Court of Conscience - Issue 15, 2021 by UNSW Law Society

Court of Conscience Race, Law and Equality Issue 15, 2021

Court of Conscience Issue 15, 2021 Race, Law and Equality

Court of Conscience respectfully acknowledges the Bedegal, Gadigal and the Ngunnawal Peoples as the custodians and protectors of the land where each campus of UNSW is located. Sovereignty has never been ceded on these lands. It always was and always will be, Aboriginal land.

Contents

5 Equality

Maya Angelou 7 Editorial 11 17

29 41 47 53 59

Portia Ferdinand The Spectre of Institutional Bias in the Australian Democracy William Wen Zhou, Reid Hou and James Morgan Inclusion and Diversity in the Police Force: A Case Study on Institutional Racism and the Institutional Response Tienyi Long Fight the Power: Defamation as a Weapon Against Systemic Racism? Stewart O’Connell Missing and Murdered Indigenous Women and the Silence of the Media Amal Naser Inequality Pandemic Jenny Leong MP COVID-19 Relief Measures: Australia’s Indifference to Temporary Migrants Kathryn Viegas and Gopika Aryad ASIC v Kobelt: An Illustration of the Problems in Applying Community Values in Novel Situations Kavita Balendra Whose Lore Is It Anyways? An Analysis of the Parasitic Interaction Between Lore and Law Kirby Pearson How Systemic Racism Holds Australia Back: A Discussion of the Lack of Cultural Diversity within Australian Politics and the Law Peter Khalil MP Advancing Ethnically and Culturally Diverse Representation and Inclusive Leadership in Australia Tuanh Nguyen and Jieh-Yung Lo

Equality Maya Angelou

You declare you see me dimly through a glass which will not shine, though I stand before you boldly, trim in rank and marking time. You do own to hear me faintly as a whisper out of range, while my drums beat out the message and the rhythms never change. Equality, and I will be free. Equality, and I will be free. You announce my ways are wanton, that I fly from man to man, but if I’m just a shadow to you, could you ever understand? We have lived a painful history, we know the shameful past, but I keep on marching forward, and you keep on coming last. Equality, and I will be free. Equality, and I will be free. Take the blinders from your vision, take the padding from your ears, and confess you’ve heard me crying, and admit you’ve seen my tears. Hear the tempo so compelling, hear the blood throb in my veins. Yes, my drums are beating nightly, and the rhythms never change. Equality, and I will be free. Equality, and I will be free

Court of Conscience Issue 15, 2021

Editorial

Portia Ferdinand

Injustice anywhere is a threat to justice everywhere. Martin Luther King Welcome to the 15th Issue of the Court of Conscience. This year’s thematic issue ‘Race, Law and Equality’ explores systematic racism within our society, laws, and legal system. Australia is one of the most culturally diverse countries in the world. The 2016 census revealed that 26% of our population was born overseas and within our population, there are around 300 different cultures.1 Furthermore, Australia is the land of the Aboriginal and Torres Strait Islander peoples, making it home to the oldest continuous culture in the world. Our multicultural identity is one of our greatest strengths. However, racism continues to exist and pervade our society in many insidious forms. The conversation about racial injustice begins with acknowledging and making amends for the past and current treatment of Aboriginal and Torres Strait Islander peoples. Australia’s colonial history and protectionist policies have led to dispossession, disruption of culture, removal of children, intergenerational trauma, and the economic and social disadvantage of Aboriginal and Torres Strait Islander communities, which unfortunately continues today.2 Australian governments have failed to achieve meaningful change for Aboriginal and Torres Strait Islander peoples, who have shown great strength and resilience in the face of systems which continue to perpetuate colonial practices. Furthermore, Aboriginal and Torres Strait Islander peoples and people of colour (‘POC’) continue to report experiences of racism, with 1 in 5 Australians being victims to racial discrimination.3 It is all too common for POC to be asked ‘where are you really from’ or be told to ‘go back to where you came from’. Both POC and Indigenous peoples continue to be overlooked for employment, harassed, stereotyped, and racially profiled.4 These experiences are not only alienating but continue to lead to disadvantage in diverse communities. Instead of supporting and protecting these individuals, leaders continue to propagate inequitable immigration laws which contribute to the ‘othering’ of migrants in society and have passed laws that provide insufficient protection against discrimination.5 There is no place for racism in Australia; however, it exists at an individual, institutional, and systematic level. More recently conversations and awareness about racism have been growing as seen by the Black Lives Matter movement, the Biloela Family Campaign, and the criticisms of the Indian travel ban and policing of diverse communities during the COVID-19 pandemic. These conversations are important; however, change cannot only stop there. It is important that educative measures are implemented, legal reform takes place and governments, and our legal profession work alongside Indigenous peoples and POC to ensure they feel supported, their voices are heard, and they experience equality and justice.6

Court of Conscience Issue 15, 2021

Overview of Issue 15

The Court of Conscience was created to raise awareness and contribute to legal scholarship on contemporary social justice issues. The articles in Issue 15 explore a variety of problems within our laws, legal system, and profession which have led to racial injustice and exclusion, and they highlight the need for reform. The Court of Conscience is unique because it displays submissions from a variety of individuals within the legal profession and this year is no different with submissions from academics, solicitors, a barrister, parliamentarians, and law students. Furthermore, this year, we especially aimed to highlight the voices of POC and Indigenous peoples to ensure that dialogue around racial injustice is being led by those who have lived experience and a more personal perspective of its impacts. The Issue begins with an article by William Wen Zhou, Reid Hou and James Morgan, students from the University of New South Wales and University of Sydney and members of the Asian Australian Lawyers Association. They discuss past racist legislation against Asians and Chinese Australians and comment on how discriminatory legislation is damaging to Australian democracy. Following this, Tienyi Long, a lawyer with broad experience across the higher education, local government, and not-for-profit sectors, examines institutional racism within the Australian police force. She evaluates current policing initiatives which respond to racism and highlights their ineffectiveness and need for reform. The next two articles focus on the media representation of Indigenous Australians. Stewart O’Connell, a senior defamation solicitor, analyses systemic racism in the media against Indigenous peoples. He draws on his extensive professional experience to demonstrate cases where Indigenous Australians have been defamed and describes how the law of defamation can provide protection, relief, and accountability. Amal Naser, a student from the University of New South Wales and current Vice President (Public Interest Careers) of the UNSW Law Society, additionally, highlights how the stories of missing and murdered Indigenous women are continually ignored by the media, leading to the normalisation of their violence and lack of law reform. The subsequent two papers focus on the treatment of temporary migrants during the COVID-19 pandemic. Jenny Leong MP, the Greens member for the electorate of Newtown in the NSW Legislative Assembly, as well as Kathryn Viegas, a specialist in immigration law and Gopika Aryad, a paralegal and Juris Doctor student from the University of New South Wales, shed light on how the Australian government’s response to the pandemic exacerbated existing inequities faced by migrant communities and POC. Both articles demonstrate the government’s failure to treat migrants with dignity and respect. The journal then focuses on the Australian court system. Kavita Balendra, a barrister who regularly represents people from diverse backgrounds, questions what community values should be applied in cases that involve diverse vulnerable communities. She analyses the case of ASIC v Kobelt (2019),7 highlighting that the High Court’s decision to apply a different standard for the protection of the Anangu people compared to the rest of Australian society, led to the acceptance of a system that entrenched their disadvantage. Kirby Pearson, a proud Dhungutti and Biripi man, paralegal and law student from the University of New South Wales, explores how the Australian legal system fails to recognise Indigenous lore resulting in adverse and unjust judicial outcomes for Indigenous peoples. The final suite of articles explores whether the legal profession promotes diversity. Peter Khalil MP, Federal Labor Member for Wills, discusses how systematic racism has led to the lack of cultural representation within parliament and in senior positions in the legal profession. Tuanh Nguyen, director at PricewaterhouseCoopers, and Jieh-Yung Lo, founding Director of the Centre for Asian-Australian Leadership, further discuss the lack of cultural representation in senior roles in Australia’s public institutions and private sector corporations and discusses how the implementation of legislative and regulatory tools can improve diversity. II

Concluding Remarks

There are many people who need to be thanked for their contributions to the development of Issue 15. First, I would like to thank the authors for entrusting the Court of Conscience with their work and for the time and effort they put into their articles, amidst the

Portia Ferdinand, Editorial

pandemic and other important obligations. It has been a pleasure to work with each of you. I would also like to thank the many anonymous peer-reviewers who provided important comments and insights which helped develop each article. To the 2021 editorial team, this Issue would not have been possible without your hard work, eye for detail and diligence. You had to persevere through a pandemic and were still able to contribute to the journal in many meaningful ways. It has been a privilege to work alongside you. Thank you to our artist Shanna Massie for creating beautiful and thought-provoking art pieces that reflect and visualise the hardships POC and Indigenous peoples face and help us celebrate their resilience. Thank you to our designer Alexander Tanazefti for flawlessly executing the design of the journal and bringing it to life. Furthermore, thank you to Alexandra Whelan for creating striking social media graphics that were posted on our LinkedIn and Facebook pages, which has allowed us to raise greater awareness of the many issues that fall under this thematic. I would also like to thank the UNSW Faculty of Law, UNSW Law Society and Social Justice Vice President Joshua Sykes for their ongoing support of the Court of Conscience. My final thanks go to my family and friends who have provided me with support and encouragement during my time as Chief Editor. I would not have been able to achieve this without you. Racism in our society will never end unless we speak up, listen to the voices of those affected, educate one another, and implement long-lasting reform. I encourage readers to reflect on these articles and continue the fight to ensure an equal and just society for all.

References

Australian Bureau of Statistics, Census of Population and Housing: Reflecting Australia, Stories from the Census, 2016 (Catalogue Number 2071.0, 28 June 2017). 2 See Royal Commission into Aboriginal Deaths in Custody (Final Report, 15 April 1991); Prime Minister and Cabinet, Closing the Gap Report (Report, 12 February 2020). 3 Kathleen Blair et al, Challenging Racism Project: 2015–2016 National Survey Report (Report, 27 February 2017) 10. 4 Graeme Innes, ‘I’m Not Racist But …: Zero Tolerance or Zero Acknowledgement’ (Speech, National Press Club, 9 August 2011); Tim Soutphommasane, ‘Fighting Racism in Australia’ (Speech, UN Committee on the Elimination of Racial Discrimination, 29 November 2017). 1

Behrouz Boochani; ‘“White Australia” Policy Lives on in Immigration Detention’ The New York Times (online, 20 September 2020) <https:// www.nytimes.com/2020/09/20/opinion/australia-white-supremacyrefugees.html>; Andrea Booth and Lydia Feng, ‘Fears “Ineffective” Anti-Discrimination Laws Still Leave Australians Open to Vilification’ SBS News (online, 11 August 2016) <https://www.sbs.com.au/news/ fears-ineffective-anti-discrimination-laws-still-leave-australians-open-to-vilification>. 6 Innes (n 4); Soutphommasane (n 4). 7 (2019) 267 CLR 1.

Court of Conscience Issue 15, 2021

The Spectre of Institutional Bias in the Australian Democracy

William Wen Zhou, Reid Hou and James Morgan

William, Reid, and James are law students at the University of New South Wales and University of Sydney. The authors are members of the Asian Australian Lawyers Association, and are Australians whose family heritage are of Asian and European background.

The legitimacy of Australia’s democracy and legal system depends upon its fairness. At its most basic, a democracy is a system of government in which the people can choose their representatives. These representatives then govern the state through policy and law-making in furtherance of its constituents. In Australia, the underlying system for making laws depends on the principles contained in the concept of the rule of law. The rule of law, in its simplest form, is achieved when the state’s representatives and its electors are ruled by the law.1 The rule of law is mechanically achieved through the separation of powers between the legislature, the executive, and the judiciary.2 However, the spirit of the rule of law lies in its fairness to those who obey it — that is, the people of Australia. The Australian political and legal system is theoretically fair to the people who participate in it, and on paper, it is comparatively one of the most functional democracies in the world. 3 However, Australia has tended to be unfair towards minorities. Australia has a long history of making laws embedded with unfairness; laws that have purposefully disadvantaged minorities and encouraged racial discrimination. One of the greatest examples of unfair law making and racial discrimination are the laws that lead to the atrocities inflicted on the Aboriginal and Torres Strait Islander peoples.4 Racial discrimination against Australian minorities is unfair and damages the legitimacy of democracy. Even if fairly elected representatives pass racist legislation with the support of their voters, this legislation undermines Australian democracy because of its unfairness. Such a conception of democracy based on the ‘overall good’ argument is not fair and goes against the core spirit of fairness in the Australian people and the rule of law. This paper will examine some of the racial discrimination experienced by Asians and Chinese Australians perpetuated through legislation. This paper has been purposefully limited in scope to only contain discussion on superseded legislation and will not consider current legislation, due to the political nature of such discussion. The core argument of this paper is that Australia’s law-making encourages racism against Asians and Chinese Australians, which is unfair and damaging to the Australian democracy. This paper will first examine a number of historic Australian laws and government policies which have either directly or indirectly perpetuated racial discrimination (or caused some detriment or unfairness) against minorities in Australian society (referred to as ‘institutional bias’). This paper will focus on Australians or ‘transitioning’ Australians who come from an Asian or Chinese background (that is, people who identify as having an ethnic, cultural, or historic connection). It should be noted that the term ‘Asian’ can encompass a diversity of different ethnicities, each with a deep and important history in Australia. However, this paper will focus on the Chinese Australian population, who (as migrants) have had the longest history with direct and overt institutional bias.

Court of Conscience Issue 15, 2021

The laws made specifically to discriminate against Chinese Australians have also been used against other Asian Australians. This forms the basis of this paper’s discussion and argument. This paper’s purpose is not to conduct a review of all possible forms of discrimination faced by Asian and Chinese Australians in Australian history, but to showcase how Australian ‘law-making’ (whether legislative or policy) has discriminated against Asians and Chinese Australians in a more insidious form. In discussing the concept of Australian democracy, this paper adopts the conception of a liberal democracy using the principles of liberty contained in A Theory of Justice by John Rawls5 — one of the most renowned contemporary liberal philosophers. I

Historical Institutional Bias

Australian laws have historically and purposefully disadvantaged Asian and Chinese Australians. Since the first instances of Asian contact with colonial Australia, laws have been introduced to discriminate against Asian Australians. The mid-seventeenth century provides an early example of institutional bias, being the period when Chinese labourers arrived in Australia after leaving the Qing Empire, which had been destabilised by the Opium Wars.6 During this period, large-scale migration to Australia occurred. It is estimated that there was a peak of 40,000 Chinese people present in Australia at that time.7 Animosity by the European settlers built up against the Chinese during this period. The Chinese were perceived as ‘cheap labour’ and competition by workers of European descent and were not considered to be Australians who could benefit the Commonwealth. 8 Chinese labourers worked in the goldfields of Victoria and New South Wales, where they would mine in coordinated groups, making them more efficient than other miners. This furthered colonial perceptions of the Chinese as a threat to Anglo-Saxon (or white) European livelihoods.9 The Victorian Parliament was the first to institutionalise such sentiments due to the political pressure from European miners and labourers, by introducing the Chinese Immigration Act 1855 (Vic) (the ‘Victorian Act’).10 The Victorian Act imposed discriminatory restrictions of ‘a rate of ten pounds for every such immigrant’11 and introduced a limit on Chinese immigrants per tonnage of their respective ship.12 The New South Wales Parliament then followed suit with its own Chinese Immigrants Regulation and Restriction Act 1861 (NSW) (the ‘NSW Act’), which provided a similar limit of ‘one [Chinese immigrant] to every ten tons of ship.’13 Anglo-Saxon or European migrant miners were not affected by this legislation. While these Acts prevented Chinese Australians from entering Victoria, shipping companies instead landed hopeful miners in South Australia, who would then make the voyage overland to the Victorian goldfields.14 Asian and Chinese migrants were seen as a ‘problem’ for Australia, and this stigma has been engrained in the Asian Australian psyche. This form of discrimination continued in other law-making practices, despite the first Asian and Chinese immigrants soon becoming Australians. Racism enacted into law and advocated for by governments instilled in Australia a negative perception of Asian and Chinese Australians. The enactment of the Chinese Immigration Act 1855 (Vic) and Chinese Immigrants Regulation and Restriction Act 1861 (NSW) led to the support of racism against Chinese Australians. Over time, what began as displeasure towards a perceived competitor turned into deep seated racial resentment. Chinese migrants were perceived, among other things, as bringers of disease and smallpox, with newspapers at the time running inflammatory articles to this effect.15 By the 1880s, anti-Chinese sentiment was strong in New South Wales, with then-Premier Henry Parkes stating, ‘there can be no … intermarriage or social communion between the British and the Chinese’.16 Parkes’ government went on to pass the Chinese Restriction and Regulation Act 1888 (NSW), which explicitly protected against the ‘dangers of Chinese immigration’.17 Parkes’ government would further pass another Act in 1898 which required immigrants to write a passage in a European language.18 This legislation would lay the framework for the ‘dictation test’ in the Immigration Restriction Act 1901 (Cth) — the ‘White Australia Policy’,19 borrowing elements from the test ‘successfully’ implemented in the British colony of Natal.20 The dictation test was used discriminatorily against immigrants,21 sometimes with a language purposefully chosen beforehand to ensure that the person sitting the test would fail, since the test could test knowledge of any European language.22 This discriminatory exercise was aimed at Chinese immigrants,23 but also affected Vietnamese, Japanese, Malaysian

William Wen Zhou, Reid Hou and James Morgan, The Spectre of Institutional Bias in the Australian Democracy

and Singaporean immigrants.24 The dictation test would also be used against British subjects, for example, Hong Kong immigrants who at the time were part of the British Empire.25 The Commonwealth Parliament also (for racial reasons) relied on the immigration power in section 51(xxvii) of the Constitution to block entry of Hong Kong immigrants who were British subjects.26 These government actions beg the question of what an ‘Australian’ looked like to law makers. This legislation would remain one of the most notorious forms of discrimination that Asian peoples faced, until having its final vestiges repealed by the Whitlam government in 1973.27 The idea that Chinese immigrants, or anyone of Asian appearance, did not know the English language was ingrained by the White Australia Policy and the dictation test. This meant that many Asian and Chinese Australians who could communicate in perfect English faced racism due to the legislative and policy implications. This has had a generational impact on Chinese Australians and, in some circumstances,28 separated Asian Australian families. This legislation would not be the end of historic discrimination by law makers. Racism, turned into institutional bias, has harmed the economic prosperity of Australia. As the Chinese left the goldfields and regions to make livelihoods in the cities, they became successful furniture makers. At the height of the industry in 1911, the number of Chinese furniture craftsmen in Australia reached a peak of approximately 2,000.29 European or ‘white’ Australian furniture makers petitioned the Victorian government, claiming that the Chinese businesses presented an encroachment on their own livelihood. This resulted in the Factories and Shops Act 1896 (Vic) (‘Furniture Act’) which imposed harsher restrictions on Chinese workers. This included the definition that four Europeans working together would be a ‘factory’, whereas only one Chinese craftsman working alone would be a ‘factory’.30 This meant that Chinese workers would always be under greater scrutiny and regulation. As a consequence of this, and other factors such as the Immigration Restriction Act 1901 (Cth), the number of Chinese furniture makers halved during World War I.31 Only a few years after the enactment of White Australia Policy, Australia made a call to arms for World War I. Chinese Australians rose to action, with more than 200 Chinese Australians serving for Australia during World War I, 19 of whom won medals for bravery.32 It is difficult to imagine that the furniture industry in Australia would have become more competitive after the Furniture Act was implemented. Basic labour market economic theories dictate that the exodus of skilled workers caused by such legislation would have increased the cost of furniture for Australian families and made the Australian furniture industry less competitive in international markets, stultifying innovation in the broader economy.33 Institutional bias instilled in Australia the notion that Chinese Australians had to be regulated, watched, and monitored more than their white counterparts, and that they could not be trusted. The treatment of Chinese and Asian Australians was again characterised by rampant and unfair discrimination. Law makers pointed fictitiously to the dangerous nature of Asian Australians (despite being the same Asian Australians who fought for Australia in World War I) and their status as low-cost workers undercutting white Australians, alleged bringing of maladies, threats to national security and allegiance, and questions of how to regulate their participation in Australian society. The economic, social, and psychological harm caused by generational discrimination against Asian Australians is immeasurable. To create a fair and just Australia, institutional bias should not be continued. II

The Detriment to Australian Democracy

It is rarely examined on a theoretical level ‘why’ racism and discrimination are bad or their damaging effects to a nation, such as Australia. This paper reasons that institutional bias perpetrated through discriminatory legislation and policies is damaging to the legitimacy of liberal democracies. As mentioned, the purpose of a democracy is to create a fair system to represent the people. However, when legislation is passed for the purpose of oppressing or encouraging discrimination against its people, it no longer (theoretically) serves its purpose of representing those people. Australia’s strong promotion of the cultural focus on values of liberty is the reason why Australia’s government is unique compared to other governments in the region.34 However, popularity or simple ‘majority’ votes or utilitarian conceptions of democracy are not the core characteristics that promote a liberal

Court of Conscience Issue 15, 2021

democracy35 — such conceptions support the transition to authoritarian styles of government.36 Arguments that support institutional bias for the purpose of the overall good (against the minority) will lead to the deterioration of the Australian democracy. If ‘authoritarian’ style laws are used to insidiously discriminate against minorities (whose preferences matter little to the political institutions) unopposed, it is the death knell for Australian democracy.37 The spirit of Australian democracy is on the line if the Australian people are not being represented fairly. This paper has examined Australia’s brief history of institutional bias against Asian and Chinese Australians and has purposefully left open for discussion the question of contemporary laws. Institutional bias pervades Australian society. There are many ways to analyse why institutional bias (in the form of law, policy, or constitution) is immoral or evil in a nationwide context. For example, this could be shown by applying theological justifications such as natural law (restricting people’s ability to pursue the good of life, or hurting the community), or liberal perspectives derived from social contract theory (individuals did not agree, in the democracy, to be subject to less freedoms than others), or criticising legal positivism using critical race theory (certain laws should not be upheld purely because they are law, as certain laws were made, fundamentally, from a discriminatory or biased perspective). Any of these philosophical lenses may be applied to explain how institutional bias could lead to the delegitimisation of the Australian justice systems, or the destruction of Australia’s democracy through the inequality of its citizens. However, each of these arguments would require an individual paper in itself to fully explain and argue, and each would have flaws in its application. Nevertheless, in the context of the Australian liberal democracy, there is no simpler method to examine fairness other than to consider Rawls’ conception of liberty. This section describes Rawls’ theory of ‘justice as fairness’ and examines it in the context of institutional bias. The concept of ‘justice’ (for the whole community) is critical in the creation and application (or enforcement) of laws because without justice, the legal system may lose its legitimacy. 38 The concept of fairness is a core value in policy and law-making in Australia and (if liberty and fairness are core to becoming an Australian) this is arguably the spirit of the Australian democracy.39 John Rawls was an American political philosopher in the liberal tradition, and his theory of ‘justice as fairness’ describes a society of free citizens holding equal basic rights and cooperating within an economic system.40 It is quite fitting to use one of the most famous and contemporary liberal theorists to examine Australia (a liberal democracy) and its institutional bias. The first statement of Rawls’ two principles of justice reads as follows: First: each person is to have an equal right to the most extensive scheme of equal basic liberties compatible with a similar scheme of liberties for others. Second: social and economic inequalities are to be arranged so that they are both (a) reasonably expected to be to everyone’s advantage, and (b) attached to positions and offices open to all.41 The first principle deals with the social systems that define and secure the equal basic liberties, and the second principle specifies and establishes social and economic inequalities. In the context of this paper, the first principle is most relevant and, from Rawls’ perspective, the highest priority for observance.42 Each person who forms part of the Australian liberal democracy should be afforded basic liberties. A certain group should not be disadvantaged for ‘economic’ benefits by way of diminishing another’s basic liberties. Australia has restricted the basic liberties of Asian and Chinese Australians (for example, the right to work in certain industries or with certain groups) for the benefit of ‘white’ Australians, despite the real economic benefit to Australia (for example, the less competitive Australian furniture market) being questionable. Further: Now it is essential to observe that the basic liberties are given by a list of such liberties … political liberty (the right to vote and to hold public office) and freedom of speech and assembly … freedom of the person, which includes freedom from psychological oppression and physical assault and dismemberment (integrity of the person); the right to hold

William Wen Zhou, Reid Hou and James Morgan, The Spectre of Institutional Bias in the Australian Democracy

personal property and freedom from arbitrary arrest and seizure as defined by the concept of the rule of law. These liberties are to be equal by the first principle … These principles are to be arranged in a serial order with the first principle prior to the second. This ordering means that infringements of the basic equal liberties protected by the first principle cannot be justified, or compensated for, by greater social and economic advantages.43 Australia, which touts itself as a leading liberal democracy,44 has betrayed its very own principles of liberty through its law-making. From this paper’s previous examples, the freedom from psychological oppression has been violated by law makers (who only represented the white ‘constituency’ of Australia) harassing the Asian Australian population. Lawmakers who should have been representing all of Australia’s interests have instead supported foreign and derogatory views on Asian Australians. The right to hold personal property and freedom from arbitrary arrest and seizure has been historically breached, for example, indirectly through the Furniture Act. Values of freedom of speech are also damaged indirectly through the favouring of anti-Chinese debate. The opinion of Chinese Australians is also diminished through nationalistic anti-Chinese sentiments supported by some legislation. These are some examples of basic liberties (the most fundamental freedoms) of Asian and Chinese Australians being eroded in Australia. To this very day, law makers continue to pass legislation that may adversely affect the liberty of Asian and Chinese Australians, for example, the Foreign Influence Transparency Scheme Act 2018 (Cth). Note that none of the basic liberties that ought to be afforded under a liberal democracy have anything to do with the English language, education level, intermarriage, or other discriminatory factors used in Australian legislation and policy. The second step in applying Rawls’ theory would be to use a veil of ignorance argument to establish the rules of a fair, and thus, just society.45 This paper is limited to discussion on superseded legislation, but in applying (to a basic extent) the first step of the veil of ignorance to the concept of institutional bias, if one were able to choose their racial or ethnic disposition prior to becoming ‘self-aware’ or (in practicality) a citizen of Australia, they would choose to be white. This is not fair to Asian Australians and to the Asian children of Australia, as the choice of embracing their Asian heritage becomes a detriment to them because of inherent biases against their ‘non-European’ or ‘non-white’ background. III

Discussion and Final Questions

The world has changed. No longer can Australia hide from the elephant in the law-making room. Although this paper has not directly discussed current unfair laws, it asserts that these laws are now blatantly clear to Asian Australians. 46 Asian and Chinese Australians have lived in Australia for generations. The historic laws that have been analysed in this paper have been discussed in the households of Asian Australians for decades, and the discriminatory features of institutional bias are clear to those that have had to experience it for generations. It is only through fear, and their love for their country, that Asian and Chinese Australians hesitate to point out something so obvious.47 It is no longer appropriate to use Cold War propaganda strategies to spook the Australian population into distraction from harsh realities (such as COVID-19), imploring non-Asian Australians to discriminate against Asian and Chinese Australians.48 Instead of looking outside of Australia, Australian law makers should consider their insecurities. They must ask themselves, who is Australia? Who are the children of Australia? And is Australia fair to them? The contemporary trend of institutional bias and authoritarian laws (under the guise of nationalism) is dangerous and unhealthy for the Australian liberal democracy. This paper calls for the establishment of a legal policy framework which should be used to examine whether proposed laws are reasonably fair to the basic liberties for all Australians, and do not promote unnecessary racial discrimination. This is in the national interest of Australia and is necessary for the Australian democracy. This paper hopes that the most basic freedoms can be respected for the benefit of the Australian democracy. It is difficult for Australia to maintain its position as a liberal, democratic leader in the free world if Australia’s own law-making goes against the very principles of a liberal democracy.

Court of Conscience Issue 15, 2021

References *

5 6 7 8 9 10 11 12 13 14

15 16 17 18 19 20

22 23 24

This paper is submitted in the authors’ personal capacity and not on behalf of, or for the Asian Australian Lawyers Association (‘AALA’). The authors would like to acknowledge feedback provided by several members of the Asian Australian Lawyers Association, including Kingsley Liu, Molina Asthana, and Matt Floro. The authors also wish to acknowledge feedback provided by their peers, including Chelsea Wu and David Pittavino. Malika Holdings Pty Ltd v Stretton (2001) 204 CLR 290, 327–8 [120] (Kirby J). For a more recent restatement, see Paccar Financial Pty Ltd v Menzies (No 2) [2015] NSWSC 1622, [59]–[60] (Rothman J). Peter Gerangelos, The Separation of Powers and Legislative Interference in Judicial Process: Constitutional Principles and Limitations (Bloomsbury Publishing, 2009) 8. Rory Haupt and Liz Wakerly, ‘Rating Australia: A Selection of Global Indexes’ (Research Paper Series 2020-21, Parliamentary Library, Parliament of Australia, 16 November 2020) 21. Australian Institute of Health and Welfare, Aboriginal and Torres Strait Islander Stolen Generations Aged 50 and Over: Updated Analyses for 2018-19 (Report, 2 June 2021). John Rawls, A Theory of Justice (Belknap Press, rev ed, 1999) 53. Edward Washington, ‘Chinese on the Goldfields’, Sydney Living Museums (Web Page) <https://sydneylivingmuseums.com.au/stories/chinese-goldfields>. Shirley Fitzgerald, Red Tape Gold Scissors: The Story of Sydney’s Chinese (State Library of New South Wales Press, 1st ed, 1997) 13–18. Maxine Darnell, ‘Life and Labour for Indentured Chinese Shepherds in New South Wales, 1847-55’ (2004) 6 Journal of Australian Colonial History 137, 149. Washington (n 6). Chinese Immigration Act 1855 (Vic). Ibid s 4. Ibid s 3. Chinese Immigrants Regulation and Restriction Act 1861 (NSW) s 3, as repealed by Chinese Immigration Act Repeal Act 1867 (NSW). Pamie Fung, ‘The Significance of the First Anti-Chinese Legislation in Australia’, Peril, (Blog Post, 12 June 2015 <https://peril.com.au/topics/politics/ anti-chinese-legislation-in-australia/>; Graham J Whitehead, ‘The Chinese Question’, Kingston Local History (Article, 27 June 2018) <https://localhistory. kingston.vic.gov.au/articles/322>. Washington (n 6). Telegram from Sir Henry Parkes to the Secretary of State, 31 March 1888. Chinese Restriction and Regulation Act 1888 (NSW). Ching-Yan Choi, Chinese Migration and Settlement in Australia (Sydney University Press, 1975), 26–7. Immigration Restriction Act 1901 (Cth) s 3(a) (‘Immigration Restriction Act’). James Jupp, ‘From “White Australia” to “Part of Asia”: Recent Shifts in Australian Immigration Policy Towards the Region’ (1995) 29(1) International Migration Review 207, 208. See, eg, Potter v Minahan (1908) 7 CLR 277. In that case, the respondent, a British subject of Chinese ancestry, attempted to return to Victoria, his place of birth, after spending his childhood in China. He was charged as an unlawful immigrant after failing the dictation test, this being ultimately overturned in the High Court. Immigration Restriction Act (n 19). Jupp (n 20). Ibid 208–9.

25 Kate Bagnall, ‘Potter v. Minahan: Chinese Australians, the Law and Belonging in White Australia’, (2018) 15(3) History Australia 458, 462–5. 26 See generally Helen Irving, ‘Still Call Australia Home: The Constitution and the Citizen’s Right of Abode’ (2008) 30(1) Sydney Law Review 131. 27 See Australian Citizenship Act 1973 (Cth); Whitlam Institute, ‘A Multicultural Australia’ (Web Page), <https://www.whitlam.org/whitlam-legacy-amulticultural-australia#abolishment-of-the-white-australia-policy>. 28 See, eg, Donohoe v Wong Sau (1925) 36 CLR 404. 29 Peter Gibson, ‘Voices of Sydney’s Chinese Furniture Factory Workers, 18901920’ (2017) 112 Labour History 99, 99. 30 Factories and Shops Act 1896 (Vic) s 3(a). 31 Sophie Couchman, ‘Furniture Making Industry’ Chinese-Australian Historical Images in Australia (Web Page, 11 July 2001) <https://www.chia. chinesemuseum.com.au/biogs/CH00016b.htm>. 32 ‘World War I: Chinese Anzacs’ National Archives of Australia (Web Page) <https://www.naa.gov.au/learn/learning-resources/learning-resource-themes/ war/world-war-i/world-war-i-chinese-anzacs>. 33 Luisa Gagliardi, ‘Does Skilled Migration Foster Innovative Performance: Evidence from British Local Areas’, (2015) 94(4) Papers in Regional Science 773, 778, 789–91. 34 Mark Evans, Will Jennings and Gerry Stoker, Democracy 2025, How Does Australia Compare: What Makes A Leading Democracy? (Report No 6, April 2020) 19–20. 35 Krishna K Ladha, ‘The Condorcet Jury Theorem, Free Speech and Correlated Votes’ (1992) 36(3) American Journal of Political Science 617. Critics of Condorcet’s jury theorem argue the majority-vote may not always lead to the better ‘alternative’; it assumes that each voter in, say a democracy, is voting with independent thought (not influenced by irrational ideals) and full information on alternatives. 36 See, eg, Pippa Norris, ‘It’s Not Just Trump: Authoritarian Populism is Rising Across the West’, The Washington Post (online, 11 March 2016) <https://www. washingtonpost.com/news/monkey-cage/wp/2016/03/11/its-not-just-trumpauthoritarian-populism-is-rising-across-the-west-heres-why/>. 37 Daron Acemoglu and James A Robinson, Economic Origins of Dictatorship and Democracy (Cambridge University Press, 2005) 174. 38 See generally Tom R Tyler (ed), Legitimacy and Criminal Justice: International Perspectives (Russell Sage Foundation, 2007). 39 Australian Government, ‘Australian Values’, Department of Home Affairs (Web Page, 9 February 2021) <https://www.homeaffairs.gov.au/about-us/ our-portfolios/social-cohesion/australian-values>. 40 Metaphysics Research Lab, Stanford Encyclopedia of Philosophy (online at 18 October 2021) ‘John Rawls’. 41 Rawls (n 5). 42 Rawls (n 5). 43 Ibid 53–4. 44 Justice Andrew Greenwood, ‘Occasional Address by the Hon Justice Andrew Greenwood of the Federal Court of Australia on the Occasion of the Conferring by the Council of Griffith University of an Honorary Degree of Doctor of the University, Friday 19 December 2014’ (2015) 40 Australian Bar Review 105, 108, 110. 45 Ibid 118. 46 See, eg, Foreign Influence Transparency Scheme Act 2018 (Cth). 47 Helena Liu, ‘Beneath the White Gaze: Strategic Self-Orientalism Among Chinese Australians’ (2017) 70(7) Human Relations 781, 791–3. 48 For a summary and comprehensive criticism of the recent Cold War-style propaganda of the Australian media and Australian government see Marcus Reubenstein, ‘Who Takes Weight of Racism?’, APAC News (online, 16 October 2021) <https://apac.news/who-takes-weight-of-racism/>.

Inclusion and Diversity in the Police Force A Case Study on Institutional Racism and the Institutional Response

Tienyi Long*

Tienyi Long is a lawyer with broad experience across the higher education, local government and not-forprofit sectors. Tienyi’s is interested in diversity and inclusion, young people, and effective governance to achieve institutional change. Tienyi was very grateful and honoured to have received the William Ah Ket Scholarship in 2019, for her paper on improving diversity intelligence in the legal profession. Tienyi holds a Bachelor of Arts (Spanish and Latin American Studies) and a Bachelor of Laws from Monash University. In her spare time, Tienyi can often be found laughing at bad jokes, reading and writing, drinking almond cappuccinos or waging war against the endless weeds in her garden.

In 1967, Ture (then Carmichael) and Hamilton first coined the phrase ‘institutional racism’ to describe the idea that racism goes beyond the overt acts of specific individuals, but permeates the systems, structures and institutions of our society.1 Using the police in Australia as an example, this essay explores institutional racism and its consequences. It examines Scott et al’s assertion that organisations and participants working within institutions ‘are not the passive pawns of external events … but take steps to control, modify and challenge these forces’,2 and argues that the police have an obligation to address institutional racism within their ranks. It then evaluates current initiatives using an adapted form of the Matrix developed by Marrie and Marrie 3 to monitor progress on eliminating institutional racism in public health systems. Following a discussion of themes emerging through the evaluation, it concludes by identifying challenges and opportunities for further research. I

Racism, the Police and the Communities Impacted

A The Police in Australia In this essay, the ‘police’ refers to state and territory police, as well as the Australian Federal Police (‘AFP’).4 The police are ‘uniquely entrust[ed]’5 with significant powers and discretion to deal with (perceived) threats to the community. In order to perform these functions effectively, the police rely on public trust that they will exercise their powers and functions appropriately, treat people with dignity, and act in the community’s best interests.6 Police officers are predominantly born in Australia, or in English-speaking countries which ‘most closely resemble Australia culturally and historically’ (eg the United Kingdom and New Zealand).7 Only a minority identify as culturally or linguistically diverse. 8 B Individual and Institutional Racism Racism is an ideology of racial (or ethnoracial — capturing interdependent notions of ethnicity and race) 9 domination, in which one or more (ethno)racial groups is presumed superior to others, and that presumption is used to justify poor treatment or lower social position(s) of other (ethno)racial groups.10 Racism manifests itself both at an ‘overt’ individual level and a ‘covert’ institutional level.11 In the context of the police, individual racism is demonstrated through verbal taunts (‘waste of space’,12 ‘animals’,13 ‘go back to China’),14 messages on stubby holders15 and social media,16 and even physical violence.17 At an institutional level, racism manifests itself in ‘unwitting prejudice, ignorance, thoughtlessness and racist stereotyping’18 within the police’s policies, practices, norms and opportunity structures. It even affects the systems and technologies used to

William Wen Zhou, Reid Hou and James Morgan, The Spectre of Institutional Bias in the Australian Democracy

Court of Conscience Issue 15, 2021

identify suspects, such as facial recognition software.19 Institutional racism ‘can appear with the face of respectability’,20 co-existing with decades-old legislation and official codes of conduct which prohibit racial discrimination and mandate equal, fair and respectful treatment.21 Institutional racism is informed by colour-blind racial attitudes, characterised by two interlinking beliefs: first, that we live in an inherently just world where everyone is afforded equal opportunities on the basis of merit; second, that skin colour is superficial and irrelevant to assessments of merit or fairness.22 This belief allows the police to justify stereotyped views and policing methods such as racial profiling and over-surveillance, while maintaining that they are acting on the basis of hard-earned field experience and responding to a person’s behaviour, not the colour of their skin. 23 C Over-policed Communities The impact of police racism is illustrated by the experiences of Aboriginal and Torres Strait Islander peoples,24 who are:

a. b. c.

disproportionately targeted in police activities designed to reduce general offending;25 more likely to be arrested and charged for an offence (as opposed to receiving a caution, summons, or intent to summons);26 and overrepresented within the adult prison population in every jurisdiction across Australia.27

Since 1991, at least 474 Aboriginal and Torres Strait Islander peoples have died in custody,28 including deaths due to police officers’ ‘unprofessional and inhumane actions’.29 Culturally and linguistically diverse (‘CALD’) communities communities have also reported racialisation and criminalisation by the police.30 The following report from the experiences of young men of African descent in Victoria provides a helpful insight into their encounters with the police: Some expressed … embarrassment … when stopped and searched publicly. For others … the way police framed questions … made them feel like they are being publicly interrogated … When police approach those of Anglo backgrounds, they genuinely ask questions related to policing … the questions are open ended — which allows space for an explanation.31 This essay refers to Aboriginal and Torres Strait Islander peoples and CALD people (including migrants, refugees, and Australian-born people of colour) jointly as ‘over-policed communities’. In doing so, it acknowledges that diverse cultures and communities in Australia are not homogenous and may have different experiences of the police. It also acknowledges that while these communities may be targeted for police activities, they also tend to experience poor service delivery by the police (eg slower responses or displays of apathy), which is sometimes referred to as ‘under-policing’. 32 This essay adopts the language of David Muir, as quoted in the Macpherson Report: ‘over-policed and under-protected’.33 Some scholars have called for police racism to be seen as a public health issue,34 reflecting the profound impact of police racism on over-policed communities. Police racism often results in excessive use of force and physical injury.35 The negative criminal justice outcomes that flow from police racism can cause financial strain, stress and poor mental health, and relationship breakdown. 36 It can also cause feelings of shame, anger and increased marginalisation from society.37 This may contribute to a perception among over-policed communities that the police are ‘good for some people, but not for us’. 38 They may therefore be less likely to seek help from police 39 and less likely to cooperate with,40 or even behave with outright hostility to,41 the police. II

Institutional Responses to an Institutional Problem

A Responsibility to Take Action It is beyond the scope of this essay to delve into the scholarship on the moral and ethical ‘wrongness’ of racism, and the obligation to address racism from that perspective.42 For present purposes, it is noted that — as illustrated above — police racism causes harm to overpoliced communities and prevents them from seeking

Court of Conscience Issue 15, 2021

help when needed. This is inconsistent with the police’s role, which inherently requires addressing traditional ‘patterns of over suspicion and underprotection’,43 helping those in need of assistance 44 and ‘reducing violence, crime and fear’.45 In this regard, it is noted that racism is multidimensional and occurs across multiple domains and institutions.46 The issues experienced by overpoliced communities are not solely attributable to the police, but to structural and historical inequities.47 Other players in the criminal justice system — including lawmakers, advocates, social workers and the courts — grapple with their own biases.48 Community perceptions of police may be informed by intergenerational trauma from colonialist laws and policies.49 Chan distinguishes between the socio-political context of police work (‘field’) and the dimensions of ‘cultural knowledge’ around why, how, and what things are done within the police institution (‘habitus’).50 It is submitted that while the police are not necessarily liable for changing the ‘field’, they should, at a minimum, take steps to challenge and prevent racism in the ‘habitus’. The remaining sections of this essay deal with police-initiated organisational policies as a subset of changes to the ‘habitus’.

