Parliament does not have a Scrutiny of Bills Committee or a Scrutiny of Acts and Regulations Committee or a Human Rights Committee. It does have a Legislative Review Committee with functions to scrutinise delegated legislation against rule of law criteria. However, this Committee’s functions, with respect to bills and existing legislation, is more limited: see Parliamentary Committees Act (n 38) ss 10, 12.

50 (2020) 63 VR 1.

51 Ibid 68–70 [255]–[262].

52 Ibid 67–8 [252]–[254].

53 Ibid.

54 Ibid 7–8 [10].

55 For further discussion of the implications of this decision, see Rosalind Croucher, ‘Lockdowns, Curfews and Human Rights: Unscrambling Hyperbole’ (2021) 28(3) Australian Journal of Administrative Law 137; Rosalind Croucher, ‘Emergency Powers Need Scrutiny: Ensuring Accountability through COVID-19 Lockdowns and Curfews Is a Human Rights Issue’ (2021) 95(5) Law Institute Journal 19.

56 For further discussion, see Sarah Moulds, ‘Democratic and Judicial Review of Enacted Laws in Australia: A Case Study of the Rights Scrutiny Work of Australian Parliamentary Committees’ (2021) 51 (Special Issue) Revue Générale de Droit 47, 47–89.

Court of Conscience Issue 16, 2022

A Legislative Vacuum

The Healthcare Crisis in Onshore Immigration Detention

Lucy Geddes*

I Introduction

Healthcare in Australian immigration detention is in crisis. For many years now, people in immigration detention continue to be arbitrarily refused medical treatment, leading to the exacerbation and non-diagnosis of many serious conditions. Consequently, healthcare services for people in immigration detention are not comparable to those available to the Australian community.

This paper re ects the views of the Public Interest Advocacy Centre (‘PIAC’) and is based on our work. It sets out the current mechanisms in place regarding the provision of healthcare in onshore immigration. We then set out the legislative and common law framework, focusing on the federal government’s non-delegable duty of care to the people it detains, and we highlight the absence of any legislative provisions that entrench a minimum standard of healthcare. Finally, we provide an overview of our ndings to demonstrate that healthcare in immigration detention is in crisis, as informed by our clients’ experiences.

This article shows that the Australian government is failing to provide people in immigration detention with access to the medical care and treatment they need. This is despite the fact that the federal government owes a clear common law duty of care to the people it detains.1 We argue that non-compliance is exacerbated because this duty is not re ected in legislation. One way to assist with government oversight would be to introduce a regulation that re ects that people in immigration detention are entitled to access healthcare commensurate with Australian community standards. While legislative standards are a key component of ensuring people in immigration detention obtain the healthcare they need, we recognise that arbitrary and inde nite detention is inherently harmful, and detention should be a last resort.

II Background to PIAC’s Work

PIAC launched its Asylum Seeker Rights Project in September 2016 to address serious concerns about the lack of adequate healthcare in Australia’s onshore immigration detention system. 2 PIAC does not support Australia’s system of mandatory immigration detention. This system holds people for excessive and inde nite periods of time and causes harm to their physical and mental health. We maintain that it is a system that is cruel and unnecessary.

Australia’s system of immigration detention is implemented in a way that causes harm, including the failure to ensure people in detention have access to an adequate standard of health and medical care. The focus of our work to date has been ensuring that people in immigration detention have access to the medical care and treatment they need at a standard consistent with the Australian community.

* Asylum Seeker Rights Project Lead, Public Interest Advocacy Centre.

We run strategic litigation, le complaints with agencies and oversight bodies, make submissions, engage with decision-makers and use the media to protect these basic human rights of asylum seekers and refugees. In 2018, we released In Poor Health: Health Care in Australian Immigration Detention (‘In Poor Health’), a report into the state of healthcare in Australian immigration. 3 We wrote a follow-up report in December 2021 called Healthcare Denied: Medevac and the Long Wait for Essential Medical Treatment in Australian Immigration Detention (‘Healthcare Denied ’), 4 which demonstrates that healthcare in immigration detention remains in crisis.

III An Overview of Healthcare in Australian Onshore Immigration Detention

Australian law requires all non-citizens in Australia without a valid visa, including people seeking asylum, to be detained in immigration detention. 5 As of June 2022, there are 1,398 people detained in onshore immigration detention.6 The average length of time that people are detained is currently 742 days.7 This can be contrasted with the United States of America, where the average length of stay is 55 days, and in Canada, where it is 14 days. 8 Detaining people for these extended periods is disproportionate to any legitimate aim. It is punitive in its impact and contrary to the position of the United Nations Of ce of the High Commissioner for Human Rights Working Group on Arbitrary Detention, which has consistently held that immigration detention should never be punitive, and seeking asylum is not a criminal act. 9 Regrettably, the High Court of Australia has consistently upheld the lawfulness of inde nite immigration detention.10

Healthcare services to people in onshore detention are delivered and facilitated by International Health and Medical Services (‘IHMS’), a for-pro t business contracted by the Commonwealth government.11 IHMS has delivered services in immigration and community detention since 2004.12 The most recent contract was entered into on 11 December 2014.13 The current contract is valued at $688 million for immigration detention facilities and community detention, and is due to expire on 10 December 2023.14 IHMS delivers these services as directed by the Commonwealth, according to the terms and conditions of the contract.

IV The Legal Framework: A Non-Delegable Duty of Care

As we set out in In Poor Health, the Commonwealth government has a duty of care to prevent any reasonably foreseeable harm to people detained in onshore immigration detention. This duty means that the Commonwealth is responsible for providing a range of services to them, including healthcare.15 This duty exists because people in immigration detention are detained against their will (the same as prisoners) and are especially vulnerable.16 This obligation is not in dispute. As noted by the Commonwealth Ombudsman in 2013:

Because the Department [of Immigration and Citizenship] has a high level of control over particularly vulnerable people, its duty of care to detainees is therefore a high one. It is not enough for the department to avoid acting in ways that directly cause harm to detainees. It also has a positive duty to take action to prevent harm from occurring . 17

The Australian government’s non-delegable duty of care owed to people in immigration detention, including in relation to providing adequate health services, is well-established under the common law. As to the content of this duty, in Behrooz v Secretary, Department of Immigration and Multicultural and Indigenous Affairs, 18 Gleeson CJ noted:

Harsh conditions of detention may violate the civil rights of an alien. An alien does not stand outside the protection of the civil and criminal law. If an of cer in a detention centre assaults a detainee, the of cer will be liable to prosecution, or damages. If those who manage a detention centre fail to comply with their duty of care, they may be liable in tort.19

A suite of cases con rms that Australia not only owes a non-delegable duty of care to people in immigration detention, but also that the government has historically failed to ful l this duty. 20

Lucy Geddes, A Legislative Vacuum

V The Legal Framework: A Legislative Vacuum

As we highlighted in In Poor Health, despite the common law position that the Commonwealth government owes a non-delegable duty of care to provide appropriate health services to people in immigration detention, this is not re ected in the current legislative framework. Section 273 of the Migration Act 1958 (Cth) (‘Migration Act ’) confers power on the Minister to make regulations regarding the day-today running of facilities. These regulations could provide useful legislative guidance to clarify the ‘operation and regulation of detention centres’. 21 However, none of the regulations made under the Migration Act22 provide for the ‘operation and regulation of detention centres’ in relation to the provision of adequate medical care. 23 The absence of legislative standards has been criticised by Australian courts. For example, in Mastipour v Secretary, Department of Immigration and Multicultural and Indigenous Affairs, Selway J noted: ‘What is surprising is that there are virtually no provisions, either in the [Migration] Act or in the Migration Regulations 1994 (Cth) which purport to regulate the manner and conditions of that detention’. 24 Finn J was more critical: ‘The present legislative vacuum is, in my view, potentially unfair both to those involved in the conduct of detention centres and to the detainees. … I need hardly add that this state of affairs is not conducive to ordered and principled public administration’.25 This ‘legislative vacuum’ contributes to ambiguity and non-compliance.26 Further, it stands in stark contrast to the laws of Australian states and territories that ensure people in correctional custody have a guaranteed right to reasonable medical care and treatment.27

VI A Healthcare Crisis

The provision of healthcare in Australian onshore immigration detention is failing to meet the basic needs of the people we detain. Healthcare services for people in immigration detention are not comparable to those available to the Australian community. For many years now, people in immigration detention have been arbitrarily refused or delayed medical treatment, leading to exacerbation and failure to diagnose many serious conditions. Furthermore, inde nite and arbitrary immigration detention causes mental illness and worsens existing medical conditions. 28 Prolonged immigration detention is known to have a signi cant negative impact on mental health and there are increasing numbers of asylum seekers who have been detained for increasing periods of time. 29 The Commonwealth Ombudsman has reported that ‘immigration detention in a closed environment for longer than six months has a signi cant, negative impact on mental health’. 30

The failure to create minimum legislative standards of healthcare that are commensurate with healthcare received by Australians in the community has, in our view, contributed to the healthcare crisis in onshore immigration detention. 31 Our recent casework con rms that there is chronic non-compliance with the common law duty as it pertains to the provision of healthcare. 32 These serious problems are ongoing — made even more complex by the COVID-19 pandemic — and highlight the need for urgent reform. These concerns have been echoed, over many years, by organisations such as the Australian National Audit Of ce 33 and the Australian Human Rights Commission (‘AHRC’), 34 and con rmed by the Parliamentary Joint Committee of Public Accounts and Audit. 35

In conducting our casework, we have identi ed several particularly concerning issues, including:

- arbitrary failure to provide medical treatment to refugees and asylum seekers transferred to Australia expressly to receive treatment (the ‘Medevac cohort’);

- routine denial of antiviral therapy for people detained in immigration detention living with hepatitis C; and

- arbitrary use and overuse of handcuffs and mechanical restraints, particularly when transferring detained asylum seekers with poor mental health to external medical appointments or between facilities.

VII Findings from PIAC’s Casework

A Medevac Cohort

As we set out in Healthcare Denied, it is of particular concern that many people who were transferred to Australia to access urgent medical treatment under the

Court of Conscience Issue 16, 2022

‘Medevac scheme’36 experienced signi cant delays to access healthcare once they arrived in Australia. 37 The Medevac scheme provided for asylum seekers and refugees to be transferred from Nauru and Papua New Guinea to Australia to obtain urgent medical care, in circumstances where medical treatment was not available in those places. 38 The scheme operated for eight months until December 2019. 39 Approximately 192 people were transferred to Australia during that period. 40

Everyone transferred to Australia under the Medevac scheme was arbitrarily detained in onshore immigration detention facilities upon arrival, despite the fact that many were already living in the community offshore in Nauru and Papua New Guinea where they were determined to be refugees. 41 Some people were detained in hotels where the detention conditions have been widely condemned. 42 Many in the cohort waited for months or years for the healthcare that expressly triggered their transfer to Australia. This has included excessive delay for treatment of painful and debilitating conditions including severe gum disease, chest pain and heart palpitations. 43 While most people transferred under the Medevac scheme were released just prior to the federal election in May 2021, some are still detained. 44

The combination of delayed treatment and long-term con nement has also exacerbated existing medical conditions. Since being transferred, onshore detention conditions have resulted in the deterioration of many people’s mental health to the point they have been at risk of suicide. 45 This is not limited to the Medevac cohort. For example, between 2020 and 2021, there were 195 instances of selfharm across the entire onshore immigration detention population. 46 The experience of the Medevac cohort re ects access to healthcare in immigration detention generally: in too many cases, the government is failing to provide basic medical care for people in Australian immigration detention.

B Routine Denial of Antiviral Therapy for Detainees Living with Hepatitis C Shortly after the launch of the Asylum Seeker Rights Project, PIAC was ooded with complaints from people in immigration detention living with hepatitis C who were denied curative, antiviral therapy despite it being readily available to people living with hepatitis C in the community. Over the last ve years, PIAC has ensured access to treatment for nine immigration detainee clients living with hepatitis C, including in two cases before the Federal Court of Australia and a group complaint to the Commonwealth Ombudsman. 47

As a result of PIAC’s joint advocacy with the Commonwealth Ombudsman, a breakthrough systemic outcome was achieved in 2019, when the Commonwealth agreed to provide all immigration detainees living with hepatitis C with antiviral therapy, commensurate with Australian community standards. 48 However, at the time of writing this article, and despite this commitment and ongoing advocacy, the Commonwealth government has not fully implemented its revised policy in the eld. People in immigration detention living with hepatitis C remain without treatment, which could ultimately have signi cant consequences for their health.

C Arbitrary Use of Force and the Overuse of Handcuffs

Our work with people in immigration detention demonstrates that the overuse of handcuffs is a signi cant barrier to people receiving medical treatment. 49 Our casework reveals that people in immigration detention, regardless of their security pro le, are routinely handcuffed during and in transit to medical appointments. These practices are particularly concerning given that many asylum seekers have a history of trauma and torture. 50 In many instances, the use of force and restraints in immigration detention is arbitrary, yet the impact on our clients is severe.

The experiences of our clients are consistent with the ndings made by the AHRC and the Commonwealth Ombudsman. In 2019, the AHRC published a report that highlighted the widespread use of restraints in immigration detention and recommended that practices be immediately tailored to individual circumstances and risks. 51 In 2020, the Commonwealth Ombudsman echoed these concerns and raised the growing tendency for force, including the use of handcuffs, to be used as the rst, rather than last choice in facilities. 52 The Ombudsman expressed concern that the use of restraints was being ‘exercised in a manner both inconsistent with the [Department of Home Affairs’] own procedures and possibly without legal basis’. 53

In November 2020, PIAC led a landmark litigation test case in the Federal Court of Australia challenging the lawfulness of restraints in immigration detention.54 Our client, Yasir, 55 is living with severe mental illness and the use of handcuffs

Lucy Geddes, A Legislative Vacuum

is particularly retraumatising for him. Yasir is taking action under the Disability Discrimination Act 1992 (Cth) and challenging the lawfulness of handcuffs under the Migration Act. The use of handcuffs has led to frequent disruption and delay to Yasir’s medical care. As a result of his background of torture and trauma, the use of handcuffs causes Yasir to have seizures, which has prevented him from attending specialist appointments. The case is ongoing.

VIII Conclusion: Are Legislative Standards Enough?

Our casework demonstrates the Commonwealth government’s poor treatment and inadequate provision of healthcare for people in Australian immigration detention. Consequently, people detained onshore are not receiving the same standard of healthcare that is provided to members of the Australian community. The failure to provide this care has serious consequences. It means that the Commonwealth government is not ful lling its duty of care to people in immigration detention. This is particularly appalling given that many people detained in onshore immigration detention have already experienced serious trauma before arriving in Australia. This trauma is compounded by prolonged — and, in some cases, inde nite — detention and the unsatisfactory conditions of con nement, including the use of hotels.

The absence of legislation to guarantee people in immigration detention a right to healthcare commensurate with Australian community standards is a gap that must be lled as a matter of priority. However, we recognise that legislative standards alone are not enough. Legislative change must be accompanied by government action to ensure that people in immigration detention actually receive the healthcare to which they are entitled. These steps are essential for the Commonwealth government to properly ful l its duty of care.

Finally, while the provision of adequate healthcare in detention is a basic human right, we note that Australia’s system of arbitrary and inde nite detention is inherently harmful and punitive. It continues to cause further harm and exacerbate existing medical conditions. It should only occur as a last resort.

1 Behrooz v Secretary, Department of Immigration and Multicultural and Indigenous Affairs (2004) 216 CLR 486, 499 [21] (Gleeson CJ) (‘Behrooz’).

2 Public Interest Advocacy Centre, Healthcare Denied: Medevac and the Long Wait for Essential Medical Treatment in Australian Immigration Detention (Report, December 2021) 8 <https://piac.asn.au/wp-content/uploads/2021/12/ PIAC_Medevac-Report_2021_IssueF_250122.pdf> (‘Healthcare Denied’).

3 Public Interest Advocacy Centre, In Poor Health: Health Care in Australian Immigration Detention (Report, June 2018) <https://piac.asn.au/wp-content/ uploads/2018/06/18.06.14-Asylum-Seeker-Health-Rights-Report.pdf> (‘In Poor Health’).

4 Healthcare Denied (n 2).

5 Migration Act 1958 (Cth) s 189 (‘Migration Act’).

6 Department of Home Affairs, Immigration Detention and Community Statistics Summary (Report, 30 June 2022) 4 <https://www.homeaffairs.gov.au/researchand-stats/ les/immigration-detention-statistics-30-june-2022.pdf>.

7 Ibid 12.

8 American Immigration Council, Immigration Detention in the United States by Agency (Fact Sheet, 2 January 2020) 4 <https://www.

americanimmigrationcouncil.org/research/immigration-detention-united-statesagency>; Government of Canada, ‘Annual Detention, Fiscal Year 2019 to 2020’, Canada Border Services Agency (Web Page, 8 September 2020) <https://www. cbsa-asfc.gc.ca/security-securite/detent/stat-2019-2020-eng.html>.

9 Human Rights Council Working Group on Arbitrary Detention, Opinion No 17/2021 concerning Mirand Pjetri (Australia), UN GAOR, 90th sess, UN Doc A/ HRC/WGAD/2021/17 (3–12 May 2021) 9 [78], 11 [100]. See also Human Rights Council Working Group on Arbitrary Detention, Opinion No 28/2017 concerning Abdalrahman Hussein (Australia), UN GAOR, 78th sess, UN Doc A/HRC/ WGAD/2017/28 (19–28 April 2017) 5 [32]–[33]; Human Rights Council Working Group on Arbitrary Detention, Opinion No 42/2017 concerning Mohammad Naim Amiri (Australia), UN GAOR, 79th sess, UN Doc A/HRC/WGAD/2017/42

(21–25 August 2017) 5 [28]–[30]; Human Rights Council Working Group on Arbitrary Detention, Opinion No 35/2020 concerning Jamal Talib Abdulhussein (Australia), UN GAOR, 87th sess, UN Doc AR/HRC/WGAD/2020/35 (27 April–1 May 2020) 7 [56], 10 [84], 13 [99].

10 See, eg, Al-Kateb v Godwin (2004) 219 CLR 562, 581 [33] (McHugh J), 609 [126] (Gummow J); Commonwealth v AJL20 (2021) 391 ALR 562, 578–9 [58] (Kiefel CJ, Gageler, Keane and Steward JJ), 593 [106] (Edelman J), quoting Koon Wing Lau v Calwell (1949) 80 CLR 533, 586 (Williams J).

11 Auditor-General, Australian National Audit Of ce, Delivery of Health Services in Onshore Immigration Detention: Department of Immigration and Border Protection (Report No 13, 1 September 2016) 15–16 (‘Delivery of Health Services’).

12 Ibid.

13 Ibid.

14 Details of the tender notice are available at Australian Government, ‘Contract Notice View: CN2792102-A1’, AusTender (Web Page, 27 September 2019) <https://www.tenders.gov.au/Cn/Show/d6c87cb5-2f14-4ddd-9f32f4b11089526a>. See also Delivery of Health Services (n 11) 15–16 [1.9].

15 Delivery of Health Services (n 11) 15 [1.8]; Department of Home Affairs, ‘Detention Services Manual: Safety and Security Management’ (Procedural Instruction, 10 October 2018) 5–6.

16 See, eg, In Poor Health (n 3) 15.

17 Commonwealth and Immigration Ombudsman, Suicide and Self-Harm in the Immigration Detention Network (Report No 2, May 2013) 27 [4.6] (‘Self-Harm in the Immigration Detention Network’).

18 Behrooz (n 1).

19 Ibid 499 [21].

20 See, eg, Mastipour v Secretary, Department of Immigration and Multicultural and Indigenous Affairs (2004) 259 FCR 576 (‘Mastipour’); S v Secretary, Department of Immigration and Multicultural and Indigenous Affairs (2005) 143 FCR 217 (‘S v Secretary’); SBEG v Commonwealth (2012) 208 FCR 235; MZYYR v Secretary,

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Department of Immigration and Citizenship (2012) 292 ALR 659; AS v Minister for Immigration and Border Protection [2014] VSC 593

21 Migration Act (n 5) s 273(2).

22 The primary regulation is the Migration Regulations 1994 (Cth) (‘Migration Regulations’).

23 Ibid. Regulation 5.35 does concern the medical treatment of immigration detainees but only in the context of the Secretary’s power to take certain steps in instances where ‘there will be a serious risk’ to the immigration detainee’s ‘life or health’. The regulation does not address the standard or quality of medical care more generally.

24 Mastipour (n 20) 578 [8].

25 Ibid 577 [2].

26 See In Poor Health (n 3) 5.

27 See, eg, Corrections Management Act 2007 (ACT) s 53; Correctional Services Act 2014 (NT) s 82; Corrections Act 1986 (Vic) s 47(1)(f).

28 See, eg, Irina Verhülsdonk, Mona Shahab and Marc Molendijk, ‘Prevalence of Psychiatric Disorders among Refugees and Migrants in Immigration Detention: Systematic Review with Meta-Analysis’ (2021) 7(6) BJPsych Open e204:1–8; Joint Select Committee on Australia’s Immigration Detention Network, Parliament of Australia, Final Report (Report, March 2012) ch 5, 103–33.

29 Verhülsdonk, Shahab and Molendijk (n 28) e204:1–8; Joint Select Committee on Australia’s Immigration Detention Network (n 28) ch 5, 103–33. See also Healthcare Denied (n 2); In Poor Health (n 3).

30 Self-Harm in the Immigration Detention Network (n 17) 59 [7.80]. See also Healthcare Denied (n 2); In Poor Health (n 3).

31 Healthcare Denied (n 2) 5.

32 Ibid. See also In Poor Health (n 3) 24.

33 Delivery of Health Services (n 11).

34 See, eg, Australian Human Rights Commission, Inspection of Yongah Hill Immigration Detention Centre (Report, 16–18 May 2017) <https://humanrights. gov.au/our-work/asylum-seekers-and-refugees/publications/inspection-yongahhill-immigration-detention>; Australian Human Rights Commission,, Inspection of Melbourne Immigration Transit Accommodation (Report, 9–10 March 2017) <https://humanrights.gov.au/our-work/asylum-seekers-and-refugees/publications/ inspection-melbourne-immigration-transit>; Australian Human Rights Commission, Inspection of Maribyrnong Immigration Detention Centre (Report, 7–8 March 2017) <https://humanrights.gov.au/our-work/asylum-seekers-and-refugees/publications/ inspection-maribyrnong-immigration-detention>.

35 Joint Committee of Public Accounts and Audit, Parliament of Australia, Commonwealth Procurement: Inquiry Based on Auditor-General’s Reports 1, 13 and 16 (2016-17) (Report 465, September 2017).

36 Home Affairs Legislation Amendment (Miscellaneous Measures) Act 2019 (Cth) (‘Home Affairs Legislation Amendment’).

37 Healthcare Denied (n 2) 27.

38 Migration Act (n 5) ss 198C–198J, as amended by Home Affairs Legislation Amendment (n 36) sch 6.

39 The Medevac law was repealed on 4 December 2019: Migration Amendment (Repairing Medical Transfers) Act 2019 (Cth). The repeal bill was passed following a ‘secret deal’ between Senator Jacqui Lambie and the Coalition government: see Alex Reilly, ‘Explainer: The Medevac Repeal and What it Means for Asylum Seekers on Manus Island and Nauru’, The Conversation (online, 4 December 2019) <https://theconversation.com/explainer-the-medevac-repeal-and-what-itmeans-for-asylum-seekers-on-manus-island-and-nauru-128118>.

40 Refugee Council of Australia, Seven Years On: An Overview of Australia’s Offshore Processing Policies (Report, July 2020) 13 (‘Seven Years On’); Senate Standing Committee on Legal and Constitutional Affairs, Parliament of Australia, AE20-216: Medevac Transferees (Answer to Question on Notice No 216, 2 March 2020).

