Vol 40(3) 2015 - Revisiting Equality

Editors for this issue: Elyse Methven and Anne Macduff

  • Judging gender
  • Crimes and codes
  • Law, war and social media

Pages 147 to 222

Forty Years Of The Racial Discrimination Act

Tim Soutphommasane

This article reflects on the 40th anniversary of the Racial Discrimination Act (‘RDA’), Australia’s first federal human rights and anti-discrimination legislation. It examines the historical context to the legislation, and its impact on human rights and Australian race relations. It is argued that the RDA plays an important role not only in providing an instrument for redress of discrimination, but in educating social attitudes and civic sentiments.

Price: $9.90

Reassessing Sexual Harassment: It’s Time

Therese MacDermott

This article examines a landmark decision on how the harm caused by sexual harassment is to be assessed, and the court’s view that the prevailing approach to compensatory damages was out of touch with community standards regarding the monetary value of such loss.  It argues that while the judicial recognition of the failure to properly compensate those targeted by harassment is significant, it is not a complete answer, and advocates that remedial options should also include a focus on the reprehensible nature of the conduct warranting punishment.  In addition, the article argues the goal of active engagement of employers in preventing and eliminating harassment at work could be enhanced by a focus on the ancillary liability of key personnel within organisations arising from their knowledge of, or wilful blindness to, the occurrence or likelihood of sexual harassment.  Expanding accountability through the reliance on ancillary liability is becoming increasing common in enforcement actions in other areas of employment law.

Price: $9.90

Questioning Law’s Capacity

Fleur Beaupert and Linda Steele

This article reflects upon the recommendations made by the Australian Law Reform Commission in its inquiry into equality, capacity and disability in Commonwealth laws in light of the right to legal capacity contained in Article 12 of the United Nations Convention on the Rights of Persons with Disabilities. Article 12 places obligations on States Parties to reform laws that deny legal capacity to people with disability. The article argues that the Australian Law Reform Commission’s recommendations do not go far enough in recognising the right to legal capacity, in particular because there is a lack of clarity about the way in which a shift to supported decision-making may be implemented and the recommendations do not explicitly address the problematic role of mental capacity and how it may continue to inform the implementation of any new laws developed.

Price: $9.90

The Politics Of Gender Diversity On The High Court Of Australia

KCASEY McLoughlin

The appointment of Justice Michelle Gordon has restored an almost equal gender balance to the High Court of Australia. But this appointment does not mean that the politics of gender inclusion is over. The importance of gender diversity has been entirely absent from the political rhetoric which has attended the appointment of the five women judges to the High Court of Australia over the last three decades. The reticence to engage in critical discussions about the importance of gender diversity in judicial appointments therefore further underscores the need for reform to appointment processes.

Price: $9.90

Sentencing Indigenous Women After Bugmy

Lucy Jackson

Conventional sentencing practices offer inadequate protection for Aboriginal and Torres Strait Islander women in the criminal justice system. This article  discusses the existing authorities — in particular the ‘Fernando Principles’ and the High Court’s 2013 decision in Bugmy, and outlines specific areas of systemic and particular disadvantage that may shape an Indigenous woman offender’s background that a defence lawyer should lead evidence of at the sentencing hearing.

Price: $9.90

We Will Decide Who Comes To This Country, And How They Behave

Anthea Vogl and Elyse Methven

A critical reading of the Asylum Seeker Code of Behaviour

In December of 2013, former Immigration Minister Scott Morrison announced that asylum seekers living in the community would be subject to a new Code of Behaviour. The Code quietly came into force in December 2014. All so-called ‘illegal maritime arrivals’ who apply for a bridging visa must sign the Code, and thereafter become bound by a ‘list of expectations’ about how they should behave at all times while in Australia. Alongside the stipulation that asylum seekers must obey existing law, the Code forbids them from engaging in ‘anti-social’ or ‘disruptive’ activities that are ‘inconsiderate or disrespectful, or threaten the peaceful enjoyment of other members of the community’. They must not bully, spread rumours, spit or swear in public, or persistently ‘irritate’ anyone.