Indicators

VIC

NSW QLD

TAS

AFP

Public acknowledgment of harm caused by

✗

✓55

✗

✓56

✓57

✓58

✓59

✗60

✓61

✓62

✓63

✓64

✓65

✓66

✓67

✓68

✗

✓69

✓70

✓71

✓72

✓73

✗

✗74

✗75

✗

✓76

✓77

✓78

✓79

✓80

✓81

✗82

✗

Recruitment

✓83

✓84

✓85

✓86

✓87

✗

✓88

✓89

Support and career development

✓90

✓91

✗

✓92

✗

✓93

✓94

✓95

✓96

✓97

✓98

✓99

✓100

✓101

as part of internal/external advisory committees

✓102

✓103

✓104

✗

✓105

✓106

✗

✓107

as part of executive management

?108

?109

?110

?111

?112

?113

?114

?115

✓117

✓118

✓119

✓120

✓121

✓122

✓123

✗

✓124

✓125

✗

✓126

✓127

✓128

✓129

✓130

✗131

✓132

✓

✗

✓

institutional racism 2

Diversity and inclusion explicitly identified as a strategic priority

Action plan in place to deliver specific and

Aboriginal and Torres Strait Islander peoples

measurable outcomes

(eg Reconciliation Action Plans) CALD communities

Regular reporting on progress in achieving targets and outcomes

Programs or initiatives in place to improve opportunity structures for over-policed

Current Efforts to Address Police Racism Each police force has internal processes to address instances of individual racism, which in some cases has resulted in the expulsion of individual officers for evidence of racism.51 While this reflects a shift towards greater accountability and intolerance for overtly racist behaviour by individual police members, there remains a focus on maintaining the innocence of the institution.52 This essay evaluates the response to police racism from an institutional perspective. The indicators in the following table are adapted from the Matrix, a tool to monitor progress on eliminating institutional racism in public health systems,53 with additions drawn from literature on organisational strategies to improve police-community relations.54 A tick denotes that the indicator is met, a cross denotes that the indicator is not met and a question mark indicates insufficient information to make an assessment. This evaluation is intended to facilitate discussion about how institutional racism can be addressed. Like the Matrix, it is based on publicly available information, allowing for open, transparent review by interested members of the community. The information relied on has been identified to enable verification, clarification and amendment as required. B

communities 6

Training provided on working with diversity

Over-policed communities participate in institutional leadership and governance

Designated liaison officers and/or departments

For Aboriginal and Torres Strait Islander communities ✓116 For CALD communities

Publicly reported programs and activities for engagement with over-policed communities

10 Built-in multi-language selection on website or publication of important information in different languages

Themes C While almost every police institution has publicly identified diversity and inclusion as a strategic priority, efforts to translate this into action vary in scope and maturity. 1 Acknowledgment of Racism There is limited acknowledgment of the impact of institutional racism. Only Western Australia Police has expressly apologised to Aboriginal and Torres Strait Islander peoples for ‘past wrongful actions’.133 Other institutions have offered token apologies134 or rejected assertions of racism.135 Policy changes to address institutional racism are generally only made in response to externally-imposed requirements.136 2 Recruitment Most initiatives focus on recruiting officers from over-policed communities. While well-intentioned, they rely on flawed assumptions that:

a. b.

people from over-policed communities see policing as a desirable career;137 and more diverse representation will reduce prejudicial policing, enable ‘proactive policing partnerships’ and improve police-community relations.138

Officers from over-policed communities contribute to diversity within the force as the ‘ethnic other’.139 They are expected to bridge relations with their communities and educate colleagues about cultural issues,140 while navigating work in traditionally white institutions141 and, in some cases, ostracism from their communities for joining the police.142 More mature initiatives recognise the emotional labour that this

Tienyi Long, Inclusion and Diversity in the Police Force

Court of Conscience Issue 15, 2021

entails, and provide support through internal solidarity networks and support from peers, community leaders, and human resources.143 To the extent that officers from over-policed communities enter the force, career development is limited and informed by perceived cultural skills (eg multicultural liaison roles)144 or assessments of leadership potential145 by senior officers who are (based on the limited statistics available) likely to be white men.146 Even though police officers from diverse backgrounds are increasing in number (and widely publicised),147 they remain underrepresented in leadership roles.148 Officers with different backgrounds bring fresh perspectives to policing, and research suggests that a representative police force improves community perceptions of the police.149 However, police officers from over-policed communities are not immune to prejudice,150 and are not necessarily interested in, or inherently more effective at, policing their own communities.151 Further, the benefits of diversity can only be realised if individuals from diverse backgrounds are empowered to question existing biases, call out unacceptable behaviour, and make decisions within the force. Otherwise, efforts towards increased representation are ‘good for PR … but … won’t make a scrap of difference to how police work gets done’.152 3 Community-Based Initiatives Community-based initiatives reflect the shift towards community policing that characterised police reform in the 1980s and are intended to maximise police-community collaboration to resolve crime.153 Research suggests that this approach improves community trust154 and is effective in responding to crime.155 However, the results show that efforts remain superficial at best. Not all police websites are available in languages other than English. In one instance, a police website directs users to use Google’s web translator while explicitly disclaiming responsibility for the effectiveness of Google’s translating service.156 All police forces have designated Aboriginal and Torres Strait Islander liaison officers; some have equivalent roles for CALD communities. This has been criticised as a band-aid solution, which:

in the context of Aboriginal and Torres Strait Islander peoples, ignores the historical context of colonialism, invasion, and violence at the root of poor Aboriginal-police relations;157 and more broadly, allows (white) police officers to defer responsibility for engaging with over-policed communities.158

Aboriginal liaison officers have limited statutory powers. As Cunneen points out, liaison officers ‘tend to be junior, without authority, clear responsibilities or a specified budget’.159 Thus, they bear the brunt of community expectations and a ‘self-defined sense of responsibility’,160 often working overtime under poor working conditions but with limited ability to effect change.161 Writing in 1997, Chan cites examples of liaison officers being subject to racism or patronisation within the force, including being excluded from operations.162 Some efforts have been made to address these issues — for example, Victoria Police now has sworn Police Aboriginal Liaison Officers who perform operational duties alongside their community engagement role. It remains to be seen whether these efforts will empower liaison officers or over-policed communities. Some police forces have also established advisory committees for overpoliced communities. Such committees can be effective mechanisms for community participation in police decision-making, provided they are purposeful, have appropriate governance structures with mechanisms to ensure that the committees comprise a fair representation of community members,163 and are allocated sufficient time, resources, and institutional support.164 At this stage, there is insufficient public information about these committees or their impact. D Challenges and Opportunities This essay has argued that every institution has an obligation to address racism in its practice. Using the police as an example, it has evaluated institutional policies intended to challenge and prevent racism, and found that current initiatives achieve little at best, and at worst may perpetuate existing inequalities. Current initiatives may also cause confusion and anxiety for officers who:

Court of Conscience Issue 15, 2021

a. b. c.

do not feel personally involved in past injustices, but are cast as having some responsibility;165 feel threatened by the loss of advantages implicit within the existing structure;166 or maintain colour-blind racial ideologies and feel that anti-racism principles undermine legitimate policing strategies and tactics.

There remain extensive opportunities for further research. The anti-racism initiatives evaluated in this essay are organisational strategies. There is no mechanism for assessing their application in operational policing,167 or if they improve the experiences of communities most affected by police racism. Further, the police-initiated institutional policies considered in this essay are only a subset of changes to the ‘habitus’. This leaves room for further discussion about how the structural conditions of policing (eg the extent to which police actions can be externally reviewed, or the legal powers and discretions afforded to the police through law) can be changed to achieve sustainable change.

References 1 2 3

4 5 6

9 10

11 12

Stokely Carmichael and Charles Hamilton, Black Power: The Politics of Liberation in America (Penguin Books Ltd, 1967). William R Scott, Martin Ruef, Peter Mendel, Carol Caronna, Institutional Change and Healthcare Organizations (University of Chicago Press, 200) 64. Adrian Marrie and Henrietta Marrie, ‘A Matrix for Identifying, Measuring and Monitoring Institutional Racism within Public Hospitals and Health Services’ (Working Paper, Bukal Consultancy, June 2014). Each Australian state and territory has its own police force, except for the Australian Capital Territory and external territories, which receive policing services from the AFP. Wesley Skogan et al, On the Beat: Police and Community Problem Solving (Westview Press, 1999) 191. Jonathan Jackson and Ben Bradford, ‘What is Trust and Confidence in the Police?’ (2010) 4(3) Policing: A Journal of Policy and Practice 241; Tom R Tyler, Why People Obey the Law (Princeton University Press, 2006); Andrew Goldsmith, ‘Police Reform and the Problem of Trust’ (2005) 9(4) Theoretical Criminology 443; Tom R Tyler, ‘Enhancing Police Legitimacy’ (2004) 593 Annals of the American Academy of Political Social Science 84. Helen McKernan, ‘A Multicultural Police Force? Representation of Ethnic Minorities in Victoria Police’ (Conference Paper, Annual Conference of the Australian Sociological Association, 2008) 8. Victoria Police, CALD Inclusion Strategy and Action Plan 2018-2021 (2018) <https://www.police.vic.gov.au/diversity-and-inclusion> (‘CALD Inclusion Strategy’); Community Development and Justice Standing Committee, How Do They Manage? An Investigation of the Measures WA Police Has in Place to Evaluate Management of Personnel (Report No 12, March 2016) i; New South Wales Police Force, Inclusion and Diversity Strategy 2020 – 2023 (2020). Yin C Paradies, ‘Defining, Conceptualizing and Characterizing Racism in Health Research’ (2006) 16(2) Critical Health Practice 143. William Julius Wilson, The Bridge over the Racial Divide: Rising Inequality and Coalition Politics (University of California Press, 1999) 14; Matthew Clair and Jeffrey Denis, ‘Sociology of Racism’ in James D Wright (ed), The International Encyclopedia of Social and Behavioural Sciences, vol 19 (Elsevier Health Sciences, 2nd ed, 2015) 857. For an overview of how race is defined and constructed, see Camara Phyllis Jones, ‘Levels of Racism: A Theoretical Framework and a Gardener’s Tale’ (2000) 90(8) American Journal of Public Health 1212; Diane Emling, ‘What is Race?’ in Institutional Racism and Restorative Justice: Oppression and Privilege in America (Routledge, 2019). Kwame Ture and Charles Hamilton, Black Power: The Politics of Liberation in America (Random House, rev ed, 1992) 20. Stephanie Zillman and Jacqueline Breen, ‘Police Officer Threatens to ‘Belt the F***’ out of Aboriginal Teenagers in Alice Springs Watch House’, ABC News (online, 14 December 2020) <https://www.abc.net.au/news/2020-12-14/ police-officer-threats-aboriginal-boys-alice-springs-watch-house/12969644>. Kate Hedley, ‘Former Perth Police Officer Claims WA’s Force Rife with Racism, “Full of Hatred”’, WA Today (online, 5 June 2020) <https://www.watoday.com. au/national/western-australia/former-perth-police-officer-claims-wa-s-forcewas-rife-with-racism-full-of-hatred-20200605-p54zwx.html>. Naaman Zhou, ‘NSW Police Investigate After Officer Allegedly Tells Asian Driver to “Go Back to China”’, The Guardian (online, 28 December 2018) <https:// www.theguardian.com/australia-news/2018/dec/28/nsw-police-investigateafter-officer-allegedly-tells-asian-driver-to-go-back-to-china>. Beau Donelly, ‘Three Police Officers Sacked, Others Disciplined Over Racist Sunshine Stubby Holders’, The Age (online, 5 March 2014) <https:// www.theage.com.au/national/victoria/three-police-officers-sacked-othersdisciplined-over-racist-sunshine-stubby-holders-20140305-346mq.html>.

16 Claudia Farhart, ‘SA Police Investigating Officer for Racist Messages to Sudanese-Australian Lawyer Nyadol Nyuon’, SBS News (Web Page, 18 June 2020) <https://www.sbs.com.au/news/sa-police-investigating-officer-for-racistmessages-to-sudanese-australian-lawyer-nyadol-nyuon>. 17 Laura Murphy-Oates, “‘Enough Is Enough’: Video of Police Slamming Indigenous Boy Face-first to Ground Rekindles Father’s Rage’, The Guardian (online, 20 January 2021) <https://www.theguardian.com/australia-news/2021/ jan/20/enough-is-enough-video-of-police-slamming-indigenous-boy-face-firstto-ground-rekindles-fathers-rage>. 18 Home Office, The Inquiry into the Matters Arising from the Death of Stephen Lawrence (Cm 4262-I, 1999) (Macpherson Report) [6.34]. 19 Helen McKernan, ‘Whiteness and Policing Vietnamese Australian Communities’ (PhD Thesis, Swinburne University of Technology, 2016) 153–4. 20 Tim Soutphommasane, ‘Institutional Racism’ (Speech, Alfred Deakin Institute for Citizenship and Globalisation’s Institutional Racism Conference’, 1 November 2017) <https://humanrights.gov.au/about/news/speeches/ institutional-racism>. 21 Racial Discrimination Act 1975 (Cth). See also Victoria Police, Professional and Ethical Standards, Victoria Police Manual: Policy Rules (5 October 2016) 1; New South Wales Police Force, Standards of Professional Conduct 5–6; Western Australia Police Force, Code of Conduct (2020) 7; Northern Territory Police, General Order: Code of Conduct and Ethics (14 June 2007) 4; Australian Federal Police, AFP Code of Conduct (November 2011); Tasmania Police, Tasmania Police Manual (18 December 2018). 22 Keisha April, Lindsey M Cole and Naomi E S Goldstein, ‘Police Endorsement of Color-Blind Racial Beliefs and Propensity to Interact with Youth of Color’ (2019) 37(6) Behavioural Sciences and the Law 681; Megan Welsh, Joshua Chanin and Stuart Henry, ‘Complex Colorblindness in Police Processes and Practice’ (2021) 68(2) Social Problems 374; James M Jones, ‘The Color-Blind Racial Approach: Does Race Really Matter?’ in Helen A Neville, Miguel E Gallardo and Derald Wing Sue (eds), The Myth of Racial Color Blindness: Manifestations, Dynamics and Impact (American Psychological Association, 2016) 39–52. 23 See, eg, Tamar Hopkins, ‘Litigating Racial Profiling: Examining the Evidence for Institutional Racial Profiling by Police Against African-Australians in Flemington, Victoria’ (2020) 26(2) Australian Journal of Human Rights 209; Tamar Hopkins, ‘Racial Profiling in Contemporary Australian Policing’ [2020] (161) Precedent 4; Evan Young and Steven Trask, ‘An Internal Report Reveals Claims of Racial Profiling by WA Police. This Former Officer Is Shocked but Not Surprised’, SBS News (online, 29 March 2021) <https://www.sbs.com.au/ news/an-internal-report-reveals-claims-of-racial-profiling-by-wa-police-thisformer-officer-is-shocked-but-not-surprised>; Isabelle Peart, Josephine Booth and Amy Hancell, Caxton Legal Centre, ‘Police Photography of Children in Queensland: an Analysis of Police Powers and Privacy Rights’ (Position Paper, Manning Street Project, May 2018) 7–8; Janet Chan, Chris Devery and Sally Doran, Fair Cop: Learning the Art of Policing (University of Toronto Press, 2003) 213–4. 24 For an overview of police racism against Aboriginal and Torres Strait Islander People, see Chris Cunneen, ‘Police Violence: The Case of Indigenous Australians’ in Peter Sturmey (ed), The Wiley Handbook on Violence and Aggression (John Wiley and Sons, 2017). 25 See, eg, Law Enforcement Conduct Commission, An Investigation into the Formulation and Use of the NSW Police Force Suspect Targeting Management Plan on Children and Young People (Interim Report, January 2020); ‘Aboriginal Women 10 times More Likely to be Targeted by Police at Time of Tanya Day’s Death in Custody’, Human Rights Law Centre (Web Page, 30 April 2019) <https://www.hrlc.org.au/news/2019/4/30/ aboriginal-women-10-times-more-likely-to-be-targeted-by-police>.

Tienyi Long, Inclusion and Diversity in the Police Force

26 Michael McGowan and Christopher Knaus, ‘NSW Police Pursue 80% of Indigenous People Caught With Cannabis Through Courts’, The Guardian (online, 10 June 2020) <https://www.theguardian.com/australia-news/2020/ jun/10/nsw-police-pursue-80-of-indigenous-people-caught-with-cannabisthrough-courts>; Australian Law Reform Commission, Pathways To Justice: Inquiry Into The Incarceration Rate Of Aboriginal and Torres Strait Islander Peoples (Final Report No 133, 28 March 2018) (‘Pathways to Justice Report’). 27 See Pathways to Justice Report for a breakdown of Aboriginal and Torres Strait Islander prisoners across states and territories. As of 30 June 2020, Aboriginal and Torres Strait Islander prisoners made up 29% of all prisoners - an increase from the 27% quoted in the Pathways to Justice Report. See Australian Bureau of Statistics, Prisoners in Australia (Catalogue No 4517.0, 3 December 2020). 28 Lorena Allam et al, ‘The 474 Deaths Inside: Tragic Toll of Indigenous Deaths in Custody Revealed’, The Guardian (online, 9 April 2021) <https://www. theguardian.com/australia-news/2021/apr/09/the-474-deaths-inside-risingnumber-of-indigenous-deaths-in-custody-revealed>. 29 Inquest into the Death of Julieka Ivanna Dhu (Coroner’s Court of Western Australia, Coroner Fogliani, 16 December 2016) 47. 30 See McKernan (n 19) 183–7; Leanne Weber, “Police Are Good for Some People, But Not for Us”: Community Perspectives of Young People, Policing and Belonging in Greater Dandenong and Casey (Report, Monash Migrant and Inclusion Centre, December 2018) 26–32; Daniel Haile-Michael and Maki Issa, Flemington and Kensington Community Legal Centre, ‘The More Things Change, the More They Stay the Same: Report of the FKCLC Peer Advocacy Outreach Project on Racial Profiling Across Melbourne’ (Research Report, 2015) (‘FKCLC Report’). 31 FKCLC Report (n 30) 13. 32 Ibid; Victor Rios, Punished: Policing the Lives of Black and Latino Boys (New York University Press, 2011); James Pilkington, North Australian Aboriginal Justice Agency, ‘Aboriginal Communities and the Police’s Taskforce Themis: Case studies in Remote Aboriginal Community Policing in the Northern Territory’ (Research Report, 2009); Chris Cunneen, Conflict, Politics and Crime: Aboriginal Communities and the Police (Routledge, 2001) 160–5. 33 Macpherson Report (n 18) [45.7]. 34 Sirry Alang et al, ‘Police Brutality and Black Health: Setting the Agenda for Public Health Scholars’ (2017) 107(5) American Journal of Public Health 662; Cato Laurencin and Joanne Walker, ‘Racial Profiling Is a Public Health and Health Disparities Issue’ (2020) 7(3) Journal of Racial and Ethnic Health Disparities 393. 35 Stephen A Schwartz, ‘Police Brutality and Racism in America’ (2020) 16(5) Explore 280. 36 Alang et al (n 34); Sirry Alang, Donna McAlpine and Malcolm McClain, ‘Police Encounters as Stressors: Associations with Depression and Anxiety across Race’ (2021) 7 Socius: Sociological Research for a Dynamic World 1. 37 FKCLC Report (n 30) 8; Camille Nakhid, ‘Police Encounters with African Youth in New Zealand: The Impact on the Youth, Family and Community’ (2017) 16(2) Safer Communities 64, 71–3. 38 Weber (n 30) 6. 39 Susan Wiedlitzka et al, ‘Perceptions of Police Legitimacy and Citizen Decisions to Report Hate Crime Incidents in Australia’ (2018) 7(2) International Journal for Crime, Justice and Social Democracy 91, 100; Janet Phillips and Penny Vandenbroek, ‘Domestic, Family and Sexual Violence in Australia: An Overview of the Issues’ (Research Paper, Parliamentary Library, Parliament of Australia, 14 October 2014) 10. 40 See, eg, Leanne Weber, ‘“You’re Going to Be in the System Forever”: Policing, Risk and Belonging in Greater Dandenong and Casey’ (Report, Monash Migrant and Inclusion Centre, April 2020) 39; Adrian Cherney and Wing Hong Chui, ‘Policing Ethnically and Culturally Diverse Communities’ in Anne Mulvaney (ed), Policing in Context (Oxford University Press, 2009) 160. 41 Weber (n 30) 46. 42 For an overview see Tim Soutphommasane, ‘Racism is a Moral Issue’, ABC Religion and Ethics (Web Page, 22 April 2014) <https://www.abc.net.au/religion/ racism-is-a-moral-issue/10099288>; Amanuel Elias and Yin Paradies, ‘The Costs of Institutional Racism and Its Ethical Implications for Healthcare’ (2021) 18 Journal of Bioethical Inquiry 45; Robert Miles and Malcolm Brown, Racism (Routledge, 2nd ed, 2003) 10–4; Michael Levin and Tamas Pataki (eds), Racism in Mind (Cornell University Press, 2018). 43 Ian Loader, ‘Policing, Recognition and Belonging’ (2006) 605(1) The Annals of the American Academy of Political and Social Science 202, 212. Chan argues that police cultural practice is the result of interaction between field and habitus. Janet Chan, ‘Changing Police Culture’ (1996) 36(1) The British Journal of Criminology 131. 44 Victoria Police Act 2013 (Vic) s 9(1)(e). 45 Police Act 1990 (NSW) s 6(1). 46 For an overview of the (colonial) historical context of institutional racism in Australia, and how it continues to manifest itself across different sectors, see Elias and Paradies (n 42). 47 See Don Weatherburn, Jackie Fitzgerald and Jiuzhao Hua, ‘Reducing Aboriginal Overrepresentation in Prison’ (2003) 62(3) Australian Journal of Public Administration 65; Andrew Bushnell, ‘Indigenous Australians and the Criminal Justice System’ (Research Report, Institute of Public Affairs Criminal Justice Project, 15 September 2017); Joint Standing Committee on Migration, Inquiry into Migrant Settlement Outcomes (Report, 8 December 2017) [7.1]–[7.14]. 48 See, eg, Maggie Walter, Sandra Taylor and Daphne Habibis, ‘How White is Social Work in Australia?’ (2011) 64(1) Australian Social Work 6; Thalia Anthony and Craig Longman, ‘Blinded by the White: A Comparative Analysis of Jury

50 51

53 54

55 56

64 65

Challenges on Racial Grounds’ (2017) 6(3) International Journal for Crime, Justice and Social Democracy 25; Eryk Bagshaw, ‘Parliament is No More Diverse Now than It Was in 1988 as Political Staffer Ranks Explode’, Sydney Morning Herald (online, 19 January 2019) <https://www.smh.com.au/politics/federal/ parliament-is-no-more-diverse-now-than-it-was-in-1988-as-political-stafferranks-explode-20190116-p50rol.html>; Calla Wahlquist, Nick Evershed and Lisa Martin, ‘‘Too Many White Men’: Analysis of Victoria’s New Parliament Reveals Diversity Gap Persists’, The Guardian (online, 19 December 2018) <https://www. theguardian.com/australia-news/2018/dec/19/too-many-white-men-analysisof-victorias-new-parliament-reveals-diversity-gap-persists>; Asian Australian Lawyers Association, The Australian Legal Profession: A Snapshot of Asian Australian Diversity in 2015 (Report, 2015) 4. Grace O’Brien, ‘Racial Profiling, Surveillance and Over-Policing: The OverIncarceration of Young First Nations Males in Australia’ (2021) 10(2) Social Sciences 68, 69–70. See Chan (n 50) 109. See, eg, Australian Associated Press, ‘NSW Police Officer Loses Appeal Against Sacking for Sending Racist, Homophobic and Sexist Texts’, The Guardian (online, 17 March 2021) <https://www.theguardian.com/australianews/2021/mar/17/nsw-police-officer-loses-appeal-against-sacking-forsending-racist-homophobic-and-sexist-texts>; Donelly (n 15). For an overview of non-racism and anti-racism in the community development context, see Virginia Mapedzahama, ‘Race Matters: (Re)thinking the Significance of Race and Racial Inequalities in Community Development Practice in Australia’ (2019) 2(1) Social Work and Policy Studies: Social Justice, Practice and Theory 1. Marrie and Marrie (n 3). See also Pathways to Justice Report (n 26). Andrea Marie Headley, ‘Understanding the Organisational Factors that Impact Police-Community Relations’ (PhD Thesis, Florida International University, May 2018); Thomas C O’Brien and Tom R Tyler, ‘Rebuilding Trust Between Police and Communities through Procedural Justice and Reconciliation’ (2019) 5(1) Behavioural Science and Policy 35. Chris Dawson, ‘Commissioner’s Apology Speech’ (Speech, NAIDOC Week 2018 Flag Raising Ceremony, 12 July 2018). Victoria Police, Victoria Police Blue Paper: A Vision for Victoria Police in 2025 (Strategic Document, May 2014) <https://www.police.vic.gov.au/sites/default/ files/2019-01/Victoria-Police-Blue-Paper_web.pdf>. New South Wales Police Force, NSW Police Force Statement of Strategic Intent (Strategic Document, 2019) <https://www.police.nsw.gov.au/__data/assets/ pdf_file/0008/628460/Statement_of_Strategic_Intent.pdf>. Queensland Police Service, Strategic Plan 2020-2024: A Plan for Changing Times (Strategic Document, January 2021) <https://www.police.qld.gov.au/ sites/default/files/2021-01/QPS_Strategic%20Plan%202020-2024.pdf>. South Australia Police, Our Strategy 2030: Safer Communities, Strategic Priorities (Strategic Document, 2020) <https://www.police.sa.gov.au/__data/ assets/pdf_file/0006/942054/SAPOL_2030-Vision.PDF>; South Australia Police, Corporate Business Plan 2020-23: Safer Communities (Report, 2020) <https:// www.police.sa.gov.au/__data/assets/pdf_file/0007/942055/SAPOL_BusinessPlan-20-23_pages_visual-update-2020-10-27.PDF >. Western Australia Police Force, ‘Our Strategic Direction’, Western Australia Police Force (Web Page, 9 October 2020) <https://www.police.wa.gov.au/ About-Us/Our-Strategic-Direction>. Northern Territory Police, Fire and Emergency Services, Ten Year Strategy (Strategic Document, 2020) <https://www.pfes.nt.gov.au/sites/default/files/ uploads/files/2020/NTPFES_TEN_YEAR_STRATEGY_2020.pdf>. Department of Police, Fire and Emergency Management, Department of Police, Fire and Emergency Management, Future Focus 2021–2023 (Strategic Document, 26 June 2020) <https://www.police.tas.gov.au/uploads/DPFEM-Future-Focus2020-2023.pdf>; Department of Police, Fire and Emergency Management, Tasmania Police Business Priorities 2020–21 (July, 2020) <https://www.police.tas. gov.au/uploads/Tasmania-Police-Business-Priorities-2020-21.pdf>. Australian Federal Police, ‘Corporate Plan 2020–21: Covering 2020–21 to 2023–24’, Australian Federal Police (Web Page) <https://www.afp.gov.au/ corporate-plan-2020-21>. Victoria Police, Aboriginal Inclusion Strategy and Action Plan 2018–2021 (Strategic Document, 2018) <https://www.police.vic.gov.au/diversity-and-inclusion>. New South Wales Police Force, Aboriginal Strategic Direction 2018–2023 (Strategic Document, 2018) <https://www. police.nsw.gov.au/safety_and_prevention/your_community/ aboriginal_persons_and_communities>. Queensland Police Service, Aboriginal and Torres Strait Islander Strategic Directions 2015–2019 (Strategic Document, 2018) <https://www.police.qld. gov.au/sites/default/files/2018-12/ATSI-Strategic-Directions-2015-19.pdf>; Queensland Police Service, Cultural Capability Action Plan (Strategic Document, October 2018) <https://www.police.qld.gov.au/sites/default/files/2020-02/ QPS%20Cultural%20Capability%20Action%20Plan.pdf> (‘Cultural Capability Action Plan’). South Australia Police, Reconciliation Action Plan May 2017 – July 2020 (Strategic Document, 2017) <https://www.police.sa.gov.au/__data/assets/ pdf_file/0003/477741/Reconciliation-Action-Plan-2017-2020.pdf>. Western Australia Police Force, Reconciliation Action Plan: May 2019– December 2020 (Strategic Document, 28 May 2018) https://www.police.wa.gov. au/~/media/Files/Police/Our-Community/Aboriginalaffairs/WA-Police-ForceRAP-FINAL.pdf?la=en> (‘WAPF Reconciliation Action Plan’).

Court of Conscience Issue 15, 2021

69 Tasmania Police, Department of Police and Emergency Management, Aboriginal Strategic Plan 2014-2022 (Strategic Document, 13 February 2014) <https:// www.police.tas.gov.au/uploads/legacy/file/Corporate%20Documents/ Brochures%20%26%20Publications/DPEM%20Aboriginal%20Strategic%20 Plan%202014-2022.pdf> (‘TAS Aboriginal Strategic Plan’). 70 Australian Federal Police, Reconciliation Action Plan 2018–2021 <https://www. afp.gov.au/sites/default/files/PDF/afp-reconciliation-action-plan.pdf> (‘AFP Reconciliation Action Plan’). 71 CALD Inclusion Strategy (n 8); Victoria Police, Equality Is Not the Same: Victoria Police Response to Community Consultation and Reviews on Field Contact Policy and Data Collection and Cross Cultural Training (Report, December 2013) 52–8. 72 New South Wales Police Force, Multicultural Policies and Services Plan 2017– 2020 (Strategic Document, 2017) <https://www.police.nsw.gov.au/__data/assets/ pdf_file/0004/507253/MPSP_Plan_Document_2017_Condensed_D23.pdf>. 73 Queensland Police Service, Language Services Strategy (Strategic Document, June 2011) <https://www.police.qld.gov.au/sites/default/files/2018-12/LangServ Strat20111.pdf>; Queensland Police Service, Multicultural Action Plan 2018–2020 (Strategic Document, October 2018) <https://www.police.qld.gov.au/sites/default/ files/2018-10/QPS%202018-2019%20Multicultural%20Action%20Plan.pdf>. 74 The Western Australian Police Force does not have a specific plan or policy relating to CALD communities, but refers to the general government Charter of Multiculturalism and Languages Services Policy. See ‘Our Community’, Western Australia Police Force (Web Page, 12 October 2021) <https://www.police. wa.gov.au/Our-Community/Community-Diversity-and-Substantive-Equality/ Multicultural-Communities>. 75 The diversity and inclusion strategy, which is incorporated in the Ten Year Strategy, does not specify outcomes or targets to be achieved: Northern Territory Police, Fire and Emergency Services, Ten Year Strategy (n 61). 76 ‘Equality Is Not the Same’, Victoria Police (Web Page, 27 April 2021) <https:// www.police.vic.gov.au/equality-not-same>. 77 New South Wales Police Force, Multicultural Policies and Services Program (MPSP): Implementation Report 2016–2019 (Report, November 2019) <https://www.police.nsw.gov.au/__data/assets/pdf_file/0011/663815/13969_ Multicultural_Policies_and_Services_Program_Plan_Online.pdf> (‘NSWPF Multicultural Policies and Services Program’). 78 Queensland Police Service, Annual Report: Queensland Multicultural Policy and Multicultural Action Plan (Report, November 2020) <https://www.police.qld.gov. au/sites/default/files/2020-11/Multicultural%20Action%20Plan%20Annual%20 Report_QPS.docx> (‘QLDPF Multicultural Policy and Action Plan’). 79 Aboriginal reconciliation is reported annually: see, eg, South Australia Police, Annual Report 2019–20, South Australia Police (Web Page, 29 September 2020) <https://www.police.sa.gov.au/about-us/annual-reporting/annualreport-2019-20> (‘SAPF Annual Report’). 80 There is limited reporting on ‘substantive equality’ measures as part of the annual report. This is required by the Public Sector Commissioner’s circulars: see Western Australia Public Sector Commission, Implementation of the Policy Framework for Substantive Equality (Report, 2015). See also Western Australia Police Force, 2020 Annual Report (Report, 14 September 2020) 213 <https://www.police.wa.gov.au/~/media/Assets/About-Us/Our-Agency/ WAPOLAnnualReport2019/2020Annual-Report-WA-POLICE-FORCE--printfriendly.pdf?la=en> (‘WAPF Annual Report 2019–20’). 81 Diversity and inclusion are included in the annual report: see Northern Territory Police, Fire and Emergency Services, Annual Report, 2019–2020 (Report, 28 August 2020) 79 <https://www.pfes.nt.gov.au/file/download/37363> (‘NTPFE Annual Report’). 82 The annual report only contains diversity and inclusion reporting in relation to gender: Tasmania, Department of Police, Fire and Emergency Management, Annual Report: Department of Police, Fire and Emergency Management 2019-2020 (Report, October 2020) 12 <https://www.police.tas.gov.au/uploads/ DPFEM63777-Annual-Report-2019-20-OP-a_R.pdf> (‘TASPFE Annual Report’). 83 CALD Inclusion Strategy (n 8). 84 New South Wales Police Force, Inclusion & Diversity Strategy 2020–2023 (Strategic Document, September 2020) <https://www.police.nsw.gov. au/__data/assets/pdf_file/0014/723101/NSWPF_Inclusion_and_Diversity_ Strategy_2020-2023.pdf> (‘NSWPF Inclusion Strategy’); New South Wales Police Force, Aboriginal Employment Strategy (Strategic Document, 2017) <https://www.police.nsw.gov.au/__data/assets/pdf_file/0008/533375/NSWPF_ AES_2017.pdf> (‘NSWPF Aboriginal Employment Strategy’). 85 ‘Culturally and Linguistically Diverse Recruiting’, Queensland Police (Web Page, 1 April 2021) <https://www.police.qld.gov.au/culturally-and-linguisticallydiverse-recruiting>; ‘Indigenous Entry Pathway’, Queensland Police (Web Page, 3 December 2020) <https://www.police.qld.gov.au/indigenous-entry-pathway>. See also Cultural Capability Action Plan (n 66). 86 ‘People from Diverse Backgrounds’, South Australia Police (Web Page) <https://www.police.sa.gov.au/join-us/achievemore/police-officer-careers/ people-from-diverse-backgrounds>. 87 The Western Australia Police Force has the Aboriginal Cadet Program and Police Preparation Program for trainees from CALD backgrounds: see ‘Diversity in the Ranks’, Western Australia Police Force (Web Page, 29 August 2019) <https:// www.police.wa.gov.au/About-Us/News/Diversity-in-the-Ranks>; Western Australia Police Force, 2019 Annual Report (Report, 13 September 2019) 29 <https://www.police.wa.gov.au/~/media/Assets/About-Us/Our-Agency/ WAPOLAnnualReport2019/188026-WAPOL-Annual-Report-2019_Electronicincorp-OAG-revision-changes.pdf?la=en> (‘WAPF Annual Report 2018–19’).

