2015 - Vol 40(1) - Old Land, New Laws

AltLJ40-1-cover-final-smConstructing sex, gender & equality

Interrogating education

Regulating crime

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Same sex marriage and the Australian states

George Williams

federal-marriage-act-skneebone-smThe debate over whether to recognise same-sex marriage has attracted the attention of almost every Australian legislature. In addition to the marriage equality bills introduced into federal Parliament,1 proposals have been introduced into the Parliaments of Tasmania, NSW, Victoria, South Australia and Western Australia.2 Of the states, only Queensland has not seen such a bill.

Tasmania has come closer than any other state to enacting a same-sex marriage law. Its Same-Sex Marriage Bill 2012 was introduced in August of that year. Within two days, the Bill passed the lower house 13 votes to 11. It then failed to pass the upper house by 8 votes to 6 on 27 September 2012. By contrast, same-sex marriage bills have failed to pass either house in the NSW, Victorian or South Australia Parliaments, and the fate of the Western Australia Bill is yet to be determined.

(2015) 40(1) AltLJ 4


Making room at the inn: Protecting the expression of sexual identity in anti-discrimination law

David Glasgow

are-you-glb-ort-skneebone-smHand in hand on a recent evening, my husband and I walked towards a restaurant in upper Manhattan. On the same side of the street, a woman approached from the opposite direction with her son, who appeared around six to eight years old. Spotting us, a same-sex couple with hands clasped, the woman immediately held both her hands to the side of her son’s face, forming a wall to obscure his vision. When we passed, she relaxed her arms. Observing from the corner of my eyes, I noticed that her son turned to us, curious to discover what his mother had concealed. ‘Don’t look there’, she snapped, turning his head forward.

The mother covered her son in the most literal sense, shielding his eyes from the uncomfortable sight of two men in love. She also placed pressure on me and my husband to cover ourselves figuratively, to conceal our gay identities by not holding hands, so that innocent children may be spared from exposure.

(2015) 40(1) AltLJ 9


Finding a fair reflection on the High Court of Australia

Harry Hobbs

fair-reflection-high-court-skneebone-smOver the last thirty years an emergent soft-law principle has developed concerning the composition of the judiciary. First clearly enunciated in the 1983 Montreal Universal Declaration on the Independence of Justice,1 the principle of ‘fair reflection’ has since been reaffirmed in numerous international instruments and operationalised in many domestic and international judicial appointment procedures. The essence of this emergent principle is neatly distilled in Article 2.15 of the 2008 Mt Scopus International Standards on Judicial Independence, which requires that ‘the process and standards of judicial selection shall give due consideration to ensuring a fair reflection by the judiciary of the society in all its aspects’. In short, judges should mirror the society over which they exercise jurisdiction.

The appointment of Geoffrey Nettle QC to the High Court of Australia, replacing Justice Susan Crennan who retired in February 2015, should concern advocates for gender equality. Justice Nettle is certainly an eminent candidate, and regarded as one of Australia’s finest jurists, but in replacing one of the Court’s three female Justices with a man, Attorney-General George Brandis has exemplified this government’s studied attempts to ‘not just stifle but also to reverse the progress of Australian women’.2

(2015) 40(1) AltLJ 13


Females in custody in the ACT: Gendered issues and solutions

Patricia Easteal, Lorana Bartels, Emma Fitch and Helen Watchirs

females-in-custody-skneebone-smIn March 2009, the Australian Capital Territory (‘ACT’) government began receiving prisoners into the Alexander Maconochie Centre (‘AMC’), an open campus-style 300-bed correctional centre accommodating both male and female, and remanded and sentenced (maximum, medium and minimum security), prisoners.1 Section 8(3) of the Human Rights Act 2004 (ACT) (‘HRA’) provides that ‘everyone is equal before the law and is entitled to the equal protection of the law without discrimination’. In theory, resources and programming should be equal for female inmates and their male counterparts. However, research has shown that women comprising only a small proportion of the prison population as a whole correlate with a higher potential for inadequate gender-specific service provision.2 Issues for women prisoners that have been identified are likely a consequence of both their unique gendered histories and needs, and the inability logistically for these to be met by the dominant male institutional model.

(2015) 40(1) AltLJ 18


Do deaf people have the right to serve as jurors in Australia?

Jemina Napier and Alastair McEwin

Different sign languages are used by deaf people in every country throughout the world.1 Deaf sign language users are members of a linguistic and cultural minority group and identify with one another on the basis of using the natural signed language of their country. Deaf people are regarded as belonging to a community, with their own culturally accepted norms of behaviour based on shared experience.2 The community of deaf signers in Australia is estimated at 6500,3 and the sign language used is Auslan (Australian Sign Language).4

Auslan interpreters are required to obtain accreditation to practice from the National Accreditation Authority for Translators and Interpreters (‘NAATI’) at either Paraprofessional or Professional level.5 Generally, interpreters for deaf sign language users access in the justice system should have NAATI Professional level accreditation, and ideally should have undergone specific legal interpreting training.

Although deaf signers are considered to be members of a linguistic and cultural minority group, the accommodations made to meet their linguistic needs are met through legal provisions under disability discrimination law. These provisions ensure that deaf people can access and negotiate the justice system.6 Given the accommodations that can be made for deaf people to get access to, and participate in, justice, then the question has been asked why deaf people are not permitted to serve as jurors in Australia and also in other countries.

(2015) 40(1) AltLJ 23


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