tag:theconversation.com,2011:/id/topics/australian-law-reform-commission-3790/articlesAustralian Law Reform Commission – The Conversation2024-03-22T01:24:48Ztag:theconversation.com,2011:article/2162762024-03-22T01:24:48Z2024-03-22T01:24:48ZBefore the 1980s, Australian teachers could be banned for being gay. A new report wants to protect them at religious schools too<p>In 1976, Greg Weir was banned from teaching by the Queensland government because he was gay – and was then denied employment in New South Wales and Victoria for the same reason. Two years earlier, in 1974, New South Wales trainee teacher Penny Short was declared “medically unfit” to teach after publishing a lesbian poem.</p>
<p>This kind of discrimination in public schools has been outlawed, thanks (in part) to the activism of teachers like Weir and Short. From the 1980s, anti-discrimination laws made overt discrimination illegal in public schools. The exemptions to these laws for religious organisations in some states, however, <a href="https://equalityaustralia.org.au/un-expert-calls-out-discrimination-against-lgbt-people-in-australias-religious-schools-and-service-providers/">allow discrimination to continue</a>.</p>
<p><a href="https://www.aph.gov.au/DocumentStore.ashx?id=a90858e5-df4f-451b-b067-7d05fda6ef54&subId=663037#:%7E:text=b%20There%20is%20an%20exemption,or%20pregnancy%20in%20connection%20with%3A">Today</a>, in New South Wales, Western Australia, Queensland and South Australia, teachers in religious private schools can still lose their jobs if they are gay, lesbian, bisexual or queer, or if they are transgender or gender diverse. In New South Wales, nonreligious private schools also have the right to discriminate. </p>
<p>This week’s <a href="https://www.alrc.gov.au/wp-content/uploads/2024/03/ALRC-ADL-Final-Report-142.pdf">landmark Australian Law Reform Commission report</a> on religious education institutions and discrimination has called for laws to be clarified, so religious schools nationwide can’t fire or refuse to hire teachers on the basis of their sex, sexual orientation, gender identity, marital status or pregnancy. </p>
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Read more:
<a href="https://theconversation.com/a-major-report-recommends-more-protections-for-lgbtq-students-and-teachers-in-religious-schools-but-this-needs-parliaments-support-to-become-law-226309">A major report recommends more protections for LGBTQ+ students and teachers in religious schools. But this needs parliament's support to become law</a>
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<p>In our research on the histories of LGBTQ+ teacher employment, we have come across multiple, publicly known <a href="https://dehanz.net.au/entries/tennant-haysell-employment-of-same-sex-attracted-teachers-in-schools/">controversial sackings</a> in the 1970s, as well as the more insidious practices of moving out (or outed) gay and lesbian teachers to administrative roles, away from students. </p>
<p>The several cases brought to the attention of activists and the media might only be the tip of the iceberg of homophobic discrimination in that period. </p>
<p>These teachers’ stories can help us understand why hostility to LGBTQ+ teachers remains such an entrenched problem today. And they allow us to appreciate the brave ways queer teachers have campaigned to protect themselves from discrimination. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/583601/original/file-20240322-21-s9qnw2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="a man talking into a microphone, in a shirt and trousers, with onlookers listening" src="https://images.theconversation.com/files/583601/original/file-20240322-21-s9qnw2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/583601/original/file-20240322-21-s9qnw2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=396&fit=crop&dpr=1 600w, https://images.theconversation.com/files/583601/original/file-20240322-21-s9qnw2.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=396&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/583601/original/file-20240322-21-s9qnw2.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=396&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/583601/original/file-20240322-21-s9qnw2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=498&fit=crop&dpr=1 754w, https://images.theconversation.com/files/583601/original/file-20240322-21-s9qnw2.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=498&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/583601/original/file-20240322-21-s9qnw2.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=498&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Greg Weir campaigned against his ban from teaching.</span>
<span class="attribution"><a class="source" href="https://collection.sl.nsw.gov.au/record/1JkmX0VY/r378BWzXJwJbd">Mitchell Library, State Library of New South Wales and Courtesy SEARCH Foundation</a>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span>
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<h2>Banned for being gay</h2>
<p>In 1976, in the heat of Brisbane summer, Greg Weir made his way to the hall of his teaching college to find out what school he was posted to. Like all new teaching graduates on government-sponsored scholarships, he expected to learn where he would be teaching. But Greg wasn’t offered a teaching job, despite his scholarship. </p>
<p>The Queensland government had banned him from teaching because he was gay. </p>
<p>Following the Queensland Education Department’s refusal to employ him, Weir toured the country speaking on campuses and at lesbian and gay events, rallies and political events, auspiced by the Australian Union of Students. He took the Queensland government to court, but his case was ultimately withdrawn by 1984 because the Australian Union of Students ran out of money to fund it. </p>
<p>His visibility as an “out” activist placed him in the sights of the hard-right Queensland government, led by Joh Bjelke-Petersen’s Country Party and closely intertwined with new-right religious conservatives.</p>
<p>The Queensland Minister for Education made an <a href="https://espace.library.uq.edu.au/data/UQ_138735/UQ138735_OA.pdf?dsi_version=57aef43a02bb550484250016b0b99a34&Expires=1709091692&Key-Pair-Id=APKAJKNBJ4MJBJNC6NLQ&Signature=Y1yNejMZjEBsPeByR52c7SAMC865SFbIB5UZXCVW4zsz5edgCvrRNRE47i-54ABta1F8rhCmpors3ZWxi7lXLvjYtlEhxry0pDvtadN2xp5wz1u1QNNQHjvG0hYz6i2e6FophxGikexnaUUkF6n6qSizqGTS13BiS5kPNGSbgIA2bKNQFSJRXGHktea%7EZQmf0ErL10VPLxIZrZylxGgmMzvsuZ0O0mKDLVGJH3IPEbmvq5XMel2Ay8Djk8DlME56RGC5mtlqv8o14F43ZFSitx6VPsG%7Er-h1YCCs0UcSER0UMX-RPeESXf4VBz2r2HEdoOOP3YuIFTzR-jc3omkHgg__">unequivocal statement</a> in 1976 about Weir’s prospects for employment as a teacher: </p>
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<p>Student Teachers who participate in Homosexual and Lesbian groups should not assume they will be employed by the Education Department upon graduation from college. </p>
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<p>Before this, the names of all members of the Kelvin Grove CAE Homosexual and Lesbian group were published in government gazettes. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/581175/original/file-20240312-16-2tr0gt.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/581175/original/file-20240312-16-2tr0gt.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/581175/original/file-20240312-16-2tr0gt.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=396&fit=crop&dpr=1 600w, https://images.theconversation.com/files/581175/original/file-20240312-16-2tr0gt.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=396&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/581175/original/file-20240312-16-2tr0gt.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=396&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/581175/original/file-20240312-16-2tr0gt.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=498&fit=crop&dpr=1 754w, https://images.theconversation.com/files/581175/original/file-20240312-16-2tr0gt.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=498&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/581175/original/file-20240312-16-2tr0gt.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=498&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Greg Weir toured rallies and events around Australia after being banned from teaching for being gay.</span>
<span class="attribution"><a class="source" href="https://collection.sl.nsw.gov.au/record/1JkmX0VY/GlDMbzy56V7eo">Mitchell Library State Library of New South Wales, courtesy SEARCH Foundation</a>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span>
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<p>Penny Short had already passed a required psychological check for teachers when she wrote a <a href="https://trove.nla.gov.au/newspaper/article/230398098?browse=ndp%3Abrowse%2Ftitle%2FT%2Ftitle%2F1187%2F1974%2F04%2F10%2Fpage%2F24751615%2Farticle%2F230398098">lesbian love poem</a> for the Macquarie University student newspaper, Arena, published in 1974. She’d told the psychologist who assessed her she was in a relationship with a woman – and was told to stay in the closet. </p>
<p>But <a href="https://nla.gov.au/nla.obj-727195700/view?sectionId=nla.obj-728956062&partId=nla.obj-727242098">Short</a>, like Weir, was out and proud about her sexuality. After the poem was published, she was referred back to the psychologist and declared “medically unfit” to teach. </p>
<p>In the case of Weir, a nationwide “<a href="https://nla.gov.au/nla.obj-829341667/view?sectionId=nla.obj-830018175&partId=nla.obj-829354990#page/n11/mode/1up">Let Greg Weir Teach</a>” campaign ran for over five years, from when Weir was banned from teaching. Weir also launched an unsuccessful legal case against the Queensland government. He was never able to take up a teaching job.</p>
<p>But Weir’s case made the issue of gay teachers central to the growing gay and lesbian movement.</p>
<p>Gay teacher and student activist groups (like <a href="https://nla.gov.au/nla.obj-690923329/view?sectionId=nla.obj-710168422&partId=nla.obj-690995026">GAYTAS</a>, who campaigned for the rights of gay and lesbian teachers in schools and supported gay and lesbian students) were active in multiple states.</p>
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Read more:
<a href="https://theconversation.com/its-kind-of-suffocating-queer-young-australians-speak-about-how-they-feel-at-school-and-what-they-think-of-politicians-187010">'It's kind of suffocating': queer young Australians speak about how they feel at school and what they think of politicians</a>
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<h2>LGBTQ+ teachers’ rights today</h2>
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<a href="https://images.theconversation.com/files/581184/original/file-20240312-28-1g6fs1.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/581184/original/file-20240312-28-1g6fs1.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/581184/original/file-20240312-28-1g6fs1.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=600&fit=crop&dpr=1 600w, https://images.theconversation.com/files/581184/original/file-20240312-28-1g6fs1.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=600&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/581184/original/file-20240312-28-1g6fs1.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=600&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/581184/original/file-20240312-28-1g6fs1.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=754&fit=crop&dpr=1 754w, https://images.theconversation.com/files/581184/original/file-20240312-28-1g6fs1.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=754&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/581184/original/file-20240312-28-1g6fs1.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=754&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Steph Lentz was sacked in 2021 for coming out as a lesbian.</span>
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<p>Late last year, teacher Steph Lentz released her <a href="https://www.harpercollins.com.au/9780733342974/inout/">autobiography</a> detailing her experience of <a href="https://www.smh.com.au/national/i-lost-my-job-for-coming-out-as-gay-this-needs-to-change-20210812-p58i3b.html">being sacked</a> in 2021, after coming out as a lesbian at the Sydney religious school where she taught. Despite pro bono legal support from Equality Australia, there were no legal protections Lentz could call on in New South Wales. </p>
<p>The following year, in 2022, a Senate inquiry heard <a href="https://www.theguardian.com/australia-news/2022/jan/21/teachers-sacked-for-being-gay-warn-religious-discrimination-bill-will-empower-similar-dismissals">testimony from multiple teachers</a> about their experience of being sacked by religious schools because of their sexuality. </p>
<p>The New South Wales parliament is set to debate an <a href="https://equalityaustralia.org.au/resources/nsw-lgbtiqa-equality-bill-explainer/#:%7E:text=In%20August%202023%20the%20LGBTIQA%2B,discriminated%20against%20the%20LGBTIQA%2B%20community">Equality Bill</a> that would (among many other reforms) remove the exemptions to anti-discrimination laws that allow religious and private schools to discriminate against these teachers on the grounds of religious belief. </p>
<p><a href="https://www.theguardian.com/australia-news/2023/apr/03/queensland-to-abolish-clause-used-to-discriminate-against-lgbtqi-people">Queensland</a> and <a href="https://www.starobserver.com.au/news/national-news/pflag-slams-wa-labor-government-over-delay-in-lgbt-law-reforms/227630">Western Australia</a> are also considering changes to their laws.</p>
<p>These employment disputes are connected to very public and controversial debates surrounding gender and sexuality in schools. </p>
<p>For instance, much of the debate surrounding the ultimately successful Marriage Equality postal vote focused on whether such rights might lead to <a href="https://www.nbcnews.com/feature/nbc-out/australian-ad-draws-fire-linking-gay-marriage-boys-dresses-n797491">“boys wearing dresses”</a> in schools and to <a href="https://www.theguardian.com/australia-news/2018/sep/03/scott-morrison-sends-his-children-to-private-school-to-avoid-skin-curling-sexuality-discussions#:%7E:text=The%20prime%20minister%20agreed%20with,talkback%20radio%20interview%20on%20Monday.">“skin curling”</a> conversations about gender – according to former Prime Minister Scott Morrison and broadcaster Alan Jones. </p>
<p>These Australian debates are occurring in the context of a global backlash against rights for trans and gender diverse people in particular, often focused on children, teachers and schools. As British sociologist <a href="https://journals.sagepub.com/doi/full/10.1177/0038026120934684">Sally Hines has argued</a>, contemporary anti-trans campaigns and laws resemble those targeted at lesbians and gays during the 1980s and 1990s.</p>
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Read more:
<a href="https://theconversation.com/religion-would-take-my-life-two-women-testify-to-enduring-and-surviving-harm-in-evangelical-christian-communities-207146">'Religion would take my life': two women testify to enduring and surviving harm in evangelical Christian communities</a>
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<h2>Queer teachers, then and now</h2>
<p>Teachers are often positioned as role models for their students. Therefore, they are expected to exemplify good moral character. Teachers have the capacity to shape the future of the children they teach – and more generally, of the nation. </p>
<p>This means queer and transgender teachers are particularly vulnerable to accusations of trying to influence children. </p>
<p>For instance, in the 1970s and 1980s, those advocating against Greg Weir and other queer teachers argued out gay and lesbian teachers would expose students to moral indecency. They suggested gay teachers would challenge the bedrock social institution of the family, and ultimately lead students to a life of “perversion”. </p>
<p>These “moral rights” campaigners pitched their <a href="https://www.tandfonline.com/doi/abs/10.1080/00049182.2017.1327786">cause as protecting children’s rights and interests</a>, suggesting any other position would place children at risk. </p>
<p>The teachers, including Greg Weir, who ran campaigns to defend their right to teach in the 1970s and 1980s, were connected to <a href="https://www.heritage.vic.gov.au/__data/assets/pdf_file/0026/513890/History_Of_LGBTIQplus_Victoria.pdf">broader</a> <a href="https://www.sl.nsw.gov.au/stories/coming-out-70s/introduction/1">gay liberation campaigns</a> and gay and lesbian groups organised inside teacher unions. They gathered at conferences like the national Homosexuals at Work in 1978.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/581181/original/file-20240312-24-fz8013.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/581181/original/file-20240312-24-fz8013.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/581181/original/file-20240312-24-fz8013.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=396&fit=crop&dpr=1 600w, https://images.theconversation.com/files/581181/original/file-20240312-24-fz8013.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=396&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/581181/original/file-20240312-24-fz8013.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=396&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/581181/original/file-20240312-24-fz8013.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=498&fit=crop&dpr=1 754w, https://images.theconversation.com/files/581181/original/file-20240312-24-fz8013.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=498&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/581181/original/file-20240312-24-fz8013.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=498&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The queer teachers who defend their right to teach in the 1970s and 80s were connected to broader gay and lesbian groups.</span>
<span class="attribution"><a class="source" href="https://collection.sl.nsw.gov.au/record/1JkmX0VY/R67DkqOELRgA2">Mitchell Library State Library of New South Wales, courtesy SEARCH Foundation</a>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span>
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<p>These <a href="https://www.jstor.org/stable/27516629">teachers argued</a> bans on gay and lesbians teaching in schools would force teachers into the closet, and prevent students from understanding sexual and gender diversity. They argued normalising discrimination in a school setting legitimises this discrimination, and produces violence against LGBTQ+ people. They advocated for <a href="https://dehanz.net.au/entries/young-gay-proud-1978/">liberalising sex education</a> and normalising LGBTQ+ content in the curriculum. </p>
<p>They argued this awareness, rather than harming children, could help prevent harm.</p>
<p>The legacy of this history looms large for teachers. A recent <a href="https://www.tandfonline.com/doi/full/10.1080/10476210.2020.1709943">study of the experiences of LGBTIQ+ teachers</a> found they are still reluctant to be out in school settings: they are “haunted” by a history of education that equates their identities with “threats to children’s innocence”.</p>
<p>There is <a href="https://theconversation.com/why-legislation-should-ban-schools-from-discriminating-against-lgbtiq-students-and-teachers-104940">substantial evidence</a> of LGBTQ+ teachers experiencing alienation, isolation and exclusion at work in religious schools, and <a href="https://theconversation.com/australian-schools-must-promote-lgbt-inclusive-education-23260">persistent reporting</a> of verbal and physical abuse directed at LGBTQ+ students in schools.</p>
<p>Returning to this history provides a way to understand how discrimination against <a href="https://library.oapen.org/handle/20.500.12657/52775">LGBTQ+ teachers</a> continues to be justified through references to the rights of children, such as in debates over the the federal Religious Discrimination Act or the New South Wales Equality Bill. </p>
<p>These notions are not new – they just have a new focus. The new report from the Australian Law Reform Commission provides an opportunity to address the harm done to LGBTQ+ teachers and students by discriminatory laws.</p>
<hr>
<p><em>Note that we refer specifically to discrimination against lesbian, gay, bisexual, queer, trans and gender diverse teachers and students, and do not refer to intersex people. This is because current laws to do not exempt intersex people from discrimination protection in religious or private schools. Learn more here in the <a href="https://www.alrc.gov.au/wp-content/uploads/2024/03/ALRC-ADL-Final-Report-142.pdf">ALRC report</a>.</em></p><img src="https://counter.theconversation.com/content/216276/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Archie Thomas is a member of the National Tertiary Education Union (NTEU).</span></em></p><p class="fine-print"><em><span>Jessica Gerrard receives funding from the Australian Research Council. She is also a member of the NTEU. </span></em></p>We don’t ban queer teachers in public schools anymore, but it’s still allowed in some religious private schools – which the new Law Reform Commission report wants to address. What can history teach us?Archie Thomas, Chancellor's Research Fellow, University of Technology SydneyJessica Gerrard, Associate Professor, The University of MelbourneLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2263092024-03-21T09:16:15Z2024-03-21T09:16:15ZA major report recommends more protections for LGBTQ+ students and teachers in religious schools. But this needs parliament’s support to become law<p>The federal government has just released a <a href="https://www.alrc.gov.au/wp-content/uploads/2024/03/ALRC-ADL-Final-Report-142.pdf">major report</a> about anti-discrimination laws and religious schools in Australia. </p>
<p>It was done by the Australian Law Reform Commission, which finished its work late last year. </p>
<p>It has been <a href="https://www.abc.net.au/listen/programs/radionational-breakfast/no-action-on-lgbtiq-rights-would-be-broken-promise/103613650">keenly anticipated</a> by the LGBTQ+ community who want to ensure students cannot be expelled from religious schools, and to ensure LGBTQ+ teachers do not lose their jobs. </p>
<p>Some <a href="https://www.theaustralian.com.au/nation/politics/religious-schools-raise-alarm-on-hiring-rules/news-story/586dbbb77330d52bc3b97c5673621a69">religious schools</a> have also been campaigning to maintain their right to hire staff who share their religious beliefs. </p>
<h2>Why do we have this report?</h2>
<p>This work forms part of a broader, <a href="https://theconversation.com/did-the-morrison-government-change-the-relationship-between-religion-and-politics-in-australia-190650">highly contentious</a> debate about religious discrimination and expression in Australia. This has been going since marriage equality laws were passed in 2017. </p>
<p>The <a href="https://www.alrc.gov.au/inquiry/anti-discrimination-laws/">Australian Law Reform Commission’s</a> job is to provide the federal attorney-general with advice about how to bring the law into line with current social conditions and community needs. It is made up of independent legal experts. </p>
<p>The commission first started looking into the rights of religious schools <a href="https://www.alrc.gov.au/inquiry/review-into-the-framework-of-religious-exemptions-in-anti-discrimination-legislation/">in 2019</a> at the behest of the Morrison government. </p>
<p>But its <a href="https://www.alrc.gov.au/inquiry/anti-discrimination-laws/">focus changed in 2022</a>, when the Albanese government asked it to look at what changes were needed to better protect students and staff from discrimination on the basis of sexual orientation, gender identity, relationship status or pregnancy.</p>
<p>This debate has been complicated by a <a href="http://researchoutputs.unisa.edu.au/11541.2/141590?_gl=1*3h6hza*_gcl_au*MTg0NjE1MDk3My4xNzA5NTk3NDA5">mix of relevant state and territory laws</a> and the <a href="https://theconversation.com/why-are-religious-discrimination-laws-back-in-the-news-and-where-did-they-come-from-in-the-first-place-226220">lack of a special law</a> protecting against discrimination on religious grounds at the federal level.</p>
<h2>What does the report say?</h2>
<p>The report notes many religious schools in Australia already have inclusive enrolment and employment policies and <a href="https://www.alrc.gov.au/wp-content/uploads/2023/12/What-We-Heard-ADL2.pdf">do not want</a> to discriminate against students or teachers on any grounds. The commission also highlights the importance of religious faith in the Australian community and says families should be able to continue to choose schools for their children that align with their values and beliefs.</p>
<p>But the commission also notes the laws need changing to make sure religious schools are not given a blanket exemption from the rules designed to protect people against sex discrimination. It follows <a href="https://www.abc.net.au/news/2021-11-26/religious-discrimination-bill-lgbtq-students-teachers-religion/100651222">a raft</a> of other inquiries <a href="https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Legal_and_Constitutional_Affairs/Religiousdiscrimination/Report">documenting accounts</a> of students being expelled from faith-based schools “because they were transgender” or teachers being fired because of their sexual orientation. </p>
<p>The commission found when students or staff are subject to discrimination on the basis of these attributes, it can </p>
<blockquote>
<p>result in tangible harm (such as loss of employment, and economic or social disadvantage) as well as intangible harm (such as undermining a person’s sense of self‑worth, equality, belonging, inclusion, and respect). </p>
</blockquote>
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<strong>
Read more:
<a href="https://theconversation.com/why-are-religious-discrimination-laws-back-in-the-news-and-where-did-they-come-from-in-the-first-place-226220">Why are religious discrimination laws back in the news? And where did they come from in the first place?</a>