88 See TAS Aboriginal Strategic Plan (n 69) 8. See also Emily Jarvie, ‘New Tasmania Police Campaign Seeks Culturally Diverse Recruits’, The Transcontinental (Port Augusta, 11 July 2020). 89 Australian Federal Police, AFP Reconciliation Action Plan Innovate 2018-2020: Summary Achievements (Report, 2018) <https://www.afp.gov.au/sites/default/ files/PDF/AFP-RAP-Summary.pdf>. 90 CALD Inclusion Strategy (n 8). See also ‘Gender Equality and Inclusion Command’, Victoria Police (Web Page, 27 April 2021) <https://www.police.vic. gov.au/gender-equality-and-inclusion-command>. 91 NSWPF Inclusion Strategy (n 84). 92 WAPF Reconciliation Action Plan (n 68) 18. 93 AFP Reconciliation Action Plan (n 70). 94 Victoria Police, Cultural, Community and Diversity Education Strategy 2015–2016 (Strategic Document, 2015) <https://www.police.vic.gov.au/sites/default/files/ 2019-01/Diversity-Eduation-Strategy-2015.pdf>; CALD Inclusion Strategy (n 8). 95 NSWPF Inclusion Strategy (n 84). 96 QLDPF Multicultural Policy and Action Plan (n 78) 1; Legal Affairs and Safety Committee, Queensland Parliament, Estimates Hearing, Questions on Notice: Minister for Police and Minister for Corrective Services (Report No 18, 26 July 2018) 2. 97 Peter Whellum, Amanda Nettelbeck and Alexander Reilly, ‘Cultural Accommodation and the Policing of Aboriginal Communities: A Case Study of the Anangu Pitjantjatjara Yankunytjatjara Lands’ (2020) 53(1) Australian and New Zealand Journal of Criminology 65. 98 Juli Coffin, Gillian Kennedy and Julie Owen, ‘Cultural Security Audit for WA Police’ (Research Report, University of Notre Dame, March 2018) 23–4. 99 Northern Territory Police, Recruit Constable Information Booklet Careers in Policing (Information Booklet, 2021) 7 <https://pfes.nt.gov.au/sites/default/files/ uploads/files/2021/Constable%20Information%20Booklet%202021.pdf>. 100 TAS Aboriginal Strategic Plan (n 69) 8. 101 AFP Reconciliation Action Plan (n 70). 102 ‘Reference Groups’, Victoria Police (Web Page, 27 April 2021) <https://www. police.vic.gov.au/reference-groups>; Victoria Police, Equality is Not the Same … Phase Two Annual Report Card 2017–18 (Report, 2018) 5 <https://www.police. vic.gov.au/sites/default/files/2019-01/ENS-YearinReview-FactSheet-WEB.pdf>. 103 New South Wales Police Force, ‘Cultural Diversity’, New South Wales Police Force (Web Page) <https://www.police.nsw.gov.au/safety_and_prevention/ your_community/cultural_diversity>. The New South Wales Police Force also has three Aboriginal advisory committees: see NSWPF Aboriginal Employment Strategy (n 84). 104 ‘Police Ethnic Advisory Group’, Queensland Police (Web Page, 16 August 2019) <https://www.police.qld.gov.au/police-and-the-community/culturalengagement-unit/police-ethnic-advisory-group>; ‘Indigenous Community and Police Consultative Groups’, Queensland Police (Web Page, 16 August 2019) <https://www.police.qld.gov.au/police-and-the-community/ cultural-engagement-unit/indigenous-community-police-consultative-groups>. 105 WAPF Annual Report 2018–19 (n 87) 28. 106 See, eg, NTPFE Annual Report (n 81) 20. 107 See, eg, ‘Aboriginal and Torres Strait Islander Liaison Officers’, Australian Federal Police (Web Page) <https://www.police.act.gov.au/about-us/ programs-and-partners/aboriginal-and-torres-strait-islander-liaison-officers> (‘Aboriginal and Torres Strait Islander Liaison Officers’);; ‘Culture and Diversity’, Australian Federal Police (Web Page) <https://jobs.afp.gov.au/work-with-us/ culture-and-diversity>. 108 ‘Structure’, Victoria Police (Web Page, 27 April 2021) <https://www.police.vic. gov.au/structure>. 109 New South Wales Police Force, Annual Report 2019–2020 (Report, 30 November 2020) 6 <https://www.police.nsw.gov.au/__data/assets/pdf_ file/0009/736308/NSWPF_2019-20_Annual_Report.pdf>. 110 Queensland Police Service, 2019–2020 Annual Report (Report, 23 September 2020) 42 <https://www.police.qld.gov.au/sites/default/files/2020-09/QPS-AR2019-20-Full-Report.pdf>. 111 South Australia Police, ‘Organisational Structure Chart’ (Report, 22 March 2021) <https://www.police.sa.gov.au/__data/assets/pdf_file/0005/948632/SAPOLORG-CHART-March-2021.pdf>. 112 WAPF Annual Report 2019–20 (n 80) 9. 113 ‘Executive Leadership’, Northern Territory Fire and Emergency Services (Web Page) <https://pfes.nt.gov.au/corporate/executive-leadership>. 114 TASPFE Annual Report (n 82) 12. 115 Australian Federal Police, ‘Australian Federal Police Organisation’ (Organisation Chart, 1 June 2021) <https://www.afp.gov.au/sites/default/files/PDF/ AFPOrgStructure.pdf>. 116 ‘Aboriginal Community Liaison Officers’, Victoria Police (Web Page, 21 April 2021) <https://www.police.vic.gov.au/ aboriginal-community-liaison-officer-program>. 117 ‘Aboriginal Persons and Communities’, New South Wales Police Force (Web Page) <https://www.police.nsw.gov.au/safety_and_prevention/your_community/ aboriginal_persons_and_communities>. 118 See, eg, Queensland Police Service, ‘Organisational Structure’ (Organisation Chart, 13 May 2021) <https://www.police.qld.gov.au/sites/default/files/2021-05/ QPS-Organisational-Chart-2021.pdf>. 119 ‘Working as a Community Constable’, South Australia Police (Web Page) <https://www.police.sa.gov.au/join-us/achievemore/ community-constable-careers/working-as-a-community-constable>.

Tienyi Long, Inclusion and Diversity in the Police Force

120 See, eg, ‘Our Communities’, Western Australia Police (Web Page, 12 October 2020) <https://www.police.wa.gov.au/Our-Community/Aboriginal-Communities>. See also Brooke Fryer, ‘What We Can Learn from Australia’s Only IndigenousRun Police Station’, SBS News (online, 12 June 2020) <https://www.sbs.com.au/ news/what-we-can-learn-from-australia-s-only-indigenous-run-police-station>. 121 The Northern Territory have an Aboriginal and Torres Strait Development Unit, Aboriginal Community Police Officers and Aboriginal Liaison Officers: see NTPFE Annual Report (n 81) 79. 122 TAS Aboriginal Strategic Plan (n 69) 4. 123 There are Aboriginal and Torres Strait Islander Liaison Officers specifically for policing services in the Australian Capital Territory: see ‘Aboriginal and Torres Strait Islander Liaison Officers’ (n 107). 124 ‘Cultural Diversity’ New South Wales Police Force (Web Page) <https://www. police.nsw.gov.au/safety_and_prevention/your_community/cultural_diversity>. 125 ‘Cultural Engagement Unit’, Queensland Police (Web Page, 19 November 2020) <https://www.police.qld.gov.au/police-and-the-community/cultural-engagementunit> (‘Cultural Engagement Unit’); ‘Cross Cultural Liaison Officers’, Queensland Police (Web Page, 16 August 2019) <https://www.police.qld.gov.au/police-andthe-community/cultural-engagement-unit/cross-cultural-liaison-officers>. 126 NSWPF Multicultural Policies and Services Program (n 77). 127 ‘Cultural Engagement Unit’ (n 125). 128 SAPF Annual Report (n 79). 129 WAPF Annual Report 2019–20 (n 80) 26. 130 NTPFE Annual Report (n 81) 28. 131 Community programs site does not provide information about engagement with multicultural communities: see ‘Programs’, Tasmania Police (Web Page) <https://www.police.tas.gov.au/programs/>. 132 ‘Building Relationships’, Australian Federal Police (Web Page) <https://www. afp.gov.au/what-we-do/community-engagement/building-relationships>; Jason Narvoska, ‘On the Blog: Working with Our Multicultural Community’, Australian Federal Police (Blog Post, 9 February 2017) <https://www.policenews.act.gov. au/news/blog/blog-working-our-multicultural-community>. 133 Dawson (n 55). 134 See, eg, Ekermawi v Commissioner of Police, NSW Police Force [2019] NSWCATAD 79; NSW Police Force, ‘For the Record’, New South Wales Police Force (Blog Post, 4 June 2019) <https://www.police.nsw.gov.au/news/ for_the_record>. 135 See, eg, State of Queensland, ‘Respondents’ Closing Submissions’, Submission in Wotton v State of Queensland, QUD 535/2013, 27 April 2016, [160], [211], [229], [242], [270], [290], [307], [317]–[322], [539]–[542]. 136 See, eg, Department of the Prime Minister and Cabinet, Review of the Implementation of the Royal Commission into Aboriginal Deaths in Custody (Report, August 2018); Rania Spooner and Nino Bucci, ‘Police Pledge on Racial Bias’, The Age (online, 31 December 2013) <https://www.theage. com.au/national/victoria/police-pledge-on-racial-bias-20131230-303b1. html#ixzz2qtl32ZHy>; Flemington Kensington Community Legal Centre, Analysis of the ‘Equality Is Not the Same’ and Consultant Reports (Position Paper, February 2014) <https://www.policeaccountability.org.au/wp-content/ uploads/2014/03/Analysis-of-the-Vicpol-Equality-Report-for-Stakeholders.pdf>. 137 See McKernan (n 19) 162; Stephane Shepherd, ‘Why Diversity May Not Mend Adversity: An Australian Commentary on Multicultural Affirmative Action Strategies in Law Enforcement’ (2014) 26(2) Current Issues in Criminal Justice 241. 138 NSWPF Inclusion Strategy (n 84) 6. 139 Malin Wieslander, ‘Controversial Diversity: Diversity Discourses and Dilemmas among Swedish Police Recruits’ (2020) 30(8) Policing and Society 873, 879. 140 See McKernan (n 19) 159. 141 Ibid 173–6; Rourke Walsh, ‘Aboriginal Police Officer Pinpoints Shocking Racism on the Force’, The West Australian (online, 11 May 2019) <https://thewest.com. au/news/wa/aboriginal-police-officer-pinpoints-shocking-racism-on-the-forceng-b881193483z>; Veronica Gorrie, Black and Blue: A Memoir of Racism and Resilience (Scribe Publications, 2021). 142 Michael Rowe, Policing, Race and Racism (Willan, 2004); Ellis Cashmore, ‘Behind the Window Dressing: Ethnic Minority Police Perspectives on Cultural Diversity’ (2002) 28(2) Journal of Ethnic and Migration Studies 327, 332–3. 143 See, eg, ‘Aboriginal Recruitment’, New South Wales Police Force (Web Page) <https://www.police.nsw.gov.au/recruitment/the_career/atsi>; ‘Victoria Police Diversity Recruitment Program’, Jesuit Social Services (Web Page) <https://jss. org.au/victoriapolicediversity/>. 144 See McKernan (n 19). 145 See, eg, CALD Inclusion Strategy (n 8) 16, which provides that Victoria Police will ‘identify and mentor employees of CALD heritage with leadership qualities’. 146 See, eg, ‘AFP Staff Statistics’, Australian Federal Police (Web Page, 1 April 2019) <https://www.afp.gov.au/news-media/facts-and-stats/afp-staffstatistics>; Victoria Police, Gender Equality Strategy and Action Plan 2017-2020 (June 2017) <https://www.police.vic.gov.au/sites/default/files/2019-08/VICPOL Gender Equality Strategy %26 Action Plan 2017-2020.pdf>; CALD Inclusion Strategy (n 8); NSWPF Aboriginal Employment Strategy’ (n 84).

147 See, eg, Selina Ross, ‘Actively Recruiting for Diversity is Spicing Up the Ranks of Tasmania Police’, ABC News (online, 20 December 2020) https:// www.abc.net.au/news/2020-12-20/tasmania-police-diversity-growing-in-theranks/13001524>; ‘Harmony Week: Meet Constable Esther Kim’, myPolice Queensland Police News (Web Page, 15 March 2021) <https://mypolice.qld. gov.au/news/2021/03/15/harmony-week-meet-constable-esther-kim/>; Luke Waters and Matt Connellan, ‘Victoria Police Aiming to Increase Diversity with New Recruitment Drive’, SBS News (online, 21 March 2018) <https://www. sbs.com.au/news/victoria-police-aiming-to-increase-diversity-with-newrecruitment-drive/8fb6755a-93dd-47e8-81f8-803af3d57fb7>. 148 CALD Inclusion Strategy (n 8); NSWPF Aboriginal Employment Strategy’ (n 84). 149 Norma Riccucci, Gregg van Ryzin and Karima Jackson, ‘Representative Bureaucracy, Race, and Policing: A Survey Experiment’ (2018) 28(4) Journal of Public Administration Research and Theory 506; Sounman Hong, ‘Representative Bureaucracy, Organizational Integrity, and Citizen Coproduction: Does an Increase in Police Ethnic Representativeness Reduce Crime?’ (2015) 35(1) Journal of Policy Analysis and Management 11. 150 See, eg, Karen D Pyke, ‘What Is Internalized Racial Oppression and Why Don’t We Study It? Acknowledging Racism’s Hidden Injuries’ (2010) 53(4) Sociological Perspectives 551; Karen Pyke and Tran Dang, ‘“FOB” and “Whitewashed” Identity and Internalized Racism among Second Generation Asian Americans’ (2003) 26(2) Qualitative Sociology 147; Ali Shahbaz, ‘Non-Black Minorities Are Complicit in Black Oppression’, Boston Globe (online, 19 June 2020) <https://www.bostonglobe.com/2020/06/19/opinion/ non-black-minorities-are-complicit-black-oppression/>. 151 Shepherd (n 137); Sean Nicholson-Crotty, Jill Nicholson-Crotty and Sergio Fernandez, ‘Will More Black Cops Matter? Officer Race and Police-Involved Homicides of Black Citizens’ (2017) 77(2) Public Administration Review 206. 152 Cashmore (n 142) 333. 153 For an overview of community policing and the evolution of policing, see Jacqueline Drew and Tim Prenzler, Contemporary Police Practice (Oxford University Press, 2015) 1–20, 83–100. 154 Kyle Peyton, Michael Sierra-Arévalo and David Rand, ‘A Field Experiment on Community Policing and Police Legitimacy’ (2019) 116(40) Proceedings of the National Academy of Sciences of the United States of America 19894. 155 Kevin M Dunn et al, ‘Can You Use Community Policing for Counter Terrorism? Evidence from NSW, Australia’ (2016) 17(3) Police Practice and Research 196; Rocio Alejandra Paez and Rick Dierenfeldt, ‘Community Policing and Youth Offending: A Comparison of Large and Small Jurisdictions in the United States (2020) 25(1) International Journal of Adolescents and Youth 140. 156 See, eg, ‘Accessibility’, Western Australia Police Force (Web Page, 20 November 2018) <https://www.police.wa.gov.au/Accessibility>. 157 Cunneen (n 32) 221. For an overview of colonialism and its impact, see Chris Cunneen and Juan Tauri, Indigenous Criminology (Policy Press, 2016) 45–66. 158 McKernan (n 19). 159 Cunneen (n 32) 209. 160 Adrian Cherney and Wing Hong Chui, ‘The Dilemmas of Being a Police Auxiliary: An Australian Case Study of Police Liaison Officers’ (2010) 20(3) Policing and Society 180, 182–3. 161 Leanne Weber, ‘Bridges or Bandaids? Another Death in Police Custody Reveals Fatal Flaws in the Aboriginal Liaison Officer Concept’ (2007) 19(2) Current Issues in Criminal Justice 235. 162 Janet Chan, Changing Police Culture: Policing in a Multicultural Society (Cambridge University Press, 1997) 144–7. 163 Cf Cunneen (n 32) 207–8. 164 See Julian Clark and Barry Friedman, ‘Community Advisory Boards: What Works and What Doesn’t (Lessons from a National Study)’ (2020) 47(2) American Journal of Criminal Law 159; Charles McDonald, ‘From Tokenism to Partnership’ (Research Paper, Education Cities, 2018); John Reece and Judy Macy, ‘Citizen Advisory Boards in Contemporary Practice: A Practical Approach in Policing’, Police Chief Magazine (online, October 2015) <https://www. policechiefmagazine.org/citizen-advisory-boards-in-contemporary-practice-apractical-approach-in-policing/>. 165 See, eg, Gabrielle Knowles and Tom Zaunmayr, ‘WA Police Union Wary of Groundbreaking Apology to Aboriginal People’, The West Australian (online, 13 July 2018) <https://thewest.com.au/news/wa/wa-police-union-wary-ofgroundbreaking-apology-to-aboriginal-people-ng-b88893706z>. 166 McKernan (n 19); Nicholas Alex, New York Cops Talk Back: A Study of a Beleaguered Minority (John Wiley & Sons, 1976). 167 There have been calls for data collection to assist in monitoring and preventing racial profiling: see Tamar Hopkins, Submission No 10 to Integrity and Oversight Committee, Parliament of Victoria, Inquiry into the Educative and Prevention Functions of IBAC and Other Agencies (21 August 2020); Police Stop Data Working Group, Flemington & Kensington Community Legal Centre, Monitoring Racial Profiling: Introducing a Scheme to Prevent Unlawful Stops and Searches by Victoria Police (Report, August 2017).

Court of Conscience Issue 15, 2021

Fight the Power Defamation as a Weapon Against Systemic Racism?

Stewart O’Connell

Stewart O’Connell is a senior defamation solicitor with O’Brien Criminal and Civil Solicitors in Sydney. He worked for the Aboriginal Legal Services in the Northern Territory for thirteen years and was the National Children’s and Youth Law Centre’s National Lawyer of the Year for Aboriginal Youth in 2000. In 2007, he was the Senior Project Officer on the Board of Inquiry into Child Sexual Abuse in Aboriginal Communities in the Northern Territory. He has lectured advocacy at ANU and UNSW. He now runs a busy national defamation practice while continuing to advocate on behalf of Indigenous peoples and against systemic racism.

The media’s the most powerful entity on earth. They have the power to make the innocent guilty and to make the guilty innocent, and that’s power. Because they control the minds of the masses. Malcolm X Throughout my legal career, I have worked with and for, and socialised with, many Indigenous Australians. Without exception, each person has expressed in one way or another that they felt that Australian society did not value their lives in the same way that white Australians’ lives were valued. These feelings were often felt most acutely in the context of the legal system. Consequently, it appears to me that Indigenous people feel they are more likely than white people to suffer at the hands of the punitive side of the law, and less likely than white people to benefit from the protective and remedial side of the law. On top of that, based on my experience, it is much easier for white Australians to access and navigate the legal system, an arena that is still foreign and confusing for many Indigenous Australians. There have been numerous reports over the last few decades that have verified not only the existence of these feelings, but also the existence of systemic racism within the Australian legal system and other institutions that impact the lives of Indigenous people.1 I worked on the Board of Inquiry into the Protection of Aboriginal Children from Sexual Abuse and contributed to writing the report that came from that Inquiry, the Little Children are Sacred Report.2 The Board of Inquiry identified systemic racism as a key factor as to why Indigenous children were not being as protected as they could be, and made 97 recommendations aimed at bringing about positive systemic change. Instead of such change, Indigenous Australians got an additional dose of systemic racism in the form of the Intervention, yet another paternalistic policy that served to criminalise Indigenous Australians further.3 I also represented a number of children in the Royal Commission into the Protection and Detention of Children in the Northern Territory.4 That Royal Commission also recognised systemic racism as a key factor as to why Indigenous children were being taken into care and being detained.5 Again, recommendations were made aimed at positive systemic change. Again, over three years later, very little has been done to implement that change.6 I was not surprised at the huge number of protesters that were amassed in Australian cities in June 2020 to support the Black Lives Matter (‘BLM’) movement. Nor was I surprised by the content of SBS’s recent powerful documentary, Incarceration Nation.7 The protests and the program merely demonstrated that the frustration and anger against systemic racism extend beyond America and is felt just as strongly by Black, predominantly Indigenous, Australians.

Court of Conscience Issue 15, 2021

My experiences have led me to the view that ridding society and the legal system of systemic racism is likely to be a long, slow process that is unlikely to ever be fully successful. Unfortunately, racism is deeply ingrained in Australian society. We have a pattern of doing the bare minimum, reacting to an extreme example (eg, seeing a child in a restraint chair), conducting an inquiry, then doing the bare minimum again until the next extreme example. Until this pattern is broken, there are, however, always small but significant things that we as lawyers and law students can be doing right now. On 13 July 2013, Alicia Garza sparked the BLM movement with her simple but incendiary words, ‘I continue to be surprised at how little Black lives matter … Black people. I love you. I love us. Our lives matter’. 8 If it had not before, the BLM movement has ensured that the onus is now squarely on everyone to be alert to anything that diminishes black lives and to try and do something about it. This can be difficult in a practical sense. The insidious nature of systemic racism makes it very difficult to prove, the institutions perpetuating it will often deny its existence and it is often not clear what the remedies are for the individuals affected by it. On numerous occasions, I have personally become aware of specific incidents of media reporting that have resulted in Indigenous persons feeling deeply upset, unfairly treated, and diminished in the eyes of the broader community. Until I commenced practising in the field of defamation, I had not considered that, short of advocating for massive systemic change, there was anything I could do that might assist in bringing some more immediate relief in these circumstances. This article outlines four instances where, in my opinion, systemic racism in the media diminished the lives of Indigenous people: by misreporting a positive public appearance; misusing footage filmed for a positive purpose; bowing to and feeding the stereotypes of the angry activist; the juvenile delinquent and the dysfunctional community; and failing to protect a vulnerable Indigenous youth from a social media pile-on. In each case, the law of defamation was used to fight back against the perceived systemic racism and demonstrate that Indigenous lives do indeed matter. I

The Australian Media and Indigenous Australians

Only 3.3% of the Australian population identify as Indigenous, and according to Reconciliation Australia, 60% of Australians have never met an Indigenous person.9 Add to that a lack of Indigenous perspectives in the classroom, or only tokenistic inclusion,10 and it is clear that the portrayal Australians see through the media is often the only glimpse they have into the lives of Indigenous Australians. Consequently, the mass media wields extraordinary power to influence how Indigenous Australians are portrayed and perceived. Since the first European settlement in Australia, Indigenous Australians have generally been perceived as either noble and traditional beings distant from the modern world, or as a savage threat to European ideals.11 In short, the dynamic has been ‘us and them’. In 1990, the federal government conducted a National Inquiry into Racist Violence. Many people complained to the Inquiry about alleged racism in media reporting.12 This was recognised by the Inquiry as being due, in part, to there often being a gap between many white media representations of Indigenous people and Indigenous perspectives of their own situations.13 In 1992, a systematic survey of Australian mainstream media, including television, news, and radio, found that ‘the exclusion of (non-stereotyped) diversity is almost total in all the media studied’ and that the only highly reported issues relating to multiculturalism (including but not limited to Indigenous issues) were immigration and Indigenous land rights, both of which were presented as ‘problems for the majority culture’.14 When the landmark Mabo v Queensland (No 2)15 decision was handed down by the High Court in 1992, the media, more often than not, portrayed it as a potential threat to the population as a whole, as opposed to belated justice for Indigenous Australians.16 It is no secret that throughout history, the mass media, in its various forms, has tended to support the power of the dominant group by presenting to the general public highly negative, emotion-evoking images of minority groups.17

Stewart O’Connell, Fight the Power

It is also no secret that in Australia, those in power in the media are predominantly white and cater to a predominantly white audience and culture. As American academics Joshua Miller and Anne Marie Garran note, The saturated ubiquity of whiteness in the media promulgates a covert, ongoing narrative of racism, while rarely drawing attention to racism as a central social problem. It is nearly impossible to withdraw or escape from this unending drumbeat of culture, style, morality, and meaning. It is the cloak that shrouds and obscures the web of racism by normalizing it. Recognizing, decoding, and resisting takes a great deal of time and effort.18 While things may well have improved since the 1990s, the cases below indicate that we still have a long way to go. II

Defamation

There are four essential elements to a cause of action in defamation:19 1. 2. 3. 4.

Publication; Identification; Defamatory meaning; and Serious harm.

The general test for whether an imputation is defamatory is whether a person’s standing in the community, or the estimation in which people hold that person, has been lowered or simply whether the imputation is likely to cause people to think less of a plaintiff.20 The serious harm element was added to the Defamation Act 2005 in NSW on 1 July 2021.21 It is an element that has existed in the United Kingdom for a number of years and the case law in that jurisdiction has stated that the question of whether serious harm has been suffered must be determined by reference to actual facts i.e. the impact of the statement and not just the meaning of the words.22 This element was not a factor in any of the below examples. However, even if it was, my professional opinion is that we would have had no difficulty establishing it as all the Indigenous persons impacted would have been able to give compelling evidence of the mental and emotional harm they suffered as a result of the publications. Establishing the four elements is only the first step in determining whether a potential plaintiff in a defamation action is likely to succeed. There are a number of unique defences that might be raised to a claim of defamation. It is beyond the scope of this article to go into those defences; it suffices to say that the primary means of defending a claim of defamation is to prove that the defamatory meaning is true. The remedy the court can provide for winning a defamation case is ‘damages’ in the form of monetary compensation to be paid by the defendant. The purpose of awarding damages is to provide consolation for the person harmed, act as vindication for the person harmed, and act as reparation.23 The amount of damages can be increased when the conduct of the defamer aggravates the injury to the defamed. This may include conduct prior to publication, conduct after publication, and conduct at the trial itself. When settling a case before trial, a settlement may include the deleting of the defamatory material, if it is online, and a public retraction and apology as well as compensation. III

Limitations and Advantages

The law of defamation is designed to protect the reputations of individuals.24 In itself, the law of defamation is not designed to ensure that Indigenous people generally are protected from or compensated for systemic racism. However, it is arguable that each of the cases below has had an impact that extends beyond the immediate outcome for those directly involved, in that it resulted in a degree of accountability, and in some cases, adverse publicity that would act as a warning to media generally to be more mindful as to the possible influence of systemic racism on their reporting.

Court of Conscience Issue 15, 2021

It is also arguable that defamation is a more effective weapon than other possible remedies, such as action under s 18C of the Racial Discrimination Act 1975 (Cth) (‘RDA’). In Eatock v Bolt,25 the Federal Court found that two articles written by Andrew Bolt contravened s 18C of the RDA. The consequence was that the Herald Sun was required to publish a ‘corrective notice’ as specified in the judgment, and the Herald Sun and Bolt were restrained from republishing the offending articles, but not from saying the same things in different articles.26 The offending articles still remain online. These remedies are notably insubstantial and considerably less onerous than damages. In the cases below, I chose defamation as the weapon of choice as the threat of damages is, in my experience, the one legal threat that inspires accountability greater than any other. In some of these cases, I also utilised s 18C of the RDA but as an adjunct to the defamation claim. ‘ Stirring’ Up Trouble In 2012, the ABC’s nationally broadcasted AM program included a segment stating that at the 40th anniversary commemoration of the Aboriginal Tent Embassy in Canberra, Anmatyerre Elder and activist Rosalie Kunoth-Monks OAM had, during a speech to the crowd, made inflammatory comments and stirred up trouble. In particular, it was alleged that, as the President of the Barkly Shire in the Northern Territory (‘NT’), she had called the community she represented ‘racist’.27 By the time of the broadcast, it was common knowledge that some people from the Tent Embassy rally had staged an impromptu protest at the Lobby restaurant. This resulted in significant police presence and the eventual escorting of thenPrime Minister Julia Gillard by security personnel into a waiting car because of concerns for her safety, in the course of which Ms Gillard lost a shoe, earning her the title ‘Gingerella’ amongst the protesters.28 Ms Kunoth-Monks was not present at that protest, but the implication in the ABC report was that she had contributed to ‘stirring it up’ by calling the community she represented as ‘racist’.29 The allegations against Ms Kunoth-Monks were based on what the ABC was told by a young NT politician who had been in the vicinity at the relevant time. Ms Kunoth-Monks contacted me in a state of extreme distress. She said she had spoken calmly but passionately at the Tent Embassy about the plight of her people, yet, in the media, she was essentially reduced to a stereotype of an angry black woman stirring up trouble by calling people racists. She felt that her standing in the community had been lowered. The first thing I did was listen to a recording of Ms Kunoth-Monks’ speech. This is a version of that speech: A

Justice Dean Mildren, who presided over the trial, listened to Ms KunothMonks’ speech and the speeches of others leading up to hers, and concluded: The overall impression was that there was still a need for Aboriginal people to fight for equality, justice, better housing and social services, the preservation of Aboriginal culture and identity, and self-determination, and that this was an occasion to remember their past leaders who had fought for change, and the need to ensure that there would be future leaders who could carry on the fight.32 The trial went for five days in Alice Springs and culminated in a judgment in favour of Ms Kunoth-Monks.33 Justice Mildren stated: I do not have any doubt that it would lower the plaintiff’s estimation in the minds of ordinary right-thinking Australians for her to deliberately stir up trouble by stating that her own community was racist.34 Justice Mildren went on to find that the ABC had failed to establish the truth of the above imputation (given the content of the speech, how could they?) and that they had no other successful defences to that imputation. 35 Through the use of the law of defamation, Ms Kunoth-Monks felt that she had been vindicated.36 The Judge also awarded Ms Kunoth-Monks $125,000 in damages, plus her legal costs to be paid by the ABC.37 In my opinion, systemic racism created an environment that permitted a story like this one to be run without the proper checking of facts and actual sources. I believe it also contributed to influencing what the NT politician believed she had heard and to what the reporter was prepared to believe. One would hope that, after losing this case, the ABC reflected on these things. In this way, Ms Kunoth-Monks’ case could be an example of how a defamation action on an individual, ostensibly micro scale, could potentially compel accountability at a macro level. Then again, whilst this was a significant win by an Indigenous person against a media giant, it failed to generate the same publicity seen in defamation cases involving people like Geoffrey Rush or Rebel Wilson.

… thinking of the plight of the first Australians this Australia Day still brings a lot of pain … The acknowledgement of black people as the first residents of this land is denied by our government. The acknowledgement of the fact that … one of the oldest cultures in the world still continuing. There certainly isn’t pride or goodwill shown by our government. I think this is a crying shame. It is also a heartless uncaring attitude by those who are supposed to be representing us … I would like to say a few words in Albert Namatjira and my language … ‘Today I see you all, those that live here, 40 years you’ve sat here, for 40 years you’ve spoken in vain to the government. This place is also Aboriginal peoples. We still do not understand as we continue talking. This language is precious.’ (Translated from Arrernte.) This is the first language of the land of Australia. And with that brothers and sisters, if you will excuse me, I will end it.30 It is ironic that, in her speech, Ms Kunoth-Monks seems to be touching on issues that are directly relevant to questions of systemic racism, but in doing so, ultimately becomes another victim of it. I was at a loss to understand why the ABC would run the report they did when it appeared that they had not even heard the speech and they had not in fact spoken directly to Ms Kunoth-Monks. I consequently accepted instructions from Ms Kunoth-Monks to institute a defamation action in the NT Supreme Court. One of the imputations pleaded at trial was that the plaintiff demeaned her local community by accusing it publicly of being racist.31

Stewart O’Connell, Fight the Power

Court of Conscience Issue 15, 2021

‘ Caged Delinquent’ B In 2017, the Centralian Advocate (the flagship Murdoch publication in Alice Springs) published a full-page coloured photograph of an 11-year-old Indigenous boy, Darren.38 The photo showed Darren close up, peering through a chain mail fence, and mentioned his full name.39 The headline to the article was ‘YOUTH CRISIS: TOWN SPLIT OVER KIDS’. The article itself concerned an Alice Springs Councillor’s intention to introduce a curfew ‘as the youth presence on Alice Springs streets seems to worsen’. The background leading up to the taking of the photograph was as follows. It was school holidays, and Darren and his brother had been dropped off at the Youth Community Centre by his father so that they could engage in activities with cousins and friends. No permission was sought by the Centralian Advocate from Darren or his parents before the picture was taken or before it was published. Again, like the above example, this raises issues of potential breaches of the Media, Entertainment & Arts Alliance (MEAA), Journalist Code of Ethics and the Australian Press Council Statement of General Principles.40 The problem is that neither code is enforceable, which only serves to further highlight defamation action as a viable option for redress. When the publication came to the attention of Darren’s parents, they were deeply embarrassed and distressed. To them, and many others, it portrayed Darren as being a criminal who had been caged behind a fence. They felt it lowered the estimation of Darren and his family in the eyes of the community. I consequently accepted instructions from the family to institute a defamation action in the NT Supreme Court. The Statement of Claim filed with the NT Supreme Court against the Centralian Advocate stated that the publication implied the boy was ‘a criminal, a delinquent, that he is imprisoned or detained, and that he is contributing to a crisis situation’. That matter ultimately settled out of court, and the terms of that settlement are confidential.41 It is inexplicable that a young boy having harmless school holiday fun turns into a front-page photo that, in my opinion, was intended to depict a juvenile delinquent caged by a wire fence. The media would never dare to exploit the image of a white child in the same way for the purpose of a sensationalised story as they know that there would likely be consequences. Yet, as with the other cases profiled here, it appears Indigenous people are fair game for misrepresentation due to the lack of accountability for media organisations and the prevailing status quo that equates Indigeneity with dysfunctionality. Again, in this case, the hope is that the defamation action forced some accountability upon the relevant media organisation and that it may in future give them pause before using an Indigenous child in this manner. C ‘ Violent Criminal’ On 25 July 2016, the ABC Four Corners program aired an episode about the treatment of children in detention in the NT.42 That segment featured chilling and now infamous footage of an Indigenous youth, Dylan Voller, strapped and cuffed to a mechanical restraint chair with his head covered by a spit mask. Dylan was a primary witness in the subsequent Royal Commission into the Protection and Detention of Children in the Northern Territory.43 Consequently, there were numerous reports in the media featuring Dylan, with headlines such as ‘Dylan Voller’s list of jailhouse incidents tops 200’44 and ‘Dylan Voller’s violent past detailed at Don Dale Royal Commission’.45 Such reports were often posted on the Facebook pages of media companies, on platforms where the public could comment. Predictably, many comments launched into abusive, vitriolic and sometimes racist tirades against then 19-yearold Dylan, which deeply affected his mental health, culminating in allegations he had committed specific and highly serious violent and sexual crimes. These allegations were complete fabrications. I was approached by Dylan seeking legal redress and we launched defamation proceedings in 2017 against The Sydney Morning Herald, The Australian, the Centralian Advocate and Sky News Australia. The media companies argued that they should not be held responsible for comments made by the general public. Rather, it should be the responsibility of the individual affected to scour the media companies’ Facebook pages for defamatory material and alert them to it so they can remove it. Our response was that, if a media entity created a platform such as a public Facebook page and posted

Stewart O’Connell, Fight the Power

content that is reasonably likely to invoke negative commentary, then that entity should have a responsibility to monitor any comments and remove any defamatory material. In my opinion, this responsibility should increase when the subject of the commentary is vulnerable, such as an Indigenous youth. At first instance, Justice Rothman in the Supreme Court of NSW agreed with us, finding that the media companies were publishers and noting: … the operation by the defendant, in each of these proceedings, of their public Facebook page has little to do with freedom of speech or the exchange of Ideas … Rather, the media companies’ use of a public Facebook page is about their own commercial interests … Each defendant was not merely a conduit of the comment. It provided the forum for its publication and encouraged, for its own commercial purposes, the publication of comments. 46 The NSW Court of Appeal agreed,47 and ultimately so did the High Court.48 Justices Gageler and Gordon stated: … the appellants’ attempt to portray themselves as passive and unwitting victims of Facebook’s functionality has an air of unreality. Having taken action to secure the commercial benefit of the Facebook functionality, the appellants bear the legal consequence.49 In reaching their conclusion, the High Court did not make new law, but rather reaffirmed a 200-year-old principle that if a person (including a media company) ‘has intentionally lent his assistance to [a publication’s] existence for the purpose of being published, his instrumentality is evidence to show a publication by him’.50 In short, by intentionally setting up a Facebook page, posting content on it and encouraging people to comment on that content, the media companies had intentionally lent their assistance to the publication of the comments. This is not the end of this particular matter as the media companies may still argue that they had certain defences. Unlike the other case studies presented here, the actual reporting by the media was not defamatory but some of the public comments in response to the reporting were. The problem, as we saw it from a policy perspective, was that the media organisations failed to accept responsibility for providing a platform for racist and defamatory content from members of the general public that was targeted at a young and vulnerable Indigenous youth. At the very least, our view is that these organisations had a duty to constantly monitor their Facebook pages and ensure objectionable content was removed. There appeared to be no understanding, acceptance or care that opening up an Indigenous youth to a public attack that included racism and defamation could have serious consequences for his mental health. The media’s lack of accountability in gatekeeping their own social media pages again potentially reflects how systemic racism fosters indifference to the reputation and character of Indigenous Australians. Further, the tragedy of the overrepresentation of Indigenous Australians in the prison system is too often exploited to feed stereotypes of the supposed intrinsic criminality and anti-social behaviour of Indigenous people. Consequently, in many pockets of the community, Dylan Voller will forever be maligned as a criminal and a prisoner and nothing beyond that. In the context of such unfortunate circumstances, the media should be held to a much higher standard than they currently perceive they need to be. But once again, it is hoped that by taking action, Dylan may have given big media some pause to think about their actions. Dylan has expressed the view to me that it has been worth going through the stress of legal action, not just for his own vindication, but also if it ends up providing a measure of protection to other vulnerable Indigenous persons from unregulated, untruthful and defamatory social media attacks. D ‘Dysfunctional Community’ Perhaps one of the starkest examples of how ready Australian media is to dismiss Indigenous communities as dysfunctional and exploit and misrepresent the vision of Indigenous Australians is the case involving the Sunrise breakfast program on Channel Seven.

