: Alternative Law Journal - An Australian referreed law journal

Alternative Law Journal:
an Australian, refereed law journal

Welcome to the Alternative Law Journal! Here you can sample our journal with free previews (under the ‘News & Views’ menu). To purchase the full journal — with our signature mix of legal news, opinions, articles, as well as regular columns, art and cartoons — please visit our subscription page.

The AltLJ, focusing on

  • social justice, human rights and law reform
  • critique of the legal system
  • developments in alternative practice
  • community legal education

The back catalogue (to 2000) is also available, free, for a limited time on our new Sage website.

News & Views

Girlie Marches and Wins

Merry Christmas, Hannah Kar, Rama Dunn

Polish Women on the Warpath

Women in Poland went on strike this October to protest against their government’s planned law which would have totally banned abortion. Hundreds of thousands of women joined the series of strikes, dressed in black, beginning on what they called Black Monday. The existing Polish abortion laws are very restrictive with abortion allowed only where there has been incest or rape, or the life of the pregnant woman or the foetus is under threat. The proposed laws would have removed even those exemptions and have been described as barbaric. Jail sentences of five years would have applied for women choosing abortion and there would also have been jail sentences for doctors involved. (Rick Noack, The Age, 11 October 2016, reprinted from the Washington Post and New York Times). An organiser, Kamila Majer said, ‘We’re fighting for a secular state, the right to contraception and equal pay among men and women among other things’. Fellow organiser Bozena Przyluska said, ‘Right now the Church interferes in politics and the law. It blackmails political parties and meddles in things that shouldn’t concern it’.

The strike succeeded with the embarrassed Polish government withdrawing the proposal. Government Minister Jaroslaw Gowin said that the protests ‘caused us to think and taught us humility’.

(2016) 41(4) AltLJ 284

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Rights of nature and human rights

Federal

Late October 2016 saw two significant events for the future of the environment and the rights of Indigenous Australians. The Australian Earth Law Alliance organised a Conference in Brisbane, ‘The Future of Environmental Law: politics, reform and community activism’; and the two-day conference, which was sold out, was followed by the Rights of Nature Tribunal, held symbolically in the Banco Court. Michelle Maloney, organiser of the Tribunal, explained the symbolism following a performance of Indigenous dance and music in the foyer of the court, where past justices wrapped in scarlet robes looked down upon the gathering. ‘The legal system, those judges and that court, as elsewhere in the country, had failed the environment and the Aboriginal peoples.’

Many of the conference participants attended the Tribunal, where the issues raised at the conference — lack of protection of the environment, the science behind that judgement, the ongoing correlative destruction of aboriginal culture and heritage, recommendations for reform of law and government policy, and community activism — were at the heart of the Tribunal proceedings. The cases heard by the Tribunal panel dealt with the serious threats of the combination of climate change, corporate greed and government failure to the future existence of the Fitzroy River, the forests of the country, the Great Artesian Basin and the Great Barrier Reef. Defendants included the federal government, state governments, the ‘unconventional gas industry’ (fracking) and the fossil fuel industry. Expert testimony, including convincing scientific studies, were provided to the Tribunal, as well as stories of aboriginal exclusion from the protection of the environment and the impact of that historic government policy and practice. The panel was reminded that the aborigines had exercised effective custodianship for at least 40 000 years.

(2016) 41(4) AltLJ 285

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Attacks on lawyers

Gill Boehringer
International

Attacks on lawyers are increasing around the world, and represent a significant threat to the rule of law and democracy. They include extra judicial killings, disappearances, political imprisonments and torture, revocation of licences to practice among many forms of interference with a lawyer’s professional duty. They are usually aimed at human rights lawyers and legal critics of government policies.

Australia has not been immune, with a Melbourne lawyer slain a few years ago and a judge some years earlier. There we have also seen unprecedented attacks by the media and political figures on the judges who decided that Brexit must be authorised by Parliament.

(2016) 41(4) AltLJ 290

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Ministerial Advisers in Australia

Stephen Murray

ministerial-advisers-in-australia-smYee-Fui Ng; Federation Press; 2016; 240 pp; $99 (hardback)

On taking government in 1972, Gough Whitlam brought with him the first cohort of politically engaged ministerial staffers. Evan Williams, one of Whitlam’s speechwriters, tells of reporting on his first day to Sir John Bunting, the public servant who had headed the Prime Minister’s department since 1959. Bunting took a Bible from a drawer and asked Williams to swear allegiance to the Queen.

Learning of this later, Whitlam jokingly wanted to know why the oath was not of allegiance to him; unwittingly crystallising the ambiguous questions of duty, loyalty and accountability that accompany the function to this day.

(2016) 41(4) AltLJ 291

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Atomic Thunder: The Maralinga Story

Mary Heath

atomic-thunder-smElizabeth Tynan; NewSouth Books, 2016; 373 pp; $34.99 (paperback)

Atomic Thunder is a compelling reading experience. Not because it is written in the incandescent prose of outrage: it is not. Maralinga was the site of many (but by no means all) of the British nuclear tests in Australia. The facts themselves, and that it has taken decades for those facts to have partially emerged, are shocking enough.

