Court of Conscience - Issue 9, 2015 by UNSW Law Society

COURT OF CONSCIENCE Rights + Freedoms Issue 9, 2015

Issue 9, 2015

Court of Conscience

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Court of Conscience Issue 9, 2015

Rights + Freedoms

Editor-in-Chief Amila Perera is a third year Juris Doctor student and 27th year blue ruin. When she is not knitting her eyebrows she is crocheting natural fibre yarn and designing perfect playlists.

Editorial team Emily Azar is a third year Arts/Law student. When she is not doing her law readings, she will normally be found watching her favourite scenes of The Office. Jinan Hammoudi is a third year Commerce/Law student. When she is not immersed in her laborious law readings, she is complaining to her cats about the laborious law readings. Julia Hosking is a second year Juris Doctor student with a penchant for using words like penchant. She enjoys reading, writing and other pastimes that don’t involve physical activity. Katherine Lau is a third year Juris Doctor student who enjoys to be in the company of her labrador retriever while engrossed in an Agatha Christie novel.

Contents

Monica Ma is a fourth year student with a casual interest in behavioural psychology and a serious interest in card games. She carries a deck of cards around every day in the hope that an opportunity to play arises. Dinusha Wijesuriya is a second year Commerce/Law student who still isn’t entirely sure what a ‘Working Paper and Similar Documents of Various Bodies’ is. She enjoys sleeping in, eating baked goods, and yelling at people who reveal Game of Thrones spoilers beyond Season 3. Angelina Yurlova is a third year Arts/Law student. Although she does enjoy listening to Tchaikovsky, Angelina is not a ballerina.

Ceremonies of Degredation: StripSearching in Women’s Prisons Women in Prison Advocacy Network

The ACT Prison: Human Rights Rhetoric Versus Crowded and Bored Reality Lorana Bartels

Beyond the Binary: A Capabilities Approach to Transgender Rights Eleanor Wood

Intersex Rights and Freedoms Morgan Carpenter

A Referendum or Plebiscite on SameSex Marriage? George Williams AO

A Right to Truth in Customary International Law?

UNSW Law Society unswlawsoc.org

Cover Alwy Fadhel is an asylum seeker who is no longer detained at Villawood Detention Centre. His artworks are created using coffee grounds. Images are inspired by the trauma of isolation and the hope for freedom. Court of Conscience is honoured to feature Alwy’s work on the front cover and between the pages of this Issue.

Social Justice Vice President Teela Reid Presidents Katerina Jovanovska Simon McNamara

Nikki Edwards

Aasiya Amin

My Story

‘Counter Friction to Stop the Machine’: Civil Disobedience in Maules Creek Michaela Vaughan

Design Nicholas Watts

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Editor’s note

Contents, continued

The Implications on the Treatment of ‘Boat People’ on the Integrity of Our Rights and Freedoms Vivien Nguyen

I welcome you to the ninth edition of the Court of Conscience. In 2015, we are proud to publish a selection of high quality articles on the theme of ‘Rights + Freedoms’. This is the second year running that we have published a themed issue, featuring contributions from legal academics, commentators and, most importantly, UNSW Law students. The theme for this edition was chosen by the popular vote of students at UNSW Law. This year, Court of Conscience also facilitated relationships between student writers and academic mentors through the Social Justice Writers’ Workshop and some of the articles in this Issue represent the fruits of that program. This year’s Issue on ‘Rights + Freedoms’ is a timely addition to rights discourse in Australia, as it coincides with the United Nations’ Universal Periodic Review on Human Rights in Australia. The importance and currency of this topic is made clear through the diverse subject matter in this edition. George Williams tackles the same-sex marriage debate, while Eleanor Wood and Morgan Carpenter explore the developing landscape of transgender and intersex rights, respectively. Fifty years after the atrocities that occurred in Indonesia under the Suharto regime, Nikki Edwards reminds us of the ongoing significance of these events in contemporary international law. But Court of Conscience also prides itself on amplifying new voices and going beyond the boundaries of traditional legal commentary. I invite you to turn to the contribution by Michaela Vaughan which blends her own personal account with analysis of the law of protest. We are especially honoured to include in this edition the story of Aasiya Amin*, an asylum seeker who is currently resident at Villawood Detention Centre. My heartfelt thanks go to the marvellous editorial team for their creativity and dedication in pulling this Issue together. This group of remarkable women have sourced contributions, created artworks and meticulously edited each article. Finally, to Nicholas Watts, whose skill and generosity have made this publication beautiful, we are eternally indebted. I am confident that each of the articles in this Issue offers the reader a deeper appreciation of the subjects they traverse. These conversations are ones which will have surely cropped up in the news — if not at the dinner table — over the past year. We hope that this Issue will carry those conversations forward; that these articles will engage, inform and inspire. *Aasiya Amin is not her real name.

Human Rights in Australia Tim Wilson

Winner of the 2014 UNSW Primus Gradus Essay Competition

Public Education Funding in New South Wales: A Silver Bullet? Andrew J Roberts

Amila Perera Editor-in-Chief

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Ceremonies of Degradation1: Strip-Searching in Women’s Prisons

Women in Prison Advocacy Network (WIPAN)

I. INTRODUCTION

This article contains extracts and derives from an upcoming Women in Prison Advocacy Network (WIPAN) policy paper of the same title.

Strip-searching has long been a mainstay of everyday prison procedure. Predicated on notions of safety and contraband detection, it is considered a necessary aspect of prison policy. However, despite its widespread use, there is little empirical evidence to show that it is an efficient means of discovering illicit implements and substances. Even more concerning is the way in which it abrogates the personal rights and freedoms of women in prison. For the many women in prison who have been victims of physical and/or sexual abuse, strip-searching represents a form of revictimisation – one which they are subjected to on a regular basis. This article contends that the highly degrading and invasive nature of strip-searching, coupled with its harmful psychological effects, makes it a wholly inappropriate and outdated method of ensuring prison safety. By rethinking the ways in which prison security goals are pursued, it is hoped that a more gendered and rights-based approach towards the treatment of women in prison can be achieved.

Special thanks to Mollie Boland Anderson and Aude Wormser – without their invaluable research and input, this article would not have been possible.

II. STRIP-SEARCHING IN WOMEN’S PRISONS In NSW, a strip-search is defined as: A search of a person or of articles in the possession of a person that may include (a) requiring the person to remove all of his or her clothes, and (b) an examination of the person’s body (but not of the person’s body cavities) and of the clothes.2

As the definition reveals, strip-searching is an inherently invasive process that compromises the personal privacies of individuals subjected to it. In the case of women in prison, the process can be especially humiliating. A substantial number of women in prison come from disadvantaged social and personal backgrounds, where experiences of abuse are not uncommon. According to statistics, 45 per cent of women in prison have reported being abused and/or controlled by their partners or spouses within the year prior to their incarceration.3

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‘Women in prison already live in a hyper-regulated reality, where their every move is under strict control by correctional officers. For these women, strip-searches represent a further form of oppression, wherein feelings of powerlessness and loss of esteem are invoked.’

Ceremonies of Degradation: StripSearching in Women’s Prisons Women in Prison Advocacy Network

Similarly, 49 per cent of all female offenders were victims of at least one form of abuse as a child.4 By subjecting women in prison to regular strip-searches, authorities are replicating the dynamics of coercion and abuse. Women in prison already live in a hyper-regulated reality, where their every move is under strict control by correctional officers.5 For these women, strip-searches represent a further form of oppression, wherein feelings of powerlessness and loss of esteem are invoked. Furthermore, strip-searches have the potential to reinforce concepts of learned helplessness among women who have been abused.6 The process can be particularly traumatising when performed by, or in the presence of, male correctional officers, especially for women who may come from certain Indigenous or other cultural backgrounds, where relationships with men are restricted.7 This can have adverse impacts on the emotional and psychological states of women in prison, and can serve to increase the risk of self-harm and substance abuse.8 To this extent, strip-searching may exacerbate existing health and safety concerns instead of mitigate them. Despite the harmful and degrading impacts of strip-searching, its use has often been justified on the basis of prison security – in particular, the need to stamp out prison drug culture.9 There is little doubt that substance abuse poses a serious problem in prisons. A significant number of women in prison have histories of drug abuse, with 61 per cent of women in prison having reported using illicit drugs within the year prior to their imprisonment.10 The overrepresentation of illegal drug use among female prison entrants highlights the need for prisons to deal with the health and safety risks that it presents. Although strip-searching is aimed at containing these risks, there is little evidence to show that it is effective in reducing the distribution and accessibility of illicit drugs in prison.11 According to a study conducted by Sisters Inside Inc, of 41 728 strip-searches performed on women in prison in Queensland from 1999 to 2002, only two uncovered drugs.12 Similar studies have produced comparable results.13 When these results are contrasted with the significant damage that strip-searches do to the women subjected to them, their use in women’s correctional facilities becomes difficult to justify. III. WHERE ARE WE NOW? The potential for strip-searches to be processes that routinise the degradation of women in prison begs the question – what are we doing to ensure that the rights and freedoms of these women are being protected?

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A. The International Rights Framework In 2010, the United Nations General Assembly adopted the United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (‘the Bangkok Rules’).14 The rules marked the first successful attempt by the United Nations at addressing the gender specific issues faced by women in contact with the criminal justice system. One of the issues dealt with by the Bangkok Rules is that of body searches, and in particular, the threat they pose to the personal privacies of women in prison. Under rule 19, personal searches (including strip-searches) are to be performed only by trained women staff in accordance with established procedures.15 The rule also emphasises the importance of protecting the dignity and self-respect of the women subject to such searches.16 Consistent with this, rule 20 encourages the development of alternative screening mechanisms (e.g. body scans) to replace strip-searches.17 In doing so, the Bangkok Rules implicitly recognises the psychological and emotional harm that strip-searches can have on women in prison, and attempts to discover viable alternatives to strip-searching. Although the Bangkok Rules is the first international instrument wholly dedicated to tackling the specific challenges faced by women in contact with the criminal justice system, its principles are built on existing rights frameworks. In seeking to deal with the unique lived experiences of women interfacing with the criminal justice system, the Bangkok Rules is consistent with the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).18 It also fills a gap left behind by the Standard Minimum Rules for the Treatment of Prisoners, 19 by explicitly extending the scope of human rights protections available to individuals in prison to women. In many ways, strip-searching policies contravene principles regarding gender discrimination. By applying a one-size-fits-all policy of strip-searching on all individuals in prison without taking into account the significantly detrimental impacts it has on the psychological states of women in prison, authorities have failed to adequately safeguard the needs of these women. Another international instrument that has been significant in the area is the International Covenant on Civil and Political Rights (ICCPR).20 Article 7 of the ICCPR protects individuals against ‘cruel, inhuman or degrading treatment or punishment’.21 In a similar vein, article 17 states that individuals should not be subjected to arbitrary or unlawful interference with their privacy and enshrines the right to legal protection against such interferences.22 As some authors have noted, the ways of strip-searching abrogates the privacy rights of women in

prison by subjecting them to considerable trauma, contravenes these principles.23 B. The Regulatory and Procedural Framework The failure of Australia to satisfactorily comply with the international framework of standards regarding the treatment of women in prison is concerning given the harmful, long-term effects that strip-searching has on these women. In NSW, the power to search men and women in prison is contained in both statute and regulation. Section 79(r) of the Crimes (Administration of Sentences) Act 1999 (NSW) allows for regulations to be made in relation to the use of body searches. Pursuant to this, reg 46 Crimes (Administration of Sentences) Regulations 2014 (NSW) sets out the rules governing the search of individuals in prison and their cells. These regulations are complemented by the Corrective Services NSW Operations Procedures Manual (‘the procedures manual’).24 For the purposes of this article, the 2012 version of the procedures manual will be relied on, as it is the most recent version of the strip-search procedures accessible by the authors.25 The regulatory and procedural framework contains some safeguards that attempt to limit the potential for strip-searches to be used in an abusive and punitive way:

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1. Strip-searches may only be performed in two circumstances: when the general manager directs that it be done, or when a correctional officer considers it appropriate.26 2. Strip-searches must be conducted by a member of the same sex, unless there is an emergency or where exceptional circumstances apply.27 3. Strip-searches must be conducted ‘with due regard to dignity and self-respect and in as seemly a way as is consistent with the conduct of an effective search’.28 4. Strip-searches must be performed by a minimum of two correctional officers (with one giving the relevant directions and the other observing the search), and must be supervised by a senior officer.29 5. Search areas are to afford individuals with sufficient privacy and space, and correctional officers are to provide clear instructions on how the search will be conducted.30 6. Prior to a search, the individual must be given the opportunity to surrender any weapons/contraband they may have on their persons.31 7. Correctional officers are to wear surgical-type gloves and are prohibited from touching the inmate.32

Ceremonies of Degradation: StripSearching in Women’s Prisons Women in Prison Advocacy Network

1. Where a woman is participating in the Mothers and Childrens Program and is residing with her child/children, staff must ensure the search is conducted away from any children.33 2. Strip-searches of women are performed in two stages, with only one-half of the body (either the top or bottom half) exposed at any one time.34 While these safeguards attempt to strike a balance between the invasiveness of strip-searching and its use as a security policy, not all of the safeguards are sufficiently adequate. First, there is something to be said about the test of appropriateness as a threshold for whether a strip-search should be conducted. Although the test seeks to limit the discretion of correctional officers, it sets a low bar for body searches. In fact, it is arguably a lower standard than the ‘reasonable suspicion’ test imposed on police officers wanting to conduct body searches without a warrant.35 Moreover, the test of appropriateness is one that is highly subjective and open to abuse. What is or is not ‘appropriate’ is likely to differ between correctional officers. Second, the fact that the rule against strip-searches by members of the opposite sex is relaxed in emergencies and exceptional circumstances is problematic to the extent that the words ‘emergency’ and ‘exceptional’ are not defined. This leaves the scope of the safeguard uncertain. Third, while standards that make reference to the dignity and self-respect of women arguably minimise the trauma of ordinary body searches (i.e. frisk and pat-down searches), they are difficult to reconcile with strip-searches. As the accounts of many women in prison reveal, strip-searching is a humiliating process in and of itself, regardless of whether the search is done in accordance with procedures. Requiring correctional officers to protect the dignity of these women when conducting what is an inherently degrading exercise is not only paradoxical but also impossible. Furthermore, instruments that frame the standard in this way erroneously imply that there is an appropriate and correct method of conducting strip-searches, and fail to recognise the deep emotional and psychological impacts they have on women in prison. The difficulties presented by some of these safeguards are exacerbated by the fact that certain aspects of strip-searching policy continue to compound existing power discrepancies between correctional officers and women in prison. Regulation 131(4)(a) of the Crimes (Administration of Sentences) Regulation 2014 (NSW) for example, allows correctional officers to have recourse to force to search in specified circumstances.36 It is not open to individuals in prison to refuse to participate in body searches, as resistance and non-compliance is a correctional centre offence.37 To this extent, the power

Illustration by Angelina Yurlova

Gender-specific safeguards are also available to women in prison:

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imbalance between correctional centre authorities and women in prison is reinforced, as women in prison are unable to assert their privacy rights. Even more humiliating is the fact that women who are on their period may be asked to remove their tampons or sanitary pads as part of the search.38 This can be especially demeaning, particularly when performed in the presence, and under the behest, of correctional officers. When such practices are viewed within the context of the personal histories of women in prison and the basic standards of treatment that they are entitled to, the degrading nature of strip-searching as a policy becomes evident. IV. CONCLUSION Ultimately, the impacts of strip-searching must be examined against the backdrop of the unique lived experiences of women in prison. Although they are subject to certain restrictions as punishment for their offences, women in prison remain individuals with inherent rights. For these women, the loss of liberty represents the totality of their punishment – anything that goes beyond that is unwarranted. In the case of strip-searching, the harmful emotional and psychological impacts that it has on women in prison constitutes a form of extra-curial punishment that cannot be justified, particularly when the inefficacious nature of strip-searches is recognised. It is time that we ended the abuse and discrimination against women in prison, and brought our criminal justice policies in line with recognised standards of fairness and humanity. REFERENCES 1. See generally Harold Garfinkel, ‘Conditions of Successful Degradation Ceremonies’ (1956) 61(5) American Journal of Sociology 420. 2. Crimes (Administration of Sentences) Regulation 2014 (NSW) reg 46(5). 3. Devon Indig et al, ‘2009 NSW Inmate Health Survey: Key Findings Report’ (Report, Justice Health, 2010) 70. 4. Lubica Forsythe and Kerryn Adams, ‘Mental Health, Abuse, Drug Use and Crime: Does Gender Matter?’ (Trends and Issues in Crime and Criminal Justice, No 384, Australian Institute of Criminology, 2009) 5. 5. Amanda George, ‘Strip-searches: Sexual Assault by the State’ (Paper presented at Without Consent: Confronting Adult Sexual Violence, Melbourne, 27–9 October 1992) 212. <http://www.aic.gov.au/media_library/ publications/proceedings/20/george.pdf>. 6. Cathy Pereira, ‘Strip Searching as Sexual Assault’ (2001) 27 Hecate 187, 189. 7. See, eg, Melissa Lucashenko and Debbie Kilroy, ‘A Black Woman and a Prison Cell: Working with Murri Women in Queensland Prisons’ (Research Paper, Sisters Inside Inc, 2005) 17. 8. Jude McCulloch and Amanda George, ‘Naked

Ceremonies of Degradation: StripSearching in Women’s Prisons Women in Prison Advocacy Network

Power: Strip Searching in Women’s Prisons’ in Phil Scraton and Jude McCulloch (eds), The Violence of Incarceration (Routledge, 2009) 107, 115. 9. Pereira, above n 6, 190. 10. Ingrid Johnston and Jenna Pickles, ‘The Health of Australia’s Prisoners 2012’ (Report, Cat. No PHE 170, Australian Institute of Health and Welfare, 2013) 74. 11. Pereira, above n 6, 190. 12. Sisters Inside Inc, Submission to ACT Human Rights Commission, Human Rights Audit and Review of Treatment of Women at the Alexander Maconochie Centre (AMC), October 2013, 45. 13. See also Jude McCulloch and Amanda George, ‘Naked Power: Strip Searching in Women’s Prisons’ in Phil Scraton and Jude McCulloch (eds), The Violence of Incarceration (Routledge, 2009) 107, 118; Susanne Davies and Sandy Cook, ‘Women, Imprisonment and Post-release Mortality’ (1998) 14 Just Policy: A Journal of Australian Social Policy 15, 19. 14. United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules), GA Res 65/229, UN GAOR, 3rd Comm, 65th sess, 71st plen mtg, Agenda Item 105, UN Doc A/RES/65/229 (21 December 2010). 15. Ibid annex 12. 16. Ibid. 17. Ibid. 18. Convention on the Elimination of All Forms of Discrimination Against Women, opened for signature 1 March 1980, 1249 UNTS 13 (entered into force 3 September 1981). 19. Standard Minimum Rules for the Treatment of Prisoners, ESC Res 663 C, UN ESCOR, Plen, 24th sess, 994th mtg, Supp No 1, UN Doc E/3048 (31 July 1957); Standard Minimum Rules for the Treatment of Prisoners, ESC Res 2076, UN ESCOR, Plen, 62nd sess, 2059th mtg, Supp No 1, UN Doc E/5988 (13 May 1977). 20. International Covenant on Civil and Political Rights, opened for signature 19th December 1966, 999 UNTS 171 (entered into force 23 March 1976). 21. Ibid art 7. 22. Ibid art 17. 23. Kat Armstrong, Eileen Baldry and Vicki Chartrand, ‘Human Rights Abuses and Discrimination Against Women in the Criminal Justice System’ (2007) 12 Australian Journal of Human Rights 203, 212; Debbie Kilroy, ‘Stop the State Sexually Assaulting Women in Prison: Strip Searching’ (Paper presented at Expanding Our Horizons: Understanding the Complexities of Violence Against Women, Sydney, 18–22 February 2002) 19. 24. Corrective Services NSW, ‘Corrective Services NSW Operations Procedures Manual: Section 12.4 Searching Inmates and Correctional Centres’ (Procedures Manual, Corrective Services NSW, September 2012).

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25. In 2014, Corrective Services NSW made updates to its Operations Procedures Manual. However, s 12.4, which relates to the searching of inmates and correctional centres, has not been made publicly available. As a result, the present article relies on the 2012 version of s 12.4 and any recent updates made to the procedures may not be captured in this article. 26. Crimes (Administration of Sentences) Regulation 2014 (NSW) reg 46(1). 27. Corrective Services NSW, Corrective Services NSW Operations Procedures Manual: Section 12.4 Searching Inmates and Correctional Centres (Procedures Manual, September 2012) s 12.4.6. 28. Crimes (Administration of Sentences) Regulation 2014 (NSW) reg 46(3). 29. Corrective Services NSW, Corrective Services NSW Operations Procedures Manual: Section 12.4 Searching Inmates and Correctional Centres (Procedures Manual, September 2012) s 12.4.6. 30. Ibid s 12.4.6.1. 31. Ibid. 32. Ibid. 33. Ibid s 12.4.6.2. 34. Ibid. 35. See Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ss 21, 31. 36. Crimes (Administration of Sentences) Regulation 2014 (NSW) reg 131(4)(a). 37. Ibid reg 46(4). 38. Corrective Services NSW, Corrective Services NSW Operations Procedures Manual: Section 12.4 Searching Inmates and Correctional Centres (Procedures Manual, September 2012) s 12.4.6.2.