Court of Conscience Issue 15, 2021

On 13 March 2018, the program broadcast a segment with the title, ‘Aboriginal Adoption: Proposal for White Families Should Take in Abused Kids.’51 That segment utilised historical footage that depicted Indigenous people from a particular community as a backdrop to a panel discussion. A filter was applied to the footage to create a slight blurring effect. Despite that, nine adults and six children were easily identifiable. The segment began by displaying an article from Brisbane’s Courier-Mail newspaper with a very large headline, ‘Save Our Kids’ and a subheading, ‘Let White Families Adopt Aboriginal Children: Feds’. The panel consisted of host Samantha Armytage and guests, Prue MacSween and Ben Davis, all persons of a Caucasian Australian background. An edited version of the discussion is as follows:52 Armytage: A Federal Government minister has suggested white families be allowed to adopt abused Aboriginal children to save them from rape, assault and neglect. And currently they can only be placed with relatives or other Indigenous families. But Children’s Minister David Gillespie says relaxing the rules is a better alternative to creating an abandoned or damaged generation … I guess, post Stolen Generation, there’s been this huge move to leave Aboriginal children where they are, even if they’re being neglected in their own families. MacSween: … it’s a no brainer as far as I’m concerned. You know, we can’t have another generation of young Indigenous children being abused in this way, and this conspiracy of silence and this fabricated PC outlook that, you know, it’s better to leave them in this dangerous environment. So, good on you, David Gillespie, and please don’t worry about the people that would cry and hand wring and say this would be another Stolen Generation. Just like the first Stolen Generation where a lot of children were taken because it was for their wellbeing … we need to do it again, perhaps. Davis: I’m with Prue, good on David Gillespie for standing up and saying what a lot of politicians were and are afraid to say, because of the fear of being labelled racist. I mean, this politically correct nonsense has got to go … We need to be protecting kids, we need to be protecting Aboriginal kids … and putting them back into that culture; what culture are they growing up and seeing? Well, they’re getting abused, they’re getting hurt and they’re getting damaged. Armytage: Yeah, let’s hope some sense prevails there. The segment sparked community outrage and passionate protests outside Channel Seven’s studio. 53 The Australian Communications and Media Authority (‘ACMA’) found Seven incited contempt because the segment ‘directed very strong negative feelings towards Indigenous people, even though this may not have been the licensee’s intention’.54 That finding highlights the insidious nature of systemic racism and the deep challenges in trying to combat it. All Seven had to do in this case was say that they did not intend to incite contempt against Indigenous people. Without an admission, it is impossible to prove otherwise. And, of course, it is possible that they did not have this intention. But rather than focusing just on intention and effect, there should have been a deep examination into the culture and attitudes that existed at Seven that allowed a segment like this one to exist in the first place. The ACMA finding did not address the situation of the Indigenous people who featured in the footage used in the segment. That footage was taken years before for the purpose of a health campaign. The people depicted had given permission for it to be used to promote that health campaign in their own and surrounding

Stewart O’Connell, Fight the Power

communities. The filming had been undertaken at a centre set up to provide support to mothers of young children. The people depicted had never given Channel Seven permission to use that footage for their own purposes.55 The people depicted were devastated and deeply ashamed to see footage of themselves being used as a backdrop to dysfunctionality. These were people with strong families, with a strong and vibrant culture and deep care for their children. They felt that they, their families, their community and their culture had been diminished in the eyes of the Australian public. Once again, it is inexplicable how footage of a health campaign came to be used in this manner and without the permission of those depicted. The media would never dare to use stock footage of children in Double Bay or Mosman in this way, but they had no issue in doing so when it involved Indigenous people from a remote community in the NT. A Statement of Claim filed against Channel Seven in the Federal Court stated that the publication implied that those featured were members of a seriously dysfunctional family, a dysfunctional community, and a dysfunctional and harmful culture. It further alleged that it implied that the adults had abused, neglected and/or assaulted children; had left children in a dangerous environment; and were incapable of protecting their children. Channel Seven attempted to have the Statement of Claim struck out but were defeated on every point.56 That matter also ultimately settled out of court, and the terms of that settlement are also confidential.57 Almost two years after the segment, Channel Seven published an apology. It was not read by Ms Armytage or any of the other hosts on Sunrise. It appeared immediately after advertisements and before it was obvious the Sunrise show had resumed, and it appeared in writing against a backdrop of Aboriginal art that came from a completely different geographical area to our clients that had no connection to them. 58 That in itself was insulting and offensive but hardly surprising in the context of the previous 232 years. That apology would not have been published but for the defamation action. If nothing else, the Sunrise case showed a media giant that Indigenous Australians were not just going to sit back and let themselves be portrayed in whatever manner the media saw fit. While the case was run for fifteen plaintiffs, the whole Indigenous community they came from was interested in the outcome, and numerous community members attended public meetings that we had in the community. Despite a general view that it lacked sincerity, the public apology was a rare victory for those who suffer daily as a result of systemic racism. Even so, the lacklustre method of conveying the apology and the lack of respect shown to the culture of the plaintiffs by using a backdrop of Aboriginal art that had no connection to them make it clear that there is a long way to go in changing attitudes towards Indigenous Australians in the media and in public discourse generally. As at the time of writing this article, the Seven Network are again embroiled in controversy relating to reporting featuring an Indigenous person. On 3 November 2021, the Seven Network used Facebook photographs of an Indigenous man stating that he was the man arrested for the abduction of four-year-old girl Cleo Smith.59 The man had nothing at all to do with that crime and was devastated by Seven’s actions.60 He has approached me to assist him with a defamation claim and proceedings have been filed against the Seven Network.61 The question that looms large is would this have happened to a White person? My opinion is that it is unlikely, and whether conscious or not there is something deeper operating in matters like this that contributes to a lesser standard of care than what would otherwise exist. IV

Conclusion

If you asked any of the media companies involved in the matters above whether they felt that the decisions made relating to the above publications were influenced in any way by systemic racism, they would likely vigorously deny it. Indeed, it is impossible to prove in isolation that they were. My opinion is that systemic racism is so endemic in Australia that it would be impossible for the media to not be so influenced. However, I encourage the reader to form their own opinion — useful questions to ask are, would the mass media have acted in such a way if the subject was a white Australian, and if they did, what would have been the response from the subject, their family and the community? And what would the media company have done about it?

Court of Conscience Issue 15, 2021

In each of the matters above, the initial action of the media companies was to vehemently deny any wrongdoing and to engage lawyers to dispute the claims (the one exception being the recent glaring error made by Seven, where they did immediately make an apology. Yet even in that case it is likely that there will be argument as to the appropriate compensation). The media companies know that defamation proceedings are technically complex, costly and lengthy. It can often turn into a war of attrition, and this is why so many defamation cases settle even when the person bringing the claim has a strong case. Ideally, now that public discourse is more willing to acknowledge the existence of systemic racism, the media companies might question whether a certain portrayal of Indigenous Australians is being influenced by systemic racism and take action to balance that influence. Of course, there is sometimes going to be a fine line between reporting the truth without fear or favour and factoring in the possible influence of systemic racism, but this is a balancing exercise the media needs to start undertaking. Unfortunately, it is unlikely that media organisations will seriously undertake such introspection and caution of their own volition — at least in the foreseeable future. Instead, defamation litigation is one avenue by which some change can begin right now and where lawyers have a key role. By highlighting these cases, I have hopefully raised awareness amongst law students and the legal profession of the possible applications of defamation law in this context and encouraged more lawyers and firms to become involved in such matters. For many Indigenous persons from low socio-economic backgrounds, the cost of running a defamation action is prohibitive. All of the cases above were run on a no cost to the client basis, meaning that our clients were not required to pay anything from their own pocket as our fees were recovered from the defendant media companies. There are also difficulties for Indigenous people in being able to access legal help for cases like these. Often, they do not know that there is any legal avenue open to them and they do not have easy access to lawyers. Sometimes, there are significant language, cultural and geographical barriers to overcome. None of our clients in the Channel Seven matter could come to Sydney to access our help, so we had to go to them. We obtained instructions in a particularly remote part of northern Australia with the extensive assistance of interpreters and cultural brokers. It is acknowledged that these can be challenging matters for legal firms to undertake. Nonetheless, they capture in concrete form the nexus between the law and social justice reform. Our post-colonial society is predicated on the relative powerlessness of Indigenous Australians in taking on the institutional levers that maintain the status quo of white dominance and Indigenous diminution. This is what systemic racism is. The media is a key part of this architecture, whether through lazy or indifferent journalism, a refusal to accept that their knowledge about Indigenous people is seriously lacking, actual hostility or bias, or a combination of these factors. Defamation litigation can operate as a counter-lever by forcing media organisations to be accountable for their reporting and to afford Indigenous Australians the respect and dignity to which they are entitled. A final verdict in court or a public apology, in addition to damages, is a small but significant way to make someone feel that their life does, in fact, matter.

References See, eg, Royal Commission into Aboriginal Deaths in Custody (Final Report, 15 April 1991); Northern Territory Board of Inquiry into the Protection of Aboriginal Children from Sexual Abuse, Little Children Are Sacred (Report, 15 June 2007) (‘Little Children Are Sacred Report’); Royal Commission into the Protection and Detention of Children in the Northern Territory (Final Report, 17 November 2017) (‘Royal Commission into the Protection and Detention of Children’); Law Reform Commission of Western Australia, Aboriginal Customary Laws: The Interaction of Western Australian Law with Aboriginal Law and Culture (Final Report, September 2006); Committee of Inquiry into Aboriginal Customary Law, Northern Territory Law Reform Committee, Aboriginal Customary Law (Report, November 2003). 2 Little Children Are Sacred Report (n 1). 3 See ‘The Intervention’, Australians Together (Web Page, 7 October 2020) <https://australianstogether.org.au/discover/the-wound/the-intervention/>. 4 Royal Commission into the Protection and Detention of Children (n 1). 5 Ibid vol 1, 174–7. 6 Lorena Allam, ‘“System is Broken”: All Children in NT Detention Are Aboriginal, Officials Say’, The Guardian (online, 31 May 2019) <https://www.theguardian.com/ 1

7 8 9 10

11 12 13

15 (1992) 175 CLR 1. 16 Jane Dunbar, ‘Newspaper Coverage of Mabo: An Evaluation of Performance’ (1994) 16(2) Australian Journalism Review 116, 118, 122–3. 17 Catherine A Luther, Carolyn Ringer Lepre and Naeemah Clark, Diversity in U.S. Mass Media (Wiley-Blackwell, 2012). 18 Joshua Miller and Ann Marie Garran, ‘The Web of Institutional Racism’ (2007) 77(1) Smith College Studies in Social Work 33, 60. 19 Rod Hollier, ‘Defamation Law in Australia’, The Law Project (Webpage, 11 March 2020) 5.1 <https://www.thelawproject.com.au/defamation-law-in-australia>. 20 Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460, 477 [36]. 21 Defamation Act 2005 (NSW) (‘Defamation Act’) s 10A. 22 See Lachaux v Independent Print Ltd [2019] UKSC 27, [10]–[12]. 23 Hollier (n 19) 3.1.1. 24 Defamation Act s 3(c). 25 (2011) 197 FCR 261, 266 [27], [29]. 26 Eatock v Bolt (No 2) (2011) 284 ALR 114, [3]–[4]. 27 ‘NT Aboriginal Figure Admits Role in Tent Embassy Protest’, AM (ABC Radio National, 27 January 2012) <https://www.abc.net.au/am/content/2012/ s3416580.htm> (‘NT Aboriginal Figure Admits Role in Tent Embassy Protest’). 28 Jessica Wright, ‘Shoe in Custody as Protesters Give Gingerella the Slipper’, Sydney Morning Herald (online, 28 January 2012) <https://www.smh.com.au/ national/shoe-in-custody-as-protesters-give-gingerella-the-slipper-201201271qlmu.html>. 29 NT Aboriginal Figure Admits Role in Tent Embassy Protest (n 27). 30 Kunoth-Monks v Healy [2013] NTSC 74, [24] (‘Kunoth-Monks v Healy’). 31 Ibid [30]. 32 Ibid [51]. 33 Ibid [106]. 34 Ibid [34]. 35 Ibid [53], [78], [94], [100]. 36 Lisa Cornish, ‘Aboriginal Elder Rosalie Kunoth-Monks Defamed by ABC and Rebecca Healy’, News.com.au (online, 15 November 2013) <https://www.news.com.au/national/aboriginal-elder-rosaliekunothmonks-defamed-by-abc-and-rebecca-healy/news-story/ d241e709037ec31654c9f541205f150a>. 37 Kunoth-Monks v Healy (n 30) [126]. 38 Name changed for the purpose of this article. 39 ‘Youth Crisis: Town Split Over Kids’, Centralian Advocate, (Alice Springs, 14 July 2017) now deleted online but discussed in ‘Centralian Advocate Sued for Using Aboriginal Child’s Photo to Illustrate “Youth Crisis” story’, ABC News, (online, 28 September 2018) <https://www.abc.net.au/news/2018-09-28/ newspaper-sued-defamation-child-photo-youth-crisis/10316664>. 40 Journalist Code of Ethics, Media, Entertainment & Arts Alliance (at 14 November 2018); Statement of General Principles, Australian Press Council (at 1 August 2014). 41 Lorena Allam, ‘Centralian Advocate Settles Out of Court over Front-Page Photo of Aboriginal Boy’, The Guardian (online, 2 October 2018) <https://www. theguardian.com/media/2018/oct/02/centralian-advocate-settles-out-of-courtover-front-page-photo-of-aboriginal-boy>. 42 ‘Australia’s Shame’, Four Corners (Australian Broadcasting Corporation, 2016). 43 Royal Commission into the Protection and Detention of Children in the Northern Territory (Final Report, 17 November 2017) vol 1–2B, 4. 44 ‘Dylan Voller’s List of Jailhouse Incidents Tops 200’, The Australian (online, 20 December 2016) <https://www.theaustralian.com.au/nation/

politics/dylan-vollers-list-of-jailhouse-incidents-tops-200/news-story/ de5f97d67d643ea082360ea074a96cfd>. 45 Damien Murphy, ‘Dylan Voller’s Violent Past Detailed at Don Dale Royal Commission’, Sydney Morning Herald (online, 21 April 2017) <https://www. smh.com.au/national/dylan-vollers-violent-past-detailed-at-don-dale-royalcommission-20170420-gvotyb.html>. 46 Voller v Nationwide News Pty Ltd; Voller v Fairfax Media Publications Pty Ltd; Voller v Australian News Channel Pty Ltd [2019] NSWSC 766, [207], [209], [224]. 47 Fairfax Media Publications; Nationwide News Pty Ltd; Australian News Channel Pty Ltd v Voller [2020] NSWCA 102. 48 Fairfax Media Publications Pty Ltd v Voller; Nationwide News Pty Limited v Voller; Australian News Channel Pty Ltd v Voller [2021] HCA 27. 49 Ibid [102]. 50 Ibid [24] (emphasis in original). 51 ‘Aboriginal Adoption: Proposal for White Families Should Take in Abused Kids’, Sunrise (Seven Network, 2018). 52 This episode is no longer available online. The transcript was prepared by the author from the episode and is also not available online. 53 Riley Stuart and Jodan Perry, ‘Sunrise Debate About Indigenous Children Sparks Large Protest in Sydney’s Martin Place’, ABC News (online, 16 March 2018) <https://www.abc.net.au/news/2018-03-16/sunrise-protest-held-inmartin-place/9554832>. 54 ‘Sunrise Broke TV Rules with Controversial Segment on Removing Indigenous Children’, NITV News (online, 4 September 2018) <https://www.sbs.com.au/ nitv/nitv-news/article/2018/09/04/sunrise-broke-tv-rules-controversial-segmentremoving-indigenous-children>. 55 This information was provided to the author by the plaintiffs and confirmed by the organisers of the relevant health campaign and the person who took the footage. 56 ‘Channel Seven Fails to Stop Aboriginal Group’s Sunrise Defamation Lawsuit’, NITV News (online, 13 June 2019) <https://www.sbs.com.au/nitv/nitv-news/article/2019/06/13/ channel-seven-fails-stop-aboriginal-groups-sunrise-defamation-lawsuit>. 57 Calla Wahlquist, ‘Channel Seven Settles Defamation Case with Aboriginal Community over Sunrise Segment’, The Guardian (online, 12 December 2019) <https://www.theguardian.com/media/2019/dec/12/channel-seven-settlesdefamation-case-with-aboriginal-community-over-sunrise-segment>. 58 Keira Jenkins, ‘Channel Seven Apologises to Yolngu Group over Controversial Sunrise Show’, NITV News (online, 30 January 2020) <https://www.sbs.com.au/nitv/article/2020/01/30/ channel-seven-apologises-yolngu-group-over-controversial-sunrise-show>. 59 Kylie Stevens and Padraig Collins, ‘Aboriginal Man Threatened with Spearing after He Was Wrongly Identified as Cleo Smith’s Alleged Kidnapper Plans to Sue Channel Seven’, Daily Mail (online, 5 November 2021) <https://www. dailymail.co.uk/news/article-10167145/Cleo-Smith-Man-wrongly-identifiedtoddlers-suspected-kidnapper-sue-Channel-Seven.html>. 60 Lindy Kerin and Jodan Perry, ‘Aboriginal Man Wrongly Named as Cleo Smith Abductor Plans to Sue Seven Network’, NITV News (4 November 2021) <https://www.sbs.com.au/nitv/article/2021/11/04/aboriginal-man-wronglynamed-cleo-smith-abductor-plans-sue-seven-network>. 61 Michaela Whitbourn, ‘Man wrongly named as Cleo Smith abduction suspect launches defamation action against Seven’ Sydney Morning Herald (online, 16 November 2021) <https://www.smh.com.au/national/man-wrongly-named-as-cleo-smith-abductionsuspect-launches-defamation-action-against-seven-20211116-p599d6.html>.

australia-news/2019/may/31/system-is-broken-all-children-in-nt-detentionare-aboriginal-officials-say>. See ‘Incarceration Nation’, Uncovered (Special Broadcasting Service, 2021). Alicia Garza, ‘A Love Letter to Black People’ (Facebook, 13 July 2013). Reconciliation Australia, ‘Reconciliation and First Contact 2’ (22 December 2016) Reconciliation News 10. Michelle Bishop, ‘“I Spoke About Dreamtime, I Ticked A Box”: Teachers Say They Lack Confidence to Teach Indigenous Perspectives’, The Conversation (Web Page, 29 April 2020) <https://theconversation.com/i-spoke-about-dreamtime-i-ticked-abox-teachers-say-they-lack-confidence-to-teach-indigenous-perspectives-129064>. Andrew Jakubowicz et al, Racism, Ethnicity, and the Media (Allen & Unwin, 1994) 38, 57–60. Irene Moss, ‘The Report of the National Inquiry into Racist Violence’ (1991) 1(49) Aboriginal Law Bulletin 4–5. Australian Broadcasting Corporation Message Stick, ’Cultural Protocols for Indigenous Reporting in the Media’ 2 <https://www.wipo.int/export/sites/www/ tk/en/databases/creative_heritage/docs/abc_cultural_protocol.pdf>. Philip Bell, Multicultural Australia in the Media: A Report to the Office of Multicultural Affairs (Australian Government Publishing Service, 1992) 78–9.

Stewart O’Connell, Fight the Power

Court of Conscience Issue 15, 2021

The Media’s Complicity in the Indigenous Femicide

Amal Naser

Amal Naser is the daughter of Palestinian refugees and a migrant settler living on stolen and unceded Bidjigal country. She is a third-year student in the double degree program, Bachelor of Criminology and Criminal Justice and Bachelor of Laws, at UNSW, where she also serves as Vice President (Public Interest Careers) of the UNSW Law Society. She has a strong interest in the intersection of law and the rights of the Indigenous persons everywhere and hopes to become an advocate for marginalised peoples in her future practice. The author thanks the anonymous peer reviewers for their continuous feedback for this article.

Missing and murdered Indigenous women are disproportionately represented in victimisation rates. However, their stories are often ignored by the media, and this has significant implications on societal perceptions and law reform.1 It will be argued that the media is complicit in the ongoing victimisation of Indigenous women by rendering their stories invisible through the normalisation of their violence. ‘Missing and Murdered Indigenous Women and Girls’ (‘MMIWG’) was a term coined by First Nations activists in Canada in response to the growing human rights crisis where First Nations women were disproportionately represented in female homicide rates, incidents of violence and in the number of missing women.2 In 2016, the government of Canada established a national public inquiry into MMIWG.3 The inquiry described this human rights crisis as a genocide, and notably, aspects of the investigation looked into the media’s complicity in this crisis.4 In the United States of America, the movement ‘#SayHerName’ was developed to highlight the silencing of Black women and the lack of attention to their lives.5 These issues are also heavily prevalent in Australia. First Nations activists in Australia have described this crisis as an Indigenous femicide.6 The Deathscapes project notes that the term ‘femicide’ is used to ‘underline that the incidence of Indigenous women’s deaths in these disparate places is not accidental or random, but a systematic outcome of the logic of settler colonialism’.7 The media response and the silencing of Indigenous women is also a direct systematic outcome of settler colonialism, where newsworthiness is deep-rooted in racist values. The essay will first examine the intersection between race and newsworthiness and how this has led to the silencing of Indigenous women in the media, as well as a failure to portray the complexity of their victimisation. It will then explore the media’s complicity in the continual disproportionate victimisation of Indigenous women. The media plays a significant role in influencing societal perceptions; it will be shown that the construction of its stories influences such ideas, dehumanises Indigenous women and creates public acceptance of this violence. It will be argued that such media constructions will have further implications, as the lack of public outrage has resulted in an absence of imperative law reform targeted at reducing harm against Indigenous women. I

The Intersection Between Race and Newsworthiness

The ‘missing white woman syndrome’ has created a topical interest in the media to investigate and thoroughly report on missing white and middle to upper-class women, whilst disregarding those who do not fit the description.8 A story’s newsworthiness relies on several factors, including ‘meaningfulness’, ‘unexpectedness’, ‘unambiguity’ and ‘reference to elite people’.9 Thus, Robinson describes that the

Court of Conscience Issue 15, 2021

‘damsel’ must be white, attractive and from the middle or upper class, where an exception can be made during wartime.10 Further, missing white women tend to be described as ‘perfect’, ‘ideal’, ‘angelic’, and ‘golden’.11 Such personality and behaviour traits determine who will be newsworthy, reflecting Eurocentric values in which white women need saving and are highly credible.12 This portrayal has led to an absence of proper reporting on missing and murdered Indigenous women.13 Although the victimisation of Indigenous women is a systematic outcome of settler colonialism, their victimisation has been portrayed through women as a whole and generally through the lens of a white woman.14 Thus, the media’s failure to consider Indigenous women as newsworthy prevents accurate reporting on their disproportionate victimisation and conceals the roots of the issue. The notion that the victimisation of Indigenous women is not newsworthy15 can be traced back to colonisation.16 Historically, Indigenous women have been portrayed as sexual figures,17 and their interactions with non-Indigenous men were characterised as ‘sexual exploitation, sexual victimhood, prostitution and even sex trafficking’.18 During the early era of colonisation, the removal of Indigenous women from their native communities for purposes of sexual enslavement was a common practice.19 In fact, during the Stolen Generations, removed girls became domestic servants. 20 In a historical context, there was no lower class than being an ‘Indigenous domestic’ and Indigenous women were often portrayed as primitive.21 The colonial perception of Indigenous women as sexually available and the savage and barbaric treatment meant that their removal was a norm.22 Consequently, Indigenous women were no longer seen as ideal victims,23 but servants to white men.24 Subsequently, this historical portrayal of Indigenous women has influenced media perceptions of missing Indigenous women as non-newsworthy, in comparison to white women.25 Nevertheless, Indigenous women and girls are disproportionately ‘overrepresented as victims of crime’.26 The historical normalisation of violence against Indigenous women has led to a dehumanised media portrayal,27 paralleling their historical treatment by white men. II

Implications of Media Portrayal

A Implication 1: Social Construction Although violence against women has become a national priority, there has been a lack of attention both in law reform and the media regarding violence against Indigenous women.28 This is particularly concerning as Indigenous women are grossly overrepresented in female victimisation rates.29 As described by Dr McGlade, despite the ‘#MeToo’ era pushing to end violence against women, ‘the rights and safety of Aboriginal women [have] been ignored’.30 Failure to integrate the specific and complex issue of violence against Indigenous women in the media has created a lack of understanding in the public that this type of violence is a systematic result of settler colonialism. Constructivist critique emerged in an attempt to pursue social equality and ‘[thwart] … authorities of truth’ and, hence, is highly appealing to communities whose voices have been marginalised by the media.31 These critiques are particularly important due to the media’s vital role in portraying large social problems and their direct role in choosing how to frame these issues.32 Dixon indicates that exposure to similar news coverages over the course of a few months can lead to the subconscious belief that the disappearance of Indigenous women cannot be humanised.33 In Australia, the media’s role in dehumanising Indigenous women who have been victims of violence is particularly prevalent. Brown investigated how Aboriginal family violence, in particular, was reported in Victorian print media and found that there was a tendency for this issue to be reported as an ‘“Indigenous issue” that is inherent in Victorian Aboriginal communities’.34 The Victorian Indigenous Family Violence Task Force report established that ‘from an Indigenous perspective the causes of family violence are located in the history and impacts of white settlement and the structural violence of race relations since then’. 35 Despite this, Brown’s investigations have found that out of 145 articles in Victorian newspapers, only four reported the link between family violence, the effects of colonisation and intergenerational trauma. 36 Additionally, only two out of these 145 articles made it clear that not all perpetrators of violence against Victorian Aboriginal women and their children are Aboriginal men. 37 As a result of Australia’s mainstream media construction of violence against Indigenous women, the general public remains

Amal Naser, The Media’s Complicity in the Indigenous Femicide

largely unaware of the complexities of this crisis, subconsciously accepting that this violence cannot become a public issue as it is an ‘Indigenous issue’.38 As indicated by Brown, certain Australian media outlets are accurately reporting on the ties between violence against Indigenous women and settler colonialism.39 For example, SBS, an Australian news media outlet, has taken the lead in depicting the over-representation of missing Indigenous women in Australia and Canada through their video project ‘Vanished: Canada’s Missing Women’,40 which was led by a Ngiyampaa Weilwan woman, Laura Murphy Oates. Additionally, Allan Clarke, a Muruwari man, has launched a true-crime series in collaboration with NITV, entitled ‘Cold Justice’, which focuses on the unresolved deaths of Indigenous Australians.41 However, Indigenous writers are rendered invisible by larger media structures where the vast majority of articles focused upon violence against Indigenous women remain silent on systematic and structural issues.42 Thus, alone, these writers cannot erode the traditional elitist and colonial values that are entrenched within the media and in broader society, reflecting the argument that the mainstream media has constructed a narrative that silences the voices of Indigenous women. 1 Australian Case Studies: The Murder of Lynette Daley The aim of the Deathscapes project was to eliminate deaths in custody and settler violence.43 Its case study, ‘Indigenous Femicide and the Killing State’, specifically documents ‘the spaces and contexts in which Indigenous women die outside the formal custody of the state’.44 The murder of Lynette Daley was documented in this case study. In 2011, Daley was subjected to a prolonged and violent sexual assault and was found dead the following morning near Illuka, NSW.45 The Director of Public Prosecutions (DPP) failed to prosecute her assailants.46 In 2014, a coronial inquest recommended charges against the assailant which the DPP once again refused.47 As reported by Professor Marcia Langton, the DPP’s refusal to prosecute in 2011 was a reflection of community standards and public acceptance of violence against Aboriginal women.48 Although the murder occurred in 2011, it was not widely reported in the Australian news media until 2016, following an investigation by the ABC program, Four Corners, into the failure to prosecute Daley’s assailants.49 Analysis of media reporting after this investigation found that the mainstream media had a tendency of dehumanising Daley by reporting through the lens of racial stereotypes.50 Prior to her murder, Daley was violently sexually assaulted, however, analysis by Deathscapes found that numerous media articles described this violent sexual assault as ‘wild sex’.51 This reinforced colonial ‘stereotypes about the sexual availability of Aboriginal women’, further dehumanising her. 52 She was also portrayed as a ‘drunk’ and a ‘bad mother’.53 The media narrative was constructed to falsely indicate that Daley was responsible for what happened to her, thereby detracting from the role of male violence, the systematic role of settler colonialism and its fatal consequences for Daley.54 After seven years of fighting for justice for Daley, her assailants, Adrian Attwater and Paul Maris, were found guilty in September 2017. 55 The Four Corners report played a key role in achieving justice for Lynette Daley; however, the media reporting at the time failed to properly articulate that her death was a direct consequence of the legacy of colonial settler violence. 56 Although justice for Daley was achieved, the media narrative failed to highlight the underlying systemic causes of the ongoing Indigenous femicide or that this was an ongoing issue suffered by Indigenous women. This narrative, once again, failed to recognise the heightened vulnerability of Indigenous women and instead dehumanised them, generating public acceptance of such violence. B Implication 2: The Media’s Role in Important Law Reform The mainstream media’s construction of the stories of Indigenous women fails to accurately articulate the causes of Indigenous femicide, which acts as a significant barrier to adequate law reform. A report by Domestic Violence Victoria noted that the media is ‘a powerful setting for, and influencer of social change’.57 The mainstream media’s lack of coverage of this issue and its general failure to expose the direct links between systematic colonial policies and violence against Indigenous women has led to the lack of public knowledge on the issue.58 This has also resulted in a lack of moral panic and public outrage and has inhibited the development of necessary law reform. Criminologists argue that law reform

Court of Conscience Issue 15, 2021

focused upon decolonisation could reduce the victimisation rates of MMIWG.59 However, current law reform measures stemming from public outrage are generally targeted at violence against women and children as a whole,60 and are quite ineffective in dealing specifically with violence against Indigenous women and children. This can especially be seen in conversations surrounding coercive control. It can be argued that the media was complicit in silencing Indigenous voices during national conversations regarding violence against women earlier this year, this as a consequence normalises violence against Indigenous women and girls. An episode of ABC’s Q+A program, ‘All About Women’, which aired as a response to the Brittney Higgins scandal, was criticised for not including Indigenous voices on the panel.61 In fact, this program discussed the importance of reforms relating to coercive control,62 yet failed to include the voices of Indigenous women who are resisting these reforms. Further, where Indigenous women are included in conversations about law reform, they are often ignored and rendered invisible. The SBS documentary, ‘See What You Made Me Do’ aimed to spark a national conversation on coercive control.63 After the program aired, Hill, a journalist who produced the documentary, held an expert panel featuring Dr Hannah McGlade, a Noongar woman and an academic expert.64 An analysis of the program found that Dr McGlade was often silenced and ignored by Hill and was told she was wrong when challenging reforms on coercive control.65 This highlights the reality that Indigenous women face in the media where, despite their expertise, they are often rendered invisible in important public debates. Media constructions and the deliberate silencing of Indigenous women have further led to reforms that will harm Indigenous women rather than protect them. In May 2021, the NSW Joint Select Committee on Coercive Control unanimously recommended the criminalisation of coercive control.66 Dr McGlade argues that these laws will ‘result in more Indigenous women being imprisoned than protected’,67 supporting her argument with the ‘staggering increases in Indigenous female incarceration’ and stories from Indigenous women who were misidentified by the police as offenders and were not supported when seeking help.68 Professors Megan Davis and Emma Buxton-Manisnyk argue that police responses to protect women do not protect Indigenous women and that these law reforms will not resolve the fact that Indigenous women are disproportionately represented in victimisation rates.69 Consequently, the silencing of Indigenous women in the media results in law reform measures that are not tailored to the complex realities of Indigenous women and fundamentally fail to resolve their disproportionate victimisation rates. III

Conclusion

In conclusion, media structures have rendered the stories and voices of Indigenous women silent. Missing and murdered Indigenous women are disproportionately represented in female homicide rates, incidents of violence and the numbers of missing women.70 This is a national emergency that has not gained attention from the mainstream media. As a result, the general public remains unaware of the complexities of the systemic causes of violence against Indigenous women. In some instances, it can be argued that the media has normalised violence against Indigenous women through their continual dehumanisation. This further leads to failures in law reform whereby Indigenous women are rendered silent in conversations and no solutions are made which legitimately aim to reduce violence against Indigenous women. The absence of proper media reporting can be a significant barrier to proper social change and, thus, the media is directly complicit in ongoing Indigenous femicide.

References

Carol M Liebler, ‘Me(di)a Culpa?: The 'Missing White Woman Syndrome' and Media Self-Critique’ (2010) 3(4) Communication, Culture & Critique 549, 549. 9 Danielle C Slakoff, ‘Newsworthiness and the “Missing White Woman Syndrome”’ (MSc Thesis, California State University, August 2013) 4. 10 Eugene Robinson, ‘(White) Women We Love’, Washington Post (online, 10 June 2005) <https://www.washingtonpost.com/wp-dyn/content/article/2005/06/09/ AR2005060901729.html>, cited in Liebler (n 8) 557. 11 Rebecca Wanzo, ‘The Era of Lost (White) Girls: On Body and Event’ (2008) 19(2) Differences: A Journal of Feminist Cultural Studies 99, 99. 12 Kristen Gilchrist, ‘“Newsworthy” Victims?’ (2010) 10(4) Feminist Media Studies 373, 375. 13 Hannah McGlade, Bronwyn Carlson and Marlene Longbottom, ‘An Open Letter in Response to the Lack of Public Concern or Response to the Killings of Aboriginal and Torres Strait Islander Women’, Croakey Health Media (Blog Post, 9 March 2021) <https://www.croakey.org/an-open-letter-in-response-to-the-lack-ofpublic-concern-or-response-to-the-killings-of-aboriginal-and-torres-straitislander-women>. 14 Ibid. 15 Gilchrist (n 12) 375–7. 16 Corrinne Tayce Sullivan, ‘Indigenous Australian Women’s Colonial Sexual Intimacies: Positioning Indigenous Women’s Agency’ (2018) 20(4) Culture, Health & Sexuality 397, 402–5. 17 Marilyn Lake, ‘Frontier Feminism and the Marauding White Man’ (1996) 20(49) Journal of Australian Studies 12, 13. 18 Sullivan (n 16) 400. 19 Ibid; Corrine Franklin, ‘Belonging to Bad: Ambiguity, Parramatta Girls and the Parramatta Girls Home’ (2014) 52(2) Geographical Research 152, 162, 163. 20 Peter Read, A Rape of the Soul So Profound: The Return of the Stolen Generations (Allen & Unwin, 1999) 53. 21 Sullivan (n 16) 401. 22 Ibid. 23 Nils Christie, ‘The Ideal Victim’ in Ezzat A Fattah (ed), From Crime Policy to Victim Policy: Reorienting the Justice System (Macmillan, 1986) 17. 24 Sullivan (n 16) 401. 25 See, eg. a study of the media’s treatment of Indigenous people in Canada: Robert Harding, ‘Historical Representations of Aboriginal People in the Canadian News Media’ (2006) 17(2) Discourse & Society 205, 219–20. 26 Chris Cunneen and Simone Rowe, ‘Decolonising Indigenous Victimisation’ in Dean Wilson and Stuart Ross (eds), Crime, Victims and Policy: International Contexts, Local Experiences (Palgrave Macmillan, 2015) 10, 11. 27 National Inquiry into Missing and Murdered Indigenous Women and Girls (n 2) 232, 391. 28 Hannah McGlade, ‘Australia Is Turning a Blind Eye to Violence against Indigenous Women, but We Will Not Stay Silent: Our Lives Matter’, ABC News (online, 6 October 2019) <https://www.abc.net.au/news/2019-10-06/ jody-gore-release-domestic-violence-indigenous-aboriginal-women/11570042>. 29 Sarah Collard and Isabella Higgins, ‘Senate Should Investigate “Missing, Murdered, Maimed” Indigenous Women, Linda Burney Says’, ABC News (online, 9 December 2019) <https://www.abc.net.au/news/2019-12-09/ linda-burney-wants-senate-inquiry-into-missing-indigenous-women/11773992>. 30 McGlade (n 28). 31 Kenneth J Gergen, Social Construction in Context (SAGE Publications, 1st ed, 2001) 8. 32 Victor E Kappeler and Gary W Potter, Constructing Crime: Perspectives on Making News and Social Problems (Waveland Press, 2nd ed, 2006). 33 Travis L Dixon, ‘Who is the Victim Here?: The Psychological Effects of Overrepresenting White Victims and Black Perpetrators on Television News’ (2008) 9(5) Journalism 582, cited in Slakoff (n 9) 21. 34 Lilly Brown, ‘Why We Need to Educate Journalists about Aboriginal Women’s Experience of Family Violence’, The Conversation (online, 25 November 2016) <http://theconversation.com/why-we-need-to-educate-journalists-aboutaboriginal-womens-experience-of-family-violence-65789>.

35 Ibid. 36 Ibid. 37 Ibid. 38 Ibid. 39 Ibid. 40 See ‘Vanished: Canada’s Missing Women’, SBS: Dateline (SBS, 21 November 2017) <https://www.sbs.com.au/news/dateline/tvepisode/ vanished-canada-s-missing-women>. 41 ‘Cold Justice, a New Crime Series Is the First of Its Kind in Australia’, NITV (Web Page, 22 February 2018) <https://www.sbs.com.au/nitv/article/2018/ 02/20/cold-justice-new-crime-series-first-its-kind-australia>. 42 McGlade, Carlson and Longbottom (n 13). 43 Allas et al, ‘About Project’, Deathscapes: Mapping Race and Violence in Settler States (Web Page, 16 February 2019) <https://www.deathscapes.org/about-project/>. 44 Allas et al (n 1) [11]. 45 Ibid. 46 Ibid. 47 Ibid. 48 Marcia Langton, ‘For Her, We Must: No Excuses, Time to Act’ (2018) 60 (April) Griffith Review 328, 333, quoted in Rosemary Joiner, ‘The Lynette Daley Story: A Failure in the Justice System for Indigenous Australians’, Independent Australia (online, 12 June 2020) <https://independentaustralia.net/australia/ australia-display/the-lynette-daley-story-a-failure-in-the-justice-system-forindigenous-australians,13989>. 49 Ibid. 50 Allas et al (n 1) [11]. 51 Ibid 52 Ibid. 53 Ibid 54 Ibid. 55 Ibid. 56 Ibid. 57 Domestic Violence Victoria, Working with News and Social Media to Prevent Violence Against Women and Their Children: A Strategic Framework for Victoria (Report, 2015) 1. 58 Brown (n 34). 59 Cunneen and Rowe (n 26) 16. 60 Katharine Murphy, ‘Indigenous Australians Need Own Plan to Reduce Violence against Women, Summit Told’, The Guardian (online, 6 September 2021) <https://www.theguardian.com/society/2021/sep/06/indigenous-australiansneed-own-plan-to-reduce-violence-against-women-summit-told>. 61 McGlade, Carlson and Longbottom (n 13). 62 ‘All About Women’, Q+A (Australian Broadcasting Corporation, 2021) 0:31:00– 0:32:36 <https://www.abc.net.au/qanda/2021-04-03/13192776>. 63 See generally See What You Made Me Do (SBS, 2021) <https://www.sbs.com. au/ondemand/program/see-what-you made-me-do>. 64 Chelsea Watego et al, ‘Carceral Feminism and Coercive Control: When Indigenous Women Aren’t Seen as Ideal Victims, Witnesses or Women’, The Conversation (online, 25 May 2021) <http://theconversation.com/carceralfeminism-and-coercive-control-when-indigenous-women-arent-seen-as-idealvictims-witnesses-or-women-161091>. 65 Ibid. 66 Megan Davis and Emma Buxton-Namisnyk, ‘Coercive Control Law Could Harm the Women It’s Meant to Protect’, Sydney Morning Herald (online, 2 July 2021) <https://www.smh.com.au/national/nsw/coercive-control-law-could-harm-thewomen-it-s-meant-to-protect-20210701-p5861e.html>. 67 Watego et al (n 64). 68 Ibid. 69 Davis and Buxton-Namisnyk (n 66) (emphasis added). 70 See Allas et al (n 1).

Tess Allas et al, ‘Indigenous Femicide and the Killing State’, Deathscapes (Web Page, 16 February 2019) <https://www.deathscapes.org/case-studies/ indigenous-femicide-and-the-killing-state-in-progress/>. 2 Canada, National Inquiry into Missing and Murdered Indigenous Women and Girls, Reclaiming Power and Place: The Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls, vol 1a (Ottawa: National Inquiry into Missing and Murdered Indigenous Women and Girls, 2019) at 5–7 (‘National Inquiry into Missing and Murdered Indigenous Women and Girls’). 1

‘Terms of Reference for the National Inquiry into Missing and Murdered Indigenous Women and Girls’, Crown-Indigenous Relations and Northern Affairs Canada (Web Page, 1 January 2019) <https://www.rcaanc-cirnac.gc.ca/ eng/1470141425998/1534527073231>. 4 National Inquiry into Missing and Murdered Indigenous Women and Girls (n 2) 50, 385–93. 5 ‘#SayHerName’, African American Policy Forum (Web Page) <https://www.aapf. org/sayhername>. 6 Allas et al (n 1). 7 Ibid [2].