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<h2>What does it recommend?</h2>
<p>For these reasons, the commission recommends amending laws so religious schools are subject to the same rules as all other education service providers (including public schools).</p>
<p>This means religious schools can’t deny enrolment to trans students, and can’t expel a kid for having gay parents. It also wants laws clarified so religious schools can’t fire or refuse to hire teachers on the basis of their sex, sexual orientation, gender identity, marital status or pregnancy. </p>
<p>However, at the same time, the commission recommends religious schools should still be able to “<a href="https://www.alrc.gov.au/wp-content/uploads/2024/03/ALRC-ADL-Final-Report-142.pdf">build a community of faith</a>”, for example by giving preference when hiring to teachers who share the school’s religion, provided they don’t breach other workplace laws. </p>
<h2>What does this mean for students, teachers and schools?</h2>
<p>If the recommendations become law, not much would change for most schools. For schools in some places, <a href="http://classic.austlii.edu.au/au/legis/vic/consol_act/eoa2010250/s83a.html">such as Victoria</a>, this change would simply align state and federal laws. </p>
<p>Religious schools will still be able to <a href="https://theconversation.com/religious-schools-can-build-a-community-of-faith-without-discriminating-the-law-should-reflect-that-200532">maintain their religious character</a> by selecting staff who share their faith. And while the <a href="https://www.alrc.gov.au/wp-content/uploads/2024/03/ALRC-ADL-Final-Report-142.pdf">recommended changes</a> would remove religious schools’ ability to discriminate directly on certain grounds, such as when hiring staff, a “reasonableness test” would still apply to working out whether other directions or conditions relating to employment are unlawful. </p>
<p>For example, this means a school principal could still ask a teacher to comply with a specific requirement, such as a dress code, if it is reasonable in the circumstances.</p>
<p>This means if the recommendations do become law, religious school administrators would need to check their employment and enrolment policies to review any conditions on staff recruitment (<a href="https://www.alrc.gov.au/wp-content/uploads/2024/03/ALRC-ADL-Final-Report-142.pdf">including interns and volunteers</a>. They would also need to check any rules or policies relating to students that could result in a disadvantage for people on the basis of their sexual orientation, orientation, gender identity, relationship status or pregnancy.</p>
<h2>What happens now?</h2>
<p>Although the Australian Law Reform Commission is made of up some of the sharpest legal minds in Australia, it cannot change the law itself. Only federal parliament can do that by passing legislation to implement its recommendations. </p>
<p>At the moment this does not look likely. Earlier this week, <a href="https://theconversation.com/future-of-anthony-albaneses-religious-discrimination-legislation-is-in-peter-duttons-hands-226119">Prime Minister Anthony Albanese said</a> any changes would need bipartisan support before he takes them to parliament. </p>
<p>Coalition members did not make supportive noises. On Tuesday, Shadow Attorney-General Michaelia Cash <a href="https://thewest.com.au/opinion/michaelia-cash-religious-schools-can-be-sued-for-acting-in-good-faith-in-albo-governments-proposed-reforms-c-13994020">asked</a>: “how will religious schools be able to maintain their values?” </p>
<p>This suggests the debate around religious discrimination and schools in Australia will continue. </p>
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<strong>
Read more:
<a href="https://theconversation.com/future-of-anthony-albaneses-religious-discrimination-legislation-is-in-peter-duttons-hands-226119">Future of Anthony Albanese's religious discrimination legislation is in Peter Dutton's hands</a>
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<img src="https://counter.theconversation.com/content/226309/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Sarah Moulds has previously received research funding from the Law Foundation of South Australia and the Winston Churchill Memorial Trust. She is the volunteer Director of the Rights Resource Network SA and a member of the Australian Discrimination Law Experts Group. </span></em></p>The federal government has just released a long-awaited report about anti-discrimination laws and religious schools in Australia.Sarah Moulds, Senior Lecturer of Law, University of South AustraliaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2262202024-03-20T04:01:17Z2024-03-20T04:01:17ZWhy are religious discrimination laws back in the news? And where did they come from in the first place?<p>On March 21, the federal government will release the Australian Law Reform Commission’s report on ensuring religious schools cannot discriminate against LGBTQIA+ students and staff.</p>
<p>But the political debate is already well under way – and has been going on since 2017. So how did we get here?</p>
<h2>The current debate started with marriage equality</h2>
<p>When same-sex marriage was legalised in late 2017 following a successful postal survey on the issue, conservative religious groups were promised a <a href="https://theconversation.com/morrison-wants-religious-discrimination-act-passed-before-election-108755">“religious freedom” review</a> as a consolation prize. </p>
<p>That <a href="https://www.pmc.gov.au/domestic-policy/taskforces-past-domestic-policy-initiatives/religious-freedom-review">review</a>, led by former Liberal minister Philip Ruddock, found Australia does not have a religious freedom problem. However, it did recommend new legislative protections against religious discrimination. In <a href="https://www.pm.gov.au/media/government-response-religious-freedom-review">response</a>, in December 2018, the Morrison government promised a Religious Discrimination Act.</p>
<p>What the Morrison government ended up proposing – in multiple versions over several years – was laws that would both prohibit discrimination against people on the basis of religion (which was not particularly controversial) and allow discrimination against LGBTQIA+ people and others by taking away existing anti-discrimination protections (which was very controversial). These draft laws never passed.</p>
<p>Before the 2022 federal election, Labor leader Anthony Albanese promised to change federal law to ban discrimination against LGTBQIA+ students and staff by religious schools, and to protect people against discrimination on the basis of their religious beliefs or lack of religious beliefs.</p>
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Read more:
<a href="https://theconversation.com/future-of-anthony-albaneses-religious-discrimination-legislation-is-in-peter-duttons-hands-226119">Future of Anthony Albanese's religious discrimination legislation is in Peter Dutton's hands</a>
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<h2>There are actually two distinct issues at play</h2>
<p>The debate we’ve been having over the past few years is actually a debate about two issues.</p>
<p>The first issue is about religious discrimination. This means ensuring people are not discriminated against on the basis of their religious beliefs, or lack of religious beliefs. </p>
<p>All states and territories (other than New South Wales and South Australia) already have laws banning this kind of religious discrimination. But there is no federal law banning religious discrimination – apart from a <a href="https://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/s116.html">constitutional provision</a> banning religious discrimination in federal government jobs.</p>
<p>It’s standard practice for there to be complementary federal and state anti-discrimination laws on the same topic. For example, if a person is discriminated against on the basis of their race, that person can choose to take action under either federal or state law.</p>
<p>One proposal is for there to be a federal Religious Discrimination Act.</p>
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<p>The second issue is religious exemptions, which involves allowing discrimination on the basis of sexuality, gender identity, marital status and so on where the discrimination has a religious motivation. For example, the Sex Discrimination Act currently prohibits discrimination on the basis of sex, sexuality, gender identity and marital status, but also includes an exemption that allows religious schools to discriminate against students and teachers. </p>
<p>So, if a non-religious private school expels a student for being gay that would contravene the Sex Discrimination Act. But if a religious school did the same thing for religious reasons, that would not contravene the Sex Discrimination Act.</p>
<p>Some states and territories already ban religious schools from discriminating against students and teachers for these kinds of reasons. So if a religious school in Victoria expels a student for being gay, that would not breach federal law as it stands but it would breach Victorian law. The practical result is that the school can’t expel the student for being gay.</p>
<p>A second proposal is to modify the religious exemptions in the Sex Discrimination Act.</p>
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<em>
<strong>
Read more:
<a href="https://theconversation.com/why-australia-does-not-need-a-religious-discrimination-act-99666">Why Australia does not need a Religious Discrimination Act</a>
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<h2>The Morrison government’s first draft of the legislation</h2>
<p>The Morrison government held a consultation during 2019 on a <a href="https://www.ag.gov.au/rights-and-protections/consultations/religious-discrimination-bills-first-exposure-drafts">first draft</a> of its promised legislation. This draft legislation included standard anti-discrimination provisions to prohibit discrimination against people on the basis of their religious beliefs or lack of religious beliefs. It also included highly controversial additional provisions.</p>
<p>The controversial provisions included:</p>
<ul>
<li><p>a provision about “statements of belief” – motivated by the <a href="https://theconversation.com/explainer-does-rugby-australia-have-legal-grounds-to-sack-israel-folau-for-anti-gay-social-media-posts-116170">Israel Folau controversy</a> – which would have overridden all other federal and state anti-discrimination laws to allow derogatory statements to be made by doctors, schools and employers against women, people with disabilities and LGTBQIA+ people.</p></li>
<li><p>a provision allowing healthcare practitioners to refuse to provide care to people, such as allowing a pharmacist to refuse to fill prescriptions for a divorced woman or a nurse to refuse to dress a gay man’s wound.</p></li>
</ul>
<p>In effect, these provisions would have created a “sword” allowing harm to be inflicted on people by taking away existing anti-discrimination protections. Anti-discrimination laws are meant to be a “shield” protecting people from harm. This is why the issue has been so controversial.</p>
<h2>The Morrison government’s second draft</h2>
<p>The controversy over the first draft led to consultations in 2020 on a <a href="https://www.ag.gov.au/rights-and-protections/consultations/religious-discrimination-bills-second-exposure-drafts">second draft</a>.</p>
<p>The second draft was very similar to the first. It too included the override provisions on “statements of belief” and refusal to provide health care. </p>
<p>However, it reduced the number of healthcare professions entitled to refuse to treat patients. It also included some <a href="https://www.ag.gov.au/sites/default/files/2020-03/summary-of-amendments-to-the-bills-since-the-first-exposure-draft.pdf">additional measures</a> about:</p>
<ul>
<li><p>allowing religious hospitals to “preference” people of the same religion as the body in hiring decisions. For example, a Catholic hospital could give priority to Catholics in hiring new staff</p></li>
<li><p>allowing religious camps and conference centres to take faith into account when hiring out their campsites.</p></li>
</ul>
<h2>The bill fails</h2>
<p>The Morrison government <a href="https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=r6821">introduced legislation</a> based on the second draft into parliament in 2021. </p>
<p>During debate, several Liberal backbenchers <a href="https://www.aph.gov.au/About_Parliament/Parliamentary_departments/Parliamentary_Library/FlagPost/2022/March/Floor_crossings_in_the_House_of_Representatives_on_10_February_2022">crossed the floor</a> to vote in favour of amendments the government did not want. One of those amendments – to remove the ability of religious schools to discriminate against LGBTQIA+ students – succeeded, with five Liberal MPs crossing the floor. </p>
<p>The amended bill passed the House of Representatives with the support of both major parties. However, it did not come to a final vote in the Senate because people on all sides of the debate were unhappy with the bill and it was causing internal tensions in the Liberal Party. The bill lapsed.</p>
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<h2>So why is it back in the news?</h2>
<p>After the Labor Party won the 2022 federal election, Attorney-General Mark Dreyfus <a href="https://ministers.ag.gov.au/media-centre/australian-law-reform-commission-review-religious-exemptions-educational-institutions-04-11-2022">asked</a> the Australian Law Reform Commission to advise on what amendments to federal law would be necessary to deliver the Labor Party’s election promise. Labor’s promised legislation would:</p>
<ul>
<li><p>ensure religious schools cannot discriminate against LGBTQIA+ students or staff under federal law.</p></li>
<li><p>ensure religious schools can give preference to people of the same faith as the school when hiring staff under federal law.</p></li>
<li><p>ensure the legislation will be drafted in a manner that does not remove existing legal protections against other forms of discrimination.</p></li>
</ul>
<p>The commission delivered its report to the attorney-general in December 2023. </p>
<p>In anticipation of the report being released on March 21, senior politicians on both sides of politics, including Prime Minister Anthony Albanese and Opposition Leader Peter Dutton, have <a href="https://theconversation.com/future-of-anthony-albaneses-religious-discrimination-legislation-is-in-peter-duttons-hands-226119">already started</a> the politicking. The debate may not be over yet.</p><img src="https://counter.theconversation.com/content/226220/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Luke Beck is board member of the Rationalist Society of Australia Inc and a member of Australia Labor Party. The views in this article are his own.</span></em></p>Religious discrimination laws have been highly controversial in Australia in recent years. Here’s where they started, and where we are now.Luke Beck, Professor of Constitutional Law, Monash UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2217332024-01-24T01:03:52Z2024-01-24T01:03:52ZThe government has announced the scope of its sexual violence inquiry. Here’s what it gets right (and what it doesn’t)<p>This week, the government announced the start of its promised inquiry into justice responses to sexual violence. </p>
<p>The <a href="https://www.alrc.gov.au/inquiry/justice-responses-to-sexual-violence/">terms of reference</a> were developed from national <a href="https://www.ag.gov.au/crime/publications/outcomes-summary-national-roundtable-justice-responses-sexual-violence">discussions</a> last year. Federal, state and territory ministers took part, as well as victim-survivors and advocates. For many with experience and expertise in the area, the challenges highlighted were nothing new.</p>
<p>There has been a significant amount of time and energy poured into sexual violence law and policy reform in Australia since the 1970s, highlighting the <a href="https://www.aic.gov.au/sites/default/files/2020-07/rape-law-reform.pdf">persistent barriers</a> faced by victim-survivors in seeking criminal justice responses to sexual violence and harm. </p>
<p>It is, therefore, pleasing to see the Australian Law Reform Commission finally listening. However, we are cautious about what impact reforms like this will realistically have, given previous attempts have been <a href="https://link.springer.com/article/10.1007/s10691-022-09499-1">routinely undermined in practice</a>.</p>
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<p>
<em>
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Read more:
<a href="https://theconversation.com/does-australia-need-dedicated-sexual-assault-courts-215708">Does Australia need dedicated sexual assault courts?</a>
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</p>
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<h2>What do the terms of reference get right?</h2>
<p>As much as they sound highly procedural, terms of reference are important because they determine what can and cannot be investigated.</p>
<p>Two important features are a step in the right direction. One is the inclusion of a lived-experience Expert Advisory Group. The second is the explicit mention of a trauma-informed approach to victim-survivor and stakeholder engagement through <a href="https://www.alrc.gov.au/inquiry/justice-responses-to-sexual-violence">counselling services</a> to those who participate in the consultation process. </p>
<p>The inclusion of a such a group is now a staple of many law reform inquiries and government departments (like the <a href="https://www.vic.gov.au/victim-survivors-advisory-council">Victim Survivors’ Advisory Council</a> in Victoria) to collaborate on policy. While this is welcome, there are important things for the Australian Law Reform Commission to consider. </p>
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<p>Firstly, there are significant <a href="https://journals.sagepub.com/doi/abs/10.1177/10778012211024266?journalCode=vawa">personal and psychological risks</a> for victim-survivors who may contribute. The commission will need to ensure they’re supported. </p>
<p>Secondly, it is unclear how people will be selected to form the group. The commission needs to ensure the group is representative of diverse experiences and backgrounds. </p>
<p>Thirdly, power imbalances between survivors and the government can <a href="https://bristoluniversitypressdigital.com/view/journals/jgbv/7/3/article-p450.xml">undermine victim-survivors’ contributions</a> to reform efforts. The commission needs to consider how those with experience will be <a href="https://link.springer.com/article/10.1007/s10691-022-09499-1">adequately listened to</a>. </p>
<p>An important feature of the terms of reference is the focus on reforming the broader criminal legal system, not just laws. While <a href="https://www.abs.gov.au/statistics/people/crime-and-justice/sexual-violence/latest-release">more than 90%</a> of victim-survivors never report to police, for those who do, we need to minimise the likelihood of the system being <a href="https://link.springer.com/article/10.1023/A:1022847223135">encountered as a “second rape”</a>. </p>
<p>The commission’s focus on practices such as education for criminal justice personnel, access to a legal representative, and <a href="https://www.mdpi.com/2075-471X/9/4/31">reforms to procedures</a> and <a href="https://aifs.gov.au/research/research-reports/victimsurvivor-focused-justice-responses-and-reforms-criminal-court">laws of evidence</a> therefore has the potential to improve survivors’ <a href="https://www.tandfonline.com/doi/pdf/10.1080/13200968.2021.1930434">experiences of the system</a>. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/male-soldiers-cant-help-themselves-is-among-many-rape-myths-that-need-debunking-212568">'Male soldiers can't help themselves' is among many rape myths that need debunking</a>
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<p>However, international <a href="https://apo.org.au/node/26507">research</a> indicates these measures may have limited impact or <a href="https://journals.sagepub.com/doi/10.1177/1748895819851848">unintended outcomes in practice</a>. Such initiatives would require close monitoring if introduced. </p>
<p>Likewise, having uniform legislative definitions of sexual violence across jurisdictions could help to ensure access to (formal) justice is not contingent on where you happen to live. However, getting harmony across states <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4478006#:%7E:text=We%20identify%20four%20main%20obstacles,historical%20failures%20and%20political%20disincentives">could prove challenging</a>. </p>
<p>It is also positive to see the commission adopt what’s called an <a href="https://www.jstor.org/stable/1229039">intersectional framework</a>. This approach recognises particular groups may be disproportionately impacted by sexual violence, and face unique or additional barriers to engaging with the criminal legal system. The needs of some groups, such as older women, are currently poorly responded to and require urgent attention. </p>
<h2>What are the limits of the inquiry?</h2>
<p>Many communities mentioned in the terms of reference are often unwilling or unable to engage with the formal legal system. It is unclear how the Australian Law Reform Commission intends to meaningfully engage with marginalised communities and ensure that these groups’ needs and perspectives are included.</p>
<p>For instance, an explicit role for Aboriginal and Torres Strait Islander victim-survivors and advocates is missing from the terms of reference outside of the consultation phase. A specific First Nations advisory group could boost engagement with the commission’s process so their perspectives could be better captured.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/571017/original/file-20240124-19-wb5nqn.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A courtroom with the scales of justice in the wood of the judge's bench" src="https://images.theconversation.com/files/571017/original/file-20240124-19-wb5nqn.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/571017/original/file-20240124-19-wb5nqn.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/571017/original/file-20240124-19-wb5nqn.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/571017/original/file-20240124-19-wb5nqn.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/571017/original/file-20240124-19-wb5nqn.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/571017/original/file-20240124-19-wb5nqn.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/571017/original/file-20240124-19-wb5nqn.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">The criminal justice system’s ability to deal with sexual violence cases is the subject of a new inquiry.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/balance-sign-court-room-1812892960">Shutterstock</a></span>
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<p>The terms also limit the scope for alternative justice to be explored. A law reform inquiry inherently centres the criminal legal system as the main way sexual violence is dealt with. However, we know victim-survivors have a <a href="https://journals.sagepub.com/doi/full/10.1177/0964663918761200">diverse range of justice needs</a>, some of which are difficult to meet in the traditional system. Some forms of sexual violence, such as public sexual harassment, are <a href="https://link.springer.com/article/10.1007/s10691-017-9350-3">challenging to respond to</a> using the law.</p>
<p>Some scholars and activists advocate for a <a href="https://journals.sagepub.com/doi/abs/10.1177/0269758020970414">shift away</a> from the criminal legal system. They argue the system is fundamentally harmful. We know, for example, sexual violence occurs within the system through practices like <a href="https://sistersinside.com.au/qhrc-review-into-strip-search-in-womens-prison/">strip searching</a>. It’s also perpetrated by criminal justice actors including <a href="https://www.theguardian.com/australia-news/2024/jan/18/high-ranking-victoria-police-officer-charged-with-three-counts-of-sexual-assault-alleged-to-have-occurred-while-on-duty?CMP=share_btn_tw">police officers</a>. </p>
<p>In addition, the terms of reference don’t include examining the persistent disbelief of victim-survivors by some within the criminal legal system.</p>
<h2>Watch this space…</h2>
<p>There is also the larger question about how the recommendations of the inquiry will be resourced and implemented in practice. While the commission appears to take a holistic approach, it remains to be seen whether this will have any bearing on future reforms to legislation, policy and practice. </p>
<p>The recent Victorian Law Reform Commission <a href="https://www.lawreform.vic.gov.au/project/improving-the-response-of-the-justice-system-to-sexual-offences/">inquiry on sexual offences </a> also included a focus on innovative justice responses. So far, more innovative recommendations have been sidelined by the government in favour of <a href="https://www.justice.vic.gov.au/victorias-new-sexual-offence-laws-an-introduction">legislative reform</a>. </p>
<p><a href="https://www.alrc.gov.au/wp-content/uploads/2019/08/final_report_133_amended1.pdf">Recent</a> Australian <a href="https://humanrights.gov.au/our-work/aboriginal-and-torres-strait-islander-social-justice/publications/wiyi-yani-u-thangani">inquiries</a> have called for alternatives to criminal legal responses for Indigenous women’s safety. Despite a <a href="https://www.womenstaskforce.qld.gov.au/__data/assets/pdf_file/0009/691218/wsjt-submission-dr-marlene-longbottom-and-dr-amanda-porter-university-of-wollongong-and-university-of-melbourne.pdf">strong evidence base</a> for community-controlled, restorative solutions, there has been little action on these recommendations to date. </p>
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Read more:
<a href="https://theconversation.com/a-royal-commission-wont-help-the-abuse-of-aboriginal-kids-indigenous-led-solutions-will-216526">A royal commission won't help the abuse of Aboriginal kids. Indigenous-led solutions will</a>
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<p>While the outcomes of the inquiry are outside the immediate control of the commission, it does raise concerns about the merits of continuing to tinker with a broken system. Despite many decades of law reform in jurisdictions such as Victoria, <a href="https://www.crimestatistics.vic.gov.au/research-and-evaluation/publications/attrition-of-sexual-offence-incidents-through-the-victorian#:%7E:text=Attrition%20was%20highest%20during%20the,of%20those%20offenders%20they%20identified">reporting rates</a> remain low and attrition rates remain high. </p>
<p>Given the limits of criminal legal reform, we need to think bigger and more boldly. The inquiry is a good start, but for a comprehensive solution, we will need to be willing to question the role of a criminal justice system that has so far failed victim-survivors.</p><img src="https://counter.theconversation.com/content/221733/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Rachel Loney-Howes receives funding from the Commonwealth Government Attorney-General's Department, the Victorian Government, and, previously, the Australian Institute of Criminology for research on alternative reporting options for survivors of sexual violence. </span></em></p><p class="fine-print"><em><span>Bianca Fileborn receives funding from the Australian Research Council to undertake research on justice responses to sexual violence.</span></em></p>The inquiry into justice responses to sexual violence is taking a holistic approach, which is a welcome step in the right direction. But there’s still elements missing from the terms of reference.Rachel Loney-Howes, Senior Lecturer in Criminology, University of WollongongBianca Fileborn, Senior Lecturer in Criminology, The University of MelbourneLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2005322023-02-27T02:40:29Z2023-02-27T02:40:29ZReligious schools can build a community of faith without discriminating. The law should reflect that<figure><img src="https://images.theconversation.com/files/512308/original/file-20230226-4560-2owyak.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Dean Lewins/AAP</span></span></figcaption></figure><p>In 2018, Australians were shocked to learn that religious schools still had the right to discriminate against LGBTQ students and staff.</p>
<p>Politicians called it “<a href="https://www.news.com.au/lifestyle/parenting/school-life/awful-plan-to-reject-gay-students-teachers/news-story/c0a77bff2e30a45e6728e1217f815a60">utter crap</a>”. Polling <a href="https://www.smh.com.au/politics/federal/fairfax-ipsos-poll-huge-majority-of-australians-oppose-laws-banning-gay-students-and-teachers-20181014-p509kv.html">found</a> 74% of Australians opposed it.</p>
<p>Federally, both the then-Coalition government and Labor opposition committed to protect LGBTQ students from discrimination. Yet, almost five years later, laws allowing religious schools to expel LGBTQ students and sack LGBTQ staff remain in place.</p>
<p>Late last year, Attorney-General Mark Dreyfus <a href="https://www.theguardian.com/australia-news/2022/nov/04/labor-takes-step-towards-new-religious-discrimination-laws-with-review-of-exemptions-for-schools">asked</a> the Australian Law Reform Commission (ALRC) to inquire into how to end discrimination against LGBTQ students and staff while allowing religious schools to build and maintain their communities of faith. </p>
<p>Last month, the ALRC released its <a href="https://www.alrc.gov.au/publication/adl-cp-2023/">consultation paper</a>. It recommended the exceptions in federal discrimination law allowing religious schools to discriminate be removed.</p>
<p>In response, some faith leaders and commentators have argued the ALRC proposals <a href="https://www.theaustralian.com.au/commentary/editorials/religious-freedom-includes-choosing-teachers-of-faith/news-story/486c53e90bfebfb20e20d8bc3df5c54e">threaten the future of religious education</a>, represent a “<a href="https://www.theage.com.au/national/religious-schools-must-be-allowed-to-keep-the-right-to-discriminate-20230220-p5clwi.html">fundamental attack</a>” on religious freedom, and would be “<a href="https://www.spectator.com.au/2023/02/stripping-christian-schools-of-purpose-has-the-government-counted-the-cost/">catastrophic</a>” for religious schools.</p>
<p>This is entirely untrue.</p>
<p>The ALRC proposals are sensible, clear and necessary. They cut through the noise that has surrounded these issues for many years. They appropriately protect both the rights of LGBTQ kids and teachers to be treated with dignity and respect, and of religious schools to maintain their connection to faith.</p>
<p>There are still some improvements that can be made. But this is our best opportunity to ensure federal discrimination laws finally catch up with contemporary values.</p>
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Read more:
<a href="https://theconversation.com/schools-can-still-expel-lgbtq-kids-the-religious-discrimination-bill-only-makes-it-worse-172494">Schools can still expel LGBTQ+ kids. The Religious Discrimination Bill only makes it worse</a>
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<h2>What are the ALRC proposals?</h2>
<p>At the federal level in Australia, exceptions for religious schools have always existed.</p>
<p>Currently, the Sex Discrimination Act <a href="http://www6.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/sda1984209/s38.html">allows religious schools to discriminate</a> on the basis of sex, sexuality, gender identity, marital status, and pregnancy where the discrimination is in “good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or creed”.</p>
<p>This sounds like a complicated test, but it is very easy to satisfy. A religious school simply has to prove there are <em>some</em> members of its religion who would want to keep out, or treat differently, particular students or teachers - such as LGBTQ students or unwed teachers.</p>
<p>The ALRC proposes removing these exceptions. This would, finally, make it unlawful for religious schools to discriminate in this way.</p>
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<img alt="" src="https://images.theconversation.com/files/512315/original/file-20230226-2241-eip5bp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/512315/original/file-20230226-2241-eip5bp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/512315/original/file-20230226-2241-eip5bp.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/512315/original/file-20230226-2241-eip5bp.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/512315/original/file-20230226-2241-eip5bp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/512315/original/file-20230226-2241-eip5bp.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/512315/original/file-20230226-2241-eip5bp.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">The ALRC proposals would prevent discrimination against LGBTQ students and teachers while allowing faith schools to maintain a religious community.</span>
<span class="attribution"><span class="source">Shutterstock</span></span>
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<p>The ALRC also proposes reforms to ensure religious schools can still build and maintain a community of faith through hiring and termination of staff. These reforms would allow schools to preference staff on the basis of their religion – but not sex, sexuality or gender identity – where religion is a genuine occupational requirement of their role.</p>
<p>Christian schools could hire Christian teachers, Jewish schools could hire Jewish teachers, and Islamic schools could hire Muslim teachers.</p>
<p>Several states and territories, including <a href="https://www.legislation.tas.gov.au/view/html/inforce/current/act-1998-046#GS51@EN">Tasmania</a> and <a href="http://classic.austlii.edu.au/au/legis/vic/consol_act/eoa2010250/s83a.html">Victoria</a>, already adopt a similar approach. Not only has the sky not fallen, but religious schools in Australia only seem to be <a href="https://www.abc.net.au/news/2023-02-15/abs-data-shows-public-private-school-enrolments-divide/101976204">growing</a>. </p>
<p>The ALRC has also proposed that religious schools be granted a right to terminate the employment of staff who actively undermine the “ethos” of the school’s religion, where the termination is proportionate in the circumstances.</p>
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Read more:
<a href="https://theconversation.com/australians-reject-discrimination-that-is-based-on-religious-belief-new-research-186751">Australians reject discrimination that is based on religious belief: new research</a>
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<h2>How would the proposals affect religious schools?</h2>
<p>The ALRC proposals would stop religious schools from expelling students or subjecting them to different treatment to their peers because they are gay or transgender. These proposals would also stop a religious school from sacking a teacher because, for instance, they are a single mother or in a relationship outside of marriage.</p>
<p>What the proposals would not do is force religious schools to hire or continue the employment of staff who fail to uphold reasonable and non-discriminatory codes of conduct and behaviour.</p>
<p>All employers, including religious schools, can adopt non-discriminatory codes of conduct – and the vast majority do. Such codes give employers the right to protect the culture and values of their organisation, including religious values and culture. As long as they are reasonable, nothing in the ALRC proposals affects such codes of conduct.</p>
<p>These proposals simply mean that religious schools would be in the same position as other schools and employers. They will be able to protect their organisational culture and values through existing discrimination law mechanisms.</p>
<h2>How should the proposals be improved?</h2>
<p>As we set out in the Australian Discrimination Law Experts Group’s <a href="https://www.adleg.org.au/submissions/alrc-inquiry-into-religious-educational-institutions-2023">submission</a> to this inquiry, there are three ways in which the proposals should be improved.</p>
<p>First, because of the <a href="http://www6.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/sda1984209/s40.html">complex relationship</a> between the Fair Work Act and federal discrimination laws, some of the ALRC’s proposals regarding the Fair Work Act have unintended consequences.</p>
<p>Certain proposals would actually allow an alternative route - enterprise agreements - through which religious schools could discriminate against LGBTQ staff.</p>
<p>This should be fixed by amending the Sex Discrimination Act to stop it being overridden by Fair Work Act enterprise agreements, and fixing the legal language in the ALRC’s Fair Work Act proposals.</p>
<p>Second, the ALRC has proposed that school curriculums should be entirely exempt from the Sex Discrimination Act. This undermines one of the purposes of the inquiry: to stop LGBTQ kids from being discriminated against at religious schools.</p>
<p>Instead of directly excluding them, schools and teachers could instead use the cloak of the “curriculum” to vilify and discriminate against students on the basis of their sexuality or gender identity.</p>
<p>It is difficult to see how this proposal is consistent with the duty of care owed by schools to students. It is also unclear how such a proposal would operate in conjunction with the development and implementation of the national curriculum. It should be rejected.</p>
<p>Third, the terms “ethos” and “religious ethos” are used throughout the ALRC’s proposals. </p>
<p>The term “ethos” has never been used in any of Australia’s 13 federal, state or territory discrimination laws. Nor is it found in the international human rights treaties on which those laws rely.</p>
<p>Importing the concept of an institution having an “ethos” is unnecessary and confounding. References to “ethos” should be removed.</p>
<p>These three proposals undermine the value of the ALRC’s otherwise sensible proposals. They give rise to confusion and legal complexity. Fixing them will ensure the great promise of the ALRC inquiry is fulfilled.</p>
<p>School is not just about learning maths and English. It is the place young people learn some of their most important formative lessons about their individual worth and the worth of their peers.</p>
<p>Religious schools can build and maintain a community of faith without discriminating against LGBTQ students and staff - indeed, many already do. It is well and truly time for the law to reflect that.</p><img src="https://counter.theconversation.com/content/200532/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Liam Elphick is affiliated with the Victorian Pride Lobby, an organisation that works toward equality and social justice for the Victorian LGBTIQA+ community.</span></em></p><p class="fine-print"><em><span>Robin Banks is affiliated with Outside the Box / Earth Arts Rights, and A Fairer World, both not-for-profit groups that work to promote human rights and social justice, and the inclusion of all people in the full range of societal opportunities.</span></em></p><p class="fine-print"><em><span>Alice Taylor does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The Australian Law Reform Commission’s proposals to change federal discrimination law are sensible, clear and necessary.Liam Elphick, Lecturer, Faculty of Law, Monash UniversityAlice Taylor, Assistant Professor, Faculty of Law, Bond UniversityRobin Banks, PhD Candidate and University Associate, University of TasmaniaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1915152022-10-04T19:04:42Z2022-10-04T19:04:42ZWhy the class action against Optus could be Australia’s biggest<figure><img src="https://images.theconversation.com/files/487470/original/file-20220930-23-gwzr37.jpg?ixlib=rb-1.1.0&rect=9%2C1070%2C6253%2C3239&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>With the Optus data breach exposing almost 10 million current and former customers to identity theft, law firms are circling for what could end up being the biggest – and most valuable – class action case in Australian legal history. </p>
<p>A settlement could well be worth billions, eclipsing the current record of <a href="https://www.abc.net.au/news/2014-07-15/black-saturday-bushfire-survivors-secure-record-payout/5597062">$494 million</a> paid to 10,000 victims of Victoria’s 2009 Black Saturday bushfires.</p>
<p>Two class-action specialists, <a href="https://www.lawyersweekly.com.au/biglaw/35625-maurice-blackburn-investigates-action-against-optus">Maurice Blackburn</a> and <a href="https://www.slatergordon.com.au/class-actions/current-class-actions/optus-data-breach">Slater & Gordon</a>, are considering suing, and it’s possible others will follow. (Maurice Blackburn also has another case against Optus on its books over a 2019 data breach involving 50,000 customers.)</p>
<p>To proceed they’ll need to sign up at least seven people – one of whom acts as the “representative” or lead plaintiff. This shouldn’t be hard. They’ll then need to file a statement of claim for financial, economic or other loss. </p>
<p>Multiple class actions are possible if those claims pursue different issues. Or the firms could work together, as they have in the past.</p>
<h2>Things to know about class actions</h2>
<p>There have been about 700 class actions in Australia in the past 30 years. Class actions can be pursued through state or federal courts. Most go to the Federal Court, which has been empowered to hear class actions since 1992. </p>
<p>Less <a href="https://www.alrc.gov.au/wp-content/uploads/2019/08/alrc_report_134_webaccess_2.pdf">than 5%</a> of Federal Court actions have progressed to a judgement. About 60% have ended in a court-approved settlement, with the balance dismissed or discontinued.</p>
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<p>The most common type of class action is by shareholders for loss of earnings. These account for about a third of Federal Court class actions. </p>
<p>The biggest shareholder settlement so far is $200 million, paid by Centro Property Group to almost 6,000 shareholders in 2012 over misleading and deceptive conduct by Centro’s board. This followed the Australian Securities and Investments Commission <a href="https://www.smh.com.au/business/asic-wins-case-against-centro-directors-20110627-1gmk5.html">successfully prosecuting</a> Centro (also in the Federal Court). </p>
<p>Class actions account for less than 1% of claims lodged with the Federal Court, but their scale and complexity means they take a disproportionate amount of court time, as well as media attention. </p>
<p>Because of their cost, many class actions are funded by third parties as a type of business venture. This enables the law firms running the action to sign up plaintiffs on a “no win, no fee”. The litigation funder then takes a share of the settlement (as does the law firm for its legal fees). </p>
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Read more:
<a href="https://theconversation.com/regulations-needed-for-litigation-funders-who-cant-pay-out-when-cases-fail-72502">Regulations needed for litigation funders who can't pay out when cases fail</a>
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<p>According to <a href="https://www.alrc.gov.au/wp-content/uploads/2019/08/alrc_report_134_webaccess_2.pdf">Australian Law Reform Commission</a> data for settled cases, the median percentage of any settlement going to plaintiffs is 57%, with law firms taking 17% and funders taking 22%. </p>
<h2>What would a class action against Optus involve?</h2>
<p>Based on what is currently known, there are two main ways a class action (or class actions) could proceed against Optus. </p>
<p>First, it could argue negligence, with the scope of liability outlined in state or territory legislation. Second, it could argue breach of privacy, in contravention of the federal <a href="https://www.legislation.gov.au/Details/C2014C00076">Privacy Act</a>, in the Federal Court.</p>
<p>To succeed in negligence, a court would have to find Optus had a duty of care to its customers to protect their personal information, that it breached its duty, and that customers suffered damage or loss.</p>
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Read more:
<a href="https://theconversation.com/how-not-to-tell-customers-their-data-is-at-risk-the-optus-approach-191258">How not to tell customers their data is at risk: the Optus approach</a>
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<p>To succeed on a breach of privacy, the Federal Court would have to find that personal information held by Optus was subject to unauthorised access or disclosure, or lost, and that the company failed to comply with the “privacy principles” enshrined in the Privacy Act.</p>
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Read more:
<a href="https://theconversation.com/optus-says-it-needed-to-keep-identity-data-for-six-years-but-did-it-really-191498">Optus says it needed to keep identity data for six years. But did it really?</a>
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<p>A second basis for a class action in the Federal Court could be to argue a breach of the <a href="https://www.legislation.gov.au/Details/C2018C00385">Telecommunications Act</a>. This legislation says carriers and carriage service providers “must to do their best” to protect telecommunications networks and facilities from unauthorised interference or unauthorised access. </p>
<h2>What are the precedents?</h2>
<p>The closest precedent in Australia to a successful class action for a mass breach of privacy is a 2019 case in the NSW Supreme court. This involved a claim by 108 NSW ambulance service employees against the NSW Health Department.</p>
<p>The employees, represented by the firm <a href="https://www.centenniallawyers.com.au/nsw-ambulance-class-action/">Centennial Lawyers</a>, had their personnel files sold to a personal injury law firm by a contractor (who was convicted of unlawfully disclosing information and carried out community service for the crime).</p>
<p>The court ordered NSW Health to pay the sum of <a href="http://www8.austlii.edu.au.ezproxy.newcastle.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWSC/2019/1781.html">$275,000 in compensation</a>) – $10,000 for the lead plaintiff and about $2,400 for the others. </p>
<h2>How much could the Optus case be worth?</h2>
<p>Given the Optus data leak is established, there’s a strong basis to believe a class action would be successful.</p>
<p>If so, a court could award compensatory damages for the time and cost of replacing identification documents, as well as exemplary (or punitive) damages, to send a message to corporations handling citizens’ private information. </p>
<p>In determining damages, a court will take into account what efforts Optus has made to remedy the leak, mitigate the potential impact on those affected and pay for the costs of replacing drivers’ licences, Medicare cards or passports. </p>
<p>Though the economic loss per customer may be relatively small, multiplied by the potential class-action pool size – up to 10 million plaintiffs – compensatory damages could easily be billions of dollars, even without exemplary damages.</p>
<p>That makes this a hugely attractive prospect for a law firm or class-action funder.</p><img src="https://counter.theconversation.com/content/191515/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>With up to 10 million plaintiffs, a successful class action against Optus over its identify data breach could easily be worth billions of dollars.Mirella Atherton, Lecturer in Law, University of NewcastleEliezer Sanchez-Lasaballett, Lecturer, University of NewcastleLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1768082022-02-09T18:52:55Z2022-02-09T18:52:55ZLiberal revolt removes all discrimination against gay and transgender children<p>In a humiliating rebuff to Scott Morrison, a revolt by Liberal backbenchers has struck down the provisions of the sex discrimination act that allow discrimination against gay and transgender children. </p>
<p>In the early hours of Thursday, five Liberals crossed the floor – Katie Allen, Dave Sharma, Trent Zimmerman, Bridget Archer and Fiona Martin – in defiance of the Prime Minister. The vote was 65-59. The amended bill then passed the House of Representatives and now has to go to the Senate.</p>
<p>The rebels had been concerned the government’s much narrower proposed change excluded transgender children at religious schools. </p>
<p>The amendment was moved by crossbencher Rebekha Sharkie and was identical in wording to one of Labor’s proposed amendments. Sharkie told The Conversation she thought it might have a greater chance of success coming from the crossbench.</p>
<p>Earlier Morrison had told the house there would be “a time and place” to address the situation of transgender children.</p>
<p>He said the Law Reform Commission would consider the protection of these children from discrimination while allowing schools to maintain their ethos. The commission would report in six months. He also named Allen as chair of a House of Representatives select committee on the question. </p>
<p>The government’s proposed change to the sex discrimination legislation was a parallel bill to its religious discrimination legislation. </p>
<p>Labor and two Liberal rebels narrowly failed to amend the religious discrimination bill when Speaker Andrew Wallace used his casting vote to break a tied vote. </p>
<p>Archer and Zimmerman crossed the floor to support a Labor amendment aimed at ensuring existing anti-discrimination protections were not diminished by the protection to be given to “statements of belief”. The vote was 62-62.</p>
<p>The religious discrimination bill passed the house at 4am Thursday, shortly before the revolt over the associated bill. The only amendments to it were those the government made.</p>
<p>Archer, who supported all Labor’s amendments to the religious discrimination bill, also voted against its second reading and its final passage. </p>
<p>Now that they have been lost in the lower house, the opposition will pursue its amendments to the religious discrimination bill in the Senate.</p>
<p>Labor on Wednesday gave support to the controversial bill but said it was flawed and should be amended. </p>
<p>Caucus approved a package of proposed amendments that would </p>
<ul>
<li><p>prohibit religious vilification </p></li>
<li><p>make it clear the legislation’s “statement of belief” did not remove or diminish existing protections against discrimination. (The legislation provides that “statements of belief” are legally protected if based on a genuinely held religious view.)</p></li>
<li><p>ensure in-home aged care providers could not discriminate on the basis of religion in providing services </p></li>
<li><p>prohibit discrimination against children on the grounds of sexuality or gender identity. </p></li>
</ul>
<p>During the House of Representatives debate opposition leader Anthony Albanese tabled a letter Morrison had sent to him late last year in which the PM reaffirmed “there is no place in our education system for any form of discrimination against a student on the basis of their sexuality or gender identity” and said the government would amend the sex discrimination act to remove the provisions allowing this. </p>
<p>Labor said that it would “insist” on any of its amendments that were passed in either house. That could mean, if the government refused to accept them, the legislation bouncing between the houses until one or other side gave way. </p>
<p>The religious discrimination legislation is up against the clock, with the Senate rising on Thursday, and not sitting again until budget week, the last sitting before the election. </p>
<p>Albanese told parliament the legislation was “flawed” but it could be fixed. </p>
<p>He said it should be possible “to enhance protections against discrimination without enhancing discrimination against others”.</p>
<p>“We need shields from discrimination, not swords for discrimination."