The ACT Prison: Human Rights Rhetoric Verses Crowded and Bored Reality

Lorana Bartels

Issue 9, 2015

The ACT Prison: Human Rights Rhetoric Versus Crowded and Bored Reality Lorana Bartels

I. INTRODUCTION

The Australian Capital Territory opened its first prison, the Alexander Maconochie Centre (AMC) in 2009. Named after a 19th Century reformer who is often dubbed the ‘father of parole’, the AMC is Australia’s first ‘human rights’ prison, in one of only two Australian jurisdictions to be governed by a human rights framework. As this article will illustrate, however, the AMC has failed to live up to its lofty goals, with a recent AuditorGeneral’s report concluding that there was ‘a very large gap between what was anticipated and what has occurred since the opening of the AMC’. Two key issues – overcrowding and the lack of meaningful activities for prisoners – will be considered in this article. Lorana Bartels BA LLB LLM (UNSW) PhD (UTas). Lorana is an Associate Professor at the University of Canberra and Honorary Associate Professor at the University of Tasmania.

The Australian Capital Territory (ACT) opened its first prison – the Alexander Maconochie Centre (AMC) – in 2009, to significant fanfare about being the first ‘human rights’ prison in Australia.1 This objective is laudable and provides some direction for other Australian prisons to follow. As I will demonstrate in this article, however, it has unfortunately failed to live up to its lofty goals. It is beyond the scope of the present article to discuss the human rights of prisoners in detail, but there are a number of international law documents that preserve these rights. The most significant of these is the International Covenant on Civil and Political Rights (ICCPR),2 Article 10(1) of which provides that ‘[a]ll persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person’. In addition, Article 7 provides that ‘[n]o one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment’.3 In 1955, the United Nations (UN) also established Standard Minimum Rules (SMRs) for prisons,4 which set out minimum standards relating to issues such as access to food, water, clothing and social information. The SMRs underpin the Standard Guidelines for Corrections in Australia,5 which govern the treatment of inmates in Australian prisons. However, the ICCPR and Standard Guidelines are not enforceable in Australian law.6 II. A NEW WORLD ORDER? THE ACT ’S ‘HUMAN RIGHTS’ PRISON The ACT and Victoria are in a different position to the rest of Australia, due to the passage of the Human Rights Act 2004 (ACT) (the HRA) and Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter). As Naylor has noted, ‘these essentially incorporate the ICCPR rights’.7 Specifically for the present discussion, section 10 of the HRA and Charter replicate Article 7 of the ICCPR, while Article 10(1) is replicated in sec-

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tions 22(1) and 19(1) respectively. The ACT goes further than Victoria, however, in giving citizens the right to bring legal action in relation to alleged breaches of duty by public authorities to comply with the provisions of the HRA.8 It was against this backdrop that the ACT opened its first prison in March 2009,9 ACT prisoners having previously been housed in New South Wales (NSW). Significantly, the prison was named after the socalled ‘father of parole’, 19th Century penal reformer Alexander Maconochie.10 As the Attorney-General noted in a speech in 2008, naming the new prison after Maconochie reflected the ACT’s philosophy of rehabilitating, rather than punishing, prisoners.11 The management of the AMC is governed by the Corrections Management Act 2007 (ACT). Notably, unlike comparable legislation in other Australian jurisdictions,12 this legislation makes its commitment to human rights principles explicit.13 The AMC is an open-campus facility which accommodates all unsentenced and sentenced male and female prisoners in the ACT. About half of the accommodation is five-bedroom cottages and no female detainees are housed in cells. It is suggested that this model ‘enable[s] detainees to develop and practice living skills’ and ‘facilitates normalisation’.14 According to the ACT Corrective Services (ACTCS) website, the AMC: emphasises rehabilitation, compliance with Human Rights principles and adherance to the Healthy Prison Concept. A Healthy Prison is one in which: everyone is and feels safe (detainees, staff and visitors alike); everyone is treated with respect and as a fellow human being (again, all people within the AMC); everyone is encouraged to improve him/herself and is given every opportunity to do so through the provision of purposeful activity; and everyone is enabled to maintain contact with their families and is prepared for release.15

On paper, the ACT’s commitment to prisoners’ human rights is clearly far ahead of anywhere else in Australia and should be seen as a model worth emulating. There have also been a number of positive reports about the AMC. For example, as Official Visitor, Ivan Potas stated in 2011 that he was ‘rather impressed’ and ‘praised the prison’s human rights compliance’.16 A 2011 independent review of the AMC (the Hamburger Review) described it as: unique in relation to other Australian prisons in the high level of attention paid to detainees’ human rights in its Legislation, policies and procedures, in the design of its facilities, in delivery of services to detainees and in the scrutiny applied to its administration.17

In 2014, David Biles asserted that, ‘hav[ing] visited just about every prison in Australia … the AMC is one of the best designed and equipped correctional institutions in this country.’18 Also in 2014, a human rights audit of the treatment of women at the AMC found that ‘women detainees at AMC are treated humanely in custody, and

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that correctional staff and management are respectful of the particular needs and vulnerabilities of women.’19 It appears, therefore, that substantial progress has been made towards respecting ACT prisoners’ human rights. As I will detail in the following sections, however, the ability of the AMC to deliver on its human rights principles is hampered by two key issues: overcrowding and the lack of purposeful activity for prisoners.20 III. BUILD IT AND THEY WILL COME? One of the key arguments against establishing a prison in the ACT was the concern that this would lead to an increase in the use of prison in a jurisdiction that had always had Australia’s lowest imprisonment rate.21 It is of course impossible to conclusively determine the causes of changes in the use of imprisonment.22 In the ACT context, the Justice Minister, Shane Rattenbury MLA (the Minister) and Human Rights Commissioner, Dr Helen Watchirs OAM, have argued that a number of factors have caused recent increases, including community attitudes, judicial appointments, court delays and improved policing.23 Nevertheless, it has emerged that the year that the AMC opened represented a low point in the ACT’s imprisonment rate, at 74 per 100 000, compared with 85, 90 and 93 in 2006, 2007 and 2008 respectively.24 By contrast, since 2009, the rate has risen steadily to 130 per 100 000 in 2014.25 Notably, the ACT imprisonment rate rose 25 per cent over the two years to December 2014, compared with a national increase of only 12 per cent.26 Concerningly, the number of Indigenous prisoners increased by 47 per cent, compared with 17 per cent nationally.27 Interestingly, these increases have not been accompanied by any significant policy changes, such as reforms to bail in NSW and parole in Victoria. According to the most recent Australian Bureau of Statistics (ABS) data,28 the AMC had 343 people in full-time custody in the December 2014 quarter. By May 2015, 29 the Minister indicated that numbers were fluctuating between 348 and 353. There was a 40 per cent increase in the AMC population between January and October 2013, at which point the Minister acknowledged that the AMC was ‘close to capacity’.30 By that stage, extra beds had been installed to increase the AMC’s capacity from 332 to 366. Nevertheless, prison expert David Biles warned that overcrowding ‘may jeopardise safety and security’,31 earlier noting that assigning two prisoners to a single cell raises questions about the potential for serious or even fatal assaults.32 Biles described the Government’s response to the ‘crisis’ as ‘breathtakingly inept’ and ‘pathetic’.33 Even the Minister agreed that ‘the overcrowding …pose[d] a risk for human rights compliance and rehabilitation at the prison.’34 The current pressures appear to be at least in part of the Government’s own making, although it is worth

‘The AMC is an open-campus facility which accommodates all unsentenced and sentenced male and female prisoners in the ACT. About half of the accommodation is five-bedroom cottages and no female detainees are housed in cells.’

The ACT Prison: Human Rights Rhetoric Versus Crowded and Bored Reality Lorana Bartels

noting that the Minister was not part of the Government at that stage. Nonetheless, the Government has been dogged by revelations that it chose to ignore advice on projected prison numbers.35 Specifically, it was reported in October 2013 that the Government had ‘buried a confidential report that suggested Canberra’s prison would be full almost immediately, instead using its own figures to justify a smaller facility that is now facing critical overcrowding problems.’36 This advice suggested that the ACT would need space for at least 335 prisoners by 2009 and 340 by 2013. Furthermore, a separate 2001 report which ‘urged the government to build the prison to a total capacity of 480’37 was also ignored. The Government instead adopted modeling that predicted a worst-case scenario of 275 prisoners by 2042.38 In response to ongoing pressure, in April 2014, the ACT Government announced it would spend $54 million building a new 56-cell block with 80 beds and a 30bed special care centre for detainees requiring intensive support.39 The special care centre is due to open in late 2015 and the new block in mid-2016.40 Pending completion of the extension, the Government has upgraded the Symonston Correctional Facility (premises near the AMC which house offenders on periodic detention) to use as a temporary full-time prison when required.41 The Human Rights Commissioner and Official Visitor will be granted access, but it has been suggested that ‘the decision is likely to raise questions on…whether it will be human rights compliant, given its comparative lack of services and facilities’.42 The first prisoners were moved to Symonston in June 2015.43 Additional inmates were moved over in July,44 bringing the number housed there to 28, over 7 percent of the prison population. IV. TOO MUCH TIME WITH NOTHING TO DO The second issue relates to the lack of purposeful activity for prisoners. The 2011 Hamburger Review recommended that: ACT[CS] and AMC Leadership give high priority to ensuring the centre’s philosophy of active engagement by detainees in meaningful activities is achieved through an efficiently organised ‘structured day’ where the various staff disciplines ensure attendance and participation by detainees in their programs, activities and employment.45

Three years later, the human rights audit in relation to women prisoners recommended that ‘ACTCS further investigate options for establishing a prison industry at the AMC to provide greater structured employment opportunities for detainees’.46 In a comment accompanying the release of that report, the Human Rights Commissioner observed that ‘the most urgent

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problem facing women was the lack of structured employment opportunities through a prison-based industry inside the AMC.’47 Biles likewise suggested that ‘[t]he most serious shortcoming in the AMC is the shortage of meaningful work’,48 while Prisoners Aid ACT and the Victims of Crime Assistance League described prisoners as ‘sitting around idle instead of learning trade apprenticeships because industrial workshops that were part of the original plan were never installed because of cost cutting’.49 In response, the Minister indicated that the Government was ‘exploring industry options for the AMC’.50 To date, that exploration has not yielded results. In April 2015, the Auditor-General released a report on the rehabilitation of male prisoners at the AMC.51 The report made a number of damning findings about the lack of a rehabilitation framework and inadequate information management systems. The Auditor-General also found that ‘a “structured day” with “purposeful activity” is not being achieved for many detainees. It is therefore likely that some detainees are bored, which can compromise their rehabilitation’.52 The report found that detainees who do not work spend an average of only five hours per week involved in the three main activities of education, therapeutic programs and visits, which is significantly less than the 30 hours envisaged in the 2007 delivery strategy.53 Overall, there was ‘a very large gap between what was anticipated and what has occurred since the opening of the AMC’.54 The report made 10 recommendations, including that: oo ACTCS develop a rehabilitation framework that ‘guides the integration of rehabilitative activities and services to achieve a “structured day” that incorporates sufficient “purposeful activity” for detainees…and guides the provision of employment’55; and oo the ACT Government clarify the role of prison industries in providing employment for detainees and develop a paper outlining options and recommending the role of prison industries.56 The report prompted a critical editorial in the Canberra Times, which suggested that ‘[t]he misfortunes surrounding the planning, construction and operation of the Alexander Maconochie Centre have become legion, and there are few signs of a let-up’.57 The President of the Law Society, Martin Hockridge, stated that the report was ‘particularly disappointing because the AMC had been mooted as the country’s first human rights compliant prison, with a particular emphasis on rehabilitating offenders before their release as productive members of the community’.58 The Government has ‘asked

for more time to consider the report’s recommendations’, although the Minister has indicated his personal support for prison industries.59 V. CONCLUSION There are many positive aspects to the AMC. As discussed above, detainees are treated respectfully and humanely. The facilities are pleasant and nearly half of the detainees live in cottage accommodation designed to foster healthy living skills. The ACT also has the nation’s highest proportion of prisoners engaged in education.60 In addition, the Extended Throughcare Program, which links ‘prisoners up with everything from housing, employment, transport, health services, and drug and alcohol rehabilitation’ for a year following their release from the AMC, is an Australian first.61 Anecdotally, there has been initial success in keeping participants from returning to custody, and the program is currently being independently evaluated. The Minister acknowledged in a 2013 Legislative Assembly committee hearing that he did not think that the AMC ‘will ever be perfectly human rights compliant’.62 Clearly, there is still much more to be done. An editorial in the Canberra Times opined that ‘despite expectations that Australia’s first “human rights-compliant” prison would break the old correctional mould, the reality has proved different’.63 As I have noted previously, ‘if the Government [wants] to hold its standards up very high and say this is a human rights prison, this is a healthy prison, then they need to ensure they meet those objectives’.64 This article has considered two key issues affecting the AMC: overcrowding and prisoner boredom. It is acknowledged that overcrowding is largely out of the control of ACTCS. Nevertheless, addressing these issues is a critical step along the way towards building a new correctional mould.

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REFERENCES 1. Simon Corbell, ‘The New ACT Prison: What Is Planned and What Will Be Achieved’ (Speech delivered at the Christians For An Ethical Society Forum on the ACT Prison, Canberra, 19 March 2008); see also Julian Drape, ‘“Human Rights Principles” For ACT Prison’, Sydney Morning Herald (online), 11 September 2008 <http://www. smh.com.au/national/human-rights-principles-for-actprison-20080911-4eiq.html>. 2. International Covenant on Civil and Political Rights, opened for signature on 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) art 10(1). 3. Ibid art 7. 4. First United Nations Congress On The Prevention Of Crime And The Treatment Of Offenders, Geneva, 22 August -- 3 September 1955: Report / Prepared By The Secretariat, UN ESCOR, UN Doc A/CONF/6/1, (May 1956) annex I 67 [1]. 5. Corrective Services ACT, Corrective Services NSW, Northern Territory Corrective Services, Correctional Services S.A., Queensland Government, State Government Victoria Department of Justice, Tasmanian Government Department of Justice, Government of Western Australia Department of Corrective Services, ‘Standard Guidelines for Corrections in Australia’ (Guidelines, 2012). 6. Bronwyn Naylor, ‘Protecting the Human Rights of Prisoners in Australia’, in Paula Gerber and Melissa Castan (eds), Contemporary Perspectives on Human Rights Law in Australia (Thomson Reuters, 2013) 395, 401. The Standard Guidelines, ibid, expressly state in the preface that they ‘constitute outcomes or goals to be achieved by correctional services rather than a set of absolute standards or laws to be enforced’. See also Collins v State of South Australia (1999) 74 SASR 200. 7. Naylor, above n 6, 405. 8. Human Rights Act 2004 (ACT) s 40C. For a recent case in which a prisoner unsuccessfully claimed the Government had breached its obligations under the HRA, see Islam v Director-General of the Justice and

The ACT Prison: Human Rights Rhetoric Versus Crowded and Bored Reality Lorana Bartels

Community Safety Directorate [2015] ACTSC 20. See also Eastman v Chief Executive of the Department of Justice and Community Safety [2011] ACTSC 33. 9. For background to the process leading up to this, see Anita Mackay, ‘The Road to the ACT’s First Prison (The Alexander Maconochie Centre) Was Paved With Rehabilitative Intentions’ (2012) 11(1) Canberra Law Review 33, 35-39. 10. David Dressler, Practice and Theory of Probation (Columbia University Press, 2nd ed, 1969) 61. 11. Corbell, above n 1. 12. See, eg, Crimes (Administration of Sentences) Act 1999 (NSW); Corrections Act 1997 (Tas); Corrective Services Act 2006 (Qld). 13. Corrections Management Act 2007 (ACT) Preamble, ss 7, 8, 9, 12. 14. ACT Corrective Services, Alexander Maconochie Centre (1 April 2014) ACT Government Information Portal <http://www.cs.act.gov.au/custodial_operations/types_of_ detention/alexander_maconochie_centre>. 15. ACT Corrective Services, Custodial Operations (15 September 2014) ACT Government Information Portal <http://www.cs.act.gov.au/custodial_operations>. 16. ‘Canberra’s Holding Cells Harmful and “Dickensian”’, Canberra Times (online), 28 November 2011 <http:// www.canberratimes.com.au/act-news/canberras-holdingcells-harmful-and-dickensian-20111128-1v14c.html>. 17. Knowledge Consulting, ‘Independent Review of Operations at the Alexander Maconochie Centre: Report for ACT Corrective Services’ (Report, Knowledge Consulting, 12 March 2011) 37. 18. David Biles, ‘First-rate Alexander Maconochie Centre Needs A Little Work’, Canberra Times (online), 12 July 2014 <http://www.canberratimes.com.au/comment/ firstrate-alexander-maconochie-centre-needs-a-littlework-20140712-zt483.html>. 19. Helen Watchirs et al, ‘Human Rights Audit on the Conditions of Detention of Women at the Alexander Maconochie Centre: A Report by the ACT Human Rights and Discrimination Commissioner’ (Report, ACT Human Rights Commission, April 2014) 5. For comment, see Christopher Knaus, ‘Audit on Women in Prison Makes 61 Recommendations’, Canberra Times (online), 15 May 2014 <http://www.canberratimes.com.au/act-news/audit-onwomen-in-prison-makes-61-recommendations-20140515zrd73.html>; Patricia Easteal et al, ‘Females in Custody in the ACT: Gendered Issues and Solutions’ (2015) 40 Alternative Law Journal 18. 20. Concern has also been expressed that the number of lockdowns may be a breach of human rights: Christopher Knaus, ‘Concern Inmates’ Rights Breached’, Canberra Times (online), 27 May 2013 <http://www. canberratimes.com.au/act-news/concern-inmates-rightsbreached-20130526-2n5mh.html>. 21. Australian Law Reform Commission (ALRC),

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Sentencing, Report No 44 (1988) 139 [256]. 22. Mackay, above n 9, 43-4. See also Standing Committee on Justice and Community Safety, Parliament of ACT, Inquiry Into Sentencing (2015) 13-23; ‘Poor Decisions Continue To Haunt Canberra’s Jail’, Canberra Times (online), 10 April 2015 <http://www.canberratimes. com.au/comment/ct-editorial/poor-decisions-continueto-haunt-canberras-jail-20150409-1mh77k.html>. 23. See Peter Mares, A View of Pale Hills (25 February 2014) Insider Story <http://insidestory.org.au/a-view-ofpale-hills>. 24. Australian Bureau of Statistics (ABS) (2014) Prisoners in Australia, 2014, ‘Table 18: Crude Imprisonment Rate, State/Territory, 2004-2014’, Data Cube: Excel Spreadsheet, Cat No 4517.0, < http://www.abs.gov.au/AUSSTATS/abs@.nsf/ DetailsPage/4517.02014?OpenDocument>. 25. Ibid. 26. ABS (2013) Corrective Services, Australia, December Quarter 2012, Cat No 4512.0, <http://www. abs.gov.au/AUSSTATS/abs@.nsf/Previousproducts/4512. 0Main%20Features2December%20Quarter%202012? opendocument&tabname=Summary&prodno=4512.0& issue=December%20Quarter%202012&num=&view=>; ABS (2015) Corrective Services, Australia, December Quarter 2014, ‘Table 3: Imprisonment Rates’, Data Cube: Excel Spreadsheet, Cat No 4512.0, < http://www.abs.gov. au/AUSSTATS/abs@.nsf/DetailsPage/4512.0December %20Quarter%202014?OpenDocument>. 27. Ibid ‘Table 1: Persons in Corrective Services, Summary’. 28. Ibid. 29. Clare Colley, ‘Would-be Prisoners Could Be Diverted From Jail As Alexander Maconochie Centre Numbers Surge’, Canberra Times (online), 5 May 2015 <http://www.canberratimes.com.au/act-news/wouldbe-prisoners-could-be-diverted-from-jail-as-alexandermaconochie-centre-numbers-surge-20150505-ggtpcz. html>. 30. Lisa Mosley, ‘Canberra Prison Close to Capacity’, ABC News (online), 10 October 2013 <http://www. abc.net.au/news/2013-10-09/canberra-prison-atcapacity/5012024>. 31. Christopher Knaus, ‘Overcrowding At Prison “No Surprise”’, Canberra Times (online), 10 October 2013 <http://www.canberratimes.com.au/act-news/ overcrowding-at-prison-no-surprise-20131009-2v91e. html>. 32. David Biles, ‘No Escaping Problems At Jail’, Canberra Times (online), 8 February 2013 <http://www. smh.com.au/federal-politics/no-escaping-problems-atjail-20130207-2e1bo.html>. 33. David Biles, ‘Scales of Justice Off Balance’, Canberra Times (online), 7 May 2013 <http://www.