41 Seven Years On (n 40) 11.

42 Healthcare Denied (n 2) 13–14.

43 Ibid 17, 29, 31.

44 See, eg, Eden Gillespie, ‘More Refugees Released from Detention in Move “Absolutely Due” to Election’, The Guardian (online, 4 April 2022) <https://www. theguardian.com/australia-news/2022/apr/04/absolutely-due-to-upcomingelection-australian-government-releases-more-refugees-from-detention>.

45 See, eg, Healthcare Denied (n 2) 17.

46 Department of Home Affairs, Annual Report 2020–2021 (Report, September 2021) 120 <https://www.homeaffairs.gov.au/reports-and-pubs/Annualreports/ home-affairs-annual-report-2020-21.pdf>.

47 In Poor Health (n 3) 27–9. See also Helen Davidson, ‘Man Waits Years for Hepatitis C Medication after Immigration Detention Transfer’, The Guardian (online, 22 October 2019) <https://www.theguardian.com/australia-news/2019/oct/22/man-waitsyears-for-hepatitis-c-medication-after-immigration-detention-transfer>.

48 ‘Hepatitis C Win’, Public Interest Advocacy Centre (Web Page, 2 June 2020) <https://piac.asn.au/project-highlight/hepatitis-c-win/>.

49 In Poor Health (n 3) 4, 24; Healthcare Denied (n 2) 20.

50 See In Poor Health (n 3) 4, 24.

51 Australian Human Rights Commission, Risk Management in Immigration Detention (Report, 2019) 29–30 <https://humanrights.gov.au/our-work/ asylum-seekers-and-refugees/publications/risk-managementimmigration-detention-2019?_ga=2.195069100.1607295212.16563897671412818163.1656389767>.

52 Commonwealth Ombudsman, Monitoring Immigration Detention: Review of the Ombudsman’s Activities in Overseeing Immigration Detention (Report, July–December 2019) 23 [6.35] <https://www.ombudsman.gov.au/__data/assets/pdf_ le/0015/111390/Six-monthly-immigration-detention-report-Jul-Dec-2019.pdf>.

53 Ibid.

54 Public Interest Advocacy Centre, ‘Test Case Challenges the Misuse of Handcuffs against Detained Asylum Seekers’ (Media Release, 24 November 2020) <https://piac.asn.au/2020/11/24/excessive-force-test-case-challengesthe-misuse-of-handcuffs-against-detained-asylum-seekers/>.

55 Not his real name.

Lucy Geddes, A Legislative Vacuum

Unaccompanied Children in Limbo in the United States’ Immigration System

Joseph Lelliott*

I Introduction

Large numbers of children travel to the United States (‘US’) unaccompanied by their parents or other caregivers and outside legal avenues of migration.1 Most of these children enter the US by crossing the US-Mexico border and originate from El Salvador, Guatemala, Honduras or Mexico. 2 Numbers have grown substantially since 2010, with particularly high levels in scal year (‘FY’) 2014 and 2019 (68,541 and 76,020 respectively), followed by a dip in 2020 due to the impacts of COVID-19, before a new record in FY 2021 of 146,925. 3 The reasons for migration by unaccompanied children are numerous and complex, with recent analyses citing factors such as corruption, poor socioeconomic and security conditions, climate change, and food insecurity in countries of origin. 4

The arrival of these children poses a signi cant challenge to authorities because of their special vulnerabilities, need for high levels of care, and, commonly, claims for international protection. In response, the US government has constructed several legal and policy frameworks to address some of the basic needs of unaccompanied children, such as education, healthcare, and accommodation. These frameworks also shield them from some of the harsher elements of US migration control. 5 This includes, for example, limitations on the placement of unaccompanied children in immigration detention. 6

Though not always realised in practice, these efforts are laudable and align broadly with calls from international bodies to better protect unaccompanied children.7 Nonetheless, aspects of such frameworks as they relate to children continue to fall far short of best practice and expose children to harm. One example of this, and the focus of this short article, is that the recognition that unaccompanied children require greater protection has not been paired with equivalent efforts to make sure that immigration processes are ef cient, nor to ensuring that pathways to secure and certain legal status are available. 8

This article explains how unaccompanied children, referred to as ‘unaccompanied alien children’ in US law, 9 are instead confronted with a vast, inef cient, and complex immigration system, in addition to — increasingly during the Trump Administration — roadblocks seemingly designed to frustrate their ability to navigate it.10 The challenges facing these unaccompanied children may be described as an ‘invisible wall’, constructed from bureaucratic hurdles and inef ciencies, gaps in laws and policies, and signi cant shortfalls in access to legal assistance and representation.11 This article observes that some of these realities have led to tens of thousands of unaccompanied children being stranded in this immigration system, ‘waiting in limbo’, for years.12 It concludes with some brief comments on the reasons for the lack of ef cient pathways to secure legal status for

* Senior Lecturer, TC Beirne School of Law, University of Queensland. Thanks go to Ms Rory McFadden for assistance with the research that informs this article, as well as the anonymous reviewers and editors for their helpful comments. As usual, all errors remain the author’s own.

unaccompanied children, and links the situation in the US to broader trends across other countries.

II Unaccompanied Children and the US Immigration System

Elizabeth Keyes describes the system for unaccompanied children in the US as one of ‘staggering complexity’; it encompasses interactions with at least six federal agencies and an ever-changing set of laws and policies that are dif cult for even experienced lawyers to fully grasp.13 By way of summary, upon entry, unaccompanied children are, for the most part, apprehended and processed by the US Border Patrol.14 If unaccompanied children are from contiguous countries (Mexico or Canada), and do not meet certain codi ed criteria set out in the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (‘TVPRA’) — in brief, that they have a clear fear of traf cking or immediate harm — they may be quickly removed from the US.15 If unaccompanied children are not from contiguous countries, or are and meet the TVPRA criteria, they are transferred to the custody of Immigration and Customs Enforcement (‘ICE’) (also within the Department of Homeland Security (‘DHS’)) and must be placed in the care of the Of ce for Refugee Resettlement (‘ORR’) under the Department of Health and Human Services (‘HHS’), within 72 hours.16 ORR’s ‘Unaccompanied Children Program’ provides for the custody and care of children transferred by Customs and Border Protection (‘CBP’) and ICE.17 Children generally spend a month on average in ORR shelters (although sometimes much longer), before they are transferred to the care of sponsors or, alternatively, placed in long-term care if sponsors cannot be found.18

The CBP places all unaccompanied children in standard removal proceedings under § 240 of the Immigration and Nationality Act of 1965 by serving them a Notice to Appear (a charging document).19 Removal proceedings are carried out by the Executive Of ce for Immigration Review (‘EOIR’), a division of the Department of Justice (‘DOJ’), which hears from the child and the US Government and determines whether the child is eligible for a type of relief from removal, including asylum. 20 These proceedings are conducted as ‘adversarial trials’ and the burden is on the child to establish their eligibility for relief,21 in many cases without legal representation (see below). 22 Decisions of the EOIR are appealable to the Board of Immigration Appeals, and potentially to federal courts.23 Concurrently, however, US Citizenship and Immigration Services (‘USCIS’) retain initial jurisdiction over asylum applications lodged by unaccompanied children (even if the application is led during removal proceedings). 24 While asylum claims are considered by USCIS, children must continue to appear at hearings scheduled in immigration courts. Successful claims before USCIS may end removal proceedings but, in other cases, removal proceedings may also nish before USCIS has completed an assessment.

The complexity of these overlapping responsibilities and competencies is compounded by the different types of immigration relief available to unaccompanied children. As noted above, asylum may be granted by USCIS or through removal proceedings, though USCIS has primary jurisdiction. Unaccompanied children may also apply to USCIS but not to the immigration courts for ‘U status’, which is available to victims of crime, or ‘T status’, which is available to victims of traf cking. 25 These statuses require complex applications and may take years to adjudicate. The number available is also capped by the US Congress at 5,000 T visas and 10,000 U visas. 26 The complexity and high threshold required for T visas limits their uptake, while the popularity and cap on U visas has led to a substantial backlog of applicants (in 2020, it could take more than 15 years to receive U status). 27 Unaccompanied children can also apply for Special Immigrant Juvenile Status, 28 which requires a custody determination by a state court with jurisdiction over the child, followed by an application to USCIS. Again, the application process is complex, the number is capped, 29 and the status has proved of limited utility for unaccompanied children. 30 Finally, many cases are ‘terminated’, which only ends the proceedings on the current charging document and does not confer any status on the unaccompanied child. 31 Unaccompanied children whose cases are terminated remain ‘unauthorised’ and without legal status in the US. 32

Despite the complexity of the system and its potentially serious consequences, most unaccompanied children are unrepresented by lawyers throughout their interactions with the asylum and immigration systems. 33 Many fail to turn up to immigration hearings that are, for most children, ‘overwhelmingly intimidating’, and

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large numbers of removal orders in absentia are made. 34 As Lenni B Benson notes, ‘[i]n the middle of all of those massive agencies, the child is rarely represented and can easily be stranded within the maelstrom of agency action and inaction’. 35 Unrepresented unaccompanied children are far more likely to be removed (around 90% of children) than those that are represented (below 40%), and only a very small number receive legal status in the US. 36

In spite of these long-standing issues, the Trump Administration took numerous steps to make it more dif cult for unaccompanied children to navigate the immigration system and erected various barriers to such children successfully resolving claims for protection. As mentioned above, these actions have been described as an ‘invisible wall’. 37 They include, inter alia, guidance resulting in the de-prioritisation of unaccompanied child cases before the EOIR, 38 dilution of child-friendly procedures in the courts, 39 attempts to modify rules that prevent the detention of unaccompanied children, 40 and information-sharing between ORR and DHS, 41 which may deter potential sponsors fearful of ICE from taking custody of children. The new information-sharing measures were subject to a 2019 study conducted by the Women’s Refugee Commission and the National Immigrant Justice Center, which found that

fewer potential sponsors — including parents, legal guardians, and close relatives such as siblings — are coming forward or completing the sponsorship vetting process out of fear that their information will be sent to CBP or ICE for immigration enforcement purposes. Those who responded to the WRC-NIJC survey also observed: a signi cant slowing in processing time of sponsorship applicants; an exponential increase in the time children spend in ORR custody; and an increased possibility of children being released to alternate, non-family members or distant connections — not necessarily their preferred or safest choice — or remaining in ORR custody for the duration of their immigration proceedings, possibly for months to years. 42

Unaccompanied children who remain in ORR care may age out and be transferred into adult detention facilities. 43 This treatment has led to at least one lawsuit. 44 The consequence of these barriers and complex procedures is prolonged uncertainty for unaccompanied children. Kathryn Clements, Diane Baird and Rebecca Campbell, in a study involving staff working with unaccompanied children in the US Midwest, observed that children’s legal status was a major source of anxiety and depression. 45 The fact remains that few unaccompanied children are granted legal status during immigration proceedings. As Sarah Pierce notes, most of those not given such status ‘ultimately remain in the United States … remaining in unauthorized status’. 46 She goes on to observe that

[i]n sum, the immigration court system has not resolved the unauthorized status of the vast majority of unaccompanied children. Most cases are still pending in the courts … the ones that ended in an order of deportation have largely been unexecuted … and of those ending in some form of relief, many children have not received lawful immigration status’. 47

Consistent with research from Australia and the United Kingdom (‘UK’), among other countries, 48 evidence strongly suggests that the limited status options open to unaccompanied children, dif culties navigating the immigration system and long periods spent in legal limbo in the US all have signi cant negative impacts on children’s wellbeing and long-term mental health. 49

III Conclusion: The Tension Between Protection and Deterrence

The procedural realities for unaccompanied children in the US are set against often explicit recognition of their needs and vulnerabilities in US law, policy, and the statements of politicians and government agencies. US laws and policies articulate ostensibly high standards for the care and support of unaccompanied children. For example, those in ORR custody are entitled to placements in the least restrictive settings possible and in their best interests. 50 As noted above, statutes provide for various status options, including asylum, T and U visas, and special immigration

Joseph Lelliott, Unaccompanied Children in Limbo in the United States’ Immigration System

juvenile status, though in practice they are often dif cult to obtain, especially for children without legal representation, making the ‘promise of protection illusory’. 51

These contradictory responses are, quite arguably, attributable to the overriding desire of the US Government to deter and control irregular migration, the animus of many in Congress towards migrants who arrive outside legal avenues and the uncomfortable place that unaccompanied children inhabit within these dynamics. As Francesca Meloni and Rachel Humphris have observed in the UK context, unaccompanied children are at once ‘vulnerable children deserving protection according to international standards’, but also ‘risky migrant youth representing a threat to national security’. 52 States, including but certainly not limited to the US, have tended to address this tension with ‘targeted policy concessions to accommodate rising internal and international concerns relating to the treatment of child migrants’, 53 such as by restricting the use of immigration detention, while still ensuring that, for many, legal status and long-term secure residence remains unattainable. This, in turn, ensures that States can maintain systems that serve the goals of migration control, whether by discouraging or preventing children from persisting with claims for international protection, deterring other children from arriving or, as it appears in some cases, stalling children’s applications for permanent stay until they reach adulthood and are easier to remove. 54

This dynamic also broadly aligns with what Vasileia Digidiki and Jacqueline Bhabha have described as a ‘blindness’ to children’s rights beyond those required for ‘basic survival’, an approach that commonly places children in situations of legal limbo;55 in effect, a ‘labyrinth of liminality’ and uncertainty. 56 Large numbers of unaccompanied children around the world are stranded in limbo where the legality of their stay in a state is precarious. 57 The deleterious effects of these situations are subject to growing attention, particularly the serious consequences for young migrants’ mental and emotional wellbeing and healthy development, and, in turn, the need for protection of the rights granted to them under international law. 58 In Australia, for instance, the United Nations Committee on the Rights of the Child expressed serious concern in 2019 for migrant children left ‘in limbo for an undetermined period of time’ with ‘inadequate mechanisms’ for monitoring their wellbeing. 59 The Australian Human Rights Commission, meanwhile, has commented on the ‘ongoing uncertainty’ and ‘negative mental health outcomes’ that ow from a precarious legal status. 60

Viable pathways to resolving the tension between the protection of migrant children and the deterrence of irregular migration often seem frustratingly out of reach. States around the world continue to strengthen border control measures and explore novel (and sometimes arguably unlawful) approaches to preventing the arrival of irregular migrants, despite calls by a host of international bodies, non-government organisations and experts to protect the rights of children caught up in these mechanisms. Nonetheless, the argument that children’s welfare must come rst must continue to be pressed, prosecuted and supported by the ongoing and tireless efforts of advocates on the ground to improve the lives and defend the interests of unaccompanied children.

1 UNICEF, Building Bridges for Every Child: Reception, Care and Services to Support Unaccompanied Children in the United States (Report, February 2021) 15.

2 William A Kandel, Unaccompanied Alien Children: An Overview (Congressional Research Service Report No R43599, 1 September 2021) 4–5.

3 Ibid 3–5; ‘Southwest Land Border Encounters’, US Customs and Border Protection (Web Page, 14 September 2022) <https://www.cbp.gov/newsroom/ stats/southwest-land-border-encounters>.

4 For an overview, see Kandel (n 2) 2.

5 See, eg, United States Department of Health and Human Services, ‘ORR Unaccompanied Children Program Policy Guide’, Office of Refugee Resettlement (Web Page, 31 October 2022) <https://www.acf.hhs.gov/orr/ policy-guidance/unaccompanied-children-program-policy-guide>; William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, Pub L No

110-457, Stat 5043 (2008) (‘TVPRA’). The Act deals with ‘unaccompanied alien children’ irrespective of whether they are victims of traf cking in person.

6 8 USC § 1232(c)(2)(A). See also Flores v Meese: Stipulated Settlement Agreement Plus Extension of Settlement, 934 F 2d 991 (CD Cal, 1997).

7 See, eg, Committee on the Rights of the Child, General Comment No 6: Treatment of Unaccompanied and Separated Children Outside Their Country of Origin, 39th sess, UN Doc CRC/GC/2005/6 (1 September 2005); Of ce of the United Nations High Commissioner for Refugees, ‘Guidelines on Policies and Procedures in Dealing with Unaccompanied Children Seeking Asylum’ (Guidelines, February 1997).

8 See Joseph Lelliott, ‘Unaccompanied Children in Limbo: The Causes and Consequences of Uncertain Legal Status’ (2022) 34(1) International Journal of Refugee Law 1, for a more detailed analysis outside of the United States (‘US’) context.

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9 The term ‘unaccompanied alien child’ is de ned in 6 USC § 279(g)(2) as being a child who: (A) has no lawful immigration status in the US; (B) has not attained 18 years of age; and (C) with respect to whom there is no parent or legal guardian in the US; or no parent or legal guardian in the US is available to provide care and physical custody.

10 See Shani M King, ‘Child Migrants and America’s Evolving Immigration Mission’ (2019) 32 Harvard Human Rights Journal 59, 59–61.

11 Amanda Holpuch, ‘How Trump’s “Invisible Wall” Policies Have Already Curbed Immigration’, The Guardian (online, 15 January 2019) <https://www.theguardian. com/us-news/2019/jan/15/invisible-wall-trump-policies-have-curbed-immigration>.

12 Catalina Amuedo-Dorantes and Thitima Puttitanun, ‘Undocumented Youth in Limbo: The Impact of America’s Immigration Enforcement Policy on Juvenile Deportations’ (2018) 31(2) Journal of Population Economics 597, 617.

13 Elizabeth Keyes, ‘Evolving Contours of Immigration Federalism: The Case of Migrant Children’ (2016) 19 Harvard Latino Law Review 33, 35.

14 Some arrive at of cial Ports of Entry and are processed by the Of ce of Field Operations (‘OFO’). Both the US Border Patrol and OFO fall within Customs and Border Protection (‘CBP’), an agency within the Department of Homeland Security (‘DHS’). See Kandel (n 2) 7.

15 8 USC §§ 1232(a)(2)(A)–(B), 1232(a)(4).

16 Ibid § 1232(b). Note that minors apprehended in the US interior are placed in Immigration and Customs Enforcement custody pending transfer to the Of ce for Refugee Resettlement.

17 Administration for Children and Families, United States Department of Health and Human Services, ‘Unaccompanied Children (UAC) Program’ (Fact Sheet, 22 January 2021)<https://www.hhs.gov/sites/default/files/uac-program-fact-sheet.pdf>.

18 Kandel (n 2) 11.

19 Immigration and Nationality Act of 1965 § 240, 8 USC § 1229a (1968).

20 Lenni B Benson and Claire R Thomas, ‘Procedure De cits in Protection for Immigrant Children in the United States’ in Mary Crock and Lenni B Benson (eds), Protecting Migrant Children: In Search of Best Practice (Edward Elgar Publishing, 2018) 334, 342–3.

21 Ibid 348.

22 Shani M King, ‘Alone and Unrepresented: A Call to Congress to Provide Counsel for Unaccompanied Minors’ (2013) 50(2) Harvard Journal on Legislation 331, 339–41.

23 8 USC § 1252. See also Benson and Thomas (n 20) 349.

24 Daniel Braaten and Claire Nolasco Braaten, ‘Children Seeking Asylum: Determinants of Asylum Claims by Unaccompanied Minors in the United States from 2013 to 2017’ (2021) 43(2) Law & Policy 97, 99–100.

25 8 USC §§ 1101(a)(15)(T)–(U).

26 Ibid §§ 1184(o)(2)–(3), 1184(p)(2)(A).

27 Abigail F Kolker and Kristin Finklea, Immigration Relief for Victims of Trafficking (Congressional Research Service Report No R46584, 28 October 2020) 6, 9.

28 8 USC § 1101(a)(27)(J).

29 Ibid § 1152.

30 See David B Thronson, ‘The Legal Treatment of Immigrant Children in the United States’ in Mary Crock and Lenni B Benson (eds), Protecting Migrant Children: In Search of Best Practice (Edward Elgar Publishing, 2018) 259, 264–7.

31 Executive Of ce for Immigration Review, ‘Executive Of ce for Immigration Review: An Agency Guide’ (Fact Sheet, US Department of Justice, December 2017) 5.

32 Annie Chen and Jennifer Gill, ‘Unaccompanied Children and the US Immigration System: Challenges and Reforms’ (2015) 68(2) Journal of International Affairs 115, 121–2.

33 Kandel (n 2) 16–17.

34 Claire Nolasco Braaten and Daniel Braaten, ‘Suffer the Little Children to Come: The Legal Rights of Unaccompanied Alien Children under United States Federal Court Jurisprudence’ (2019) 31(1) International Journal of Refugee Law 55, 82.

35 Lenni B Benson, ‘Administrative Chaos: Responding to Child Refugees: US Immigration Process in Crisis’ (2018) 75(3) Washington and Lee Law Review 1287, 1293.

36 Kandel (n 2) 16–17.

37 See, eg, Holpuch (n 11).

38 Memorandum from James R McHenry III to the Of ce of the Chief Immigration Judge, 17 January 2018 <https://www.justice.gov/eoir/page/ le/1026721/ download>. The memorandum rescinded a previous memorandum that prioritised cases of unaccompanied children: Memorandum from Of ce of the Chief Immigration Judge to All Immigration Judges, Court Administrators and all Immigration Court Staff, 31 January 2017 <https://www.justice.gov/sites/ default/ les/pages/attachments/2017/01/31/caseprocessingpriorities.pdf>.

39 Memorandum from Of ce of the Chief Immigration Judge to All Immigration Judges, Court Administrators, Attorney Advisors and Judicial Law Clerks, and all Immigration Court Staff, 20 December 2017 <https://www.justice.gov/eoir/ le/oppm17-03/download>. This memorandum rescinds and replaces previous, more child-friendly guidelines.

40 Apprehension, Processing, Care, and Custody of Alien Minors and Unaccompanied Alien Children, 84 Fed Reg 44392, 44525 (23 August 2019).

See Hillel R Smith, Immigration Detention: A Legal Overview (Congressional Research Service Report No R45915, 16 September 2019) 46–7.

41 Memorandum of Agreement regarding Consultation and Information Sharing in Unaccompanied Alien Children Matters, United States Department of Health and Human Services–United States Department of Homeland Security, signed 13 April 2018 (Memorandum of Understanding).

42 Women’s Refugee Commission and the National Immigrant Justice Center, Children as Bait: Impacts of the ORR–DHS Information-Sharing Agreement (Report, March 2019) 1.

43 Kandel (n 2). See also Emily Stewart, ‘Immigrant Children Can Be Detained, Prosecuted, and Deported once They Turn 18’, Vox (online, 21 June 2018) <https://www.vox.com/2018/6/21/17489320/unaccompanied-minors-icedetention-family-separation-18>.

44 See, eg, Ramirez v United States Immigration and Customs Enforcement, 310 F Supp 3d 7 (D DC, 2018); Americans for Immigrant Justice Inc v US Department of Homeland Security (SD Fla, No 1:19-cv-23261, commenced 5 August 2019), cited in Carolina Bolado, ‘DHS Sued For Info on Teens Transferred to ICE Custody at 18: LAW 360’, Americans for Immigration Justice (Web Page, 6 August 2019) <https://aijustice.org/2019/08/06/ dhs-sued-for-info-on-teens-transferred-to-ice-custody-at-18-law-360/>.

45 Kathryn AV Clements, Diane Baird and Rebecca Campbell, ‘“It’s Hard to Explain”: Service Providers’ Perspectives on Unaccompanied Minors’ Needs Based on Minors’ Forms of Immigration Relief’ (2020) 21(2) Journal of International Migration and Integration 633, 639.

46 Sarah Pierce, ‘Unaccompanied Child Migrants in US Communities, Immigration Court, and Schools’ (Issue Brief, Migration Policy Institute, October 2015) 2.

47 Ibid 8.

48 See, eg, Angela Nickerson et al, ‘The Association between Visa Insecurity and Mental Health, Disability and Social Engagement in Refugees Living in Australia’ (2019) 10(1) European Journal of Psychotraumatology 1; Marianne Jakobsen et al, ‘The Impact of the Asylum Process on Mental Health: A Longitudinal Study of Unaccompanied Refugee Minors in Norway’ (2017) 7(6) BMJ Open 1; Elaine Chase, ‘Transitions, Capabilities and Wellbeing: How Afghan Unaccompanied Young People Experience Becoming “Adult” in the UK and Beyond’ (2020) 46(2) Journal of Ethnic and Migration Studies 439.