He said the legislation should be a unifying moment. </p>
<p>But if not amended the bill "will only succeed in driving us apart,” Albanese said. </p>
<p>Morrison has been pulling out all stops to get the religious discrimination legislation through. </p>
<p>But moderate Liberals have had a range of concerns, and much effort had gone into trying to settle backbench doubts and minimise defections. </p>
<p>Zimmerman told the house that he would “part with my party” on the statement of belief provision and the changes to the sexual discrimination act. </p>
<p>Zimmerman said the statement of beliefs “puts religious faith on a pedestal above other rights”. He objected to the changes to the sex discrimination act failing to include protection for teachers and transgender children. </p>
<p>NSW Treasurer Matt Kean tweeted “Trent Zimmerman has been one of my greatest political heroes during my 20 years in the Liberal party. This speech will help everyone understand exactly why.” </p>
<p>Earlier, NSW premier Dominic Perrottet said of the religious discrimination legislation: “I’ve made it very clear that I don’t believe legislation in this space is necessary”. He said it could end up creating more problems than it solved. </p>
<p>Within the Labor frontbench, and in the wider caucus, there was division about over whether the opposition should pursue amendments or oppose the legislation outright. </p>
<p>Former Labor leader, Bill Shorten, who was reported to have argued in shadow cabinet that Labor should oppose the legislation, told the house, “We will rue the day if this legislation passes the Senate” .</p>
<p>The religious discrimination legislation had its origins as a gesture to the losing side after the legislating of marriage equality. </p>
<p>Morrison has hoped to wedge Labor on the issue; Albanese is anxious to avoid the wedge.</p><img src="https://counter.theconversation.com/content/176808/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Michelle Grattan does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>In a humiliation rebuff to Scott Morrison, a revolt by Liberal backbenchers has struck down the provisions of the sex discrimination legislation that allow discrimination against gay and transgender children.Michelle Grattan, Professorial Fellow, University of CanberraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1276192019-11-22T06:37:21Z2019-11-22T06:37:21ZWestpac’s scandal highlights a system failing to deter corporate wrongdoing<p>The news that Australia’s anti money-laundering regulator has accused Westpac of breaching the law on <a href="https://www.abc.net.au/news/2019-11-20/westpac-to-face-fines-anti-money-laundering-terrorism-breaches/11720474">23 million occasions</a> points to the prospect that powerful members of corporate Australia are still behaving badly.</p>
<p>This despite the clear lessons offered by the <a href="https://treasury.gov.au/publication/p2019-fsrc-final-report">Banking Royal Commission</a>. </p>
<p>Regulators are still struggling to find the right balance between pursuing wrongdoers through the courts – an admittedly costly, time-consuming and highly risky business – and finding other means to punish and deter misconduct.</p>
<p>Australia’s anti money-laundering regulator, AUSTRAC, is seeking penalties against Westpac in the Federal Court. </p>
<p>Each of the bank’s alleged contraventions attracts a civil penalty of up to A$21 million. In theory, that could equate to a fine in the region of A$391 trillion.
In practice, it is likely to be a mere fraction of that sum. Commonwealth Bank breached <a href="https://www.abc.net.au/news/2018-06-04/commonwealth-bank-pay-$700-million-fine-money-laundering-breach/9831064">anti-money-laundering laws</a> and faced a theoretical maximum fine of nearly A$1 trillion, but settled for A$700 million. </p>
<p>No doubt the reality that companies can minimise penalties is a factor in why breaches continue.</p>
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<em>
<strong>
Read more:
<a href="https://theconversation.com/how-westpac-is-alleged-to-have-broken-anti-money-laundering-laws-23-million-times-127518">How Westpac is alleged to have broken anti-money laundering laws 23 million times</a>
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<p>This impression is reinforced by revelations last week that financial services company AMP continued to <a href="https://www.abc.net.au/news/2019-11-20/asic-chairman-takes-a-personal-interest-in-amp-charging-the-dead/11719124">charge fees to its dead clients</a> despite the shellacking it received at the hands of the royal commission.</p>
<p>Last month a Federal Court judge refused to approve a A$75 million fine agreed between the Australian Competition and Consumer Commission and Volkswagen to settle litigation over the car company’s conduct in cheating emissions tests for diesel vehicles. The judge was reported to be “<a href="https://www.caradvice.com.au/800731/volkswagen-accc-diesel-case-settled-australia">outraged</a>” by the settlement, which meant Volkswagen did not admit liability for its misconduct. </p>
<p>The A$75 million is a drop in the ocean of the likely profits obtained from this systemic wrongdoing and pales into insignificance next to fines imposed in other countries. </p>
<h2>Proposals for law reform</h2>
<p>So business as usual, right?</p>
<p>Maybe not for long. The Australian Law Reform Commission has just released a <a href="https://www.alrc.gov.au/wp-content/uploads/2019/11/Corp-Crime-DP-87.pdf">discussion paper</a> on corporate criminal responsibility. </p>
<p>It points out that effective punishment and deterrence of serious criminal and civil misconduct by corporations in Australia is undermined by a combination of factors. </p>
<p>These include a confusing and inconsistent web of laws governing the circumstances in which conduct is “attributed” to the company. Similar problems of inconsistency arguably also undermine other key areas, such as <a href="http://theconversation.com/fines-thatll-hurt-asics-powerful-if-ill-fitting-teeth-112298">efforts to give courts the power </a>to impose hefty fines based on the profits obtained by the wrongdoing</p>
<p>The repeated attempts to come up with new and more effective attribution rules arise because corporate wrongdoers are “artificial people”. For centuries, courts and parliaments have struggled with how to make them pay for what is done by their human managers, employees and (both human and corporate) agents. All too often a company’s directors disclaim all knowledge of the wrongdoing. </p>
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<strong>
Read more:
<a href="https://theconversation.com/three-simple-steps-to-fix-our-banks-103999">Three simple steps to fix our banks</a>
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</p>
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<p>To fix this, the ALRC recommends having one single method to attribute responsibility. It builds on the attribution rule first developed in the <a href="http://www5.austlii.edu.au/au/legis/cth/num_act/tpa1974149/s84.html">Trade Practices Act 1974 (Cth)</a> and now used, in various forms, across various statutes.</p>
<p>The ALRC proposes that the conduct and state of mind of any “associates” (whether natural individuals or other corporations) acting on behalf of the corporation should be attributable to the corporation. </p>
<p>This goes well beyond the traditional focus on directors and senior managers and would provide some welcome consistency in the law. </p>
<p>Importantly, serious criminal and civil breaches that require proof of a dishonest or highly culpable corporate “state of mind” can be satisfied either by proving the state of mind of the “associate” or that the company “authorised or permitted” the conduct. </p>
<p>A “due diligence” defence would protect the corporation from liability where the misconduct was truly attributable to rogue “bad apples” in an otherwise a well-run organisation. There would be no protection in the case of widespread “system errors” and “administrative failures” so pathetically admitted during the royal commission. </p>
<p>The ALRC also proposes that senior officers be liable for the conduct of corporations where they are in “a position to influence the relevant conduct and failed to take reasonable steps to prevent a contravention or offence”. </p>
<p>This would place the onus on those in a position to change egregious corporate practices to show they took reasonable steps to do so.</p>
<h2>Removing the penalty ceiling</h2>
<p>These recommendations, if adopted could prove a game-changer for regulators asking themselves “why not litigate?” and corporations used to managing the fall-out of their misconduct as simply a “cost of business”.</p>
<p>The ALRC’s recommendations that the criminal and civil penalties should be enough to ensure corporations don’t profit from wrongdoing will be welcomed by many. Some academics have gone further and argued that the law should be changed to make it clear that civil, not just criminal penalties, should be set at a level that is effective to punish serious wrongdoing.</p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/how-courts-and-costs-are-undermining-asic-and-the-acccs-efforts-to-police-misbehaving-banks-and-businesses-95528">How courts and costs are undermining ASIC and the ACCC's efforts to police misbehaving banks and businesses</a>
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<p>The ALRC also raises the question whether current limits on penalties should be removed. The Westpac scenario might be just the kind of case to make that option attractive.</p><img src="https://counter.theconversation.com/content/127619/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Elise Bant holds a Australian Research Council Discovery Project grant with Professor Jeannie Paterson (MLS) for DP180100932 'Developing a Rational Law of Misleading Conduct'. She is also the recipient of a Future Fellowship grant FT19010475 from 2020, entitled 'Unravelling Corporate Fraud: re-purposing ancient laws for modern times'.</span></em></p><p class="fine-print"><em><span>Jeannie Marie Paterson holds a Australian Research Council Discovery Project grant with Professor Elise Bant for DP180100932 'Developing a Rational Law of Misleading Conduct'.</span></em></p>It’s no wonder corporate wrongdoing occurs when the profits from wrongdoing outweigh the costs of being caught and punished.Elise Bant, Professor of Law, The University of MelbourneJeannie Marie Paterson, Professor of Law, The University of MelbourneLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/939192018-05-07T04:34:08Z2018-05-07T04:34:08ZIn the Family Court, children say they want the process explained and their views heard. It’s time we listened<figure><img src="https://images.theconversation.com/files/213788/original/file-20180409-114109-6oc4zf.png?ixlib=rb-1.1.0&rect=17%2C5%2C3976%2C1988&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Our research found that children place the most emphasis on issues such as having the Family Court process and the roles of key players explained to them, and on being heard.</span> <span class="attribution"><span class="source">Cindy Zhi NY-BD-CC</span>, <a class="license" href="http://creativecommons.org/licenses/by-nc-nd/4.0/">CC BY-NC-ND</a></span></figcaption></figure><p><em>Where will I live? Who will look after me? Can I stay at my school? Do I have to move house? Can I keep my dog?</em></p>
<p>When parents separate, children are full of burning questions. </p>
<p>In most cases, separating parents work out the arrangements for their children between themselves. But when parents cannot resolve their disputes they can end up in the Family Court or the Federal Circuit Court. Most cases are eventually settled, but about 7% of these cases have to be decided by a judge.</p>
<p>The children may or may not have any say in what happens. Among the issues under consideration in a <a href="https://www.alrc.gov.au/inquiries/family-law-system">review into the family law system</a> presently underway at the Australian Law Reform Commission is how children can be better supported to participate in family dispute resolution processes.</p>
<p>Research provides some clues. Our <a href="https://www.scu.edu.au/media/scueduau/research-centres/centre-for-children-and-young-people/Legal-Aid-Survey-Report-.pdf">study</a>, undertaken by the Centre for Children and Young People at Southern Cross University for Legal Aid NSW, included a survey of 54 children and young people (aged 7–16 years) accessing the services of Legal Aid NSW. We focused on children’s understanding and experiences of family law processes. </p>
<p>We found children placed most emphasis on being able to:</p>
<ul>
<li><p>understand the role of the <a href="http://www.familycourt.gov.au/wps/wcm/connect/fcoaweb/family-law-matters/parenting/independent-childrens-lawyer/">Independent Children’s Lawyer</a> (ICL), a representative that the court may appoint to represent their best interests and ensure the court hears the child’s views (if that’s what the child wants). </p></li>
<li><p>trust the ICL</p></li>
<li><p>have clear explanations about who will know what they tell the ICL</p></li>
<li><p>be listened to and be heard</p></li>
<li><p>check with the ICL about what’s OK for them to say in court</p></li>
<li><p>be able to talk to the ICL when they need to.</p></li>
</ul>
<h2>Good practice for Independent Children’s Lawyers</h2>
<p>We’ve used these findings to develop a <a href="https://www.scu.edu.au/media/scueduau/research-centres/centre-for-children-and-young-people/ICL-Family-Law-Good-Practice-Guide-Working-with-Children.pdf">good practice guide for ICLs</a> (Independent Children’s Lawyers) who are tasked with representing the views of children in the legal process.</p>
<p>It’s important that ICLs:</p>
<ul>
<li><p>Consider logistics of the meetings they have with children (How easy is it for the child to get to? Will the parent wait outside the door?)</p></li>
<li><p>Take time to build rapport with children</p></li>
<li><p>Explain the legal process and key players in terms the child can understand, with analogies</p></li>
<li><p>Explain the limits of confidentiality – that the ICL can keep some things to him/herself, but not all</p></li>
<li><p>Address common concerns of children (Will I have to go to court? Will the ICL tell my parents what I have said? Who is making the decision? When will all of this be over?)</p></li>
</ul>
<h2>A delicate balance</h2>
<p>In the family law context, balancing children’s rights to protection while affording them their participation rights can be delicate. </p>
<p>It is now widely acknowledged that children have legitimate views and important things to say about what matters to them – for example, which school they attend, whether they can play sport on the weekend if their living arrangements change, how much time they spend with the parent’s new partner (whom they may not like).</p>
<p>While they want their views to be taken into account, most children do not want responsibility for decisions, and they do not want to upset their parents.</p>
<p>When disputes are ongoing, and involve serious conflict, allegations of family violence, abuse, and parental incapacity to provide safe care, children are likely to see a person appointed to write a family report for the court, and have an ICL appointed.</p>
<p>In these circumstances, children are likely to be unsure about talking to a lawyer and what they should and should not say. They may be concerned about the repercussions, and even their safety, if they go against a parent’s claims. This can mean that children may not share information that could help determine what would be in their best interests.</p>
<h2>‘You realise they <em>do</em> care’</h2>
<p>Respecting what matters to children is crucial. It can help determine how sustainable and workable the arrangements are, and whether children feel recognised. As one child told us:</p>
<blockquote>
<p>I think it’s important they’ve asked us our opinion before they’ve made a decision. And they’ve made us feel like they actually do care about us, whereas before … when it first happened you felt like you were nothing … and then once they start involving you in it you realise that they do care, they want to know our opinion, they want to make sure that we’re okay with it before they do it.</p>
</blockquote>
<p>We now have good evidence and promising practice that could help to make family law processes a more positive, <a href="https://aifs.gov.au/projects/children-and-young-people-separated-families">inclusive experience for children</a>. <a href="http://www.bestforkids.org.au/">Best for Kids</a> is also a great resource for children and families, with a video explaining what an ICL does, and also other age appropriate information for children under 10 and those who are older.</p>
<p>But legislative reform and policy change won’t make a difference while we carry assumptions that children can’t or shouldn’t contribute meaningfully to post-separation decisions. </p>
<p>This requires a different kind of change – one of mind and heart in the way we view and treat children, including how we <a href="https://www.goodgrief.org.au/">support them to adjust</a> to major change.</p><img src="https://counter.theconversation.com/content/93919/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The Centre for Children and Young People at Southern Cross University was granted $30,000 from Legal Aid NSW to undertake this research.</span></em></p><p class="fine-print"><em><span>Judy Cashmore does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>In the Family Court, respecting what matters to children can help determine how sustainable and workable the arrangements are. Research showsAnne Graham, Professor and Director of the Centre for Children & Young People, Southern Cross UniversityJudy Cashmore, Professor of Socio-Legal Research and Policy, University of SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/942282018-04-08T19:48:18Z2018-04-08T19:48:18ZWe need evidence-based law reform to reduce rates of Indigenous incarceration<figure><img src="https://images.theconversation.com/files/213349/original/file-20180405-189801-12205y3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The cost of incarceration of Indigenous Australians in 2016 was estimated at A$3.9 billion.</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>On March 28, the Australian Law Reform Commission (ALRC) <a href="https://www.alrc.gov.au/sites/default/files/pdfs/publications/final_report_133_amended1.pdf">report</a> on reducing Indigenous incarceration was tabled in parliament. Its recommendations aim to decrease Indigenous contact with the criminal justice system and reform punitive laws that entrench Indigenous disadvantage. </p>
<p>Imprisonment <a href="https://www.alrc.gov.au/sites/default/files/pdfs/publications/final_report_133_amended1.pdf">statistics</a> for Indigenous Australians are deplorable. Imprisonment of Indigenous Australians increased 41% between 2006 and 2016. In 2016, Indigenous Australians constituted 27% of the national prison population, but just 3% of the Australian population. Indeed, Indigenous Australians are the <a href="https://theconversation.com/factcheck-qanda-are-indigenous-australians-the-most-incarcerated-people-on-earth-78528">most</a> incarcerated people on Earth.</p>
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<p>For those who remain unmoved by these numbers, there are the economic costs. The cost of incarceration of Indigenous Australians in 2016 was estimated at <a href="https://www.alrc.gov.au/sites/default/files/pdfs/publications/final_report_133_amended1.pdf">A$3.9 billion</a>. Beyond costs directly related to the justice system, the estimated cost rises to A$7.9 billion. </p>
<p>Governments have met these statistics not with inaction, but with the creation of more crimes, <a href="http://www.justice.nsw.gov.au/Pages/media-news/media-releases/2015/New-bail-laws.aspx">tougher bail laws</a>, and lengthier sentences. </p>
<h2>The recommendations</h2>
<p>Informed by 127 submissions, 149 consultations, and earlier reports and inquiries, the report makes recommendations to improve justice for Indigenous Australians. </p>
<p>Notable among its 35 recommendations are:</p>
<ul>
<li><p>the establishment of a <a href="http://www.austlii.edu.au/au/journals/AILRev/2010/1.pdf">justice reinvestment</a> body</p></li>
<li><p>review of police complaints handling policies and practices</p></li>
<li><p>consideration of systemic and cultural factors affecting Indigenous Australians in bail and sentencing decisions</p></li>
<li><p>abolition of imprisonment in lieu of, or as a result of, unpaid fines, and</p></li>
<li><p>national criminal justice targets to reduce the incarceration of, and violence against, Indigenous Australians.</p></li>
</ul>
<h2>Minor fines create a cycle of poverty</h2>
<p>Many Australians have received on-the-spot fines for parking offences, traffic breaches or minor offences. Such fines may be inconvenient, or place a small financial burden on some; but for those without the means to pay, fines can spiral into insurmountable debt.</p>
<p>Indigenous Australians, people who are homeless, and those of low socioeconomic status are <a href="http://www.ombudsman.wa.gov.au/Publications/Documents/reports/CCINs/Ombudsman-WA-CCINs-Report-Vol-1.pdf">more likely</a> to receive infringement notices for public order and other minor offences. This is a result of multiple and complex factors. </p>
<p>Indigenous Australians occupy public space more often than non-Indigenous Australians, <a href="http://www.austlii.edu.au/au/journals/CICrimJust/2005/28.html">primarily due</a> to socio-cultural factors and their connection to the land. People who are homeless or living in temporary accommodation must conduct their private lives, including personal disputes, in public spaces. </p>