canberratimes.com.au/comment/scales-of-justice-offbalance-20130516-2jp71.html>. 34. Christopher Knaus, ‘Stanhope Says He Has “Anxiety” Over Prison Management’, Canberra Times (online), 11 October 2013 <http://www.canberratimes.com. au/act-news/stanhope-says-he-has-anxiety-over-prisonmanagement-20131010-2vbro.html>. See also Christopher Knaus, ‘Packed Jail Appeal Fails to Win Bail For Accused, Canberra Times (online), 12 October 2013 <http://www. canberratimes.com.au/act-news/packed-jail-appealfails-to-win-bail-for-accused-20131011-2vegg.html>. The impact of overcrowding on prisoners’ human rights has also been discussed in the Victorian context: see Human Rights Law Centre, ‘Investigation Into the Rehabilitation and Reintegration of Prisoners in Victoria: Submission to the Victorian Ombudsman’ (2015) 5. 35. ‘Poor Decisions Continue To Haunt Canberra’s Jail’, above n 22. 36. Christopher Knaus, ‘Govt Was Warned of Prison Crowding’, Canberra Times (online), 9 October 2013 <http://www.canberratimes.com.au/act-news/govt-waswarned-of-prison-crowding-20131008-2v6ky.html>. 37. Christopher Knaus, ‘Government Rejected Call For Bigger ACT Prison’, Canberra Times (online), 26 October 2013 <http://www.canberratimes.com.au/actnews/government-rejected-call-for-bigger-act-prison20131025-2w7h4.html>. 38. Ibid. 39. Christopher Knaus, ‘$54 Million Jail Expansion To Begin Soon’, Canberra Times (online), 29 April 2014 <http://www.canberratimes.com.au/act-news/54-millionjail-expansion-to-begin-soon-20140428-37ebr.html>. 40. Lisa Mosley and Clarissa Thorpe, ‘Construction Fast-tracked For New Prison Block and Special Care Centre at Canberra Jail’, ABC News (online), 9 September 2014 <http://www.abc.net.au/news/2014-09-09/ construction-has-started-on-an-expansion-of-canberrajail/5731528>. 41. Christopher Knaus, ‘ACT Government Set To Use Second Full-time Prison To Tackle Overcrowding Crisis’, Canberra Times (online), 8 April 2015 <http://www. canberratimes.com.au/act-news/act-government-setto-use-second-fulltime-prison-to-tackle-overcrowdingcrisis-20150408-1mgthh.html>. 42. Ibid. See also ‘Poor Decisions Continue To Haunt Canberra’s Jail’, above n 22. 43. Megan Gorrey, ‘Inmates Moved To Symonston As Canberra’s Jail Reaches Capacity’, Canberra Times (online), 4 June 2015 <http://www.canberratimes. com.au/act-news/inmates-moved-to-symonston-ascanberras-jail-reaches-capacity-20150604-ghgiyx. html#ixzz3klI7ZZsf>. 44. Christopher Knaus and Megan Gorrey, ‘More Detainees Sent To Temporary Symonston Jail From Overcrowded Prison’, Canberra Times (online), 21 July 2015 <http://www.canberratimes.com.au/act-news/ more-detainees-sent-to-temporary-symonston-jail-fromovercrowded-prison-20150721-gih14o.html#ixzz3klItPLlR>. 45. Knowledge Consulting, above n 17, 70.

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46. Watchirs et al, above n 19, 17. 47. Knaus, above n 20. 48. Biles, above n 18. 49. Julieanne Strachan, ‘Inmates Need to Learn and Earn’, Canberra Times (online), 21 June 2014 <http:// www.canberratimes.com.au/act-news/inmates-needto-learn-and-earn-20140621-zsg9i.html>. For discussion of the decision not to operate prison industries, ‘as there was concern that...[this] would come at the expense of meaningful Vocational Education and Training’, see Knowledge Consulting, above n 17, 256. 50. Strachan, ibid. 51. ACT Auditor-General, ‘The Rehabilitation of Male Detainees At the Alexander Maconochie Centre’ (AuditorGeneral’s Report, ACT Government, 2015). 52. Ibid 2. 53. Ibid 183-4. 54. Ibid 7. 55. Ibid 17. 56. Ibid 17. 57. ‘Big Culture Change Needed for the AMC’, Canberra Times (online), 20 April 2015 <http://www. canberratimes.com.au/comment/ct-editorial/big-culturechange-needed-for-the-amc-20150420-1moozs.html>. 58. Matthew Doran, ‘Legal Experts Call for Urgent Improvements to Rehabilitation, Education Programs at Canberra Jail’, ABC News (online), 26 April 2015 <http:// www.abc.net.au/news/2015-04-26/experts-call-forurgent-action-to-improve-canberra-prison/6422760>. 59. Matthew Doran, ‘Canberra’s Jail Falls Short of Rehabilitation Standards, Prisoners Bored, AuditorGeneral’s Report Shows’, ABC News (online), 18 April 2015 <http://www.abc.net.au/news/201504-18/prisoners-bored-in-canberra-jail-says-actreport/6402910?section=act>. 60. ‘How Much Does It Cost To Keep People in Australian Jails?’, SBS News, 4, February 2015 http://www. sbs.com.au/news/article/2015/02/02/how-much-doesit-cost-keep-people-australian-jails. 61. Christopher Knaus, ‘Prisoner Support Program A First, Canberra Times (online), 25 March 2013 <http:// www.canberratimes.com.au/act-news/prisoner-supportprogram-a-first-20130324-2goek.html>. See also Lorana Bartels, ‘The State of Imprisonment in Australia: Can the ACT Achieve a “Human Rights” Prison?’ The Conversation, 17 April 2015 <https://theconversation.com/stateof-imprisonment-can-act-achieve-a-human-rightsprison-39119>. 62. Lisa Mosley, ‘Canberra’s Jail May Never Be Fully Human Rights Compliant’, ABC News (online), 13 November 2013 <http://www.abc.net.au/news/2013-1113/canberras-jail-may-never-be-fully-human-rightscompliant/5089852>. 63. ‘Growing Pains at the Alexander Maconochie Centre’, Canberra Times (online), 7 November 2014 <http://www.canberratimes.com.au/comment/cteditorial/growing-pains-at-the-alexander-maconochiecentre-20141107-11ijn8.html>. 64. Doran, above n 58.

Beyond the Binary: A Capabilities Approach to Transgender Rights

Eleanor Wood

Eleanor Wood is a third year Juris Doctor student and professional opera singer. Earlier this year, she simultaneously completed her Equity & Trusts mid-sem and performed in Orfeo and Euridice.

‘Biology gives you a brain. Life turns it into a mind.’ —Jeffrey Eugenides, Middlesex In the High Court decision of New South Wales Registrar of Births Deaths and Marriages v Norrie,1 French CJ, Hayne, Kiefel, Bell and Keane JJ held unanimously that the Registrar was empowered to record the sex of a person as ‘non-specific’ rather than ‘male’ or ‘female’.2 In reaching this conclusion, the judgment opened with the statement, ‘not all human beings can be classified by sex as either male or female’.3 The decision has been described as a landmark ruling, attracting widespread media coverage.4 Furthermore, the recent ruling is part of broader developments in transgender rights, awareness and advocacy. I suggest that a rights-based approach to determining capabilities, as set out by economist Amartya Sen5 and further explored by legal theorist Martha Nussbaum,6 may offer a useful framework for interpreting these developments.

Eleanor wishes to thank Professor Fleur Johns, Dr Marc De Leeuw and — especially — her dad, Dr Mike Wood, for their sage guidance in the writing of this article.

I. MOVING BEYOND THE BINARY IN SEX IDENTIFICATION Up until recently, the majority of Australian law and policy has been framed around a binary system. There has been very little scope to identify as anything other than male or female. In R v Harris, the existence of a third gender was explicitly rejected.7 Mathews J stated that, ‘there was no place in the law for a third sex’, because ‘such a concept could cause insuperable difficulties in the application of existing legal principles’ and ‘would also relegate transsexuals to a legal “no man’s land”’.8 The decision in NSW Registrar v Norrie is significant because it challenges the male/female binary understanding of sex that has been entrenched in Australian law and culture. The decision is part of broader developments in Australian policy to create space for sex identities beyond the male/female binary in relation to government recordkeeping, identity documentation and

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Beyond the Binary: A Capabilities Approach to Transgender Rights Eleanor Wood

anti-discrimination legislation.9 Whilst the terms ‘gender’ and ‘sex’ are sometimes used interchangeably, for the purposes of expression, this article will refer to ‘sex’ in discussing biology and ‘gender’ in discussing social and cultural identity. The restrictive male/female binary can have harmful effects on the wellbeing of sex and gender diverse people. James McGrath has argued that attempts to oversimplify the classification of a person’s sex can have troubling effects for those ‘who do not fit neatly into one of the two categories of male or female, and cause complications for others who do not conform to social roles expected of them. The law may be especially unkind to people who do not fit into one of these two ill-defined variables’.10 A recent study conducted by La Trobe University in September 2014 indicated that two thirds of gender diverse and transgender young people experienced verbal abuse because of their gender identity, and one in five of the participants surveyed had been physically abused.11 Of the 189 participants surveyed, the study found half had been diagnosed with depression and nearly half had been diagnosed with anxiety.12 As Theodore Bennett argues, law’s reliance on this binary paradigm ignores ‘the biological and lived realities of gender diverse people, marginalizes non-binary sex identities and trades on normative male/female bodies, sexualities and lives to unfairly restrict access to rights and recognition’.13 II. WHY A CAPABILITIES APPROACH? The nature of the lives people can lead has been the subject of attention of social analysts over the ages.14 While economic criteria of advancement such as gross national product (GNP) or gross domestic product (GDP) have frequently been relied upon to measure human advancement, Amartya Sen argues that direct indicators of well-being and freedom are increasingly important in social assessment. 15 He writes, ‘[i]n assessing our lives, we have reason to be interested not only in the kind of lives we manage to lead, but also in the freedom we actually have to choose between different styles and ways of living’.16 In a capabilities approach, individual advantage is assessed by a person’s capability to do things he or she has reason to value. According to Sen ‘[a] person’s advantage in terms of opportunities is judged to be lower than that of another if she has less capability – less real opportunity – to achieve those things she has reason to value’.17 The value of a capabilities approach is that it emphasises the plurality of different features that may be needed for human functioning: whether it be avoiding premature mortality, having access to education to pur-

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sue professional ambitions or taking part in community activities in a meaningful way. A capabilities approach focuses on human life, not just economic criteria such as income or commodities that a person may possess, which are often taken to be the main criteria of success.18 Sen writes, ‘the idea of freedom also respects our being free to determine what we want, what we value and ultimately what we decide to choose’.19 However, one potential limitation of a capabilities approach is that it values outcome over opportunity for individual rights. I suggest both considerations are important in relation to policy decisions for transgender rights. Martha Nussbaum has further explored the capabilities approach in considering social assessment and policy in relation to civil rights, relying on the language of liberty and freedom in fleshing out an account of the basic capabilities. She argues that rights play an increasingly large role in determining what the most important capabilities are, suggesting ‘legal guarantees of freedom of expression … and of religious exercise’ are aspects of the general capability to use one’s own mind in a way that is directed by one’s own practical reason.20 She also emphasises ‘guarantees of non-interference with certain choices that are especially personal and definitive of selfhood’.21 I suggest that these aspects of a capabilities approach are important to law and policy progressions for transgender rights, and should continue to inform decision makers in the future. Nussbaum stresses the dynamic nature of her list of basic capabilities, stating, ‘it is open-ended and humble; it can always be contested and remade’.22 The current list comprises life; bodily health; bodily integrity; senses, imagination and thought; emotions; practical reason; affiliation, friendship and respect; concern for other species; play; and control over one’s environment, both political and material.23 Nussbaum’s capabilities are complete in and of themselves. Nussbaum states, ‘[t]he central capabilities are not just instrumental to further pursuits: They are held to have value in themselves, in making a life fully human’.24 III. A STEP IN THE RIGHT DIRECTION In NSW Registrar v Norrie, the reasoning of the High Court was that the current Act was supported by ‘express legislative recognition of the existence of persons of “indeterminate sex”’.25 The Court held that while the Registrar was empowered to assess the veracity of an application, the Registrar’s function did not encompass ‘the making of any moral or social judgments’ or ‘the resolution of medical questions or the formation of a view about the outcome of a sex affirmation proce-

Illustration by Nour Tohamy

Issue 9, 2015

Intersex Rights and Freedoms

Beyond the Binary: A Capabilities Approach to Transgender Rights Eleanor Wood

dure’.26 This aspect of the decision raises a key question: what role, if any, should the state play in regulating our own sexual behavior and sexual identity? While the High Court’s reasoning turned largely on statutory interpretation, the New South Wales Court of Appeal appeared to give greater weight to changing moral values and the needs of individuals to flourish in a contemporary society. In discussing ‘specific categories of sex other than male or female’27 that might be contemplated by the Act, the Court of Appeal seemed to give weight to a naturalist sentiment that the law should allow the individual to flourish through self-evidently ‘good’ values. This notion of the individual being able to pursue human flourishing finds support in Nussbaum’s capabilities approach. The judgment of Beazley ACJ seemed to engage directly with the idea of the intersection between the law and shifting moral values held by the community. She states: Matters such as gender identity and sexual preferences are often overlain with social, moral and religious considerations that may vary widely in different segments of the community. The law’s role in the regulation of such matters may itself be controversial or, at the least, influenced by the different views within the community on such matters.28

This passage seems to endorse Nussbaum’s notion of basic capabilities as ‘an ongoing cross-cultural inquiry’ in which the law is informed by evolving community values.29 III. CONCLUSION Thanks to an increase in activism, public advocacy and ongoing academic attention, the rights of transgender people are increasingly recognised in contemporary society.30 This is strengthened by recent examples of high profile celebrities publicly discussing their transgender identity, such as former Olympic athlete Caitlyn Jenner and television actor Laverne Cox. In the face of this growing recognition, law and government must consider developing ‘a framework that does not compel subjects to live in one of two categories, and does not attempt to “freeze” sex and gender’.31 The key issue is no longer whether space should be opened up for non-binary sex identities, but rather how such a space should be opened up. As law and policy continues to grapple with transgender rights and identities, a capabilities approach offers a more dynamic framework that promotes the pursuit of individual rights and celebrates diversity.

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REFERENCES 1. (2014) 250 CLR 490 (‘NSW Registrar v Norrie’). 2. Ibid 493 [2]. 3. Ibid 492 [1]. 4. Paul Bibby and Dan Harrison, ‘Neither Man Nor Woman: Norrie Wins Gender Appeal’ The Sydney Morning Herald (online) 2 April 2014 <http://media.smh.com.au/ news/nsw-news/norrie-wins-gender-appeal-5316581. html>. 5. Amartya Sen, The Idea of Justice (Belknap Press, 2009). 6. Martha C Nussbaum, ‘Capabilities and Human Rights’ (1997) 66 Fordham Law Review 273. 7. (1988) 17 NSWLR 158, 194. 8. Ibid. 9. Theodore Bennett, ‘“No Man’s Land”: Non-binary Sex Identification in Australian Law and Policy’, (2014) 37 University of New South Wales Law Journal 847, 848. 10. James McGrath, ‘Are You a Boy or a Girl? Show Me Your REAL ID’ (2009) 9 Nevada Law Journal 368, 368. 11. Elizabeth Smith et al, ‘From Blues to Rainbows: The Mental Health and Well-being of Gender Diverse and Transgender Young People in Australia’ (Research Report, Australian Research Centre in Sex, Health and Society, September 2014) 12. 12. Ibid 12, 66. 13. Bennett, above n 9, 848. 14. Sen, above n 5, 225. 15. Ibid 227. 16. Ibid. 17. Sen, above n 5, 231. 18. Ibid 233. 19. Ibid 232. 20. Nussbaum, above n 6, 273, 277. 21. Ibid 277. 22. Ibid 286. 23. Ibid 286–8. 24. Ibid 286. 25. NSW Registrar v Norrie (2014) 250 CLR 490, 496 [18]. 26. Ibid 495 [16]. 27. Ibid 499 [34]. 28. Norrie v NSW Registrar of Births Deaths and Marriages [2013] NSWCA 145, 65 [177]. 29. Nussbaum, above n 6, 286. 30. Bennett, above n 9, 853. 31. Ibid 854.

Morgan Carpenter

Issue 9, 2015

Intersex Rights and Freedoms Morgan Carpenter

sex characteristics make us a third gender or sex.8 Addressing the rights and freedoms of people with atypical sex characteristics means addressing the right to be told the truth about our bodies; the right to be informed, and to freedom of association with a community. They include the right to physical integrity, to make our own choices about irreversible treatments to our bodies that are driven by social expectations; the right to freedom from inhuman and degrading treatment,9 and the right to determine our own identities. I. RECOGNITION BEFORE THE L AW

Morgan Carpenter is the president of Organisation Intersex International Australia Limited, a national, intersexled Public Benevolent Institution that engages in systemic advocacy, education and peer/family support. In 2015, Morgan moderated a presentation on intersex to the UN Committee on the Rights of Persons with Disabilities. Morgan is also an advisor to the first international Intersex Human Rights Fund, managed by the Astraea Lesbian Foundation for Justice, and has acted as an expert advisor to a range of governmental and other institutions.

‘Intersex status’ is a new attribute in federal anti-discrimination law that was introduced in 2013, but few institutions have yet responded to this development. Those few have typically focused on the same issues of honorifics, pronouns and toilets that they might address in tackling gender identity discrimination,1 while media reports frequently suggest that LGBTI people are all gay.2 So what does the law say, and what does it mean to address the rights and freedoms of people born with intersex traits? Intersex people are born with sex characteristics that differ from stereotypical notions of male or female.3 The Sex Discrimination Act 1984 (Cth) describes the ‘intersex status’ attribute in physical terms, distinguished not only from sexual orientation and gender identity, but also from sex. The definition is broad, ensuring protections for persons perceived to be intersex. People with intersex variations are a heterogeneous group, with varied kinds of bodies, experiences and identities. Intersex can mean a different number of sex chromosomes; different physical responses to sex hormones; or different developmental hormone balances and anatomies. A German researcher states they comprise ‘at least 40 different entities of which most are genetically determined. An exact diagnosis is lacking in 10 to 80 per cent of the cases’.4 Disclosed by a doctor to a parent or an individual, diagnosis remains an inexact science. Around 1.7 per cent of the population may have intersex traits.5 As a group, intersex people face a range of health and human rights issues, caught between contrasting visions of who and how we should be. On the one hand, we are seen to have intrinsic ‘disorders of sex development’. Obvious differences result in medical interventions explicitly intended to make intersex bodies conform to social norms for one or other binary sex.6 These often take place shortly after diagnosis, whether prenatally, shortly after birth, during childhood and adolescence, or later in life. On the other hand, many of us face stigma and abuse due to our sex characteristics, whether ‘treated’ or not,7 along with ‘misgendering’, treating our gender identities or legal sexes as invalid, and expectations that atypical

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Recognising intersex in law means recognising our shared experience, and our specific health and human rights needs; it does not mean recognising a novel gender or sex classification. Those of us with obvious physical differences may face the same discrimination experienced by many trans people, whether or not we change sex classification.10 Some of us have non-binary, multiple, or other distinctive gender identities, and these are often informed by our biology, but we don’t all share a common identity, least of all a common gender identity. We of course benefit from actions to reduce gender inequality and the stigmatisation of gender non-conformity, but intersex people only share with each other an experience of being born with stigmatised atypical sex characteristics. Reductive gender-based approaches to intersex have seen us portrayed in the media as the non-binary equivalent of ‘trans-exclusionary radical feminists’, those who oppose trans women identifying themselves as women.11 The reality is that we oppose this biological determinism: the essentialism that equates intersex characteristics with non-binary gender identity, and the essentialism that disorders our natural human bodily diversity. Both approaches are harmful, and deny agency to intersex individuals to make our own decisions. Despite the simplistic rationalisations by the ACT Law Reform Advisory Council,12 which has been rendered from conflating identity and sex, and the deeply flawed changes to the Territory’s birth registrations law that followed, our human rights issues cannot be reduced to a novel third checkbox on a form. Assigning infants and children to a third classification is abhorrent when that classification is experimental, not well understood or supported in society, and when it recognises lesser rights in people than the traditional categories. A child may even be confronted with forced disclosure of their stigmatised characteristics at nursery or school. Not only is a child’s assignment to a third classification likely to be incorrect, given our existing range of identities, but the possibility of such assignment increases pressure on vulnerable parents to avoid such risks through medical intervention. Having a third classification open only to intersex and/or trans people is more correctly a purification of the binary sexes. It dangerously misses the point. Our key issue is not so much the

Issue 9, 2015

existence of binary genders, but what is done medically to make us conform to those norms. Any third classification must be voluntary, opt in by a person who can consent, and open to all; and it must not misassign intersex people as a class. Indeed, many intersex people already face stigma and failures to recognise our birth sex assignment. Sporting history is replete with examples of women being banned from competition after medical testing reveals they have an intersex variation.13 The scientific basis for such exclusion has failed to be demonstrated.14 Worse, medical papers published in 2013 and 2014 disclosed that four elite intersex women athletes were subjected to ‘partial clitoridectomies’ and sterilisation as part of a coercive process that determined whether or not they could continue competing.15 Despite being one of the few countries to protect intersex people from discrimination, Australia’s legal exemption for competitive sports, contained in the Sex Discrimination Act,16 has an unfortunate global significance. Several states and territories are currently reviewing sex registration guidelines. Recognising the rights and freedoms of intersex people would mean ending the legal registration of sex, just like societies around the world have ended the registration of race. However, as with ending the registration of race, ending legal sex classification would not mark the end of work to counter discrimination, combat human rights violations and address health disparities. Nor should it; but ending official sex classifications on identity documents would be right. Some intersex people change sex assignment, and a particular difficulty faced by people in this situation is the imposition of early involuntary or coerced medical intervention to instil or reinforce an inappropriate gender identity. Birth registration laws have historically been used to ensure that trans people are surgically sterilised before their identity is officially recognised. Local best practice is to end those requirements for trans people. However, world best practice would not only be permitting self-declaration of sex or gender, but prohibiting modifications to sex characteristics for all people, except in cases where there is personal consent or a clear physical necessity. To date, Australian discussions have perceived this possibility as some kind of furphy, but Malta did precisely this in 2015, along with recognition of rights to gender identity and bodily integrity, and the creation of a ‘sex characteristics’ attribute in anti-discrimination law.17 Malta remains the only country in the world that prohibits sex assignment treatments and surgical interventions on minors. II. MEDICAL TREATMENT Surgeries and hormonal interventions to ‘normalise’ intersex bodies currently take place on a routine basis in Australia, such as when girls’ clitorises are deemed too

‘Addressing the rights and freedoms of people with atypical sex characteristics means addressing the right to be told the truth about our bodies; the right to be informed, and to freedom of association with a community.’