49 See, eg, Thomas M Crea et al, ‘Unaccompanied Migrant Children in the United States: Predictors of Placement Stability in Long Term Foster Care’ (2017) 73 Children and Youth Services Review 93, 95; Jayshree S Jani, ‘“Reuni cation Is Not Enough”: Assessing the Needs of Unaccompanied Migrant Youth’ (2017) 98(2) Families in Society 127; Julie M Linton et al, ‘Unaccompanied Children Seeking Safe Haven: Providing Care and Supporting Well-Being of a Vulnerable Population’ (2018) 92 Children and Youth Services Review 122.

50 8 USC § 1232(c)(2).

51 Benson and Thomas (n 20) 355.

52 Francesca Meloni and Rachel Humphris, ‘Citizens of Nowhere? Paradoxes of State Parental Responsibility for Unaccompanied Migrant Children in the United Kingdom’ (2021) 34(3) Journal of Refugee Studies 3245, 3248.

53 Rachel Humphris and Nando Sigona, ‘Outsourcing the “Best Interests” of Unaccompanied Asylum-Seeking Children in the Era of Austerity’ (2019) 45(2) Journal of Ethnic and Migration Studies 312, 315.

54 See, eg, Catriona Jarvis and Syd Bolton, ‘Protecting Migrant Children in the United Kingdom’ in Mary Crock and Leni B Benson (eds), Protecting Migrant Children: In Search of Best Practice (Edward Elgar Publishing, 2018) 239, 248.

55 Vasileia Digidiki and Jacqueline Bhabha, ‘Sexual Abuse and Exploitation of Unaccompanied Migrant Children in Greece: Identifying Risk Factors and Gaps in Services during the European Migration Crisis’ (2018) 92 Children and Youth Services Review 114, 117.

56 Carola Suárez-Orozco et al, ‘Growing Up in the Shadows: The Developmental Implications of Unauthorized Status’ (2011) 81(3) Harvard Educational Review 438, 443, 450.

57 See, eg, the observations in House of Lords European Union Committee, Children in Crisis: Unaccompanied Migrant Children in the EU (2nd Report of Session 2016–17, 26 July 2016); Committee on the Rights of the Child, Report of the 2012 Day of General Discussion: The Rights of All Children in the Context of International Migration (Report, 2012) 5, 8.

58 See, eg, Lelliott (n 8); Chase (n 48).

59 Committee on the Rights of the Child, Concluding Observations on the Combined Fifth and Sixth Periodic Reports of Australia, 82nd sess, UN Doc CRC/C/AUS/CO/5–6 (1 November 2019) 13.

60 Australian Human Rights Commission, Lives on Hold: Refugees and Asylum Seekers in the ‘Legacy Caseload’ (Report, 2019) 12.

Joseph Lelliott, Unaccompanied Children in Limbo in the United States’ Immigration System

* Workplace Relations and Safety Lawyer at Holding Redlich in Sydney. Ashleigh also has a keen interest in human rights law and international politics, having completed two international exchange programs focusing on those areas while at university (including one in the United States), and having won the Australian Academy of Law Prize for her essay relating to human rights and constitutional law in 2018.

For the People or Pick the People Gerrymandering in a

Post- Roe America

Ashleigh Mills*

In the wake of the rise and, arguably, fall of former President Donald J Trump, much has been said about the state of American democracy. Once lauded and broadly understood to be a beacon of democracy in the Western world, state and federal legislatures across the United States (‘US’) are now more partisan, less representative and less accountable than ever before. The focus of this article is on the role that gerrymandering has had to play, and continues to play, in what has become an increasingly calci ed reality across the US, and the practical impact that has on the realisation of individual opportunities, rights and freedoms in 21st century America.

I Introduction

On 24 June 2022, the US Supreme Court delivered its decision in the landmark case of Dobbs v Jackson Women’s Health Organization (‘Dobbs’).1 In handing the authority to make decisions about the legality or illegality of abortion back to state legislatures, it was asserted by the majority in Dobbs 2 that their decision sought to restore the authority of the people, and speci cally women, to address the issue of abortion through the ‘processes of democratic self-government’. 3 That is, that the people were now in a position to make their own voices heard by virtue of their vote, and that this would, in turn, be re ected in the outcome of their elections, and the laws passed by their elected representatives. It is a rationale premised upon the supposition that an individual’s opinion, as borne out by their vote, has the capacity to in uence state lawmaking, and speci cally in this case, state lawmaking concerning women’s reproductive rights. That much, as this article will contend, is far from settled.

Although public attitudes about abortion are certainly complex, recent polling data suggests that 61% of Americans are in favour of abortion being legal in most or in all circumstances, with only 8% saying it should be illegal in all circumstances. 4 Despite this, following Dobbs, as many as 28 of the 50 American state legislatures have either already introduced, or are poised to shortly introduce, laws that ban or substantially restrict access to abortion within state lines. 5 This includes Ohio where a close to complete ban on abortion, including in cases of rape and incest, has been signed into law, 6 and Wisconsin where a law from 1849 — a time when only white men had the vote 7 — has been re-introduced state-wide. 8 In both cases, these laws are inconsistent with polling data, reported public opinion and do little to re ect the partisan make-up of the constituents as registered on state rolls. 9

There are multiple factors that contribute to this apparent anomaly but one is the impact of extreme gerrymandering on the composition and output of American state legislatures. When applied, it is a practice that dilutes an individual’s ability to participate in the representative democracy that is guaranteed by the US Constitution, 10

and which, in turn, is relied upon by the Supreme Court in formulating opinions such as Dobbs. While the term ‘gerrymandering’ was widely publicised as a result of the Republican ‘REDMAP’ strategy in 2010,11 it is ‘by no means a modern phenomenon’.12 As a practice, gerrymandering dates back to well before the founding of the Union, the term having rst been coined in 1812 when the Governor of Massachusetts (and later Vice President of the US), Governor Elbridge Gerry, signed into law a bill creating a district so oddly drawn that it was depicted by political cartoonists as having resembled a salamander.13 Gerrymandering is also not a practice that is con ned to Republicans. Rather, both Republicans and Democrats have engaged in gerrymandering to great and continuing effect, at almost every level of government, ever since.14

II So, What Is Gerrymandering?

In order to understand gerrymandering, it must rst be placed within the broader context of the re-districting cycle. In the US, all congressional representatives, as well as all state legislators, are elected from political divisions that are called districts.15 Each state is required to re-draw its district lines every ten years following completion of the federal census,16 and in doing so is required to ensure, so far as is practicable, that each district is as equal in population to each other district in the state.17 In this way, re-districting is intended to preserve the integrity of representative democracy, and an individual’s vote, as America’s population changes. Enter gerrymandering.

Simply put, gerrymandering is the intentional practice of drawing the boundaries of political districts to provide an advantage to a speci c party or group, which in turn has the effect of consolidating political power for that party or group to the exclusion of another.18 Typically, this will be accomplished by using techniques including those known as ‘packing’ and ‘cracking’.19 In the case of a partisan gerrymander, ‘[packing] occurs when map makers concentrate one party’s supporters into one or a few districts. This creates legislative districts with an overwhelming majority of one party’s supporters, decreasing that party’s chances of winning in other districts’. 20 Conversely, ‘[cracking] occurs when mapmakers divide an opposing party’s supporters among multiple districts so that they chronically fall short of a majority in each one and are unable to elect a candidate of their choice’. 21

The ability of states, or more precisely, those in power in a particular state, to draw their own district lines — increasingly based on high resolution population data that is able to ‘slice up their states with diabolical accuracy’, 22 and sophisticated computer programs that are able to draw and test alternative districting schemes in real time 23 — is one reason why only about 35 (or 8%) of the 435 seats in the US House of Representatives are estimated to be competitive. 24 The same applies at a state level, with, for example, an average of only 12% of state legislative seats considered to be competitive, or in play, across Midwestern states as at January 2022. 25

When politicians are able to control the way districts are ‘drawn’ it distorts traditional notions of representative democracy and replaces them with a status quo that sees politicians being able to select their voters, rather than voters being able to select their politicians. That this is acknowledged to be undesirable is also nothing new. In 1812, Elbridge’s map was decried as having ‘[de ed] the will of the people’26 and, as recently as 2019, the Supreme Court has described partisan gerrymandering as being ‘incompatible with democratic principles’. 27 Yet, across the US, the practice remains largely legal and, increasingly, beyond judicial reproach. 28

By limiting the ability to participate in the selection of their own preferred candidates, the voices of affected voters risk going unheard and unre ected in legislative outcomes at both a state and federal level. This includes in respect of abortion and other reproductive rights-based issues following Dobbs but extends to all manner of issues to which a voting populace may have con icting opinions, including opinions that relate to gun reform, drugs, immigration policy and civil rights.

As David Wells, a leading expert on reapportionment and redistricting, summarised:

Gerrymandering invariably in ates the number of safe districts. Barring a successful primary challenge, the individual incumbent is virtually assured of continued reelection for as long as he or she cares to hold

Court of Conscience Issue 16, 2022

the seat. This has the effect of insulating the legislative body against the consequences of changing sentiments and circumstances … The political … composition of the legislature has been effectively frozen for a decade, and changes are possible only within a limited, narrow range. The representation system, because it has been made less politically sensitive and therefore less responsive, has thus been rendered less able to perform its most fundamental task — the translation of public sentiment into public policy as accurately as possible. 29

Simply put, the incentive for politicians to engage with, and respond to, changing public sentiment is removed from the re-election equation in a state that is the subject of an extreme gerrymander.

III 2020 Re-Districting Cycle

The most recent re-districting cycle took place following the 2020 federal census and the districts drawn will — subject to successful legal challenge — remain in effect until the next round of re-districting following the 2030 census. 30 Of the new maps drawn by the respective states and state legislators, 72 cases across 26 states have been brought challenging the legality of those maps. 31 42 of these cases remain pending at either the trial or appellate level. 32

Primarily, these legal challenges involve allegations that maps have been deliberately drawn to lock in a partisan majority, or even a super majority, that is not re ective of the underlying voting pattern of constituents (partisan gerrymandering), 33 or that they have been drawn to intentionally dilute the voting power of minority groups in breach of §§ 2 and 5 of the Voting Rights Act of 1965 (‘Voting Rights Act ’) 34 by either limiting the number of districts in which minority groups are able to elect a candidate of their choosing, or by not increasing the number of districts where that is a viable possibility (racial gerrymandering). 35 This is notwithstanding that, for the rst time in history, communities of colour have accounted for nearly all population increase in the US in the last decade. 36

Legal challenges to state-drawn maps have been a persistent feature of American legal jurisprudence since the 1960s, when the Supreme Court began to more actively police gerrymandering practices which had the effect of marginalising ethnic minority groups. 37 In a string of cases heard throughout the 1970s, 1980s and 1990s, the Supreme Court re ned sections of the Voting Rights Act and took action to strike down a number of racial gerrymanders. 38 However, the landscape has signi cantly changed in recent times with decisions, such as the 2013 case of Shelby County v Holder (‘Shelby ’) 39 and the recent 2022 decision of Wisconsin Legislature v Wisconsin Election Commission (‘Wisconsin’), substantially curtailing the ability of plaintiffs to challenge an alleged racial gerrymander 40 In Shelby, the Court ruled § 4(b) of the Voting Rights Act — which had previously provided the mechanism through which jurisdictions with a history of discrimination in voting would be required to pass a federal pre-clearance check prior to signing new maps into law — to be unconstitutional. 41 In Wisconsin, the Court held that before adding an additional black majority district in that state, the state must first have considered whether a race-neutral alternative that did not add a further majority-black district would deny black voters equal political opportunity. 42 In other words, the Court introduced, for the rst time, a reverse onus in those proceedings. The status of racial gerrymandering claims, and the standard to be applied to their resolution, is set to be tested again in October 2022 with two claims concerning each of Louisiana’s and Alabama’s 2020 maps scheduled to be heard by the Court during that session. 43

More concerning still — in relation speci cally to partisan gerrymanders — is the Supreme Court’s 2019 ruling in Rucho 44 In that case, the Court ruled that whilst the maps drawn by North Carolinian and Maryland legislators were ‘highly partisan, by any measure’, 45 claims of partisan gerrymandering were, in fact, ‘non-justiciable’ by federal courts as they ‘present political questions beyond the reach of the federal courts’. 46 This is a materially signi cant decision as it arguably forecloses federal adjudication of the issue of partisan gerrymanders altogether. In doing so, it curtails the ability of either Democrats or Republicans to challenge maps drawn by state legislators, which are manipulated to bake in a strong partisan advantage for at least a ten-year period, at the federal level.

Ashleigh Mills, For the People or Pick the People

Without an ability to meaningfully challenge partisan gerrymanders through the federal courts, and at a point in time where the scope and formula to be applied to claims of racial gerrymandering is subject to ongoing challenge in the Supreme Court, the responsibility for instituting measures to ensure the fairness of maps drawn is increasingly falling to the states themselves, as well as to Congress. Steps taken by some states to address the issue include the creation of independent re-districting commissions intended to remove the authority for drawing legislative districts from politicians and to transfer it to independent groups (albeit in varying degrees and with varying degrees of success). 47 Further, since 2005, numerous bills aimed at limiting gerrymandering, and speci cally partisan gerrymandering, have also been introduced in Congress. 48 This includes, most recently in 2019, the introduction of the HR1 bill by the Democrats, but also extends to earlier Republicansponsored bills. 49 However, none of these bills have passed for the very same reason that partisan gerrymanders exist in the rst place — the presence of selfinterested partisans and the knowledge that gerrymandering, as a political tool, is undeniably lucrative and, in many cases, an almost assured path to incumbency. 50 That is to say, gerrymandering serves the political interests of politicians.

IV The Great Disconnect

In Dobbs, the majority cited with approval a passage from Antonin Scalia J in Planned Parenthood of Southeastern Pennsylvania v Casey 51 In it, his Honour said: ‘[the] permissibility of abortion, and the limitations, upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting’. 52 Remove the word abortion and replace it with any number of human rights and civil liberties- based issues, and it is not hard to see the problem with extreme gerrymandering. Citizens can try all they like to persuade each other and turn out to vote, yet, depending on where they live, it still may not matter. Not because they have been ‘out-voted’ by others in the ordinary democratic course (and as is contemplated by Dobbs) but because those in power, both Republican and Democrat, have engineered the outcome in advance.

In this way, the phenomenon of gerrymandering is one explanation for why both state and federal legislators continue to appear so out of step with public opinion on various rights-based issues, including, very recently, when the US was forced to confront another tragic murder of 21 people, including 19 children, in their Texas classroom in a state that does not have universal background checks. 53 Further, it is also a key reason why there has been much consternation as to what the majority opinion in Dobbs will mean for other rights-based issues, including same-sex marriage, and what state legislatures (61% of which are currently held by Republicans) 54 will make of those issues should they be returned to their legislative remit at a state level.

All of this is to say that, whilst the premise of the majority judgment in Dobbs is that it is, in fact, people who have the power, it is not at all clear in 2022 America that this is the case. For Australians, it should also serve as an invitation for us to re ect upon our most recent election experience. The 2022 Australian Federal election saw 16 crossbenchers ascend to our House of Representatives, and 18 to our Senate. 55 It resulted in 21 seats being ipped, including nine that had been previously considered ‘safe’ or ‘fairly safe’ seats, 56 and heralded in a generation of community-based, independent candidates running on issues that those candidates were told by voters matter to them — issues like anti-corruption, gender equality and action on climate. 57

Ours is a political system that is far from perfect, but without an ability for politicians to draw their own electoral maps and an independent federal Australian Electoral Commission tasked with ensuring it remains that way, it is one step closer to being ‘for the people’. Let it be an example.

Court of Conscience Issue 16, 2022

1 Dobbs v Jackson Women’s Health Organization, 142 S Ct 2228 (2022) (‘Dobbs’).

2 Ibid 2240 (Alito J for Alito, Thomas, Gorsuch, Kavanaugh and Barrett JJ).

3 Ibid 2305 (Kavanaugh J).

4 Pew Research Center, America’s Abortion Quandary (Report, 6 May 2022) 8.

5 Allison McCann and Taylor Johnston, ‘Where Abortion Could be Banned without Roe v Wade’, The New York Times (online, 3 May 2022) <https://www.nytimes. com/interactive/2022/us/abortion-bans-restrictons-roe-v-wade.html>.

6 Ohio Rev Code Ann § 2919.193 (2021), noting, however, that the ban is now blocked pending the outcome of a lawsuit led against it: see, eg, Julie Carr Smyth, ‘Judge Blocks Restrictive Ohio Abortion Law as Suit Proceeds’, The Seattle Times (online, 7 October 2022) <https://www.seattletimes.com/seattlenews/health/judge-hears-arguments-in-challenge-to-ohio-abortion-law/>.

7 ‘Elections in Wisconsin’, Wisconsin Historical Society (Web Page) <https://www. wisconsinhistory.org/Records/Article/CS1839>.

8 Wis Stat § 940.04 (2022).

9 See Pew Research Centre (n 4) 29, noting that, eg, 80% of Democratic voters poll in favour of abortion being legal in most or all cases. See also Jeffrey M Jones, ‘Democratic States Exceed Republican States by Four in 2018’, Gallup (online, 22 February 2019) <https://news.gallup.com/poll/247025/democraticstates-exceed-republican%20%20%20states%20%20%20four-2018.aspx>.

10 United States Constitution art I § 2.

11 See generally ‘Final REDMAP Report’, REDMAP: The Redistricting Majority Project (Web Page) <http://www.redistrictingmajorityproject. com/>; Julian E Zelizer, ‘The Power That Gerrymandering Has Brought to Republicans’, The Washington Post (online, 17 June 2016) <https://www. washingtonpost.com/opinions/the-power-that-gerrymandering-has-brought-torepublicans/2016/06/17/045264ae-2903-11e6-ae4a-3cdd5fe74204_story.html>.

12 Christopher Esposito, ‘Gerrymandering and the Meandering of Our Democratic Principles: Combating Partisan Gerrymandering after Rucho’ (2020) 30(1) Southern California Interdisciplinary Law Journal 195, 197.

13 Ibid 198 (noting that, whilst rst coined in 1812, the practice of gerrymandering can be traced back even earlier to 1788). See also Greg Miller, ‘The Map That Popularised the Word Gerrymander’, National Geographic (online, 6 November 2018) <https://www.nationalgeographic.com/culture/article/ map-gerrymander-redistricting-history-newspaper>.

14 See, eg, Nick Corasaniti and Reid J Epstein, ‘As Both Parties Gerrymander Furiously, State Courts Block the Way’, The New York Times (online, 4 April 2022) <https://www. nytimes.com/2022/04/02/us/politics/congressional-maps-gerrymandering-midterms. html>; Michael C Li et al, ‘Redistricting: A Mid-Cycle Assessment’ (Research Report, Brennan Center for Justice, New York University School of Law, 19 January 2022) 5.

15 ‘About Congressional Districts’, United States Census Bureau (Web Page) <https://www.census.gov/programs-surveys/geography/guidance/geo-areas/ congressional-dist.html>.

16 Justin Levitt, Brennan Center for Justice, A Citizen’s Guide to Redistricting (Report, 2010) 2, 6–7 <https://www.brennancenter.org/sites/default/ les/ analysis/a-citizens-guide-to-redistricting.pdf>.

17 See Wesberry v Sanders, 376 US 1, 7–8 (1964) (Black J).

18 John P Rafferty, ‘What Is Gerrymandering?’, Encyclopedia Britannica (Web Page) <https://www.britannica.com/story/what-is-gerrymandering>.

19 But are not con ned to those techniques. See, eg, explanation of ‘matching slices’ techniques in Adam B Cox and Richard T Holden, ‘Reconsidering Racial and Partisan Gerrymandering’ (2011) 78(2) University of Chicago Law Review 553, 567.

20 Esposito (n 12) 196 (citations omitted).

21 Ibid.

22 ‘Opinion: This is Gerrymandering at its Worst. It Doesn’t Have to be this Way’, The Washington Post (online, 4 February 2022) <https://www.washingtonpost.com/ opinions/interactive/2022/gerrymandering-examples-north-carolina-illinoisalabama-texas-how-to- x/>.

23 John N Friedman and Richard T Holden, ‘Optimal Gerrymandering: Sometimes Pack, But Never Crack’ (2008) 98(1) American Economic Review 113, 117.

24 Lee Drutman, ‘What We Lose When We Lose Competitive Congressional Districts’, FiveThirtyEight (online, 23 June 2022) <https:// vethirtyeight.com/ features/what-we-lose-when-we-lose-competitive-congressional-districts/>.

25 Tim Anderson, ‘Most State Legislative Districts Appear “Safe” of Much Partisan Competition in Years Ahead’, The Council of State Governments Midwestern Office (Web Page, 31 January 2022) <https://csgmidwest.org/2022/01/31/most-statelegislative-districts-appear-safe-of-much-partisan-competition-in-years-ahead/>.

26 Kai Hao Yang and Alexander K Zente s, ‘Gerrymandering and the Limits of Representative Democracy’ (Discussion Paper No 2328, Cowles Foundation for

Research in Economics, March 2022) 1.

27 Rucho v Common Cause, 139 S Ct 2484, 2491, 2512 (2019) (Roberts CJ for Roberts CJ, Thomas, Alito, Gorsuch and Kavanaugh JJ) (‘Rucho’).

28 See Part III.

29 Esposito (n 12) 206, quoting Douglas J Amy, ‘How Proportional Representation Would Finally Solve Our Redistricting and Gerrymandering Problems’, FairVote (Web Page) <https://fairvote.org/archives/how-proportional-representationwould- nally-solve-our-redistricting-and-gerrymandering-problems/>.

30 Levitt (n 16) 16.

31 As of 16 August 2022. See ‘Redistricting Litigation Roundup’, Brennan Center for Justice (Web Page, 12 October 2022) <https://www.brennancenter.org/ our-work/research-reports/redistricting-litigation-roundup-0>.

32 Ibid.

33 See, eg, congressional challenges: Harkenrider v Hochul (NY Sup Ct, No E2022-0116CV, commenced 3 February 2022); Republican Party of New Mexico v Oliver (NM D Ct, No D-506-CV-202200041, commenced 21 January 2022); and state legislative challenges: Moore v Lee (Tenn Ch Ct, No 22-0287IV, commenced 23 February 2022); Covert v 2021 Pennsylvania Legislative Reapportionment Commission (Pa Sup Ct, No 4 WM 2022, 16 March 2022).

34 52 USC (1965) (‘Voting Rights Act’).

35 See, eg, congressional challenges: Arkansas State Conference NAACP v Arkansas Board of Apportionment (ED Ark, No 4:21-CV-1239, commenced 29 December 2021); Common Cause v Raffensperger (ND Ga, No 1:22-CV-90, commenced 7 January 2022); Fair Maps Texas Action Committee v Abbott (WD Tex, No 1:21-CV-1038, commenced 16 November 2021); and state legislative challenges: Turtle Mountain Band of Chippewa Indians v Jaeger (D ND, No 3:22CV-22, commenced 7 February 2022); Nairne v Ardoin (MD La, No 3:22-CV-178, commenced 14 March 2022).

36 National Urban League, ‘Under Siege: The Plot to Destroy Democracy’ (Report, 2022) 13.

37 Esposito (n 12) 199.

38 Ibid.

39 Shelby County v Holder, 570 US 529 (2013) (‘Shelby’).

40 Wisconsin Legislature v Wisconsin Elections Commission, 142 S Ct 1245 (2022) (‘Wisconsin’).

41 Shelby (n 39) 530, 557 (Roberts CJ for Roberts CJ, Scalia, Kennedy, Thomas and Alito JJ, Thomas J agreeing at 557).

42 Wisconsin (n 40) 1250–1.

43 See Galmon v Ardoin (MD La, No 3:22-CV-214, commenced 30 March 2022); Robinson v Ardoin (MD La, No 3:22-CV-211, commenced 30 March 2022); Milligan v Merrill (ND Ala, No 2:21-CV-1530-AMM, commenced 16 November 2021).