Amal Naser, The Media’s Complicity in the Indigenous Femicide

Court of Conscience Issue 15, 2021

Inequality Pandemic

Jenny Leong MP*

Jenny Leong is the Greens Member for the Electorate of Newtown in the New South Wales Legislative Assembly. Prior to being elected, Jenny worked for a number of years with Amnesty International as a crisis response coordinator and campaigner in London, Hong Kong, and Sydney. While studying at the University of Sydney, Jenny held leadership roles as a fellow on the University of Sydney Senate and as President of the Sydney University Postgraduate Association. As a member of the NSW Parliament, Jenny has played a key role in a number of significant reforms - including the decriminalisation of abortion, an apology to the 78ers for the violence at the first Mardi Gras, securing protections for renters during the COVID-19 pandemic, amplifying the voices of sexual harassment and assault survivors, and successfully advocating to ensure that NSW’s daily press conferences were translated in real-time into multiple languages. Jenny is a passionate activist, campaigner, feminist and equality advocate - and as far as she is aware, is the first woman of Chinese Australian heritage to be elected to the lower house of any parliament in Australia (she is happy to be corrected if this isn’t the case!).

While in many ways the risks associated with the global COVID-19 pandemic have been a great equaliser that has seen all of humanity face the prospect of infection or death, the way Australian governments have responded to the pandemic has further entrenched existing inequalities. Australia’s failure to enshrine its international human rights obligations in domestic law or to address underlying issues of racism and discrimination sits at the core of these problems, which have been amplified during the pandemic.1 This article seeks to demonstrate that while COVID-19 does not discriminate, the actions of Australian governments in implementing pandemic response measures demonstrated clear discrimination against people based on their ethnicity, race and citizenship. In addition, these measures exacerbated existing inequities faced by migrant communities and people of colour. To demonstrate the discrimination and inequity of these measures, three aspects of the pandemic response — namely repatriation and quarantine, financial supports, and marginalised workers — will be assessed to examine the way our governments have failed to meet their moral and legal obligations of ensuring that those who live on our shores are treated equally, and with dignity and respect. I

Repatriation and Quarantine

In February 2020, the first repatriation flight from Wuhan, China — carrying 243 Australian citizens — transited through RAAF Base Learmonth in Western Australia where passengers were moved onto smaller planes and then flown to Christmas Island Immigration Detention Centre.2 Later, as the virus spread to ‘Western’ countries, Australian citizens returning from overseas were quarantined in city hotels and serviced apartments. The difference in treatment is stark. While there may have been a justification for initially closing the borders with China while the situation was assessed and preparations were put in place for quarantine and testing measures based on health advice, the implications and political positioning of the decision to initially use the Christmas Island Immigration Detention Centre for those coming from China cannot be ignored. This decision to use Christmas Island for these initial repatriation flights from China of Australian citizens was made in the context of Australia’s long-standing and racially charged political debates around border control, refugee and asylum seeker policy, and ‘yellow peril’ invasion.3 This move set the stage for measures which sought to entrench long-standing xenophobia — exploited most recently by One Nation representatives 4 and conservative newspaper outlets 5 — and for the Australian government to seek to exploit the situation by establishing a sense of authority and control in the midst of such uncertainty. This political decision created

Court of Conscience Issue 15, 2021

a direct link between those coming from China — ground zero of the pandemic — and the incarceration of refugees and asylum seekers enshrined in domestic laws, thus conflating border security with refugee policy.6 National security has always been an electorally beneficial space for conservative governments to improve their standing domestically.7 Over a year later in April 2021, Australian citizens and permanent residents seeking to return from India were subjected to even harsher penalties when the Australian government made it illegal for them to attempt to return home. 8 It is most notable that the Australian government only chose to impose a country-wide ban on India, despite significant uncontrolled outbreaks in the United States and the United Kingdom (‘UK’) in the intervening period.9 The Australian government’s India border closure was enacted on 3 May 2021 using the human biosecurity emergency powers provided by s 477 of the Biosecurity Act 2015 (Cth) (‘Biosecurity Act’).10 The legality of this ban was challenged in the Federal Court of Australia just two days after it came into force, with the applicant arguing that the Commonwealth was acting outside of its powers and that the Minister for Health and Aged Care’s declaration was in breach of an implied common law freedom to return home.11 The Court disallowed this challenge, arguing that the national interest trumped individual rights, such as the right to return to your country of citizenship.12 While this finding by the Federal Court may have vindicated the Australian government’s action as legal, it begs the question of how the law, allowing such action, measures up against Australia’s international obligations, and indeed, its own domestic racial discrimination protections.13 Despite the fact that Australia is party to the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights (‘ICESCR’), as well as the International Convention on the Elimination of All Forms of Racial Discrimination,14 successive governments have failed to enshrine the rights they protect in domestic law.15 These pandemic measures around repatriation and quarantine implemented by current Australian Prime Minister, Scott Morrison, strongly echo the words of former Liberal Prime Minister, John Howard, who decreed ‘we will decide who comes to this country and the circumstances in which they come.’16 This statement articulating nationalist sentiment with racist undertones was printed in mainstream newspapers the day before the federal election in October 2001, and was linked directly to election commitments to enact harsh domestic refugee laws which were, and still are, in breach of international conventions to which Australia is a party.17 Looking at the chartered flights moving in and out of Australia throughout the period of bans on international travel, it is hard not to perceive economic and racial privilege at play. For example, the Australian cricket team was flown out of India to the Maldives, former Prime Minister Tony Abbott took trips back and forth to the UK, British business magnate come reality TV host, Lord Sugar, was flown in to shoot Australia’s Celebrity Apprentice, and many more celebrities travelled in and out to shoot movies.18 Even more stark was the fact that some crew members were able to disembark the Ruby Princess and be flown home on charter flights (by their mainly Western governments), while others on board this ship and countless others were left stranded and sick at sea.19 Given this context, it is difficult to not interpret the treatment of people returning from China and India, compared with those coming from other countries, as anything other than politically motivated racial discrimination. II

resident visas or other specified visa subclasses, which meant that many people in these categories were ineligible to apply for this support.22 Access to JobKeeper payments — another government pandemic measure — also highlighted pre-existing inequalities. The discriminatory measure mandated that casual employees had to be either Australian residents, New Zealand citizens in Australia who held a subclass 444 special category visa, or migrants who were eligible for the JobSeeker payment.23 Additionally, employees were only eligible if they had been employed by the same employer for at least 12 months.24 Everyone else was left with no support. Many non-citizens — who weeks before the pandemic had been paying income tax — found themselves out of work due to enforced closures and lockdowns, and unable to access income support due to their visa status. In Australia, as in many other countries, it is short-term visa holders and migrants who are most at risk of obtaining insecure, precarious employment, where underpayment and wage theft is endemic. A report by Unions NSW published in 2020 showed that 9 out of 10 job ads posted in a language other than English were advertising wages below the legal minimum.25 A more recent report by Unions NSW focused on the unequal access that temporary migrants receive to essential services, highlighting the impact of visa status and nationality on work hours, housing, food insecurity and financial support.26 The precarious and insecure situation faced by people on temporary visas prior to this crisis was already severe, and during the pandemic, became unbearable. During the pandemic, citizens were supported by JobKeeper and JobSeeker payments that were denied to others. As Berg and Farbenblum highlight, ‘Australia is a global outlier in its callous treatment of temporary migrants during the pandemic’, with temporary visa holders receiving wage subsidies in countries such as the UK, New Zealand, Canada and Ireland.27 Many people were left without even the most basic needs of food and shelter. This discrimination breached a number of Australia’s international human rights obligations and principles,28 as set out in the ICESCR, the International Labour Organisation standards on labour migration, and the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families.29 As Berg and Farbenblum point out, the approach of ‘advising temporary visa holders to go home does not diminish these obligations. Nor does it absolve Australia of its moral obligations to these people it encouraged to greatly invest in studying and working here’.30 Avenues for informal, cash-in-hand and casual work also dried up, or were pushed even further underground, increasing safety risks and further reducing workplace protections.31

Financial and Other Supports

While the virus does not discriminate, the measures and protections provided by Australia to keep people safe have been determined by the colour of your passport — your nationality or visa status. Equally, the impact of COVID-19 on those from marginalised communities was stark, with an increased risk of infection and spread of the virus in some communities because of government failures to address inequities in areas including health, housing, education etc.20 The COVID-19 pandemic brought some pre-existing inequalities in Australia, especially between citizens, non-citizens and people of colour, into sharp relief.21 This was particularly noticeable when it came to the financial support measures introduced. The first round of JobSeeker payments in 2020 imposed strict conditions on various visa holders, based on the length of time they had been on permanent

Jenny Leong MP, Inequality Pandemic

Court of Conscience Issue 15, 2021

III

Marginalised Workers

lawmaker — what I look like, my Chinese surname, my Chinese-Malaysian heritage and my intimate view of political manoeuvres — that I think it is crucial to highlight the inherent racism and discrimination embedded in the actions of the Australian government throughout its pandemic response. In my workplace, the NSW Parliament, most of the people who look like me — and those who reflect the diversity of our community — are not those sitting in the chamber; they are the ones serving the food, cleaning the offices, and keeping things moving along. Whether it is because of the individual impacts related to economic security and wellbeing 39 or societal ruptures that have ramifications for domestic and international trade and political relations, the existence of structural discrimination on the basis of race and visa status must be addressed. In order to do this, it must be acknowledged that the existence of racism, discrimination, inequality and inequity; is a direct result of our legislative framework and government policies. In the context of the COVID-19 pandemic in Australia, this has resulted in discriminatory repatriation and quarantine measures, and unequal availability of financial supports and access to essential health and safety measures. Additionally, the value of international students and migrants has been perilously positioned as their ability to provide essential services, rather than viewing them as equal members of society. Choices to restrict freedom of movement and take a tough stance on border control must be seen as just that, choices — choices that in turn have an impact on the standing and perception of governments, including aiding or hindering their ability to advance their domestic agenda. Similarly, the negative ramifications of racism and discrimination on communities and individuals has a social and economic cost that must begin to be factored into the equation, particularly in the context of the pandemic.40 Multiculturalism is more than a neat row of white plastic ‘ethnic’ food stalls, and non-citizens and migrants are more than just a resource to be considered or drawn upon when assessing economic productivity. The way that diverse communities have been commodified — and are politically erased — results in the discrimination they face being largely invisible in regular times. However, these issues have become much more visible as a result of Australia’s response to the pandemic, which has enforced and continues to exacerbate underlying inequality and discrimination. The question remains whether the move from crisis to the ‘new normal’ will see this trajectory altered or maintained. There are many unavoidable symptoms and long-term effects of COVID-19, however, inequality is not one of them.

The fact that non-citizens cannot vote — and are therefore not viewed as constituents by the political class — means that the power and impact of their collective actions are limited. For those who are not Australian citizens, there are structural and legislative factors that cause and compound this inequality, many of which came to light in response to the pandemic. The pandemic may be global; however, the responses of governments have been hyper-local and extremely parochial. The confronting images of lines of people (citizens, as non-citizens are not eligible for benefits) waiting at Centrelink offices could not be ignored. In contrast, lines of international students at charity food outlets and the desperate calls for assistance from groups and organisations supporting temporary visas, were met with a cruel and unrealistic response from Prime Minister Scott Morrison — ‘it’s time to go home’.32 A survey conducted by the Migrant Workers Justice Initiative found, among other very real economic challenges, that respondents: could not ‘make their way home’ when restrictions were being put in place to contain the virus — as Morrison had recommended — because flights were unavailable (20%) or unaffordable (27%). Others could not return because their country’s borders were closed (10%). But for the majority, leaving Australia was not an option because of the great investment they said they had made in their studies (57%), their work and their futures in Australia (31%). Half of our respondents also chose not to leave because they might not be able to return to Australia soon, or at all, and this was a risk they could not take.33 Discrimination against international students, resulting in a material impact on their financial security and wellbeing while in Australia, is nothing new, with longstanding and discriminatory bans on international students accessing travel concessions in NSW being one clear example.34 The limit on international students working only 20 hours per week has forced many into the gig-economy or cash in hand jobs, which has resulted in routine exploitation and underpayment.35 This often occurs precisely because employers know that these particular workers cannot complain without risking their visa, and hence, their studies. This is structural exploitation and discrimination, 36 and it affects both international students and many migrants. It is notable that when the Australian government made the announcement to ease the restrictions on working hours for international students working in specific sectors, they did so, ‘[t]o support the supply of certain services during the COVID-19 pandemic’ rather than to ease the financial pressures on international students.37 In a similar vein, some of Australia’s big universities — and some state governments — went to great efforts to advance plans to secure safe pathways for international students to return to our shores, driven by economic priorities. However, a big question remains as to what, if any, support will be offered once these students return. In NSW, surely removing the discriminatory ban on travel concessions would be a good place to start? The lack of respect for, and the commodification of, non-citizens, which uses them as essential workers or fuelers of the economy while failing to offer them any protections as members of our society, is a risk to their own health and wellbeing, as well as a failure to meet our international obligations. The inequality is evident to anyone looking at who is driving the delivery trucks, delivering the takeaway, providing security at detention centres, cleaning in healthcare facilities, working in aged care homes or providing in-home care or childcare. The demographics of these often very low-paid, highly insecure and casualised workforces — which were also the areas of work that were deemed essential to keep everything ticking along during COVID-19 — are very clearly non-white, migrants and non-citizens.38 IV

Conclusion

Perhaps this all resonates more with me than others because of my background and my position, yet it is also precisely because of my background and my role as a

Jenny Leong MP, Inequality Pandemic

References

* This article was written with research assistance from senior electorate officers, Cathy Peters and Mithra Cox. 1 While outside the scope of this article, issues of race, discrimination and inequality in Australia can and must be linked back to the invasion and colonisation of this country. I acknowledge that I write this on stolen land that was never ceded and pay respect to Elders past, present and emerging. Aryati Yashadhana et al explain the intersection between existing inequalities and the current pandemic risks: ‘The COVID-19 pandemic has highlighted the need for a renewed focus to ensure that health and privilege should not be mutually exclusive. The political, social, and cultural determinants of health are stacked against Indigenous Australians and Indigenous peoples globally; this multiplies the risk to, and vulnerabilities of these communities to infection and mortality from COVID-19’: Aryati Yashadhana et al, ‘Indigenous Australians at Increased Risk of COVID-19 Due to Existing Health and Socioeconomic Inequities’ (2020) 1 The Lancet Regional Health Western Pacific 1, 2. 2 Frances Bell and Evelyn Manfield, ‘Passengers on Coronavirus Evacuation Flight from Wuhan Land on Christmas Island’, ABC News (online, 3 February 2020) <https://www.abc.net.au/news/2020-02-03/ coronavirus-wuhan-evacuation-flight-reaches-wa-christmas-island/11923324>. 3 Isabella Kwai, ‘An Outbreak of Racist Sentiment as Coronavirus Reaches Australia’, The New York Times, (Online Jan 31, 2020) <https://www.nytimes.com/2020/01/31/ world/australia/coronavirus-racism-chinese.html> (emphasis added). 4 Kurt Sengul, ‘Never Let a Good Crisis Go to Waste: Pauline Hanson’s Exploitation of COVID-19 on Facebook’ (2021) 178(1) Media International Australia 101. 5 Sharri Markson, ‘Shocking Scale of China’s Cover-Up Exposed: What Really Happened in Wuhan’ (Sept 27, 2021) news.com.au <https://www.news.com.au/ entertainment/books-magazines/books/doctors-courage-and-official-coverupexposed-in-exclusive-extract-from-what-really-happened-in-wuhan/news-story /45679ce050df46cc7c7112036c966bb2>.

As Furlong and Finnie write ‘[h]istorically, Australia has prided itself in its multiculturalism; however, there has been evidence of an increase in racial microaggressions and xenophobia during this pandemic. The Australian senator, Pauline Hanson, founder of right-wing party “One Nation”, has been quoted: “any attempts to attack or criticise people for referring to COVID-19 as ‘Chinese Virus’ should be pushed back”’. They go on to provide other examples from mainstream media outlets, including the ‘Herald Sun … framing the coronavirus on its front page with a communist star and a surgical mask while alluding to China’s native pandas in the provocative headlines of “Chinese virus pandemonium”’ and the Daily Telegraph on the same day ‘published an article “China kids stay home”’: Yulia Furlong and Tanya Finnie, ‘Culture Counts: The Diverse Effects of Culture and Society on Mental Health Amidst COVID-19 Outbreak in Australia’ (2020) 37(3) Irish Journal of Psychological Medicine 237, 238. Gwenda Tavan, ‘Issues that Swung Elections: Tampa and the National Security Election of 2001’, The Conversation (online, 3 May 2019) <https:// theconversation.com/issues-that-swung-elections-tampa-and-the-nationalsecurity-election-of-2001-115143>. Katharine Murphy, Paul Karp and Mostafa Rachwani, ‘Covid Crisis: Australians Trying to Return Home from India Face Up to $66,000 Fine or Five Years’ Jail’, The Guardian (online, 1 May 2021) <https://www.theguardian.com/australianews/2021/apr/30/australian-government-may-make-it-a-for-citizens-to-returnfrom-covid-ravaged-countries>. Hannah Ritchie et al, ‘Coronavirus Pandemic (COVID-19): The Data’ Our World in Data (Web Page, 2020) <https://ourworldindata.org/ coronavirus-data?country=USA~GBR>. Biosecurity Act 2015 (Cth) s 477. The Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements—High Risk Country Travel Pause) Determination 2021 (Cth), as at 3 May 2021, made it illegal for any persons, nationals or not, to enter Australian territory if they had been in India within 14 days prior to the day the flight was

Court of Conscience Issue 15, 2021

11 12

scheduled unless they were exempt persons (examples of exempt persons include flight personnel, diplomats, defence force personnel): at cls 6–7. Newman v Minister for Health and Aged Care [2021] FCA 517, [3] (Thawley J). Anne Twomey, ‘Part of the Legal Challenge to the India Travel Ban has been Comprehensively Defeated: Here’s Why’, The Conversation (online, 10 May 2021) <https://theconversation.com/part-of-the-legal-challenge-to-the-india-travel-banhas-been-comprehensively-defeated-heres-why-160624>. It is worth noting that citizenship itself is not directly addressed in the Australian Constitution. Helen Irving states that ‘the Constitution of the Commonwealth of Australia makes no mention of Australian citizenship. There is no definition of citizenship, no provision governing the acquisition of citizenship, and no express legislative head of power with respect to “citizenship”. The single use of the term “citizen” is to be found in s 44 which lists the grounds on which a person is incapable of standing for, or sitting in, the Commonwealth Parliament. This provision, however, makes reference to foreign, not Australian, citizenship’: Helen Irving, ‘Still Call Australia Home: The Constitution and the Citizen’s Right of Abode’ (2008) 30(1) Sydney Law Review 131, 131. Similar questions could, and should, be asked regarding domestic law that allows for the ongoing inhumane mandatory detention of asylum seekers and the implementation of the punitive measures under the Northern Territory Intervention. International Covenant on Civil and Political Rights, opened for signature 19 December 1996, 999 UNTS 171 (entered into force 23 March 1976); International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976); International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 7 March 1966, 660 UNTS 1 (entered into force 4 January 1969). In 2008, the Rudd government set up the Brennan Committee to investigate how human rights protections could be improved federally in domestic law. The Committee’s report recommended the establishment of a Human Rights Act, and though it had strong community and legal support it was rejected in 2010: see David Erdos, ‘The Rudd Government’s Rejection of an Australian Bill of Rights: A Stunted Case of Aversive Constitutionalism?’ (2012) 65(2) Parliamentary Affairs 359. Prime Minister John Howard, ‘Address at the Launch of “A Stronger Tasmania Policy”’ (Speech, 2 November 2001) <https://pmtranscripts.pmc.gov.au/ release/transcript-12332>. Details of the contravention of international obligations, including the Refugee Convention, as they relate to Australia’s asylum seeker policies and specifically to offshore processing, are outlined in a report by the Australian Human Rights Commission: Australian Human Rights Commission, Immigration Detention and Offshore Processing on Christmas Island (Report, 2009) 10–11. Frances Mao, ‘Celebrities in Australia Anger Stranded Citizens Over “Double Standard”’ BBC News (online, 1 April 2021) <https://www.bbc.com/news/ world-australia-55851074>; Joshua Taylor, ‘Tony Abbott Granted “Auto Exemption” for Travel while 30,000 Australians Stranded Overseas’ The Guardian (online, 20 October 2020) <https://www.theguardian.com/australianews/2020/oct/20/labor-asks-why-tony-abbott-granted-second-travel-banexemption-while-30000-australians-stranded-overseas>; ‘Indian Premier League: Australian Cricketers Caught by India Ban Fly Home’ BBC News (online, 17 May 2021) <https://www.bbc.com/news/world-australia-57139279>. Justin Huntsdale and Melinda James, ‘Hundreds of Thousands of Sailors Stranded as Coronavirus Restrictions Prevent Homecoming’, ABC News (online, 21 May 2020) <https://www.abc.net.au/news/2020-05-21/ seafarers-bulk-carriers-coronavirus-stranded-restrictions-cruise/12263030>. While outside the scope of this article, existing issues of overcrowding and access to health and government services and supports in remote Aboriginal communities as well as the designated ‘areas of concern’ in the ongoing outbreak in NSW, have resulted in significant impacts — and direct health risks — to those living in these communities: See Human Rights Watch, ‘Australia: Protect At-Risk Communities from Covid-19’ (Press Statement, 19 August 2021) <https://www.hrw.org/ news/2021/08/20/australia-protect-risk-communities-covid-19>. The direct impacts of structural racism and discrimination on the lives of those in Australia have not been felt in the stark way it has been in the UK and US, where ‘media reports have shown that COVID-19 morbidities and mortalities were disproportionately high among people of colour’: Isaac Yeboah Addo, ‘Double Pandemic: Racial Discrimination Amid Coronavirus Disease’ (2020) 2(1) Social Sciences & Humanities Open: 1–4, 2. ‘Newly Arrived Residents Waiting Period’ Services Australia (Web Page, 2021) <https://www.servicesaustralia.gov.au/individuals/topics/ newly-arrived-residents-waiting-period/30726>. ‘Residence Rules’, Australian Government Services Australia (Web Page, 2021) <https://www.servicesaustralia.gov.au/individuals/services/centrelink/ jobseeker-payment/who-can-get-it/residence-rules>; ‘Residence Descriptions’, Australian Government Services Australia (Web Page, 2021) <https://www. servicesaustralia.gov.au/individuals/services/centrelink/jobseeker-payment/ who-can-get-it/residence-rules/residence-descriptions>; Department of Home Affairs, ‘Subclass 444: Special Category Visa (SCV), Immigration and Citizenship (Web Page, 7 July 2021) <https://immi.homeaffairs.gov.au/visas/ getting-a-visa/visa-listing/special-category-visa-subclass-444#>. Scott Morrison and Josh Frydenberg, ‘$130 Billion JobKeeper Payment to Keep Australians in a Job’ (Media Release, Office of the Prime Minister of Australia, 30 March 2020) <https://www.pm.gov.au/ media/130-billion-jobkeeper-payment-keep-australians-job>.

25 Unions NSW, Wage Theft: The Shadow Market (Report, 14 December 2020) 2. 26 Unions NSW, No Worker Left Behind (Report, 17 August 2020). 27 Laurie Berg and Bassina Farbenblum ‘“I Will Never Come to Australia Again”: New Research Reveals the Suffering of Temporary Migrants During the COVID19 Crisis’, The Conversation (online, 17 August 2020) <https://theconversation. com/i-will-never-come-to-australia-again-new-research-reveals-the-sufferingof-temporary-migrants-during-the-covid-19-crisis-143351>. 28 Joo-Cheong Tham, ‘Why Temporary Migrants Need JobKeeper’, The Conversation (online, 7 April 2020) <https://theconversation.com/ why-temporary-migrants-need-jobkeeper-135688>. 29 Ibid; International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, opened for signature 18 December 1990, 2220 UNTS 3. Article 37 cl 2 of this treaty states that ‘[w]here the applicable legislation does not allow a migrant worker and his family members a benefit, the States concerned shall examine the possibility of reimbursing interested persons the number of contributions made by them with respect to that benefit on the basis of the treatment granted to nationals who are in similar circumstances’. 30 Berg and Farbenblum, ‘“I Will Never Come to Australia Again”: New Research Reveals the Suffering of Temporary migrants During the COVID-19 Crisis’ (n 27). 31 Laurie Berg and Bassina Farbenblum, As if We Weren’t Humans: The Abandonment of Temporary Migrants in Australia During COVID-19 (Report, 2020) 6. 32 Jano Gibson and Alexis Moran, ‘As Coronavirus Spreads, “It’s Time to Go Home” Scott Morrison Tells Visitors and International Students’, ABC News (online, 3 April 2020) <https://www.abc.net.au/news/2020-04-03/ coronavirus-pm-tells-international-students-time-to-go-to-home/12119568>. 33 Berg and Farbenblum, ‘“I Will Never Come to Australia Again”: New Research Reveals the Suffering of Temporary Migrants During the COVID-19 Crisis’ (n 27). 34 The NSW Parliament enacted the Transport Administration Amendment (Travel Concession) Act 2006 (NSW), relating to government subsidised travel schemes. The government then developed regulations which discriminated against full fee-paying overseas students by limiting their access to free or concessional travel passes. This legislation applied despite any approval or direction of the Minister or the provisions of the Anti-Discrimination Act 1977 (NSW) (‘Anti-Discrimination Act’). International students could not use the Anti-Discrimination Act to challenge this discriminatory and racist action, which is what they had done prior; in 2006, international students from Sydney University challenged this practice and won. The NSW Administrative Decisions Tribunal ruled that denying international students the same travel concessions as domestic students was discrimination based on their race. Rather than complying with this decision, the NSW Parliament instead passed legislation to exempt travel concessions from the Anti-Discrimination Act: see Sydney University Postgraduate Representative Association (SUPRA) v Minister for Transport Services [2006] NSWADT 83, citing Rail Safety Regulation 1999 (NSW) cl 8; Rail Safety (General) Regulation 2003 (NSW) cl 5; Passenger Transport (Bus Services) Regulation 2000 (NSW) cl 26. 35 Paul Gregoire, ‘International Students Routinely Exploited at Work’, Griffith University Postgraduate Students Association (online, 22 May 2014) <https:// gupsa.org.au/international-students-routinely-exploited-at-work/>. 36 See Commonwealth, Parliamentary Debates, Senate, 2 December 2021, 6673–5 (Mehreen Faruqi). 37 ‘Statement Regarding Temporary Relaxation of Working Hours for Student Visa Holders’, Department of Home Affairs (Web Page, 28 May 2021) <https:// immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/student-500/ temporary-relaxation-of-working-hours-for-student-visa-holders>. 38 It is worth noting that the reliance on these individuals and their communities became very clear when the NSW government implemented a harsh lockdown on certain ‘areas of concern’ in South Western and Western Sydney in July 2021. Initially, this lockdown was going to restrict all non-essential frontline workers from leaving their local government area, but this was quickly overturned when large food retailers, factories and other industries highlighted the reliance of the whole of greater Sydney on the work conducted by those living in these communities. See ‘This is Who is Allowed to Travel for Work if You Live in the Fairfield, CanterburyBankstown and Liverpool LGAs’ ABC News (online, 19 July 2021) <https://www. abc.net.au/news/2021-07-18/who-in-sydney-is-an-authorised-worker/100302384>. 39 A study conducted by the ANU Centre for Social Research and Methods showed that ‘Asian-Australians have had a worse trajectory in their own outcomes during the pandemic’, that they are ‘more likely to be anxious and worried due to COVID-19 than the rest of the Australian population’, and that their economic situation also declined, with the number of hours worked by Asian-Australians dropping by ‘more than twice the drop for the rest of the Australians population.’ While the reasons for this could be due to a number of factors, such as ‘choices made by Asian-Australians’ and ‘unobserved characteristics’, the report also states that the significant difference in the decline of hours worked ‘may also be due to employers (potential or current) discriminating against Asian-Australians and treating them differently based on their ethnicity’: Nicholas Biddle, Matthew Gray and Jieh Yung Lo, The Experience of Asian-Australians During the COVID-19 Pandemic: Discrimination and Wellbeing, (Report, 28 October 2020) ii, 2, 6, 12. 40 Future legislative and policy reforms must recognise the disproportionate negative impact this pandemic and governments’ responses to it have had on sections of our community. As Biddle, Gray and Lo conclude, ‘[a] strong argument can be made … for continuing to track outcomes for AsianAustralians separately from the rest of the population, investigating in more depth what the causes of this divergence are’: ibid 12.

Jenny Leong MP, Inequality Pandemic

COVID-19 Relief Measures Australia’s Indifference to Temporary Migrants

Kathryn Viegas and Gopika Aryad

Kathryn Viegas is a Director of Nomos Legal. She holds degrees in Psychology and Law from the University of New South Wales, a Graduate Diploma in Legal Practice from the Australian National University and a Master of Laws from the University of Sydney. Kathryn has practiced immigration law since 2003 and is an Accredited Specialist in Immigration Law. She has presented continuing education programmes through Nomos, the Law Society of NSW and other organisations. She currently teaches the Graduate Diploma in Migration Law at Victoria University. Kathryn is the current President of the Management Committee of the Immigration Advice and Rights Centre and the Secretary of Diverse Women in Law. She also sits on the Specialist Accreditation Immigration Law Advisory Committee in NSW. Gopika Ayyappan Aryad is a second-year Juris Doctor student at UNSW. She has completed undergraduate studies in Law/Arts at the University of Kerala, India. She currently works as a Paralegal at Ivisapoint Migration Services. Gopika’s legal studies have inculcated in her an interest in Migration Law, and through her work experience, she has gained an understanding of the practical issues involved in the Australian migration process. She is passionate about research and policy reform relating to refugee rights and hopes to develop her skills in that area of law.

Australia had its first taste of the impact of the COVID-19 pandemic in March 2020, when a range of laws and policies were introduced to protect the public health of those living in the country. As of 31 March 2020, this included 2.17 million temporary migrants.1 Of these, 281,179 held a bridging visa, 567,924 held a student visa, 206,025 held a visitor visa, 17,223 held a temporary protection visa and the remainder held a temporary visa based on their employment or training.2 Of these temporary visa holders, the majority would have had permission to work in Australia. This article explores some of the issues faced by certain temporary visa holders in the wake of the COVID-19 pandemic. This article then considers the impact of governmental relief measures on employed temporary visa holders. This article finally considers whether this response was an appropriate one, taking into account the approaches adopted in other countries. There is no universally accepted definition of the term ‘migrant’. For the scope of this article, the definition by the United Nations Department of Economic and Social Affairs, that an international migrant is ‘any person who changes his or her country of usual residence,’ is adopted.3 Accordingly, international students and other temporary visa holders in Australia are within the scope of this definition. I

The Initial Impact of COVID-19 on Temporary Visa Holders

In March 2020, the Australian government introduced a range of urgent and necessary measures to protect the wider community from the rapidly spreading COVID-19 virus. These measures included border closures, lockdowns and the introduction of physical distancing requirements, amongst others, which had a serious impact on businesses across the country and their staff. The resultant impact on the tourism, retail and hospitality sectors, all of which employ a large number of temporary visa holders, was devastating.4 The JobKeeper and JobSeeker packages were the prime relief measures of the government during the COVID-19 pandemic. JobKeeper supported businesses significantly affected by COVID-19 by paying a subsidy to help them to continue paying employees.5 The aim was to help employers maintain their connection to their employees so that these businesses would be able to reactivate their operations quickly and without having to recruit staff after the pandemic. This payment was only available in relation to ‘eligible employees’, and an employee’s visa status was relevant to whether or not they were considered to be an ‘eligible employee’.6 Australian citizens, Australian permanent residents and certain New Zealand citizens qualified for the purposes of this test, whereas temporary visa holders, such as student visa holders, did not. It is worth noting that New Zealand citizens in Australia, as holders of subclass 444 Special Category visas, were considered to come within the definition

Court of Conscience Issue 15, 2021

of an ‘eligible employee’, making this cohort of New Zealand citizens the only temporary visa holders who were eligible for JobKeeper payments.7 Similarly, the JobSeeker payment provided fortnightly payments to eligible Australian permanent residents and citizens of working age who were looking for work. 8 New Zealand citizens were again treated differently to the majority of temporary visa holders, with certain Special Category visa holders eligible for payments.9 Apart from this, there was no government support for the majority of temporary visa holders who had lost their jobs and were looking for work. In introducing the JobKeeper and JobSeeker packages, the government explained that their primary obligation was towards Australian citizens and permanent residents, and that a lack of financial resources prevented them from including temporary visa holders within these relief packages.10 Whilst it is true that a government has a duty of care primarily towards its citizens and permanent residents, the government’s decision to intentionally overlook Australia’s moral obligation towards the many temporary visa holders who live and work in Australia attracted criticism. Part of this criticism focused on the fact that temporary visa holders contribute substantially to the Australian economy and are taxed at the same rate as Australian citizens and permanent residents. The majority of the temporary visa holders who were excluded from government support packages had made a contribution to the Australian economy through their employment and education. Therefore, to treat them differently for the purposes of social support seemed harsh.11 Further, Australia, being a party to seven core international human rights treaties, has binding legal obligations to respect, protect and fulfill a core set of basic human rights for individuals in Australia, including those who are not citizens or permanent residents.12 As the pandemic continued on through 2020, many temporary visa holders faced a loss of work and therefore income.13 The fact that JobKeeper did not extend to temporary visa holder employees undoubtedly played a part in this; with many businesses already feeling the economic impact of the pandemic, an employer’s decision in respect of which employees were to be retained through the pandemic inevitably involved consideration of who would be eligible for JobKeeper and who would not be. The loss of employment had a particularly harsh consequence for Temporary Skill Shortage (‘TSS’) visa holders. TSS visa holders are subject to a condition on their visas that requires them to remain in employment.14 If they cease employment (for any reason) for a period of 60 consecutive days, this results in a breach of this condition and could result in visa cancellation.15 For many, this meant the additional pressure of finding another job or being forced to consider leaving Australia, neither of which were feasible options in the middle of a global pandemic.16 In addition to losing employment and income, many international students also faced a lack of family support because of the impact of the pandemic in their home countries, which in turn hindered their family’s financial capacity.17 A lack of income affected the ability of international students to meet their basic living needs.18 In July 2020, 14% of international students faced homelessness, 28% were unable to pay for their meals, 18% were unable to pay for heating or electricity and 10% were unable to pay for essential medicine.19 Benevolent organisations and universities provided some financial support for international students, and emergency grants in the form of one-off payments of up to $1,000 also provided some financial support.20 Whilst there was some welcome support for international students, the majority of temporary workers did not have access to similar grants or financial support. As a result, some unscrupulous employers used these financial constraints as exploitative tools in the workplace.21 Many temporary workers reported working in return for food and housing rather than wages, receiving a reduced hourly wage, engaging in unpaid work, and were forced to do tasks that they did not want or were not comfortable with.22 Such exploitation was faced by 14% of students, 12% of Temporary Graduate visa holders and 10% of TSS or subclass 457 visa holders.23 Temporary workers also reported suffering verbal abuse, harassment, physical violence and instances of racism during COVID-19.24 The Prime Minister’s position that temporary visa holders experiencing such hardship could simply return to their country of birth appeared overly harsh and arguably ignored the substantial contributions made by temporary visa holders to the Australian economy.25 His comments also seemed to overlook the practical difficulties experienced by many temporary visa holders who were hampered by travel restrictions, difficulty finding affordable flights, and a worsening COVID-19 situation in their home countries.26

Kathryn Viegas and Gopika Aryad, COVID-19 Relief Measures

Court of Conscience Issue 15, 2021

This exclusion of temporary visa holders from social security policies also raised concerns in terms of a worsening public health crisis. The concern was that temporary visa holders would be forced to work in the informal labour market to ensure their financial stability and would be prevented from accessing medical attention due to their lack of financial resources.27 Their financial position may also have pushed them to work even when they were sick, potentially worsening the impact of the pandemic and placing an already overburdened health system under additional pressure.28 Shadow Minister for Home Affairs, Senator Kristina Keneally remarked, ‘[t]hey could be left with no choice but to unknowingly spread the virus as they are forced to keep working or keep seeking work’.29 The decision to exclude certain temporary visa holders from government support packages therefore had adverse impacts across the economy, particularly in those sectors that are heavily reliant on temporary visa holders. Various government policies, including the closure of Australia’s international borders to non-Australian citizens and permanent residents, have been predicted to reduce the migration rate, which will eventually create employment gaps in these sectors and hinder economic growth.30 II

Relief Packages to Meet the Needs of Temporary Visa Holders

As the pandemic continued through 2020 with no signs of easing, the government allocated $22 million over a six-month period to the Australian Red Cross to deliver emergency relief and counselling support to the most vulnerable temporary migrants.31 This was a one-off emergency relief payment and the Australian Red Cross itself acknowledged that the payments would be insufficient to meet the needs of many temporary visa holders.32 The government also relaxed the 40 hour per fortnight work limitation for international students, but this relaxation was limited to students working in certain ‘critical’ fields, including those working for aged care providers, disability support services and healthcare.33 Temporary visa holders were also given permission to access their superannuation, if required. This was obviously only of benefit to those who were not working for cash and had a reasonable amount of superannuation to draw from. 34 Further, some temporary visa holders discovered that their employers had not made payments in line with their obligations or were unable to because of their own financial issues. 35 The COVID-19 early release of superannuation was only available between 19 April 2020 and 31 December 2020.36 Whether this short duration was beneficial to temporary visa holders can only be answered with quantitative data from the Australian Taxation Office. III

Australian Policies Compared to Those In the UK and Canada

Australia was by no means the only country grappling with how to support temporary visa holders within its boundaries. For this article, we chose to compare Australia with the United Kingdom (‘UK’) and Canada, as these two countries were significantly more affected by the pandemic than Australia.37 Both also have a considerable population of temporary visa holders. In contrast to the Australian government, the Jobseeker Allowance in the UK provided unemployment payments to an employee who had the right to work in the country and was affected by the pandemic.38 Similarly, the Canada Emergency Response Benefit also provided financial support to employed and self-employed residents who were affected by the pandemic.39 The UK and Canadian Governments also allowed temporary migrants access to subsidy payments and initiated other support payments to ensure temporary visa holders were not unfairly disadvantaged.40 As an example, the Canadian government provided funding to the provinces and states to increase the wages of low-income essential workers in nursing homes and the farming sector, which are roles that are typically filled by temporary migrants.41 The UK government also allowed temporary migrant workers to receive sick pay if they were required to self-isolate and could not work.42 In contrast to both these countries, Australia’s exclusion of temporary visa holders from COVID-19 relief schemes indicated a different attitude towards temporary visa holders. The Australian response appeared to focus on the fact that the majority of temporary visa holders could be — and indeed were — treated differently on the basis of their Australian visa status, whereas the UK and Canadian

Kathryn Viegas and Gopika Aryad, COVID-19 Relief Measures

examples both point to a more inclusive and compassionate approach in ensuring at least a basic level of support. IV

The Current Position in Australia

The exclusion of temporary visa holders from relief packages available to citizens and permanent residents was inconsistent with guidance from the United Nations43 as well as several international conventions that Australia is a signatory to.44 Many of these principles underpin the Fair Work Act 2009 (Cth), which treats migrant workers as within its scope.45 The exclusion also contradicts the legislative intention behind some of the visas accessed by temporary workers. For example, the TSS visa was created to enable Australian employers to fill suitably skilled positions within a business that could not be filled via the Australian labour market.46 These members of staff may have brought new skills to the employer or perhaps were willing to work in a part of the country where it is typically challenging to find staff. In addition, most employers who nominate candidates for a TSS visa go through a formal process of testing the Australian labour market before being able to nominate a candidate for a TSS visa, meaning that they have already established a genuine need for the visa-holding staff member. To then deny these employers JobKeeper on the basis of having hired non-Australian staff seems inconsistent with the intention and purpose of the visa in the first place. The impact of this will be most keenly felt in sectors of the economy that rely heavily on TSS visa holders. Considering that the top four sectors that accessed the TSS visa to 31 December 2020 were Information Media and Telecommunications, Health Care and Social Assistance, Professional, Scientific and Technical and Accommodation and Food Services, the long-term impact on the correlating sectors of the economy will be significant both in terms of lost revenue as well as a loss of knowledge and skill.47 In a similar vein, student visas are granted with permission to work up to 40 hours per fortnight, acknowledging the need for many student visa holders to work part-time to support themselves whilst in Australia. Whilst this limitation has been removed for a small cohort of student visa holders in limited industries, given that the employers of student visa holders were not eligible for JobKeeper, it may have made sense to allow student visa holders to, for example, apply for a temporary waiver of this work limitation on the basis of financial hardship.48 It is interesting to see that the government has changed its position as Australia comes to terms with the July 2021 COVID-19 outbreak. Currently, temporary visa holders can access COVID-19 disaster payments if they have lost at least 8 hours of work due to the restricted movement order. The payment ranges from $450 to $750 depending on the hours of work lost.49 The initiative does cater to the financial needs of some temporary residents and to some extent makes up for the lack of governmental support during the first phase of COVID-19. It is too early to determine whether this payment serves its intended purpose, particularly in light of some of the issues that emerged in 2020, such as the fact that many temporary visa holders engage in cash in hand jobs. V

Conclusion

Extended periods of residence provide a basis for community membership, regardless of migration status.50 Asking temporary visa holders to return home or purposefully excluding them from relief packages fails to recognise their contributions to the Australian community and assesses a person’s value based on their visa status. For many temporary visa holders, Australia is the country in which they live, work and study — it is their home, regardless of the fact that they are not Australian permanent residents or citizens. To have abandoned them at a time when they needed support neglects our moral obligation as a nation and may well have a long-lasting impact on our international reputation, as well as our ability to attract skilled migrants to Australia as we tackle the post-COVID-19 rebuilding of our economy. According to figures presented to the Inquiry into Australia’s Skilled Migration Program, Australia has already lost over 500,000 temporary visa holders over the course of the pandemic and our net overseas migration has dropped to the lowest figure in the last five years.51 The impact of this will be particularly evident in areas of our economy that are traditionally reliant on temporary visa holders, such as hospitality, the information technology sector, the aged care sector and agriculture. Peak bodies representing a range of industries spoke to this in the above-mentioned Inquiry, noting

Court of Conscience Issue 15, 2021

ASIC v Kobelt

that temporary skilled migration plays a vital role in workforce planning, particularly in regional Australia. The practical effect of these departures is that economic recovery is going to take time. Australia is going to have to work hard to reach our pre-COVID-19 economic position, and temporary visa holders will play a critical role in filling skills shortages once our borders reopen. It is reasonable to assume that there will be significant global competition for talent as the pandemic eases, and how a country treats their temporary residents may well become a deciding factor for many prospective migrants. It is too soon to quantify the impact of our COVID-19 support policies on temporary migrants and whether they will continue to find Australia a migration destination of choice. We can only hope that the shift in government policy between March 2020 and July 2021 has had something to do with the government’s recognition of the vital role that temporary visa holders play in Australia and goes some way to appeasing these vital members of Australia’s community.