Intersex Rights and Freedoms Morgan Carpenter

Illustration by Angelina Yurlova

big, or when boys are unable to stand to urinate. The Australian Human Rights Commission reports such rationales as ‘informed by redundant social constructs around gender and biology’,18 but clinicians argue that standing to pee is a ‘functional’ requirement for boys.19 Infants assigned as girls may be subjected to ‘feminising genitoplasty’ at an average age of 15 weeks, and follow-up consultations may include sensitivity testing with a cotton bud or vibrator. On non-intersex girls, such surgeries are considered abhorrent,20 prohibited as ‘Female Genital Mutilation’ due, in part, to urinary, sensitivity and other risks. Most clinical guidelines are confidential, and so are numerical and historical data. Published quantitative data are also lacking, and there is no long term follow-up in Australia, 21 but scientific and medical papers disclose the central role of surgical interventions.22

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These are justified for social rationales such as marriageability,23 facilitating parental bonding, and ‘minimizing family concern and distress’.24 In 2013, an Australian Senate Committee Inquiry into involuntary or coerced sterilisation found that there is ‘great danger’ of using such ‘psychosocial’ reasons for medical intervention.25 It suggests these rationales are a ‘circular argument that avoids the central issues[:] …surgery is unlikely to be an appropriate response to these kinds of issues.’26 Moreover, clinician documents also disclose ‘particular concern’ for post-surgical ‘sexual function and sensation’.27 Clinical papers commonly portray ethical concerns about medical treatment as controversies over surgical timing and the degree of ‘severity’ warranting intervention.28 In reality, the key ethical concerns are matters of rights and freedoms: of informed consent and personal

autonomy. The 2013 Senate Committee Inquiry found there is ‘no medical consensus around the conduct of normalising surgery.’29 Indeed, UK clinicians state ‘a schism has developed between clinicians working in paediatric and in adolescent/adult services’ due to a lack of evidence for early surgeries and their consequences.30 The same clinicians note an increase in the number of clitoral surgeries on under-14s in the UK in the last decade: ‘The widespread practice of childhood genital surgery has meant that there have been very few adults who have not been operated on to enable robust comparative studies to be carried out’.31 Doctors favour action, rather than inaction; an ‘intervention bias’.32 At times, sterilisations take place due to elevated cancer risks, however, data about actual risk levels are often sketchy, with no control groups available for comparison. During the course of the Senate inquiry, it was revealed that routine sterilisations of women with Complete Androgen Insensitivity Syndrome no longer take place – risk levels had been overstated – but the date of their cessation is unknown, and there has been no attempt at reparations. Moreover, clinicians have disclosed a range of non-therapeutic rationales for sterilisation such as sex of rearing and expected future gender identity, and these were intertwined with rationales about cancer risk. The Senate was disturbed by the idea that ‘basing a decision on cancer risk might avoid the need for court oversight in a way that a decision based on other factors might not.’33 Clinicians are members of the same society as everyone else, and subject to the same prejudices and fears.34 Research on physicians’ attitudes towards ‘normal’ female external genital appearance is disturbing; it shows that desirability and propensity to suggest surgical reduction are informed not only by specialism (and possible financial benefit), but also by the physicians’ gender.35 In June 2015, the Commonwealth government acknowledged the 2013 Senate committee report, but stated that its recommendations are a matter for States and

Issue 9, 2015

Territories. In doing so, it commended guidelines that are both non-binding and flawed.36 In contrast, Malta has shown how meaningful action is possible and practicable. Intersex health issues may also be addressed as forms of discrimination and violence,37 and by removing loopholes in prohibitions of Female Genital Mutilation.38 III. A HISTORY OF SILENCE The intersex movement necessarily focuses much time and energy on ending involuntary and coerced medical treatment, but even if these cease tomorrow, there remain lifelong legacies of trauma, distrust and discrimination. The philosopher Miranda Fricker describes epistemic or hermeneutical injustice as preventing someone with lived experience from making sense of their own experience. An example is ‘the difficulty of making sense of homosexual desire as a legitimate sexual orientation in a cultural-historical context where homosexuality is interpreted as perverse or shameful... forms of understanding available for making sense of homosexuality were crucially uninformed and distorted.’39 Tackling hermeneutical injustice requires a cognitive shift in understanding. For people with intersex traits, this hermeneutical injustice was at its most profound from the 1950s to the early new millennium, where a culture of secrecy in diagnoses was fostered.40 The objective was to ‘enable the child have a ‘normal’ physical and psychosexual development.’41 That culture of silence gave people with intersex variations no words to describe our sutures, scars and lack of sensation, and no words to understand the commonalities that are share across the diversity of intersex experiences. In 2006, an invite-only group led by US clinicians changed clinical language from intersex to ‘disorders of sex development’,42 a move that sociologist Morgan

Intersex Rights and Freedoms Morgan Carpenter

Holmes states ‘reinstitutionalises clinical power to delineate and silence those marked by the diagnosis; that this silencing is precisely the point of the new terminology’.43 The new language reasserted medical authority in the light of successful intersex advocacy that cast our issues as human rights.44 However, it remains deployed in clinical settings, along with specific, rare, and complex diagnostic terms. Silence does not simply perpetuate a legacy of shame and secrecy, it prevents families and individuals from providing informed consent. Clinical silence and common misunderstandings of intersex as an identity label act as a form of epistemic or hermeneutical injustice. They prevent parents from understanding their child in non-pathological ways, and as a member of a social group protected by the Sex Discrimination Act.45 Clinical language erects a barrier to alternative treatment paradigms based on self acceptance and respect for personal autonomy. Separately, a shift in terminology from LGBT to LGBTI over recent years has not yet been matched with an increased understanding of intersex. By focusing only on issues of sexual orientation and gender identity, LGBTI research studies and services frequently fail to address the particularities of intersex experience. Misconceptions frame intersex as something more familiar, viewed with a trans lens, or an LGBT lens. Novel and abstract terminology has also been adopted with scant relevance, and continue to perpetuate hermeneutical injustices.46 Intersex issues are thus caught between distinctly different languages and approaches, and legal policy work remains disjointed. It must not remain so. The problematisation of intersex bodies has profound impacts on our education, work and intimate lives; some of this will be documented in a major research study published late in 2015.47 Tackling rights and freedoms for people born with intersex traits means recognising our diversity, and the hermeneutical injustices we face. It means tackling medical disordering, interventions, and the silence that surrounds them, through binding regulation and legislation. It means acknowledging a right not to undergo sex affirming treatments.48 In the words of the World Health Organization, it includes ‘remedies and redress to the victims of such treatment, including adequate compensation’.49 REFERENCES 1. See, eg, Mehnaz Yoosuf, ‘Recognition and Protection for Intersex Persons’ (2015) 52 Law Institute Journal ; Meredith Griffiths, ‘Universities Could Do More to Include

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LGBTI Students, Human Rights Commission Assessment Finds’, ABC News (online), 11 May 2015 <http://www.abc. net.au/news/2015-05-11/universities-could-do-more-toinclude-lgbti-students-new-guide/6461132>. 2. See, eg, Bellinda Kontominas, ‘Domestic Violence a “Silent Epidemic” in Gay Relationships’, Sydney Morning Herald (online), 30 May 2015 <http://www.smh.com. au/nsw/domestic-violence-a-silent-epidemic-in-gayrelationships-20150530-1mm4hg>; Miki Perkins and Rachel Browne, ‘Young Men Remain Alarmingly Homophobic, Study Finds’, Sydney Morning Herald (online), 31 March 2015 <http://www.smh.com.au/national/young-men-remainalarmingly-homophobic-study-finds-20150330-1mb7ph. html>. 3. United Nations Office of the High Commissioner for Human Rights, ‘Fact Sheet: Intersex’ (Report, United Nations Office of the High Commissioner for Human Rights) 1. 4. Olaf Hiort, ‘DSDnet: Formation of an open worldwide network on DSD’ (Paper presented at Proceedings of the 4th International Symposium on Disorders of Sex Development, University of Glasgow, 7–9 June 2013). 5. Melanie Blackless et al, ‘How Sexually Dimorphic Are We? Review and Synthesis’ (2000) 12 American Journal of Human Biology 151, 159. 6. See Community Affairs References Committee, Parliament of Australia, Involuntary or Coerced Sterilisation of Intersex People in Australia (2013) 35. 7. See, eg, Iain Morland, ‘What Can Queer Theory Do for Intersex?’ (2009) 15 GLQ: A Journal of Lesbian and Gay Studies 285, 298; Rachel Moss, ‘Married Man Sees His Doctor About Stomach Cramps - Finds Out He’s A Woman With Period Pains’, Huffington Post UK (online), 28 July 2014 <http://www.huffingtonpost.co.uk/2014/07/24/marriedman-period-pains-woman_n_5616359.html>. 8. See Julia Baird, ‘Neither Female Nor Male’, The New York Times (online), 6 April 2014 <http://www.nytimes.com /2014/04/07/opinion/neither-female-nor-male.html>. 9. Micah Grzywnowicz, ‘Consent Signed with Invisible Ink: Sterilization of Trans* People and Legal Gender Recognition’ (Torture in Healthcare Settings: Reflections on the Special Rapporteur on Torture’s 2013 Thematic Report, American University Washington College of Law, 2013) 74. 10. See Morgan Carpenter and Dawn Hough, ‘Employers’ Guide to Intersex Inclusion’ (Guide, Pride in Diversity and Organisation Intersex International Australia Limited, 2014) 18. 11. Baird, above n 8. 12. ACT Law Reform Advisory Council, Beyond the Binary: Legal Recognition of Sex and Gender Diversity in the ACT, Report No 2 (2012) 9. 13. Maria José Martínez-Patiño, ‘Personal Account A Woman Tried and Tested’ (2005) 366 (Suppl 1) The Lancet S38.

14. Dutee Chand v Athletics Federation of India (AFI) & The International Association of Athletics Federations (IAAF) (Interim Arbitral Award) (Court of Arbitration for Sport, CAS 2014/A/3759, 24 July 2015) 34, 155. 15. See, eg, Rebecca M Jordan-Young, Peter H Sönksen and Katrina Karkazis, ‘Sex, Health, and Athletes’ (2014) 348 BMJ: British Medical Journal 20, 20; Patrick Fénichel et al, ‘Molecular Diagnosis of 5α-Reductase Deficiency in 4 Elite Young Female Athletes Through Hormonal Screening for Hyperandrogenism’ (2013) 98 The Journal of Clinical Endocrinology & Metabolism E1055, E1057-8. 16. Sex Discrimination Act 1984 (Cth), s 42. 17. Gender Identity, Gender Expression and Sex Characteristics Act 2015 (Malta) Act No XI of 2015, 14 April 2015. 18. Australian Human Rights Commission, ‘Resilient Individuals: Sexual Orientation, Gender Identity & Intersex Rights’ (National Consulation Report, Australian Human Rights Commission, 2015) 57. 19. Australasian Paediatric Endocrine Group, Submission No 88 to Senate Standing Committee on Community Affairs, Inquiry Into the Involuntary or Coerced Sterilisation of People with Disabilities in Australia: Regarding the Management of Children with Disorders of Sex Development, 27 June 2013, 4. 20. Australian Government Attorney General’s Department, ‘Review of Australia’s Female Genital Mutilation Legal Framework’ (Final Report, Attorney General’s Department, March 2013) 6. 21. Ibid 18–9. 22. Lih-Mei Liao and Margaret Simmonds, ‘A Values-Driven and Evidence-Based Health Care Psychology for Diverse Sex Development’ (2014) 5 Psychology & Sexuality 83. 23. State Government of Victoria Department of Health, ‘Decision-Making Principles for the Care of Infants, Children and Adolescents with Intersex Conditions’ (Policy Guidelines, Victorian Government, February 2013) 18. 24. S Faisal Ahmed et al, ‘Summary of Consensus Statement on Intersex Disorders and Their Management’ (2006) 118 Pediatrics 753. 25. Community Affairs References Committee, above n 6, 74. 26. Ibid. 27. See, eg, Australasian Paediatric Endocrine Group, above n 19; Morgan Carpenter and Organisation Intersex International Australia, Submission No 23 to Senate Committee on Community Affairs, August Submission to the Senate Inquiry on the Involuntary or Coerced Sterilisation of People with Disabilities, 29 August 2013, 3. 28. Australasian Paediatric Endocrine Group, above n 19, 5, 9. 29. Community Affairs References Committee, above n 6. 30. Sarah M. Creighton et al, ‘Childhood Surgery for Ambiguous Genitalia: Glimpses of Practice Changes or More of the Same?’ (2014) 5 Psychology and Sexuality 34, 34. 31. Ibid 36.

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32. A J Foy and E J Filippone, ‘The Case for Intervention Bias in the Practice of Medicine’ (2013) 86 Yale Journal of Biology and Medicine 271, 271–2. 33. Community Affairs References Committee, above n 6, 91–2. 34. See Simon Copland, ‘CIA Torture Is Only Part of Medical Science’s Dark Modern History’, The Guardian (online), 22 June 2015 <http://www.theguardian.com/ science/blog/2015/jun/22/cia-torture-is-only-part-ofmedical-sciences-dark-modern-history>. 35. Welmoed Reitsma et al, ‘No (Wo)Man Is an IslandThe Influence of Physicians’ Personal Predisposition to Labia Minora Appearance on Their Clinical Decision Making: A Cross-Sectional Survey’ (2011) 8 The Journal of Sexual Medicine 2377, 2382. 36. Commonwealth, Parliamentary Debates, Senate, 17 June 2015, 3756-770 (Mitch Fifield); see also Morgan Carpenter and Organisation Intersex International Australia, Submission No 23 to Senate Committee on Community Affairs, Supplementary Submission on the Involuntary or Coerced Sterilisation of People with Disabilities in Australia, 8 March 2013. 37. World Health Organization, ‘Sexual Health, Human Rights and the Law’ (Report, World Health Organization, 2015) 40. 38. Morgan Carpenter and Organisation Intersex International Australia, Submission No 23 to Senate Committee on Community Affairs, Third Submission to the Senate Inquiry on the Involuntary or Coerced Sterilisation of People with Disabilities, 3 June 2013, 3. 39. Miranda Fricker, ‘Forum on Miranda Fricker’s Epistemic Injustice: Power and the Ethics of Knowing’ (2008) 61 Theoria 69, 70. 40. See generally Morgan Holmes, ‘Is Growing up in Silence Better Than Growing up Different?’ (1997) 2(5) Chrysalis: The Journal of Transgressive Gender Identities 1, 7–9. 41. Swiss National Advisory Commission on Biomedical Ethics, ‘On the Management of Differences of Sex Development: Ethical Issues Relating to ‘Intersexuality’’ (Report, Swiss National Advisory Commission on Biomedical Ethics, November 2012) 8. 42. Androgen Insensitivity Syndrome Support Group (AISSG), DSD Terminology (29 October 2014) AISSG <http:// www.aissg.org/DEBATES/DSD.HTM>. 43. Morgan Holmes, ‘The Intersex Enchiridion: Naming and Knowledge’ (2011) 1 Somatechnics 388, 388. 44. Georgiann Davis, ‘“DSD is a Perfectly Fine Term”: Reasserting Medical Authority Through a Shift in Intersex Terminology’ (2011) 12 Advances in Medical Sociology 178. 45. Sex Discrimination Act 1984 (Cth). 46. Dean Arcuri, ‘Midsumma Says Bye to the Alphabet Soup’, SameSame.com.au (online), 19 June 2015 <http:// www.samesame.com.au/news/12433/Midsumma-saysbye-to-the-alphabet-soup>. 47. Tiffany Jones et al, forthcoming. 48. Council of Europe Commissioner for Human Rights, ‘Human Rights and Intersex People’ (Issue Paper, Council of Europe Commissioner for Human Rights, 12 May 2015) 9. 49. World Health Organisation, above n 37, 27.

A Referendum or Plebiscite on Same-Sex Marriage?

George Williams AO

George Williams is the Anthony Mason Professor at UNSW Law and practises as a barrister at the NSW Bar. He is a well-known media commentator on legal issues and he also reviews science fiction and fantasy books for The Weekend Australian and Books and Arts Daily on ABC Radio National.