<p>There is also a greater proportion of physical disability, mental illness, alcohol or drug dependency, and a history of <a href="https://theconversation.com/factcheck-qanda-are-indigenous-women-34-80-times-more-likely-than-average-to-experience-violence-61809">family and domestic violence</a> among these groups. This leads to increased police surveillance and interactions, particularly for public nuisance-type offences.</p>
<p>Indigenous and vulnerable Australians are <a href="http://www.ombudsman.wa.gov.au/Publications/Documents/reports/CCINs/Ombudsman-WA-CCINs-Report-Vol-3.pdf">more likely</a> to fail to pay fines on time and incur further sanctions. Fines coupled with enforcement costs become impossible to pay for people on low incomes, or those who are homeless or unemployed. </p>
<p>Fine amounts can be prohibitive. In 2014, the NSW government increased the fine for the continuation of intoxicated and disorderly behaviour following a move-on direction from A$200 to A$1,100. A report by the NSW Ombudsman <a href="http://www.austlii.edu.au/au/journals/CICrimJust/2014/24.html">found</a> Indigenous Australians accounted for 31% of the 484 fines and charges issued for this offence in the review period. </p>
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<p>
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Read more:
<a href="https://theconversation.com/indigenous-incarceration-in-australia-at-a-glance-57821">Indigenous incarceration in Australia at a glance</a>
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<p>Every state and territory has progressive sanctions regimes for fine default. If fines are not paid on time, people accumulate further debts, have their drivers licence suspended or disqualified, have property seized, perform community service work, and — in some cases — are imprisoned.</p>
<p>Drivers licence sanctions operate <a href="https://www.indigenousjustice.gov.au/wp-content/uploads/mp/files/publications/files/initiative002.pdf">especially harshly</a> on Aboriginal people living in regional, rural or remote communities. Private vehicles are often the only practical means of transport available to access work or basic services, such as health care. </p>
<p>Sentences of imprisonment may also be imposed as a result of secondary offending from driver licence disqualification. The ALRC has recommended governments develop options to reduce the imposition of fines and infringement notices, limit penalty amounts, and avoid suspension of driver licences for fine default.</p>
<h2>Imprisonment for fine default</h2>
<p>In many states and territories, a person can “cut out” court-imposed fines by serving a prison sentence, where that person has failed to comply with a Community Service Order, or is otherwise ineligible for a CSO. </p>
<p>Western Australia has the highest rate of incarceration for fine default. Between July 2006 and June 2015, 7,462 people were imprisoned for fine default in WA. The average sentence served was four days. Indigenous men represented <a href="https://www.alrc.gov.au/sites/default/files/pdfs/publications/final_report_133_amended1.pdf">38%</a> of the male defaulter prison population. </p>
<p>The impact on Indigenous and disadvantaged women is even more stark. Between July 2006 and June 2015, <a href="https://www.alrc.gov.au/sites/default/files/pdfs/publications/final_report_133_amended1.pdf">73%</a> of female fine defaulters in WA were unemployed when imprisoned, and 64% were Indigenous.</p>
<p>The injustice that may be suffered by fine defaulters was highlighted by the death of Aboriginal woman Ms Dhu in August 2014. Ms Dhu <a href="http://www.coronerscourt.wa.gov.au/I/inquest_into_the_death_of_ms_dhu.aspx?uid=1644-2151-2753-9965">died in the custody</a> of police officers after being taken to South Hedland Police Station for unpaid fines and enforcement penalties amounting to A$3,662. The fines, which neither she nor her father could pay, were largely for swearing at police officers. </p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/seeing-ms-dhu-how-photographs-argue-for-human-rights-69044">Seeing Ms Dhu: how photographs argue for human rights</a>
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<h2>Repealing offensive language crimes</h2>
<p>Another focus of the inquiry was the policing and impact of offensive language provisions. All Australian states and territories <a href="http://classic.austlii.edu.au/au/journals/UTSLRS/2017/15.html">criminalise</a> offensive, obscene or indecent language used in or near a public place. Offensive language crimes generally target verbal speech, and predominantly the swear words “fuck” and/or “cunt”. Written signs and displays (such as a person wearing a t-shirt with a swear word printed on it) are punished under offensive conduct offences.</p>
<p>A recent initiative allows police to issue on-the-spot fines for offensive language. These fines range from A$110 in Queensland to A$500 in <a href="https://www.nsw.gov.au/news-and-events/news/bigger-fines-for-offensive-conduct/">NSW</a> and <a href="https://www.police.wa.gov.au/Police-Direct/Infringement-Payments-and-Enquiries/Criminal-Code-Infringements/Criminal-Code-Infringement-FAQs">WA</a>. </p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/a-nation-of-convict-cussers-time-for-australian-law-to-embrace-our-potty-mouths-83494">A nation of convict cussers? Time for Australian law to embrace our potty mouths</a>
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<p>Kimberly Community Legal Services has <a href="https://www.alrc.gov.au/sites/default/files/pdfs/publications/final_report_133_amended1.pdf">suggested</a> that for many Indigenous people, those who are homeless, and other disadvantaged groups, the imposition of a A$500 fixed fine for swearing is “tantamount to a prison sentence”.</p>
<p>Indigenous people are significantly over-represented when it comes to receiving fines and charges for offensive language. In the year from 1 April 2016 to 31 March 2017, Indigenous adults comprised <a href="https://www.alrc.gov.au/sites/default/files/subs/114._dr_e_methven.docx">21%</a> of all 1,054 adults in NSW proceeded against to court for using offensive language. Indigenous adults also comprised 15% of all 1,716 adults in NSW proceeded against by way of infringement notice.</p>
<p>The ALRC has recommended state and territory governments review the effect of offensive language provisions on Indigenous people, with a view to repealing them or narrowing their scope. </p>
<p>This recommendation is by no means novel. The review and repeal of offensive language crimes has previously been advocated by legal <a href="http://www.austlii.edu.au/au/journals/UNSWLJ/2013/20.html">academics</a> and <a href="http://www.lawreform.justice.nsw.gov.au/Documents/Publications/Reports/Report-132.pdf">law reform bodies</a>. Most notably, in 1991, the Royal Commission into Aboriginal Deaths in Custody <a href="http://www.bocsar.nsw.gov.au/Documents/CJB/cjb34.pdf">observed</a>: </p>
<blockquote>
<p>It is surely time that police learnt to ignore mere abuse, let alone simple “bad language” … Charges about language just become part of an oppressive mechanism of control of Aboriginals.</p>
</blockquote>
<h2>Implementation of the recommendations</h2>
<p>The Turnbull Government has been <a href="https://www.theguardian.com/australia-news/2018/mar/30/coalition-criticised-for-pathetic-response-to-indigenous-incarceration-report">criticised</a> for its underwhelming response to the ALRC report. The Coalition has so far issued a two-line statement indicating that it “will consider the report’s relevant recommendations and respond in due course.” </p>
<p>It is hoped the report will be not be “<a href="https://www.theguardian.com/australia-news/2018/mar/30/coalition-criticised-for-pathetic-response-to-indigenous-incarceration-report">shelved</a>” like that of the Royal Commission into Aboriginal Deaths in Custody, and instead the government will respond promptly with evidence-based law reform. </p>
<p>Reducing contact with the criminal justice system is an important aspect of achieving equality and justice for Indigenous Australians. Implementation of the 35 recommendations — alongside measures to enhance Indigenous self determination — are necessary steps on the path to achieving these goals.</p><img src="https://counter.theconversation.com/content/94228/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Elyse Methven receives funding from a UTS Early Career Research Grant.</span></em></p>Fines for minor infringements and offensive language crimes are among laws that create a cycle of poverty and disadvantage for Indigenous Australians.Elyse Methven, Lecturer in Law, University of Technology SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/603702016-06-09T20:09:30Z2016-06-09T20:09:30ZWhy Australia won’t recognise Indigenous customary law<figure><img src="https://images.theconversation.com/files/125814/original/image-20160609-3488-qso5a5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Most people against recognising Aboriginal customary law think there’s only one law in Australia.</span> <span class="attribution"><span class="source">AAP/Joe Castro</span></span></figcaption></figure><p>While the Australian Law Reform Commissions’s <a href="http://www.alrc.gov.au/inquiries/aboriginal-customary-laws">1986 report</a> on the use of customary law for Aboriginal people was a great initiative, it was, in hindsight, a notion well before its time. Although 30 years have elapsed since the report was published, its recommendations have, by and large, been ignored.</p>
<p>Few in Australia understand the context and true meaning of customary law. Denials of its validity are often based on ignorance or on specific examples devoid of context; the severity of “spearing” for example, as being contrary to human rights norms. </p>
<p>This is akin to rejecting the common law based solely on, say, the use of lethal injections to execute prisoners in the United States. </p>
<h2>Terra what?</h2>
<p>Most people against recognising Aboriginal customary law think there’s only one law in Australia. This is clearly wrong both conceptually and in practice. As Australia is a federation made up of multiple jurisdictions, it necessarily has a multiplicity of laws. </p>
<p>What they are really saying is that Australia should exclude Aboriginal and Torres Strait Islander customary law (and arguably all non-Anglocentric laws). Consciously or otherwise, their rejection is based on first contact between settler and Indigenous Australians.</p>
<p>International law of the 1700s required that, for settlement, a tract of land be “substantially uninhabited”. Herein lies the genesis of Indigenous invisibility in Australia. </p>
<p>In practice, “substantially uninhabited” meant it was inhabited by a people who would not cultivate the proverbial yard of land, and who were not governed by laws. This notion of <a href="http://www.austlii.edu.au/au/orgs/car/docrec/policy/brief/terran.htm"><em>terra nullius</em></a> is clearly a legal fiction, devoid of both truth and ethics. </p>
<p>The ultimate source of the prevailing prejudice and ignorance in Australia, <em>terra nullius</em> is utterly unconnected to the reality of the presence on this continent of the longest continually living human cultures. But the notion is firmly ensconced and entrenched in the Australian Constitution nonetheless.</p>
<p>Aboriginal and Torres Strait Islander societies could not have survived if they were lawless. In fact, the word law is so prevalent in Indigenous parlance and imagination that one must plug one’s ears to not notice Aboriginal and Torres Strait Islander love for law. </p>
<p>The early settlers’ lust for land provided an effective such plug, one which stilled their consciences and humanity as they attempted to destroy a civilised, law-abiding people. Despite these efforts, customary law always was, and still is, observed on the Australian continent.</p>
<p>What, then, constitutes customary law? With several peoples, languages and cultures sharing the continent, there are clearly many different laws. For our purpose here, we can recognise that law is an abstract concept: that it is essentially about the regulation of people, their societies, and relations with their neighbours (broadly defined). </p>
<p>Specifics may vary, but there’s a large variety of laws nonetheless. Consider speed limits in the Australian Capital Territory and New South Wales, for instance. The notion of regulating speed through law is common to both jurisdictions, even if maximum speeds are different. </p>
<h2>Then, Mabo</h2>
<p>Despite the fact that it’s an obvious untruth, the notion <em>terra nullius</em> is entrenched in the Constitution and, until 1992, was firmly a part of Anglo-Australian law. But among the custodians of the common law are judges who set about doing what they could to recognise Indigenous custom, rights and interests.</p>
<p>In 1971, Chief Justice Blackburn of the Northern Territory Supreme Court <a href="http://www.atns.net.au/agreement.asp?EntityID=1611">recognised that the Gove Peninsula</a> in the northeastern corner of Arnhem Land was occupied by a people truly given to the rule of law, a civilised law that was not the common law. </p>
<p>But the NT Court was bound by Privy Council precedent in the NSW case <a href="http://www.bailii.org/uk/cases/UKPC/1889/1889_16.html">Cooper v Stuart</a>. That case had established the notion of <em>terra nullius</em> in law and covering the whole continent. The NT Supreme Court decision was frustrated. </p>
<p>Still, the Supreme Court’s recognition arguably allowed federal Attorney-General Bob Ellicott to examine the possibility of a broader recognition of Indigenous customary law, prompting the ALRC report. But the consequences of <em>terra nullius</em> appear to have prevailed and the report was, for the most part, shelved.</p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/125815/original/image-20160609-3485-1cww0c4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/125815/original/image-20160609-3485-1cww0c4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/125815/original/image-20160609-3485-1cww0c4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=871&fit=crop&dpr=1 600w, https://images.theconversation.com/files/125815/original/image-20160609-3485-1cww0c4.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=871&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/125815/original/image-20160609-3485-1cww0c4.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=871&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/125815/original/image-20160609-3485-1cww0c4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1094&fit=crop&dpr=1 754w, https://images.theconversation.com/files/125815/original/image-20160609-3485-1cww0c4.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1094&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/125815/original/image-20160609-3485-1cww0c4.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1094&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The High Court’s Mabo decision recognised Indigenous Australians as the continent’s first inhabitants.</span>
<span class="attribution"><span class="source">AAP/Crystal Ja</span></span>
</figcaption>
</figure>
<p>Legislative changes in the 1980s allowed the High Court in 1992 to recognise Indigenous Australians as the first people of the continent in the landmark <a href="http://www.austlii.edu.au/au/cases/cth/HCA/1992/23.html">Mabo case</a>. Parliament followed suit by establishing a legislative framework for native title claims.</p>
<p>Since 1992, common law has admitted the existence of Indigenous customary laws, which inhered in another normative system. But, to date, the use of Indigenous custom in matters such as sentencing, including through in circle courts, remains sparse, patchy and inadequate. </p>
<p>Formal recognition of Aboriginal and Torres Strait Islander people in the Constitution will pave way for negotiations and a sustained dialogue between the civilisations, including for significant levels of self-determination. </p>
<p>Self-determined communities, within some contemporary constraints, can determine the laws they will use. When these discussions result in the use by Aboriginal and Torres Strait Islander people of their customary law, we can proudly say that we are truly reconciled.</p>
<hr>
<p><em>This article is part of a <a href="https://theconversation.com/au/topics/indigenous-customary-law">special package marking the 30th anniversary</a> of the Australian Law Reform Commission’s report on Aboriginal customary law.</em></p><img src="https://counter.theconversation.com/content/60370/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>AJ Wood does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Few in Australia understand the context and true meaning of customary law. Denials of its validity are often based on ignorance or on specific examples devoid of context.AJ Wood, Senior Lecturer in Law, Australian National UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/601932016-06-09T20:09:21Z2016-06-09T20:09:21ZFrom little things: the role of the Aboriginal customary law report in Mabo<p>The <a href="https://www.alrc.gov.au/publications/2.%20The%20Commission%E2%80%99s%20Work%20on%20the%20Reference/special-needs-consultation-and-discussion">Recognition of Aboriginal Customary Laws</a> report was released by the Australian Law Reform Commission (ALRC) in June 1986, after an intensive, nine-year inquiry. </p>
<p>The report examined the interaction between two legal systems – one based in British law “received” at colonisation and the other in the customary laws of the Aboriginal peoples of Australia. </p>
<p>In a post-Mabo Australia, the significance of the core question about “recognition” of Aboriginal customary law no longer seems so world-defining. It’s difficult to re-enter the view that admitted little challenge to the centrality of <a href="http://www.alrc.gov.au/publications/report-31">one law for Australia</a> – or for the <a href="https://www.alrc.gov.au/publications/Recognition%20of%20Aboriginal%20Customary%20Laws%20%28ALRC%20Report%2031%29/5-recognition-aboriginal-cust">foundational legal position</a> that Australia was a settled colony and uninhabited (<em>terra nullius</em>).</p>
<h2>What the report did</h2>
<p>The ALRC investigated whether:</p>
<blockquote>
<p>… it would be desirable to apply, either in whole or in part, Aboriginal customary law to Aborigines — generally or in particular areas or to those living in tribal communities only. </p>
</blockquote>
<p><a href="https://www.alrc.gov.au/publications/Recognition%20of%20Aboriginal%20Customary%20Laws%20%28ALRC%20Report%2031%29/terms-reference">Its report</a> was wide-ranging: considering Aboriginal customary law in the pre-European period, and in the aftermath of colonisation. </p>
<p>It probed why there was a failure to recognise Aboriginal customary law within Australian law. It canvassed ways in which the legal system might recognise Aboriginal customary law in areas such as criminal law and sentencing, marriage laws and customary adoption, and in Aboriginal property distribution. </p>
<p>The report resonated with a concern for human rights, and reflects the equality and anti-discrimination <a href="https://www.alrc.gov.au/publications/12-promoting-claims-resolution">principles</a> incorporated into Australian law in the previous decade.</p>
<p>It analysed whether Aboriginal customary laws could be applied in criminal cases and whether Aboriginal communities should be able to <a href="https://www.alrc.gov.au/publications/Recognition%20of%20Aboriginal%20Customary%20Laws%20%28ALRC%20Report%2031%29/17-aboriginal-customary-laws-">apply their laws</a> in the punishment and rehabilitation of community members. </p>
<p>The application of customary law in criminal proceedings (including proof and evidence), and the development of indigenous community courts have progressed since then. We have experimented with customary law in sentencing, and with Indigenous community courts (Koori Courts in Victoria). Still, reforms have not been as extensive as it has in countries like Canada.</p>
<h2>The report’s recommendations</h2>
<p>No recommendations were made regarding the recognition of customary laws as the basis for Aboriginal land rights. The ALRC report followed the <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/alrta1976444/">Aboriginal Land Rights (Northern Territory) Act</a>, and land rights legislation in some states. </p>
<p>The broader legal position remained that Australia was “uninhabited” at settlement. That view was not displaced until <a href="http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/1992/23.html?stem=0&synonyms=0&query=title%28Mabo%20%29">the Mabo decision</a> in 1992.</p>
<p>But the <a href="http://www.alrc.gov.au/inquiries/aboriginal-customary-laws">Recognition of Aboriginal Customary Law</a> report was vital to developing concepts around the recognition of Aboriginal traditional law and custom that played a role in that legal change.</p>
<p>Now, 30 years after its publication, the report remains the most-accessed ALRC publication, which indicates its pervasive influence in Australia’s legal system and society. Yet few of its recommendations have become actual law. </p>
<p>Further, there are still many different perspectives on the concept of “recognition” of customary law. Even the term customary law has origins in the British Empire. While for some it signifies a respectful identification of laws and customs grounded in another culture, for others it reinforces the power of the Australian legal system to set the terms on which the “customary system” is acknowledged. </p>
<h2>Connection to country</h2>
<p>Recognising Indigenous law remains controversial – as shown by debates about constitutional recognition of Aboriginal and Torres Strait Islander peoples. And, it has modern, practical implications – for example, for the use of traditional knowledge in the co-management of lands and waters.</p>
<p>Importantly, recognition of traditional law and custom giving rise to “connection” to land and waters is the central legal test for determining native title claims under the Native Title Act. </p>