44 Rucho (n 27).

45 Ibid 2491 (Roberts CJ for Roberts CJ, Thomas, Alito, Gorsuch and Kavanaugh JJ).

46 Ibid 2485, 2506–7.

47 Esposito (n 12) 211–15.

48 Ibid 208.

49 Ibid 207–8.

50 Ibid 202.

51 Planned Parenthood of Southeastern Pennsylvania v Casey, 505 US 833, 979 (1992).

52 Dobbs (n 1) 2243 (Alito J for Alito, Thomas, Gorsuch, Kavanaugh and Barrett JJ).

53 Madeline Carlisle, ‘Texas’ Gun Laws Have Become Looser in Recent Years. The Uvalde School Shooting Likely Won’t Change That’, Time Magazine (online, 25 May 2022) <https://time.com/6181405/ texas-gun-laws-uvalde-school-shooting/>.

54 ‘State Partisan Composition’, National Conference of State Legislatures (Web Page, 6 January 2022) <https://www.ncsl.org/research/about-state-legislatures/ partisan-composition.aspx>.

55 ‘House of Representatives: Final Results’, Australian Electoral Commission (Web Page, 1 July 2022) <https://results.aec.gov.au/27966/Website/ HouseDefault-27966.htm>; ‘Senate Composition’, Parliament of Australia (Web Page, 1 July 2022) <https://www.aph.gov.au/Senators_and_Members/Senators/ Senate_composition>.

56 Josh Nicholas, ‘Five Graphs That Show How Australian Voters Turned on the Coalition’, The Guardian (online, 1 June 2022) <https://www.theguardian.com/news/datablog/2022/jun/01/ ve-graphs-that-show-how-australian-voters-turned-on-the-coalition>.

57 Damien Cave, ‘How a Group of Female Independents Aim to Revive Australian Democracy’, The New York Times (online, 20 May 2022) <https://www.nytimes. com/2022/05/19/world/australia/federal-election-independents.html>.

Ashleigh Mills, For the People or Pick the People

* Professor of International Relations and Security Studies, Murdoch University. I am enormously grateful to Wafula Okumu, the editors and anonymous referees of this journal for their constructive comments on earlier drafts of this article.

Why the African Union’s Human Rights Record Remains Poor

Samuel M Makinda*

I Introduction

While marking the 40th anniversary of the African Charter on Human and Peoples’ Rights (‘African Charter ’) 1 in June 2021, the African Union (‘AU’) pointed out some of its daunting challenges in the human rights domain. It stated:

These challenges stem from the aftermath of colonial exploitation; issues of state sovereignty; weak enforcement and accountability measures, limited resources for effective implementation of the human rights standards exacerbated by con icts, corruption, competing priorities at the domestic level, and more recently, the COVID-19 pandemic. These challenges have led to a democratic governance de cit; poverty and deepening inequality; pervasive gender oppression; rising insecurity and violence; con ict over resources brought about by climate change and displacement of people as refugees and internally displaced persons; and the deprivation of the means of livelihood, human dignity and hope for African citizenry. 2

This self-assessment appears accurate and thereby obviates the need for this article to elaborate on the reasons for the AU’s poor performance. While the selfassessment partially explains why the AU’s human record is poor, it does not suggest how these challenges might be addressed. This article focuses on the challenges the AU and its members continue to face in promoting and protecting human rights in Africa and goes beyond the self-assessment report.

Despite having some of the best human rights instruments in the world and a continental body with structures dedicated to promoting these rights, Africa continues to experience declining political and civil liberties. This is why in 2022, Freedom House scored only eight African countries as ‘free.’3 Out of the 55 countries assessed, 38 percent were rated as ‘partly free’ and 42 per cent as ‘not free’. 4

This article notes that although African leaders determined in 2000 to promote and protect the human and peoples’ rights of their citizens, 5 they have fallen short on several fronts. Even before Amartya Sen published Development as Freedom, 6 African leaders recognised the correlation between development and respect for human rights and the rule of law. They adopted structures, mechanisms and processes to create an enabling environment.7 This article posits that although the protection of human rights is a global concern, African governments bear the primary responsibility for ensuring that their citizens enjoy these rights regardless of their identities. However, the international society has a responsibility, directly or indirectly, to act to mitigate human harm and suffering in Africa, particularly in

ensuring that universal norms are not violated in the name of cultural relativism. 8 Indeed, international society needs to work closely with the African human rights community to create and maintain an environment conducive to the empowerment and wellbeing of the African people. 9

The African Charter, adopted in 1981 by the AU’s predecessor, the Organization of African Unity (‘OAU’), is a unique regional human rights instrument that not only covers political, social and economic rights of both the individual and communities, but also assigns them duties.10 Notably, the African Charter states that ‘the rights and freedoms of each individual shall be exercised with due regard to the rights of others, collective security, morality and common interest’.11 Legal scholar Michael Perry made a similar point when he argued that the claim that every person ‘has “inherent dignity”’ suggests that certain things ought not to be done to human beings whatever the circumstances, and that certain things ought always to be done for them.12 It is also important that while committing to ‘promote and protect human and peoples’ rights in accordance with the African Charter on Human and Peoples’ Rights’,13 the Constitutive Act of the African Union (‘Constitutive Act ’) recognised the importance of the Universal Declaration of Human Rights 14 and other international human rights instruments.

The remaining part of this article is divided into two parts. The rst explains the AU’s human rights infrastructure and argues that the organisation has, inter alia, a mandate to promote human rights, democracy and the rule of law. The second part argues that the AU’s challenges to carry out its mandates are due largely to the inability of the African Union Commission (‘AUC’) to fully embrace a human rights culture, the failure of some African states to promote and implement human rights, and the ineffectiveness of the AU’s human rights mechanisms.15 This article argues that the best way to improve Africa’s human rights situation is to exercise shared responsibilities among the African people, their states, the AU and international society.

II The AU’s Human Rights Infrastructure

By the expression ‘human rights infrastructure’, this article refers to the parts of the AU’s Constitutive Act that relate to human rights, the African Charter, 16 the African Commission on Human and Peoples’ Rights,17 the African Court on Human and Peoples’ Rights,18 and the AUC and its departments. The human rights infrastructure also includes the African Peer Review Mechanism (‘APRM’),19 the Pan-African Parliament, 20 and other related declarations, charters, protocols and guidelines.

The AU, which comprises 55 sovereign states,21 was established in 2002 as the successor to the OAU, which had been created in May 1963.22 The OAU was a product of Pan-Africanism which, until the 1960s, was a movement of the people of African descent in the diaspora and on the African continent. From its beginning, Pan-Africanism was a human rights movement whose twin goals had a universal appeal, namely the liberation and integration of Africans.23 It once echoed the principles that underpinned the 1789 French revolution: liberty, fraternity and equality. 24 This did not mean a reproduction of these principles in the way they had been enunciated in 1780s France. To paraphrase Ali Al’Amin Mazrui, it meant pulling the French Revolution ideas ‘out of their temporal and geographical context’ and applying them to the situation in Africa. 25 The earliest demands of Pan-Africanists on the African continent were concerned with the ethic of freedom of choice and the idea of legitimate representation in political decision-making.26 In addition, several advocates of Pan-Africanism linked human rights to the attainment of peace and security. 27 For example, Kwame Nkrumah, the rst President of Ghana and the most vocal advocate of Pan-Africanism of his generation, asserted that peace around the world was indivisible, and that the ‘indivisibility of peace [was] staked upon the indivisibility of freedom’. 28 He also postulated that the attainment of ‘world peace [was] not possible without the complete liquidation of colonialism and the total liberation of peoples everywhere’. 29 Unfortunately, the OAU re-interpreted PanAfricanism as a movement of African governments rather than the African peoples’ project. Thus, the OAU arguably became a club for African dictators who suppressed human rights and acted with impunity, thereby prompting the claim that ‘[i]n much of its existence, the organization behaved like a protection club’. 30

While the AU is also based on Pan-Africanism, it was designed to take human rights, democratic governance and respect for the rule of law more seriously.

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Its establishment in 2002 was preceded by debates about the OAU’s failure to utilise the immediate post-cold war climate to promote what Thomas M Franck described as the emerging right to democratic governance. 31 Franck speci cally claimed that democracy was ‘on the way to becoming a global entitlement’. 32 This was the time when African opposition leaders and civil society activists started to push for more democratic rights. For example, in February 1990 African Heads of State met in Arusha, Tanzania to sign the African Charter for Popular Participation in Development and Transformation 33 This meeting was shortly followed by another in Uganda, initially dubbed the Kampala Forum and later referred to as the Conference on Security, Stability, Development and Cooperation in Africa, which noted that peace and development were the bases of security. 34 The Kampala Forum observed that the democratic de cit, injustice and human rights violations were causes of insecurity. 35 Accordingly, the Kampala Forum proposed new guidelines under which all African states were to be governed by strict adherence to the rule of law, popular participation, respect for human rights and fundamental freedoms. 36 The Arusha and Kampala meetings, organised by African Heads of State and Government, were among many in the 1990s that sought to replace the OAU with an organisation that was more willing to promote human rights and the rule of law. 37 The ultimate result was the creation of the AU.

Given the content of the AU’s Constitutive Act, it is plausible to argue that the organisation was designed to promote human rights, empower the African people and promote respect for the rule of law. 38 Moreover, to the extent that most African states achieved sovereign statehood through the exercise of self-determination, which is a group right recognised in international law, they owe their sovereignty to human rights. 39 This point reinforces Christian Reus-Smit’s claim that ‘[e]mergent human rights norms provided the moral resources for the delegitimation of colonialism and the subsequent proliferation of new sovereign states in the developing world, and they have played a similar role in the growth of international society since the end of the Cold War’. 40 Thus, unlike Europe where many sovereign states emerged after long interstate wars, African states arose in circumstances where human rights and sovereign statehood could be seen as two sides of the same coin.

Several parts of the AU’s Constitutive Act claim that the organisation’s aims include the promotion and protection of human rights. It stipulates that one of the AU’s objectives is to ‘encourage international cooperation, taking due account of the Charter of the United Nations and the Universal Declaration of Human Rights’. 41 It further claims that the AU’s aim is to ‘promote democratic principles and institutions, popular participation and good governance’. 42 In addition, the Constitutive Act states that another of the AU’s objectives is to ‘promote and protect human and peoples’ rights in accordance with the African Charter on Human and Peoples’ Rights and other relevant human rights instruments’. 43 In addition, the Constitutive Act gives the AU ‘the right … to intervene in a Member State … in respect of grave circumstances, namely: war crimes, genocide and crimes against humanity’. 44 These parts of the Constitutive Act give the AUC suf cient authority to empower the African people and promote human rights.

This is why this article claims that the AU was constructed on the foundation of the African people’s needs as well as universal norms and principles. Most importantly, it was expected to enhance democracy on the continent. 45 Accordingly, in 2007 the AU adopted its African Charter on Democracy, Elections and Governance (‘Charter on Democracy ’), whose objective is to promote adherence to ‘the universal values and principles of democracy and respect for human rights’. 46 The Charter on Democracy also seeks to ‘[p]romote and enhance adherence to the principle of the rule of law premised upon the respect for, and the supremacy of, the constitution and constitutional order in the political arrangements of’ member states. 47 Another key part of the Charter on Democracy is that through it, the AU commits itself to ‘[n]urture, support and consolidate good governance by promoting democratic culture and practice, building and strengthening governance institutions, and inculcating political pluralism and tolerance’. 48

In addition, the AU has adopted other instruments for the enhancement of human rights, which include the Guidelines for African Union Electoral Observation and Monitoring Missions, 49 the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa,50 and the Solemn Declaration on Gender Equality in Africa. 51 Moreover, the AU’s Agenda 2063: The Africa We Want seeks to create ‘an integrated, prosperous and peaceful Africa, driven by its own

Samuel M Makinda, Why the African Union’s Human Rights Record Remains Poor

citizens and representing a dynamic force in the international arena’. 52 Through these instruments, which were approved by African foreign ministers and endorsed by African heads of state and government at various times, the AU has been given the mandate to deliver power to the African people. 53

In the African Union Non-Aggression and Common Defence Pact, the AU places human rights at the centre of human security, which it de nes as the

security of the individual in terms of the satisfaction of his/her basic needs. It also includes the creation of the social, economic, political, environmental and cultural conditions necessary for the survival and dignity of the individual, the protection of and respect for human rights, good governance and the guarantee for each individual of opportunities and choices for his/her full development. 54

This pact demonstrates that the AU has the mandate to promote humanitarianism, which could be described as ‘a practice of caring for or assisting other human beings in circumstances that may be socially, politically, and economically untenable’. 55

The AU also operates through several organs that have the responsibility to promote human rights. The AUC, which is the administrative arm of the organisation, has the mandate to enhance human rights through various organs, including its Department of Political Affairs. 56 The Peace and Security Council (‘PSC’), which was established in 2004, is also partly based on respect for human rights. 57 Apart from the PSC and its af liates, there is the African Peace and Security Architecture whose organs include the Pan-African Parliament, 58 and the African Commission on Human and Peoples’ Rights.

There are also other key legal instruments within the AU that guide the implementation of human rights. For example, the Protocol Relating to the Establishment of the Peace and Security Council of the African Union (‘PSC Protocol ’) 59 identies several mechanisms that underpin the AU human rights agenda, including the Conference on Security, Stability, Development and Cooperation in Africa Solemn Declaration 60 and the Declaration on the Framework for an OAU Response to Unconstitutional Changes of Government 61 The PSC Protocol also acknowledges the need to work in ‘close cooperation with the African Commission on Human and Peoples’ Rights in all matters relevant to its objectives and mandate’. 62

Apart from the AUC, there are at least four instruments that play key roles in promoting, monitoring and implementing human rights. The rst is the African Charter. Its Protocol was adopted in Nairobi, Kenya in June 1981 and came into force in 1987. The purpose of the African Charter is to promote and protect human rights and basic freedoms in Africa. 63 The second instrument is the African Commission on Human and Peoples’ Rights, which was established in 1987. Its main function is to monitor the implementation of the African Charter 64 The third instrument is the African Court. The protocol establishing the African Court was adopted in Burkina Faso in June 1998 and the court itself came into existence in 2004 after more than 15 member states had rati ed it. 65 This African Court is the judicial arm of the AU and one of three regional human rights courts — including the European Court of Human Rights and the Inter-American Court of Human Rights. 66 Its mandate is to complement and reinforce the work of the African Commission on Human and Peoples’ Rights. 67 The fourth instrument is the APRM, which was created in 2003 for the purpose of monitoring the participating AU members in four areas which are crucial for the empowerment of the African people: democracy and political governance; economic governance and management; corporate governance; and socio-economic development. 68

From the above, it may be concluded that the AU inherited or created various instruments through which it could help member states and the African people enjoy human rights and democracy. Why then does its human rights record remain poor?

III Challenges of the AU and African Governments to Promote and Protect Human Rights

The challenges of the AU in its efforts to promote, protect and enhance human rights in Africa are due to many factors, including: corruption within the AUC; the ineffectiveness of the AU instruments that have the mandate to promote and

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enhance human rights; and the resistance of some African states. Addressing these challenges is likely to improve the human rights situation in Africa, but it may not necessarily mean the elimination of all impediments to human rights in individual African countries.

A 2007 AU High Level Panel, chaired by respected Nigerian economist Adebayo Adedeji, concluded that the AUC had been handicapped at three levels: ‘First, there is lack of clarity in the set up of its leadership. Second, its activities are spread too widely for it to be effective in playing the role envisaged for it; and thirdly, the management needs to be improved.’69 The Panel claimed that the AUC lacked a professional and collegiate culture and operated in an ‘unhealthy organisational culture’.70 The Panel also said the AUC had ‘inadequate in-house leadership and weak management systems’ that ‘have resulted in poor supervision in the commission, within and between departments, and low morale among staff’.71 The Panel observed that the AUC had ‘ineffective accountability mechanisms’, which were ‘central to the disempowerment of and demoralization among staff’.72 Accordingly, it recommended immediate action to improve the situation, but no action was taken until January 2013, when the AU Executive Council (composed of African foreign ministers) acted. The Executive Council requested the AUC chairperson ‘to take the necessary measures to modernise and strengthen the Commission in line with international best practices, and performance standards, to achieve a high level of Excellence, Accountability, Transparency, Integrity, Professionalism, Gender Equity and Respect for Diversity’.73 The AUC has not carried out these measures satisfactorily.

As a result, the AUC is still plagued by corruption and a leadership malaise characterised by mismanagement of funds, a lack of accountability, nepotism in the appointment of key personnel, sexual harassment, a breakdown in communication among the top leaders and the alienation of civil society groups.74 An audit of the AUC by PricewaterhouseCoopers over the period 2012 to 2018 at the request of the AU Executive Council found that cronyism, contract anomalies and many malpractices continue.75 It found that 71% of the 3,328 staff members were on short-term contracts and 382 xed-term staff contracts were renewed at least once beyond the stipulated terms.76 Thus, despite high-level investigations, corruption, human rights abuses and other problems have continued to hamper the AUC’s ability to discharge its human rights responsibilities. Given this situation, it is not surprising that the AUC has done little or nothing in the face of military coups or unconstitutional changes of government as happened in Chad in April 2021,77 Mali in May 2021,78 Guinea in September 2021,79 Sudan in October 202180 and Burkina Faso in January and September 2022. 81 This is partly due to the AUC’s failure to implement the AU’s project on ‘silencing the guns’. 82 The AU started the ‘silencing the guns by 2020’ project in 2013 as an effort to create a more peaceful Africa that would, in turn, concentrate on development. 83 Wafula Okumu, Andrews Atta-Asamoah and Roba D Sharamo have argued that obstacles to the successful pursuit of this project include ‘institutional challenges resulting from misalignment between existing structures and the urgency of the goals’, 84 ‘the lack of conceptual coherence due to differences in interpretations’ of the project, 85 and the lack of clarity ‘even among the policy actors who are meant to champion’ the project’s implementation. 86 It is these obstacles, in the face of other problems, that have prompted this call for the AUC to be radically transformed if the African people are to be truly empowered by the AU.

The other AU human rights-related institutions that would bene t from a wider transformation include the African Charter, the African Commission on Human and Peoples’ Rights and the African Court. These three institutions have what they need in order to empower the African people, but they face enormous political, legal and nancial challenges. While the functions of the African Charter and the African Commission on Human and Peoples’ Rights are clear, they lack enforcement mechanisms and remedies. If they were to succeed in empowering the African people, they would need to be given levers to encourage or compel African states to comply with their rulings. They also need to be allowed the freedom to make bold decisions. Moreover, African people would not be empowered if the international society looked on helplessly, as it did in 2006, when the AU Assembly effectively altered the report of the African Commission on Human and Peoples’ Rights by authorising, ‘in accordance with Article 59 of the African Charter ’, ‘the publication of the 19th Activity Report of the African Commission on Human

Samuel M Makinda, Why the African Union’s Human Rights Record Remains Poor

and Peoples’ Rights … and its annexes, except for those containing the Resolutions on Eritrea, Ethiopia, the Sudan, Uganda and Zimbabwe’. 87 This was a case of the AU Assembly preferencing the reputations of African dictators over the alleviation of human rights abuses.

The 2007 High Level Panel was dismayed to nd that the African Commission on Human and Peoples’ Rights faced many problems, including the refusal of member states to ‘grant [it] authorisation to undertake missions in their countries even though all Member States have rati ed the [ African] Charter.’88 The Panel also claimed that ‘the bulk of Member States do not submit their mandatory reports’, and that some of them refused ‘to comply with recommendations of the’ African Commission on Human and Peoples’ Rights. 89 The protocol on the African Commission on Human and Peoples’ Rights needs to be amended to give it the power it requires to carry out its duties.

The successes of the African Court have given the African people some hope, but it also faces constraints. Although rationae personae (the entitlement to submit cases to the court) is mainly given to the AUC, state parties and the Regional Economic Commissions, optional powers are also extended to individuals and non-government organisations with observer status in the AUC. 90 No appeals are allowed, but under certain circumstances, the court may review cases on which it has ruled. 91 One of the constraints the court faces is resistance from states that deny their citizens access or refuse to comply with its rulings. 92

While the frustrations of the African Court and other instruments could be blamed on what might be perceived as the strength of state sovereignty in Africa, the problem lies in some African states’ failure to discharge their responsibilities.93 According to Francis M Deng and other analysts, ‘sovereignty carries with it certain responsibilities for which governments must be held accountable’. 94 They claim that ‘by effectively discharging its responsibilities for good governance, a state can legitimately claim protection for its national sovereignty’. 95 Indeed, sovereignty permits states to enter into agreements with other international actors and, once entered into, these agreements are supposed to be honoured ( pacta sunt servanda). As African states designed the AU and its mandate, they are expected to respect it if it is acting legitimately. Moreover, AU protocols, declarations and other instruments have to be approved by African Foreign Ministers and Heads of State and Government before they come into force.96 If an African state fails to uphold its commitments, it effectively forfeits its claim to be respected as a sovereign entity.97

Another human rights instrument being resisted by states is the APRM, which was established in 2003 to help African countries put their politico-economic affairs in order with a view to attracting foreign nancial assistance and investments.98 Although membership in this agency is open to all African countries, it is voluntary. By mid-August 2022, just 40 countries had joined the APRM, with more than 20 having been peer reviewed.99 Although it is the best AU instrument conceived to promote peace and good governance, the APRM’s early warnings were generally ignored. For instance, the APRM accurately predicted the outbreak of postelection violence in Kenya in 2007–08, but its reports were ignored. Steve Ouma Akoth pointed out that the Kenya government’s self-assessment had ‘[failed] to assess a more critical issue: the design of Kenya’s state and governmental structures and the dynamics of the struggle to establish democratic decision-making mechanisms and safeguard human rights’.100 As a result of ignoring the warning, over 1200 Kenyans lost their lives following the disputed December 2007 election results.101 Similarly, the APRM report on South Africa, which was released in September 2007, warned of possible xenophobic violence against ‘refugees, displaced and undocumented persons’ in the country,102 but the South Africa government did not give this issue adequate attention prior to violence erupting in mid-2008.103

The APRM process is supposed to work as follows: states join the APRM mechanism and subsequently develop self-assessment reports.104 The APRM experts then visit the countries in question to assess the reports, collect more information and generate reviews, which are presented to the Heads of State of member countries.105 Thereafter, the reviewed countries are expected to embark on implementing their national programmes of action, speci cally addressing governance issues highlighted in the reviews.106

Although the APRM is an innovative process that could help improve governance, the mechanism had lost enthusiasm by the early 2020s due to various factors, including corruption, nancial mismanagement and the failure of reviewed

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governments to implement recommendations.107 In 2020, the AUC asked a team of investigators to look into claims levelled against the APRM, including ‘allegations of “bad governance, corruption, nepotism, favouritism … threats, blackmail, intimidation and arbitrary dismissals”’.108 While the APRM process appears to be no longer a frank dialogue between African Heads of State and Government, it can be made to work effectively if African leaders genuinely support it.

The way forward is for the world to acknowledge that human rights, which keep evolving,109 are universal and any attempt to abuse them anywhere diminishes them everywhere. Therefore, it is the shared responsibility of the African people, African states, the AU and international society to ensure that human rights are respected in Africa.

1 African Charter on Human and Peoples’ Rights, opened for signature 27 June 1981, 1520 UNTS 217 (entered into force 21 October 1986) (‘African Charter’).

2 African Union, ‘The Realities of 40 Years of Implementing the African Charter on Human and Peoples’ Rights’ (16 June 2021) AU Monthly Bulletin <https://au.int/en/articles/ realities-40-years-implementing-african-charter-human-and-peoples-rights>.

