2011 - Vol 36(4) - Unmasking the Law

Offend, harass and affront2011 - Vol 36(4) - Unmasking the Law

Beyond legal education

The rights of the biosphere

Free speech, racial intolerance and the right to offend: Bolt before the court

Sarah Joseph

Free Speech, S RothIn Eatock v Bolt,1 decided on September 28 2011, the (in)famous conservative commentator Andrew Bolt was found to have breached the Racial Discrimination Act 1975 (Cth) (the ‘RDA’) in publishing two articles in 2009.2 In the articles, Bolt discussed the self identification of certain ‘fair-skinned’ Aboriginal people as Indigenous people. He used sarcastic language, and commented that many of them had furthered their careers in identifying as Aboriginal people. For example, the subtitle to the second article was: ‘What’s an Aboriginal artist from the bush to think when he or she sees yet another white man lope off with a prize originally meant to inspire blacks’? He labelled one person ‘a professional Aborigine’. Many of his factual assertions, for example regarding the heritage of the named people and the time at which they began identifying as Aboriginal, were wrong. He did not contact any of the named persons prior to writing about them. He queried why the named persons did not publicly and simultaneously identify with other parts of their ethnic heritage. In conclusion, he suggested that the self identification of such people only as Indigenous impacted detrimentally on racial cohesion in Australia.

(2011) 36(4) AltLJ 225


Sexual harassment on trial: The DJs case

Patricia Easteal, Skye Saunders, Keziah Judd and Bruce Arnold

In 2009, following the ABC Four Corners story ‘Code of Silence’ with its suggestion of a brutal culture of sexual violence within rugby league, Richard Ackland commented:

Like it or not, sometimes in life the media have to be judge and jury. All one can hope for is that the role is carried out carefully and responsibly.1

Indeed, relationships between the media and the legal system are complex. On one hand, journalists play a vital role in bringing important issues such as the ‘Code of Silence’ culture to public attention. Their investigative work may contribute to overturning wrongful convictions or righting other injustices. On the other hand, ‘trial by media’ may compromise the integrity of the legal system, colliding with such tenets as the presumption of innocence, jury impartiality and right to a fair trial. Media reporting may also be simplistic, misleading, and overly reliant on clichéd and ‘archetypal characters’ as ‘ancient as they are inflammatory’ — the seductress, the victimised man, and the man-hating woman.2

The language of the media is limited: ‘Feminists’ are always ‘ideologues’. ‘Women in the workplace’ invariably ‘threaten the place of men’. ‘Complaints’ of sexual harassment are constantly ‘on the rise’. The tone ranges from flattened to melodramatic, often, without that much in between.3

Cries of ‘trial by media’ can be heard every time a high-profile defendant receives unfavourable media coverage. This suggests that the media is the dominant partner in its relationship with the law, with legal practitioners at the mercy of often ludicrously uninformed journalists misrepresenting litigation in the pursuit of circulation, ratings or advertising revenue. However, recent cases suggest a more complex and nuanced relationship.

(2011) 36(4) AltLJ 230


Crime victims and sentencing: Reflections on Borthwick

Tracey Booth

Incorporation of victim participation in the sentencing process through a victim impact statement (‘VIS’) has been a prominent feature of penal policy in Australian jurisdictions for more than two decades. VISs are mechanisms designed to provide victims with a voice in the hearing and space in which to express their feelings about the impact of the crime. While research suggests that VISs have generally had little impact on sentencing outcomes or patterns more generally, VISs remain a contentious feature of contemporary criminal justice.1 In particular, the integration of victims in courtroom proceedings is emerging as a challenging issue for the court. Questions are raised about the role of VISs in an adversarial legal framework and the requirement of fairness in the conduct of the proceedings. Fairness is a ‘core value in the administration of justice’ and is usually associated with the defendant’s right to a fair hearing.2 Nonetheless, the High Court has made it clear that the requirement extends to the interests of all parties to the matter as well as to victims and the community at large.3

(2011) 36(4) AltLJ 236


Labor’s ‘new directions in detention’ three years on: Plus ça change

Tania Penovic

At least five suicides or undetermined deaths due to external causes have apparently occurred in the last 18 months in the IDC [Immigration Detention Centre] population of about 3,500, making a suicide rate of somewhere between 100 and 200 per 100,000 per year… Self-harm remains endemic… There is at least one serious suicide attempt per day in Woomera IDC, and at the time of writing 60 out of 500 were on suicide watches… Many children are suicidal, and have engaged in a range of seriously life-threatening actions.1

Suicide Prevention Australia submission, 2003

A Sri Lankan man approved as a refugee has committed suicide in immigration detention in Sydney after waiting more than two years for a security clearance… He died from apparent poisoning after midnight. He’d been recognised as a refugee two months ago and was awaiting security clearance from ASIO… It’s the sixth suicide in immigration detention in the past year. Four of those deaths have been in Villawood.2

ABC Television, Lateline, 26 October 2011

The failure of the government’s recent ‘Malaysia Solution’ has forced it to confront the reality of processing asylum seekers in Australia and the continuing crisis in immigration detention. As at 30 September 2011, there were 5597 people in immigration detention.3 With increased waiting times, overcrowding and concern about mental health services, there were 9157 incident reports provided to the Department of Immigration and Citizenship between 1 October 2009 and 30 June 2011.4 There have been numerous hunger strikes, acts of self harm and six suicides between August 2010 and October 2011.

(2011) 36(4) AltLJ 240


Education about human rights

Paula Gerber

Strengths and weaknesses of the UN Declaration on Human Rights Education and Training

Human Rights Education (‘HRE’) has been a focal point of the UN’s work ever since the Universal Declaration of Human Rights was proclaimed in 1948. Article 26(2) of that seminal human rights instrument provides that:

Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace.

Since then, HRE has been included in a number of binding international treaties, including the International Covenant on Economic, Social and Cultural Rights (‘ICESCR’) (article 13) and the Convention on the Rights of the Child (article 29). Increased efforts to promote HRE also formed part of the Vienna Declaration and Programme of Action1 and were central to a number of other UN initiatives, including the UN Decade for Human Rights Education (1995–2004)2 and the World Programme for Human Rights Education (2005–ongoing).3

However, after 60-plus years of the UN mandating and promoting HRE, there is evidence that HRE is still not widespread, especially within schools.4 The UN therefore decided to increase its efforts to promote HRE, by adopting the Declaration on Human Rights Education and Training.5

(2011) 36(4) AltLJ 245


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