Court of Conscience

It is time that Australia joined other nations in permitting people of the same sex to marry. As it stands, the Marriage Act 1961 (Cth) discriminates between people on the basis of their sexuality by restricting marriage to the ‘union of a man and a woman to the exclusion of all others, voluntarily entered into for life’.1 The unfairness involved in excluding same-sex couples from the institution of marriage has led many nations to change their law. In most cases, this has been by way of a parliament legislating to bring about the reform. On occasion, court decisions have also played a key role. For example, gay marriage was recognised in Canada and the United States after judges held that denying same sex couples the right to marry breached constitutional guarantees of equality and freedom from discrimination on the basis of sexuality.2 In the United States, its Supreme Court delivered a landmark decision in 2015 in Obergefell v Hodges3 holding that the United States Bill of Rights guarantees same-sex couples the right to marry. As a result, states were required to issue marriage licenses to same-sex couples and to recognise same-sex marriages entered into in other jurisdictions. The result reflected the reasoning of other US courts, including a decision in 2012 by the US Court of Appeals for the 9th Circuit, which found a Californian ban on same-sex marriage unconstitutional because it discriminated against same-sex couples contrary to the US Bill of Rights.4 The Court said that the ban ‘serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples’.5 To date, the Australian Parliament has rejected each attempt to legislate for same-sex marriage. There is also no prospect that an Australian court will provide a catalyst for the recognition of same-sex marriage by way of its interpretation of the Constitution. Indeed, no attempt has even been made to launch such a case in Australia. This is because Australia is now the only democratic nation without a national Bill of Rights. As a result, Australian

Issue 9, 2015

A Referendum or Plebiscite on Same-Sex Marriage? George Williams AO

law provides no guarantee of equality, due process or other human right that might serve to override the discriminatory operation of the Marriage Act. The absence of judicial action and inaction on the part of the federal Parliament has led to debate about other routes for achieving same-sex marriage reform. Attention has focused on the Republic of Ireland, which has recognised same-sex marriage by way of a different route. On 22 May 2015, the people of that nation voted in a referendum to permit their parliament to legalise same-sex marriage. Many in Australia have suggested that we should follow the same path, and indeed the Abbott government has proposed to hold either a referendum or plebiscite on same-sex marriage. For the proponents of same-sex marriage, a national vote offers the prospect of circumventing the inaction of the federal Parliament. It could be the circuit breaker that allows the will of the people to overcome the intransigence of their representatives. On the other hand, for the opponents of the idea, such a vote could delay a further parliamentary vote and could give rise to a national No vote that could put the issue off the political agenda for the foreseeable future. I. A REFERENDUM? Ireland held a referendum on same-sex marriage because its Parliament could not pass a law same-sex marriage. This was due to the nation’s Constitution, which is embedded with a range of values antagonistic to the idea. The Irish Constitution came into force in 1937, and reflects the thinking of the time, as well as the influence of the Catholic Church. Article 41 ‘recognises the Family as the natural primary and fundamental unit group of Society’. It says that the state must ‘protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation’. Article 41 also mentions the role of a woman ‘within the home … without which the common good cannot be achieved’ and that the state must ‘ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home’. Finally, the Constitution requires the state to ‘guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack’. The Irish courts have not handed down a definitive decision indicating that such text in the Constitution precludes Parliament from recognising same-sex marriage. Nonetheless, the body of case law has been interpreted in this way. For example, Ireland’s Minister for Justice and Equality, Alan Shatter, stated:

Court of Conscience

The clear position arising from case law in Ireland … is that marriage is understood as being between one man and one woman, ideally for life. The Government considers that it would be constitutionally unsound to legislate for marriage between same-sex couples in the absence of a constitutional amendment. The response to such thinking was to hold a referendum to change the Irish Constitution so as to permit Parliament to legislate for same-sex marriage. The Yes vote at that poll added the following words to the Constitution: ‘Marriage may be contracted in accordance with law by two persons without distinction as to their sex.’ It is important to note that the referendum did not by itself allow same-sex people to marry. The Irish Parliament must still enact enabling legislation. Because the Irish Constitution had been interpreted as preventing same-sex marriage by way of ordinary legislation, a constitutional amendment was required to permit this. The same reasoning does not apply to Australia. Australia’s Constitution does not set out the importance of the family, or the role of women in society. While it mentions ‘marriage’ in section 51, it does so only by way of stating that the federal Parliament can pass laws on the subject. There had been doubt about whether this federal power over marriage could be used to recognise samesex marriage. It was arguable that it extended only to recognising the type of marriage that existed in 1901 when the Constitution came into force, that is, marriage between a man and a woman. These doubts have now been dispelled. In 2013, in Commonwealth v Australian Capital Territory (SameSex Marriage Case),6 the High Court struck down the ACT’s recognition of same-sex marriage. In a unanimous judgment, the High Court also commented on the scope of the federal Parliament to itself enact such a law. The Court gave a broad reading to the federal ‘marriage’ power, describing marriage as ‘a consensual union formed between natural persons in accordance with legally prescribed requirements’.7 This clarified that the federal Parliament can pass a law for same-sex marriage. As a result, no referendum to change the Constitution is required in order for the federal Parliament to legislate on the subject. Given the state of the law in Australia, it is hard to see how a referendum on same-sex marriage could be properly framed. This is because no change to the Constitution is required to either leave the definition of marriage as it is, or to legislate for same-sex marriage. The Constitution is well drafted in already providing flexibility to the legislature. Perhaps a referendum to change the Constitution in Australia might mandate the recognition of same-sex marriage, or prohibit this. However, neither would be appropriate, as the Constitution should

Illustration by Angelina Yurlova

Issue 9, 2015

A Right to Truth in Customary International Law?

A Referendum or Plebiscite on Same-Sex Marriage? George Williams AO

instead facilitate the making of laws on the subject by Parliament. Suggestions that Australia might hold a referendum on same-sex marriage reflect the aspirations of opponents of the idea that that they might achieve a national No vote. They are no doubt emboldened by the poor state of Australia’s referendum record. Australia has run 44 referendums to change the Constitution since 1901. Of these, only eight have succeeded, and none at all since 1977. II. A PLEBISCITE? As an alternative to a referendum to change the Australian Constitution, it has been suggested that the people might vote on same-sex marriage by way of a plebiscite. Although constitutional referendums are common in Australia, national plebiscites are not. Nationally, only three plebiscites have been held. The first two occurred in 1916 and 1917, when people voted against introducing conscription during World War I. The last was in 1977, when the people chose Advance Australia Fair as the national anthem. It received 43 per cent of the vote, with Waltzing Matilda coming in second with 28 per cent. A plebiscite has no legal effect. It is no more than a formalised, national opinion poll. It would not bring about same-sex marriage, nor, constitutionally, could a bill providing for a plebiscite require Parliament to legislate for this. At best, Parliament might enact a bill providing for same-sex marriage that includes that the Bill will not commence until the Australian people have voted yes at a plebiscite on the subject. In effect, Parliament would legislate for same-sex marriage, with this being contingent upon the outcome of a plebiscite. In the absence of such a mechanism, parliamentarians with strong convictions against the recognition of same-sex marriage may well be minded to maintain these even if the Australian people indicate their support for same-sex marriage at the ballot box. After all, parliamentarians have maintained such a position despite opinion polls consistently indicating majority community support for such a change. It may be that some parliamentarians opposed to same-sex marriage will indicate that they will change their vote if the idea is supported by the Australian people voting in a plebiscite. This could enable such a vote to bring about a shift in parliamentary support for the idea, and so enable the enactment of a law that has popular support, but otherwise lacks a majority in Parliament. Whether or not this will actually occur cannot not be determined until after the result of the plebiscite is known. For example, a parliamentarian might not be prepared

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to shift their vote to same-sex marriage if the plebiscite is decided by a small number of votes. The result would be considerable, ongoing uncertainty. More fundamentally, a plebiscite on the subject is inappropriate because it would amount to an abdication of responsibility by parliamentarians. Australia has adopted a system of representative government, not one based upon direct democracy. A shift of this kind towards direct democracy would be a radical alteration in the democratic process. This should not be approached in an ad hoc manner, but in a more considered way. A plebiscite of this kind would establish an important precedent. If it is held, the argument for a like vote on other subjects would become strong. For example, a plebiscite should also soon be held on the introduction of voluntary euthanasia, which also has majority support in opinion polls, but as yet has not been enacted by a state or the national parliament. An additional concern is that a plebiscite is not desirable on this subject. A person’s basic human rights should not be the subject of a national vote unless, as in the Irish case, it is the only means of achieving change. Fundamental individual rights, which may well be those of a minority, should not be made subject to majoritarian concerns. A vote on such subjects can also be fraught. In putting a yes/no proposition to the community, such votes necessarily polarise debate. As a result, they can leave bitterness and division in their wake. As with a referendum, a plebiscite is simply not the right way of resolving the same-sex marriage debate. For better or for worse, this must remain a matter for Parliament.

Nikki Edwards

REFERENCES 1. Marriage Act 1961 (Cth) s 5. 2. See, eg, Halpern v Canada (A-G) (2003) 172 OAC 276; Obergefell v Hodges, 576 US ___ (2015). 3. 576 US ___ (2015). 4. Perry v Brown, 671 F 3d 1052 (9th Cir 2012). 5. Ibid. 6. (2013) 304 ALR 204. 7. Ibid 212.

Issue 9, 2015

A Right to Truth in Customary International Law? Nikki Edwards

view the sources which are said to give rise to a ‘right to truth’, before finally evaluating the current status of the right. I. THE DEVELOPMENT OF CUSTOMARY INTERNATIONAL L AW

Nikki Edwards is a UNSW law student and research assistant at the Department of Indonesian Studies at the University of Sydney.

During seven months between 1965 and 1966, at least half a million ‘communists’ were murdered in Indonesia.1 Under customary international law, these killings would now constitute crimes against humanity,2 which occur, inter alia, when extrajudicial killing is ‘committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack’.3 However, none of those responsible for the killings were investigated or punished at the time. On the contrary, the killings helped reinforce the army’s political position during the ensuing 32 years of authoritarian government, during which time discussion of the violence was taboo.4 Although Indonesia transitioned from authoritarianism to a more democratic order after 1998, there has still never been any formal public inquiry into the killings, let alone prosecution of those responsible. To some extent the ongoing silence about this historical atrocity is remarkable, since it has become common for states undergoing political transitions to establish ‘truth commissions’ in an attempt to respond to the wrongdoings of predecessor regimes.5 As Teitel explains, ‘truth commissions’ are often established ‘to investigate, document, and report upon human rights abuses within a country over a specified period of time’.6 Establishing truth commissions has become such a common practice in transitional contexts that Ben-Josef Hirsch et al. argue that truth commissions have ‘emerged as an international norm’.7 Some commentators even go much further, however, contending that states are now under a customary international legal obligation to guarantee the ‘right to truth’ about serious human rights violations.8 This article considers whether there is a ‘right to truth’ under customary international law that would obligate Indonesia to investigate the ‘truth’ about the commission of crimes against humanity during the 1960s. It argues that although the ‘right to truth’ may be crystalising into a rule of customary international law, there is not yet sufficient evidence of consistent state practice and opinio juris for ‘the right to truth’ to be considered a binding rule. The article begins with a general discussion of customary international law, then shifts focus to over-

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Whereas states must expressly agree to enter into treaties in order for the obligations therein to be binding, all states will be bound irrespective of their direct consent where a rule of customary international law exists. For example, it is now widely accepted that certain fundamental norms, such as the prohibition on crimes against humanity and torture, are customary international norms that are binding on all states. Customary international law thus has a certain appeal for human rights activists, who can refer to customary norms in their attempts to compel states that have refused to enter into human rights treaty obligations to nevertheless respect fundamental human rights principles. However, several scholars have warned that there is a tendency for activists to be too enthusiastic in their appeals to customary international law, with some commentators insisting that new human rights are emerging despite insufficient evidence. Alston has expressed ‘serious concern’ about the ‘haphazard, almost anarchic manner’ in which commentators have purported to expand human rights.9 He notes that some rights ‘seem to have been literally conjured up, in the dictionary sense of being “brought into existence as if by magic”’.10 Similarly, Meron warns that the purported discovery of customary human rights norms in the absence of convincing evidence threatens to undermine not only state sovereignty, but also the credibility of the international human rights project.11 Yet in some cases, determining whether a norm exists or has merely been ‘conjured up’ is difficult because customary international norms emerge over time. Legal positivist scholars make an important distinction between lex ferenda – what may be the ideal legal position, which is currently in the process of evolving into a binding norm – and lex lata – the law as it currently exists and binds states, imperfect as it may be.12 A norm can only be said to have crystalised into lex lata if the two part test in section 38 of the Statute of the International Court of Justice is satisfied and there is evidence of both a widespread and consistent general practice, and evidence that this general practice is accepted by states as law.13 This test must be satisfied in order for it to be convincingly argued that there is a ‘right to truth’ in customary international law. A. Evidence That There Is A Right To Truth The strongest evidence of the purported ‘right to truth’ is the recent proliferation of human rights instruments that refer to the importance of truth, and may potentially constitute evidence of states’ belief that such a

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right exists. One of the earliest instruments evincing this is the United Nations Commission on Human Rights (UNCHR) Resolution 2005/66, which stresses ‘the imperative for society as a whole to recognize the right of victims of gross violations of human rights … to know the truth regarding such violations’.14 In the same year, the UNCHR published the Updated Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity, which notes that ‘[e]very people has the inalienable right to know the truth about past events concerning the perpetration of heinous crimes’.15 Then in December 2005, the General Assembly adopted a Resolution on Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law.16 Principle 22 stipulates that victims of gross violations of international human rights law should be provided with full and effective reparation, which includes ‘[v]erification of the facts and full and public disclosure of the truth to the extent that such disclosure does not cause further harm’.17 In December 2006, the General Assembly passed the first implicit reference to the right to truth in human rights treaty law, with the adoption of the International Convention for the Protection of All Persons from Enforced Disappearance.18 Importantly, article 24 establishes that ‘[e]ach victim has the right to know the truth regarding the circumstances of the enforced disappearance, the progress and results of the investigation and the fate of the disappeared person’.19 Most recently, in 2008, the Human Rights Council adopted Resolution 9/11 on the ‘Right to the Truth’,20 which encourages states to take steps to help victims know the truth about gross violations of human rights, including by establishing truth and reconciliation commissions.21 There is thus ample evidence to show that many states have expressed support for the concept of the ‘right to truth’. However, the customary international law test also requires consistent state practice in line with this belief. Arguably, the creation of truth commissions could be considered evidence of such state practice. Certainly, the creation of truth commissions has been widespread. Some 54 truth commissions have been established since 1979; as of 2009 there have been 18 in Africa, 17 in the Americas, ten in Asia, five in Europe, and four in the Middle East and North Africa.22 However, while the practice of establishing truth commissions is widespread, in most cases there is no evidence that ‘the establishment of these mechanisms flows from a sense of a legal obligation to provide the truth’.23 The right to truth was only explicitly cited in the enabling legislation of the Peruvian and Guatemalan truth commissions, whereas there is no evidence that other truth commissions were created out of a sense of legal obligation to provide ‘truth’.24 Indeed, there is ample evidence that commissions are frequently established for reasons of domestic political expediency rather than out of any genuine desire to investigate the past.25 These studies make it difficult to argue that states establish truth commissions because they believe

A Right to Truth in Customary International Law? Nikki Edwards

‘To argue that the law already prescribes a “right to truth”, despite inadequate evidence, threatens to undermine the credibility of human rights scholarship.’

that the provision of ‘truth’ is necessary to comply with international norms. B. The Status of The ‘Right To Truth’ Reflecting the as yet limited nature of this evidence for the ‘right to truth,’ the two commentators who have conducted the most extensive analyses of these developments concluded that the right is an emerging norm, which is increasingly gaining importance but is not yet binding on states. In 2006 President of the International Center for Transitional Justice, Juan Méndez, argued that the ‘right to truth is an emerging principle of international human rights law’.26 Similarly, in the same year, Naqvi argued that the right to the truth is emerging, and currently ‘stands somewhere on the threshold of a legal norm and a narrative device’.27 Naqvi contends that the right to truth cannot yet be considered to have hardened into a binding norm given the widespread instances of state practice which are inconsistent with such a right. These include the tendency for governments to claim that the protection of national security necessitates limiting publically accessible information about serious human rights abuses, and the practices of a small number of states like Algeria which have implemented amnesties that involve criminalising public discussion about historical conflict.28 In contrast, other commentators go further and argue that the right to truth has already hardened into a binding norm. Almost twenty years ago, Leandro Despouy, then Special Rapporteur for States of Emergency, argued that the ‘right to truth’ had crystalised into a rule of customary law.29 He theorised that the right to truth originally had a treaty law basis, since it is fundamental to the rights of separated children to obtain information about absent family members, a provision that is enshrined in the Convention on the Rights of the Child.30 He also recounted the Human Rights Committee’s finding in Rodriguez v Uruguay, that the right to a remedy

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in article 2 of the International Covenant on Civil and Political Rights prohibits any amnesty that would purport to relieve a state of its obligation to investigate human rights violations.31 In light of these developments, and noting also the existence of concurring jurisprudence in the Inter-American human rights system, Despouy concluded that there is a customary right to truth, without making any reference to the question of state practice.32 Other more recent scholarship is similarly hasty in concluding that there is already a right to truth in customary international law. Consider for example the 2013 book, Seeking Human Rights Justice in Latin America, in which Jeffery Davis purports to document the crystalisation of a lex lata right to truth in a single page.33 Davis notes that Méndez charted the emergence of the customary right to truth in 1997, and observes that Naqvi similarly noted the development of a right.34 Davis goes on to imply that, given the passing of time, this emerging right must now have hardened into a norm.35 To support this suggestion, he notes that since 2006 forty nations have ratified the International Convention for the Protection of All Persons from Enforced Disappearance, and that there has been more concurrent jurisprudence in various regional human rights systems.36 Yet his argument fails to directly address the state practice and opinio juris test, let alone satisfy it. Nor is this kind of undeveloped argument — where a right to truth is asserted by a transitional justice scholar, despite a lack of convincing evidence — unique. Several other commentators assert that there is now a customary right to truth without providing any reasoning or evidence at all. Escudero does not discuss the possible sources of a right to truth, but merely asserts that ‘[u] nder international law, the judiciary has the obligation to satisfy the right to truth that belongs to victims of alleged or established human rights violations’.37 Similarly, Landel contends that the ‘right to truth is a fundamental right of the individual’38 which, he argues, thereby gives rise to a binding obligation for the United States in re-

gard to torture.39 Yet this kind of scholarship is troubling because no matter the volume of commentary, if these scholarly claims about the existence of a right are not based on evidence of consistent state practice, accepted as law, then they are incapable of proving the existence of a customary norm. II. CONCLUSION This article has considered whether the lack of formal inquiry into the ‘truth’ about the 1960s Indonesian killings is a violation of Indonesia’s obligations under customary international law. It considered the sources that are said to give rise to a ‘right to truth’, arguing that although there has been progressive development of the concept in international law, its proponents have not convincingly demonstrated the widespread and consistent state practice or opinio juris necessary to prove that the right has already hardened into a binding norm. This means that although a wide variety of commentators have rightly condemned Indonesia’s failure to investigate the truth about the killings,40 this lack of inquiry is not a violation of customary legal obligations. As such, this article has highlighted two problems: a gap in the reach of international human rights law, and the tendency for some human rights commentators, who believe that something ought to be the law, to argue that this is the case even when there is little convincing evidence. In regard to the first of these concerns, this article has demonstrated that international law permits silence in the case of the 1960s Indonesian killings. While this is clearly a gap in the human rights protection offered by international law, this lacuna is primarily limited to historic atrocities committed in states that have not signed relevant treaties. As more states ratify treaties, the cases in which international law will tolerate a state’s failure to inquire will decrease. Moreover, as argued above, the right to truth can convincingly be said to be emerging in customary law and may crystalise into a hardened norm with time. As such, although it is problematic that international law currently permits silence in regard to the 1960s Indonesian killings, the law is already evolving – through both treaty law and potentially emerging customary norms – towards requiring greater accountability. The second and more worrying problem with which this article has grappled with is the tendency for proponents of transitional justice to argue that there is a legal obligation to provide truth despite a lack of convincing evidence to support their claim. While there is clearly a moral imperative that the public know the truth about past atrocities, to argue that the law already prescribes a ‘right to truth’, despite inadequate evidence, threatens to undermine the credibility of human rights scholarship. As Schwarzenberger warns, ‘[n]othing has brought the doctrine of international law into greater disrepute than the proneness of individual representatives to present desiderata de lege ferenda in the guise of propositions

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de lege lata’.41 This article has demonstrated that those scholars who claim there is already a customary ‘right to truth’ are doing precisely this – conjuring up mythical creatures that only believers can see. REFERENCES 1. Robert Cribb, ‘Genocide in Indonesia, 1965–1966’ (2001) 3 Journal of Genocide Research 219, 219; Cf Matthew Draper, ‘Justice as a Building Block of Democracy in Transitional Societies: The Case of Indonesia’ (2001) 40 Columbia Journal of Transnational Law 391, 412. 2. Mark Leon Goldberg, Human Rights Wonks Discuss “The Act of Killing” (1 March 2014) UN Dispatch, <http:// www.undispatch.com/human-rights-wonks-discussthe-act-of-killing>; Komnas HAM 2012 Pernyataan Komisi Nasional Hak Asasi Manusia (Komnas HAM) Tentang Hasil Penyedikan Pelanggaran Ham Yang Berat Peristiwa 1965–66, Jakarta: Komnas HAM; Suzannah Linton, ‘Accounting for Atrocities in Indonesia’ (2006) 10 Singapore Year Book of International Law 199, 227. 3. Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002) art 7(1). 4. Cribb, above n 1, 236. 5. Ruti G Teitel, ‘Transitional Justice Genealogy’ (2003) 16 Harvard Human Rights Journal 69, 78. 6.Ibid. 7. Michal Ben-Josef Hirsch, Megan MacKenzie and Mohamed Sesay, ‘Measuring the Impacts of Truth and Reconciliation Commissions: Placing the Global “Success” of TRCs in Local Perspective’ (2012) 47 Cooperation and Conflict386, 386. 8. Terence S Coonan, ‘Rescuing History: Legal and Theological Reflections on the Task of Making Former Torturers Accountable’ (1996) 20 Fordham International Law Journal 512, 547; Jeffrey Davis, Seeking Human Rights Justice in Latin America: Truth, Extra-Territorial Courts, and the Process of Justice (Cambridge University Press, 2014), 106–7; Leandro Despouy, The Administration of Justice and the Human Rights of Detainees: Question of Human Rights and States of Emergency, ESC Res 1985/37, UN ESCOR, 47th sess, Agenda Item 10(a), E/CN.4/Sub.2/1995/20,; Rafael Escudero, ‘Road to Impunity: The Absence of Transitional Justice Programs in Spain’(2014) 36 Human Rights Quarterly 123, 125; Morgane Landel, ‘Proposals for a Truth Commission and Reparations Program for Victims of Torture by US Forces Since 9/11’ (2010) 16 ILSA Journal of International and Comparative Law 115, 120; Rosemary Nagy, ‘Transitional Justice as Global Project: Critical Reflections’ (2008) 29 Third World Quarterly 275, 275. 9. Philip Alston, ‘Conjuring Up New Human Rights: A Proposal for Quality Control’ (1984) 78 American Journal of International Law 607, 607. 10. Ibid. 11. Theodor Meron, Human Rights and Humanitarian Norms as Customary Law (Clarendon Press, 1989), 81; see also Georg Schwarzenberger, ‘The Province of the Doctrine