This article conducts a close reading of the Code and reviews its operation since coming into force. We argue that the Code constructs asylum seekers as not only pre-criminal, but also as racialised others, who must assimilate and adopt imagined standards of Australian behaviour and civility. Alongside this rhetorical function, we critique the material effects of the Code, in heightening the surveillance and increasing the precarity of the everyday lives of asylum seekers subject to its terms.

Price: $9.90

Immigration At The Airport: Australia’s Front Line

Louise Boon-Kuo

The Immigration Department has participated in the Seven Network reality television program Border Security since 2004, and at times conducts immigration interviews at the airport while filmed by the program. This article examines whether such involvement affects the appearance of the impartiality of immigration decisions following the issues that arose in December 2014, when the Immigration Department cancelled the visa of African American transgender and AIDS activist Monica Jones.

Price: $9.90

Australia, Asylum Seekers And Crimes Against Humanity?

Amy Maguire, Laura Bereicua, Annabel Fleming And Olivia Freeman

Independent federal MP Andrew Wilkie has requested that the Prosecutor of the International Criminal Court (‘ICC’) investigate and prosecute the Australian Prime Minister and Cabinet for crimes against humanity. Wilkie alleges that the Australian Government is committing international crimes in its treatment of asylum seekers and refugees, particularly in relation to mandatory immigration detention, deportation and other acts causing suffering and injury. This article assesses the significance of Wilkie’s allegation and the likelihood of ICC prosecution.

Price: $9.90

What If The Khmer Rouge Had Twitter?

Peter Laverack

Lessons for today’s online jihadists on joint criminal liability via social media

This article applies the findings of the recent ECCC judgment, which convicted the surviving leaders of the Khmer Rouge under international criminal law, to the modern day scenario of ISIS and its use of social media. The article explores whether modern social media allow a joint criminal enterprise (‘JCE’) to be formed over the Internet. The formation of a JCE would result in social-networkers taking on primary liability for crimes committed. The article also explores whether JCE-members could take on criminal responsibility for ‘lone wolf’ attacks in, say Sydney or Paris.

Price: $9.90

Land Law And Natural Disasters In The South Pacific

Daniel Fitzpatrick And Rebecca Monson

This article provides an overview of land law and policy in a context of natural disasters in the South Pacific. While most land in the Pacific is formally held under customary tenure, existing law and policy tends to emphasise state-based responses to natural disasters and their effects on human mobility. There are no policy alternatives to greater engagement with customary land issues in a context of natural disasters and human mobility. Whether legally classified as state or customary land, there is still the need for consultation or agreement with customary groups that claim land selected as sites for temporary shelter or planned resettlement. Whether or not the law allows direct dealings in customary land, agreements with customary landholding groups to sell or lease land are inevitable in a context of human mobility arising from natural disasters. The law and policy challenge is to develop procedures for customary land agreements that facilitate adaptive migration while ameliorating the potential for conflict over land.

Price: $9.90

Letting Charities Be Political

Krystian Seibert

Following the High Court’s decision in Aid/Watch Inc v Commissioner of Taxation, Australia has a much less restrictive approach to allowing advocacy by charities. The liberalising of charity law in Australia means that when it comes to the political process and debates about the laws and policies which shape Australia, charities can be actively engaged rather than just remaining passive bystanders. The author characterises advocacy as a form of collective action, and applies Mancur Olson’s Theory of Collective Action as a basis for contending that in the absence of some form of subsidy, there may be an ‘under-supply’ of advocacy from civil society organisations, which would be detrimental to Australian democracy. This provides an economic rationale for allowing advocacy by charities, and for the provision of various charitable tax concessions which are linked with charitable status as well as other government support for advocacy by charities.

Price: $9.90

Medicinal Cannabis: A Pipe Dream?

Nicholas Christodoulou

Potential domestic and international legal barriers for the ACT government

This brief addresses Australia’s domestic legislation and international obligations in an attempt to determine the feasibility of the proposed Drugs of Dependence (Cannabis Use for Medicinal Purposes) Amendment Bill 2014 (ACT). If, as a matter of policy, the ACT is inclined to enable the use of medicinal cannabis, this Brief recommends a viable legal framework

Price: $4.40
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