References 1

Department of Parliamentary Services, ‘Temporary Visa Holders and Social Security: A Quick Guide’ (Research Paper, Parliament of Australia, 15 May 2020) 1. 2 Ibid. 3 United Nations Department of Economic and Social Affairs Statistics Division, Recommendations on Statistics of International Migration, UN Doc ST/ESA/ STAT/SER.M/58/Rev.1 (31 December 1998) 9 [32] (emphasis omitted). 4 Heli Askola, Helen Forbes-Mewett and Olha Shmihelska, ‘Migrant Precariousness in the Time of COVID-19: Migrant Workers, Risks and Rights’ (Report, Castan Centre for Human Rights Law and Monash Migration and Inclusion Centre, Monash University, January 2021) 3–5. 5 ‘Employers’, Australian Taxation Office (Web Page, 16 September 2020) <https://www.ato.gov.au/general/jobkeeper-payment/employers/>. 6 Ibid. 7 ‘Your Eligible Employees’, Australian Taxation Office (Web Page, 6 October 2020) <https://www.ato.gov.au/General/JobKeeper-Payment/Employers/ Your-eligible-employees/>. 8 ‘JobSeeker Payment’, Services Australia (Web Page, 3 June 2021) <https://www. servicesaustralia.gov.au/individuals/services/centrelink/jobseeker-payment>. 9 ‘Residence Rules’, Services Australia (Web Page, 1 April 2021) <https://www. servicesaustralia.gov.au/individuals/services/centrelink/jobseeker-payment/ who-can-get-it/residence-rules>. 10 Ben Doherty, ‘Australia’s Coronavirus Relief Exclusions Prove We Are Not All In This Together’, The Guardian (online, 23 April 2020) <https://www.theguardian.com/australia-news/2020/apr/23/ australias-coronavirus-relief-exclusions-prove-we-are-not-all-in-this-together>. 11 Sonja Duncan, ‘Has Covid-19 Exposed the Impacts of Australia’s Neoliberal Immigration Policies? A Critical Review of Australia’s Ambivalence Towards Temporary Migrant Inclusion and Protection’ (2021) University of New South Wales Law Journal Student Series No 21–3. 12 ‘International Human Rights System’, Attorney-General’s Department (Web Page) <https://www.ag.gov.au/rights-and-protections/ human-rights-and-anti-discrimination/international-human-rights-system>. 13 Laurie Berg and Bassina Farbenblum, As If We Weren’t Humans: The Abandonment of Temporary Migrants in Australia During COVID-19 (Report, 17 September 2020) 17. 14 Migration Regulations 1994 (Cth) sch 8 item 8607. 15 Ibid; Migration Act 1958 (Cth) s 116(1)(b). 16 Nick Bonyhady and Eryk Bagshaw, ‘Up to 1.6 Million Temporary Workers Face Being Trapped With No Job or Welfare’, The Sydney Morning Herald (online, 24 March 2020) <https://www.smh.com.au/politics/federal/up-to-1-6-milliontemporary-workers-face-being-trapped-with-no-job-or-welfare-20200324p54ddn.html>. 17 Berg and Farbenblum (n 13) 6. 18 Ibid 7. 19 Ibid. 20 Ibid. 21 Ibid 34. 22 Ibid. 23 Ibid. 24 Ibid 8. 25 Jano Gibson and Alexis Moran, ‘As Coronavirus Spreads, “It’s Time to Go Home” Scott Morrison Tells Visitors and International Students’ ABC News (online, 3 April 2020) <https://www.abc.net.au/news/2020-04-03/ coronavirus-pm-tells-international-students-time-to-go-to-home/12119568>. 26 Ibid. 27 Bonyhady and Bagshaw (n 16). 28 Ibid. 29 Ibid. 30 Askola, Forbes-Mewett and Shmihelska (n 4) 4–5. 31 ‘Emergency Relief National Coordination Plan’, Department of Social Services (Web Page, 26 August 2021) <https://www.dss.gov.au/

communities-and-vulnerable-people-programs-services-emergency-relief/ emergency-relief-national-coordination-plan>. 32 ‘Emergency Relief Support for People on Temporary Visas’, Australian Red Cross (Web Page) <https://www.redcross.org.au/get-help/ help-for-migrants-in-transition/help-for-migrants-in-transition>. 33 ‘Temporary Relaxation of Working Hours for Student Visa Holders’, Department of Home Affairs (Web Page, 25 October 2021) <https:// immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/student-500/ temporary-relaxation-of-working-hours-for-student-visa-holders>. 34 Catalina Florez, ‘International Student Andres Tried to Access His Super but Realised it Had Never Been Paid’, SBS News (online, 29 June 2020) <https:// www.sbs.com.au/news/international-student-andres-tried-to-access-his-superbut-realised-it-had-never-been-paid>. 35 Ibid. 36 ‘Early Access to Your Super’, Australian Taxation Office (Web Page. 9 September 2021) <https://www.ato.gov.au/individuals/super/withdrawing-andusing-your-super/Early-access-to-your-super/#Compassionategrounds>. 37 ‘Covid Map: Coronavirus Cases, Deaths, Vaccinations by Country’, BBC News (online, 6 November 2021) <https://www.bbc.com/news/ world-51235105>. 38 ‘Jobseeker’s Allowance’, Government of the United Kingdom (Web Page) <https://www.gov.uk/jobseekers-allowance/eligibility>. 39 ‘Canada Emergency Response Benefit (CERB): Closed’, Government of Canada (Web Page, 30 April 2021) <https://www.canada.ca/en/services/benefits/ei/ cerb-application.html>. 40 ‘Guidance: Check Which Employees You Can Put on Furlough to Use the Coronavirus Job Retention Scheme’, Government of the United Kingdom (Web Page, 14 May 2021) <https://www.gov.uk/guidance/check-which-employeesyou-can-put-on-furlough-to-use-the-coronavirus-job-retention-scheme>; ‘Canada Emergency Wage Subsidy (CEWS)’, Government of Canada (Web Page, 22 October 2021) <https://www.canada.ca/en/revenue-agency/services/ subsidy/emergency-wage-subsidy.html>. 41 ‘Expanding Access to the Canada Emergency Response Benefit and Proposing a New Wage Boost for Essential Workers’, Government of Canada (Web Page, 17 April 2020) <https://www.canada.ca/en/department-finance/news/2020/04/ expanding-access-to-the-canada-emergency-response-benefit-and-proposinga-new-wage-boost-for-essential-workers.html>. 42 ‘Statutory Sick Page (SSP)’, Government of the United Kingdom (Web Page) <https://www.gov.uk/statutory-sick-pay/eligibility>. 43 United Nations Committee on Protection of Rights of All Migrant Workers and Members of Their Families and UN Special Rapporteur on the Human Rights of Migrants, Joint Guidance Note on the Impacts of the COVID-19 Pandemic on the Human Rights of Migrants (26 May 2020) 2–3. 44 ‘Human Rights Explained: Fact Sheet 7’, Australian Human Rights Commission (Web Page) <https://humanrights.gov.au/our-work/education/ human-rights-explained-fact-sheet-7australia-and-human-rights-treaties>. 45 Fair Work Act 2009 (Cth) ss 12–13. 46 Explanatory Statement, Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (Cth) 1. 47 Department of Home Affairs, Australian Government, Temporary Resident (Skilled) Report (Report, 31 December 2020) <https://www.homeaffairs.gov.au/ research-and-stats/files/temp-res-skilled-quarterly-report-311220.pdf>. 48 Migration Regulations 1994 (Cth) reg 1.08. 49 ‘How Much You Can Get’, Services Australia (Web Page, 19 October 2021) <https://www.servicesaustralia.gov.au/individuals/services/centrelink/covid19-disaster-payment-new-south-wales-if-you-dont-get-centrelink-payment/ how-much-you-can-get>. 50 Joo-Cheong Tham, ‘Why Temporary Migrants Need JobKeeper’, The Conversation (Web Page, 7 April 2020) <https://theconversation.com/why-temporarymigrants-need-jobkeeper-135688>. 51 Joint Standing Committee on Migration, Parliament of the Commonwealth of Australia, Inquiry into Australia’s Skilled Migration Program (Interim Report, 18 March 2021) 7.

Kathryn Viegas and Gopika Aryad, COVID-19 Relief Measures

An Illustration of the Problems in Applying Community Values in Novel Situations

Kavita Balendra

Kavita Balendra is a practising Barrister at 4th Floor Wentworth Chambers in Sydney. Kavita has a wide practice acting for both plaintiffs and institutional defendants and regularly represents people from diverse ethnic and socio-economic backgrounds, including from marginalised and vulnerable communities. Kavita is a current member of the Australian Bar Association’s Diversity and Inclusion Committee, a member of the NSW Bar Association’s Bar News Committee, a past member of the NSW Bar Association’s Diversity and Equality Committee and Common Law Committee and was Secretary of the NSW Women Barrister’s Forum. Kavita also teaches advocacy through the Law Society of NSW’s Law Excellence Seminars as well as the NSW Bar Association. Kavita has a Bachelor of Science (Hons) in Neuroscience, a Bachelor of Laws (Hons) and a Masters of Law all from the University of Sydney.

Unconscionable conduct, particularly as defined within ss 12CB and 12CC of the Australian Securities and Investments Commission Act 2001 (Cth) (‘ASIC Act’), has been assumed to be conduct that can be objectively characterised as falling short of standards of commercial practice.1 Allsop CJ in Paciocco v Australia and New Zealand Banking Group Ltd 2 suggested that the evaluation of such conduct ‘does not involve personal intuitive assertion’.3 Instead, it is an examination of ‘every connected circumstance that ought to influence its determination upon the real justice of the case’.4 This is measured against norms and standards of commercial behaviour including: [A] rejection of trickery or sharp practice; fairness when dealing with consumers; the central importance of the faithful performance of bargains and promises freely made; the protection of those whose vulnerability as to the protection of their own interests places them in a position that calls for a just legal system to respond for their protection … the importance of a reasonable degree of certainty in commercial transactions; the reversibility of enrichments unjustly received; the importance of behaviour in a business and consumer context that exhibits good faith and fair dealing; and the conduct of an equitable and certain judicial system that is not a harbour for idiosyncratic or personal moral judgment and exercise of power and discretion based thereon. 5 The implied assumption therefore is that there are objective standards of commercial conduct, which are norms of Australian society, against which conduct can be measured to determine whether it is unconscionable or not. But what of those situations where standards of commercial conduct are measured against a community outside of the so-called norm? One of the questions that then arises is in those circumstances when judges are asked to apply ‘community values’ to a situation which is accepted to be outside of mainstream Australian practice: are the values being applied really that of the community, and if so, whose values are they and more importantly whose values should they be? I

Australian and Securities and Investment Commission v Kobelt (2019) 267 CLR 1

In remote Aboriginal communities there is limited access to banking and credit facilities.6 What occurs is a system called ‘book-up’, where a customer gives a storekeeper some form of security (usually access to wages or welfare payment)

Court of Conscience Issue 15, 2021

in return for credit.7 The storekeeper then has the customer’s authority to access these payments to pay for debts incurred by the customer or pay for goods bought by the customer. Book-up developed with ‘the entitlement of Aboriginal people to social security payments … and the consequent receipt by them of such payments’. 8 There are recognised advantages of the book-up system, including that it was often the only way to access credit, it provided a means of managing money, and addressed cultural expectations such as demand sharing.9 On the edge of the Anangu Pitjantjatjara Yankunytjatjara Lands in the far north of South Australia, is a town called Mintabie which is 45km west of Marla located on the Stuart Highway.10 Mintabie has a general store, called ‘Nobbys Mintabie General Store’, which is run by Mr Kobelt.11 Nobbys sells a range of goods including food, groceries, general goods, and second-hand cars.12 By late 2011, 80% of the store’s patronage were Aboriginal, many of whom relied upon credit extended through the store based on the book-up system.13 Mr Kobelt required, ‘as a condition of the provision of credit, that his Bookup customers provided him with a debit card … linked to the bank account into which their wages or Centrelink payments were made as well as their PIN’.14 The arrangement was that Mr Kobelt would take the whole of the money in the account but would allow his customers to use half for their own purposes. The customers could obtain access to their half of the money by coming back to the store and purchasing goods from the store.15 It is clear that the book-up system was the only means of supplying credit to these customers.16 Importantly, Mr Kobelt did not maintain records showing the balance available to each customer.17 Moreover, most of the credit that was extended to his customers was for the use of second-hand vehicles.18 It was determined that book-up customers ended up paying about $1,000 more for a second-hand vehicle through the book-up system than people who paid by cash.19 It was noteworthy that all but one of the customers to whom book-up was provided were Indigenous.20 Mr Kobelt ‘did extend credit to non-Aboriginal persons, but on different arrangements’.21 Justice White, the judge at first instance, found that Mr Kobelt’s Anangu customers considered that he ‘had treated them well and were well-disposed towards him’,22 and were satisfied with the book-up arrangement. During the trial, expert evidence was obtained from anthropologists to explain the culture of the Anangu people within this rural community. Furthermore, during the trial, the court travelled to the Mintabie, and saw the community within which the Anangu people lived. Nonetheless, the question at issue was this – was the conduct of Mr Kobelt unconscionable (that is, was it taking unfair advantage of his customers) under ss 12CB and 12CC of the ASIC Act? A The Decisions Below At first instance, his Honour Justice White determined that while the freedom of the Anangu people must be respected, regard must be had to the particular vulnerabilities of the customers.23 Justice White was conscious that the court should not take a paternalistic view of what is in the best interests of the Anangu people, noting that the ‘freedom of action of the Anangu as citizens of Australia and their entitlement to make decisions in their own interests is to be respected’.24 Nevertheless, Justice White determined that the conduct of Mr Kobelt was unconscionable.25 The decision was appealed, and the Full Bench of the Federal Court unanimously overturned the first instance decision. Their Honours Besanko, Gilmour and Wigney JJ found that Nobbys’ customers understood the basic elements of the book-up arrangement and voluntarily entered into it.26 They considered that there were benefits to the customers in that they avoided demand sharing and the boom and bust cycle.27 They also found that the book-up system is not unique and was practised in some form in many parts of regional and remote areas of Australia.28 A final consideration was the conduct of Mr Kobelt himself, where it was accepted that he was not predatory in the relevant sense.29 The Australian Securities and Investment Commission (‘ASIC’) then appealed the decision to the High Court and asked it to consider three issues:

Kavita Balendra, ASIC v Kobelt

Whether the vulnerability of the customers was outweighed by their basic understanding of the book-up system and their voluntary entry into it;

Court of Conscience Issue 15, 2021

2. 3.

Whether or not Mr Kobelt was predatory and exploitative and the weight to be attached to findings that Mr Kobelt acted with a ‘degree of good faith’; and Whether ‘historical and cultural norms and practices’ excused behaviour which would otherwise be unconscionable.30

1 The High Court Decision It was not in dispute that the book-up system that was under consideration was ‘unacceptable in mainstream Australian society’. 31 At issue was whether such a system was rendered acceptable in circumstances where the Anangu people, who it was accepted lacked the financial knowledge of most people in Australian society, chose to enter the system for the benefits it provided, including for the alleviation of certain cultural practices such as demand sharing. 2 The Majority Three of the justices whose decisions formed the majority relied on cultural considerations in forming their decision. Importantly they considered that, as the book-up system reflected aspects of a culture that did not form part of mainstream culture, it was inappropriate that a court override the choice that the Anangu people make in agreeing to the conditions of the book-up system. In their joint judgment Kiefel CJ and Bell J reflected this belief by emphasising the choice that the Anangu people made. Their Honours stated that the ‘basic elements’ of the book-up system were understood by the Anangu customers and that:

The terms on which book-up credit was supplied were perceived by the Anangu customers to be appropriate. This perception was not the product of the Anangu customers’ lack of financial literacy: it reflected aspects of Anangu culture that are not found in mainstream Australian society. Book-up credit has a long history in rural and remote Indigenous communities. In this context, Mr Kobelt’s supply of book-up credit was not out of the ordinary. 32

His Honour Justice Gageler reflected a similar view. His Honour considered that unconscionable conduct as proscribed in the ASIC Act was conduct that ‘is so far outside societal norms of acceptable commercial behaviour as to warrant condemnation as conduct that is offensive to conscience’.33 His Honour however found that ASIC’s argument failed in the application of the normative standards found in s 12CB of the ASIC Act ‘to accommodate societal norms of acceptable commercial behaviour to the peculiar circumstances of the case’.34 While acknowledging the argument that the book-up system would be ‘patently unacceptable conduct elsewhere in modern Australian society’,35 his Honour relied on anthropological evidence, and determined that cultural considerations fed into the choice that the Anangu people made to participate in Mr Kobelt’s book-up system. His Honour suggested that failing to accept the choice of the Anangu people fails ‘to afford to the Anangu people the respect that is due to them within contemporary Australian society’.36 His Honour did not consider that there was a sufficient basis to ‘question the choice made by Mr Kobelt’s Anangu customers, much less to question the ability of those customers to make it’.37 Justice Keane, whose decisions rounded out the majority, determined that the appeal should be dismissed on other grounds, namely that it had not been established that ‘the respondent engaged in conduct which can properly be characterised as unconscionable’.38 B The Minority The minority decisions are not without their own issues. They take an arguably less pragmatic approach emphasising the objective nature of the book-up system rather than the subjective circumstances of the Anangu people. In doing so, they gave greater weight to the suggestion that the book-up system did not accord with the values espoused by broader Australian society but gave less weight to the unique situation of the Anangu people. For instance, Nettle and Gordon JJ in their joint judgment stated that it may be possible for an innocent party to make an ‘independent or rational judgment’ about entering a ‘bad bargain’, but that does not operate to transform an ‘exploitative arrangement’. 39 They soundly reject any suggestion that this approach is paternalistic, stating: [I]t is not paternalistic to assess the vulnerability of Mr Kobelt’s customers and whether that vulnerability was exploited. It is not paternalistic to take into account that the view of a vulnerable party of a transaction will be shaped by context and circumstance. Equally, it is not paternalistic to look at the transaction and the position of the parties objectively.40

In determining that they would take an objective view of the transaction, they declined to draw a distinction between mainstream Australian society and the Anangu people. They pointed out that ‘[s]urely, anywhere else with any other customer, such an arrangement would be regarded as unconscionable. It is no answer to say that the customers were Anangu people. It is no answer to say that the customers agreed’.41 Justice Edelman in his judgment rather succinctly stated his issue with the book-up system: [T]he system of credit adopted by Mr Kobelt is one that would be unacceptable in mainstream Australian society. It is made less acceptable, not more acceptable, because it was the only form of credit offered, and thus accepted, in remote communities of highly vulnerable persons in need of credit.42 II

Whose Values?

The question that the High Court was asked to consider was a curious one. It was asked to examine a credit system, which was accepted to be ‘outside mainstream Australia’, and to determine whether it was appropriate for a particular community of rural Indigenous people. The problem, of course, is the assumption that these rural and Indigenous communities which rely on the book-up system are not part of mainstream Australian society. If, as had been previously suggested, ss 12CB and 12CC provided norms of acceptable commercial behaviour, why were the circumstances of the Anangu people treated differently from that of Australian society as a whole?

Kavita Balendra, ASIC v Kobelt

Court of Conscience Issue 15, 2021

The acceptance of this assumption as valid resulted in the immediate ‘othering’ of the Anangu people.43 This was compounded by the way the hearing was run. The community within which the Anangu people lived was considered so far outside the experience of the judiciary that evidence from anthropologists was utilised to explain the culture of the Anangu people within this rural community. Only the trial judge experienced first-hand the community within which the Anangu people lived as he travelled there, and the overturning of his decision is telling. The High Court was asked to accept that the financial services provided to a vulnerable and disadvantaged population should be considered within a cultural context that in effect compounded these disadvantages. The appeal questioned if norms of acceptable commercial behaviour applicable to broader Australian society were also applicable to this disadvantaged group. What was lost in not having a bench that reflected a more diverse spectrum of community values, is the questioning of this proposition, and perhaps a more nuanced approach to resolving the issue. For it is difficult to see how such a proposition would have been accepted if even one of the appeal judges had lived experience of the system they were asked to consider or had lived experience of such a community. The result is that the High Court may have provided too little protection to a group of vulnerable people and entrenched the very disadvantages that created the vulnerabilities in the first place.44 There are, of course, strong policy reasons to raise issues with the manner in which these questions were considered in Australian Securities and Investment Commission v Kobelt.45 If services that fall short of acceptable in mainstream society are allowed to be provided to vulnerable and disadvantaged populations, we as a society are effectively ensuring that these populations continue to be disadvantaged.46 One of the effects of this tacit acceptance of continued disadvantage is the current health crisis sweeping through vulnerable and disadvantaged Indigenous populations in Western NSW47, which in turn has brought to the fore the inequities that continue to be propagated in Australia.

References 1 2 3 4 5 6

7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29

Paciocco v Australia and New Zealand Banking Group Ltd (2016) 258 CLR 525, 587 [188] (Gageler J). (2015) 236 FCR 199 (‘Paciocco’). Ibid 199 [296]. Jenyns v Public Curator of Queensland (1953) 90 CLR 113, 119. Paciocco (n 2) 199 [296]. ‘Aboriginal and Torres Strait Islander Consumers’ Interactions with Financial Services’ (Background Paper No 21, Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry, 22 June 2018) 4. Australian Securities and Investment Commission v Kobelt (2019) 267 CLR 1, 9. Kobelt v Australian Securities and Investment Commission [2018] FCAFC 18, [119] (Besanko and Gilmour JJ) (‘Kobelt v ASIC’). Ibid [122]. Australian Securities and Investment Commission v Kobelt [2016] FCA 1327, [18] (White J). Ibid [1]. Ibid [20]. Ibid [21]. Ibid [28]. Ibid [30]. Ibid [34]. Ibid [57]. Ibid [2]. Ibid [144]–[145]. Ibid [71]. Ibid [71]. Ibid [588]. Ibid [589]. Ibid [619]. Ibid [612]. Kobelt v ASIC (n 8) [266]. Ibid [262]. Ibid [261]. Ibid [267].

30 Australian Securities and Investment Commission v Kobelt (2019) 267 CLR 1, 29 [55] (Kiefel CJ and Bell J). 31 Ibid 107 [313] (Edelman J). 32 Ibid 35–6 [78]–[79]. 33 Ibid 40 [92]. 34 Ibid 45 [107]. 35 Ibid 46 [110]. 36 Ibid. 37 Ibid 46 [111]. 38 Ibid 47 [115]. 39 Ibid 62 [157]. 40 Ibid 62 [160]. 41 Ibid 86 [260] (Nettle and Gordon JJ). 42 Ibid 107 [313] (emphasis in original). 43 John Powell and Stephen Menedian, ‘The Problem of Othering: Towards Inclusiveness and Belonging’ Othering and Belonging (online, 26 June 2017) <https://otheringandbelonging.org/the-problem-of-othering/>. 44 Rachel Yates and Sharmin Tania, ‘The Place of Cultural Values, Norms and Practices: Assessing Unconscionability in Commercial Transactions’ (2019) 45(1) Monash University Law Review 232, 248; Henry Materne-Smith, ‘All is Fair in Love and Remote Indigenous Communities? ASIC v Kobelt’ (2019) 368 ALR 1’ (2020) 41(1) Adelaide Law Review 325. 45 (2019) 267 CLR 1. 46 Productivity Commission, Introducing Competition and Informed User Choice into Human Services: Reforms to Human Services (Report No 85, October 2017) 268–271; Peter Whiteford, ‘Australia: Inequality and Prosperity and Their Impacts in a Radical Welfare State’ (Research Paper, Social Policy Action Research Centre, The Australian National University, March 2013) 69, 64–66. 47 Bhiamie Williamson, ‘The COVID-19 Crisis in Western NSW Aboriginal Communities is a Nightmare Realised’, The Conversation (online, 16 August 2021) <https://theconversation.com/the-covid-19-crisis-inwestern-nsw-aboriginal-communities-is-a-nightmare-realised-166093>; Lucy Thackray and Olivia Ralph, ‘First Nations Fears Grow in Western NSW as One Family Reports 40 COVID Cases’, Australian Broadcasting Corporation (online, 8 September 2021) <https://www.abc.net.au/ news/2021-09-08/40-covid-cases-one-indigenous-family-nsw/100445290>.

Kavita Balendra, ASIC v Kobelt

Whose Lore is It Anyway? An Analysis of the Parasitic Interaction Between Lore and Law

Kirby Pearson*

I am born of the conquerors, you of the persecuted. Raped by rum and an alien law …1

Kirby is a proud Dhungutti and Biripi penultimateyear student at UNSW Law. Professionally, Kirby works for Allens as a paralegal and has been involved in a number of matters concerning the issues faced by Indigenous Australians. Kirby is passionate about making a difference for Indigenous Australians by educating others about the unique challenges faced by his culture. He has worked on a number of projects in his career, such as the Centre for Crime, Law and Justice submissions to the NSW Attorney-General on the minimum age of criminal responsibility; The Public Defender’s Bugmy Bar Book; and the most recent edition of Treaty – a publication by George Williams and Harry Hobbs. He hopes to continue this important work into the future, and continue to author scholarship.

Indigenous Australians hold a deep, spiritual, and even emotional connection with the land.2 This connection is because of the important relationship Indigenous Australians have with the lore of the land – the Dreaming, which prescribes the ‘blueprint’3 for every aspect of life.4 This paper argues that the greatest threat to the preservation of lore is the Australian legal system’s failure to afford appropriate recognition to lore. Instead, the Australian legal system effectively immobilises lore to the extent that it is not operative. Dominant state legal systems should grant autonomy to non-state legal systems in order to ensure fidelity to the tenets of legal pluralism, namely the existence and operation of two legal systems in one geography. The Australian legal system’s failure to accord sufficient recognition to the value of legal pluralism has gradually encroached on lore, resulting in adverse and unjust judicial outcomes for Indigenous peoples. Many examples of this failure to acknowledge legal pluralism exist, including land rights and native title,5 commercial and consumer issues,6 and most notably in the area of criminal law.7 Firstly, I begin by conceptualising legal pluralism, drawing on Tamanaha’s understandings of pluralism following colonisation by focusing on the recognition of native title. 8 I then draw on the contemporary example of strip searches, where the judicature has been called upon to consider this interaction, criticising both institutional competency and the ways in which the State reconciles incompatibilities. Finally, I propose that we entrust Indigenous entities such as tribal courts to administer and preserve lore. I

Definitional Distinction

Preliminarily, a fundamental distinction ought to be drawn as to the difference between lore and law. Lore is a complex and varied system which recognises not only rules, but norms, rights, and relationships between everything in existence.9 The definition of ‘law’ can be philosophically divisive, but for the purposes of this paper, I merely mean the statutory instruments enacted by Parliament and judicial determinations made in the interpretation or application of those instruments. Although homonyms, the Dreaming of Indigenous Australians (the lore) is distinct from Western law.10 Lore was originally viewed as inept at providing a mechanism for an organised society.11 Of late, this has been subject to historical and anthropological revisionism.12 Pascoe understands that all interactions between Indigenous peoples and clans were

Court of Conscience Issue 15, 2021

regulated by strict rules.13 Lore is more than just rules, and in this way, is more comprehensive than law.14 Lore has been described as ‘genius’ in the sense that Indigenous peoples could collectively assent to a system of rules without there being legislation.15 In essence, there exists two distinctive legal systems within Australia16 – better known as legal pluralism. II

Legal Pluralism

Legal pluralism is where two or more legal systems coexist within the same social field.17 Legal pluralism is most often achieved where a state legal system recognises and operates alongside cultural norms, traditions, and institutions.18 Accepting that legal pluralism is a contested concept,19 it is not sufficient for the state to merely accept as a matter of fact that another legal system exists within the same geography.20 Thus, where the state attempts to, or successfully destroys lore, it cannot be said that there are ‘two … legal orders coexist[ing] in the same social field’,21 as the state action renders lore inoperable. We therefore arrive at the distinction between ‘state pluralism’ and ‘deep pluralism’. The former has been labelled a legacy of colonialism whereby the state retains the ultimate authority to enact law.22 Deep legal pluralism can be characterised as truly cooperative as the state accepts that it does not hold a monopoly over the ability to make or apply law.23 The preferable approach to pluralism is one that does not include significant curtailment of non-state lore, but instead endorses a cooperative system of autonomy and mutual respect. The Australian approach to pluralism can be characterised as state legal pluralism on the basis that the state decides what elements of lore to give effect to.24 A Pluralism Post-Invasion The process of colonisation was a major contributing factor to the creations of these competing legal systems,25 not only in Australia but globally. Tamanaha postulates that there were four different approaches taken by colonial superpowers to attempt a harmonious exchange between distinctive legal systems: (1) to leave customary law and practices to function as they had, especially in areas where the colonists were not interested in expanding to; (2) incorporating customary law by codifying it in statute; (3) incorporating customary law by entrusting state courts with the application of the laws; and (4) recognising customary law and entrusting customary courts administered by the community.26 The Australian system does not fit neatly within Tamanaha’s categories of legal pluralism but subjugates them. In effect, the archetype of legal pluralism at play is ‘combative legal pluralism’,27 but not in the sense prescribed by Swenson insofar as Indigenous lore does not ‘actively seek to destroy’28 the Australian legal system. The reverse, however, cannot be said. Instead, I propose that this intersection be more aptly named ‘parasitic legal pluralism’ whereby the Western legal system encroaches upon Indigenous lore. The initial approach adopted by the Imperial Parliament and successive Australian governments towards Indigenous lore has reflected a desire to extinguish it. The reception of English law in Australia was based upon the doctrine of Terra Nullius — meaning land belonging to no one, or land that is possessed in such a way that sovereignty and property rights are not established.29 By declaring Australia Terra Nullius, the intention of the Imperial Parliament was to introduce British law into the new colony,30 and to ensure that there was no recognised competing legal system.31 Although this legal fiction32 has been challenged,33 remnants of this flawed understanding of Australia prior to invasion still pervade Australian law,34 evidenced by the failure of Parliament to effectively recognise and accept Indigenous lore.35 One attempt at defining the more contemporary interaction between lore and law was made by prominent Cape York Aboriginal leader, Noel Pearson. Pearson argued, in the context of native title, that a ‘recognition space’36 was created whereby the Western legal system was required to acknowledge and work with Indigenous lore.37 Consequently, the type and extent of native title rights are not restricted by statute but are derived from the lore of the native title holders. 38 This conceptualisation of native title is reinforced when considering the decision-making processes of the registrar, court, or delegate. In one instance, the Native Title Tribunal was asked to determine the boundaries of a claim where the lore set the sea boundary at ‘as far as the eye can see’, 39 requiring a unique interaction between

Kirby Pearson, Whose Lore is It Anyway

Western and Indigenous understandings of property boundaries. It is plausible that on the topic of native title, the interaction between lore and law fits within Tamanaha’s third category of legal pluralism. On the other hand, native title under statute has been conceptualised as a process of deterritorialisation and subsequent reterritorialisation40 of Indigenous land to fit a Western understanding of law. Native title is not lore, but a recognition of lore by the common law,41 which has been enshrined within the Native Title Act 1993 (Cth). Importantly, however, this regime recognises mechanisms of ownership beyond Western understandings, thus conforming to Tamanaha’s second category of legal pluralism. As well as recognising legal pluralism, the native title regime seeks to qualify when or if native title arises. For example, native title rights will not be enforceable if there is an extinguishing act.42 The effect of extinguishment is a grant of compensation,43 which arguably ignores the importance of land to Indigenous peoples. In granting compensation, the Court’s task is to ‘determine the essentially spiritual relationship which the [native title holders] have with their country and to translate the spiritual hurt from the compensable acts into compensation’.44 The codification of lore is therefore not verbatim, but subject to qualifications by the Parliament, demonstrating a subtle means by which lore is undermined.