Maralinga occupies the conjunction of colonial relations within Australia and colonial relations between Britain and Australia. At the time of the nuclear tests, Indigenous Australians had not yet been recognised as citizens. They were lied to, lied about and moved around like cattle in order to enable nuclear testing. The health of personnel involved in the testing was treated as largely irrelevant. Indigenous health received even less consideration. These ‘tests’ also cast a harsh light on Australia’s military policies during the Cold War and the aftermath of the Second World War. Tynan offers ‘nuclear colonialism’ as a framework for understanding the way that nuclear testing escalated the process of dispossession and injury inflicted on Indigenous Australians. At the same time, it revealed Australia as a junior and subservient partner to Britain.

(2016) 41(4) AltLJ 292

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Girlie plods through the cesspool of sex, marriage, crime, taxes and witchcraft

Omay Gawd

Where’s dad?

In February 2011 the Australian Institute of Family Studies (‘AIFS’) released a study into shared care arrangements involving 10 000 parents who had been separated on average for 15 months and involved children aged up to 17 (Patricia Karvelas, The Australian, 1 February 2011). The study follows the 2006 changes to the family law system encouraging greater involvement of both parents in their children’s lives after separation and a 30 per cent increase in shared care orders. The study examined parents before they reached the courts and found children in separated families still spend much more time with their mother than their father. One of the authors, Ruth Weston, said in judicially-determined cases, where the number of contact hours were specified, shared care had increased from four per cent in the two years before the 2006 reforms to 34 per cent in the second half of 2008. But, explained Ms Weston, the study revealed about 80 per cent of children spent most nights of the year with their mother and a third never stayed overnight with their father. AIFS director Alan Hayes said that, although children spent more time with their mother than their father following a break-up, most parents in the study believed the arrangements worked well. The study finds 11 per cent of children never see their father and 23 per cent see their father only during the daytime. Child support agency data showed that, from June 2003 to June 2008, the proportion of new cases where shared care was awarded rose from 9 to 17 per cent.

(2011) 36(1) AltLJ 59

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Independence Day

Anne Twomey
Australia does not have an 'independence day'. When other former colonies celebrate the anniversary of the day they became independent of the United Kingdom, we have to celebrate the date that Australia was first settled, because we don't know exactly when Australia became independent.

Why is this so? There are two reasons. First, because Australia became independent at the national level through incremental changes that involved both the grant of power and the subsequent exercise of power, making it hard to tell at what point the scale tipped from colonial dependency to independence. In the 1920s, through Imperial conferences, changes were made to practices and conventions that progressively conferred upon the 'self-governing Dominions', such as Australia, the attributes of sovereignty, including the power to act on the world stage by entering into treaties. In 1931, this was supported by the Statute of Westminster which gave legislative independence to the Dominions and confirmed that the British would no longer legislate for the Dominions except at their request. Australia, however, was reluctant to exercise its independence and did not do so for some time. It did not declare war on its own behalf or adopt the Statute of Westminster until the middle of World War II.

ustralia does not have an ‘independence day’. When other former colonies celebrate the anniversary of the day they became independent of the United Kingdom, we have to celebrate the date that Australia was first settled, because we don’t know exactly when Australia
became independent.

Why is this so? There are two reasons. First, because Australia became independent at the national level through incremental changes that involved both the grant of power and the subsequent exercise of power, making it hard to tell at what point the scale tipped from colonial dependency to independence. In the 1920s, through Imperial conferences, changes were made to practices and conventions that progressively conferred upon the ‘self-governing Dominions’, such as Australia, the attributes of sovereignty, including the power to act on the world stage by entering into treaties. In 1931, this was supported by the Statute of Westminster which gave legislative independence to the Dominions and confirmed that the British would no longer legislate for the Dominions except at their request. Australia, however, was reluctant to exercise its independence and did not do so for some time. It did not declare war on its own behalf or adopt the Statute of Westminster until the middle of World War II.

So the question arises — does one achieve independence at the point when one has the capacity to exercise full independent powers, or when one actually does exercise them? It is a bit like the situation of the twenty-something who continues to live at home with his or her parents — independent in theory but still reliant on Mum’s cooking and washing.

Arguably, Australia was independent at the national level from December 1931, when it gained the capacity to be independent, rather than when it actually exercised that independence. If so, then
11 December this year will mark the 80th anniversary of Australia’s independence.

The second reason why it is difficult to ascertain when Australia became independent is that the changes in law and convention that affected Australia at the Commonwealth level did not flow on to the Australian States. Somewhat bizarrely, even after Australia became an independent sovereign nation, the Australian States remained ‘colonial dependencies of the British Crown’. So we had an independent nation comprised of constituent polities that were the dependencies of another country. It is not something that anyone in their right mind would ever propose,
but it just evolved that way for various political reasons.