<p>The ALRC <a href="https://www.alrc.gov.au/publications/alrc126">reviewed</a> that legislation from 2013 to 2015. It recommended reforms to the connection test, which requires Aboriginal and Torres Strait Islander peoples to show evidence they have remained a society that has continued to acknowledge (practice) their traditional law and customs, without substantial interruption, since before colonisation. </p>
<p>This is a demanding test. While some allowance is made for change to law and custom over time, difficult legal questions remain about how much change is possible for laws and customs to still be “<a href="https://www.alrc.gov.au/publications/5-traditional-laws-and-customs-0">traditional</a>”.</p>
<p>The ALRC’s <a href="https://www.alrc.gov.au/publications/alrc126">2015 report</a> recommended <a href="https://www.alrc.gov.au/publications/recommendations-3">changes</a> to the definition of native title to recognise that traditional laws and customs may adapt, evolve or otherwise develop. The earlier report had also emphasised the dynamic nature of Aboriginal customary law. </p>
<p>The 2015 report tackled the difficulties around showing evidence of Aboriginal and Torres Strait Islander peoples’ <a href="https://www.alrc.gov.au/publications/7-proof-and-evidence">traditional law and custom</a>, and recommended that native title rights for commercial purposes <a href="https://www.alrc.gov.au/publications/8-nature-and-content-native-title-0">be recognised</a>. It suggested reforms to strengthen the internal governance capacity of native title groups, while allowing for <a href="https://www.alrc.gov.au/publications/10-authorisation-0">traditional authority</a> to be exercised. </p>
<p>The Connection to Country report hasn’t receive the attention of the earlier inquiry, but if the Native Title Act is to help achieve a sustainable cultural and economic future for Aboriginal and Torres Strait Islander peoples, then recognition of the evolution of traditional law and custom is vital and further legal reform is needed.</p>
<p>The customary law report provided the basis for longer-term social change. It remains a rich source of knowledge of Aboriginal customary law and traditions, and set strong grounds for law reform.</p>
<hr>
<p><em>This article is part of a <a href="https://theconversation.com/au/topics/indigenous-customary-law">special package marking the 30th anniversary</a> of the Australian Law Reform Commission’s report on Aboriginal customary law.</em></p><img src="https://counter.theconversation.com/content/60193/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Lee Godden has received past funding from the Australian Research Council (Linkage grants) related to the Agreements, Treaties and Negotiated Settlements project at The University of Melbourne. From 2013-15, she was the Commissioner leading an Inquiry into the Native Title Act 1993 for the Australian Law Reform Commission.</span></em></p>The Recognition of Aboriginal Customary Laws examined the interaction between two legal systems – one based in British law and the other in the customary laws of the Aboriginal peoples of Australia.Lee Godden, Professor, Melbourne Law School, The University of MelbourneLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/601872016-06-09T20:09:11Z2016-06-09T20:09:11ZLaw reports push piecemeal changes to native title, but still fall short<figure><img src="https://images.theconversation.com/files/125818/original/image-20160609-3513-t5h7l8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Country provides a site where Aboriginal and mainstream forms of law can come together and have dialogue – an outcome made possible by Eddie Mabo (L).</span> <span class="attribution"><span class="source">AAP/NAA</span></span></figcaption></figure><p>June 2016 marks two significant anniversaries for the relationship between Australia’s Indigenous and settler populations. June 12 is the 30th anniversary of the Australian Law Reform Commission’s (ALRC) publication of its report on <a href="http://www.alrc.gov.au/inquiries/aboriginal-customary-laws">Aboriginal Customary Laws</a>; and June 3 marked 24 years since the Mabo ruling.</p>
<p>The <a href="http://www.alrc.gov.au/inquiries/aboriginal-customary-laws">ALRC report</a> uncovered a wealth of information on Aboriginal and Torres Strait Islander cultural practices. Its aim was to determine the desirability of applying – on the whole or in part – customary law to Indigenous Australians.</p>
<p>And the 1992 High Court ruling in the <a href="http://www.austlii.edu.au/au/cases/cth/HCA/1992/23.html">Mabo case</a> was a game-changer; it consigned the legal fiction of <em>terra nullius</em> (the idea that Australia was uninhabited at the time of British colonisation) to the dustbin of history. </p>
<p>The ALRC report was an earnest attempt at acknowledging the existence and relevance of Aboriginal law and culture to Indigenous Australians. It stopped short of recommending special legislation recognising Aboriginal law, but it did make some useful recommendations about how settler law could deal more fairly with Aboriginal people by taking their traditions and customs into account.</p>
<h2>What did the reports call for?</h2>
<p>The political classes received the report with polite indifference. This fate befell another landmark inquiry, the Law Reform Commission of Western Australia’s (LRCWA) <a href="http://www.lrc.justice.wa.gov.au/P/project_94.aspx">1996 report</a> into Aboriginal customary laws, in which I was involved.</p>
<p>The WA inquiry, like the ALRC’s, examined the status of Aboriginal law. Less energy was spent deciding whether Aboriginal law still held force than on asking how settler and Indigenous law could be harmonised. </p>
<p>The LRCWA found Aboriginal law was a fact of life for Indigenous Australians. It governed social relations on a daily basis – whether other Australians condescended to “recognise” the fact or not.</p>
<p>The report suggested it was insulting to Aboriginal people for their law’s existence to be constantly doubted, or make them prove they had law whenever it piqued settler Australians’ curiosity. </p>
<p>This was also the finding of a 1994 <a href="https://www.nt.gov.au/justice/law/towards-mutual-benefit-an-inquiry-into-aboriginal-customary-law-in-the-northern-territory">Northern Territory Law Reform Committee inquiry</a>. It concluded Aboriginal law was a significant and positive force in daily life – not just for Indigenous people in remote areas, but also in rural and urban communities. </p>
<p>Elders and cultural bosses told the LRCWA they did not want their law codified and written down like white man’s law, because that would allow white law (or worse, white lawyers) to “own” Aboriginal law. This confirmed the ALRC’s view that codification was not an appropriate way of recognising customary laws. </p>
<p>Aboriginal people are consistent in saying they want their own laws, rituals and ceremonies left alone: to be passed down orally, not written down. They are convinced, despite all the damage inflicted by white colonisation to the fabric of Indigenous social and spiritual life, that Aboriginal law will endure. For them, white-fella law is just a tablecloth; black-fella law is the sturdy table beneath. </p>
<p>Aboriginal people were interested in discussing why they were discriminated against by the settler law and justice systems; why the rates of Aboriginal people, particularly youth, in jail were so catastrophically high; and why their own law and culture were denied jurisdiction. </p>
<p>Many of the LRCWA report’s recommendations concentrated on what it called “community justice mechanisms”, such as setting up Aboriginal courts (where elders sit with magistrates); community justice groups (where elders sit with police and other agencies to develop local diversionary strategies); and what it called “community-owned” programs run and managed by Aboriginal communities. </p>
<p>Ideas in the ALRC’s spirit also called for investment in what it called local justice mechanisms. </p>
<h2>How did Mabo change the game?</h2>
<p>If the ALRC inquiry was a kind of gentlemen’s duel conducted within the accepted rules of the game, then Mabo was pure shock and awe.</p>
<p>The legislative response to the Mabo decision led to the <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/nta1993147/">Native Title Act</a>. This delivered “<a href="http://www.theage.com.au/articles/2004/04/16/1082055637245.html">bucket loads of extinguishment</a>”, in the words of Tim Fischer, as well as granting native title. </p>
<p>The demands the act places on claimants to demonstrate continuity work to undermine the very purpose and spirit of the legislation (and the Mabo judgment) by making native title tortuously difficult to determine. Nonetheless, Australia is reaching a post-determination era; significant parts of its land mass are subject to a determination. </p>
<p>But the problems for title-holders do not cease there. The Native Title Act denies holders the right to leverage their land title to develop economic activity. This stymies their capacity to build “on-country” enterprises that sustain culture while generating capital (such as native fruits and medicines), or create partnerships with businesses such as resource industries, on favourable terms. </p>
<p>The act also denies them a veto over development activities they deem inappropriate. </p>
<p>The recommendations of the ALRC’s 2015 <a href="https://www.alrc.gov.au/publications/alrc126">review of the Native Title Act</a> go some way to rectifying some anomalies. It focuses on <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/nta1993147/s223.html">Section 223</a> of the Native Title Act, which says native title rights and interests include, but are not limited to, hunting, gathering, or fishing, rights and interests. </p>
<p>The ALRC recommended inclusion of a “right to trade”. This may allow title-holders to make better commercial use of their lands. It also throws some weight behind the view that law and custom are not static but evolve over time. </p>
<p>Connection to country may offer some Aboriginal communities a stake in their economic future. Country also provides a place to heal the traumas of colonisation, and a site where Aboriginal and settler forms of law can come together and have dialogue – an outcome favoured by the ALRC and LRCWA, and made possible by Eddie Mabo.</p>
<hr>
<p><em>This article is part of a <a href="https://theconversation.com/au/topics/indigenous-customary-law">special package marking the 30th anniversary</a> of the Australian Law Reform Commission’s report on Aboriginal customary law.</em></p><img src="https://counter.theconversation.com/content/60187/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Harry Blagg does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The ALRC report made some useful recommendations about how settler law could deal more fairly with Aboriginal people by taking their traditions and customs into account.Harry Blagg, Professor of Criminology, The University of Western AustraliaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/553742016-02-24T23:42:34Z2016-02-24T23:42:34ZExplainer: what is elder abuse and why do we need a national inquiry into it?<figure><img src="https://images.theconversation.com/files/112825/original/image-20160224-16416-1eoxn1a.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">An inquiry into elder abuse will look at legislative measures to protect elderly Australians while protecting their rights and freedoms.</span> <span class="attribution"><span class="source">AAP/Dan Himbrechts</span></span></figcaption></figure><p>Attorney-General George Brandis has <a href="https://www.attorneygeneral.gov.au/Mediareleases/Pages/2016/FirstQuarter/24-February-2016-Safeguarding-Older-Australians.aspx">announced an inquiry</a> into laws and frameworks to safeguard older Australians from abuse. </p>
<p>The Australian Law Reform Commission inquiry will assist the federal government to identify the best way to protect older Australians, while at the same time promoting respect for their rights. </p>
<p>It is anticipated that the inquiry will report in May 2017.</p>
<h2>Why is it needed?</h2>
<p>There is rising concern about the incidence and extent of “elder abuse” in Australia. </p>
<p>The inquiry was launched in the wake of several inquiries into elder abuse in various Australian states, and an inquiry into employment discrimination against older Australians. It has also been discussed at Victoria’s <a href="http://www.rcfv.com.au/">Royal Commission into Family Violence</a>. Brandis’ announcement coincided with a major national conference on elder abuse hosted by Seniors Rights Victoria. </p>
<p>The latest inquiry <a href="https://www.attorneygeneral.gov.au/Speeches/Pages/2016/FirstQuarter/24-February-2016-Address-at-the-National-Elder-Abuse-Conference-Pullman-on-the-Park-Melbourne.aspx">will</a>:</p>
<blockquote>
<p>… scrutinise existing Commonwealth laws and frameworks which seek to safeguard and protect older persons from misuse or abuse by formal and informal carers, supporters, representatives and others. </p>
</blockquote>
<p>The inquiry will be broad in scope and consider regulation of areas of federal jurisdiction such as financial institutions, superannuation, social security, aged care and health. </p>
<p>As many laws affecting older people come within the purview of the states and territories – for example the regulation of powers of attorney, wills, and estates – the inquiry will also examine how federal laws interact with relevant state and territory laws.</p>
<h2>What is elder abuse? Why is it increasing in prevalence?</h2>
<p>Although there is no single satisfactory definition of elder abuse, it incorporates a range of physical, psychological, sexual and financial abuse and neglect. </p>
<p>In most cases elder abuse is invisible. It occurs within the trusted confines of family, friends, care facilities and neighbourhoods. </p>
<p>In a <a href="https://aifs.gov.au/publications/elder-abuse">recent report</a>, the Australian Institute of Family Studies notes that the intergenerational nature of elder abuse differentiates it from other forms of family violence. Abuse within families, particularly adult children abusing parents, is the most prevalent scenario.</p>
<p>It is estimated that between 2% and 10% of older Australians may be subject to elder abuse. The report predicted that the prevalence of elder abuse is expected to rise as Australia’s population ages.</p>
<p>However, statistics as to the incidence of elder abuse remain sketchy. It is probably under-reported. A combination of fear, shame and (some may say misguided) loyalty on the part of the affected older person sees a reluctance to seek help and contact the authorities about abusive family members.</p>
<p>Even if such incidents are reported, the prospect of negotiating the court system is a major deterrent for complainants. Yet if similar abuse occurred on the street, it would be reported immediately. </p>
<p>The reasons why elder abuse occurs are complex and varied. However, as <a href="https://www.attorneygeneral.gov.au/Speeches/Pages/2016/FirstQuarter/24-February-2016-Address-at-the-National-Elder-Abuse-Conference-Pullman-on-the-Park-Melbourne.aspx">Brandis noted</a>, elder abuse is a “symptom of attitudes” that:</p>
<blockquote>
<p>… fail to respect and recognise the rights of older Australians.</p>
</blockquote>
<p>Such failure can be seen in relation to common instances of financial abuse. Australians are living longer due to improvements in health and lifestyle outcomes. This, combined with many older people having considerable assets due to the rising value of real estate and the accumulation of superannuation over several decades, can lead to an “impatience” to receive inheritances. </p>
<p>A sense of entitlement to older people’s real and personal property may see some adult children accessing their parents’, assets through “tactics”, ranging from emotional pleas to overt pressure to fraud.</p>
<h2>What is likely to come from the inquiry?</h2>
<p>The inquiry is tasked with examining myriad Commonwealth, state and territory laws. The scope of the inquiry is vast and, at this stage, it is impossible to predict the ultimate recommendations.</p>
<p>But there are several areas that warrant consideration – and reform – as a matter of urgency.</p>
<p>First and foremost, it is essential to agree on a national approach to elder abuse – with the Commonwealth, states and territories co-operating through laws.</p>
<p>Second, one of the main areas of concern is powers of attorney – the authority to act for another person in specified or all legal or financial matters. Such powers are often misused to perpetrate financial abuses. </p>
<p>Each jurisdiction has its own – often differing – legislation that regulates powers of attorney. There are considerable shortcomings in the legislation, such as that powers of attorney do not have to be registered, and are difficult to revoke. This is an area that would be ripe for a national approach, including a national register of powers of attorney.</p>
<p>Third, the issue of access to justice for older people should be a pivotal consideration. There is a reluctance from many older people to report abuse or, if they do so, pursue the matter through the courts. In appropriate circumstances, alternative forms of dispute resolution should be considered.</p>
<p>Finally, any legislative changes need to acknowledge that seniors, like the rest of us, live in a range of circumstances and come from diverse backgrounds. Therefore, their experience and understanding of elder abuse will also vary widely, particularly for culturally and linguistically diverse seniors and those living in rural and regional areas.</p><img src="https://counter.theconversation.com/content/55374/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Eileen Webb receives funding from COTAWA for the research project, Secuity of Tenure for Western Autsralia's Ageing Population and from National Seniors for the project, Seniors Downsizing on their Own Terms. Eileen is a foundation member of the Australian Network on Law and Ageing (ARNLA).</span></em></p>With incidence of elder abuse, mostly within families, on the rise, the government is looking for much-needed legislative measures to combat it.Eileen O'Brien, Associate Professor, Curtin Law School, Curtin UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/491292015-10-15T19:18:10Z2015-10-15T19:18:10ZWe all enter contracts every day, so why are they still so hard to understand?<figure><img src="https://images.theconversation.com/files/98468/original/image-20151015-15135-16fskgq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Contracts are everywhere, but do you read the fine print?</span> <span class="attribution"><span class="source">Image sourced from Shutterstock.com</span></span></figcaption></figure><p>How many contracts did you enter into today? The answer may surprise you. Though the prevalence of contracts in the world of commerce is taken as a given, the importance of contracts in everyday life is often overlooked. Almost everything individuals do - from buying a cup of coffee, to online shopping, to signing on to a phone plan - is regulated by the rules of contract law.</p>
<p>Despite this, coming to grips with contract law is no easy task. This is partly because the rules are not found in a single document. They are instead scattered across multiple sources. Many of the rules are found in judges decisions, some of which are centuries old. To understand, for example, the rules regulating the renegotiation of contracts, the starting point is an 1809 English decision about a ship’s crew who agreed to sail their vessel to its home port short-handed in exchange for extra pay.</p>
<p>Further rules are found in a miscellany of legislation. This means the answer to an apparently simple question often begins with an account of centuries-old English court decisions and ends with an explanation of modern legislation. It’s not surprising most laypeople feel ill-equipped to grapple with their own legal dilemmas.</p>
<h2>Long history of planned reform</h2>
<p>There have long been proposals to reform contract law to make it more accessible and modern. In 1992, the Law Reform Commission of Victoria published a proposal to sweep away the complex web of Australian contract law and replace it with a code which consisted of just 27 clauses. The proposed document was written in plain language, with broad principles which could be adapted to the huge variety of cases which come before the courts.</p>
<p>Though the 1992 proposal never gained momentum, the notion of a contracts code has had enduring appeal. In 2012, the Commonwealth Attorney General’s Department <a href="http://www.ag.gov.au/consultations/pages/ReviewofAustraliancontractlaw.aspx">released a discussion paper</a> which canvassed the possibility of introducing a code of Australian contract law. People debated the benefits and costs of such a reform.</p>
<p>Disappointingly, the impetus behind the 2012 paper appears to have disappeared with the change of government in 2013. This is despite support for the idea that a contracts code could significantly benefit both consumers and business, and the efforts of a group of academics from the University of Newcastle who have <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2403603">created a comprehensive draft code</a>.</p>
<p>One benefit the discussion paper highlighted was the possibility of using codification to harmonise Australian law with the law of our major trading partners. This could reduce the barriers to trade and reduce the cost of legal advice for businesses which operate both in Australia and overseas.</p>
<p>The paper also raised the prospect of adjusting the law to take account of modern developments in e-commerce. The current law was developed in a world without the internet or email. It has struggled to adjust to a reality in which consumers regularly use online platforms to enter into contracts for everyday goods and services.</p>