III

Recent Case Study: Not So Secret Women’s Business

The judicature has frequently been asked to consider issues beyond land rights which involve Indigenous customs and lore.45 These cases indicate a more systemic concern about Australia’s recognition and application of Indigenous customs and lore. In Lacey v Attorney-General (NSW) (‘Lacey’),46 the New South Wales Court of Appeal considered whether evidence containing gender sensitive materials under lore could be viewed and scrutinised by the opposite sex. A central element of the prosecution’s case, as well as the defendant’s case, was footage of a strip search conducted in Wagga Wagga police station, which shows the defendant’s chest and buttocks.47 According to Mutthi Mutthi and Wemba Wemba lore, it would bring shame upon Lacey if her naked figure was to be viewed by any man.48 The Court agreed that there were instances where a defendant could apply to have certain people excluded from viewing evidence where it is gender-sensitive,49 drawing an analogy to the powers of the Federal Court when hearing native title claims.50 However, the Court rejected the appeal on the basis that the failure to grant an order by the Children’s Court did not ‘affect the dispositive reasoning of the magistrate.’51 The trial judge made two significant findings which were not disturbed on appeal. Firstly, where the prosecution’s case rests almost entirely on the testimony of members of the opposite gender, the exercise of the power to restrict particular gendered officers or actors would offend the proper administration of justice. 52 Similarly, the primary judge reasoned that because some men would be present, it did not matter that the magistrate was male. 53 This reasoning demonstrates a high level of apathy towards the cultural sensitivities of women’s business and

Court of Conscience Issue 15, 2021

Indigenous lore. It instead endorses the philosophy of ‘come one, come all’ — that if one can see the video, why should others be precluded. Both of these arguments are premised upon the distinct lack of personnel.54 This decision demonstrates that in circumstances of inconsistency, the primacy of the Western law is retained irrespective of the social and anthropological importance of lore. This belief may be reflective of the archaic understandings of lore, such as it being unintelligible and inferior. 55 Secondly, and perhaps more critically, this exemplifies my argument that the court sets down a principle, virtually signalling the intention of respecting lore and then curtailing the circumstances it is applicable to the extent that it is practically inapplicable. IV

Normative Implications of Current Approach

There are three concerning implications of Australia’s approach to lore. The first being an issue of recognising the existence of lore, but not necessarily practising legal pluralism. Secondly, that neither the judiciary nor the Parliament may be institutionally competent to adjudicate disputes concerning Indigenous lore. Finally, the issue of lore and law may be polycentric, meaning that it cannot be adjudicated by a court at all. A Value Judgements as a Means of Reconciling Inconsistencies The courts acknowledge the existence of lore but do not accept that it sits on equal footing with law. In common law countries without a regime recognising Indigenous customs,56 the judicature has frequently been criticised for heralding law as ‘legitimate’57 and supreme over lore. 58 The courts often make value judgements to determine which system should prevail. In this regard, the Australian legal system does recognise the existence of lore. It does not grant autonomy to Indigenous communities to apply and practice lore. Instead, state pluralism is practiced whereby the state gives effect to lore to the extent that lore is consistent with Western ideals. It appears the Court endorsed a utilitarian value judgement in Lacey. As the dispute only affected one Indigenous person, the rules of appeal must be strictly applied so as not to disrupt the entire system. However, in recognising that it may affect many more Indigenous persons in the future, the Court confirms that an application to have a female-only or male-only courtroom for particular evidence is possible.59 This reflects a similar tendency to the United States Supreme Court whereby the Court treats Indigenous customs as anachronistic, thus legitimising the encroachment of lore.60 This treatment can subsequently be attributed to the lack of cultural sensibilities of the judicature. The courts are faced with an ‘alien law’ because they cannot understand it yet are required to decide without the expertise necessary to do so. In other contexts, Australian courts have preferred giving efficacy to law over lore where Indigenous practices and lore do not accord with Western understandings,61 and therefore cannot be recognised by the judicial system. This is especially true when the law is viewed as conferring a benefit on Indigenous peoples.62 B Institutional Competency The primary concern of the current model — that is, entrusting the application and consideration of lore to the state courts — is one of institutional competency. Each organ of government is said to have a specific competence or expertise.63 The recurring criticism is that neither the judiciary nor the Parliament has the expertise or the resources to adjudicate on disputes concerning Indigenous lore.64 Importantly, the High Court seems resigned to the fact that the act of invasion is non-justiciable and sits outside of the confines of the common law.65 Further, the other organ of government, the Parliament, cannot be considered the ‘correct’ body to determine Indigenous affairs for two key reasons. Firstly, distinctive from the United States, Australia does not have an express prescription that Parliament must positively discriminate when legislating with respect to affairs within or between Indigenous nations.66 Whilst the Constitution prescribes that Parliament has the power to make laws for the people of any race,67 there is no obligation that the law confers a benefit upon Indigenous peoples.68 Secondly, there is no objective criterion a judiciary could apply to determine the limits of Indigenous sovereignty or lore.69 Thus, there remains a significant question as to who can adequately determine disputes concerning indigenous lore. Much of the work that the judicature faces is culturally diverse,70 whether it is the litigants, the jurisdiction or the evidence. The court as an organ can impact culture through judicial decision-making.71 Thus, where the gravity of the decision-

Kirby Pearson, Whose Lore is It Anyway

making must be appreciated, so too must the importance of understanding the cultures that it adjudicates on. Where a legal system does not attempt to create a level of cultural sensibility, then it could be said that the judicature is not culturally sensitised, especially where it continues to practice a Western one-size-fits-all approach notwithstanding a cognisance of the existence of Indigenous lore.72 Thus, Australia’s approach to pluralism invokes a doctrine whereby the judicature can make a determination in which they may not be sensitised to or knowledgeable in the subject matter being adjudicated. However, the question of institutional competency or judicial cultural sensitivity could propose a much broader concern over the ability to adjudicate notwithstanding increased expertise.73 C Fuller’s Theory of Polycentricity The failure to practice cooperative legal pluralism should be characterised as a polycentric problem,74 derived from the fact that judicial decision-making on the interaction between lore and law could produce an infinite amount of change to other factors beyond mere legalisms.75 Through its judicial determination, a court could cause significant ripples to the Indigenous way of life. Similarly, the decision to apply the procedural rules of appeal in Lacey has now meant that the applicant risks being shunned from her community.76 Given that this exclusion could result in adverse health outcomes,77 decreased education outcomes78 and increase the propensity for criminality,79 the orders of the Court have far greater impacts than merely who is in the courtroom when the video is played. The effect of characterising this relationship as polycentric means, in Fuller’s analysis, that the dispute is unfit for adjudication by the court. 80 Obviously, the answer is not to leave these disputes unresolved. Instead, the judicial apparatus needs to endorse procedural reform to ensure that disputes can be resolved in a way in which the effects of the decision can be less pervasive. 81 V

Tribal Courts as an Alternative

Thus, I turn to briefly consider the elusive, yet normatively desirable, fourth category proposed by Tamanaha.82 The Australian legal system can accommodate law and lore by creating customary courts which are entrusted with the application of customary lore. This system would also require proponents of lore and law to practice mutual respect for one another.83 By having a non-state body to administer lore, the Australian legal system would move from combative legal pluralism to cooperative legal pluralism — where both systems retain a level of authority and autonomy.84 This system would allow for Indigenous lore to be recognised in a way which does not subvert it or mandate the enshrinement of lore as state law, 85 whilst entrusting the application of lore to competent institutions. Recognition via these means protects non-state Indigenous lore, shielding lore from disruptive legislation in the face of inter-normative tension and problematic or combative legal pluralism. 86 In fact, Indigenous peoples are hesitant to allow the codification of lore, as it could result in the effective loss of control. 87 This hesitancy represents, perhaps unintentionally, a desire to shift from state legal pluralism to deep legal pluralism. Many Indigenous clans have already established forms of tribal courts which operate independently of, but alongside, the Western legal system. One such example is the Lajamanu Kurdiji Group, which is a community court hearing matters involving defendants from the local Indigenous clans.88 Whilst Indigenous incarceration rates have escalated between 1996 and 2014, the Lajamanu Court recorded a substantial decline (50%) in the overall number of criminal cases over the same period.89 Community courts are not exclusively for criminal matters. They can be utilised for a wide range of matters including family law disputes and other civil disputes.90 These examples are distinctive from what I define as ‘quasi-tribal courts’ — courts which engage the Indigenous community more than the Western legal system but are heavily regulated by the state. Under this model, the Koori Court would not qualify as a tribal court as its operation is dependent upon the state recommending an offender to the court, which applies Western law. The only difference appears to be the setting and the introduction of an Indigenous elder into the process. The experience of community justice mechanisms interacting with ‘white law’91 has been generally negative, whereby state law has often superseded

Court of Conscience Issue 15, 2021

community justice.92 This interaction reinforces the characterisation of the relationship between law and lore as parasitic. Furthermore, it is clear that the proponents of tribal courts are willing to engage with the Western legal system.93 Again, the reverse cannot be said.94 This failure to engage with lore may be symptomatic of the concern that it may be discriminatory for the law to recognise cultural difference, as the aim of law is to treat all identically.95 Similarly, there are significant criticisms of tribal courts, including the informal procedures and the lack of respect which may be generated from this informal forum.96 Again, this criticism is based on a comparison with the Western legal system without having regard to the cultural practices of Indigenous groups. The conceptualisations of justice in Indigenous groups can be likened to methods of alternative dispute resolution under Western law, whereby informality is a cornerstone of these processes.97 VI

Conclusion

The relationship between lore and law is problematic at best and parasitic at worst. Australian governments have created a trajectory towards the disintegration of lore. Where the judicature has been asked to deliberate on issues concerning lore, it has subverted lore in favour of law by reverting to a value judgement based on Western ideals leading to undesirable results. The way forward is to view the interaction through the lens of deep legal pluralism, understanding that there are other normative systems other than the hegemonic Western legal system. One such method of achieving deep legal pluralism in Australia is to entrust lore to institutions which are competent and culturally appropriate, such as tribal courts.

References *

A special thank you to Angad Randhawa and Tamar Shifroni for their ongoing support and assistance with drafting this article. Their insights were extremely valuable in making this article more accessible notwithstanding the complex subject matter. 1 Judith Wright, ‘Two Dreamtimes’ in Oodgeroo Noonuccal, My People (John Wiley & Sons, 4th ed, 2007) 116, 119. 2 James Anaya, ‘Indigenous Peoples’ Participatory Rights in Relation to Decisions About Natural Resource Extraction: The More Fundamental Issue of What Rights Indigenous Peoples Have in Lands and Resources’ (2005) 22(1) Arizona Journal of International and Comparative Law 7, 7–8; Poh-Ling Tan and Sue Jackson, ‘Impossible Dreaming: Does Australia’s Water Law and Policy Fulfil Indigenous Aspirations?’ (2013) 30(2) Environmental and Planning Law Journal 132, 132. 3 EA O’Keefe, ‘Towards an Understanding of the Significance of “The Dreamtime” to Aboriginal People’ (1984) 12(4) Australian Journal of Indigenous Education 50, 50. 4 Ronald Berndt, ‘Traditional Aboriginal Life in Western Australia: As It Was and Is’ in Ronald M Berndt and Catherine H Berndt (eds) Aborigines of the West: Their Past and Their Present (University of Western Australia Press, 2nd ed, 1980) 1, 14–15; WEH Stanner, White Man Got No Dreaming: Essays 1938-1973 (Australian National University Press, 1979) 23–40; John Morton, ‘A Murder of Monsters: Terror and Morality in an Aboriginal Religion’ in Yasmine Musharbash and Geir Henning Presterudstuen (eds) Monster Anthropology in Australasia and Beyond (Palgrave Macmillan, 2014) 75, 75. 5 In Kartinyeri v Commonwealth (1998) 195 CLR 337, the High Court rejected the protection of the heritage area on the basis of the Royal Commission into the Hindmarsh Island Bridge (Final Report, December 1995) which found the evidence to be fabricated. Cf Chapman v Luminis Pty Ltd (No 4) (2001) 123 FCR 62, which rejected the Royal Commission’s finding: at 115 [199] (von Doussa J). 6 See Australian Securities and Investments Commission v Kobelt (2019) 267 CLR 1 which rejected wealth sharing as a facet of Indigenous life worthy of protection. 7 See TR v Constable Cox [2020] NSWSC 389 which failed to protect the sanctity of a woman’s body in Indigenous culture. 8 Brian Z Tamanaha, ‘Understanding Legal Pluralism: Past to Present, Local to Global’ (2008) 30(3) Sydney Law Review 375, 383. Tamanaha asserts that colonial superpowers attempted to create a harmonious exchange of rules and customs, however, this process did not remain harmonious. 9 Irene Watson, ‘Buried Alive’ (2002) 13(3) Law and Critique 253, 255. See also Ambelin Kwaymullina and Blaze Kwaymullina, ‘Learning to Read the Signs: Law in an Indigenous Reality’ (2010) 34(2) Journal of Australian Studies 195. 10 Daniel F Robinson and Margaret Raven, ‘Recognising Indigenous Customary Law of Totemic Plant Species: Challenges and Pathways’ (2020) 186(1) Geographical Journal 31, 33.

11 Bruce Pascoe, Dark Emu (Magabala Books, rev ed, 2018) 180, 183; Kurt G Johannsen, A Son of ‘The Red Centre’ (1992) 60–1; Edward Palmer, Early Days in North Queensland (Angus and Robertson, 1903) 213. 12 See, eg, Jeanmarie Pinto, ‘Peacemaking as Ceremony: The Mediation Model of the Navajo Nation’ in Hamdesa Tuso and Maureen P Flaherty (eds) Creating the Third Force: Indigenous Processes of Peacemaking (Lexington Books, 2016) 163, 163. See also Pascoe (n 11). 13 Pascoe (n 11) 186. 14 James Gurrwanngu Gaykamangu, ‘Ngarra Law: Aboriginal Customary Law from Arnhem Land’ (2012) 2(4) Northern Territory Law Journal 236, 244. 15 Ian Keen, Aboriginal Economy and Society: Australia at the Threshold of Colonisation (Oxford University Press, 2004) 244. 16 See Shane Chalmers, ‘Terra Nullius? Temporal Legal Pluralism in an Australian Colony’ (2020) 29(4) Social and Legal Studies 463 who uses the language of duplicitous law to distinguish between western law and Indigenous lore in Australia: at 464. See generally Kayleen Hazlehurst, Legal Pluralism and the Colonial Legacy: Indigenous Experiences of Justice in Canada, Australia and New Zealand (Aldershot, 1995); Deborah Rose, Indigenous Customary Law and the Courts: PostModern Ethics and Legal Pluralism (Australian National University North Australia Research Unit, 1996). 17 Geoffrey Swenson, ‘Legal Pluralism in Theory and Practice’ (2018) 20(3) International Studies Review 438, 438–9; Sally Engle Merry, ‘Legal Pluralism’ (1988) 22(5) Law & Society Review 869, 870. 18 Brian Z Tamanaha, ‘The Rule of Law and Legal Pluralism in Development’ (2011) 3(1) Hague Journal on the Rule of Law 1, 6. 19 Jennifer Corrin, ‘Exploring the Deep: Looking for Deep Legal Pluralism in the South Pacific’ (2017) 48(2) Victoria University Wellington Law Review 305, 306. See also Brian Z Tamanaha, Law as a Means to an End: Threat to the Rule of Law (Cambridge University Press, 2006) 11–14. 20 Corrin (n 19) 305–6; Bradford W Morse and Gordon R Woodman, ‘Introductory Essay: The State’s Options’ in Bradford W Morse and Gordon R Woodman (eds) Indigenous Law and the State (Foris, 1988) 5, 10–11. 21 Corrin (n 19) 305. See also Margaret Davies ‘Legal Pluralism’ in Peter Cane and Herbert M Kritzer (eds) The Oxford Handbook of Empirical Legal Research (Oxford University Press, 2010) 805, 805. 22 Corrin (n 19) 306–7; John Griffiths, ‘What is Legal Pluralism?’ (1986) 24(1) The Journal of Legal Pluralism and Unofficial Law 1, 8. 23 Corrin (n 19) 306; Helen Dancer, ‘Harmony with Nature: Towards a New Deep Legal Pluralism’ (2021) 53(1) The Journal of Legal Pluralism and Unofficial Law 21, 31. 24 Sue Farran and Jennifer Corrin, ‘Developing Legislation to Formalise Customary Land Management: Deep Legal Pluralism or a Shallow Veneer’ (2016) 10(1) Law and Development Review 1, 8. 25 See generally Lauren Benton, Law and Colonial Cultures: Legal Regimes in World History: 1400-1900 (Cambridge University Press, 2002); Lauren Benton and Richard J Ross (eds) Legal Pluralism and Empires: 1500-1850 (New York

Kirby Pearson, Whose Lore is It Anyway

University Press, 2013); Paul Schiff Berman, ‘Sally Engle Merry and Global Legal Pluralism’ (2020) 54(4) Law & Society Review 839, 840. 26 Brian Z Tamanaha, ‘Understanding Legal Pluralism: Past to Present, Local to Global’ (n 8) 383. 27 Swenson (n 17) 443. 28 Ibid 456. 29 Andrew Fitzmaurice, ‘The Genealogy of Terra Nullius’ (2007) 38(129) Australian Historical Studies 1, 4. 30 See Cooper v Stuart (1889) 14 App Cas 286. 31 Australian Law Reform Commission, Recognition of Aboriginal Customary Laws (Report No 31, 11 June 1986) 29 [39]. 32 Mabo v Queensland (No 2) (1992) 175 CLR 1, 58 (Brennan J). 33 Ibid 45 (Brennan J). 34 Nigel Parbury, ‘Terra Nullius: Invasion and Colonisation’ in Rhonda Craven (ed) Teaching Aboriginal Studies (Routledge, 2nd ed, 2011) 68. Parbury notes that the legacy of Terra Nullius survives: at 69. 35 See Irene Watson, ‘Indigenous Peoples’ Law-Ways: Survival Against the Colonial State’ (1997) 8(1) Australian Feminist Law Journal 39, 40. 36 A recognition space is defined as an area of interaction between Indigenous and non-Indigenous societies: Benjamin R Smith, ‘Towards an Uncertain Community? The Social Effects of Native Title in Central Cape York Peninsula’ in Benjamin R Smith and Frances Morphy (eds) The Social Effects of Native Title: Recognition, Translation, Coexistence (Australian National University Press, 2007) 117, 118. 37 Noel Pearson, ‘The Concept of Native Title at Common Law’ in Galarrwuy Yunupingu (ed) Our Land is Our Life: Land Rights (University of Queensland Press, 1997) 150, 154. 38 Lisa Strelein, ‘Conceptualising Native Title’ (2001) 23(1) Sydney Law Review 95, 99. 39 Re Gangalidda and Garawa Peoples [2011] NNTT QC04/5, 31 (Ms Renee Wallace). 40 Paul Patton, Deleuze and the Political (2000, 1st ed, Routledge) 129; Paul Patton, Deleuzian Concepts: Philosophy, Colonisation, Politics (Stanford University Press, 2010) 103. 41 Mabo v Queensland (No 2) (1992) 175 CLR 1, 60–1 (Brennan J), 81, 82, 86–7 (Deane and Gaudron JJ), 187 (Toohey J). See also Justice Robert French and Patricia Lane, ‘The Common Law of Native Title in Australia’ (2002) 2(1) Oxford University Commonwealth Law Journal 15, 23; Strelein (n 38) 98. 42 See, eg, Native Title Act 1993 (Cth) s 24FA. 43 Ibid ss 24FA(1)(c), s 17(1). 44 Northern Territory v Griffiths (2019) 269 CLR 1, 86 [155] (Kiefel CJ, Bell, Keane, Nettle and Gordon JJ). 45 See, eg, Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141; R v Wedge (1976) 1 NSWLR 581; Mabo v Queensland (No 2) (1992) 175 CLR 1; Kartinyeri v Commonwealth (1998) 195 CLR 337. 46 [2021] NSWCA 27 (‘Lacey’). 47 Ibid [51] (McCallum JA). 48 Ibid [3] (Basten JA), [52] (McCallum JA). 49 Ibid [119] (McCallum JA). 50 Ibid [116] (McCallum JA). 51 Ibid [36] (Basten JA). 52 TR v Constable Cox [2020] NSWSC 389 [46], [49] (Wilson J). 53 Ibid [49]. 54 See, eg, ibid [42] (Wilson J). 55 Pascoe (n 11) 183; Johannsen (n 11) 60–1; Palmer (n 11) 213. 56 See, eg, Constitution of the Independent State of Papua New Guinea 1975 (Papua New Guinea) sch 1.2 which enshrines the customs of the Indigenous population. See also Maori Land Act 1993 (NZ). 57 Craig Proulx, ‘Blending Justice: Interlegality and the Incorporation of Aboriginal Justice into the Formal Canadian Justice System’ (2005) 51(1) Journal of Legal Pluralism and Unofficial Law 79, 82. 58 Susan G Drummond, Incorporating the Familiar: An Investigation into Legal Sensibilities in Nunavik (McGill-Queens University Press, 1997) 136. 59 Lacey (n 46) [119] (McCallum JA). 60 Michalyn Steele, ‘Comparative Institutional Competency and Sovereignty in Indian Affairs’ (2014) 85(3) University of Colorado Law Review 759, 762; David H Getches, ‘Conquering the Cultural Frontier: The New Subjectivism of the Supreme Court in Indian Law’ (1996) 84(6) California Law Review 1573, 1573–4. 61 See, eg, Australian Securities and Investments Commission v Kobelt (2019) 267 CLR 1, 23 [35] (Kiefel CJ and Bell J). 62 Ibid 33 [68] (Kiefel CJ and Bell J), 51 [126] (Keane J). 63 Felix Frankfurter and Henry M Hart Jr, ‘The Business of the Supreme Court at October Term: 1934’ (1935) 49(1) Harvard Law Review 68, 90–1. 64 See, eg, David Milward, ‘Freeing Inherent Aboriginal Rights from the Past’ in Richard Albert, Paul Daly and Vanessa MacDonnell (eds) The Canadian Constitution in Transition (University of Toronto Press, 2019) 275. 65 Shaunnagh Dorsett and Shaun McVeigh, ‘Just So: “The Law Which Governs Australia is Australian Law”’ (2002) 13(3) Law and Critique 289, 290. 66 In United States Constitution art I § 8. See also Delaware Tribal Business Commission v Weeks 430 US 73, 84 (1977), the Court expanded the power to include the affairs of Indian nations.

67 Australian Constitution s 51(xxvi). 68 See George Williams, ‘The Races Power and the 1967 Referendum’ (2007) 11 Australian Indigenous Law Review 8, 10 citing Kartinyeri v Commonwealth (1998) 195 CLR 337. Cf Kartinyeri v Commonwealth (1998) 195 CLR 337. Kirby J (dissenting) concluded that the power could only be used to legislate for the benefit of Indigenous peoples: at 411. See generally Western Australia v Commonwealth (1995) 183 CLR 373, where the High Court implied a requirement of benefit. 69 Steele (n 60) 784. 70 Justice RS French, ‘Speaking in Tongues: Courts and Cultures’ (Speech, Australian Institute of Judicial Administration Annual Conference, 12-14 October 2007) [2]–[3]. 71 Ibid [36]–[8]. 72 Proulx (n 57) 82; Drummond (n 58) 136. 73 JWF Allison, ‘Fuller’s Analysis of Polycentric Disputes and the Limits of Adjudication’ (1994) 53(2) Cambridge Law Journal 367, 382. 74 See Lon L Fuller and Kenneth I Winston, ‘The Forms and Limits of Adjudication’ (1978) 92(2) Harvard Law Review 353, 394–407. 75 Jeff A King, ‘The Pervasiveness of Polycentricity’ [2008] (Spring) Public Law 101, 103–4. 76 See, eg, Elizabeth A Povinelli, ‘The State of Shame: Australian Multi-culturalism and the Crisis of Indigenous Citizenship’ (1998) 24(2) Critical Inquiry 575. 77 See generally Alison Markwick et al, ‘Inequalities in the Social Determinants of Health of Aboriginal and Torres Strait Islander People: A Cross-Sectional Population-Based Study in the Australian State of Victoria’ (2014) 13(1) International Journal for Equity in Health 91; Carrington CJ Shepherd, Jianghong Li and Stephen R Zubrick, ‘Social Gradients in the Health of Indigenous Australians’ (2012) 102(1) American Journal of Public Health 107. 78 See generally Jan Gray and Quentin Beresford, ‘A “Formidable Challenge”: Australia’s Quest for Equity in Indigenous Education’ (2008) 52(2) Australian Journal of Education 197. 79 Alexander L Gerould, Jeffrey B Snipes and Thomas J Bernard (eds) Vold’s Theoretical Criminology (Oxford University Press, 7th ed, 2015) 304. See also Linda Briskman, ‘Situating the Erosion of Rights of Indigenous Children’ (2015) 19(1) Australian Indigenous Law Review 62. 80 Fuller and Winston (n 74) 354; King (n 75) 111. 81 Allison (n 73) 382. See also King (n 75) who uses the language ‘pervasive’. 82 Tamanaha, ‘Understanding Legal Pluralism: Past to Present, Local to Global’ (n 8) 383. 83 See Ann Black, ‘Replicating “A Model of Mutual Respect”: Could Singapore’s Legal Pluralism Work in Australia?’ (2012) 44(65) The Journal of Legal Pluralism and Unofficial Law 65, 66 who posits that a similar system to Singapore with respect to Islamic law may be appropriate in Australia if there is mutual respect between the two systems. 84 Swenson (n 17) 445. 85 Dancer (n 23) 32. 86 Ghislain Otis, ‘Constitutional Recognition of Aboriginal and Treaty Rights: A New Framework for Managing Legal Pluralism in Canada?’ (2014) 46(3) The Journal of Legal Pluralism and Unofficial Law 320, 321. See also Swenson (n 17) 443; Shaun Larcom, ‘Problematic Legal Pluralism: Causes and Some Potential “Cures”’ (2014) 46(2) The Journal of Legal Pluralism and Unofficial Law 193. 87 Australian Law Reform Commission (n 31) 72 [116]; Campbell McLachlan, ‘The Recognition of Aboriginal Customary Law: Pluralism Beyond the Colonial Paradigm’ (1998) 37(2) International & Comparative Law Quarterly 368, 376. 88 Royal Commission into the Protection and Detention of Children in the Northern Territory (Final Report, 17 November 2017) vol 2B, 328. 89 Thalia Anthony and Will Crawford, ‘Northern Territory Indigenous Community Sentencing Mechanisms: An Order for Substantive Equality’ (2013) 17(2) Australian Indigenous Law Review 79, 89. 90 See generally Shelly Johnson, ‘Developing First Nations Courts in Canada: Elders as Foundational to Indigenous Therapeutic Jurisprudence’ (2014) 3(2) Journal of Indigenous Social Development 1; Elena Marchetti, Indigenous Courts, Culture and Partner Violence (Palgrave Macmillan, 2019). 91 See Gaykamangu (n 14) 248. 92 Aboriginal and Torres Strait Islander Social Justice Commissioner, Human Rights and Equal Opportunity Commission of Australia, ‘Issue 3: Law and Public Order, Including Juvenile Justice’ Submission to UN Committee on the Rights of the Child, 11 September 2003. 93 Ibid. 94 See, eg, Emma Lee, Benjamin Richardson and Helen Ross, ‘The “Uluru Statement from the Heart”: Investigating Indigenous Australian Sovereignty’ (2020) 23(1) Journal of Australian Indigenous Issues 18, 22 who criticise the Turnbull Government for the blanket rejection of the Uluru Statement without proposing avenues for reform. 95 McLachlan (n 87) 368. 96 Australian Law Reform Commission (n 31) 456 [788]. 97 Pinto (n 12) 163–6.

Court of Conscience Issue 15, 2021

How Systemic Racism Holds Australia Back A Discussion of the Lack of Cultural Diversity Within Australian Politics and the Law Peter Khalil MP

Peter Khalil is the Federal Labor Member for Wills. He was elected to parliament in 2016. Peter is Deputy Chair of the Joint Parliamentary Standing Committee on Treaties and a member of the Parliamentary Joint Committee on Intelligence and Security and the Joint Parliamentary Standing Committee on Foreign Affairs, Defence and Trade. Prior to being elected, Peter worked as an Executive Director of Strategy at SBS and was a Victorian Multicultural Commissioner. He was a national security adviser to Prime Minister Kevin Rudd and worked at both the Department of Defence and the Department of Foreign Affairs and Trade.

Any Australian person with a ‘non-Anglo-Celtic’ appearance can tell you about a time when they have been asked ‘but where are you really from?’, or worse, been on the end of racist abuse. As someone with brown skin and ‘Khalil’ as my surname growing up in 1970s and 80s Australia, I could list countless examples from my own experience. I was born in Melbourne. I identify as an Australian of North African (Egyptian) ancestry, ethnicity and cultural heritage and I am a Member of Federal Parliament. In the Australian context, ‘ethnic’ is a descriptor of a person from a non-English speaking background (‘NESB’), culturally and linguistically diverse background (‘CALD’), or a non-Anglo-Celtic, non-European and non-Indigenous background. There are a lot of negative definitions but broadly I am part of a demographic of Australians with Asian, Pacific Islander, Middle Eastern, South American, North African, and African background, essentially non-white ethnics who are non-Indigenous People of Colour (‘NIPOC’). This group makes up 21% of the Australian population.1 I

Under-Representation in Politics and Law

A Data on Representation While instances of inter-personal racist abuse have reduced over my lifetime, a more insidious institutional and structural racism persists. In Australia, what can be broadly termed ‘systemic racism’2 results in significant underrepresentation of NIPOC in the highest levels of leadership in politics and the law, where the major decisions are made that impact all Australians and shape our place in the world.3 The statistics reveal an uncomfortable reality, one that belies the oft heard claims of Australia being the most successful multicultural country in the world. While we are one of the most diverse migrant democracies in the world,4 the ‘success’ is only partial. Underrepresentation of NIPOC in our federal Parliament5 marks a failure of Australian democracy to be truly representative. There is a cognitive dissonance in the underrepresentation of NIPOC in political leadership positions – while the predominantly AngloCeltic leaders proclaim the success of multiculturalism and celebrate our diversity.6 This leadership gap diminishes social cohesion by reinforcing the view of migrants and their descendants as ‘other’. When the rhetoric of our multicultural ‘success’ is not matched by the reality of what are effectively mono-cultural centres of power, the implications for the efficacy of our democracy and our judiciary are significant.7 Under-representation of NIPOC in our parliaments is widely acknowledged.8 A 2018 study showed 78.1% of Australian parliamentarians 9 have an Anglo-Celtic10 background, 16.3% European,11 1.5% Indigenous and only 4.1% are NIPOC.12 This is compared to 58% of the Australian population that are Anglo-Celtic, 18% European background, 3% Indigenous and 21% NIPOC.13

Court of Conscience Issue 15, 2021

This under-representation is even worse in the federal ministry and among the leadership ranks of the state and federal public service.14 It has been rightly pointed out that this under-representation is a ‘symbolic indicator of social structures of inequality’ that challenges the value of our democracy. 15 While there are few comprehensive data sets focussed on cultural and ethnic diversity in Australia’s legal sector,16 the data available offers a similar story, revealing Australia’s cultural diversity is better reflected in junior legal ranks, but ‘cultural diversity appears almost non-existent within its senior echelons’.17 B Barriers to Representation Given that Australia is a diverse, multicultural, migrant country,18 why do our legal and democratic institutions not accurately reflect the diversity of our society? The overarching framework for barriers to NIPOC representation in politics and the law can only be described as a systemic exclusion. This existence of a pervasive systemic racism scaffolded by structural and institutional barriers is supported by overwhelming research.19 The numbers do not lie. Systemic racism describes the society-wide institutional favouring of some groups and the unfair treatment of other groups based on ethnicity.20 Systemic racism is pervasive but also self-perpetuating.21 It replicates because it is based on stubborn pre-existing structures of power and legacies of inequality that operate across layers of society.22 Structural disadvantage connected to ethnicity (for example inequities in wealth or access to education), overt discrimination, conscious and unconscious bias,23 instances of ‘everyday discrimination’ (‘being treated with less respect and courtesy, receiving poorer service than others at restaurants or stores, or being called names’) 24 and experiences of ‘major discrimination’ (‘being unfairly denied a promotion or job, or discouraged from continuing education’) based on ethnicity all contribute to the perpetuation of systemic racism.25

Representation in Politics A closer examination of the most basic starting point to political leadership – joining a political party – reveals that even this first step is not equally accessible. An individual’s socio-economic and ethnic status may hinder their ability to make a significant time commitment and develop, at minimum, a basic understanding of the political system.26 This creates a barrier to even beginning to participate for many NIPOC. Currently, the pipeline of people entering the political system at the grassroots is more Anglo-Celtic.27 There is a growing acknowledgment that the demographics of political parties, including the party memberships of Labor, Liberal and Greens, are out of step with the broader population particularly in relation to ethnic make-up, age, class, and education.28 The limited number of electorates where people with a NIPOC background make up the majority of the voters, is another factor, as they create momentum for NIPOC minority candidates.29 Australia also lacks a strong civil society movement supporting racial justice. We continue to struggle with our national conversation on truth telling, treaty and reconciliation with Indigenous Australians.30 Instead, Australian political parties too often use the skills of NIPOC members for recruitment in ethnic communities.31 The step up to preselected candidate for a NIPOC is rare in a winnable seat and most often restricted to non-winnable seats. 32 This demonstrates a similar pattern to the prevalent gender disparity. Given the aphorism that ‘you can’t be what you can’t see’, the stubborn lack of NIPOC role models in our political and legal systems is of ongoing concern because it questions the legitimacy of NIPOC within our society.33 When there are barely any of us visible in the parliaments and courtrooms of the country, is it any wonder we continue to be told: ‘Go back to where you came from’?. The grand claims that multicultural settler democracies provide equality, freedom, and economic opportunity regardless of ethnicity, religion or gender is not reflected in the experience of NIPOC in Australia. We are failing to match our rhetoric given these ideals are held up as a fortification for democracies against the rise of illiberal nationalism and authoritarianism.34 Contemporary changes to our immigration programs have had an impact, including the trend away from the permanent migration post-WWII towards temporary migration beginning in the mid-1990s. Pre-pandemic there were around 2.7 million migrants on temporary visas 35 in Australia and New Zealand with much longer and obfuscated pathways (often several years) towards citizenship – a further barrier to political participation.36 The uncertainty of their long-term status in Australia renders 1

Peter Khalil MP, How Systemic Racism Holds Australia Back

political participation, let alone seeking political office, not only an unattractive use of time and resources, but not even a consideration.37 In effect, the system is one of taxation without representation for temporary migrants. Unconscious bias is another element of systemic racism and can play a significant role in how a person is supported or mentored (or not) to advance in a political party.38 Even when a NIPOC is working in the political field or even considering running for political office, they will often encounter the biases of other party members, friends and family perhaps outright telling them their goal of serving as a parliamentarian can never be reached. Often this is couched in terms that an ‘ethnic’ candidate would not be able to represent the broader ‘Australian’ constituency. That is what happened to me. I was consistently told not to run for office because as an ‘ethnic’ I would not win. As I went through the federal Labor preselection process, I was told repeatedly that because of my ethnicity I would struggle to win enough votes, that my name was too ethnic and that I should shave off my goatee beard to look less ethnic! (I have kept it). There is an explicit and an implicit message that is sent from the prevailing Anglo-Celtic ethnicity in politics and the law. The push to enter ‘their’ space is rejected either outright or with obfuscated concerns about electoral success. 2 Representation in the Law The legal sector appears to have a more culturally diverse pipeline, with underrepresentation of NIPOC more prevalent at the highest levels compared to the entrylevel ranks.39 Yet numerous studies show that racial bias impacts the recruitment and employment process and disadvantages NIPOC.40 To counter this it is common practice for NIPOC candidates to ‘anglicise their names’41 to avoid name discrimination.42 Bias does not end once someone is hired. It can continue to unfairly impact the chances of promotion within an organisation, company or sector.43 3 Representation in the Corporate Sector There are sectors that have a higher representation of people from an ethnic background compared to politics or the law. For example, 33% of all small businesses in Australia are owned by migrants and 83% of migrant business owners had never owned their own business in their home country.44 This tenacity and work ethic is often one of the traits most celebrated as migrant success stories. Yet new migrants are less likely to have social and professional networks in their new country that often assist with finding a job.45 They may have qualifications from their home country that are not recognised in Australia or speak little English.46 Studies show the main motivator for migrants to start a business is greater independence (52%) whilst 16% did so because they could not find work.47 NIPOC entry into the corporate workforce tends to concentrate in more technical roles within organisations including IT, finance and administration rather than executive or senior management.48 These barriers to executive leadership in corporate Australia lead many NIPOC towards small business and ‘founder start-ups’, a phenomenon described as ‘ethnic zoning’.49 These trends reaffirm the impacts of the structural barriers faced by ethnic Australians struggling to enter the highest levels of politics and the law. II

Reform

In Australian society where discrimination based on ethnicity or religion is illegal, it is no longer the letter of the law that must change. Rather we must implement structural reform that proactively dismantles systemic racism that holds NIPOC back based on their ethnicity. A pathway to guide this reform can be seen in the success in improving gender representation in Labor’s federal parliamentary caucus. Since the Labor party introduced affirmative action (‘AA’) quotas for women in 1994, the federal Labor caucus has increased from 14% women to 48%.50 However, barriers for women advancing to leadership positions in the parliament remain.51 AA as a structural reform for NIPOC representation is a much more complicated proposition. There is disagreement on definitions.52 Cultural and ethnic identity is complex, and Australians often identify ‘with more than one cultural background’.53 Yet to see political and legal sectors that are more representative of our community in future, we do need structural reform. Quotas have been introduced for political representation of parliaments in around twenty countries.54 The reluctance within Australian political parties to adopt quotas or even voluntary targets

Court of Conscience Issue 15, 2021

for NIPOC participation remains strong but is slowly breaking down, particularly given the relative success of gender targets.55 Some political parties have started, albeit slowly, to recognise and act on the issue of under-representation.56 The corporate and legal sectors are pursuing targets. 57 But any quotas or voluntary targets for NIPOC political candidates must include corollary policies that develop talent and open opportunity. Mentorship (particularly from the few that have made it into leadership positions), internship programs, fellowships, networking groups or training programs can all proactively increase a diverse pipeline into politics and the legal sectors. 58 Workplace training programs on unconscious bias and using blind CVs,59 can also reduce the impact of bias on hiring processes and day-to-day work.60 Our education system must better educate young people about our political and legal systems, including participating as a citizen in our democracy and how to engage in the political process.61 That basic knowledge is currently low among high school students; most do not meet minimum standards.62 Citizenship is critically important — ‘the lack of inclusive citizenship policies has been shown to increase the political alienation felt by immigrants and ethnic minorities’.63 What is necessary is a recommitment to permanent settlement, citizenship and civic investment in Australia, which are prerequisites to political participation and political representation.64 There are arguments against reform including that because discrimination based on ethnicity is illegal, the statistics will change over time without intervention and that people with merit will inevitably succeed without the need to socially-engineer promotions of NIPOC into positions that they do not deserve and have not earned.65 However, the experience of gender parity for women in the Labor party shows that change only happened through the AA rules, because the rules opened opportunities.66 It wasn’t that women in the Labor party lacked merit before 1994, it was that the opportunities to progress in the party were suppressed or denied.67 The degree of difficulty for success is much higher than for men. At the political level, candidate pre-selections and advancing to the front bench are regularly based on factors other than merit, including the MP’s home state, factional alliance and whether they sit in the House or the Senate.68 Therefore, claiming a quota or voluntary target reform will limit the rise of the meritorious, at least in politics, is a non-starter. There is a more compelling reason for change. Today the highest levels of political and legal leadership are missing the benefits of contributions from a diverse range of people. That diversity is needed to provide ‘ideas, capabilities and cultural intelligence to navigate technological, social, economic and geopolitical changes’.69 This is critical for Australia as a trading nation reliant on connections with the world beyond our shores.70 Without diversity at the highest levels, we lose the experience, skills, talents and diverse perspectives of a broader cross section of our society in our decision-making process. Without this diversity, Australia is worse off, missing out on the talents of our own people to contribute to our nation.71 Our decisions, our laws and critical legal judgements are being made by a monocultural cohort of Australians who do not reflect the population at large, nor include the plurality of perspective, experience, and cultural diversity that studies have demonstrated lead to better decisions and better outcomes.72 III

Conclusion

We have come a long way in acceptance and celebration of diversity as a strength of our society. There is broad public support for multiculturalism,73 but that sentiment does not translate to the everyday experience of NIPOC, and it does not change the meagre statistics of NIPOC in positions of leadership. Support must be backed up with policies and structural reform to dismantle the pervasive systemic racism that persists. We have a way to go to see genuine multicultural success, and the inclusion necessary for its achievement, brought into the parliaments, law firms and courtrooms of Australia. This reform goes to the heart of who we are as Australians. We are already a multicultural country, but we should also be a country where the fair go is genuine, a reality for every person, no matter their ethnicity, religion, or cultural background and where every Australian has the full, unimpeded opportunity to participate in any area of our society, economy, and political life, to contribute their skills, perspective, and experience at the highest levels of decision making in the law and politics.