This meant that State Governors continued to be appointed by the Queen on the advice of British Ministers and that it was the Queen of the United Kingdom (not the Queen of Australia) who gave royal assent to State Bills. When an Australian Governor-General once complained to the British Government about this anomaly, the response of British diplomats was that it was better to ‘let sleeping anomalies lie’.

In Australia it was assumed that the requirement for State matters to go to the Queen through British Ministers was just one of those quirky British formalities. Indeed, all the constitutional law books of the era regarded British Ministers as mere ‘channels of communication’ and stated that it would be unthinkable for the British to interfere in State affairs. But the reality was that British Ministers took their role of advising the Queen seriously and were not simply conduits for State advice. In the 1950s, when a Tasmanian Premier thought that the office of Governor might be a nice retirement job and proposed to nominate himself for the position, he was swiftly informed by the British Government that this was not an option. In 1975, when Joh Bjelke-Petersen tried to get the Queen to extend the term of a controversial Queensland Governor, British Ministers refused to pass the advice on to the Queen. The sleeping anomalies had awoken and even conservative Premiers realised that they needed to break their links with the UK.

Neville Wran was so alarmed at British involvement in State affairs that he proposed to break off links with the UK unilaterally. In 1979 the NSW Government proposed the enactment of laws terminating Privy Council appeals from State courts and requiring the Queen to act on State advice in appointing State Governors. The British Foreign Secretary, at the insistence of Buckingham Palace, sent a despatch to the Governor telling him the Bills would have to be reserved for the Queen’s assent and that he would advise her to refuse assent. The Privy Council Bill had already been passed by both Houses of NSW Parliament with bipartisan support. It was quietly buried in the Governor’s desk drawer rather than being reserved and refused assent. The other Bill did not proceed. Most Australians would have been shocked to know that the UK Government was telling New South Wales what laws it could or could not pass in 1979. But the Australian people were not told. While on the one hand politicians were not prepared to ‘embarrass’ the Queen by asking her to do something that she did not want to do, they were even more concerned not to bring embarrassment on themselves by letting anyone know that the Queen objected to their legislation.

These events spurred State leaders on to negotiate the termination of residual constitutional links with the United Kingdom. After years of negotiations this was finally achieved — not by a referendum, but by legislation passed by the State, Commonwealth and British Parliaments. On 3 March 1986 the Australia Acts 1986 came into force. They terminated the British Government’s responsibility for the government of any State, and the Westminster Parliament’s capacity to legislate for Australia as part of Australian law. Most importantly, they transferred into Australian hands full control of all Australia’s constitutional documents.

So another candidate for Australia’s ‘independence day’ is 3 March 1986. That is the day when Australia achieved complete independence from the United Kingdom at the national and State level. On that basis, Australia should be celebrating 25 years of independence. Happy Australian Independence Day (whichever day you choose).

ANNE TWOMEY is an Associate Professor at the University of Sydney Law School and the author of
The Australia Acts 1986 – Australia’s Statutes of Independence (Federation Press, 2010).

An article on a similar topic to this Opinion
was published in
The Australian on 3 March 2011.

(2011) 36(1) AltLJ 2

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Girlie gets on the scent of more than roses

Katya Kockoff

Violence against Women

Another International Women’s Day comes and goes and some things improve for women but others do not. Until women have equal political representation, violence against women and children will not be taken seriously and while sanctions for these crimes, including those inflicted by the state, remain unenforceable, women will not be free to participate equally in society with men.

In Afghanistan, for example, a 2009 law banning violence against women has failed to stop public beatings of women for ‘crimes’ such as eloping or adultery. In addition the ‘hospital of cries’ has admitted over 90 cases of self immolation by women unable to obtain justice in the context of domestic violence. The hospital gets its name from the cries of pain from its patients. (The Australian, 8 March 2011)

(2011) 36(2) AltLJ 126

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PM raises human rights issues with Chinese leaders

Ben Schokman
Human Rights

Julia Gillard raised concerns of China’s recent crackdown on ‘human rights defenders’ with a senior visiting Chinese Communist Party leader ahead of her first visit to the country. Human Rights Watch wrote to the Prime Minister urging her to publicly press for an end to systemic ongoing human rights violations, arguing Australia’s position would be strengthened if Australia reinforced its own commitment to international human rights standards.

(2011) 36(2) AltLJ 127

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Discrimination and the Australian Defence Force

Ben Schokman
Human Rights

The Australian government has announced six investigations into the Australian Defence Force's 'culture', many of which are to focus on the treatment of and opportunities available to women, following the allegedly inappropriate handling by the Australian Defence Force ('ADF') Academy of a complaint made by a female cadet in relation to the broadcast of her sexual encounter with a fellow cadet over Skype. Meanwhile, there are allegations that the ADF has failed to properly investigate or prosecute serving members linked to an online social media campaign that publicly named and vilified homosexual personnel. Finally, it appears women will be allowed to serve in frontline combat roles after the Gillard government ordered the ADF to remove bans that have stopped women from applying for the most dangerous and demanding military jobs.

(2011) 36(2) AltLJ 127

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