3 Freedom House, ‘Global Freedom Scores’, Countries and Territories (Web Page, 2022) <https://freedomhouse.org/countries/freedom-world/scores>.

4 Ibid.

5 See Constitutive Act of the African Union, opened for signature 11 July 2000 (entered into force 26 May 2001) Preamble para 9 (‘Constitutive Act’).

6 Amartya Sen, Development as Freedom (Anchor Books, 1999).

7 These structures include, but are not limited to, the African Charter (n 1); African Union Commission, ‘The African Commission on Human and Peoples’ Rights: At the Forefront of Advancing Human Rights’ (July 2016) AU ECHO 58 <https://au.int/sites/default/ les/newsevents/workingdocuments/31192wd-au_echo_magazine_-_web.pdf> (‘Forefront of Advancing Human Rights’); African Union, Protocol to the African Court on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights, opened for signature 10 June 1988 (entered into force 25 January 2004) <https:// au.int/sites/default/ les/treaties/36393-treaty-0019_-_protocol_to_the_african_ charter_on_human_and_peoplesrights_on_the_establishment_of_an_african_ court_on_human_and_peoples_rights_e.pdf> (‘African Court Protocol’); ‘African Peer Review Mechanism (APRM)’, African Union (Web Page) <https://au.int/ en/organs/aprm> (‘African Peer Review Mechanism (APRM)’); African Union, Protocol to the Constitutive Act of the African Union Relating to the Pan-African Parliament, opened for signature 27 June 2014 (not yet in force) <https://au.int/ sites/default/ les/treaties/7806-treaty-0047_-_protocol_to_the_constitutive_act_ of_the_african_union_relating_to_the_pan-african_parliament_e.pdf> (‘Protocol to the Constitutive Act’).

8 For an excellent critique of relativism, see Abdullahi Ahmed An-Na’im, ‘Human Rights in the Muslim World: Socio-Political Conditions and Scriptural Imperatives’ (1990) 3 Harvard Human Rights Journal 13.

9 For the claim that human rights ought to always to be regarded as values that go beyond national boundaries, see Sam Makinda, ‘Following Postnational Signs: The Trail of Human Rights’ (2005) 37(9) Futures 943.

10 African Charter (n 1) art 27(1). It is also worth noting that there are some inconsistencies regarding the OAU’s spelling of ‘Organization’. This article will use the American English spelling that is present in the African Charter

11 African Charter (n 1) art 27(2).

12 Michael J Perry, The Idea of Human Rights: Four Inquiries (Oxford University Press, 1998) 4–5.

13 Constitutive Act (n 5) art 3(h).

14 Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, UN Doc A/810 (10 December 1948).

15 For a slightly different perspective, see Thomas Kwasi Tieku, Stefan Gänzle and Jarle Trondal, ‘People Who Run African Affairs: Staf ng and Recruitment in the African Union Commission’ (2020) 58(3) Journal of Modern African Studies 461.

16 African Charter (n 1).

17 Ibid art 30. See also ‘Forefront of Advancing Human Rights’ (n 7) 58–60.

18 See African Court Protocol (n 7).

19 See ‘African Peer Review Mechanism (APRM)’ (n 7).

20 The AU Assembly adopted the Protocol to the Constitutive Act (n 7) in June 2014.

21 Despite the fact that the United Nations still lists Western Sahara (Sahrawi Arab Democratic Republic) as a Non-Self-Governing territory, the African Union has admitted it to full membership and thus describes itself as a 55-member

organisation. See ‘Member States’, African Union (Web Page) <https://au.int/en/ member_states/countrypro les2>; ‘Western Sahara’, United Nations (Web Page) <https://www.un.org/dppa/decolonization/en/nsgt/western-sahara>.

22 Samuel M Makinda, F Wafula Okumu and David Mickler, The African Union: Addressing the Challenges of Peace, Security and Governance (Routledge, 2nd ed, 2015) 12.

23 See David Mickler and Kathryn Sturman, ‘Pan-Africanism, Participation and Legitimation in the African Governance Architecture’ (2021) 59(2) Journal of Common Market Studies 446, 447–8.

24 See Thomas Houser Rasmussen, ‘The French Revolutionary Tradition and African Ideologies of Independence and Modernization’ (PhD Thesis, Syracuse University, 1967) 1, 52–84. The declarations of the 1919 Pan-African Congress in Paris, the 1945 Pan-African Congress in Manchester and the rst conference of independent African states in Accra in 1958, which sought goals inspired by the 1789 French Revolution, are set out in Colin Legum, Pan-Africanism: A Short Political Guide (Frederick A Praeger, 1962) 133–48.

25 Ali Al’Amin Mazrui, ‘Edmund Burke and Re ections on the Revolution in the Congo’ (1963) 5(2) Comparative Studies in Society and History 121, 121.

26 This was a constant theme in the speeches of leading Pan-Africanists. See, eg, Tom Mboya, ‘Political Tactics in the Freedom Struggle’ in Gideon-Cyrus M Mutiso and S W Rohio (eds), Readings in African Political Thought (Heinemann Educational Books, 1975) 170, 170–4.

27 See Kwame Nkrumah, Axioms of Kwame Nkrumah: Freedom Fighters’ Edition (Panaf Books, 2nd ed, 1969).

28 Ibid 106.

29 Ibid (emphasis added).

30 Samuel M Makinda and F W Okumu, The African Union: Challenges of Globalization, Security, and Governance (Routledge, 2008) 20. See also ‘OAU and Human Rights’ (3 May 2013) New African <https://newafricanmagazine. com/3733/>.

31 Thomas M Franck, ‘The Emerging Right to Democratic Governance’ (1992) 86(1) The American Journal of International Law 46.

32 Ibid 46.

33 Economic Commission for Africa, African Charter for Popular Participation in Development and Transformation, 25th sess, UN Doc E/ECA/CM/16/11 (12–16 February 1990).

34 Joel Ng, Contesting Sovereignty: Power and Practice in Africa and Southeast Asia (Cambridge University Press, 2021) 109–14. See also Nse E Akpan, John E Edeki and Imere L Nwokah, ‘The Challenges of Human Security in Sub-Saharan Africa: The Way Forward’ (2018) 3(6) International Journal of English Literature and Social Sciences 1190, 1195.

35 See Akpan, Edeki and Nwokah (n 34) 1195.

36 See Francis M Deng and I William Zartman, A Strategic Vision for Africa: The Kampala Movement (Brookings Institution Press, 2002) 147.

37 See Ng (n 34) 109–16.

38 Constitutive Act (n 5) art 3.

39 Samuel M Makinda, ‘Contesting Sovereignty’ in Antonio Franceschet (ed), The Ethics of Global Governance (Lynne Rienner, 2009) 21, 30–3.

40 Christian Reus-Smit, ‘Human Rights and the Social Construction of Sovereignty’ (2001) 27(4) Review of International Studies 519, 520.

41 Constitutive Act (n 5) art 3(e).

42 Ibid art 3(g). 43 Ibid art 3(h).

44 Ibid art 4(h).

45 See Samuel M Makinda, ‘Democracy and Multi-Party Politics in Africa’ (1996) 34(4) Journal of Modern African Studies 555.

Samuel M Makinda, Why the African Union’s Human Rights Record Remains Poor

46 African Charter on Democracy, Elections and Governance, opened for signature 30 January 2007 (entered into force 15 February 2012) art 2(1) (‘Charter on Democracy’).

47 Ibid art 2(2).

48 Ibid art 2(6).

49 Organization of African Unity, Guidelines for African Union Electoral Observation and Monitoring Missions, Doc No EX.CL/91(V) Annex II, 38th ord sess, 8 July 2002. These guidelines were approved by the OAU Heads of State and Government on the OAU’s last day as the African Union came into existence on 9 July 2002.

50 African Union, Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, opened for signature 11 July 2003 (entered into force 25 November 2005).

51 African Union, Solemn Declaration on Gender Equality in Africa, Doc No Assembly/AU/Decl.12(III) Rev 1, 3rd ord sess, 6–8 July 2004.

52 African Union Commission, Agenda 2063: The Africa We Want (Agenda, September 2015) 1.

53 The AU Assembly comprises African Heads of State and Government while the Executive Council comprises the Foreign Affairs Ministers of African countries: see Constitutive Act (n 5) arts 6, 10.

54 African Union, African Union Non-Aggression and Common Defence Pact, opened for signature 1 January 2005 (entered into force 18 December 2009) art 1(k).

55 Samuel M Makinda, ‘Review Essay: Human Rights, Humanitarianism, and Transformation in the Global Community’ (2001) 7(3) Global Governance 343, 344.

56 Makinda, Okumu and Mickler (n 22) 57–61.

57 Ibid 53–5.

58 Protocol to the Constitutive Act (n 7) art 2.

59 African Union, Protocol Relating to the Establishment of the Peace and Security Council of the African Union, opened for signature 9 July 2002 (entered into force 26 December 2003) (‘PSC Protocol’).

60 Organization of African Unity, Conference on Security, Stability, Development and Cooperation in Africa Solemn Declaration, Doc No AHG/Decl.4(XXXVI), 36th ord sess, 10–12 July 2000.

61 Organization of African Unity, Declaration on the Framework for an OAU Response to Unconstitutional Changes of Government, Doc No AHG/ Decl.5(XXXVI), 36th ord sess, 10–12 July 2000.

62 PSC Protocol (n 59) art 19.

63 African Charter (n 1) arts 1–2.

64 Ibid art 45; ‘Forefront of Advancing Human Rights’ (n 7) 58, 60.

65 African Court Protocol (n 7).

66 ‘A Rough Guide to the Regional Human Rights Systems’, Universal Rights Group (Web Page) <https://www.universal-rights.org/human-rights-roughguides/a-rough-guide-to-the-regional-human-rights-systems/>.

67 African Court Protocol (n 7) art 2.

68 ‘African Peer Review Mechanism (APRM)’ (n 7).

69 African Union, Audit of the African Union (Report, 18 December 2007) xxiv [10] <https://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C8CD3-CF6E4FF96FF9%7D/RO%20Audit%20of%20the%20AU.pdf>.

70 Ibid 50 [123].

71 Ibid 49–50 [121].

72 Ibid 50 [122].

73 African Union, Decision on the Institution and Capacity Building Aspects of the Chairperson’s Statement, Doc No EX.CL/755(XXII), 22nd ord sess, 21–25 January 2013, para 5.

74 See Simon Allison, ‘AU “Covering Up” Perpetrators’ Abuse’, Mail and Guardian (online, 17 May 2019) <https://mg.co.za/article/2019-05-17-00-au-coveringup-perpetrators-abuse/>. For an analysis of poor leadership in Africa, see Samuel M Makinda, ‘Africa’s Leadership Malaise and the Crisis of Governance’ in Kobena T Hanson, George Kararach and Timothy M Shaw (eds), Rethinking Development Challenges for Public Policy: Insights from Contemporary Africa (Palgrave Macmillan, 2012) 54.

75 Victoria Ojeme, ‘New Audit Report Unearths Institutional Corruption, Sex Abuse at AU Commission’, Vanguard (online, 24 February 2021) <https://www. vanguardngr.com/2021/02/new-audit-report-unearths-institutional-corruptionsex-abuse-at-au-commission/>.

76 Ibid.

77 See ‘Chad after Idriss Déby: African Union Urges End to Military Rule’, BBC News (online, 24 April 2021) <https://www.bbc.com/news/ world-africa-56870996>.

78 Boubacar Haidara, ‘Inside Mali’s Coup within a Coup’, The Conversation (online, 27 May 2021) <https://theconversation.com/ inside-malis-coup-within-a-coup-161621>.

79 Abdourahmane Diallo, Ruth Maclean and Mady Camara, ‘Special Forces Colonel Says He Has “Seized” Guinea’s President’, The New York Times (online, 10 September 2021) <https://www.nytimes.com/2021/09/05/world/africa/ guinea-coup.html>.

80 ‘Sudan Coup: A Really Simple Guide’, BBC News (online, 25 October 2021) <https://www.bbc.com/news/world-africa-59035053>.

81 ‘Capt Ibrahim Traoré: Burkina Faso’s New Military Ruler’, BBC News (online, 3 October 2022) <https://www.bbc.com/news/world-africa-63117008>.

82 See Wafula Okumu, Andrews Atta-Asamoah and Roba D Sharamo, ‘Silencing the Guns in Africa by 2020: Achievements, Opportunities and Challenges’ (Monograph No 203, Institute for Security Studies, August 2020) 1–2.

83 Ibid 1–4.

84 Ibid vi.

85 Ibid.

86 Ibid.

87 African Union, Decision on the 19th Activity Report of the African Commission on Human and Peoples’ Rights, Doc No EX.CL/236(VIII), 8th ord sess, 16–21 January 2006, para 1(i) (emphasis added).

88 Audit of the African Union (n 69) 87 [237].

89 Ibid

90 Makinda, Okumu and Mickler (n 22) 51–2.

91 Ibid 52.

92 Lilian Chenwi, ‘Successes of African Human Rights Court Undermined by Resistance from States’, The Conversation (online, 1 September 2021) <https:// theconversation.com/successes-of-african-human-rights-court-undermined-byresistance-from-states-166454>.

93 There is also no agreed de nition of sovereignty in Africa. For example, in Uganda, sovereignty resides in the president who has ruled since the mid-1980s and has changed the Constitution unilaterally several times, while in neighbouring Kenya, sovereignty ‘belongs to the people’ who ‘may exercise their sovereign power either directly or through their democratically elected representatives’: see Constitution of Kenya 2010 arts 1(1)–(2). On Uganda, see ‘Uganda: 35 Years under President Yoweri Museveni’, The East Africa (online, 12 January 2021) <https://www.theeastafrican.co.ke/tea/news/east-africa/uganda35-years-under-president-yoweri-museveni-3254234>; Peter Bouckaert, Hostile to Democracy: The Movement System and Political Repression in Uganda (Human Rights Watch, 1999) 46–51.

94 Francis M Deng et al, Sovereignty as Responsibility: Conflict Management in Africa (Brookings Institution, 1996) 1.

95 Ibid.

96 See Constitutive Act (n 5) arts 9, 13. See also Makinda, Okumu and Mickler (n 22) 43–8.

97 For more on this point, see Nicholas J Wheeler, Saving Strangers: Humanitarian Intervention in International Society (Oxford University Press, 2000); Samuel M Makinda, ‘Why South Sudan’s Problems Stem from the Abuse of Sovereignty: The Case for Co-Governance’ (2017) 38(1) Australasian Review of African Studies 8.

98 See ‘African Peer Review Mechanism (APRM)’ (n 7).

99 African Union, ‘More African States Join the Peer-to-Peer Governance Review Mechanism, a Re ection of Commitment to Change’ (Press Release, 8 February 2020) <https://au.int/sw/node/38100>; Kapinga-Yvette Ngandu, ‘Positioning the APRM as an Early Warning Tool for Con ict Prevention’ (May 2020) Governance Link

100 Steve Ouma Akoth, Open Society Initiative for East Africa, The APRM Process in Kenya: A Pathway to a New State? (Report, March 2007) 1 <https:// www.opensocietyfoundations.org/uploads/609793ca-d475-4108-82828a3ab2e931c9/aprm_20070823.pdf>.

101 Moira Fratta, ‘Post-Electoral Violence in Kenya: More than 1000 People Killed and 300,000 Displaced’, Relief Web (Web Page, 28 February 2008) <https:// reliefweb.int/report/kenya/post-electoral-violence-kenya-more-1000-peoplekilled-and-300000-displaced>.

102 African Peer Review Mechanism, Country Review Report of the Republic of South Africa (Report, 2007) 8 [3.21] <https:// www.aprmtoolkit.saiia.org.za/documents/country-reports-andexper/97-atkt-south-africa-arpm-country-review-report-2007-en/ le>.

103 Human Rights Watch, World Report 2009: Events of 2008 (Report, 2009) 115–16 <https://www.hrw.org/sites/default/ les/reports/wr2009_web_1.pdf>.

104 For vital information on how the system operates, see ‘African Peer Review Mechanism (APRM)’ (n 7).

105 Ibid.

106 Ibid.

107 For a useful assessment of the African Peer Review Mechanism, see Yarik Turianskyi, ‘African Peer Review: Progress Is Being Made, but There Are Problems’, The Conversation (online, 13 March 2019) <https://theconversation.com/ african-peer-review-progress-is-being-made-but-there-are-problems-113048>.

108 Jeune Afrique, ‘African Union: Theft, Intimidation, Nepotism Allegations against AU Body’, The Africa Report (online, 19 November 2020) <https://www. theafricareport.com/51166/african-union-explosive-whistleblower-report-onaprm-details-theft-and-intimidation/>.

109 See Samuel M Makinda, ‘The Global Covenant as an Evolving Institution’ (2002) 6(1) The Journal of International Human Rights 113.

Court of Conscience Issue 16, 2022

There and Back Again

The Philippines’ Struggle with Authoritarianism

Gemmo Bautista Fernandez*

Except between 1972 and 1986, the Philippines maintained a republican and presidential system of government. Modelled after the United States (‘US’), to which it was a former unincorporated territory, it subscribed to the separation of powers among the executive, legislative and judicial branches of government.1 However, under Ferdinand Marcos’ regime, the Philippines departed from this form of governance to a state of ‘political, economic, and social havoc’. 2 In a bid to remain in power, Marcos placed the country under martial law, rushed the rati cation of the 1973 Constitution and subjected the Philippines to dictatorship. 3 In 1986, after years of violence and corruption, the Filipinos nally deposed Marcos. 4 The Philippines then adopted its 1987 Constitution ‘aimed at correcting the shortcomings’ of previous laws and avoiding the rise of another authoritarian. 5 Into its text the framers baked liberal and democratic principles, and instituted safeguards against abuse.

However, after a third of a century, the Philippines nds itself in another struggle. The country, it appears, rode on a return trajectory towards authoritarianism under Rodrigo Duterte to whom much power and in uence were centred. The subservience of the legislature and the deference of the judiciary left executive power unchecked, fundamental liberties unprotected and institutional mechanisms against abuse ineffective. To make matters worse, a majority of the populace seemed to have accepted this kind of rule as evinced by the recent election of the former dictator’s son, Ferdinand ‘Bongbong’ Marcos Jr.

This paper provides a brief overview of the Philippines’ struggle with authoritarianism. It discusses the Philippines’ experience under Marcos and how it adopted constitutional measures to prevent this from recurring. Next, it delves into the apparent return to authoritarianism under Duterte. Finally, it identi es one factor, among many, that contributed to this relapse. It submits that although protections exist on paper, the system remains vulnerable without those who demand that safeguards be respected. Simply, legal norms alone do not safeguard the principles of liberal and democratic constitutionalism — it requires the concurrent development of social mores.

I From Dictatorship to Democracy

Between 1972 and 1986, the Philippines, which once enjoyed a semblance of liberal and democratic tradition, experienced massive human rights violations, gross abuses of power and widespread corruption.6 Marcos’s campaign to eliminate opposition to his rule left an estimated 70,000 Filipinos arbitrarily detained, 35,000 tortured and 3,257 killed.7 Further, his abuse of power allowed him, his family and his cronies, to accumulate ill-gotten wealth exceeding USD 10,000,000,000. 8 By the end of Marcos’ rule, the Philippines was left in a state of trauma and poverty, saddled with foreign debt.9

* Sessional Academic & PhD Candidate, the Australian National University (2019–Present); Sessional Academic, the University of New South Wales (2022–Present).

All this was done under a semblance of legality that taxed executive power beyond its limits and rendered any safeguard ineffective. In 1973, Marcos placed the Philippines under martial law and granted himself emergency powers.10 He then rushed through the 1973 Constitution that allowed him to remain in power.11 Further amendments gave him virtually unbridled powers.12 At the height of his rule, Marcos was free to enact laws in contravention of the separation of powers.13 Legislative oversight was also absent as it was decimated of meaningful opposition.14 Likewise, the judiciary catered to Marcos’ ‘political likings and personal convenience’.15 He, after all, had the sole authority in the appointment of judges and justices, and control over their tenure.16 In most cases, the Court granted much deference to him.17 In other instances, Marcos resorted to outright corruption, subjecting judges to ‘pressure which proved to be beyond their capacity to resist’.18

It was in the wake of this misfeasance, malfeasance and nonfeasance, sanctioned by the 1973 Constitution, that the 1986 Constitutional Commission, formed after the Marcos’ ouster, began their revisions. Indeed, throughout the drafting process, its members consciously noted how the Marcos regime disregarded the principles of liberal and democratic constitutionalism.19 Thus, determined to avoid another authoritarian regime, they crafted a Constitution that sought to rein in executive power with stronger safeguards against abuse. 20

II The Failure of Legal Reforms

However, the 1987 Constitution appears to have failed in warding off a repeat of autocratic rule. As in the case of Marcos’ regime, the Philippines under Duterte suffered human rights violations and liberal and democratic de cit. Yet, the government faced no repercussions and minimal pushback.

Like Marcos, Duterte sought to silence his opposition. 21 Members of the civic society such as activists, trade unionists and tribal leaders suffered threats, harassment and killings. 22 It was not uncommon for the government to label individuals and groups critical of the administration’s policies as members of terrorist or communist organisations. 23 In some cases, this led to the questionable arrest and detention of human rights activists. 24 In others, this made way for operations that led to deaths. 25 The same is true for the media. 26 The government harassed journalists critical of the government through legal proceedings. 27 Duterte even went so far as to cause the closure of a major network that was critical of his policies by instructing Congress not to renew its franchise. 28 Duterte also went after government of cials who opposed his policies. He caused the prosecution of a senator who called for an investigation of the extrajudicial killings through trumped-up charges of drug traf cking. 29 Likewise, he ousted the Chief Justice of the Supreme Court, who notably ‘resisted some of Mr Duterte’s policies on the grounds that they outed human rights and the rule of law’, 30 through a legally questionable proceeding initiated by the government’s Of ce of the Solicitor General. 31

These abuses occurred notwithstanding the safeguards and limitations on government power under the 1987 Constitution. Like Marcos, Duterte also resorted to circumventing and weakening the mechanisms designed to check the power of the president. Indeed, his tenure was marked by the employment of methods to remove limits on executive prerogative, provide legal at to otherwise illiberal policies and undermine the accountability of institutions. 32

The framers of the Constitution envisioned a Congress that could rein in the executive. Yet, Duterte managed to gain control over Congress. 33 Political defections and the use of state machinery virtually decimated the opposition. 34 These victories translated to Duterte’s consolidation of power. 35 It allowed him to push for laws that threatened the liberties of his opposition. 36 Worse, control over Congress permitted him to loosen legislative oversight, lessening the opportunities for congressional investigations, and precluding the ling of impeachment complaints. 37 Likewise, the framers of the Constitution also intended for a judiciary with broader powers of review. 38 However, the judiciary has demonstrated much deference to Duterte, giving his policies a semblance of legitimacy. 39 On the one hand, this may have been due to his threats. Duterte has frequently warned courts not to interfere with his policies and that should they do so, he will not respect their authority. 40 On the other, this may also be due to accommodation. With the majority of its members appointed by Duterte, the Court has been unwilling to exercise its broad powers of review. 41 Indeed, during his tenure, Duterte has won almost every

Gemmo Bautista Fernandez, There and Back Again

case that challenged his actions before the Supreme Court, with the latter usually deferring to the discretion of the executive branch. 42 Finally, Duterte also interfered with the constitutional institutions designed to provide safeguards against abuse of government powers. Duterte repeatedly warned the Ombudsman not to investigate cases involving the police and the military ‘without seeking his permission rst’. 43 The same is true of the Commission of Human Rights, which was given a budget of a mere one thousand pesos, which effectively rendered it useless when it began investigating the extra-judicial killings committed during the government’s campaign against illegal narcotics. 44

III The Rule of Law and the Liberal and Democratic Order

It bears stressing that Duterte was not the rst post-Marcos president to attempt to expand executive power and circumvent constitutional safeguards while claiming to adhere to the ‘rule of law’. 45 Fidel V Ramos, Joseph Estrada, Gloria Macapagal Arroyo and Benigno Aquino III attempted to do the same. Most managed, in different degrees, to exercise control over Congress. 46 A few gained the deference of the judiciary and independent institutions. 47

These actions stand in stark contrast with the order based under the ‘rule of law’ that the framers of the 1987 Constitution hoped to ensure. Of course, stripped of its rhetoric, the concept is ‘just one of the virtues which a legal system may possess and by which it is to be judged’. 48 Taken broadly, it dictates that ‘the government shall be ruled by the law and subject to it’ — a ‘government by law and not by men’. 49 Hence, the only actions that the law allows are considered actions of the government as government. Otherwise, these acts would be void. ‘Rule of law’ does not amount to any conception of ‘democracy, justice, [or] equality’. 50 It ‘remains distinct from the scheme of justice established by any particular legal regime and is compatible with many rival accounts of social justice’. 51 What it requires is conformity to the ‘rule of law’ to ‘secure whatever purposes the law is designed to achieve’. 52 The rule of law, therefore, is the ‘speci c excellence of law in the sense that it is the virtue of ef ciency’. 53 Thus, ‘adherence to the rule of law enables the law to attain its ends, just as a sharp … knife can more readily be used for cutting’. 54

Arguably, the ‘rule of law’ to which Philippine leaders claim to adhere is formalistic. 55 If anything, it could be demonstrated that it is equally compatible with authoritarian rule. Their actions may be legal but whether they adhere to the principles of democratic and liberal constitutionalism is a different matter. 56 But the ‘rule of law’ presumably sought by the framers of the Philippine Constitution goes beyond mere legality or that which requires ‘only formal legal authorisation for governmental acts and decisions’. 57 What is sought is a conception that requires ‘more substantial requirements’, which is that of liberal and democratic constitutionalism. 58 As had been aptly put, ‘[s]acri cing too many social goals on the altar of the rule of law may make law barren and empty’. 59

IV The Need for the Development of Social Mores

Duterte, despite his authoritarian tendencies, enjoyed high satisfaction ratings during his tenure. Such approval notably comes from Filipinos who once cried ‘never again’ to dictatorship after the fall of Marcos. 60 Thus, apparent support for another ‘strongman’ begs examination.

