2015 - Vol 40(3) - Revisiting Equality


Judging gender

Crimes and codes

Law, war and social media

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Forty years of the Racial Discrimination Act

Tim Soutphommasane

40-3-SKneebone-RDA-40th-smIn October 1975, at a ceremony for the proclamation of the Racial Discrimination Act 1975 (Cth) (‘the RDA’), then Prime Minister Gough Whitlam described the legislation as ‘a historic measure’, which aimed to ‘entrench new attitudes of tolerance and understanding in the hearts and minds of the people’.1 The RDA was Australia’s first federal human rights and discrimination law. Enacted shortly after the formal abandonment of the White Australia policy, it was also a legislative expression of a new commitment to multiculturalism.

This year, on the occasion of the RDA’s 40th anniversary, we reflect on the extent to which the legislation has fulfilled its original purpose. What effect has it had in eliminating racial discrimination over its four decades of operation? How successful has it been in entrenching ‘new attitudes of tolerance and understanding’?

(2015) 40(3) AltLJ 153


Reassessing sexual harassment: It’s time

Therese MacDermott

40-3-SKneebone-Reassessing-Sexual-Harassment-smSexual harassment is persistent, prevalent and under-reported in Australian workplaces despite its legal regulation over a number of decades.1 Workers continue to experience unwelcome and inappropriate conduct of a sexual nature in their workplaces that they do not feel that they are in a position to do anything about.2 At the same time many employers continue to rely on the lack of complaints, either internally or to outside agencies, to maintain that a problem does not exist in their organisations, and that in the absence of anyone stepping forward, they are not in a position to take the issue further, beyond the standard compliance approach of policy induction and on-going training programs.

(2015) 40(3) AltLJ 157


Questioning law’s capacity

Fleur Beaupert and Linda Steele

Questioning-laws-capacity-cartoon-skneebone150The past ten years have witnessed an increased public awareness of the marginalisation and discrimination experienced by people with disability in the Australian legal system, and an associated proliferation of law reform reports on disability law.1 A particular focus has been legal schemes applicable to people with disability found lacking legal capacity. A recent example is the 2014 report of the Australian Law Reform Commission (‘ALRC’) in its inquiry into equality, capacity and disability in Commonwealth laws.2 Running parallel to these domestic law reform recommendations, the Convention on the Rights of Persons with Disabilities3 (‘CRPD’) has brought about paradigm shifts in legal understandings of disability and the appropriate treatment of people with disability. In particular, Article 12 establishes that people with disability are entitled to legal capacity and places obligations on States Parties to repeal laws that deny legal capacity. Legal capacity has been recast as an international human rights issue, central to recognising the equality of people with disability under domestic legal systems.

(2015) 40(3) AltLJ 161


The politics of gender diversity on the High Court of Australia

Kcasey McLoughlin

Gender-diversity-cartoon-skneebone-150The ‘almost equal’ gender balance on the High Court of Australia has been restored with the appointment of Federal Court judge Michelle Gordon as the 52nd justice of the High Court of Australia. When Her Honour took her place on the bench in June, she returned the number of women sitting on the High Court to three out of seven judges. Her appointment comes in the wake of criticism from some quarters that the court’s gender balance was disrupted when Justice Susan Crennan was replaced by Justice Geoffrey Nettle.1 Nonetheless, recent calls for reforms to appointment processes so that the High Court might constitute a fair reflection of society,2 are as pertinent as ever. Given the way in which the politics of gender inclusion has been framed by decision-makers, the likelihood of any such reforms, or their effectiveness has important political dimensions. These dimensions are the focus of this article.

(2015) 40(3) AltLJ 166


Sentencing Indigenous women after Bugmy

Lucy Jackson

40-3-SKneebone-sentencing-indigenous-Bugmy-smAboriginal and Torres Strait Islander women currently make up a third of Australia’s female prison population, a vastly disproportionate figure given that Indigenous women account for only two percent of the total female population.1 Many are imprisoned for driving offences, public drinking, or for fine default,2 or are on remand because they are unable to meet bail requirements. This is despite the implementation in most jurisdictions (except Tasmania and the Northern Territory) of Recommendation 92 of the Royal Commission into Aboriginal Deaths in Custody, that ‘imprisonment should be utilised only as a sanction of last resort.’3 Among the questions that this raises are: why are such disproportionate numbers of Indigenous women offenders being sentenced to periods of imprisonment; and is the approach to sentencing appropriate?

(2015) 40(3) AltLJ 171


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