<p>There are, of course, arguments against introducing a contracts code. It might be difficult to reach agreement on what the code should contain. The change would likely also make businesses nervous if it required the redrafting of existing standard forms. </p>
<p>There are also doubts as to whether codes are necessarily as easy to understand as their supporters often say. The experience of codification in other times and places has shown a code can end up being as complex and technical as the law it replaces. But the proposal deserves to be thoroughly explored. The importance of contract law means tailoring it to the needs and demands of the current world.</p><img src="https://counter.theconversation.com/content/49129/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>John Eldridge is writing a PhD on the proposal to codify the Australian law of contract.</span></em></p>A push to make contracts easier for consumers never went anywhere, so it’s time the issue was revisited.John Eldridge, PhD Candidate, Adelaide Law School, University of AdelaideLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/456452015-08-06T04:00:32Z2015-08-06T04:00:32ZBrandis receives long list of rights-limiting laws – now can he justify them?<figure><img src="https://images.theconversation.com/files/90949/original/image-20150805-22461-1h80shp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The Law Reform Commission has likely given George Brandis much more than he was expecting in the review of rights-limiting laws that he asked for.</span> <span class="attribution"><span class="source">AAP/Mick Tsikas</span></span></figcaption></figure><p>In its <a href="https://www.alrc.gov.au/publications/alrc127">interim report</a> on what Attorney-General George Brandis calls “traditional rights, freedoms and privileges” (common law rights), the Australian Law Reform Commission (ALRC) has given Brandis – and the government – cause to reflect on the adage “be careful what you wish for”. </p>
<p>What, one wonders, did Brandis expect when he asked the ALRC to <a href="https://www.alrc.gov.au/inquiries/freedoms/terms-reference">review</a> the ways in which federal laws limit common law rights, other than a thorough and thoughtful account of just how far the laws go in limiting people’s rights?</p>
<p>To be fair, the question is in two parts: what rights are limited by federal laws, and are those limits justified? The ALRC answered the first question comprehensively (short answer: a lot of rights are limited by a lot of laws). It is now turning to the question of justification. </p>
<p>What the ALRC has done is say, effectively:</p>
<blockquote>
<p>Here is a (long) list of laws that limit rights; please tell us if those limits require justification. Oh, and by the way, tell us about any rights-limiting laws we’ve overlooked.</p>
</blockquote>
<p>The government has to be on the back foot. It has been the champion of many of the rights-limiting laws that the ALRC identifies. </p>
<p>There has been <a href="https://www.alrc.gov.au/inquiries/freedoms/submissions">no shortage</a> of people and organisations lining up to make submissions on ways in which federal laws limit rights. The ALRC has marshalled those submissions and its own extensive research and consultations to raise extensive and serious questions about the rights-compatibility of Australian laws.</p>
<h2>Why did Brandis ask for the review?</h2>
<p>Brandis’ <a href="https://www.alrc.gov.au/inquiries/freedoms/terms-reference">terms of reference</a> set a very uncertain scope for the ALRC’s review. His list of traditional rights, freedoms and privileges (inexplicably omitting a right to liberty) is similar to but not the same as others’, such as <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1806775">James Spigelman’s</a>. This is unsurprising. </p>
<p>For all their history, common law rights are a loose and undefined collection of statements by judges, in different terms in different places at different times, that have never been treated as a coherent body of law.</p>
<p>As a result, the ALRC has had to make sense of the idea of “traditional rights, freedoms and privileges” as a point of reference for assessing laws. As the ALRC <a href="https://www.alrc.gov.au/publications/inquiry">says itself</a>, its first task was to ask:</p>
<blockquote>
<p>What are traditional rights, freedoms and privileges? What is their source and where are they to be found?.</p>
</blockquote>
<p>In making sense of common law rights as an agreed and stable set of standards by which to evaluate laws, the ALRC has turned to international human rights – the very place that Brandis and the government are <a href="https://theconversation.com/human-rights-dont-matter-in-our-public-debate-but-they-should-43771">trying to avoid</a>. The ALRC has invoked in particular the scrutiny of legislation, against international human rights standards, conducted by the <a href="http://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights">Parliamentary Joint Committee on Human Rights</a> (PJCHR).</p>
<p>Brandis’ referral to the ALRC may well have been an attempt to establish a bright dividing line that would keep international human rights at bay. As he <a href="http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Legal_and_Constitutional_Affairs/Completed_inquiries/2010-13/humanrightsbills43/hearings/index">said</a> in November 2010 in the committee process that led to the PJCHR’s creation, he is:</p>
<blockquote>
<p>… very sceptical of the wholesale invocation of the international jurisprudence that comes with human rights.</p>
</blockquote>
<p>Brandis has a stated preference for:</p>
<blockquote>
<p>… the accumulation of rights through both the common law and statutory protection, going back literally centuries.</p>
</blockquote>
<h2>What did it find?</h2>
<p>Awkwardly, however, the ALRC’s <a href="https://www.alrc.gov.au/publications/traditional-rights-freedoms-and-privileges-0">researched and considered view</a> is that it is not an either/or proposition:</p>
<blockquote>
<p>Many [common law rights] are now found in international covenants and declarations … [c]ommon law rights overlap with the rights protected in … international instruments. </p>
</blockquote>
<p>Disconcertingly for the government, this, <a href="https://www.alrc.gov.au/publications/traditional-rights-freedoms-and-privileges-0">says the ALRC</a>, gives an important role to the Australian Human Rights Commission in working:</p>
<blockquote>
<p>… for the progressive implementation of designated international conventions and declarations.</p>
</blockquote>
<p>The suggestion of international influence on Australia is as <a href="http://www.abc.net.au/news/2015-03-09/tony-abbott-hits-out-united-nations-asylum-report/6289892">unpalatable to this government</a> as it was to the <a href="http://news.bbc.co.uk/2/hi/asia-pacific/690213.stm">last conservative government</a>. But the clear implication of the ALRC’s report is that there is little future in <a href="http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Legal_and_Constitutional_Affairs/Completed_inquiries/2010-13/humanrightsbills43/hearings/index">Brandis’ vision</a> that we:</p>
<blockquote>
<p>… define human rights in relation to existing Australian domestic law and have the international instruments, if at all, as a subsidiary source of human rights.</p>
</blockquote>
<p>Rights can be in competition. A law might limit free movement and association, for example, to preserve public safety. The common law has no clearly established and accepted way of resolving the competition. So, the ALRC <a href="https://www.alrc.gov.au/publications/inquiry">had to ask</a>:</p>
<blockquote>
<p>How might this be done – by applying what standard and following what type of process?</p>
</blockquote>
<p>Again, the ALRC <a href="https://www.alrc.gov.au/publications/justifying-limits-rights-and-freedoms">turns to</a> international human rights law for guidance, noting its clearly articulated and widely practised approach of assessing the proportionality of limits on rights.</p>
<p>This only compounds the relevance of international law to rights in Australia, unwelcome not only to Brandis and Prime Minister Tony Abbott, but perhaps also to PJCHR chair Philip Ruddock, who told the <a href="http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;db=COMMITTEES;id=committees%2Fcommjnt%2F0a5538e0-acc3-4fac-9196-c0d864c143fa%2F0008;query=Id%3A%22committees%2Fcommjnt%2F0a5538e0-acc3-4fac-9196-c0d864c143fa%2F0010%22">Parliamentary Joint Committee on Intelligence and Security</a> that he has:</p>
<blockquote>
<p>… always had some difficulty in understanding what “proportionate” means.</p>
</blockquote>
<p>Having made some sense of how to work with common law rights, the ALRC – in 16 chapters and more than 400 pages – sets out the many laws that put these rights at risk. To take an example, laws that “may be seen as interfering with freedom of speech and expression” <a href="https://www.alrc.gov.au/publications/laws-interfere-freedom-speech">include</a>: criminal laws, secrecy laws, contempt laws, anti-discrimination laws, media broadcasting and communication laws, information laws and intellectual property laws.</p>
<p>In the criminal law, for example, concerns are raised about:</p>
<ul>
<li><p>the so-called “advocating terrorism” prohibition (<a href="http://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Completed_inquiries/2014/Fourteenth_Report_of_the_44th_Paliament">already found</a> to be an unjustified limit on free speech by the PJCHR); </p></li>
<li><p>the law for proscribing terrorist organisations; </p></li>
<li><p>the laws against incitement and conspiracy; and</p></li>
<li><p>secrecy laws – some of which the ALRC has <a href="https://www.alrc.gov.au/publications/report-112">already found</a> to be an unjustified limit on free speech.</p></li>
</ul>
<p>And so the report continues, setting out the many laws “that have been criticised for unjustifiably limiting common law rights or principles”. It records rights or principles that are at risk as including freedoms of <a href="https://www.alrc.gov.au/publications/3-freedom-speech">speech</a>, <a href="https://www.alrc.gov.au/publications/4-freedom-religion">religion</a>, <a href="https://www.alrc.gov.au/publications/5-freedom-association">association</a> and <a href="https://www.alrc.gov.au/publications/6-freedom-movement">movement</a>; <a href="https://www.alrc.gov.au/publications/7-property-rights">property rights</a>; <a href="https://www.alrc.gov.au/publications/9-retrospective-laws">non-retrospectivity of laws</a>; <a href="https://www.alrc.gov.au/publications/10-fair-trial">fair trial</a> and <a href="https://www.alrc.gov.au/publications/15-procedural-fairness">procedural fairness</a>; <a href="https://www.alrc.gov.au/publications/11-burden-proof">burden of proof</a>; <a href="https://www.alrc.gov.au/publications/12-privilege-against-self-incrimination">right to silence</a>; <a href="https://www.alrc.gov.au/publications/13-client-legal-privilege">privilege of legal communications</a>; and the <a href="https://www.alrc.gov.au/publications/18-judicial-review-0">right to judicial review</a>.</p>
<p>Brandis has been given all that he asked for and, I suspect, much more than he was expecting. He must now answer the implicit question in the ALRC’s detailed account of rights-limiting laws: how can the limits be justified?</p><img src="https://counter.theconversation.com/content/45645/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Simon Rice is legal adviser to the Parliamentary Joint Committee on Human Rights.</span></em></p>The federal government has to be on the back foot after a Law Reform Commission report identified that It has been the champion of many rights-limiting laws.Simon Rice, Professor of Law; Director of Law Reform and Social Justice, Australian National UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/312882014-09-04T07:21:27Z2014-09-04T07:21:27ZIt’s time for privacy invasion to be a legal wrong<figure><img src="https://images.theconversation.com/files/58220/original/tpb9c878-1409806939.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Those who've had their digital privacy violated should have legal rights too.</span> <span class="attribution"><a class="source" href="https://www.flickr.com/photos/reid_rosenberg/5616618789">Reid Rosenberg/Flickr</a>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span></figcaption></figure><p>The Australian Law Reform Commission (<a href="http://www.alrc.gov.au/">ALRC</a>) yesterday <a href="http://www.alrc.gov.au/publications/serious-invasions-privacy-digital-era-alrc-report-123">recommended</a> introducing new laws that would give a legal remedy for serious invasions of privacy.</p>
<p>Unfortunately, the federal government has already <a href="http://www.theguardian.com/world/2014/sep/03/law-reform-commission-seeks-right-to-sue-for-victims-of-privacy-violations">indicated</a> it opposes such legislation. Stronger protections of privacy in Australia are needed though, and the proposed privacy tort is the best way forward.</p>
<p>In its <a href="http://www.alrc.gov.au/publications/serious-invasions-privacy-digital-era-alrc-report-123">inquiry</a> on Serious Invasions of Privacy in the Digital Era, the ALRC considered whether Australians should have legal redress if their personal sphere is invaded without their consent. </p>
<p>With its proposal for a statutory cause of action to protect privacy, the ALRC reaffirmed a recommendation from its 2008 landmark <a href="http://www.alrc.gov.au/publications/report-108">report on privacy</a>. The New South Wales Law Reform Commission in 2009 and the Victorian Law Reform Commission in 2010 also made similar calls for enhanced protections.</p>
<p>Despite these repeated calls and the growing community concern over loss of privacy in recent years, successive Australian governments have shown little appetite for improving Australia’s privacy regime. </p>
<p>Australia is now virtually unique in not recognising a right to privacy. In most other common law jurisdictions, courts have developed specific protections against invasions of privacy. </p>
<p>In New Zealand, the UK and, most recently, Canada, judicial developments have been prompted by human rights legislation. These countries’ bill of rights guarantee fundamental freedoms, including the right to freedom of expression and a right to respect for private life. The absence of a federal human rights framework in Australia hampered the development of a common law right to privacy. </p>
<p>It is this legal gap that the ALRC now recommends to fill.</p>
<h2>The proposed privacy tort</h2>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/58227/original/zktdqcsn-1409813404.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/58227/original/zktdqcsn-1409813404.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/58227/original/zktdqcsn-1409813404.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=600&fit=crop&dpr=1 600w, https://images.theconversation.com/files/58227/original/zktdqcsn-1409813404.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=600&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/58227/original/zktdqcsn-1409813404.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=600&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/58227/original/zktdqcsn-1409813404.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=754&fit=crop&dpr=1 754w, https://images.theconversation.com/files/58227/original/zktdqcsn-1409813404.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=754&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/58227/original/zktdqcsn-1409813404.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=754&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption"></span>
<span class="attribution"><a class="source" href="http://www.flickr.com/photos/dlytle/6923789620">davitydave/Flickr</a>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span>
</figcaption>
</figure>
<p>The ALRC report carefully evaluates the various interests that collide in cases of privacy invasions. It proposes federal legislation for a new tort of serious invasion of privacy that would focus on:</p>
<ol>
<li>intrusion into seclusion and</li>
<li>misuse of private information.</li>
</ol>
<p>The ALRC recommends that the tort should be confined to intentional or reckless invasions of privacy, so that negligent invasions of privacy would not be actionable, and to introduce a requirement that the invasion must be serious. </p>
<p>Most importantly, it is proposed that an action could only succeed if the court was satisfied that the public interest in privacy outweighed any countervailing public interests. This requirement for a balancing exercise would ensure that freedom of speech, freedom of the media, public health and safety and national security would not be disproportionately curtailed.</p>
<p>The recommendations of the ALRC are the result of extensive community consultation and take into account comparative research into law in other jurisdictions. The proposed cause of action would ensure that Australia’s privacy protection no longer lags behind or differs greatly from their counterparts in other common law jurisdictions.</p>
<p>A statutory cause of action would provide a reliable basis from which the courts could decide individual cases and develop the finer detail of the law. The alternative – also considered in the ALRC report – would be to leave the development of the law fully in the hands of judges. </p>
<p>That is a process that causes more uncertainty and higher costs to litigants. Any judicial change to the law would also be less likely to reflect community expectations as closely as the proposed statutory tort. </p>
<h2>The government’s freedom agenda</h2>
<p>Unfortunately, Commonwealth Attorney-General George Brandis is already on record for his strong opposition to a privacy tort. </p>
<p>In 2012, Brandis <a href="http://www.theaustralian.com.au/business/legal-affairs/tort-is-not-the-only-privacy-option/story-e6frg97x-1226737685505?nk=aed43508ee849b662f8697cd40bdcab8">labelled</a> it a part of a “gradual, Fabian-like erosion of traditional rights and freedoms in the name of political correctness”. </p>
<figure class="align-left zoomable">
<a href="https://images.theconversation.com/files/58228/original/d67td7kb-1409813529.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/58228/original/d67td7kb-1409813529.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/58228/original/d67td7kb-1409813529.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=692&fit=crop&dpr=1 600w, https://images.theconversation.com/files/58228/original/d67td7kb-1409813529.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=692&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/58228/original/d67td7kb-1409813529.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=692&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/58228/original/d67td7kb-1409813529.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=869&fit=crop&dpr=1 754w, https://images.theconversation.com/files/58228/original/d67td7kb-1409813529.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=869&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/58228/original/d67td7kb-1409813529.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=869&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption"></span>
<span class="attribution"><a class="source" href="http://www.flickr.com/photos/evill1/313705247">Aaron Edwards/Flickr</a>, <a class="license" href="http://creativecommons.org/licenses/by-nc/4.0/">CC BY-NC</a></span>
</figcaption>
</figure>
<p>It is therefore only a faint hope that the federal government will examine the proposed privacy tort on its merits and not be side-tracked by its own ideology or inevitable media opposition. </p>
<p>The government’s <a href="http://www.alrc.gov.au/inquiries/freedoms">freedom agenda</a> may be seen as standing in the way of improving privacy protection. Yet, on closer analysis, it would enhance our freedoms rather than curtail them if a right to privacy was finally recognised.</p>
<p>It cannot be denied that a privacy tort would limit freedom of speech. To some extent, that is precisely its point. But it would do so only where the significance of a person’s privacy demonstrably outweighed interest in free speech. </p>
<p>The federal government’s (now aborted) attempt to change Australia’s racial vilification laws shows its dislike for laws that interfere with freedom of speech. </p>
<p>Yet, as Race Discrimination Commissioner <a href="https://www.humanrights.gov.au/about/commissioners/race-discrimination-commissioner-dr-tim-soutphommasane">Tim Soutphommasane</a> reminded us in this year’s <a href="http://freilich.anu.edu.au/events/alice-tay-lecture-law-and-human-rights-2014">Alice Tay Lecture</a>, no freedom can be absolute, and competing rights and interests need to be balanced against one another. </p>
<p>Soutphommasane rightly pointed out that the conflict between freedom of expression and racial vilification is really a conflict between two freedoms – those who are subject to racial abuse and harassment are likely to have a diminished enjoyment of their individual freedom. </p>
<p>The same can be said about privacy laws. Such laws are intended to protect a person’s dignity and autonomy to allow each citizen to develop their individuality free from serious and unacceptable encroachment by others. </p>
<p>Rather than being anti-thetical to freedom, the protection of privacy – properly bounded by an enquiry into the conflicting interests of the parties concerned – creates space for all citizens to lead their lives as freely as possible. </p>
<h2>Providing redress against privacy invasion</h2>
<p>The 2011 <a href="http://webarchive.nationalarchives.gov.uk/20140122145147/http:/www.levesoninquiry.org.uk/">phone hacking scandal</a> involving parts of the British media as well as this week’s <a href="http://www.washingtonpost.com/national/photo-hacking-rekindles-digital-privacy-worries/2014/09/03/5f080314-334f-11e4-9f4d-24103cb8b742_story.html">unauthorised release</a> of explicit personal photos of female celebrities on the internet illustrate just how vulnerable our personal information has become. </p>