Arguably, this may be explained through a gap in the ‘internalisation’ of constitutional principles. 61 To recall, the Philippines did not adopt its own system of government. Rather, it was a case of ‘transplanted constitutionalism’ from the US. 62 This ‘alien origin’ of the Constitution presents a problem for the populace it was meant to govern. 63 A constitutional order, after all, does not merely depend on the declarations of principles and legal instruments. 64 Rather, it involves an element of ‘normative compliance and institutional internalization of democratic values by all pillars of the state and society’. 65

More importantly, it is also submitted that the Philippines, in its re-democratisation, heavily relied on institutional reform through constitutional change. 66 This is evident in the efforts of the Constitutional Commission, discussed above, to safeguard liberal and democratic principles and rein in executive power. Yet, this is problematic as a constitutional order does not solely depend on the constitutional

Court of Conscience Issue 16, 2022

text but represents a ‘fundamental commitment to the norms and procedures of the constitution’ that manifest in the behaviour and practices that reinforce and safeguard these norms. 67

Legal provisions, no matter how well-intended, cannot stand alone. Borrowing from the principles of transitional justice, reforms must embrace the ‘full range of processes and mechanisms associated with a society’s attempts to come to terms with a legacy of large-scale past abuses, … to ensure accountability, serve justice, and achieve reconciliation’. 68 This is where the Philippine transition to justice failed. With a reform centred on the positivist pillar of institutional reform, the transition to democracy is found wanting. The failure to remember the experience under authoritarianism resulted in the populace becoming open to trade-offs and provided a fertile ground for the rise of Duterte. 69 Thus, ‘[c]itizens who once accepted democracy as the only legitimate form of government [became] more open to authoritarian alternatives’.70 Simply, the importance of liberal order has been depreciated, the possibility of authoritarian rule has been oated and anti-liberal ideas have been accepted.71

V Conclusion

The Philippine struggle with authoritarianism suggests that legal and institutional reforms alone do not suf ce to sustain a liberal and democratic order. Legal and institutional reforms only form part of justice reforms. The return of a liberal and democratic order also needs societal interventions. After all, sustaining a liberal and democratic order ‘is not merely a matter of making changes in texts; [it] calls for changes in practice’.72 Accordingly, reforms must entail not only legal but also societal interventions. It is said that ‘[l]iberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court’ can save it.73

The Philippines, in its re-democratisation, seems to have overlooked that legal formalisms are but a part of justice reforms. By solely relying on legal changes, it failed to instil in its populace the dangers of authoritarian rule. Three decades after the ouster of Marcos, many Filipinos indicated an acceptance of authoritarianism to the extent of electing the son of a former dictator.

1 Joaquin G Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary (Rex Bookstore, 2nd ed, 2009) 52. See Maquera v Borra, Supreme Court of the Philippines, GR No L-24761, 7 September 1965 reported in 112 Philippine Reports 412 (1965).

2 Ocampo v Enriquez, Supreme Court of the Philippines, GR No 225973, 8 November 2016 reported in 798 Philippines 227, 261 (2016) (Carpio J dissenting) (‘Ocampo’); Mijares v Ranada, Supreme Court of the Philippines, GR No 139325, 12 April 2005 reported in 495 Philippine Reports 372 (2005) (‘Mijares’); Heirs of Licaros v Sandiganbayan, Supreme Court of the Philippines, GR No 157438, 18 October 2004 reported in 483 Philippine Reports 510 (2004); Olaguer v Military Commission No 34, Supreme Court of the Philippines, GR No 54558, 22 May 1987 reported in 234 Philippine Reports 144 (1987) (Teehankee CJ dissenting).

3 Patricio N Abinales and Donna Amoroso, State and Society in the Philippines (Rowman & Little eld, 2005) 198; Stanley Karnow, In Our Image: America’s Empire in the Philippines (Random House, 1989) 439.

4 Isagani A Cruz and Carlo L Cruz, Philippine Political Law (Central Books, 2014) 12.

5 Ibid. See also Re Umil v Ramos, Supreme Court of the Philippines, GR No 81567, 9 July 1990 reported in 265 Philippine Reports 325 (1990) (Padilla J dissenting) (‘Umil’); Paul Hutchcroft and Joel Rocamora, ‘Strong Demands and Weak Institutions: The Origins and Evolution of the Democratic De cit in the Philippines’ (2003) 3(2) Journal of East Asian Studies 259, 278.

6 See Human Rights Victims Reparation and Recognition Act 2013 (Philippines); Raphael Lorenzo A Pangalangan, Gemmo Bautista Fernandez and Ruby Roselle L Tugade, ‘Marcosian Atrocities: Historical Revisionism and the Legal Constraints on Forgetting’ (2018) 19(2) Asia-Pacific Journal on Human Rights and the Law 140; Mark Thompson, ‘Bloodied Democracy: Duterte and the

Death of Liberal Reformism in the Philippines’ (2016) 35(3) Journal of Current Southeast Asian Affairs 39, 39; David T Johnson and Jon Fernquest, ‘Governing through Killing: The War on Drugs in the Philippines’ (2018) 5(2) Asian Journal of Law and Society 359; Julio C Teehankee, ‘Was Duterte’s Rise Inevitable?’ in Nicole Curato (ed), A Duterte Reader: Critical Essays on Rodrigo Duterte’s Early Presidency (Ateneo de Manila University Press, 2017) 37, 42.

7 Alfred W McCoy, Policing America’s Empire: The United States, the Philippines, and the Rise of the Surveillance State (University of Wisconsin Press, 2009) 403. See Mijares (n 2); Abinales and Amoroso (n 3) 207; Re Estate of Marcos Human Rights Litigation, 910 F Supp 1460 (D Haw, 1995).

8 Republic of the Philippines Constitutional Commission, Record of the Constitutional Commission: Proceedings and Debates (1986) vol 5, 516 (‘Volume 5’). See Tabuena v Sandiganbayan, Supreme Court of the Philippines, GR No 103501-03, 17 February 1997 reported in 335 Philippine Reports 795 (1997); Marcos v Manglapus, Supreme Court of the Philippines, GR No 88211, 27 October 1989 reported in 258-A Philippine Reports 547 (1989) (‘Marcos’); Philippines v Sandiganbayan, Supreme Court of the Philippines, GR No 152154, 15 July 2003 reported in 453 Philippine Reports 1059 (2003); Marcos Jr v Philippines, Supreme Court of the Philippines, GR No 189434, 25 April 2012 reported in 686 Philippine Reports 980 (2012); Presidential Commission on Good Government v Peña, Supreme Court of the Philippines, GR No 77663, 12 April 1988 reported in 243 Philippine Reports 93 (1988); Chavez v Presidential Commission on Good Government, Supreme Court of the Philippines, GR No 130716, 9 December 1998 reported in 360 Philippine Reports 133 (1998); Presidential Ad Hoc Fact-Finding Committee on Behest Loans v Desierto, Supreme Court of the Philippines, GR No 135715, 13 April 2011 reported in 664 Philippine Reports 16 (2011); Republic of the Philippines Constitutional Commission, Record of the Constitutional Commission: Proceedings and

Gemmo Bautista Fernandez, There and Back Again

Debates (1986) vol 2, 164 (‘Volume 2’); Republic of the Philippines Constitutional Commission, Record of the Constitutional Commission: Proceedings and Debates (1986) vol 4, 852.

9 Marcos (n 8) (Cortes J).

10 Karnow (n 3) 678; Hutchcroft and Rocamora (n 5) 275.

11 Cruz and Cruz (n 4) 6.

12 Bernas (n 1) 58, 677. See Aquino Jr v Commission on Elections, Supreme Court of the Philippines, GR No L-400004, 31 January 1975 reported in 62 Philippine Reports 328 (1975); Legaspi v Minister of Finance, Supreme Court of the Philippines, GR No L-58289, 24 July 1982 reported in 62 Supreme Court Reports Annotated 275 (1982).

13 Bernas (n 1) 58, 677.

14 Republic of the Philippines Constitutional Commission, Record of the Constitutional Commission: Proceedings and Debates (1986) vol 1, 51 (‘Volume 1’). See Cruz and Cruz (n 4) 185; Republic of the Philippines Constitutional Commission, Volume 2 (n 8) 88; Abinales and Amoroso (n 3) 196, 211.

15 Republic of the Philippines Constitutional Commission, Volume 1 (n 14) 485. See, eg, Primitivo Mijares, The Conjugal Dictatorship of Ferdinand and Imelda Marcos (Ateneo de Manila University Press, 1976) 339–42.

16 Republic of the Philippines Constitutional Commission, Volume 5 (n 8) 357, 937. See Abinales and Amoroso (n 3) 207.

17 See, eg, Javellana v Executive Secretary, Supreme Court of the Philippines, GR No L-36142, 31 March 1973 reported in 151-A Philippine Reports 34 (1975); Sanidad v Commission on Elections, Supreme Court of the Philippines, GR No L-44640, 12 October 1976 reported in 165 Philippine Reports 303 (1976); Occena v Commission on Elections, Supreme Court of the Philippines, GR No L-56350, 2 April 1981 reported in 191 Philippine Reports 370 (1981).

18 Galman v Sandiganbayan, Supreme Court of the Philippines, GR No 72670, 12 September 1986 reported in 228 Philippine Reports 42 (1986).

19 Bernas (n 1) 903; Cruz and Cruz (n 4) 131. See Republic of the Philippines

Constitutional Commission, Volume 1 (n 14) 105; Republic of the Philippines

Constitutional Commission, Volume 2 (n 8) 220, 495; Republic of the Philippines

Constitutional Commission, Volume 5 (n 8) 930; Umil (n 4) (Sarmiento J dissenting). See generally Bernas (n 1) 552; Cruz and Cruz (n 4) 14; Carl H Lande, ‘The “Asian Values” Debate: A Partisan Assessment’ (1998) 2(3) Public Policy 63, 66.

20 Pangalangan, Fernandez and Tugade (n 6) 142; Republic of the Philippines Constitutional Commission, Volume 2 (n 8) 734. Note that the Constitution limited the prerogatives of the President. It cut back on the President’s power to impose martial law, reduced the instances in which the power may be used, and subjected its imposition to the review of both Congress and the judiciary: Philippines Constitution 1987 art VI s 18, art VII ss 16, 18; Republic of the Philippines Constitutional Commission, Volume 5 (n 8) 1010. It also granted broader powers of oversight to the other branches of government.

Congress now possesses the prerogative to con rm presidential appointments: Philippines Constitution 1987 art VII s 16; limit the use of discretionary funds: at art VI s 25(6); and inquire into the contracting of foreign debts: at art VII s 20. Further, it widened the judiciary’s power of judicial review, giving it jurisdiction over matters involving ‘grave abuse of discretion amounting to lack or excess of jurisdiction’, which would otherwise have been considered a ‘political question’: at art VIII s 1; Bernas (n 1) 991. See Marcos (n 8). It also sought to ensure the independence of the judiciary through scal autonomy, security of tenure and protection from reorganisation: Philippines Constitution 1987 art VIII ss 2–3. Moreover, considering the regime’s gross violation of fundamental liberties, the Constitution established the Commission on Human Rights with the power, among others, to investigate all forms of violations of human rights: at art XIII s 17. Finally, given the widespread corruption under Marcos, it also created an independent Of ce of the Ombudsman, enjoying scal autonomy and removable only by impeachment, to investigate and prosecute cases of graft and corruption: at art XI ss 2, 5, 13–14.

21 ‘Rodrigo Duterte Has Accelerated the Philippines’ Slide Toward Authoritarianism’, The Washington Post (online, 28 July 2019) <https://www. washingtonpost.com/opinions/global-opinions/rodrigo-duterte-has-acceleratedthe-philippines-slide-toward-authoritarianism/2019/07/28/b43e8d70-acb311e9-bc5c-e73b603e7f38_story.html>; Human Rights Council, Report of the United Nations High Commissioner for Human Rights: Situation of Human Rights in the Philippines, 44th sess, Agenda Item 2, UN Doc A/HRC/44/22 (29 June 2020) 12 (‘Situation of Human Rights in the Philippines’).

22 Situation of Human Rights in the Philippines (n 21) 8–9, 14.

23 Ibid 10–11; Phil Robertson, ‘Philippine General Should Answer for “Red-Tagging”’, Human Rights Watch (online, 10 February 2021) <https://www. hrw.org/news/2021/02/10/philippine-general-should-answer-red-tagging>.

24 ‘Groups Decry “Illegal” Arrests of Activist Leaders in Central Luzon’, CNN Philippines (online, 30 March 2021) <https://www.cnnphilippines.com/ news/2021/3/30/activist-leaders-central-luzon-arrested.html>.

25 United Nations, ‘Philippines: UN Rights Of ce Appalled over Simultaneous Killings of “Red-Tagged” Activists’, UN News (online, 9 March 2021) <https://news.un.org/en/story/2021/03/1086782>; Ted Regencia, ‘Nine Killed after Duterte’s Order to “Finish Off” Communists’, Al Jazeera (online, 7 March 2021) <https://www.aljazeera.com/news/2021/3/7/ philippines-deadly-operation-after-order-to-kill-communists>.

26

<https://www.theguardian.com/commentisfree/2019/feb/15/attacksmedia-duterte-philippines-rappler-maria-ressa>. See Rambo Talabong, ‘Over 100 Attacks vs Journalists Since Duterte Assumed Of ce: Monitor’, Rappler (online, 3 May 2019) <https://www.rappler.com/ nation/229611-over-100-attacks-vs-journalists-duterte-assumed-of ce>.

27 Alexandra Stevenson, ‘Maria Ressa, Journalist Critical of Duterte, Is Arrested Again in Philippines’, The New York Times (online, 28 March 2019) <https:// www.nytimes.com/2019/03/28/business/media/maria-ressa-arrestedphilippines-rappler.html>.

28 ‘Independent Broadcaster ABS-CBN Shut Down by Philippines Government in “Crushing Blow” to Press Freedom’, ABC News (online, 6 May 2020) <https:// www.abc.net.au/news/2020-05-06/philippines-news-outlet-closure-abs-cbnduterte/12218416>; Jason Gutierrez, ‘Philippine Congress Of cially Shuts Down Leading Broadcaster’, The New York Times (online, 15 December 2020) <https://www.nytimes.com/2020/07/10/world/asia/philippines-congressmedia-duterte-abs-cbn.html>; ‘Duterte to ABS-CBN: Next Year, You’re Out’, CNN Philippines (online, 3 December 2019) <https://www.cnnphilippines.com/ news/2019/12/3/duterte-abs-cbn-franchise-out.html>.

29 Johnson and Fernquest (n 6) 366; Jayson S Lamchek, ‘A Mandate for Mass Killings: Public Support for Duterte’s War on Drugs’ in Nicole Curato (ed), A Duterte Reader: Critical Essays on Rodrigo Duterte’s Early Presidency (Ateneo de Manila University Press, 2017) 199, 201–9.

30 Felipe Villamor, ‘She Stood Up to Duterte. Now She Faces Impeachment’, The New York Times (online, 2 March 2018) <https://www.nytimes.com/2018/03/02/ world/asia/philippines-chief-justice-duterte.html>; Gemmo Fernandez, ‘The Theory of Judicial Impartiality and the Case of Republic v Chief Justice Sereno’ (2019) 19(2) Australian Journal of Asian Law 281, 282 (‘Theory of Judicial Impartiality’).

31 Fernandez, ‘Theory of Judicial Impartiality’ (n 30) 283. See Jim Gomez, ‘Philippines’ Chief Justice Expects Impeachment, Taking Leave’, Associated Press (online, 28 February 2018) <https://apnews.com/18401ab797a94c9aac3d60b291b84bdc/ Philippines’-chief-justice-expects-impeachment,-taking-leave>.

32 See Kim Lane Scheppele, ‘Autocratic Legalism’ (2018) 85(2) University of Chicago Law Review 545, 547–8, 570; Susanne Baer, ‘Rule of — and not by any — Law: On Constitutionalism’ (2018) 71(1) Current Legal Problems 335, 350–1.

33 Dante Gatmaytan, ‘Philippines: The State of Liberal Democracy’ in Albert Richard et al (eds), 2017 Global Review of Constitutional Law (I•CONnectClough Center, 2018) 220, 224 (‘State of Liberal Democracy’).

34 See Miguel Syjuco, ‘How to Get Ahead in Politics in the Philippines’, The New York Times (online, 8 August 2017) <https://www.nytimes.com/2017/08/08/ opinion/the-philippines-contemptuous-politics.html>; Thompson (n 6) 39.

35 Gatmaytan, ‘State of Liberal Democracy’ (n 33) 220.

36 See Anti-Terrorism Act 2020 (Philippines) ss 4–10, 25, 29.

37 Gemmo Bautista Fernandez, ‘Rise of Illiberal Democracy, Weakening of the Rule of Law, and Implementation of Human Rights in the Philippines’ (2021) 36(2) American University International Law Review 181, 183.

38 Philippines Constitution 1987 art VIII s 1; Bernas (n 1) 991.

39 Dante Gatmaytan, ‘Duterte, Judicial Deference, and Democratic Decay in the Philippines’ (2018) 28(4) Zeitschrift für Poltikwiseenschaft 553, 554 (‘Duterte, Judicial Deference and Democratic Decay’).

40 Alexis Romero, ‘Duterte Pushes 2 Dams for Metro Manila, Warns Courts’, The Philippine Star (online, 31 December 2019) <https://www.philstar.com/ headlines/2019/12/31/1980949/Duterte-pushes-2-dams-metro-manila-warnscourts>; Jeffrey Damicog, ‘Guevarra Backs President’s Warning to Courts vs Issuing TROs, Injunctions’, Manila Bulletin (online, 31 December 2019) <https:// mb.com.ph/2019/12/31/guevarra-backs-presidents-warning-to-courts-vsissuing-tros-injunctions/>. See Villamor (n 30).

41 See Gatmaytan, ‘Duterte, Judicial Deference, and Democratic Decay’ (n 39).

42 See, eg, Ocampo (n 2); Lagman v Medialdea, Supreme Court of the Philippines, GR No 231658, 4 July 2017 reported in 812 Philippine Reports 179 (2017); Pangilinan v Cayetano, Supreme Court of the Philippines, GR No 238875, 16 March 2021 (2021).

43 Irene Hadiprayitno, ‘Deadlock and Denial: Domestic Challenges and the Institutionalization Human Rights in ASEAN’ (2018) 19(1) Global Jurist 1, 10.

44 ‘House Gives CHR ₱1,000 Budget for 2018’, CNN Philippines (online, 14 September 2017) <http://nine.cnnphilippines.com/news/2017/09/12/ Commission-on-Human-Rights-CHR-House-budget.html>; Joseph Hincks, ‘In the Philippines, Human Rights Have a Precise Value: $20’, Time (online, 14 September 2017) <https://time.com/4939044/philippines-humanrights-budget-rodrigo-duterte>. Note that the budget of the Commission was restored after public outrage became ‘clear and unrelenting’: Gatmaytan, ‘State of Liberal Democracy’ (n 33) 220; Katrina Domingo, ‘Gascon: CHR Budget Restored Due to Public Outrage’, ABS-CBN News (online, 21 September 2017) <https://news.abs-cbn.com/news/09/21/17/ gascon-chr-budget-restored-due-to-public-outrage>.

45 See generally Scheppele (n 32) 547–8, 570.

46 Note that presidents such as Ramos, Estrada, Arroyo and Aquino enticed members of Congress through pork-barrel politics in which they granted representatives and senators lump-sum discretionary funds. This allowed members of Congress to fund projects in their constituencies, thus potentially gaining votes during elections: see Eric Vincent C Batalla, ‘Treading the Straight and Righteous Path: Curbing Corruption in the Philippines’ (2015) 4(1)

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Joanna Fuertes-Knight, ‘Attacks on the Media Show Duterte’s Philippines Is Heading for Despotism’, The Guardian (online, 16 February 2019)

Asian Education and Development Studies 51, 59; Wilfrido V Villacorta, ‘The Curse of the Weak State: Leadership Imperatives for the Ramos Government’ (1994) 16(1) Contemporary Southeast Asia 67, 78; Cathy Yamsuan, ‘Estrada’s Aborted Impeachment Trial Haunts Senate’, Inquirer (online, 25 December 2011) <https://newsinfo.inquirer.net/117133/estrada’s-aborted-impeachmenttrial-haunts-senate>; Karol Ilagan, ‘Bailiwicks, Not Poor Towns, Grab Slabs of House PDAF’, Philippine Centre for Investigative Journalism (online, 18 July 2012) <https://pcij.org/article/2559/bailiwicks-not-poor-townsbr-grab-slabsof-house-pdaf>; Tetch Torres, ‘Aquino Hit for “Pork Bribe” to Convict Corona’, Inquirer (online, 12 January 2012) <https://newsinfo.inquirer.net/126953/aquinohit-for-‘pork-bribe’-to-convict-corona>; Julliane Love De Jesus, ‘Aquino’s Men Deny P50-M “Incentive” to Oust Corona’, Inquirer (online, 26 September 2013) <https://newsinfo.inquirer.net/495583/aquinos-men-deny-p50-m-incentive-tooust-corona>; Amita O Legaspi ‘Aquino: We Didn’t Deprive Any Lawmaker of “Pork”’, GMA News (online, 21 March 2011) <https://www.gmanetwork.com/ news/news/nation/215809/aquino-we-didn-t-deprive-any-lawmaker-of-pork/ story/>.

47 Note that Arroyo, like Duterte and Marcos, also obtained the deference of the judiciary. While in of ce, most of the cases that concerned the limits of executive prerogative were decided in her favour: see, eg, Lacson v Perez, Supreme Court of the Philippines, GR No 147780, 10 May 2001 reported in 410 Philippine Reports 78 (2001); Sanlakas v Executive Secretary, Supreme Court of the Philippines, GR No 159085, 3 February 2004 reported in 466 Philippine Reports 482 (2004); David v Macapagal-Arroyo, Supreme Court of the Philippines, GR No 171396, 3 May 2006 reported in 522 Philippine Reports 705 (2006). But see Biraogo v Philippine Truth Commission, Supreme Court of the Philippines, GR No 192935, 7 December 2010 reported in 651 Philippine Reports 374 (2010).