My Story

A Right to Truth in Customary International Law? Nikki Edwards

of International Law’ (1956) 9 Current Legal Problems 235, 244. 12. Hugh Thirlway, ‘Reflections on Lex Ferenda’ (2001) 32 Netherlands Yearbook of International Law 3, 4; see also Prosper Weil, ‘Towards Relative Normativity in International Law?’ (1983) 77 The American Journal of International Law 413, 421. 13. James Crawford, Brownlie’s Principles of Public International Law (Oxford University Press, 8th ed, 2012), 23. 14. United Nations Commission on Human Rights, Human Rights Resolution 2005/66: Right to the Truth, CHR Res 66, UN ESCOR, 61st sess, 59th mtg, Agenda Item 17, E/ CN.4/RES/2005/66 (20 April 2005). 15. United Nations Commission on Human Rights, Impunity: Report of the Independent Expert Diane Orentlicher Updated Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity, UN ESCOR, 61st sess, E/CN.4/2005/102/Add.1 (8 February 2005). 16. United Nations General Assembly, Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, UN GAOR, 60th sess, Agenda Item 71(a), GA Res 60/147 (21 March 2006). 17. Ibid 7. 18. International Convention for the Protection of All Persons from Enforced Disappearance, opened for signature 20 December 2006, 2716 UNTS Doc.A/61/448 (entered into force 23 December 2010). 19. Ibid art 24. 20. Elchin Amirbayov, Organizational and Procedural Matters: Draft Report of the Council, HRC Res 9/11, UN GAOR, 9th sess, 22nd mtg, Agenda Item 1, A/HRC/9/L.11 (9 October 2008). 21. Ibid 45. 22. Kathryn Sikkink and Hun Joon Kim, ‘The Justice Cascade: The Origins and Effectiveness of Prosecutions of Human Rights Violations’ (2013) 9 Annual Review of Law and Social Science 269, 274. 23. Yasmin Naqvi, ‘The Right to the Truth in International Law: Fact or Fiction?’ (2006) 88 International Review of the Red Cross 245, 261. 24. Ibid. 25. See, eg, Claire Moon, Narrating Political Reconciliation: South Africa’s Truth and Reconciliation Commission (Lexington Books, 2008); Claire Moon, ‘Healing Past Violence: Traumatic Assumptions and Therapeutic Interventions in War and Reconciliation’ (2009) 8 Journal of Human Rights 71; Richard Wilson, The Politics of Truth and Reconciliation in South Africa: Legitimizing the Postapartheid State (Cambridge University Press, 2001). 26. Juan Méndez, ‘The Human Right to Truth: Lessons

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Learned from Latin American Experiences with Truth Telling’ in Tristan Anne Borer (ed), Telling the Truths: Truth Telling and Peace Building in Post-Conflict Societies (University of Notre Dame Press, 2006) 116; see also Juan Méndez, ‘Accountability for Past Abuses’ (1997) 19 Human Rights Quarterly 255, 261; Juan Méndez, ‘An Emerging Right to Truth: Latin-American Contributions’ in Suzanne Karstedt (ed), Legal Institutions and Collective Memories (Hart Publishing, 2009). 27. Naqvi, above n 23, 273. 28. Ibid 265–6. 29. Leandro Despouy, The Administration of Justice and the Human Rights of Detainees: Question of Human Rights and States of Emergency, ESC Res 1985/37, UN ESCOR, 47th sess, Agenda Item 10(a), E/CN.4/ Sub.2/1995/20 (26 June 1995) 54 [1]–[2]. 30. Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990), art 9(4). 31. Human Rights Committee, Views: Communication No 322/1988, 51st sess, UN Doc CCPR/C/51/D/322/1988 (9 August 1994) 54 [2] (‘Rodriguez v Uruguay’) citing the International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976), art 2. 32. Despouy, above n 29, 54 [2]. 33. Davis, above n 8, 106. 34. Ibid. 35. Ibid 107. 36. Ibid 107, citing International Convention for the Protection of All Persons from Enforced Disappearance, opened for signature 20 December 2006, 2716 UNTS 3 (entered into force 23 December 2010). 37. Rafael Escudero, ‘Road to Impunity: The Absence of Transitional Justice Programs in Spain’ (2014) 36 Human Rights Quarterly 123, 125. 38. Landel, above n 8, 120. 39. Ibid 120–2. 40. The International Centre for Transitional Justice laments the ‘continued reign of impunity, denial of victim’s rights, and preservation of structures that have enabled… mass atrocities to be repeatedly committed’: ICTJ and Kontras, ‘Derailed: Transitional Justice in Indonesia Since the Fall of Suharto’ (Report, ICTJ and Kontras, March 2011) 84. Similarly, The Economist warns that ‘Indonesia’s own failure even now fully to confront events still shrouded in mystery, ignorance and fear’ casts the country ‘in a bad light at a time when it hopes to be cheered as a model emerging democracy’: The Economist, ‘The Year of Killing with Impunity’, The Economist (online), 1 March 2014 < http://www.economist.com/news/asia/21597928massacres-nearly-half-century-ago-still-haunt-indonesiayear-killing-impunity>. 41. Schwarzenberger, above n 11, 244.

Aasiya Amin

Issue 9, 2015

‘That night, my house was raided by men who were armed and had their faces covered. My grandmother and brothers were powerless and couldn’t prevent me from being taken. My grandmother was screaming and crying as they took me away. I was blindfolded and taken to a car…’

My Story Aasiya Amin

Aasiya Amin is not her real name. Aasiya is an asylum seeker who is currently in detention at Villawood Detention Centre. She has shared her story with us. Details of Aasiya’s story and personal history have been changed to protect her privacy and identity.

My name is Aasiya Amin, I am 18 years old, and I am an asylum seeker from Somalia. This is my story. Before I fled Somalia, there had been a lot of fighting between the Ethiopian troops and the militia. It was about six years ago when things got really bad for me and my family. In my city, there was a fight almost every day. It became too dangerous for us to stay, especially since we were so young — I was only 12 at the time. I was living with my aunt and I travelled with her to Ethiopia to escape the war. When we arrived, we were placed in a UNHCR refugee camp. Life in the refugee camp was very difficult. We did not have any proper accommodation and it was very difficult to get enough food. Months later, we discovered that my father had been killed in the war in Somalia. We saved enough money to travel back to Somalia and we went back. My aunt didn’t tell me why we went back, but I believe it was because she didn’t want to take responsibility for me anymore. She returned me to my grandmother, who was at the time living with my grandfather in Somalia. When I returned, it was still very dangerous for me. There was a lot of fighting going on between the militia, the Somalian government and African union troops. We stayed for a while, but it became too dangerous and we had to flee to a rural area, to escape the violence. It was very difficult to survive in this area: there was no electricity, no safe drinking water, and barely any food. On many occasions, I would not have any food to eat for days. My family built a stick house to live in. When it rained, our house would flood. We had no choice but to stay. Still, after a while, the militia took control of the area we were living in. One day my grandmother was approached at home by men from the militia. They told her that they needed to recruit young men and women to work with them. They needed the young men to fight, and the young women to cook, clean and help look after the injured militia fighters. My grandmother refused to give any of us to them. She told them that my brothers were too young, and that they could not take her only granddaughter. They told my grandmother that she did

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not have a choice; it was not an offer. They told her that if we didn’t volunteer ourselves, we would be taken by force. I was at home when this conversation took place. That night, my house was raided by men who were armed and had their faces covered. My grandmother and brothers were powerless and couldn’t prevent me from being taken. My grandmother was screaming and crying as they took me away. I was blindfolded and taken to a car, but I could hear there were other girls in the car with me. The next morning when my blindfold was removed, I saw armed men everywhere. I could see that we were in a camp site, and I knew that I had been taken by the militia. I was around 14 years old at this time. All of the girls who were taken were given a briefing by the militia men. We were told that we would be given training and that our job would be to help the militia by looking after the wounded soldiers who had been injured in the fight against the government. We were also told that we would not be able to communicate with our families again – we had no phones, no internet, we were cut off from the outside world. We were told we could not leave the camp site and that we would be guarded. I was kept in the camp hospital and made to look after the militia fighters who had been injured in the fighting against the government. Many of the injuries I saw were horrific, and many of the patients were aggressive and disoriented. If patients died under my care, I would be punished. The punishment would often be to be taken outside in the middle of the night, doused in cold water and beaten with sticks. Other young boys who had been forced to join the militia, were made to do this to me, even though they seemed unhappy to do this. This happened around five or six times. After we had been detained in the hospital for around six months, there were some very big battles between the militia and the African troops. Militia fighters came

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with orders that everyone had to fight, including injured patients and guards. A few of us stayed back to look after the patients who had stayed. Whilst majority of the guards were out fighting, a small group of women and myself escaped from the camp in the middle of the night. We went to the government-controlled area, hoping that they would provide us with some protection. When we approached the Somali government troops, they were screaming at us and shooting into the air. They told us that we weren’t allowed to approach them in the dark, because they couldn’t see who we were. We tried to tell them who we were and what had happened to us, but we were shot at again. We were made to lie on the ground in the dark, and we were told that we weren’t allowed to move. We remained like this all night, and when anyone moved even slightly, the government troops shot at us. When the sun came up, we were allowed to stand. But because we wearing clothes that had been issued by the militia, they thought we were part of them, and detained us in army detention. We kept trying to explain what happened to us, but they wouldn’t listen. When their supervisor arrived, he spoke to the other soldiers in front of us. He told them that we were to be beaten, to see if any of us would reveal information about the militia. The soldiers then beat us all severely. We were beaten with the butts of their guns, hit and kicked. Some of the pregnant women who were with me started to bleed heavily because they were being hit and kicked in the stomach. I was very bruised and I was in a lot of pain. We were detained by the government troops until later that morning, and weren’t given any food or water during this time. In the morning I I was taken to hospital. I couldn’t speak, but I was recognised by a distant relative, Hassan. Hassan approached the soldiers who were guarding me

My Story Aasiya Amin

‘After this my grandmother realised she could no longer offer me protection, and that it was too dangerous for the rest of my family for me to stay with them. I knew that I could not live alone in Somalia, so we decided that I should flee the country.’

and asked them what was happening. He vouched for me and explained that I had been kidnapped by the militia. The soldiers told Hassan to bring my grandmother to the hospital to speak with them. My grandmother came to the hospital, and was crying when I saw her. She told the soldiers what had happened and how my family had been looking for me. The soldiers then allowed me to go home with my grandmother. After I had been at home for a couple of days, my grandmother received a message from an unknown number, saying ‘we know that your granddaughter has escaped, if you don’t send her back to us, you will both be killed.’ After this, we went into hiding. We stayed in our house and did not leave, not even to buy groceries. I remained in hiding like this for around a year. After this time, however, my family members told me that the government had been reclaiming some land from the militia, and that it would be safe for me to go out again, because many militia members had been captured or killed. So I decided to leave home again to continue my education and managed to re-enrol in school. I attended school for a few months, but then one afternoon as my brother and I were driving home from school, we came across a man standing in the middle of the road. Out of nowhere, the man started shooting at the car. My brother was shot in the face, there was blood everywhere. I don’t know whether it was me or him who was bleeding. I don’t remember what happened next, but when I awoke I was in hospital. I later learned that my brother died from his injuries.

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After this my grandmother realised she could no longer offer me protection, and that it was too dangerous for the rest of my family for me to stay with them. I knew that I could not live alone in Somalia, so we decided that I should flee the country. We started to prepare for my departure. My uncle sold many pieces of jewellery that had been in the family so that they could afford to send me out of Somalia. My uncle also paid a friend to keep me in hiding for three months, and I did not leave the house except to get my passport. I took a number of flights and finally ended up in Indonesia. I then travelled by boat to Christmas Island. While I was on the boat, I thought I was going to die. I felt sick and passed out. When I awoke I was on an Australian ship. I lost my passport on the boat trip over, so when I arrived at Christmas Island, I could not prove my age. I was 15 at the time, but my age was recorded as being 18. I was on Christmas Island for six weeks before being transferred to Nauru, where I stayed for two years. Conditions were so bad in Nauru that I tried to escape. I attempted suicide by using a razor blade, and tried to hang myself with my bedding. I was transferred onshore in early 2015 because of my medical problems. Conditions were so bad in Nauru, that I would rather my dead body be taken to Nauru, as I cannot think of going back to that same place again. I am not sure what my future holds, but I hope to get refugee status, and be released from detention. Artwork by Alwy Fadhel

Issue 9, 2015

‘Counter Friction to Stop the Machine’: Civil Disobedience in Maules Creek

Michaela Vaughan

Michaela is a fourth year Arts/Law student. She likes cycling to uni, avocado on sourdough and biting Australian political satire.

When Whitehaven Coal’s Maules Creek mine was first proposed, it was to be the biggest open cut coal mine in Australia. Situated in the Leard State Forest in the Liverpool Plains, it immediately attracted opposition from the local farming community who feared it would compromise their livelihood. For nearly six years, farmers tried without success to prevent the proposal using the appropriate legal avenues, however Whitehaven’s development progressed on.1 As a result, tactics changed. On 5 August 2012, activists Murray Dreschler and Jonothan Moylan started the Maules Creek Mine Blockade.2 The Blockade soon swelled in number and has hosted, over the course of three years, an array of farmers, environmentalists, and ordinary Australians. Over a weekend in April 2014, I visited the Blockade in northern New South Wales – an eight-hour drive north of Sydney. I had never attended a protest camp before, nor am I someone who typically seeks out frontline activism. However, something about this campaign struck a chord and I was compelled to learn more. When I arrived, the Blockade — ‘Camp Wando’ as it was affectionately called — was located on the property of local farmer Cliff Wallace who had been living in the area for decades. Over the weekend, I met many impassioned individuals from all walks of life who were drawn to the cause for a variety of reasons. Whitehaven Coal claims the development will generate economic benefits to the community as well as the State. They project that the mine will bring 400–500 new jobs to the area and the State Government will receive $6.5 billion in royalties and corporate tax in the first two decades of the project.3 The Maules Creek mine is expected to produce 10.5 million tons of saleable coal annually, which includes about 60 per cent semi-soft coking coal and 40 per cent high-quality thermal coal.4 The movement against the Maules Creek development was akin to other great environmental campaigns seen in Jabiluka in the Northern Territory and the Franklin Dam in Tasmania in the 1970s and 80s. In a continuation of this tradition, hundreds of people were arrested for physically trying to stop a coal mine

With thanks to Leon Terrill for his assistance.

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Issue 9, 2015

‘Over a weekend in April 2014, I visited the Blockade in northern New South Wales – an eight hour drive north of Sydney. I had never attended a protest camp before, nor am I someone who typically seeks out frontline activism. However, something about this campaignstruck a chord and I was compelled to learn more.’

‘Counter Friction to Stop the Machine’: Civil Disobedience in Maules Creek Michaela Vaughan

from going ahead.5 Environmental activist and former Greenpeace employee Jason Lyddieth attributed this opposition to the variety of issues that galvanised the wider Australian community together. Unfortunately for those involved in the cause, the Blockade ultimately failed to stop construction and the mine is now operational. The farmlands in Maules Creek (and the Liverpool Plains area more broadly) is home to some of the most fertile, food producing regions in the country. Once the construction of the mine is complete, 38 of the Gomeroi People’s sacred sites will be destroyed.6 This includes Lawlers Well, a site vital to the Gomeroi People’s traditional heritage and continuing cultural practices. The new coal mine will take three billion litres of water annually from the local river and significantly lower the water table, sometimes up to six metres.7 The project will also emit 30 million tons of CO2 per year,8 amid calls for 90 per cent of known coal reserves to remain in the ground to combat global warming.9 The Leard State Forest forms the largest remaining fragment of the critically endangered White Box-Gum Grassy Woodland, of which only 0.1 per cent of its original range remains.10 The forest is home to over 30 threatened species, including the Regent Honeyeater and the Squirrel Glider.11 For the new mine site to go ahead, Whitehaven must indefinitely set aside an ‘equivalent’ parcel of land, which is similar to the forest which is being destroyed as per the conditions 9, 10, 11 and 12 which were subject to the approval granted by the Environmental Minister under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) ss 130(1), 133.12 This approval process has been condemned by opponents, arguing that insufficient community consultations were undertaken and inadequate offsets provided. However, an independent review commissioned by Whitehaven Coal and tabled in the Senate found that though Whitehaven Coal needed to purchase an additional four offset properties, they were otherwise compliant with the Commonwealth Approval Conditions.13 For years, Whitehaven Coal and the State and Federal Governments have been confronted with an incredible display of opposition from a wide cross section of the Australian community. Peaceful rallies have taken place outside NSW Parliament House and the Department of Planning and Environment calling on the appropriate bodies to shut down the development. After failing to halt the progress of the development, protestors have increasingly turned to non-violent direct action as a last resort. Jonothan Moylan made headlines in 2013 after he distributed a hoax Australia and New Zealand Banking Group (‘ANZ’) press release causing Whitehaven Coal’s share price to momentarily drop $314 million in market value.14 Moylan was charged and pleaded guilty to

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disseminating false or misleading information affecting market participation under the Corporations Act 2001 (Cth).15 He received a suspended 20 month prison sentence.16 His case was unusual in that he sought no financial advantage in manipulating the market, but rather to draw attention to the ethics behind banking investment. Stephen Galilee, CEO of the NSW Mineral Council, commented that Moylan participated in repugnant behaviour and was not penalised enough: ‘We have twenty thousand mining families across NSW who rely on the coal industry for their livelihood. He is campaigning against the jobs of those people and their families. That’s an act of economic vandalism in my book.’17 CEO of Whitehaven Coal, Paul Flynn, was unmoved by the arguments made by those opposed to the mine. ‘Protestors should respect the fact that this is an approved project that has passed the highest contemporary environmental approvals standards.’18 He instead focussed on seeing out the development. The relationship between civil disobedience and participating in good faith in a democracy is a complex one. Those who break the law for their own ends take themselves out of the democratic process and assert their own. However, in many cases, such as Maules Creek, it is only after attempts for change within the law have been thwarted that civil disobedience arises. Democracies may behave in ways that stray from democratic ideals or enact laws that are unjust. Therefore, in theory, a person may break unjust laws and still maintain their commitment to democracy more so than an individual who mindlessly obeys every piece of legislation passed.19 Academic Menachem Marc Kellner has argued, ‘[o]ne very effective way of thwarting [anti-democratic tendencies], and of promoting democracy, is to refuse to go along with them, even on those occasions when they seem to bear the imprimatur of democracy itself.’20 Democracy is to be interpreted then as not merely a procedure but as a set of values to strive for. Poet and philosopher, Henry David Thoreau, commented in 1849 on the role of civil disobedience as a check on power: ‘Let your life be a counter friction to stop the machine. What I have to do is to see, at any rate, that I do not lend myself to the wrong which I condemn.’21 However, difficulties arise when considering whose ethics are to be prioritised, and who decides which laws and decisions made are unjust. Protestors acting on their conscience, as opposed to democratically-elected politicians, are accountable only to themselves rather than any kind of majority vote. The Blockade formed at Maules Creek asserted their views from a particular moral standpoint which was in conflict with the economic dividends propounded by Whitehaven Coal and the State. Despite the earnestness of the protestors’ arguments, there is an uneasy tension as to when ethical

arguments should trump decisions made by empowered authorities. Nevertheless, successes, such as the Franklin Dam, demonstrate that there is an important place for protests to protect the environment where decisions made do not reflect the will of the populous. Hundreds of individuals have entered the Whitehaven mine site and have locked on to machinery or blocked access roads to halt construction and production. With courage, protestors put their bodies on the line and risked a criminal conviction which may have other knock-on effects on their livelihoods. Those arrested at the mine site have been charged with unlawful entry into enclosed land under s 4 of the Inclosed Lands Protection Act 1901 (NSW) and/or interfering with a mine under s 201 of the Crimes Act 1900 (NSW). The project has seen over 300 arrests including a 92 year old war veteran, doctors, religious leaders and even former Wallabies captain, David Pocock.22 Pocock stated he ‘believe[s] it’s time for direct action on climate change, standing together as ordinary Australians to take control of our shared future.’23 An acceptance of penalties incurred as a result of undertaking illegal acts was integral to the form of civil disobedience exhibited at Maules Creek. According to philosophers Peter Hare and Edward Madden, civil disobedients who show a willingness for punishment hope to ‘stir the conscience of public and government.’24 At Pocock’s arrest he commented that raising awareness was an objective of his in supporting the local farming community: ‘It is part of being a human being and taking on the challenges we face as a society. It is about giving back and getting the conversation going.’25 Although Pocock was high-profile and introduced different sections of the population to the issues faced in Maules Creek, his efforts ultimately did not achieve the greater

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goal of stopping the Whitehaven development. Pocock and his wife Emma were given no convictions for their conduct at Maules Creek, however as recently as 1 April 2015 dozens of protesters were given thousands of dollars’ worth of fines.26 Magistrate Lisa Stapleton found protestors’ illegal behaviour to be dangerous and at times life-threatening.27 The Baird Government announced in November 2014 that they would move towards imposing even harsher penalties for protestors illegally entering mine sites.28 Mr Baird said it was ‘galling’ ‘that mining companies were responsible for the safety of protestors who were trespassing illegally on private property’.29 The Lock the Gate Alliance — who were heavily involved in the Maules Creek protests — were outraged by the announcement, believing the penalties were high enough already. They cited the $1500 fine imposed on Santos (a coal seam gas company) for contaminating an aquifer with uranium, as a point of difference.30 There is an inevitable conundrum for governments who want to crack down on unsafe behaviour but also want to avoid being seen as yielding to vested interests. It is dangerous for unauthorised people to be found on mine sites, however where governments are too harsh on protestors they may arouse suspicion or sympathy from those outside the debate. It is a highly politicised position for decision-makers which is likely to provoke criticism from the parties involved either way. As of July 2015, the Whitehaven coal mine is mostly complete and has begun extracting coal. The Blockade has more or less disbanded. However, opponents are still optimistic that approval for the mine can be discredited through an Independent Commission Against Corruption or Senate Inquiry, or Royal Commission.

