Alternative Law Journal

Discussion about the proposed Human Rights and Anti-Discrimination legislation has been dominated by a debate on religious organisation exemptions and freedom of speech. There has been public outcry over religious organisations being exempt from the legislation and the ramifications for service provision to some of the most vulnerable people in Australia.

This is an important debate, and yet it has somewhat hijacked discussion of the Bill overall. The Bill’s fundamental aim, to introduce a more efficient and effective regime for organisations and individuals to address unlawful discrimination, has been overshadowed by the religious exemption issue.

The Commonwealth Human Rights and Anti-Discrimination Bill Exposure Draft is the result of many years of consultations and reviews of anti-discrimination laws. The Senate Standing Committee on Legal and Constitutional Affairs was tasked with consulting and reporting on the exposure draft in November 2012. That process has been completed, with public consultation only taking place in Sydney, Canberra and Melbourne, notwithstanding that over 3000 submissions were received. The Committee tabled its Report on 21 February 2013.

On 12 February 2013, the Commonwealth government responded to the November 2012 House of Representatives Standing Committee on Education and Employment report: Workplace Bullying ‘We just want it to stop’. That report inquired into what Workplace Relations Minister Bill Shorten described as the ‘scourge’ of workplace bullying, and which the Productivity Commission estimated costs the Australian economy between $6 billion and $36 billion annually.

Heather Douglas and Mark Finnane; Palgrave Macmillan, 2012; 280pp; $150.00

Since the Mabo decision, there has been a flourishing of research on the techniques of colonial common law to assert British jurisdiction. This has shed light on the long shadows of British jurisdiction on postcolonial Australian society and particularly Indigenous societies. Drawing on property cases and a rich analysis of the legal archive, property scholars have set into sharp relief how common law courts assert ‘jurisdiction in order to supplant other sites of adjudication and authority’.¹ They have written extensively about jurisdiction as a technology of sovereignty and have channelled their work into an analysis of the place of British law in asserting jurisdiction over inter se crimes — crimes committed by an Indigenous perpetrator on an Indigenous victim in the same group — for furthering the project of sovereignty.

Abortion inaction

Roe v Wade, the famous United States Supreme Court decision on abortion, is now 40 years old. But what a messy 40 years it has been for women. Many US States NOW have the most repressive anti-abortion laws in their history.  Miriam Claire published The Abortion Dilemma: Personal Views on a Public Issue in 1995, and a 2013 updated version notes that in some US states ‘abortion is now not an option … because threats and legal penalties against doctors who perform abortions have made the business of providing safe, legal abortions to women unsafe for medical practitioners and their support staff.’ (See also Miriam Claire, ‘A Woman’s Right to Choose Still a Public Battlefield’, The Age, 22 January 2013.)

Over one hundred years ago, the Irish jurist, Sir James Mathew, reportedly quipped that: ‘In England, justice is open to all, like the Ritz hotel.’ Behind this witticism lie serious issues regarding access to justice and equality of treatment before the law — similar issues, that in the context of environmental justice, currently reverberate throughout New South Wales.

It is a truism to say that possessing a legal right and being able to enforce it are two different things. In particular, legal rules concerning participation and rights of standing may theoretically apply across the board, yet their operation is often constrained by economic factors. For these reasons, institutions such as Legal Aid NSW and pro bono centres such as the Environmental Defenders Office (‘EDO’) perform essential community functions. The EDO, for example, has provided legal advice and representation to the community for almost 30 years. In doing so, it acts as a counterbalance to activities and sometimes oppressive tactics of those with commercial interests and deep pockets. Tacit recognition of the importance of the EDO is evident in the enthusiastic support that the Office has received from consecutive state governments — at least until now.

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Female Friends, Nicola Roxon & Kris Walker
Alternative Law Journal 19(3), June 1994

Advocacy before the Parole Board, Viginia Bell & Merrilyn Walton
Legal Service Bulletin, June 1984