<p>It is time for the federal government to ensure that Australia’s laws protect us adequately against such and other unacceptable invasions of our privacy. </p>
<p>The statutory privacy tort recommended by the ALRC provides a suitable framework for balancing the interests at stake. It would give victims of gross invasions of privacy much-needed access to appropriate remedies.<br></p>
<p><em><strong>Related reading: <a href="https://theconversation.com/civil-action-is-the-big-stick-needed-to-protect-our-privacy-31273">Civil action is the big stick needed to protect our privacy</a></strong></em></p><img src="https://counter.theconversation.com/content/31288/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Normann Witzleb does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The Australian Law Reform Commission (ALRC) yesterday recommended introducing new laws that would give a legal remedy for serious invasions of privacy. Unfortunately, the federal government has already…Normann Witzleb, Senior Lecturer in Law, Monash UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/312732014-09-04T05:06:09Z2014-09-04T05:06:09ZCivil action is the big stick needed to protect our privacy<figure><img src="https://images.theconversation.com/files/58221/original/bswfhq73-1409806944.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Who will keep our selfies safe?</span> <span class="attribution"><a class="source" href="http://www.flickr.com/photos/david_baxendale/14803587918">www.david baxendale.com/Flickr</a>, <a class="license" href="http://creativecommons.org/licenses/by-nd/4.0/">CC BY-ND</a></span></figcaption></figure><p>Never mind the <a href="https://theconversation.com/who-is-to-blame-when-icloud-is-hacked-you-or-apple-31215">celebrities</a>; let’s say you and I had naked photos of ourselves (selfie-steams) floating in Apple’s iCloud. If somehow those photos were exposed, we would have little recourse under Australia’s current legal regime.</p>
<p>If we were lucky the Privacy Commissioner may show some interest. It is unlikely the police would. Help, justice and satisfaction would be remote possibilities.</p>
<p>If the question “Why do so many young people have naked photos on their phone?” is running through your mind, keep it there. Posing it out loud denotes age, and a serious lack of connection with the iGeneration in the eyes of many (just ask comedian <a href="http://www.news.com.au/entertainment/celebrity-life/ricky-gervais-slammed-over-joke-about-nude-photo-hacking-scandal/story-fn907478-1227044608869">Ricky Gervais</a> who was criticised for saying the celebrities were to blame).</p>
<p>And, although closer understanding and educating regarding this phenomenon is needed, it is probably less helpful in solving the immediate problem.</p>
<p>Here is a snapshot of the current reality: many people take naked images of themselves using technology to share in private relationships. But there is a shortfall between their perceived control over their “own” private images and the nebulous state of rights, responsibilities and regulation of the technology they use to facilitate such behaviours.</p>
<p>The rapid uptake of mobile electronic devices as well as popular web applications (such as social networking sites) and cloud storage and services (where our data no longer resides on the device itself, but is pumped into and out of storage locations elsewhere) has fundamentally changed the privacy of Australians.</p>
<p>We generate inordinate amounts of data – both metadata and content – just by using the devices and services. We expose that data to a range of companies and individuals all of whom must maintain our trust that they will use that information wisely, within the law, and also protect it from exposure to unauthorised people. But they haven’t.</p>
<h2>The need for privacy reform</h2>
<p>The Australian Law Reform Commission final report on <a href="http://www.alrc.gov.au/publications/serious-invasions-privacy-digital-era-alrc-123-summary">Serious Invasions of Privacy in the Digital Era</a> was tabled in Parliament yesterday.</p>
<p>It was commissioned in June 2013 by the previous Attorney-General, the ALP’s <a href="http://www.aph.gov.au/Senators_and_Members/Parliamentarian?MPID=HWG">Mark Dreyfus</a>, to examine the adequacy of the <a href="http://www.comlaw.gov.au/Series/C2004A03712">Commonwealth Privacy Act</a>, particularly in light of digital technologies.</p>
<p>The report is a valuable contribution to the discussion that we need to be having in this digital age. Importantly, it examines the introduction of a <a href="http://www.sbs.com.au/news/article/2014/09/03/new-laws-urged-protect-privacy-aust">private right to civil action</a> in cases of serious breaches of privacy.</p>
<p>A right to civil action is important because it helps empower the individual (let’s put aside social and economic barriers to the likelihood of such action for the moment). It is also important because such a right will go some way to changing behaviour online. And change is needed.</p>
<h2>Bad behaviour encouraged by a lack of consequences</h2>
<p>I have long argued that much of the root cause for criminals abusing technologies (by stealing or personal financial information, our broader data, controlling our accounts and so on) and for online businesses being somewhat cavalier in their protection and (mis)use of our data has been a lack of consequences. That is, there is a perception that they will get away with it.</p>
<p>Bad actions that have no consequences quickly spread to others. Parents know that. Governments need to as well. Innovation by companies to protect our privacy has been slow while the plundering of our information by criminals and vexatious people has been anything but.</p>
<p>The prospect of individual civil actions to remedy wrongs may well prove effective where our public mechanisms have not. Or at least they may augment those public institutions and help bring about a more civil society online.</p>
<p>Companies will understandably not relish the prospect of civil action, but something needs to be done to bring the treatment of our private information online in line with our expectations of privacy. Those that recognise and respect their customer’s data and expectations of privacy will benefit.</p>
<p>As for the criminals and others who wantonly and recklessly abuse us online, several large US corporates continue to have good success by using civil means to <a href="http://www.microsoft.com/en-us/news/press/2013/jun13/06-05dcupr.aspx">pursue criminal groups</a> operating at scale online. Giving us the option to use that tool too will only hurt them further.</p>
<p>Many will argue that it is up to the individual to protect their own privacy, particularly by changing their behaviours, and stopping others, such as not taking nudie selfies.</p>
<p>But it isn’t that simple. Even the dullest, most simple action online generates information that could be – and likely is – abused and misused by someone today.</p>
<p>Imagine what’s happening to our more interesting online actions. Do <a href="http://www.gotinder.com/">Tinder</a> users really think their data won’t be mined (or exposed) while they trawl the internet for instant relationships?</p>
<p>Are <a href="http://www.cio.com/article/2368602/social-media49680-15-Social-Media-Apps-You-May-Not/social-media/149680-15-Social-Media-Apps-You-May-Not-Know-About.html">anonymous messaging apps</a> really anonymous?. Does your personal <a href="http://www.fitbit.com/">Fitbit</a> health and fitness data just stay with you? What would your heath insurance or life insurance company think of your web searches?</p>
<p>What’s needed is a change on many fronts: end users, businesses, governments, criminals and other data abusers. The Law Reform Commission’s report won’t fix it all – even if the legislation it recommends comes to life – but it will go some way to empowering us end users to assert our rights. And that should be celebrated.</p>
<p>Until then, changing passwords and only taking photos you’re comfortable seeing on the front page may be the best options.</p>
<p><br>
<em><strong>Related reading: <a href="https://theconversation.com/its-time-for-privacy-invasion-to-be-a-legal-wrong-31288">It’s time for privacy invasion to be a legal wrong</a></strong></em></p><img src="https://counter.theconversation.com/content/31273/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Alastair MacGibbon does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Never mind the celebrities; let’s say you and I had naked photos of ourselves (selfie-steams) floating in Apple’s iCloud. If somehow those photos were exposed, we would have little recourse under Australia’s…Alastair MacGibbon, Director, Centre for Internet Safety, University of CanberraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/127872013-03-14T03:05:26Z2013-03-14T03:05:26ZReform that wobbles like jelly: A spineless approach to privacy protection<figure><img src="https://images.theconversation.com/files/21266/original/qq629q7n-1363227724.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">With cabinet appearing to have sat on the proposal for a privacy tort, Stephen Conroy's move to refer it to the Australian Law Reform Commission may effectively consign it to oblivion.</span> <span class="attribution"><span class="source">AAP</span></span></figcaption></figure><p>Communications Minister Stephen Conroy has <a href="http://www.minister.dbcde.gov.au/media/media_releases/2013/036">indicated</a> the federal government will not be introducing a “privacy tort” in the near future. </p>
<p>Instead, it will refer questions about the tort back to the Australian Law Reform Commission (<a href="http://www.alrc.gov.au">ALRC</a>), a reference that probably means we will not see the tort for at least ten years.</p>
<p>Why do we care? Tort law serves to encourage responsibility and compensate people for injury. It’s an unremarkable feature of the Australian legal system, one that we often take for granted and that overall has distinct advantages.</p>
<p>The Australian Law Reform Commission in 2008 <a href="http://www.alrc.gov.au/publications/74.%20Protecting%20a%20Right%20to%20Personal%20Privacy%20/recognising-action-breach-privacy-australia">recommended</a> that there should be a tort regarding serious invasion of privacy. The NSW Law Reform Commission had made a similar <a href="http://www.lawlink.nsw.gov.au/lawlink/lrc/ll_lrc.nsf/vwFiles/R120.pdf/$file/R120.pdf">recommendation</a>. So had the Victorian Law Reform Commission. So had a range of lawyers, civil society <a href="http://www.crikey.com.au/2011/08/01/privacy-eye-media-paranoia-distorting-facts-on-privacy-tort/">advocates</a> and leading bodies such as the Australian Privacy <a href="http://www.privacy.org.au/">Foundation</a>.</p>
<p>The recommendation reflected a recognition that the protection of <a href="http://www.supremecourt.gov.uk/docs/speech-121128.pdf">privacy</a> in Australian law is inadequate. If your privacy is invaded by nosey neighbours, former partners, corporations or government agencies, do not expect compensation. Do not expect much protection, given the threadbare Commonwealth, state and territory statutes dealing with surveillance in the workplace and other locations. </p>
<p>That absence is surprising, given Australia’s commitment to human rights agreements that enshrine privacy as a key facet of the <a href="http://www.judiciary.gov.uk/Resources/JCO/Documents/Speeches/lj-leveson-speech-privacy-internet-07122012.pdf">dignity</a> and autonomy that underlies all Australian law. It’s also surprising given that we have seen major abuses by media organisations and marketers, who claim that <a href="https://theconversation.com/self-regulation-and-a-media-we-can-trust-6466">self-regulation</a> is effective and essential.</p>
<p>In 2011 the Government announced that introduction of a privacy tort would be considered. The tort would enable compensation for injury. It would discourage misbehaviour through civil and criminal sanctions. It would not inhibit legitimate activity by the police, national security personnel, marketers and journalists. It would address concerns expressed by a wide range of Australians. It would be consistent with human rights obligations under domestic and international law.</p>
<p>A subsequent discussion <a href="http://www.dpmc.gov.au/privacy/causeofaction/docs/issues%20paper_cth_stat_cause_action_serious_invasion_privacy.pdf">paper</a>, which was not strongly promoted, provided a broad outline of issues. The paper offered a proposal for national legislation, which would be interpreted by the courts and would not involve a new privacy watchdog. Law currently features the Australian Privacy Commissioner, regrettably a <a href="http://www.oaic.gov.au">watchdog</a> that has few teeth and more importantly is very reluctant to come out of its kennel.</p>
<p>One journalist damned the proposal as <a href="http://blogs.news.com.au/heraldsun/andrewbolt/index.php/heraldsun/comments/bad_law_and_worse_motives/">sinister</a>. Others claimed it was meant to <a href="http://www.theaustralian.com.au/business/legal-affairs/legal-leaders-denounce-gillard-governments-statutory-tort/story-e6frg97x-1226132557831">intimidate</a> the media or referred to a conspiracy. That condemnation is implausible because the Government doesn’t seem to have what’s needed for conspiracies and because the tort would <a href="https://theconversation.com/far-from-sinister-privacy-laws-might-mean-media-does-its-job-better-3326">strengthen</a> rather than destroy credible journalism.</p>
<p>Other critics were equally emotive, claiming that the tort was not needed or that it would result in <a href="http://www.ag.gov.au/RightsAndProtections/Privacy/Documents/RuleofLawAustralia.pdf">uncertainty</a> and undesirable litigation. (Notions of what is undesirable may of course be affected by the arrest of UK <a href="https://theconversation.com/hackgate-the-impact-of-rebekah-brooks-arrest-5833">colleagues</a> after egregious disregard of the privacy of notables – people whom Rupert Murdoch <a href="http://news.ninemsn.com.au/world/2012/10/15/12/10/murdoch-labels-hacking-victims-celebrity-scumbags">described</a> as scumbag celebrities – and victims of personal tragedies).</p>
<p>Anxieties about the tort’s impact are uninformed or disingenuous. In a <a href="http://www.canberra.edu.au/faculties/busgovlaw/attachments/pdf/PUB_112_Justice-Connections-program-2012_v4.pdf">conference</a> paper last year I reminded the audience that we have a model for judicial handling of questions about public and private interest. That model is working well. It is confidentiality law, relied on by businesses, by individuals and journalists. </p>
<p>There is no reason to believe that Australian courts couldn’t handle the privacy tort in the same way. It wouldn’t be the end of the world, unleash tsunamis of frivolous litigation or stifle free speech.</p>
<p>The Cabinet appears to have sat on the proposal, scared of the wrath of media proprietors and journalists such as Andrew Bolt and Alan Jones. With bad news in the polls and a focus on whether the PM will get rolled by her colleagues it’s had an attack of the jellybacks. (Paul Keating memorably used this phrase to describe to opponents showing an unwillingness to shoulder responsibility and make tough decisions.)</p>
<p>Flipping questions about the tort back to the ALRC is escapist. The ALRC’s resources have been cut by Coalition and ALP governments over the past 15 years. It is busy with major reports on for example copyright reform. It has already provided cogent analysis of the need for the tort and taken on board community feedback. </p>
<p>Asking the ALRC to have another look simply defers a decision into 2014 and beyond. Deferral is an exercise in minimising political embarrassment. It is contrary to the Government’s supposed commitment to managerial excellence and human rights. It signals politicians think re-election (and media groups) are more important than the dignity of all Australians. Polls matter more than principles.</p><img src="https://counter.theconversation.com/content/12787/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Bruce Baer Arnold does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Communications Minister Stephen Conroy has indicated the federal government will not be introducing a “privacy tort” in the near future. Instead, it will refer questions about the tort back to the Australian…Bruce Baer Arnold, Assistant Professor, School of Law, University of CanberraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/94222012-09-10T01:45:28Z2012-09-10T01:45:28ZOptus and TV Now: will copyright law catch up to the cloud?<figure><img src="https://images.theconversation.com/files/15243/original/pfv4vnm6-1347240680.jpg?ixlib=rb-1.1.0&rect=24%2C7%2C932%2C570&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Optus has exhausted its legal avenues to appeal against a decision finding it breached copyright on its TV Now service. But should the issue of technology neutrality be reviewed?</span> <span class="attribution"><span class="source">Flickr/IntelFreePress</span></span></figcaption></figure><p>A legal decision which forced Optus to shut down its time shifting service TV Now may eventually lead to reform of existing copyright law to cater for cloud technology.</p>
<p>On Friday, the High Court denied Optus leave to appeal a <a href="http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCAFC/2012/59.html">Federal Court decision</a> finding it breached exclusive copyright deals by showing live or pre-recorded free-to-air AFL and NRL games on its TV Now service.</p>
<p>The original case brought by the AFL, NRL and Telstra against Optus hinged on the question of who made the recordings of the broadcasts used by TV Now.</p>
<p>Under section 111 of the 1968 Copyright Act, time shifting and format shifting can only occur for private and domestic use. </p>
<p>The <a href="http://www.austlii.edu.au/au/cases/cth/FCA/2012/34.html">original Federal Court ruling</a> determined it was Optus customers who made the recordings of the live or pre-recorded free to air AFL and NRL games using the TV Now service. </p>
<p>However, following the appeal from the AFL, NRL and Telstra, the <a href="http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCAFC/2012/59.html">Full Federal Court ruled</a> that it was Optus, or alternatively it was both Optus and their customers making the recordings. </p>
<p>Commercial enterprises such as Optus are currently unable to rely on s 111 of the Act and must seek permission or a licence from the copyright owner or the content rights holder. </p>
<p>As noted by the Australian Law Reform Commission (ALRC) in its 2012 <a href="http://www.alrc.gov.au/publications/copyright-ip42">Copyright and the Digital Economy issue paper,</a> the reproduction of copyright material by commercial enterprises may lower the value of rights to distribute the material. </p>
<p>But if new cloud computing services such as the TV Now have a negative effect on the market value of the broadcasting rights for copyright material, then copyright owners or content rights holders such as film studios and sporting organisations will argue for tighter limitations on s 111.</p>
<p>The 2012 <a href="http://www.dbcde.gov.au/digital_economy/convergence_review">Convergence Review</a> recommended a technology neutral approach to policy and law that will incorporate new services, platforms and technologies. </p>
<p>However the Optus case highlights that the language of s 111 is capable of excluding - and in fact does exclude - technological copying developments such as TV Now. </p>
<p>The Court stated that “no principle of technological neutrality can overcome what is the clear and limited legislative purpose of s 111”.</p>
<p>The ALRC is currently <a href="http://www.alrc.gov.au/publications/copyright-ip42">undertaking a review</a> into whether the exceptions in the Copyright Act are adequate and appropriate in the digital environment. </p>
<p>One of the areas it is investigating is whether new exceptions should be introduced to cover cloud computing services, as well as whether the reproduction of legally acquired copyright material, including broadcasts, should be allowed beyond private or domestic uses. </p>
<p>It also wants input on whether the time shifting exception should cover copying by a company on behalf of an individual.</p>
<p>It will be interesting to see if the ALRC review recommends changes to the wording of s 111 to ensure that the exception is technology neutral and includes new technology and services capable of reproducing and communicating (including broadcasting) copyright material. </p>
<p>While the review may recommend the broadening of the private or domestic use to include a fair or reasonable use, it is unlikely to include a use for commercial purposes.</p>
<p>But similarly to the confusion that exists in the US about what is “fair use”, the introduction of a clause covering fair or reasonable use may not clarify the situation. </p>
<p>For example, would the full Federal Court finding that Optus was able to make games available to their customers (without a licence from the copyright holder or owner) have been ruled a fair or reasonable use, or would it have been ruled a commercial use and as a consequence remain a copyright infringement case?</p>
<p>Submissions related to the Copyright and the Digital Economy issue paper close on 16 November 2012. The ALRC is expected to release a final report on the copyright review by November 2013.</p><img src="https://counter.theconversation.com/content/9422/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Marita Shelly does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A legal decision which forced Optus to shut down its time shifting service TV Now may eventually lead to reform of existing copyright law to cater for cloud technology. On Friday, the High Court denied…Marita Shelly, PhD Candidate, Graduate School of Business and Law , RMIT UniversityLicensed as Creative Commons – attribution, no derivatives.