‘Counter Friction to Stop the Machine’: Civil Disobedience in Maules Creek Michaela Vaughan

The Gomeroi People have petitioned the Environment Minister Greg Hunt to protect their remaining sacred sites with emergency cultural heritage legislation.31 Despite the failure to stop Whitehaven’s project from going ahead, Lyddieth believes that the activism witnessed at Maules Creek is a historic achievement in Australia and is a part of something much bigger. The Maules Creek Blockade brought together a range of ordinary Australians, not known for their activism, to stand up against mining interests in the Leard State Forest. Those who campaigned, donated to the cause, and those who were given criminal convictions did not do so in vain: what occurred at Maules Creek is part of a resurgence of mass environmental activism in Australia. Lyddieth concluded: ‘the non-violent actions used at Maules Creek forms part of a global trend of peaceful resistance making the world a better place. Coal mining companies in Australia now have to consider the legitimate and continued backlash of communities who do not want coal mining expansion in a way that was inconceivable five years ago’.32 REFERENCES 1. Jason Lyddieth (Telephone Interview, 8 July 2015). 2. Jason Lyddieth, ‘Activists Mark Two Years of Taking FLaC in the Leard’, New Matilda (online), 5 August 2014 <https://newmatilda.com/2014/08/05/activists-marktwo-years-taking-flac-leard>. 3. Vicky Validakis, ‘Call to Arms: Maules Creek Mine Activists Ask for Help on the Ground’, Mining Australia (online), 5 December 2013 <http://www.miningaustralia. com.au/news/call-to-arms-maules-creek-mine-activistask-for-he>. 4. Ibid. 5. Lyddieth, above n 2. 6. Protect Sacred Sites! Save Lawlers Well! (2015) Front Line Action on Coal <http://frontlineaction.org/savelawlers-well/>. 7. Farmers, Water, Food (2014) Maules Creek Blockade <http://www.maulesblockade.com.au>. 8. Climate (2014) Maules Creek Blockade <http://www. maulesblockade.com.au>. 9. Martin Rice and Will Steffen, ‘Unburnable Carbon: Why We Need to Leave Fossil Fuels in the Ground’, The Conversation (online), 23 April 2015 <https://theconversation.com/unburnable-carbon-whywe-need-to-leave-fossil-fuels-in-the-ground-40467>. 10. ABC Radio National, ‘The trouble with offsets’, Background Briefing, 23 April 2014 (Phil Spark) <http:// www.abc.net.au/radionational/programs/backgroundbriefing/2014-03-16/5312944>. 11. Whitehaven Coal Ltd, ‘Whitehaven Coal Maules Creek Biodiversity Management Plan’ (Biodiversity Management Plan No 2, Whitehaven Coal) 38 <http://www. whitehavencoal.com.au/environment/docs/biodiversity-management-plan.pdf#sthash.rKJGOvr6.dpuf>. 12. Tony Burke, Department of Sustainability, Envi-

Illustration by Angelina Yurlova

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ronment, Water, Population and Communities, ‘Approval – Maules Creek Mine Project (EPBC 2010/5566)’, 3–4, <http://www.environment.gov.au/epbc/notices/assessments/2010/5566/2010-5566-approval-decision.pdf >. 13. Greenloaning Biostudies Pty Ltd, ‘Independent Peer Review of the Maules Creek Mine Project –EPBC 2010/5566’ (December 2013) <https://www.whitehavencoal.com.au/environment/docs/16102618-independentpeer-review-of-offsets-for-the-maules-creek-mine-project.pdf>. 14. Jamelle Wells ‘ANZ Hoaxer Avoids Jail over Fake Press Release’, ABC News (online), 25 July 2014 <http:// www.abc.net.au/news/2014-07-25/jonathan-moylanjudgement-for-fake-anz-press-release/5624542>. 15. Joel Tozer, ‘Jonathon Moylan and the 300 Million Dollar Hoax’, SBS News (online), 4 March 2015 <http://www. sbs.com.au/news/thefeed/story/jonathan-moylan-and300-million-dollar-hoax>. 16. Ibid. 17. Ibid. 18. Vicky Validakis, ‘Illegal Protests Continue at Maules Creek Mine’, Mining Australia (online), 7 July 2014 <http:// www.miningaustralia.com.au/news/illegal-protests-continue-at-maules-creek-mine>. 19. Menachem Marc Kellner, ‘Democracy and Civil Disobedience’ (1975) 37 The Journal of Politics 899, 906. 20. Ibid 911. 21. Henry David Thoreau,Thoreau, Philosopher of Freedom: Writings on Liberty (Vanguard Press, 1930), 13. 22. Thom Mitchell, ‘Crying Cops and Activists up Trees: The Last Ditch Effort to Save the Leard’, New Matilda (online) 19 February 2015 < https://newmatilda. com/2015/02/19/crying-cops-and-activists-trees-lastditch-effort-save-leard>. 23. ‘Former Wallabies Captain David Pocock Arrested at NSW Coal Mine Protest at Leard State Forest’, ABC News (online), 30 November 2014 <http://www.abc.net.au/ news/2014-11-30/former-wallabies-captain-pocock-arrested-at-coal-mine-protest/5929024?section=sport>. 24. Kelly A Parker, ‘Takin’ It to the Streets: Hare and Madden on Civil Disobedience’ (2010) 46(1) Transactions of the Charles S Peirce Society 35, 37. 25. ‘Former Wallabies Captain David Pocock Arrested at NSW Coal Mine Protest at Leard State Forest’, above n 23. 26. Breanna Chillingworth, ‘Protestors Cop Massive Fines’, Northern Daily Leader (online), 1 April 2015 <http:// www.northerndailyleader.com.au/story/2983125/protesters-cop-massive-fines/?src=rss>. 27. Ibid. 28. Nicole Hasham, ‘Baird Government Cracks Down on Protesters, Fast-Tracks Mining’, Sydney Morning Herald (online), 22 November 2014 <http://www.smh.com.au/ nsw/baird-government-cracks-down-on-protesters-fasttracks-mining-20141121-11r882.html>. 29. Ibid. 30. Ibid. 31. Protect Sacred Sites! Save Lawlers Well!, above n 6. 32. Jason Lyddieth (Telephone Interview, 8 July 2015).

The Implications on the Treatment of ‘Boat People’ on the Integrity of Our Rights and Freedoms

Vivien Nguyen

Vivien is a fifth year International Studies/Law student. She is the proud daughter of Vietnamese ‘boat people’, feminist and environmentalist. She really loves dumplings.

The treatment of asylum seekers has deteriorated in recent years with the implementation of policies to deter asylum seekers from coming to Australia by boat. These policies include the erosion of the freedom from arbitrary detention and a winding back of administrative procedural safeguards in the refugee status determination process. In the absence of strong statutory and constitutional safeguards for their rights, asylum seekers are at the mercy of the political will of the government. As a consequence, asylum seekers arriving by boat are rendered the ‘Other’. The illiberal treatment of asylum seekers should concern Australian citizens, as it raises the question of how far the Australian government will go in abrogating fundamental rights in the name of sovereign border security. This piece will first present the legislative regime that has eroded the fundamental rights of asylum seekers down to mere ‘personal liberty’ and ‘due process’. It will then examine how this erosion of rights has been rationalised to the Australian public by the construction of asylum seekers as the ‘Other’. It will finally explore the implications of these policies on the integrity of our rights and freedoms, Australia’s standing in international politics and the reasons why Australians should care about the treatment of asylum seekers.

Vivien would like to acknowledge Lucas Lixinski for his mentorship throughout the process.

I. CURRENT L AW AND POLICY: MANDATORY DE TENTION AND THE WINDING BACK OF PROCEDURAL RIGHTS Mandatory detention was originally envisaged as an interim measure to overcome an influx of asylum seekers, but has become a cornerstone of Australian immigration policy.1 Unlawful non-citizens are held in immigration detention until they are either removed from Australia, deported or granted a visa.2 Detention is imposed regardless of the likely outcome of their immigration status,3 forming a basis for indefinite detention.4 Asylum seekers who arrive by boat are currently detained in the offshore detention centres in Nauru and Papua New

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Issue 9, 2015

The Implications on the Treatment of ‘Boat People’ on the Integrity of Our Rights and Freedoms Vivien Nguyen

Artwork by Katherine Lau

Guinea, a policy introduced by the Gillard government in 2012. In a recent law reform, the Minister for Immigration and Border Protection (‘the Minister’) was given the power to detain boats containing asylum seekers at sea and transfer them to another country without parliamentary or judicial scrutiny.5 The United Nations Special Rapporteur on Torture has criticised this law as contrary to the United Nations Convention Against Torture, to which Australia is a party.6 He stated that such a policy amounts to arbitrary detention and allows for refugee determination at sea without access to lawyers. In one instance of the exercise of this power, the government detained Vietnamese asylum seekers at sea for one month before they were returned to Vietnam.7 According to evidence put before the Senate, it is estimated that the screening interviews regarding the asy-

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lum seekers’ refugee claims ranged anywhere between 40 minutes and two hours. Not only would the limited time span be insufficient to a complete and fair determination of the merits of their refugee claims, it would also result in refoulement before they can formally declare that they have well-founded fear of persecution and are entitled to refugee protection.8 The courts have refused to extend the implied constitutional freedom from deprivation of liberty to ‘aliens’. However, the High Court has expressed that there could exist — for citizens — an implied freedom from detention without court adjudication of criminal guilt.9 Although this implied freedom has been rendered unclear over time,10 the original argument was that detention is de facto so severe that it constitutes punishment. In this way, it has been suggested that detention could only be ordered by the judiciary for the punishment of a

criminal wrong. However, the courts have decided that immigration detention of asylum seekers is constitutionally valid because the initial decision to detain is for administrative rather than punitive reasons.11 Therefore, the court has adopted a formalistic argument, which is divorced from the well-documented substantive punitive effect of immigration detention. In contrast to the mandatory detention policy imposed against asylum seekers, the protection against arbitrary detention for citizens is fundamental to the development of democracy.12 The notion of freedom from detention but for the ‘lawful judgment of his peers or by the law of the land’ has been enshrined in the Magna Carta.13 The courts have previously used the habeas corpus writ to review the lawfulness of detention, holding jailors to account for detaining subjects in a manner ‘repugnant to the common law’.14 Australia is also a party to human rights conventions that hold freedom from arbitrary detention as a universal and inalienable human right. Therefore, the denial of fair judicial process, before the detention for asylum seekers, is contrary to rights ingrained in our legal system and to the international human rights norm. Furthermore, the Abbott government has championed the erosion of independent review of Minister’s decisions regarding refugee status determination. Access to appeals for many asylum seekers arriving by boat have been removed by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014, through the introduction of the ‘fast-tracked refugee processing regime’. This regime creates classes of asylum seekers for which merits review is limited, ostensibly to ensure the faster determination of applications.15 The ‘excluded fast track review applicant[s]’ include asylum seekers whose applications have been previously rejected, or have made a ‘manifestly unfounded claim for protection’, or have rights to enter another country.16 This class of asylum seekers have no entitlements to merits review with the Refugee Review Tribunal (RRT) or the Migration Review Tribunal (MRT). Additionally, these decisions cannot be referred to the Immigration Assessment Authority (IAA), which is a newly established division of the Administrative Appeals Tribunal (AAT).17 This is problematic as it results in regime where the criteria for removing rights to merits review is not based on the merits of the existing application for refugee status. Rather, the status as ‘excluded fast track review applicant[s]’ is based on their previous applications or their alleged right to seek protection elsewhere. There is a potential for many asylum seekers with bona fide refugee applications to be rejected arbitrarily without access to merits review. The other class of asylum seekers who are captured by the ‘fast track’ process are asylum seekers who arrive by boat after 13 August 2012, for whom adverse decisions are referred to the IAA for review.18 Review by the RRT and the MRT is barred. The review is to be heard on the papers only — preventing new evidence to be brought before the IAA.19 This is contradictory to the

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usual practice of hearing evidence de novo, a principle of administrative law that ensures the decision affecting the asylum seeker is ‘correct and preferable’.20 The gravity of such decisions has potentially severe consequences. Therefore, independent review is required as a check and balance on executive power to prevent arbitrariness. This speaks to the fundamental values in our legal system of ‘fairness, rationality, openness’ and accountability.21 II. WHAT UNIVERSAL AND FUNDAMENTAL RIGHTS FOR THE ‘OTHER’? The legitimacy of removing rights, which are otherwise afforded to citizens, has been justified for the protection of sovereign borders against unlawful non-citizens. While the exclusion of non-citizens is constitutionally valid,22 and afforded to Australia by its status as a sovereign state,23 the differential treatment of asylum seekers is in conflict with the modern international human rights regime that transcends beyond borders.24 The hostility towards asylum seekers for ‘sneaking in’ has been encouraged by the political rhetoric, making the erosion of rights of refugees uncontroversial to Australian citizens.25 It has created an adverse presumption on asylum seekers purely based on their method of arrival.26 The framing of asylum seekers by the government and the media as ‘economic migrants’27, ‘queue jumpers’ and ‘illegal maritime arrivals’28 has served to dehumanise and construct asylum seekers as a threat to Australia’s national identity.29 Therefore, their deviance is seen to be incompatible to the Australian values of what is good and genuine and marks them as the ‘Other’.30 One defines the ‘Self’, Australian values and cultures, by alienating the ‘Other’. This process of ‘Othering’ justifies the removal of fundamental rights thought to be universal. In the balance between respecting universal claims to rights and competing policies that violate these claims – the distinction between citizen and the ‘Other’ determines who is entitled to certain rights in our legal system. Hence, when liberal democratic governments use the language of human rights – it is on the assumption of a closed society to the exclusion of the ‘Other’.31 The ‘Other’ is prevented from having rights to participate in legal and democratic institutions and share in its finite resources.32 In contrast to this binary between the citizens and non-citizens, it must be said that we are living in an increasingly globalised society. Judgements are passed about human rights abuses in other countries, condemning the use of the death penalty in Indonesia, and Russia’s act of aggression in Crimea.33 The government is concerned about the threat of terrorism and have become involved in conflicts in Syria and Iraq to confront the threats that asylum seekers are trying to escape by coming to our shores. However, the Australian government has protected their sovereign right to exclude to the disregard of their international human rights obli-

The Implications on the Treatment of ‘Boat People’ on the Integrity of Our Rights and Freedoms Vivien Nguyen

gations and fundamental rights inherent in the common law. When a class of people in our society are treated as undeserving of such protections which should be afforded to them by virtue of being human beings – it is a slippery slope for the respect of our rights and freedoms as citizens. III. FIGHTING THE SLIPPERY SLOPE: STANDING UP FOR UNIVERSAL RIGHTS AND INTERNATIONAL CITIZENSHIP Australian citizens should be concerned about Australia’s trend in moving to restrict political communication by citizens to obstruct scrutiny of their immigration policy. Journalists have been met with logistical barriers to accessing Nauru and Manus Island to report on the conditions of the detention camps, impeding access to information to the Australian public on the true nature of detention centres, and removing an element of accountability. The asylum seekers are rendered ‘out of sight, out of mind’. Furthermore, the government as passed a bill to criminalise the reporting of human rights abuses by those working on Nauru and Manus Island, contrary to their ethical and legal obligations to report child abuse.34 The assault on fundamental rights now bleeds into the civil rights of citizens. The situation for asylum seekers is bleak. The Australian government has heralded ‘stopping the boats’ as a major achievement in their first term of government.35 They have dismissed growing cries of opposition raised by Australian human rights groups.36 They have expressed contempt for the United Nations and international human rights conventions.37 The Australian government has repudiated its responsibilities towards asylum seekers now detained in offshore processing centres in appalling conditions and towards refugees crises such as the Rohingyan asylum seekers adrift at sea.38 However, there are pending constitutional challenges,39 and suits of negligence against the government for the poor conditions of offshore detention centres.40 There is growing scrutiny into the conditions of immigration detention with the Australian Human Rights Commission Inquiry into children in detention, the Moss Review, and the Senate Inquiry into Nauru and potentially the Royal Commission into Child Sexual Abuse.41 If the system falls – one must replace it with strong legal protections so that these punitive policies cannot be implemented again. Key to combatting these issues is increasing awareness and education of the true issues concerning asylum seekers and the flaws in the system. A call to the government to account for their actions is essential, through the democratic system that is unavailable to asylum seekers.42

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REFERENCES 1. Janet Phillips and Harriet Spinks, ‘Immigration Detention in Australia’ (Background Note, Parliamentary Library, Parliament of Australia, 2013) 8. 2. Migration Act 1958 (Cth) ss 189, 196. 3. Ibid s 196(5). 4. See, eg, Al-Kateb v Godwin (2004) 219 CLR 562. 5. Migration and Maritime Powers Legislation Amendment (Resolving The Asylum Legacy Caseload) Act 2014 (Cth). 6. Juan Mendez, Report of Special Rapporteur on Torture and Other cruel, inhuman and degrading treatment or punishment, Human Rights Council, 28th sess, Agenda item 3, UN Doc A/HRC/28/68/Add1 (6 March 2015) 7 – 9. 7. Sarah Whyte, ‘Vietnamese Asylum Seekers Kept on Customs Boat for a Month’, The Sydney Morning Herald (online), 25 May 2015 <http://www.smh.com.au/federal-politics/political-news/vietnamese-asylum-seekerskept-on-customs-boat-for-a-month-20150525-gh991c. html>. 8. Sarah Whyte and Bevan Shields, ‘Asylum Seekers No Longer Asked Torture Question During First Encounter with Australian Officials’, The Sydney Morning Herald (online) 21 May 2015 <http://www.smh.com.au/federal-politics/ political-news/asylum-seekers-no-longer-asked-torturequestion-during-first-encounter-with-australian-officials20150521-gh6hu2.html>. 9. Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1, 27. 10. See, eg, Kruger v Commonwealth (1997) 190 CLR 1; Al-Kateb v Godwin (2004) 219 CLR 562; Fardon v Attorney General (Qld) (2004) 223 CLR 575. 11. Al-Kateb v Godwin (2004) 219 CLR 562, 650 (Hayne J). 12. Gillian Triggs, ‘Gillian Triggs on Magna Carta: Alice Tay Lecture in Law and Human Rights’, The Guardian (online), 15 June 2015 <http://www.theguardian.com/australia-news/2015/jun/15/australia-and-the-magna-cartahow-the-coalition-and-labor-agree-on-laws-that-violateour-freedoms?CMP=soc_567>. 13. Laurent Marcoux Jr, ‘Protection from Arbitrary Arrest and Detention Under International Law’ (1982) 5(2) Boston College International and Comparative Law Review 345, 346. 14. Brandon L Garrett, ‘Habeas Corpus and Due Process’ (2012) 98 Cornell Law Review 47, 61. 15. Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) [729]. 16. Migration Act 1958 (Cth) s 5(1). 17. Migration Act 1958 (Cth) s 473CA; Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act