48 Joseph Raz, The Authority of Law: Essays on Law and Morality (Clarendon Press, 1979) 211; Jeremy Waldron, ‘Is the Rule of Law an Essentially Contested Concept (in Florida)?’ (2002) 21(2) Law and Philosophy 137, 140.

49 Raz (n 48) 212. See F A Hayek, The Road to Serfdom: Text and Documents, ed Bruce Caldwell (Routledge, 2014) 55; HLA Hart, ‘Positivism and the Separation of Law and Morals’ (1958) 71(4) Harvard Law Review 593, 593; Lon L Fuller, ‘Positivism and Fidelity to Law: A Reply to Professor Hart’ (1958) 71(4) Harvard Law Review 630, 630, 643; Paul Craig, ‘Substantive Legitimate Expectations in Domestic and Community Law’ (1996) 55(2) Cambridge Law Journal 289, 290; John Finnis, Natural Law and Natural Rights (Oxford University Press, 1980) 270; Lon L Fuller, The Morality of Law (Yale University Press, rev ed, 1969) 107.

50 Raz (n 48) 211. See Miro Cerar, ‘The Ideology of the Rule of Law’ (2001) 97(3) Archives for Philosophy of Law and Social Philosophy 393, 401.

51 TRS Allan, ‘The Rule of Law as the Rule of Reason: Consent and Constitutionalism’ (1999) 115(Apr) Law Quarterly Review 221, 224 (‘Rule of Law as the Rule of Reason’). See Judith N Shklar, Political Thought and Political Thinkers, ed Stanley Hoffmann (University of Chicago Press, 1998) 270.

52 Allan, ‘Rule of Law as the Rule of Reason’ (n 51) 227.

53 Ibid.

54 TRS Allan, Constitutional Justice: A Liberal Theory of the Rule of Law (Oxford University Press, 2001) 54.

55 See Shannon C Stimson, ‘Constitutionalism and the Rule of Law’ in John Dryzek, Bonnie Honig and Anne Phillips (eds), The Oxford Handbook of Political Theory (Oxford University Press, 2008) 317.

56 Raz (n 48) 219.

57 Allan, ‘Rule of Law as the Rule of Reason’ (n 51) 223.

58 Ibid. Note that constitutionalism imposes limitations on the state, ‘particularly in its relations with citizens, based on a clearly de ned set of core values’: Dante Gatmaytan, ‘Lost in Transmission: Rule of Law Challenges in the Philippines’ (2017) 8 Impunity Watch Law Journal 6, 21 (‘Lost in Transmission’). See Yasmin Dawood, ‘The Antidomination Model and the Judicial Oversight of Democracy’ (2008) 96(5) Georgetown Law Journal 1411, 1434; Charles M Fombad, ‘Challenges to Constitutionalism and Constitutional Rights in Africa and the Enabling Role of Political Parties: Lessons and Perspectives from Southern Africa’ (2007) 55(1) American Journal of Comparative Law 1, 7; Walter F Murphy, ‘Constitutions, Constitutionalism, and Democracy’ in Douglas Greenberg et al (eds), Constitutionalism and Democracy: Transitions in the Contemporary World (Oxford University Press, 1993) 3; Vicki Jackson, ‘What’s in a Name? Re ections on Timing, Naming, and Constitution-Making’ (2008) 49(4) William and Mary Law Review 1249, 1254. Constitutionalism requires the existence of ‘limitations on the government [that] can be legally enforced’: Gatmaytan, ‘Lost in Transmission’ (n 58) 21. In this sense, constitutionalism and democracy may exist in tension when ‘what the people want at any given moment is over-ridden by constitutional principles that thwart that desire’: Scheppele (n 32) 557. See Samuel Issacharoff, ‘Constitutionalising Democracy in Fractured Societies’ (2004) 82(7) Texas Law Review 1861, 1861. Nevertheless, democratic constitutionalism resolves this tension ‘baking into constitutionalism the requirement of a self-sustaining democracy, a system in which the people can continue over time choosing their leaders, holding them to account, and

rotating power when leaders disappoint’: Scheppele (n 32) 557 (emphasis in original). See John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (Harvard University Press, 1980) 101–4, 116–20. Similarly, liberal constitutionalism reinforces democracy because it requires the state to ‘protect and defend the dignity and liberty of individuals so that they may sustain, among other things, the capacities to be democratic citizens’: Scheppele (n 32) 558. Constitutionalism mandates that ‘all sources of public power be subject to binding legal checks that, among other things, ensure that leaders stay within legal limits and guarantee the orderly rotation of leadership in response to shifting democratic majorities’: Scheppele (n 32) 558.

59 Raz (n 48) 229.

60 Gabriel Pabico Lalu, ‘#NeverAgain: 50 Years after Martial Law, Lagman says PH Must Not Allow Rights Abuses, Inquirer (online, 21 September 2022) <https:// newsinfo.inquirer.net/1668146/neveragain-50-years-after-martial-law-lagmansays-ph-must-not-allow-rights-abuses>.

61 Dante Gatmaytan, ‘Constitutional Deconsecration: Enforcing an Imposed Constitution in Duterte’s Philippines’ (2017) 62 Ateneo Law Journal 311, 333 (‘Constitutional Deconsecration’); Richard Javad Heydarian, The Rise of Duterte: A Populist Revolt against Elite Democracy (Palgrave Pivot, 2018) 4.

62 See Raul C Pangalangan, ‘Transplanted Constitutionalism: The Philippine Debate on the Secular State and the Rule of Law’ (2008) 82(3) Philippine Law Journal 1, 1; Kuroda v Jalandoni, Supreme Court of the Philippines, GR No L-2662, 26 March 1949 reported in 83 Philippine Reports 171 (1949). Note that the Philippines did not adopt its own system and principles of government. Rather, constitutional limits were crafted by United States colonial policy: Gatmaytan, ‘Constitutional Deconsecration’ (n 61) 334, citing Howard T Fry, ‘The Breakdown of the American Democratic Experiment in the Philippines: An Historical Analysis of a Crisis in Modernisation’ (1977) 23(3) Australian Journal of Politics and History 383, 388–9. See Philippine Organic Act of 1902, 48 USC (1902); Jones Act of 1916, Pub L No 64-240, 39 Stat 545 (1916). Indeed, the Philippine Constitution was to be formulated and drafted in line with the American vision: Philippine Independence Act 1934, Pub L No 73-127, § 2(a), 48 Stat 456. The 1935 Constitutional Convention worked within the framework of the terms of Philippine independence ‘bound by the wishes of the American people and the US government’: Gatmaytan, ‘Lost in Transmission’ (n 58) 31–2; Emmanuel Pelaez, ‘Law Reform and the Rule of Law’ (1962) 1 Philippines International Law Journal 441, 444. The Philippines in crafting its constitutional order, therefore, ‘drew its authority from the American Republic, not the Filipino people acting as agents in the exercise of their sovereign prerogatives’: Gatmaytan, ‘Lost in Transmission’ (n 58) 31.

63 Gatmaytan, ‘Constitutional Deconsecration’ (n 61) 340, 351, citing Nikolai G Wenzel, ‘Lessons from Constitutional Culture and the History of Constitutional Transfer: A Hope for Constitutionally Limited Government?’ (2014) 20(2) International Advances in Economic Research 213, 221.

64 Yash Ghai, ‘Chimera of Constitutionalism: State, Economy and Society in Africa’ (Speech, Chinese University of Hong Kong Faculty of Law, 10 March 2010).

65 Heydarian (n 61) 3. David S Randolf, Understanding Philippine Society, Culture, and Politics, ed Laura L Samson (Anvil Publishing, 2017) 169 notes: Our Constitution’s Declaration of Principles and State Policies may be read as a litany of our nation’s core values. Yet the conduct of our national life is antithetical to almost everything the Constitution celebrates. We don’t take our constitutional values seriously. It is obvious that enshrining them in the nation’s basic charter does not guarantee their realization. The problem is not their lack of clarity. The problem is their irrelevance to our national life. The fault is not in the values themselves, or in our genes or stars. It is simply that the conditions that make it possible for us to live up to our Constitution’s value aspirations are not there. We actually live by another set of values that are more congenial to the kind of society we have, more feudal than democratic, more traditional than modern, re ecting the social instincts of a highly unequal and underdeveloped nation.

66 Ruby Roselle L Tugade, ‘Beyond Legal Transformation: Assessing the Impact of Transitional Justice Mechanisms in the Philippines’ (2020) 93(1) Philippine Law Journal 77, 83.

67 Ghai (n 64) 3.

68 United Nations Security Council, Report of the Secretary-General: The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, UN Doc S/2004/616 (24 August 2004) [8].

69 See Philip Alston, ‘The Populist Challenge to Human Rights’ (2017) 9(1) Journal of Human Rights Practice 1, 4.

70 See Gatmaytan, ‘Duterte, Judicial Deference, and Democratic Decay’ (n 39) 554. Cf Avery Poole, Democracy, Rights and Rhetoric in Southeast Asia (Palgrave Macmillan, 2019) 14.

71 Alston (n 69) 4.

72

Pablo de Greiff, Report of the Special Rapporteur on the Promotion of Truth, Justice, Reparation, and Guarantees of Non-Recurrence, 30th sess, Agenda Item 3, UN Doc A/HRC/30/42 (7 September 2015) [77].

73 See Learned Hand, ‘The Spirit of Liberty’ (Speech, New York, 1944).

Gemmo Bautista Fernandez, There and Back Again

Asia and the Death Penalty

Reassessing the Prospects for Abolition

Catherine Renshaw*

*

In 2009, David Johnson and Franklin Zimring predicted that: ‘[o]n current evidence, the abolition of capital punishment in Asia is not a question of whether but of when, and the critical issues seem to concern the pace and processes of change rather than the direction changes will take or their eventual end point’.1 The authors identi ed the ‘powerful and primary role of democratization’, particularly as a consequence of economic development, as the clearest causal factor in stimulating change in execution policy.2 There may be anomalies, such as in Japan, and cases where economic development is not accompanied by democratisation, such as China and Vietnam. Because of these, the process of decline may be uneven.3 Nevertheless, the authors maintained that the road to abolition, over an extended time frame, ran in one direction only.4

This article reviews progress towards abolition in Asia in the period 2010–20. It argues that trends, which appeared well-established in Asia a decade ago and augured well for abolition (such as the overall decline in the number of executions, the poor social reputation of capital punishment among the region’s elites and popular wishes for democratic government),5 seem, in the second decade of the 21st century, to be far less certain. New developments, such as China’s growing assertiveness and in uence in international forums, global economic instability in the wake of the COVID19 pandemic, and anti-democratic developments and populist resurgences across Asia, cast doubt on previous predictions about the unidirectional move to abolition.

This article outlines three central reasons why the prediction of Asia’s downward trajectory for capital punishment requires revision. First, domestic developments in countries such as Afghanistan, Myanmar, Bangladesh and India suggest we can no longer assume the overall rate of executions across Asia will slow. Where the death penalty remains a legal option, as it does in many Asian countries, resuming or continuing executions will remain among the repertoire of responses to social crises and political insecurity. Second, there are reasons to question whether Asian political elites still value the reputational salience of ‘belonging’ to the group of abolitionist countries. This is signi cant, given that death penalty reform is held to be an elite-led process. Third, in China and Vietnam, which are two of the world’s most steadfast proponents of the death penalty, it is not plausible to assume the inevitable triumph of liberal democracy — and with it the end of capital punishment.

Before examining recent developments and explaining what they signal for the future of the death penalty in Asia, this article explains why the abolition of the death penalty is regarded as the signature issue of the human rights movement.

I The Death Penalty as a Human Rights Violation

From a human rights perspective, opponents of the death penalty argue that the penalty and the way in which the penalty is exercised violate rights that are

Professor of Law, Western Sydney University.

fundamental and to which there are no exceptions. Key amongst these is the right to life 6 and the right not to be subjected to torture or cruel, inhuman or degrading treatment or punishment.7 In addition to this, because of its nality, the death penalty is a punishment that far exceeds any crime. 8 Underpinning these arguments is the belief that the death penalty is inherently inhuman and degrading. 9 When a state takes the life of a person, in an organised, legal, intentional manner, it denies the convicted person the dignity that attaches to them because they are human. Dignity is stripped away in the profoundly agonising process that begins with conviction and ends in death.10 Advocates for ending capital punishment explicitly tie abolition to the evolution of civilised society, and to Enlightenment ideals about the sanctity of human life. If the human rights movement has a signature issue, the death penalty is it.

Although the right to life is protected in art 3 of the Universal Declaration of Human Rights (‘UDHR ’),11 no mention is made of the death penalty. This is because when members of the edgling United Nations signed the UDHR in 1948, most states still employed the death penalty. Indeed, many of the war criminals convicted by post-war tribunals at Nuremberg and Tokyo were sentenced to death.12 The question for the drafters of the UDHR was whether the death penalty should be included in the UDHR as a speci c exception to the right to life; or rather not referred to at all, in the hope that worldwide abolition would soon be part of a new post-war age of respect for the rights and dignity of individuals. In the end, the latter path was chosen.

By the time the drafting of the International Covenant on Civil and Political Rights (‘ICCPR ’) 13 was completed in 1966, it was clear that the path to abolition would be far from smooth. Three of the ve great powers of the Cold War period — China, the Soviet Union and the United States — maintained the death penalty.14 The drafters of the ICCPR, therefore, set out to circumscribe the conditions under which the death penalty could be imposed (only for ‘the most serious crimes’) and to include speci c safeguards and restrictions on its implementation — anyone sentenced to death must be able to seek pardon or commutation; death sentences cannot be imposed for crimes committed by persons under 18 years of age and cannot be carried out on pregnant women.15 In 1989, an Optional Protocol was added to the ICCPR, forbidding state parties to the Protocol from carrying out executions.16 The global advocacy strategy to end the practice of capital punishment involves major international human rights organisations such as Amnesty International and Human Rights Watch, and key United Nations actors, such as the Human Rights Council, the Of ce of the High Commissioner for Human Rights and the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions. Since 2007, the United Nations General Assembly has passed a biannual resolution calling on states to progressively restrict the use of the death penalty and establish a moratorium on executions with a view to abolishing the death penalty.17 The ever-increasing number of states supporting the moratorium has been heralded as evidence of global momentum towards the ultimate abolition of the death penalty across the world.18

II Asia and the Death Penalty

Although it is problematic to de ne ‘Asia’ as a coherent region,19 it is nevertheless possible, for the purposes of assessing global human rights trends, to identify a group of 26 countries that belong either to recognised Asian sub-regional organisations (such as the Association of Southeast Asian Nations or the South Asian Association for Regional Cooperation) or to East Asia. These states are Afghanistan, Bangladesh, Bhutan, Brunei, Cambodia, China, India, Indonesia, Japan, Laos, Malaysia, Maldives, Mongolia, Myanmar, Nepal, North Korea, Pakistan, Papua New Guinea, the Philippines, South Korea, Singapore, Sri Lanka, Taiwan, Thailand, Timor Leste and Vietnam.20 With the exception of Taiwan,21 these states all belong to the United Nations regional grouping of ‘Asia-Paci c States’. 22 Almost half these states were present at the historic Bandung Conference in 1955 when Asian and African leaders came together to assert their independence and oppose imperialism in the context of great power rivalry during the early period of the Cold War. 23 These states were also signatories to the 1993 Bangkok Declaration, which Asian leaders prepared in the run-up to the World Conference on Human Rights.24 The Bangkok Declaration was a critique of what was perceived to be the selective and hypocritical application of human rights standards by Western states on the developing states of Asia.25

Court of Conscience Issue 16, 2022

For these reasons, in short, it is defensible to consider ‘Asia’ as a distinct region for the purpose of analysing human rights developments.26

In Europe, only Belarus maintains the death penalty.27 In Asia, all the major population centres are retentionist and China carries out more executions than any other country in the world.28 Those who study the death penalty as a social phenomenon regard Asia as ‘the next important frontier’ for death penalty reform.29 Writing in 2010, Johnson argued that the death penalty in Asian states was in decline. 30 At the time, ve states (Bhutan, Cambodia, Nepal, the Philippines and Timor Leste) had abolished the death penalty altogether.31 Seven states (Brunei, Laos, Maldives, Myanmar, Papua New Guinea, South Korea and Sri Lanka) were ‘de facto’ abolitionist — they had not carried out any executions in the previous 10 years.32 The remaining 13 states (Bangladesh, China, India, Indonesia, Japan, Malaysia, Mongolia, North Korea, Pakistan, Singapore, Taiwan, Thailand and Vietnam) retained the death penalty and carried out executions.33 But Johnson held that, even in retentionist states, the use of the death penalty in sentencing was becoming less frequent and executions were carried out more rarely. 34 In South Korea and Taiwan, execution rates had dropped dramatically.35 In India, a signi cant country because of its large population, only one person was executed in the 10 years between 1998 and 2007.36 The conclusion drawn by Johnson was that, eventually, the death penalty as a criminal sanction in Asia would fall into desuetude and then would nally be abolished. 37

The assumption was that Asian states would follow the same path to abolition that states in Europe followed some three decades earlier. First, governments progressively narrowed the category of crimes to which the death penalty applied. Next, they implemented a moratorium on the practice of the death penalty. Finally, they abolished it altogether, often after the election of a left-of-center government. 38 One clear distinction between Asia and Europe is the absence in Asia of strong regional organisations, such as the Council of Europe and the European Union, where membership is conditional on the abolition of the death penalty. But from the vantage point of 2010, other causal factors appeared to make comparisons between Asia and Europe, and predictions about Asia’s future path, relatively plausible. For example, one factor driving abolition in Europe was the presence of political elites who were opposed to the death penalty. 39 These kinds of political elites were also present in Asia. 40 Another factor leading to abolition in Europe was the collapse of authoritarian regimes and the efforts of new regimes to distance themselves from the old by renouncing state killing. 41 This phenomenon was also taking place in some Asian states, where left-liberal governments, traditionally ill-disposed to capital punishment, were taking power. 42 Asia’s impressive level of economic development was also relevant because in Europe, according to Johnson, this tended to produce ‘moral improvements that ultimately produce pressure for political reform’. 43

III Asia’s Path to Abolition in the Period 2010–20: Retreat and Regression

At rst blush, developments in the period 2010–20 appear to bear out Johnson’s prediction of a decline in the death penalty in Asia. One piece of evidence is the fact that in the decade from 2010 to 2020, there was an increase in the number of Asian states supporting the United Nations General Assembly’s Moratorium on the Use of the Death Penalty (‘Moratorium’). The rst vote on the Moratorium took place in 2007. In that vote, 16 Asian states were against the Moratorium and four abstained from voting. 44 In contrast, in the 2020 vote, only 11 Asian states voted against the Moratorium45 and ve abstained. 46 Human rights advocates view voting on the Moratorium to be a signi cant indicator of a state’s intention to maintain abolition or to bring an end to capital punishment, because it provides evidence of elite intentions to effect reform and provides transnational advocacy groups, and domestic human rights groups, with a powerful tool to lobby for abolition. 47

Mongolia’s experience demonstrates how international commitments can lead to domestic change. Mongolia voted against the Moratorium in 2007 but in favour of it in 2010 and on every subsequent occasion thereafter. 48 In 2012, Mongolia rati ed the Second Optional Protocol to the International Covenant on Civil and Political Rights, and in 2015, passed a law abolishing the death penalty. 49 In 2015, Mongolia hosted what is arguably the most signi cant annual human rights gathering in the Asia Paci c, the annual meeting of the Asia Paci c Forum of National Human Rights Institutions. 50 In his opening address to the meeting, Mongolia’s President, Tsakhiagiin Elbegdorj, identi ed the right to life as the beginning of

Catherine Renshaw, Asia and the Death Penalty

all human rights, and described Mongolia’s transition from a country with one of the highest rates of execution in the world to a country that has abolished capital punishment. He pointed out that the decision to abolish capital punishment in Mongolia did not re ect public opinion. Instead, it was the result of his decision as a leader who valued the pursuit of human rights as his most important job. 51

In the rest of Asia, however, there is a more complicated picture. In the period 2010–20, other than Mongolia, only one other state — Papua New Guinea — moved from the retentionist to the abolitionist camp. 52 In at least two of the existing abolitionist states, there were concerning developments. In the Philippines, Rodrigo Duterte campaigned on a platform that included the reinstatement of the death penalty. 53 Following his election as President, the House of Representatives passed — with a large majority — a bill to reinstate the death penalty. 54 The bill was ultimately narrowly defeated in the Senate. 55 Political allies of Duterte continued to agitate for reinstatement, despite the election of a new President who does not appear to support the death penalty. 56 In Nepal, capital punishment is prohibited under the Constitution and no execution has taken place since 1979. 57 Nevertheless, in the wake of a surge in cases of sexual violence against women and girls, and the execution in 2020 of four rapists in neighbouring India, Nepal’s female parliamentarians formed a coalition to lobby for the reinstatement of the death penalty for rape. 58 Surveys revealed that 84% of the population of Nepal was supportive of the death penalty as a punishment for rape. 59 Other Asian countries that were ‘de facto abolitionist’ remained so. But, in 2013, Brunei introduced a new penal code that provides for capital punishment, including death by stoning, for a range of offences.60 Unlike Europe, which has, for the most part, abandoned the death penalty, 61 in Asia, even among some of the region’s earliest and staunchest proponents of abolition, reinstatement of the death penalty is still a political possibility.

Among the states that in 2010 were regarded as ‘de facto’ abolitionist because no executions had been carried out in the previous 10 years, capital punishment was still an important sentencing option for judges. In 2017, Sri Lankan courts handed down 218 death sentences. 62 The continued use of capital punishment in sentencing is a signal of commitment to the death penalty as a social institution, normalising capital punishment in society and popular culture. Furthermore, when large numbers of death sentences are handed down, the stories of those sentenced are depersonalised, making it more dif cult for citizens to identify with people who face the death penalty and more dif cult for elites to champion the cause of reform. 63 In 2022 Sri Lanka’s economy collapsed and there was popular revolt against inequality, entrenched political hierarchies and elite corruption. 64 It is unclear which direction the country will take but there is no clear path to the election of a stable liberal majority government prepared to enact penal reform.