Peter Khalil MP, How Systemic Racism Holds Australia Back

References Australian Human Rights Commission, Leading for Change: A Blueprint for Cultural Diversity and Inclusive Leadership Revisited (Report, 11 April 2018) 7 (‘Leading for Change’). 2 The Australian Human Rights Commission offers this useful definition: ‘Systemic racism is when the policies and practices of institutions result in unfair treatment of some groups compared to others. Like everyday racism, systemic racism does not necessarily target a particular person. With systemic racism, systems of education, government and the media celebrate and reward some cultures over others. It appears in two main ways: – Institutional racism: This is when racism is established as a normal behaviour within an organisation or society. It often results in discrimination by people who are doing jobs that others have given to them. For example, police are sometimes criticised for racial profiling, and police agencies now make efforts to eliminate institutional racism; and – Structural racism: This refers to inequalities found in societies that tend to exclude some groups of people. For example, when certain groups are under-represented in fields like the media, the legal profession, or politics, it can lead to inequalities in other areas too’: ‘Systemic Racism’, Racism. It Stops with Me (Web Page, 2020) <https://itstopswithme.humanrights.gov.au/ systemic-racism> (‘Systemic Racism’). 3 This paper will focus mostly on non-Anglo migrants and Australians with migrant backgrounds, rather than Indigenous Australians – a critically important issue – but not the focus of this paper. 4 Juliet Pietsch, Race, Ethnicity, and the Participation Gap: Understanding Australia’s Political Complexion (University of Toronto Press, 2018) 10 (‘Race, Ethnicity, and the Participation Gap’), citing Jen Tsen Kwok and Juliet Pietsch, ‘The Political Incorporation of Asian-Australian Populations Since the End of White Australia’ (2017) 15(1–2) AAPI Nexus: Policy, Practice and Community 109; and Juliet Pietsch, ‘Trends in Migrant and Ethnic Minority Voting in Australia: Findings from the Australian Election Study’ (2017) 40(14) Ethnic and Racial Studies 2463. 5 Compared to the United States and Canada, Australia lags spectacularly behind: ibid 35–41. 6 Osmond Chiu, ‘Australian Politics Should be as Diverse as Its People’, The Interpreter (online, 23 March 2021) <https://www.lowyinstitute.org/ the-interpreter/australian-politics-should-be-diverse-its-people>. 7 Pietsch, Race, Ethnicity, and the Participation Gap (n 4) 12. 8 See, eg, Bernard Goh et al, ‘Representative Government: Diversity in the Next Parliament’, McKell Institute (Web Page, 9 April 2019) <https://mckellinstitute. org.au/research/articles/representative-government-diversity-in-the-46thparliament/>; Chiu (n 6); Jarni Blakkarly, ‘Australia’s New Parliament is No More Multicultural than the Last One’, SBS News (online, 21 May 2019) <https:// www.sbs.com.au/news/australia-s-new-parliament-is-no-more-multiculturalthan-the-last-one/9e3ac5cb-ce77-4914-a318-98a5ff2104b3>; Mary Sinanidis, ‘Australia’s Parliament Looks Nothing like its Multicultural Community’, Neos Kosmos (online, 26 May 2021) <https://neoskosmos.com/en/2021/05/26/news/ australia/australias-parliament-looks-nothing-like-its-multicultural-community/>; Grant Wyeth, ‘Under-Representation of Asian Australians in Politics’, Election Watch (Web Page, 24 March 2021) <https://electionwatch.unimelb.edu.au/ articles/under-representation-of-asian-australians-in-politics>; Naaman Zhou, ‘Australia’s State Parliaments Lagging on Racial and Cultural Diversity, Report Finds’, The Guardian (online, 6 August 2021) <https://www.theguardian.com/ australia-news/2021/aug/06/australias-state-parliaments-lagging-on-racial-andcultural-diversity-report-finds>; Leading for Change (n 1) 12. 9 This excludes the federal ministry which was counted separately: Leading for Change (n 1) 12. 10 The study defined ‘Anglo-Celtic’ as follows: ‘“Anglo-Celtic” describes those cultural backgrounds that are English, Scottish, Welsh and Irish’: ibid 4. 11 The study defined ‘European’ as follows: ‘“European” includes all European backgrounds other than Anglo-Celtic – including North-West European (eg, German, French, Dutch) and Southern and Eastern European (eg, Italian, Greek, Polish)’: ibid. 12 The study defined ‘Non-European’ as follows: ‘“Non-European” encompasses all other cultural backgrounds, including South-East Asian (eg, Vietnamese, Malaysian), North-East Asian (eg, Chinese, Japanese, Korean), Southern and Central Asian (eg, Indian, Sri-Lankan, Afghani), Latin American (eg, Mexican, Colombian), Middle Eastern and North African (eg, Egyptian, Turkish), Sub-Saharan African (eg, Nigerian, Zimbabwean) and Oceanic and Pacific Islander (eg, Maori, Tongan)’: ibid. 13 Ibid 7. 14 Ibid 10. 15 Pietsch, Race, Ethnicity, and the Participation Gap (n 4) 4. 16 Ingmar Taylor and Chris Winslow, ‘Data on Diversity: The 2018 Survey’ [2019] Bar News 39, 39; Leading for Change (n 1) 18. For instance, the 2020 National Profile of Solicitors analyses data based primarily on age and gender and provides data on the number of Indigenous solicitors but not detailed information on solicitors with CALD backgrounds. Similarly, a Law Society of New South Wales report that makes the business case for more diversity and inclusion in the legal profession had limited data about the CALD community to draw on: Urbis, 2020 National Profile of Solicitors (Report, Law Society of New South Wales, 1 July 2021) 2; Diversity and Inclusion Committee, Law Society of New South Wales, Diversity and Inclusion in the Legal Profession: The Business Case (Report, June 2017) 3–4. 1

17 Leading for Change (n 1) 28; Taylor and Winslow (n 16) 39; Asian Australian Lawyers Association, Submission No 42 to Australian Law Reform Commission, Review of Judicial Impartiality (14 July 2021), 4–5. 18 ‘Face the Facts: Cultural Diversity’, Australian Human Rights Commission (Web Page, 2014) <https://humanrights.gov.au/our-work/education/ face-facts-cultural-diversity>. 19 See generally the following journals Ethnic and Racial Studies; Race & Class: A Journal of Racism, Empire and Globalisation; Race and Justice: An International Journal. 20 Mary Frances O’Dowd, ‘Explainer: What is Systematic Racism and Institutional Racism’ The Conversation (online, 5 February 2020) <https://theconversation. com/explainer-what-is-systemic-racism-and-institutional-racism-131152>. 21 Ibid. 22 Ibid. 23 The Australian Human Rights Commission offers this useful definition: ‘Unconscious bias is an attitude towards a person, or a group of people, which we may not even aware of. It can be a favourable attitude, where we form positive impressions based on someone’s skin colour, surname or where they come from. Or it can be unfavourable, with negative impressions. Unconscious bias is sometimes called a hidden bias because it’s hard to detect, even in ourselves, but most people do hold some bias of one kind or another … Unconscious bias can lead to unfair outcomes for some people if it’s not addressed, particularly when it appears in organisations like schools, sports teams or workplaces. It can mean some people get preferential treatment compared to others’: ‘Unconscious Bias’, Racism. It Stops with Me (Web Page, 2020) <https://itstopswithme.humanrights.gov.au/unconscious-bias-0>. 24 Nicholas Faulkner et al, Measuring Social Inclusion: The Inclusive Australia Social Inclusion Index (Report, 20 May 2021) 16. 25 Between 2017 to 2020, 30–8% of people from ethnic minorities reported having experienced at least one form of major discrimination in the past two years: ibid. 26 Department for International Development, The Politics of Poverty: Elites, Citizens and States (Synthesis Paper, 1 June 2010) 33. 27 However, these are anecdotal observations, and demographic data on the membership of Australian political parties is extremely limited: see Rob Manwaring, ‘Parties and Representation’ in Narelle Miragliotta, Anika Gauja and Rodney Smith (eds), Contemporary Australian Political Party Organisations (Monash University Publishing, 2015) 89, 90. 28 Anika Gauja and Max Grömping, ‘Australian Labor as a Federal Organisation: State Uniformity or Distinctiveness?’ (2020) 66(1) Australian Journal of Politics and History 35, 41–2; Rob Harris, ‘Young Labor Told to Chase Working Class’, Sun-Herald (Sydney, 15 November 2020) 11; Nick Dyrenfurth, ‘Battle of Ideas’ [2020] (10) The Tocsin <https://www.curtinrc.org/the-tocsin-issue-10/#battle-ofideas>; Marcus Bastiaan, ‘Stagnant Libs Need to Renew’, Herald Sun (Sydney, 16 February 2021) 20; David Hardaker, ‘National Party Memberships Tumbles in NSW, Greens Now Have More’, Crikey (online, July 2021) <https://www.crikey. com.au/2021/07/30/national-party-nsw-membership-numbers/>. 29 Pietsch, Race, Ethnicity, and the Participation Gap (n 4) 41. 30 ‘Truth-Telling’, Reconciliation Australia (Web Page, 2021) <https://www. reconciliation.org.au/reconciliation/truth-telling/>. 31 Tom Stayner, ‘Warnings that Ethnic Communities are Being Exploited Through Branch-Stacking’, SBS News (online, 16 June 2020) <https://www.sbs.com. au/news/warnings-that-ethnic-communities-are-being-exploited-throughbranch-stacking/580fe6d6-9646-4a81-a7c2-af242a756a24>; Stephen Dziedzic, ‘Chisholm: Gladys Liu, Jennifer Yang Vie to Make History as First Female ChineseAustralian MP’, ABC News (online, 18 April 2019) <https://www.abc.net.au/ news/2019-04-18/chisholm-seat-profile-gladys-liu-jennifer-yang-history-making/1 1023902?nw=0&r=HtmlFragment>. 32 Stayner (n 31). 33 The end of Australia’s White Australia policy in 1973 and the passage of the Racial Discrimination Act 1975 (Cth) also meant Australia dismantled our legal barriers relatively recently, when compared to the United States and Canada. This legacy cannot be discounted as a driver of ethnic underrepresentation in law and politics. 34 Chiu (n 6). 35 International Organization for Migration, ‘Protecting the Human Rights of Migrants in the Pacific Essential in COVID-19 Recovery Process, UN Agencies Say’ (News Release, 10 July 2020). 36 Peter Mares, ‘Temporary Migration and its Implications for Australia’ (Parliamentary Paper No 57, February 2012). 37 Ibid. 38 Ronald Wheeler, We All Do It: Unconscious Behaviour, Bias, and Diversity’ (2015) 107(2) Law Library Journal 325, 327–8. 39 Leading for Change (n 1) 1. 40 See, eg, Doha Shinnaoui and Renu Narchal, ‘Brain Gain to Brain Waste: Individual Biases, Prejudice, and Discounting of Migrant Skills’ (2010) 11(4) Journal of International Migration and Integration 423; Agnieszka Kosny, Iracema Santos and Alison Reid, ‘Employment in a “Land of Opportunity?” Immigrants’, Experiences of Racism and Discrimination in the Australian Workplace’ (2017) 18(2) Journal of International Migration and Integration 483; Alison L Booth, Andrew Leigh, and Elena Varganova, ‘Does Ethnic Discrimination Vary Across Minority Groups? Evidence from a Field Experiment’ (2012) 74(4) Oxford Bulletin of Economics & Statistics 547; Terence Lovat et al, ‘Australian Muslim Jobseekers: Equal Employment Opportunity and Equity in the Labor Market’ (2013) 33(4) Journal of Muslim Minority Affairs 435; John Rynderman and Catherine Flynn, ‘“We Didn’t Bring the Treasure of Pharaoh”: Skilled Migrants’ Experiences of Employment Seeking and Settling in Australia’

Court of Conscience Issue 15, 2021

(2016) 59(2) International Social Work 268; Mohammad Alaslani and Jock Collins, ‘The Blocked Mobility Hypothesis and Muslim Immigrant Entrepreneurship in Sydney, Australia’ (2017) 6(3) Review of Integrative Business and Economics Research 333; Tim Soutphommasane, ‘Anti-Racism on the Job: Tackling Discrimination in Employment and the Workplace’ (2013) 33(11) The Proctor 42, 42–4; Stephanie Douglas-Neal, ‘Unconscious Bias and Short-Termism are Costing Our Industry’s Recruitment Process’, Mumbrella (Web Page, 12 July 2018) <https://mumbrella.com. au/unconscious-bias-and-short-termism-are-costing-our-industrys-recruitmentprocess-528928>; Michael Hiscox et al, Going Blind to See More Clearly: Unconscious Bias in Australian Public Service Shortlisting Processes (Report, June 2017). 41 Systemic Racism (n 2). 42 Elly Duncan, ‘How Much Does a Non-Anglo Name Affect Your Job Prospects?’, SBS The Feed (Web Page, 11 September 2018) <https://www.sbs.com.au/news/ the-feed/how-much-does-a-non-anglo-name-affect-your-job-prospects>; Sana Qadar, ‘Name Discrimination Can Make Finding a Job Harder, but is Changing to a Pseudonym the Answer?’, ABC Everyday (Web Page, 22 August 2019) <https://www.abc.net.au/everyday/should-you-change-your-name-to-get-ajob/10882358>; Peter Martin, ‘Australian Bosses are Racist when it’s Time to Hire’, The Sydney Morning Herald (online, 18 June 2009) <https://www.smh.com. au/national/australian-bosses-are-racist-when-its-time-to-hire-20090617-chvu. html>; Mladen Adamovic, ‘What’s in a Name? How Recruitment Discriminates Against “Foreign” Applicants’, The Conversation (online, 8 June 2021) <https:// theconversation.com/whats-in-a-name-how-recruitment-discriminates-againstforeign-applicants-160695>. 43 Tim Soutphommasane, ‘Unconscious Bias and the Bamboo Ceiling’ (Speech, Australian Human Rights Commission, 10 June 2014) <https://humanrights.gov. au/about/news/speeches/unconscious-bias-and-bamboo-ceiling>. 44 Peter Chang, ’Research Shows Migrants Own 33% of All Small Businesses in Australia’, Titan Migration (Web Page, 28 May 2018) <https://www. titanmigration.com.au/news/2018/5/25/research-shows-migrants-own-33-ofall-small-businesses-in-australia>; CGU Insurance, Migrant Small Business Report (Report, 2017) 9 (‘CGU Insurance’). 45 CGU Insurance (n 44) 2. 46 Ibid. 47 Ibid 9. 48 Leading for Change (n 1) 28. 49 Ibid. 50 Maree Overall, ‘Quotas: How Affirmative Action Changed the Labor Party for the Better’, Emily’s List Australia (Web Page, 31 March 2021) <https://www. emilyslist.org.au/quotas_how_aa_changed_the_alp>. 51 Very few women have ever held the most senior and the most maledominated portfolios of Treasurer, Defence Minister, Foreign Minister or served as Prime Minister: Danielle Cave and Alex Oliver, ‘Women Yet to Smash Glass Ceiling in Australian Democracy and Security’, Lowy Institute (online, 9 July 2019) <https://www.lowyinstitute.org/the-interpreter/ women-yet-smash-glass-ceiling-australian-diplomacy-and-security>. 52 Diversity Council Australia, Counting Culture: Towards a Standardised Approach to Measuring and Reporting on Workforce Cultural Diversity in Australia (Report, 18 May 2021) 10–11.

53 Ibid 20. 54 Pietsch, Race, Ethnicity, and the Participation Gap (n 4) 100. 55 Ibid 100–1. 56 The NSW Labor party will consider a motion at their state conference that recognises the underrepresentation of CALD people in senior leadership and commits to improving that representation within the party: Zhou (n 8). 57 Leading for Change (n 1) 22. 58 Ibid 25. 59 ‘Blind CVs for Public Service under Labor’ SBS News (online, 13 May 2019) <http://sbs.com.au/news/blind-cvs-for-public-service-under-labor/d826e0b36fab-4be0-b9cb-976aedbdfe5e>; Michael Silverthorn, ‘Blind Hiring: The Future of the Legal Profession?’ 2Civility (Web Page, 24 March 2016) <https:// www.2civility.org/blind-hiring-future-of-legal-profession/>. 60 Such programs are being used by organisations like the Department of Foreign Affairs and Trade, the ABC, SBS, and law firm Clayton Utz: Leading for Change (n 1) 21, 24–5, 27. 61 Zareh Ghazarian, Jacqueline Laughland-Booy and Zlatko Skrbis, ‘Young People Remain Ill-Equipped to Participate in Australian Democracy’, The Conversation (online, 21 January 2021) <https://theconversation.com/young-people-remainill-equipped-to-participate-in-australian-democracy-153536>. 62 Ibid. 63 Pietsch, Race, Ethnicity, and the Participation Gap (n 4) 17. 64 Wyeth (n 8). 65 Sarah Martin, ‘Momentum Builds within Liberal Party to Consider Quotas for Women Even as Divisions Emerge’, The Guardian (online, 25 March 2021) <https://www.theguardian.com/australia-news/2021/mar/25/momentum-buildswithin-liberal-party-to-consider-quotas-for-women-even-as-divisions-emerge>; Max Maddison, ‘Liberal Party Women Reject “Tokenistic” Gender Quotas’, The Australian (online, 29 April 2021) <https://www.theaustralian.com.au/nation/ liberal-party-women-reject-tokenistic-gender-quotas/news-story/e62534c77c2f 951025f13f14e3975d27>. 66 Overall (n 50). 67 Ibid. 68 John Warhurst, ‘Party Democracy Myths and Hypocrisy’, The Canberra Times (online, 6 December 2018) <https://www.canberratimes.com.au/story/5998510/ party-democracy-myths-and-hypocrisy/>. 69 Leading for Change (n 1) 3. 70 Ibid 13. 71 Ibid. 72 Vivian Hunt, Dennis Layton and Sara Prince, ‘Diversity Matters’ (Research Paper, McKinsey & Company, 2 February 2015); Mohammed Hossain et al, ‘Do LGBT Workplace Diversity Policies Create Value for Firms?’ (2020) 167(4) Journal of Business Ethics 775; Rocío Lorenzo et al, ‘How Diverse Leadership Teams Boost Innovation’, Boston Consulting Group (Web Page, 21 January 2018) <https://www.bcg.com/en-au/publications/2018/ how-diverse-leadership-teams-boost-innovation>. 73 Andrew Markus, Mapping Social Cohesion: The Scanlon Foundation Surveys (Report, Scanlon Foundation, 4 February 2021) 5.

Advancing Ethnically and Culturally Diverse Representation and Inclusive Leadership in Australia Tuanh Nguyen and Jieh-Yung Lo

Tuanh Nguyen is a Director at PwC, with extensive experience in advising and advocating on diversity and inclusion issues, with a particular interest on cultural diversity, gender diversity and intersectionality. In addition to her work in diversity and inclusion, Tuanh has over 15 years’ experience as a corporate and commercial lawyer, advising corporate and not-for-profit clients and their boards, on ECM and M&A corporate transactions, governance and risk management issues. She also holds roles as national Co-Chair of PwC’s D&I employee network, ‘Cultural Connections’ (focused on enhancing cultural diversity within PwC), and on the boards of directors of Vietnamese Museum Australia Ltd and CatholicCare Victoria Ltd. She was also a founding member of the Asian Australian Lawyers Association, being the first Australian law association focused on promoting Asian cultural diversity in the Australian legal profession, where she held various leadership roles, including as National President. She has been recognised for her work in advancing cultural diversity as a recipient of the 40 Under 40 Most Influential Asian-Australians Awards in 2020 and as Special Counsel of the Year in the 2019 Women in Law Awards. She is also a current finalist in this year’s Australian Law Awards and Women in Law Awards (which will be announced in December 2021). Jieh-Yung Lo is the founding Director of the Centre for Asian-Australian Leadership (‘CAAL’) at the Australian National University (‘ANU’). Established in January 2020 by the ANU, CAAL aims to address the significant under-representation of Asian Australians in leadership positions within Australian public institutions and major private sector corporations. Before joining ANU, Jieh-Yung worked in various policy and project roles for a number of not-for-profit and advocacy organisations. He was elected and served two terms as a Councillor with the City of Monash including two years as Deputy Mayor.

Peter Khalil MP, How Systemic Racism Holds Australia Back

Australia is arguably one of the world’s most multicultural countries. Yet our institutions do not reflect modern, multicultural Australia — namely by not having many ethnically and culturally diverse Australians in leadership positions across our parliaments, corporate boardrooms, universities, courts and newsrooms. According to the 2016 Census, 26% of those counted are born overseas, and another 23% have at least one parent born overseas. The proportion of migrants coming from Asia now surpasses those from Europe and is ever increasing.1 Although Australia’s society is culturally, ethnically and religiously diverse, there remains a persistent underrepresentation of Australians from ethnically and culturally diverse backgrounds in top management positions and senior leadership roles in Australia’s public institutions and private sector corporations. This paper describes the institutional barriers that continue to inhibit ethnically and culturally diverse Australians from reaching the corridors of power, authority and leadership. By reflecting on the successes of legislative and regulatory tools such as the Workplace Gender Equality Act 2012 (Cth) 2 (‘WGE Act’) and the Australian Securities Exchange’s Corporate Governance Principles and Recommendations 3 (‘ASX CGPR’), this paper will explore how similar legislative and regulatory tools can strengthen greater ethnically and culturally diverse representation and inclusive leadership across Australia’s public institutions and private sector organisations. I

Underrepresentation in Senior Management and Leadership

Despite the positive changes to Australia’s cultural demographic over the past 40 years,4 there is a persistent under-representation of those from ethnically, culturally and religiously diverse backgrounds in top management roles and across the boardrooms in Australia’s public institutions and private sector corporations. Although people from culturally and linguistically diverse backgrounds are well represented in the workforce generally, research conducted by the Australian Human Rights Commission (‘AHRC’) suggests that the opportunities for them to reach senior levels are limited.5 In 2016, the AHRC launched Leading for Change: A Blueprint for Cultural Diversity and Inclusive Leadership followed by a revised document in 2018 to capture the cultural composition of senior leaders in Australian business, politics, government and academia.6 The AHRC’s blueprint examined the cultural backgrounds of chief executive officers of Australian Securities Exchange (‘ASX’) 200 companies, federal government ministers, heads of federal and state government departments, and vice-chancellors of universities. It also examined the cultural backgrounds of senior management at the level directly below chief executives and equivalent — namely,

Court of Conscience Issue 15, 2021

group executives of ASX 200 companies, elected members of the Commonwealth Parliament, deputy heads of government departments and deputy vice-chancellors of universities.7 Through this exercise, the AHRC’s blueprint recorded a snapshot of the cultural composition of senior leaders in Australian business, politics, government and civil society for the first time. The report found that the ethnic and cultural default in Australian leadership remains Anglo-Celtic. Australian society may not be making the most of its diverse backgrounds and talents, as figures in the below table indicate: Anglo-Celtic Australian

European-Australian

Non-European-Australian

Asian-Australian

Percentage of Australian population

58%

18%

21%

12.3%

Percentage of senior executive management

75.7%

18.9%

5.0%

3.3%

Percentage of Chief Executives and equivalents

76.9%

20.1%

2.7%

1.6%

Combined Percentage of senior leaders

75.9%

19.0%

4.7%

3.1%

(non-chief executive ‘C-suite’)

(Chief Executives and other C-Suite leaders) Table 1: Percentage of the Asian-Australian population compared to senior executives (Australian Human Rights Commission, 11 April 2018).8

Examining first the cultural backgrounds of chief executive officers of ASX 200 companies, federal government ministers, heads of federal and state government departments and vice-chancellors of universities, the AHRC found that just 1.6% of them were Asian-Australians.9 And even when the enquiry was broadened out to cover leadership positions one level below this — group executives of ASX 200 companies, elected members of the Commonwealth Parliament, deputy heads of government departments and deputy vice-chancellors — the proportion of Asian-Australians is just 3.3%, which is a long way below the 12% that their numbers in the broader community would suggest should be the norm.10 Only Indigenous Australians fare worse, occupying just 0.4% of senior leadership positions against their share of the total population of 3%.11 II

Learning from the Gender Diversity Experience

Addressing and solving the underrepresentation of non-Anglo-Celtic and non-European Australians in senior leadership requires a multifaceted solution. These facets include introducing targets for appointments and promotions; tailored development opportunities (including formal training programs and proactively giving emerging leaders stretch opportunities); cultural competency and awareness training programs for leaders; utilising diversity advocates in key decision-making processes (including for recruitment, promotion and performance review processes); and grassroots initiatives through employee networks and advocacy through industry-specific bodies. One facet that appears to have yielded success in enhancing female participation and representation in senior leadership in Australia and closing the gaps in gender inequality in the workplace is the use of regulatory and legislative tools. These tools mandate organisations to collect data on and to report their performance against gender-based indicators (‘Gender Data Regulations’), most notably the ASX CGPR and the WGE Act.12 Recommendation 1.5 of the ASX CGPR essentially obliges ASX listed companies to have and disclose a diversity policy, to set measurable objectives to achieve gender diversity and to report to the market their progress towards achieving those measurable objectives as well as the company’s gender composition (at the board level, senior executive and whole workforce).13 Whilst the ASX CGPR is couched as a ‘recommendation’, the ASX Listing Rules requires ASX listed companies to either comply with the recommendation or explain to the market why they do not or cannot comply with the recommendation and what alternative governance practice has been adopted in lieu of that recommendation.14 The WGE Act was introduced with the aim of promoting and improving gender equality for both women and men in the workplace.15 The WGE Act applies to

Tuanh Nguyen and Jieh-Yung Lo, Advancing Ethnically and Culturally Diverse Representation

higher education institutions and non-public sector organisations with over 100 employees.16 The key obligation under this legislation is that it requires relevant organisations to annually lodge a public report to the Workplace Gender Equality Agency (‘WGEA’) containing information on the organisation’s performance against various gender equality indicators (‘GEI’).17 For organisations with more than 500 employees, there are further obligations which require those organisations to have formal strategies or policies in place for specified GEI areas.18 The GEIs that organisations are required to report on cover a wide range of matters, including gender composition of the organisation’s workforce and its governing bodies (such as boards and senior leadership teams), gender pay gaps and discrimination and harassment policies. The WGE Act does not apply to public sector entities, including government or any regulatory agency. Similar legislation to the WGE Act was introduced by the Victorian Government — the Gender Equality Act 2020 (Vic) (‘Gender Equality Act’), 19 which commenced on 31 March 2021, with the objective of improving workplace gender equality in Victoria’s public sector and public institutions.20 On the face of it, these regulatory and legislative tools simply collect and report on certain gender-based data. However, these tools have had a significant positive impact on the actions and behaviours of organisations to enhance gender diversity and inclusion within their organisations. As noted by Libby Lyons, the Director of WGEA at the time of publication of the Gender Equality Insights 2021 report (‘WGEA Insights Report’):21 The businesses who pay close attention to their own data, and who consistently scrutinise and apply their workplace policies, are the ones that have seen the most effective gender equality outcomes. From reducing gender pay gaps faster to achieving more rapid increases in women in management, the results of ambition, accountability and a consistent approach are clear improvements in gender equality outcomes in those workplaces.22 The public nature of the data collection and reporting systems from these regulatory tools have essentially held a mirror to organisations on their own performance and the performance of their peers, in respect of gender equality. Whether it is due to a self-awareness by organisation leaders, motivation to compete and do better than their competitors or simply being held to account by their staff, customers, shareholders and other stakeholders, these regulatory tools have forced companies to prioritise gender diversity and inclusion and to take positive action to enhance gender equality within their organisations. This has included introducing tailored development programs, flexible working practices, gender pay gap reviews, diversity advocates and targets and quotas for recruitment and promotions.23 From the data available from WGEA, there is clear evidence that these regulatory tools are having a positive impact on greater female representation in leadership (among other areas of gender diversity). The WGEA Insights Report shows that the proportion of women on company boards has steadily increased since the WGE Act was introduced. In 2014, the proportion of women on company boards was 23.7% and in 2020, that proportion had increased to 28.1%. A similar story can be seen in terms of board chairs, where the proportion of women who are chairs of a company board increased to 14.6% in 2020 from 11.9% in 2014.24 Given the number of organisations to which these regulatory tools apply to, the collective efforts of Australian organisations in driving solutions to address gender inequalities, including the underrepresentation of women at senior leadership levels, has the effect of driving macro change across entire sectors — ranging from corporate, professional services, public sector and academia. III

Introducing Cultural Diversity Composition Reporting Legislation

Unlike with gender, there is currently no legislative requirement or regulatory tools for Australian organisations to collect and report on the cultural composition of their workforce or any other cultural or ethnic specific indicators. Despite being heralded as a multicultural success story, data on a person’s ethnicity, ancestry, place of birth and the languages they speak is only sporadically and/or inconsistently collected by Australian organisations. Anecdotally, Australian organisations have adopted different

Tuanh Nguyen and Jieh-Yung Lo, Advancing Ethnically and Culturally Diverse Representation

approaches to the collection of these data points. Organisations utilise different methods in collecting the data — where the methods range from ad hoc optional staff surveys undertaken to capture a point-in-time snapshot through to more systemised collection processes through formalised data collection platforms (such as Workday) which capture and retain these data points as part of staff records. Further, there is no market-accepted benchmark on the cultural diversity data to be collected — some organisations collect data on race, ethnicity and self-identified cultural identity while others limit the data collection to place of birth or languages spoken. As a result, getting a precise picture of the cultural diversity within Australian organisations, workplaces, industries and senior leadership ranks remain elusive. Many of the barriers to leadership for women are the same as those that are faced by ethnically and culturally diverse groups in Australia. Introducing legislative and regulatory tools (similar to the WGE Act25, ASX CGPR26 and the Gender Equality Act27 to require large private sector and public sector organisations to define, collect, disclose and report data on the ethnic and cultural composition within their workplaces will yield similar benefits as those seen in relation to gender diversity. As seen from Gender Data Regulations, the introduction of legislative or regulatory tools focused on specific cultural or ethnic indicators (‘Cultural Data Legislation’) will motivate leaders to prioritise cultural and ethnic diversity and inclusion within their organisations. It will enable organisations to identify where the gaps are; design evidence-based responses; identify policy solutions; and introduce action plans to address and enhance cultural and ethnic diversity within the organisation. Cultural Data Legislation will also have a number of other benefits. Firstly, Cultural Data Legislation will help to address the persistent absence of accurate data on the cultural and ethnic composition of Australia’s institutions. Obtaining such data is a necessary prelude to setting realistic targets and timelines for increasing the number of ethnic and culturally diverse Australians in senior leadership positions. Not only will data collected from Cultural Data Legislation add to the body of research work undertaken by various bodies to capture cultural composition data in different institutional settings, but Cultural Data Legislation can also assist in setting definitional benchmarks on cultural diversity data. Anecdotally, one argument that has commonly been raised by individuals and organisations as a reason not to collect data on cultural composition is that the concept of ‘culture’ is difficult to define. Unlike gender (which is relatively binary), ‘culture’ can be defined in many different ways — race, ethnicity, cultural heritage, cultural identity, religion, place of birth and languages spoken at home. Organisations who do voluntarily collect data on its cultural composition do not have a common or market-accepted benchmark by which to collect this data. For example, some organisations will engage external consultants to provide guidance on the data it should collect in the context of that particular organisation or industry. Some organisations will be guided by research that has been undertaken by various institutions, think tanks and other diversity and inclusion advocacy organisations while other organisations will be guided by data collection practices in other countries. Accordingly, results from data collection exercises conducted by Australian organisations are difficult to compare. Having formal Cultural Data Legislation that defines the cultural data to be collected will help organisations set the parameters around the data they collect, and this then enables a collection of consistent data across industries and sectors. Introducing Cultural Data Legislation will aid in reducing the sensitivities and stigma around collecting data on an individual’s race and cultural heritage. Anecdotally, there are longstanding sensitivities on the collection of ethnic, cultural and race-based data, due to fears of such information being used to discriminate against individuals from minority groups. These sensitivities are heightened by the application of legislation, such as the Privacy Act 1988 (Cth), which treats information about a person’s racial or ethnic origin as ‘sensitive information’,28 and hence should be collected with caution. As part of the design of any Cultural Data Legislation, issues about its interaction with existing anti-discrimination and privacy legislation will need to be considered to ensure that the objectives of the legislation are achieved, while still enabling the collection of meaningful cultural or ethnic data in the context of enhancing cultural diversity outcomes within Australian organisations. Effective Cultural Data Legislation, developed from a thorough and robust drafting and consultation process, will legitimatise the collection of cultural data, remove the stigma that traditionally exists in the collection of this type of data

Court of Conscience Issue 15, 2021

and give organisations and individuals the confidence that data collected through Cultural Data Legislation will be used to enhance cultural diversity representation and inclusive leadership in Australian organisations. IV

Conclusion

As workplaces, industries and governments step into the post-COVID-19 future, they need to find new ways to succeed in the new normal; and this includes reshaping leadership to ensure it is more inclusive and innovative to grow and take on new opportunities. This paper recommends the need to prioritise and elevate ethnic and cultural diversity and proposes the introduction of Cultural Data Legislation to require public sector employers and private sector corporate organisations to define, collect, disclose and report data on cultural and ethnic diversity, which will allow a comprehensive understanding of the ethnic and cultural composition of Australian companies, businesses and public institutions.

References 1 2 3

4 5

6 7 8 9 10 11

Australian Bureau of Statistics, Census of Population and Housing: Australia Revealed (Catalogue No 2024.0, 27 June 2017). Workplace Gender Equality Act 2012 (Cth) (‘WGE Act’). Corporate Governance Council, Australian Securities Exchange, Corporate Governance Principles and Recommendations (Report No 4, 1 February 2019) (‘ASX CGPR’). Any reference in this paper to ‘cultural’ includes ancestry, ethnicity, race and religion. Australian Human Rights Commission, Leading for Change: A Blueprint for Cultural Diversity and Inclusive Leadership Revisited (Report, 11 April 2018) 2 (‘Leading for Change Revisited’). Australian Human Rights Commission, Leading for Change: A Blueprint for Cultural Diversity and Inclusive Leadership (Report, 18 July 2016); Ibid. Leading for Change Revisited (n 5) 1. Table 1: Percentage of the Asian-Australian population compared to senior executives based on data adapted from Leading for Change Revisited (n 5) 7–12. Leading for Change Revisited (n 5) 9. Ibid 11. Ibid. To complete the picture, other non-Europeans (from the Middle East, Africa and elsewhere) with 7% of the population occupy 1.7% of leadership positions;

12 13 14 15 16 17 18 19 20 21

22 23 24 25 26 27 28

Anglo-Celtics occupy 75.7% of positions, over-representing by 17.7% their share of the population, and other Europeans holding 18.9% of positions, very closely mirroring their population share of 18%: Leading for Change Revisited (n 5). ASX CGPR (n 3). Ibid 9–10. Australian Securities Exchange, Listing Rules (at 1 July 2014) r 4.10.3. WGE Act (n 2) s 2A(a). See ibid s 3(1) for the definition of ‘relevant employer’. Ibid pt IV. Workplace Gender Equality (Minimum Standards) Instrument 2014 (Cth) s 5(3). Gender Equality Act 2020 (Vic) (‘Gender Equality Act’). Ibid s 1. See Rebecca Cassells and Alan Duncan, Bankwest Curtin Economics Centre, Gender Equity Insights 2021: Making it a Priority (Gender Equity Series Report No 6, 26 March 2021). Ibid 6. Ibid 42. Ibid 20. WGE Act (n 2). ASX CGPR (n 3). Gender Equality Act (n 19). Privacy Act 1988 (Cth) s 6(1) (definition of ‘sensitive information’).

Tuanh Nguyen and Jieh-Yung Lo, Advancing Ethnically and Culturally Diverse Representation

Editorial Team

Portia Ferdinand Editor-in-Chief Portia is a final year Criminology/Laws student. She was a general editor for the Court of Conscience in 2020. She works as a legal research assistant and volunteers at the Aboriginal Legal Service. She is passionate about fighting against and ending racial injustice in Australia and chose this year’s topic to raise awareness of racism within the law and legal systems. Uditha Jith Managing Editor (External) Uditha is a 3rd year Computer Science/Laws student. She was a general editor for the Court of Conscience in 2020. Uditha re-joined the editorial team this year to expand her knowledge about contemporary social justice issues and maintain her commitment to achieving equality. Emilija Batar Managing Editor (Internal) Emilija is a 3rd year Commerce (FinTech)/Laws student. She was a general editor for the Court of Conscience in 2020. She is interested in the dynamic between the law and marginalised communities and has joined the journal to explore this interest beyond her studies. Rachel A Managing Editor (Technical) Rachel is a 2nd year Juris Doctor student who is passionate about social justice and promoting honest and progressive dialogue about issues of race and class in the law. Putting together Issue 15 has allowed her to explore emerging debates about the nexus between race and injustice, while gaining a deeper appreciation of historical and contemporary laws and practices that have shaped our understanding of the Australian identity. Rubsat Amin General Editor Rubsat is a penultimate year International Studies/Laws student who is passionate about social justice. She joined the Court of Conscience to engage with and contribute to literature on the intersection of race and the law. Jasleen Atwal General Editor Jasleen is a 4th year Arts (Politics and International Relations)/Laws student who is passionate about history, human rights, and international law. She joined the Court of Conscience as it provided a meaningful and invigorating opportunity to apply her legal editing and research skills in the advancement of social justice scholarship. Edward Concepcion General Editor Edward is a final year Arts (Criminology)/Laws student. He has previously worked at community legal centres such as RACS, where he primarily worked with refugees in Australia. He joined the journal to fully engage his love for social justice and examine the ways in which the Australian legal system both helps and hinders people of colour in our country. Overall, working with the journal has been an important experience for him to reflect on how he can help shape Australia’s legal system for our most marginalised communities. Layton Hubble General Editor Layton is a 3rd year Commerce/Laws student. He has an interest in how journals, like the Court of Conscience, can serve as platforms for important scholarly and social debates. Matthew Ling General Editor Matthew is a 3rd year Arts/Laws student. By joining the editorial team, he hopes to contribute to discussions concerning racism and racial discrimination. In his spare time, he enjoys all things cinema, bouldering and is a big foodie.

Court of Conscience Issue 15, 2021 Race, Law and Equality ISSN 1839-7204 Court of Conscience is published annually by the UNSW Law Society. unswlawsoc.org

Matt Mcleod General Editor Matt is a final year Arts/Laws student. He is interested in Constitutional, Administrative, and Criminal Law. He joined the Court of Conscience team to further his passion for social justice and to better understand all the harmful ways in which systemic racism underpins the Australian legal system. Isobel Patmore General Editor Isobel is a 4th year Science (Physics)/Laws student. She joined the Court of Conscience to take the opportunity to develop editing skills while also contributing to an amazing social justice publication. When not studying (or editing), she works as a paralegal and enjoys reading and watercolour painting. Brittany Reeves General Editor Brittany is a 4th year Arts/Laws student. She is particularly interested in Administrative Law. She joined the editorial team because the topic this year closely aligned with topics she is interested in and has studied extensively within her Politics major such as colonialism and social movement theory. She has appreciated the opportunity to challenge herself and contribute to this space. Lachlan Smith General Editor Lachlan is a penultimate year Commerce/Laws student. He is passionate about Competition Law. He joined the Court of Conscience to learn more about and engage with social issues that weren’t covered to a great extent in his degree. Jasmine Wang General Editor Jasmine is a 4th year Accounting/Laws student. She was attracted to the dialectical thinking implied in this year’s journal name. Jasmine wished to contribute to a deeper discussion of the law’s relationship with race and equality, especially as this topic is akin to an iceberg, with hidden depths of traditionalism, ignorance, and unconscious prejudice. Harvey Zhang General Editor Harvey is a penultimate year Commerce/Laws student. Harvey joined the Court of Conscience to widen his knowledge and to develop his critical thinking about social issues affecting the law, something that is under-taught at law school. His interests include cooking, where he likes experimenting with fusion cuisine and combining classical flavours from different cuisines. Linda Zhang General Editor Linda is a 2nd year Science (Neuroscience)/Laws student. She is interested in Criminal Law and civil rights issues. She joined the Court of Conscience editorial team to explore her passion for social justice in the context of academic legal discourse. Alexander Tanazefti Designer Shanna Massie Artist

Alexandra Whalen Social Media Graphic Designer

Joshua Sykes 2021 UNSW Law Society Vice President (Social Justice)

Sanjay Alapakkam and Alex Zoras 2021 UNSW Law Society Co-Presidents