(Cth) 2014 [711]. 18. Migration Act 1958 (Cth) s 473CA. 19. Ibid s 473DB. 20. Kioa v West (1985) 159 CLR 550. 21. Administrative Review Council, ‘The Scope of Judicial Review’, (Report No 47, 2006) n 76 [4.2]. 22. Australian Constitution s 51(xxvi); David Weissbrodt and Steph Meili, ‘Human Rights and Protection of Non-citizens Whither Universality and Indivisible Rights?’ (2004) 28(4) Refugee Survey Quarterly 34, 37. 23. Weissbrodt and Meili, above n 22, 38; Arthur C Helton et al, ‘Protecting the World’s Exiles: The Human Rights of Non-Citizens’ (2000) 22 Human Rights Quarterly 280, 282, 289. 24. Arthur C Helton et al, above n 23, 281–2; Weissbrodt and Meili, above n 22, 47. 25. Matthew Thompson, ‘‘Queue Jumping’ the Hot Button for Australian Thinking About Asylum Seekers’, The Conversation (online) 26 October 2011 <http://theconversation.com/queue-jumping-the-hot-button-for-australian-thinking-about-asylum-seekers-4004>. 26. Fiona McKay, Samantha Thomas and Susan Kneebone, ‘It Would be Okay if They Came Through the Proper Channels’: Community Perceptions and Attitudes Towards Asylum Seekers in Australia’ [2011] Journal of Refugee Studies 1, 11-12. 27. Karen Barlow, ‘Scott Morrison Says 157 Tamil Asylum Seekers are ‘Economic Migrants’ Not in Danger of Persecution in India, Calls Labor and Greens ‘Surrender Monkeys’ ABC News (online) 28 July 2014 <http://www.abc. net.au/news/2014-07-28/consular-staff-begin-processing-of-tamil-asylum-seekers/5627732>. 28. Emma Griffiths, ‘Immigration Minister Scott Morrison Defends the Use of the Term ‘Illegal Arrivals’, Plays Down PNG Police Incident’, ABC News (online), 22 October 2013 <http://www.abc.net.au/news/2013-10-21/ immigration-minister-scott-morrison-defends-use-of-illegals-term/5035552>. 29. Fiona McKay, Samantha Thomas and Susan Kneebone, above n 26, 5; Sharon Pickering ‘Common Sense and Original Deviancy: News Discourses and Asylum Seekers in Australia’ (2001) 14(2) Journal of Refugee Studies 169. 30. Daniel Brunstetter, ‘Sepulveda, Las Casas and the Other: Exploring the Tension between Moral Universalism and Alterity’ (2004) 72 The Review of Politics 409, 410. 31. Ibid 410. 32. Susan Kneebone, ‘Natural justice and non-citizens: A matter of integrity?’ (2002) 26 Melbourne University Law Review 355, 359. 33. Australian Broadcasting Corporation (ABC), ‘Bali 9 Duo’s Execution “Will Have Consequences” Says Julie Bishop’, 7:30 Report, 28 April 2015 (Leigh Sales). <http://www. abc.net.au/7.30/content/2015/s4225605.htm>. 34. Greg Barns and George Newhouse, ‘Border Force Act: Detention Secrecy just got Worse’, The ABC (online), 28 May 2015 <http://mobile.abc.net.au/news/2015-05-28/ barns-newhouse-detention-centre-secrecy-just-goteven-worse/6501086>. 35. Laura Tingle, ‘Tony Abbott: The First Year’, Austra-

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lian Financial Review (online), (6 September 2014) <http:// www.afr.com/news/politics/national/tony-abbott-thefirst-year-20140908-jeqto>. 36. Lenore Taylor, ‘Human Rights Commission President Gillian Triggs Hits Back at the Critics’, The Guardian Australia (online), 1 April 2015 <http://www.theguardian. com/australia-news/2015/apr/01/human-rights-commission-president-gillian-triggs-hits-back-at-the-critics>. 37. Danuta Kozaki, ‘Abbott Says Australians ‘Sick of Being Lectured to by UN’ After Scathing Report on Asylum Policies’, ABC News (online), 9 March 2015 <http://www. abc.net.au/news/2015-03-09/tony-abbott-hits-out-united-nations-asylum-report/6289892>. 38. Lisa Cox, ‘Nope, Nope, Nope: Tony Abbott Says Australia will not Resettle Refugees in Migrant Crisis’, The Sydney Morning Herald (online), 21 May 2015 <http://www. smh.com.au/federal-politics/political-news/nope-nopenope-tony-abbott-says-australia-will-not-resettle-refugees-in-migrant-crisis-20150521-gh6eew.html>. 39. ABC News, ‘Australian Lawyers Launch Constitutional Challenge to Detention of 10 Asylum Seekers on Nauru’, ABC News (online), 7 February 2014 <http://www. abc.net.au/news/2014-02-07/an-nauru-asylum-seeker-legal-challenge-newhouse/5245408>. 40. Sarah Whyte and Natalie O’Brien, ‘Asylum Seekers Sue the Government for Negligence’ (20 December 2014) The Sydney Morning Herald (online) <http://www.smh.com. au/federal-politics/political-news/asylum-seekers-suethe-government-for-negligence-20141220-12az8a.html> . 41. Sarah Whyte and Bevan Shields, ‘Royal Commission into Child Sex Abuse Investigating Immigration Department’, The Sydney Morning Herald (online) 21 May 2015 <http://www.smh.com.au/federal-politics/political-news/ royal-commission-into-child-sex-abuse-investigating-immigration-department-20150520-gh5vqi.html>; Amanda Cavill, ‘Nauru Inquiry Frustrated by Lack of Answers from Transfield’, SBS News (online), 19 May 2015 <http://www. sbs.com.au/news/article/2015/05/19/nauru-inquiry-frustrated-lack-answers-transfield>; Phillip Moss, Review into Recent Allegations Relating to Conditions and Circumstances at the Regional Processing Centre in Nauru’, (Report, Commonwealth government, 2015); Australian Human Rights Commission, ‘The Forgotten Children: National Inquiry into Children in Immigration Detention’, (Report, Australian Human Rights Commission, 2014). 42. Arthur C Helton et al, above n 23, 294.

Human Rights in Australia

Tim Wilson

Tim Wilson is Australia’s Human Rights Commissioner – tim.wilson@humanrights.gov.au

4 62

Court of Conscience Court of Conscience

A love for freedom has to live in the political culture of Australians, not the courts. We support freedom because it drives human progress. Freedom empowers individual autonomy and responsibility. It encourages respect for the individual and dignity of treatment for all, and fosters innovation and creativity through the expression of individual choice and freely determined participation in economic, social and cultural affairs. Freedom is underpinned by a respect for human rights — the still radical notion that individuals are born with equal dignity and should be free to exercise their faculties to pursue their lives, their opportunities and their enterprise. Understanding why human rights are radical requires an appreciation of their origins. They are not lofty aspirations of social justice. Rather, they are bedrock principles about the preservation of the rights of individuals against government power. There was no one moment that brought about the ideals of human rights. They evolved out of learning and reflections from compounding events over centuries. But of significance is the signing 800 years ago of the Magna Carta, or Great Charter of 1215 by King John, which first saw significant developments in human rights concepts by placing constraints on the power of the monarchy. Magna Carta is romanticised — but that does not diminish its importance. Political ideas are not permanent. They only live in the hearts and minds of free people. The Great Charter, however, established in law many principles including freedom of the Church, respect for property rights, no taxation without representation, and a fair system of justice. But more importantly it helped further entrench the modern understanding of the separation of powers doctrine. The Barons who forced the Magna Carta on the King experienced the threat of centralised authority to ancient-understood liberties. Power in the hands of the few was a threat to the liberties of all, even if at the time

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Human Rights in Australia Tim Wilson

‘A love for freedom has to live in the political culture of Australians, not the courts.’

‘all’ meant the privileged classes and the ‘free men’ who survived in the cities. Magna Carta also recognised some of the early structures of government: the role of the Monarch was to design law; the courts were responsible for its interpretation; and the common counsel was formed to approve tax revenue to finance the decisions of the King. These principles were transposed and built upon in the early American colonies and formalised in the United States Constitution. The Americans further recognised that a singular dominant level of government was also a threat to liberty and so fostered competitive governance between states. These structures were designed to preserve and protect peoples’ rights against government. In England during the 17th Century, great philosophers such as John Locke intellectualised an understanding of the natural rights of the individual from the preserve of the ruling class to include all people. These rights were legally formalised in the English Bill of Rights in 1689. However, it wasn’t until the 1948 Universal Declaration of Human Rights that these principles went beyond the reach of the legacy of the British Empire to the world. Despite its wide reach, the Universal Declaration has had a limited impact on Australia’s political structures. Australia was an active participant in drafting the Declaration but the ideas were not novel. Rather, human rights in Australia are owed to our inherited political culture from Britain and the United States.

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With our British foundation, Australia inherited the common law and the principles of justice that flow from it. At Federation, modern Australia acquired a hybrid of democratic structures from the learned experience of Britain and the United States. Our so-called WashMinister system of government seemingly adopts the best practices of both: Like the United States, Australia has a constitution to limit the power of the federal government, and states to reduce the potential monopoly of federal government. Furthermore, both houses of Parliament are elected to make us democratic and accountable. Mirroring the British system, executive government is drawn from the Parliament to ensure it is answerable to the people’s representatives. Freedom in Australia is not preserved through strong legal protections. Built on the common law, freedom is instead based on government proscribing unlawful conduct rather than making conduct lawful. In particular, the structures of our democracy divide power deliberately to ensure it is left squarely in the hands of the people and not the ruling elite. In his 1985 essay ‘Political ideology in Australia: The distinctiveness of a Benthamite Society’,1 Hugh Collins argued that the structure of Australia’s democracy leads it to value ‘utilitarianism’, ‘legalism’ and ‘positivism’, and that ‘natural rights will be an alien tradition’.2 Collins’ analysis recognises that while people may philosophically have ‘natural rights’ or ‘human rights’, it is through the structures of government that we seek to preserve them, tempered by our other ambitions for society.

It is these other ambitions that often create conflict. The free exercise of many rights often comes into conflict with social justice or aspirations of social cohesion. Preserving human rights and freedom is therefore largely dependent on political culture: the extent that we can protect human rights is the extent to which they are valued by the Australian people. Understandably, many human rights activists can find this a frustrating solution. Advocating for rights requires convincing Australians of the importance of their cause, and urging the political class to take action on their behalf. That can be particularly problematic when rights rarely need to be defended for the most loved individuals or justified behaviour. As such, for many people the logical conclusion is to advocate for a ‘bill’ or ‘charter’ of rights. Securing the electoral passage of a constitutional bill of rights in Australia would be extremely difficult. Constitutional bills of rights are achievable at the foundation of a country because they put firm parameters on the development of laws; constitutionally protected rights are like stakes in a garden. As a country develops, it creates laws which grow around these stakes. But Australia’s body of law has developed on the basis of its current constitutional constraints — introducing a bill of rights would drive stakes into the body of our law that grew without them. For example, no credible bill of rights could be introduced without a strong protection of free speech. Yet Australia’s law has been developed with little protection for free speech beyond courts reading down excessive restrictions using the precedent of the common law. Introducing a strong protection of free speech through a bill of rights would mean many laws that enjoy widespread support — which range from plain packaging of tobacco products,3 to section 18C of the Racial Discrimination Act 1975 (Cth) — would require amendments or repeal. The other reason a bill of rights would be difficult to secure in Australia is because of its impact on our political culture. Political cultures develop out of the institutional structures that surround our democracy: for example, America’s political culture is heavily built around its Bill of Rights, and England’s is built around its own structures without formal constitutional protection. So too, our political culture is built on an understanding and respect for rights, but not in isolation. As a result, appealing to rights rarely wins you an argument in Australian political discourse. Rights are only valued as part of a matrix of competing values including fairness, justice and responsibility. Inserting a strong protection of rights amongst this political culture will do little to engender support for rights, and would likely bring them into ridicule as they almost always only ever need to be defended for the less desirable and their conduct. Legislative charters of rights have their own significant issues. They have the same problems as a bill of rights absent teeth, but they also place courts in an im-

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possible position. Courts already factor rights into their legislative interpretations, but the rights they factor in come from the common law and focus on the ‘negative’ rights of the individual. Negative rights are protections of the individual’s liberty against the excesses of government, such as freedom of speech, freedom of association and religious freedoms. Other rights, such as the right to a fair trial, are embodied in the institutions of our democracy. Depending on their design, charters of rights often include both negative and positive rights; advocates for charters of rights tend to want to go beyond ‘negative’ rights, and instead focus on ‘positive’ rights about expectations of the individual from government. Positive rights are rarely human rights; rather they are civil and political rights that include issues such as whether and the extent to which citizens can access publicly funded health and education services. Irrespective of the merit of each civil right, it is deeply undesirable to use courts to advance them. When positive rights are included in legal proceedings judges cease to be interpreters of law and instead become arbiters over decisions on public policy. Charters that include positive rights afford the courts the power to make decisions on issues without the comparable knowledge or responsibility for their decisions. For example, a court may make a decision about what constitutes ‘equal’ access to a civil right that could lead to significantly higher costs for government, without an understanding of the precedent they are setting or the cost consequences it will impose on the taxpayer. Hence courts are not the place to fight out issues of legitimate public policy.That rightly sits with Parliament. When Parliament develops charters and handballs decisions to courts they are undermining the very institution they serve. Handing this power to the courts is also deeply undemocratic as it empowers non-elected judges to decide public policy. That doesn’t mean just taking away power from the Parliament, it also amounts to taking power away from the people. The consequence is a corrosion of respect for rights as they are seen to take precedence over the rich mixture of other policy aspirations we have for our society. REFERENCES 1. Hugh Collins, ‘Political ideology in Australia: the distinctiveness of a Benthamite Society’ in Stephen R Graubard (ed) Australia: the Daedalus Symposium (Angus and Robertson, 1985) vol 114, 147–169. 2. Ibid. 3. Tobacco Plain Packaging Act 2011 (Cth).

Public Education Funding in New South Wales: A Silver Bullet?

Andrew J Roberts

I. INTRODUCTION

Andrew J Roberts is a second year Juris Doctor student, having previously completed a Bachelor of Arts with Honours in International Relations at UNSW. He is also a volunteer legal assistant with the Aboriginal Legal Service and editor of the UNSW Law Journal. On the rare occasions that he is not studying, he likes to enjoy the simple pleasures of natural light.

For modern democracy to function, voters must be aware of who is standing for election and what they stand for so that they are able to make an informed decision. However, transmitting this information — be it in print media, online, by telephone or in person — necessarily involves expense and somebody must foot the bill. The NSW Independent Commission Against Corruption (ICAC) has notched up remarkable successes of late in publicly revealing corrupt conduct in NSW politics. Political donations and election funding has been a recurring theme. In response, the NSW government has convened a panel of experts to review election funding laws in NSW.1 The panel has been given a wide ambit, but is to consider the best approach to ‘remove any corrosive influence of donations in New South Wales.’2 Particular attention is to be given to the suitability of full public funding of elections.3 While consideration should be given to possible public funding models, so too should their potential limitations. This essay addresses three key issues with public election financing: constitutional validity, efficacy and the complexity of developing a fair funding model. II. THE CONSTIT U TIONALIT Y OF CAMPAIGN FINANCING Full public funding of election campaigns may not be constitutionally valid. The 2012 amendments to the Election Funding, Expenditure and Disclosers Act 1981 (NSW) (‘EFED Act’) restricted eligibility to make donations to individual enrolled voters (precluding businesses and unions, among others) and to aggregate political communication expenditure of parties and their affiliated organisations.4 These provisions were struck down by the High Court in Unions NSW v New South Wales on the basis that they impinged on the implied freedom of communication.5 The court applied the two-staged test from Lange v Australia Broadcasting Corporation.6 The

Winner of the 2014 UNSW Primus Gradus Essay Competition 66

Court of Conscience

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Public Education Funding in New South Wales: A Silver Bullet? Andrew J Roberts

‘While banning all political donations may reduce the reliance on political donations that currently characterises the NSW system, it would not necessarily negate the advantage that superior electoral spending may have on candidates’ prospects of electoral success.’

first limb asks whether the provision ‘burdens the freedom of political communication either in its terms, operation or effect’.7 The second asks whether the burden is ‘reasonably appropriate and adapted, or proportionate, to serve a legitimate end’ in maintaining representative government.8 It was found in Unions NSW that restricting funding to candidates burdened the freedom of political communication in a way that did nothing to achieve the anti-corruption purpose of the EFED Act.9 Full public election funding would go much further than the provisions struck down in Unions NSW by effectively banning all donations. It is difficult to see how a more restrictive arrangement could survive the High Court. However, the court did leave the possibility open. In obiter, the court suggested that full funding may better achieve the anti-corruption objective of the EFED Act.10 However, it would be necessary to justify public funding as a proportionate response to the risk that any donation, regardless of its source, may engender some impermissible level of corruption.11 The constitutional validity of public campaign financing is to be specifically addressed by the panel of experts.12

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III. THE EFFICACY OF PUBLIC CAMPAIGN FINANCING In the context in which public funding has been proposed, public financing would need to successfully limit the corrupting influence of political donations on the democratic process. However, it is presumptive to assume that precluding legal donations would prevent money from influencing politics. The resignation of Newcastle MP Tim Owens and Charlestown MP Andrew Cornwell concerned allegations as part of an ICAC enquiry that they had accepted money from banned donors.13 Their alleged conduct is already outside the bounds of existing campaign finance regulation.14 While banning all political donations may reduce the reliance on political donations that currently characterises the NSW system, it would not necessarily negate the advantage that superior electoral spending may have on candidates’ prospects of electoral success. That is, there may remain a strong incentive for candidates to seek or accept illicit donations regardless of the funding model in an attempt gain a competitive advantage. Thus, while decreasing the reli-

ance on donations may reduce this incentive, it is unlikely that a full public funding model would completely remove it. Many of the difficulties that currently exist in enforcing the restrictions under the EFED Act would likely remain. IV. DEVELOPING A FAIR PUBLIC MODEL While political donations are criticised for their influence on the democratic process, similar distortions may exist in a public funding model. The challenge is to develop a mechanism that fairly distributes funding. Some of these difficulties are manifest in the Commonwealth model for partial public funding of elections. At a national level, public funding at a set amount per voter is provided to each candidate who secures at least 4 per cent of the first preference votes.15 While such a system purportedly directs funds where they are most deserving, this funding is paid after the election and is most likely directed to future campaigns and general political activity.16 Thus, a proportional electoral funding mechanism based on previous electoral sentiment has two important limitations. Firstly, incumbent parties are advantaged through retrospective funding even where they no longer reflect electoral sentiment. Secondly, serious minor parties are excluded from public funding until they can obtain a 4 per cent share of primary votes, a task made more difficult by the lack of public funding. Most importantly, both of these issues serve to reinforce the status quo by consolidating funding to those already in power. The risk is that it creates a system where the relative lack of funding provided to certain players, including those more responsive to the electorate, may be disadvantage through an inability to effectively communicate their message. While it is not necessary that NSW would develop a funding model based on the Commonwealth’s ‘per voter’ approach, it is illustrative of the complexity of public financing. Finding an appropriate system will be difficult. Where all candidates and parties are reliant on public funds, the pressure to ensure fairness will be crucial to its success. However, when decision making around campaign financing is decided by the government of the day there is capacity and incentive to develop a system that is favourable to the incumbent. V. CONCLUSION Election funding is a complicated legal challenge. It is beleaguered by the self-interest of those required to change it and the vested interests of those who seek to capitalise on it. What is required is the development of a legislative framework which balances democratic rights within a sensible regulative framework in which the overall goal of ensuring confidence in a firmly democratic electoral process is maintained. While fully public electoral funding may have some capacity to achieve

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these goals, it also involves a range of risks and potentially adverse outcomes. That is, it may not be the silver bullet that some hope it can be. REFERENCES 1. Mike Baird MP, ‘Expert Panel to Drive Donations Reform’ (Media Release, 27 May 2014) 1. 2. ‘Political Donations Panel of Experts’ (Terms of Reference, 27 May 2014) 2 <http://www.dpc.nsw.gov. au/__data/assets/pdf_file/0003/164595/Donations_Panel_Terms_of_Reference.pdf>. 3. Ibid. 4. See Election Funding, Expenditure and Disclosures Act 1981 (NSW); Election Funding, Expenditure and Disclosures Amendment Act 2012 (NSW) ss 95G, 96D. 5. (2013) 252 CLR 530 (‘Unions NSW’). 6. (1997) 189 CLR 520. 7. Unions NSW (2013) 252 CLR 530, 553 [35]; Lange v Australia Broadcasting Corporation (1997) 189 CLR 520, 567. 8. Unions NSW (2013) 252 CLR 530, 556 [44]; Lange v Australia Broadcasting Corporation (1997) 189 CLR 520, 567. 9.Unions NSW (2013) 252 CLR 530, 554 [38], 557–8 [51]–[53]. 10. Ibid 559 [59]. 11. Ibid. 12. ‘Political Donations Panel of Experts’ (Terms of Reference, 27 May 2014) 1 <http://www.dpc.nsw.gov. au/__data/assets/pdf_file/0003/164595/Donations_Panel_Terms_of_Reference.pdf>. 13. Sarah Gerathy, ‘ICAC: Former Liberals Tim Owen and Andrew Cornwell resign from Parliament after corruption hearing’ ABC News (online), 13 August 2014 < http:// www.abc.net.au/news/2014-08-12/icac-former-liberal-mp-admits-giving-false-evidence/5664746>. 14. Election Funding, Expenditure and Disclosures Act 1981 (NSW) div 4A. 15. Commonwealth Electoral Act 1918 (Cth) ss 294–5. 16. Ibid s 299(5D).

‘It is easy to be disgruntled if you are denied rights and freedoms to which you feel entitled. But if you are not coherent, if you cannot put into words what it is that displeases you and why it is unfair and should change, then you are dismissed…’ ‘Ayaan Hirsi Ali