All Asia’s retentionist states carried out executions in the period 2010–20. 65 Some states reversed long-running trends of only very rarely carrying out executions — or carrying out executions in very low numbers. India is one example. Johnson reported that in the 10 years between 1998 and 2007, India executed only one person. 66 In 2020 alone, India executed four men convicted of the crimes of rape and murder, following public outrage over the death of their victim, ‘Nirbhaya’ — the fearless one. 67 In Bangladesh, there were only two years in the period 2010–21 in which no one was executed.68 In 2021, the government of Bangladesh expanded the range of crimes to which the death penalty applies to include rape of women and children. 69 In Afghanistan, a two and a half year moratorium on executions ended in 2011, after which there were executions every year until 2019.70 Pakistan lifted a moratorium on executions in 2014.71 In 2015 alone, 326 people were executed.72 In China, Vietnam and North Korea, there are no reliable statistics about the numbers executed.73 China maintained its status as the country that executes more people than any other country in the world.74

IV Explaining the Trends

One of the most convincing explanations for why states retain the death penalty concerns the character of government. Authoritarian governments are more likely to both retain and use the death penalty, while changes in death penalty law and policy are more likely to occur when liberal, left-of-center parties control government.75 Given this, an important gauge of the future of the death penalty in Asia is whether authoritarian states such as China and Vietnam are likely to democratise

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and whether new or fragile democracies will consolidate democratic gains. On this front, the trends in several Asian countries are moving in the wrong direction.76 China, Laos and Vietnam remain authoritarian communist states. In Afghanistan, the Taliban took power in 2021, and announced a return to executions and amputations of hands as forms of punishment.77 Observers fear the Taliban will resume the form of capital punishment exercised under Taliban rule in the period from 1992–2001, when adultery was punished by stoning to death, homosexuality was punished by being buried alive, and murders and dissidents were summarily executed.78 In Myanmar, until July 2022, there had been no executions in three decades. In February 2021, Myanmar’s military carried out a coup d’état and replaced the democratically elected government of Aung San Suu Kyi with a military junta.79 In June 2022, the military announced that the death penalty would be meted out to former politician Phyo Zeya Thaw and pro-democracy activist Kyaw Min Yu after their conviction by a military tribunal on crimes of terrorism and treason. 80 Phyo Zeya Thaw and Kyaw Min Yu, and two others, were executed in July 2022. 81 In India and Indonesia, populist leaders hold power. 82 India’s Narendra Modi championed the expansion of the range of crimes to which the death penalty applies to include the rape of minors. 83 Indonesia’s Joko Widodo, after initially appearing to soften his stance on capital punishment, ultimately supported the death penalty for drug offences as a central part of Indonesia’s ‘war on drugs’. 84 With the exception of Malaysia, the rise of liberal, left-leaning governments is less likely now than it was in 2010. 85

Whatever the governmental system, as David Johnson and Franklin Zimring note, ‘the most likely proximate cause of substantive change in death penalty policy is the leadership of political elites.’86 An important question, therefore, is how elite views are formed and translated into the political environments in which policy choices take place. In the early 2000s, Ryan Goodman and Derek Jinks identi ed a process of human rights change via a dynamic of acculturation, where actors adopt the beliefs and behavioural patterns of surrounding cultures. 87 The idea is that actors respond to cognitive and social pressures to conform to group norms and expectations. The biannual United Nations General Assembly vote on the death penalty moratorium is an example of how human rights advocates attempt to harness the process of acculturation to encourage elites to join the ‘in group’ of human rights respecting states to support a moratorium on the death penalty. Within the society of states, death penalty abolition is held out as a position with high moral status.

In 2020, however, it is no longer clear that Asia’s elites believe the Western-led, abolitionist ‘in group’ is the place to be. Leaders such as India’s Prime Minister Modi and China’s Xi Jinping increasingly assert their country’s right to determine its own human rights priorities (generally development and poverty alleviation). New geostrategic alignments are forming, such as the Quadrilateral Security Dialogue (Australia, Japan, India and the United States) where Australia, as the only abolitionist country, is the outsider. The extent of social-psychological in uence and the level of effect of moral signalling in international relations is debatable. 88 But it is uncontroversial that the West’s in uence and moral cache are dwindling. 89 How this effects prospects for death penalty reform in Asia remains to be seen. V Conclusion

Advocates for the abolition of the death penalty assume that in Asia, as in Europe, capital punishment will eventually become a legal remnant, with the number of offences to which it applies gradually dwindling until the penalty itself is nally removed when domestic political circumstances are propitious. This article takes issue with this complacency, arguing that the link between authoritarianism and use of the death penalty is the clearest causal factor explaining the continued use of capital punishment and given this, the trends in Asia run counter to abolition of any predictable timeline. We cannot assume democratisation in Asian countries or the assumption of power by liberal, left-leaning political parties, and we cannot assume the rise of a class of political elites who are well-disposed to Western human rights agendas. At the end of their important 2009 study of the death penalty in Asia, Johnson and Zimring caution that their prediction about abolition contains a large margin of error, and they reminded readers that there is no law that says all political change will be in the direction of more democratic government and increased respect for human rights. 90 From the vantage point of the second decade of the 21st century, this caution has proven, unfortunately, to be well-founded.

Catherine Renshaw, Asia and the Death Penalty

1 David T Johnson and Franklin E Zimring, The Next Frontier: National Development, Political Change, and the Death Penalty in Asia (Oxford University Press, 2009) 328 (‘The Next Frontier’).

2 Ibid 297.

3 Ibid 329.

4 Ibid.

5 Ibid 327–8.

6 Jon Yorke, ‘The Right to Life and the Abolition of the Death Penalty in the Council of Europe’ in Jon Yorke (ed), The Right to Life and the Value of Life: Orientations in Law, Politics and Ethics (Routledge, 2016) 233, 233.

7 Patrick Hudson, ‘Does the Death Row Phenomenon Violate a Prisoner’s Rights under International Law?’ (2000) 11(4) European Journal of International Law 833, 837.

8 Carol S Steiker, ‘No, Capital Punishment Is Not Morally Required: Deterrence, Deontology and the Death Penalty’ (2005) 58(3) Stanford Law Review 751, 765–9.

9 William A Schabas, ‘International Law and Abolition of the Death Penalty’ (1998) 55(3) Washington and Lee Law Review 797, 808.

10 Richard J Bonnie, ‘The Dignity of the Condemned’ (1988) 74(8) Virginia Law Review 1363, 1377.

11 Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, UN Doc A/810 (10 December 1948) art 3 (‘UDHR’).

12 Schabas (n 9) 797.

13 International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) (‘ICCPR’).

14 In 2022, it is still the case that China, Russia and the United States retain the death penalty: ‘Death Penalty 2021: Facts and Figures’, Amnesty International (Web Page, 24 May 2022) <https://www.amnesty.org/en/latest/news/2022/05/ death-penalty-2021-facts-and- gures/> (‘Death Penalty 2021’).

15 ICCPR (n 13) art 6(2).

16 Optional Protocol to the International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) (‘Optional Protocol’). At the time of writing, 116 states are signatories to the Optional Protocol while 173 countries are state parties to the ICCPR: ‘Status of Rati cation Interactive Dashboard’, Office of the United Nations High Commissioner for Human Rights (Web Page, 3 November 2022) <https://indicators.ohchr.org/>.

17 Moratorium on the Use of the Death Penalty, GA Res 62/149, UN GAOR, 62nd sess, 76th mtg, UN Doc A/RES/62/149 (26 February 2008, adopted 18 December 2007); Moratorium on the Use of the Death Penalty, GA Res 63/168, UN GAOR, 63rd sess, 70th mtg, UN Doc A/RES/63/168 (13 February 2009, adopted 18 December 2008); Moratorium on the Use of the Death Penalty, GA Res 65/206, UN GAOR, 65th sess, 71st mtg, UN Doc A/RES/65/206 (28 March 2011, adopted 21 December 2010); Moratorium on the Use of the Death Penalty, GA Res 67/176, UN GAOR, 67th sess, 60th mtg, UN Doc A/ RES/67/176 (20 March 2013, adopted 20 December 2012); Moratorium on the Use of the Death Penalty, GA Res 69/186, UN GAOR, 69th sess, 73rd mtg, UN Doc A/RES/69/186 (4 February 2015, adopted 18 December 2014); Moratorium on the Use of the Death Penalty, GA Res 71/187, UN GAOR, 71st sess, 65th mtg, UN Doc A/RES/71/187 (2 February 2017, adopted 19 December 2016); Moratorium on the Use of the Death Penalty, GA Res 73/175, UN GAOR, 73rd sess, 55th mtg, UN Doc A/RES/73/175 (23 January 2019, adopted 17 December 2018); Moratorium on the Use of the Death Penalty, GA Res 75/183, UN GAOR, 75th sess, 46th mtg, UN Doc A/RES/75/183 (28 December 2020, adopted 16 December 2020).

18 ‘Helping the World Achieve a Moratorium on Executions’, World Coalition against the Death Penalty (Web Page, 20 October 2020) <https://worldcoalition. org/campagne/helping-the-world-achieve-a-moratorium-on-executions/> (‘Moratorium on Executions’).

19 See Amitav Acharya, ‘Asia Is Not One’ (2010) 69(4) The Journal of Asian Studies 1001; Amitav Acharya, ‘The Idea of Asia’ (2010) 9(1) Asia Policy 32.

20 Australia and New Zealand are not included in this list, although they feature in other lists of ‘Asian states’. For the purpose of most United Nations regional groupings, Australia and New Zealand belong to the ‘Western European and other states’ group: ‘Regional Groups of Member States’, United Nations (Web Page). Hong Kong and Macao are not included in this list as they are part of China although they also feature in other lists of ‘Asian states’.

21 Ibid. Taiwan does not have of cial recognition as a state. China and most other countries regard Taiwan as part of China.

22 Ibid. The United Nations ‘Asia-Paci c’ group is a regional grouping of 55 states that includes ‘Paci c’ states, such as Samoa, Tonga, Solomon Islands and Fiji, West Asian states, such as Iran and Iraq, and Central Asian states, such as Kazakhstan and Kyrgyzstan.

23 Roland Burke, ‘“The Compelling Dialogue of Freedom”: Human Rights at the Bandung Conference’ (2006) 28(4) Human Rights Quarterly 947, 961–5.

24 Report of the Regional Meeting for Asia of the World Conference on Human Rights, GA Res 54/254, UN Docs A/CONF/157/ASRM/8 and PC/23 (7 April 1993).

25 See, eg, Diane K Mauzy, ‘The Human Rights and “Asian Values” Debate in Southeast Asia: Trying to Clarify the Key Issues’ (1997) 10(2) The Pacific Review 210, 220–2.

26 See also Pip Nicholson, ‘The Death Penalty and Its Reduction in Asia: An Overview’ (Brie ng Paper, Asian Law Centre, 2017).

27 ‘Death Penalty 2021’ (n 14).

28 Ibid.

29 See generally Johnson and Zimring, The Next Frontier (n 1) 3.

30 David T Johnson, ‘Asia’s Declining Death Penalty’ (2010) 69(2) The Journal of Asian Studies 337.

31 Ibid 339.

32 Ibid.

33 Ibid.

34 Ibid 337.

35 Ibid 340.

36 Ibid 339.

37 Ibid 345.

38 See generally Council of Europe, The Death Penalty: Abolition in Europe, ed Tanja Kleinsorge and Barbara Zatlokal (1999).

39 Johnson, ‘Asia’s Declining Death Penalty’ (n 30) 341.

40 Ibid 340. Johnson identi es President Kim Dae Jung in South Korea and President Chen Shui-bian in Taiwan.

41 Ibid 341.

42 One example is the election of the National League for Democracy in Myanmar in 2015 and 2020, following decades of military rule.

43 Johnson, ‘Asia’s Declining Death Penalty’ (n 30) 342.

44 ‘Moratorium on Executions’ (n 18); United Nations, ‘General Assembly Adopts Landmark Text Calling for Moratorium on Death Penalty’ (Press Release, 18 December 2007) <https://press.un.org/en/2007/ga10678.doc.htm>.

45 ‘Statement on the Adoption of the 8th UN General Assembly Resolution for a Moratorium on the Use of the Death Penalty, World Coalition against the Death Penalty (Web Page, 17 December 2020) <https://worldcoalition.org/2020/12/17/ statement-on-the-adoption-of-the-8th-un-general-assembly-resolution-for-amoratorium-on-the-use-of-the-death-penalty/>.These states are Afghanistan, Bangladesh, Brunei, China, India, , Japan, Maldives, North Korea, , Pakistan, Papua New Guinea and Singapore.

46 Ibid. In 2020, the Asian states that abstained from voting were Indonesia, Laos, Myanmar, Thailand and Vietnam.

47 The ‘spiral model’ of human rights change is described by Stephen Ropp, Kathryn Sikkink and Thomas Risse in their book, The Power of Human Rights: International Norms and Domestic Change (Cambridge University Press, 1999).

48 International Commission against Death Penalty, How States Abolish the Death Penalty: 29 Case-Studies (Report, 2nd ed, May 2018) 38 (‘How States Abolish the Death Penalty’).

49 Optional Protocol (n 16); ‘Mongolia: Historic Vote Abolishes Death Penalty’, Amnesty International (Web Page, 4 December 2015) <https://www.amnesty. org/en/latest/press-release/2015/12/mongolia-historic-vote-abolishes-death-penalty/>.

50 The Asia Paci c Forum of National Human Rights Institutions (‘APF’) was founded in 1996 as a coalition of national human rights institutions that work together to address human rights challenges in the region. In the absence of a pan-Asian human rights institution, the APF does the work of building human rights capacity, supporting advocacy and disseminating human rights norms across the Asia Paci c. See Andrew Byrnes, Andrea Durbach and Catherine Renshaw, ‘Joining the Club: The Asia Paci c Forum of National Human Rights Institutions, the Paris Principles, and the Advancement of Human Rights Protection in the Region’ (2008) 14(1) Australian Journal of Human Rights 63.

51 ‘Tsakhiagiin Elbegdori: Mongolia Will Always Say “YES” to Human Rights’, News.mn (online, 31 August 2015) <https://news.mn/en/220992/>.

52 ‘IBAHRI Applauds Papua New Guinea’s Decision to Abolish the Death Penalty’, International Bar Association (Web Page, 22 February 2022) <https://www.ibanet.org/ IBAHRI-applauds-Papua-New-Guineas-decision-to-abolish-the-death-penalty>.

53 How States Abolish the Death Penalty (n 48) 41.

54 Ibid.

55 Ibid; ‘Philippines and the Death Penalty’, Parliamentarians for Global Action (Web Page) <https://www.pgaction.org/ilhr/adp/phl.html>; Alexis Romero and Paolo Romero, ‘Death Penalty Dead in Senate: Drilon’, The Philippine Star (online, 27 April 2017) <https://www.philstar.com/ headlines/2017/04/27/1689114/death-penalty-dead-senate-drilon>.

56 Catherine S Valente, ‘Marcos Not Keen on Reviving Death Penalty’, The Manila Times (online, 20 March 2022) <https://www.manilatimes.net/2022/03/20/news/ marcos-not-keen-on-reviving-death-penalty/1836944>. See also Jose M Jose and Maria Corazon A De Ungria, ‘Death in the Time of COVID-19: Efforts to Restore the Death Penalty in the Philippines’ (2021) 2 Forensic Science International: Mind and Law 100054 1, 1–4; Grace Keane O’Connor, ‘Adoption of Bill Allowing the Imposition of the Death Penalty for a New Crime’, World Coalition against the Death Penalty (online, 30 April 2021) <https://worldcoalition.org/2021/04/30/ adoption-of-bill-allowing-the-imposition-of-the-death-penalty-for-a-new-crime/>.

57 Amnesty International, The Death Penalty: List of Abolitionist and Retentionist Countries (Report, 30 January 1991) 3 <https://www.amnesty.org/en/ wp-content/uploads/2021/06/act500011991en.pdf>.

58 Lekhanath Pandey Kathmandu, ‘Rape Cases in Nepal Trigger Death Penalty Discussion’, Deutsche Welle (online, 10 December 2020) <https://www.dw.com/ en/nepal-women-protest-surge-in-rape-cases/a-55248955>.

59 Cilla Khatry, ‘The Case against Capital Punishment in Nepal’, The Annapurna Express (online, 10 October 2020) <https://theannapurnaexpress.com/news/ the-case-against-capital-punishment-in-nepal-2831>.

60 Catherine Michelle Renshaw, ‘Southeast Asia’s Human Rights Institutions and the Inconsistent Power of Human Rights’ (2021) 20(2) Journal of Human Rights

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176, 177; ‘Brunei: New Penal Code Imposes Maiming, Stoning’, Human Rights Watch (Web Page, 3 April 2019) <https://www.hrw.org/news/2019/04/03/bruneinew-penal-code-imposes-maiming-stoning>; ‘Brunei’s Pernicious New Penal Code’, Human Rights Watch (Web Page, 22 May 2019) <https://www.hrw.org/ news/2019/05/22/bruneis-pernicious-new-penal-code>.

61 Brian Knowlton, ‘US Edges Closer to Europe in Attitude to Capital Punishment, Experts Say’, The New York Times (online, 16 June 2014) <https://www.nytimes. com/2014/06/17/world/europe/In-Europe-and-US-Divergent-Attitudes-TowardCapital-Punishment.html>.

62 Amnesty International, Death Sentences and Executions 2017 (Global Report, April 2018) 7 (‘Death Sentences and Executions 2017’).

63 See John Zhuang Liu, ‘Public Support for the Death Penalty in China: Less from the Populace but More from Elites’ (2021) 246 The China Quarterly 527, 536–7.

64 ‘Sri Lanka: Economic Crisis Puts Rights in Peril’, Human Rights Watch (Web Page, 16 August 2022) <https://www.hrw.org/news/2022/08/16/ sri-lanka-economic-crisis-puts-rights-peril>.

65 Amnesty International, Death Sentences and Executions 2010 (Report, March 2011); Amnesty International, Death Sentences and Executions 2011 (Report, March 2012); Amnesty International, Death Sentences and Executions 2012 (Report, April 2013) (‘Death Sentences and Executions 2012’); Amnesty International, Death Sentences and Executions 2013 (Report, March 2014) (‘Death Sentences and Executions 2013’); Amnesty International, Death Sentences and Executions 2014 (Report, April 2015) (‘Death Sentences and Executions 2014’); Amnesty International, Death Sentences and Executions 2015 (Global Report, April 2016) (‘Death Sentences and Executions 2015’); Amnesty International, Death Sentences and Executions 2016 (Global Report, April 2017) (‘Death Sentences and Executions 2016’); Death Sentences and Executions 2017 (n 62); Amnesty International, Death Sentences and Executions 2018 (Global Report, April 2019) (‘Death Sentences and Executions 2018’); Amnesty International, Death Sentences and Executions 2019 (Global Report, April 2020) (‘Death Sentences and Executions 2019’); Amnesty International, Death Sentences and Executions 2020 (Global Report, April 2021) (‘Death Sentences and Executions 2020’).

66 Johnson, ‘Asia’s Declining Death Penalty’ (n 30) 339.

67 Death Sentences and Executions 2020 (n 65) 24, 28; ‘Nirbhaya Case: Four Indian Men Executed for 2012 Delhi Bus Rape and Murder’, BBC News (online, 20 March 2020) <https://www.bbc.com/news/world-asia-india-51969961>.

68 ‘Statistics on Death Penalty: Death Penalty from 2010–2021’, Odhikar (Web Page, 2022) <http://odhikar.org/statistics/statistics-on-death-penalty/>.

69 ‘Bangladesh’s Cabinet Approves Death Penalty in Rape Cases’, The Times of India (online, 12 October 2020) <https://timeso ndia.indiatimes.com/ world/south-asia/bangladeshs-cabinet-approves-death-penalty-in-rapecases/articleshow/78619899.cms>. See also ‘Bangladesh: Events of 2020’, Human Rights Watch (Web Page) <https://www.hrw.org/world-report/2021/ country-chapters/bangladesh>.

70 In 2012, 14 people were executed, in 2014, six people were executed and in 2016, six people were executed: Death Sentences and Executions 2012 (n 65) 9; Death Sentences and Executions 2013 (n 65) 7; Death Sentences and Executions 2014 (n 65) 5; Death Sentences and Executions 2015 (n 65) 6; Death Sentences and Executions 2016 (n 65) 17; Death Sentences and Executions

2017 (n 62) 6; Death Sentences and Executions 2019 (n 65) 9; Death Sentences and Executions 2019 (n 65) 21.

71 Death Sentences and Executions 2015 (n 65) 37.

72 Ibid.

73 Amnesty International, Death Sentences and Executions 2021 (Global Report, May 2022) 6, 28 (‘Death Sentences and Executions 2021’).

74 ‘Death Penalty 2021’ (n 14).

75 Johnson and Zimring, The Next Frontier (n 1) 347–51.

76 Lindsey W Ford and Ryan Hass, ‘Democracy in Asia’, Brookings Institution (Web Page, 22 January 2021) <https://www.brookings.edu/articles/democracy-inasia/>.The authors write: ‘[i]n recent years, however, democratic backsliding has shifted the political tides in the opposite direction, leading to a resurgence of illiberalism, and in some cases, rising authoritarianism.’

77 ‘Taliban Of cial Says Strict Punishment and Executions Will Return’, National Public Radio (online, 24 September 2021) <https://www.npr.org/2021/09/24/ 1040339286/taliban-of cial-says-strict-punishment-and-executions-will-returns>.

78 Art Cody and Dominique Day, ‘Afghanistan: Death Penalty at the Crossroads’ in Peter Hodgkinson (ed), Capital Punishment: New Perspectives (Routledge, 2013) 243, 244.

79 Death Sentences and Executions 2021 (n 73) 33.

80 Nicholas Koumjian, ‘Death Sentences Announced by Myanmar Military May Constitute a Serious International Crime: Statement by Nicholas Koumjian, Head of Independent Investigative Mechanism for Myanmar’, United Nations (Web Page, 20 June 2022) <https://iimm.un.org/death-sentences-announcedby-myanmar-military-may-constitute-a-serious-international-crime/>.

81 ‘World Condemns Myanmar Junta for “Cruel” Execution of Activists’, Reuters (online, 26 July 2022) <https://www.reuters.com/world/asia-paci c/ myanmar-junta-execute-four-democracy-activists-state-media-2022-07-25/>.

82 Subir Sinha, ‘“Strong leaders”, Authoritarian Populism and Indian Developmentalism: The Modi Moment in Historical Context’ (2021) 124 Geoforum 320, 320–3; Eduard Lazarus, ‘The Unravelling of Indonesia’s Populist Politics’, Asia Democracy Chronicles (online, 9 June 2022) <https:// adnchronicles.org/2022/06/09/the-unraveling-of-indonesias-populist-politics/>.

83 James Tapper and Bhanvi Satija, ‘India to Introduce Death Penalty for Child Rapists’, The Guardian (online, 21 April 2018) <https://www.theguardian.com/ world/2018/apr/21/india-poised-to-introduce-death-penalty-for-child-rapists>.

84 Parvais Jabbar and Carolyn Hoyle, ‘People May Change Mind about Death Penalty, but Government?’, The Jakarta Post (online, 27 July 2021) <https:// www.thejakartapost.com/academia/2021/07/27/people-may-change-mindabout-death-penalty-but-government.html>.

85 Yiswaree Palansamy, ‘Report: “Full-Blown” Liberal Pakatan Will Struggle in Malaysia’s Identity Politics-Driven Landscape, Says Bersatu Senator’, Yahoo News (online, 5 April 2022) <https://malaysia.news.yahoo.com/report-fullblown-liberal-pakatan-023354611.html>.

86 Johnson and Zimring, The Next Frontier (n 1) 303.

87 Ryan Goodman and Derek Jinks, ‘How to In uence States: Socialization and International Human Rights Law’ (2004) 54(3) Duke Law Journal 621, 626.

88 See José E Alvarez, ‘Do States Socialize?’ 54(4) Duke Law Journal 961.

89 Ian Morris, Why the West Rules: For Now (Pro le Books, 2010).

90 Johnson and Zimring, The Next Frontier (n 1) 354.

Catherine Renshaw, Asia and the Death Penalty

Uditha Jith Editor-in-Chief

Uditha is a fourth year Computer Science/Laws student, who served as a General Editor for the Court of Conscience in 2020 and Managing Editor (External) in 2021. Uditha is interested in public and international law, particularly regarding the interplay between individuals and the law. She chose this year’s thematic topic to develop awareness about the impact governments worldwide have on their citizens.

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Managing Editor (External )

Brittany is a fth year Arts/Law student who was involved with the Journal as a General Editor in 2021. Brittany is passionate about administrative law, human rights law, and in particular the way power relations at a global level impact disproportionately on minority groups.

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Managing Editor (Internal )

Jeremy is a fourth year Commerce/Laws student with an interest in Constitutional Law and its interplay with Criminal and Anti-Terror Law. Jeremy joined the Court of Conscience to develop his understanding of legal and social issues on a larger global scale and further his interests in academia.

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Luke is a fourth year Commerce/Laws student. Luke joined the Court of Conscience to further their interest in legal academia, participate in a fantastic team to help edit this year’s Issue and develop their understanding of various international legal and social issues.

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Court of Conscience Issue 16, 2022 People, Power and Perspectives: A Pandora’s Crisis

ISSN 1839-7204

Court of Conscience is published annually by the UNSW Law Society. unswlawsoc.org