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In this episode, I’ll talk about an issue that has been bubbling away on the political agenda for a very long time now: should two people of the same sex have a legal right to be married in Australia? How have other countries come to legalise same sex marriage, and what is the current status of the debate in Australia?
Continue reading “1×03: The Antiquity of a Prejudice is No Reason for its Survival”
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In this episode of Hearsay, I’ll take a look at the international legal dispute that led to our Prime Minister being dubbed “Mr Trumble”. I’ll also talk about some of the other controversies surrounding Donald Trump’s fledgling presidency, and explain how they have parallels with issues in Australia’s legal system. Continue reading “1×01: Mr Trumble goes to Washington”
Professor George Williams argues: “When it comes to achieving the right to die, community support has yet to translate into votes on the floor of Parliament”. He notes that “the law forbids a doctor from acting on a request from a terminally ill patient to end their life… The best that the law offers such a person is to permit them to starve to death”, citing the WA case of Christian Rossiter. Euthanasia was legalised in the Northern Territory in 1996, but the Commonwealth used its constitutional power over the territories to repeal that law in 1997, by withdrawing the NT’s self-government over laws concerning euthanasia. A bill to legalise euthanasia was narrowly defeated in the Tasmanian parliament last year. In Victoria, Dr Rodney Syme has been defying the law in order to pressure the government to change the law, and an opinion poll suggests a majority of Victorians support legal change, but the Andrews Government has given no indication that it intends to act on the issue.
Under the division of powers, defamation is a matter for the States, and historically, the law was different in each jurisdiction. With the rise of national (and international) media and communications, this led to “forum shopping” in which plaintiffs could choose to sue in the State with the most plaintiff-friendly law. In order to achieve nationally consistent laws, the States agreed to implement uniform legislation, with an identical Defamation Act 2005 passed in each State. Now, Tasmania is threatening to abandon the national scheme by allowing big corporations to sue individuals. Critics say this will make Hobart the “defamation capital of Australia” by again allowing forum-shopping. The proposed change is part of a broader suite of Tasmanian reforms designed to crack down on anti-forestry protesters, but which may have much broader impacts.
Former Prime Minister Gough Whitlam died this morning, aged 98. From a Legal Studies perspective, his short term in office provided much to consider. His program included many legal reforms, including lowering the voting age to 18, allowing the Territories to elect two senators each, establishing the Family Court and a no-fault divorce system, funding legal aid and community legal centres, creating the Australian Law Reform Commission, signing a raft of UN treaties, supporting Indigenous land rights, and introducing significant legislation like the Racial Discrimination Act 1975. He proposed two increases in Commonwealth Constitutional power, but both failed at the 1973 referendum. He called a double-dissolution election in 1974, and is the only Prime Minister to subsequently hold a section 57 joint sitting of both Houses of Parliament to pass deadlocked bills. He controversially appointed his Attorney-General, Senator Lionel Murphy, to the High Court—over the objection of Chief Justice Garfield Barwick. In retaliation NSW filled the Senate vacancy with a non-Labor appointment. Later that year, Queensland also replaced a dead Labor senator with a conservative. This process was changed by a referendum in 1977 to prevent it happening again, but at the time it tipped the balance of power in the Senate and allowed the Opposition to block supply bills. Whitlam refused to resign because he believed he was accountable only to the House of Representatives, but his government could not function without supply. The Chief Justice of the High Court provided legal advice to the Governor-General, arguably in breach of the separation of powers, and instead of dissolving parliament, the Governor-General sacked Whitlam and swore in Malcolm Fraser as the new prime minister. The supply bills were passed by the Senate before Labor senators had been told about the change of government. The House of Representatives immediately voted confidence in Whitlam, but it was too late. Fraser comfortably won the subsequent double-dissolution election. This series of events is known as a Constitutional Crisis because it highlighted that unwritten (and therefore breakable) conventions are very important to the functioning of Australia’s written Constitution.
The High Court has again struck down the National School Chaplaincy and Student Welfare Program as unconstitutional. In a 2012 decision, it was thrown out because the executive was acting without legislation to authorise the program. The government responded by passing amendments to the Financial Management and Accountability Act 1997 (Cth) to give itself broad power to spend money on any program approved by a minister. In today’s new judgment, Williams v Commonwealth (No 2), the High Court said any such program would still need to fall under a head of Commonwealth power—and school chaplains don’t. The High Court’s interpretation of the phrase “benefits to students” was the crux of the case: “Providing money to pay persons to provide [chaplaincy] services at a school is not to provide benefits which are directed to the consequences of being a student. It is not a provision of benefits to students within the meaning of s 51(xxiiiA).” It also ruled that a law authorising a payment to a corporation was not a law with respect to corporations, so section 51(xx) did not apply either. As a result, the program did not fall under a head of power and the spending was invalid. The real significance of the case, though, is the precedent it establishes for future challenges to government programs. Because the High Court approached the case narrowly and only made a decision about the chaplaincy scheme, over 400 Commonwealth programs authorised under the FMA Act will continue until they are specifically challenged.
Constitutional scholar Greg Craven is calling for a new round of constitutional conventions to redefine the federal system. Noting that “[t]he word is that the Commission of Audit will recommend serious restitution of powers over school education and much of health to the states”, he suggests looking to history for a practical way forward: “Oddly, there is a pretty clear solution to this particularly murky problem. We have been down this road before, over a century ago. When Australia wanted to go from six bickering colonies to one continental nation, we faced all these issues and more. The process we used was a constitutional convention where our best and brightest — and most bearded — thrashed the issues out. … It worked last time.”
The Media, Entertainment and Arts Alliance, a trade union representing journalists, has called for universal national “shield laws” to protect journalists’ sources. Billionaire mining heiress Gina Rinehart has twice subpoenaed journalists in a bid to force them to reveal the sources of their information about her in newspaper reports and a biography. In both cases, she failed because Western Australia introduced shield laws in 2012, which require that the “starting point will be that if a journalist has promised not to disclose an informant’s identity, that journalist or their employer cannot be forced to give evidence that would disclose the informant’s identity“. While the model Uniform Evidence Act includes a shield provision, it has not been adopted in every State, and is not as broad as the WA law.
Constitutional law experts disagree about whether a Tasmanian law would be struck down by the High Court. The Reproductive Health (Access to Abortions) Act 2013 establishes “access zones” prohibiting protests “within a radius of 150 metres from premises at which terminations are provided”. Michael Stokes of the Unitersity of Tasmania says that because the ban on protests is total, “[t]he provision breaches the freedom of political communication and is therefore outside the powers of the parliament”. The University of Melbourne’s Adrienne Stone disagrees, because “the protection is conferred on only political communication relevant to federal politics” and abortion law is a matter for the States. At this stage, the debate is theoretical; no challenge to the law has been announced.
Tony Abbott is expected to launch a push to change the balance of state and commonwealth responsibilities through the release of a “white paper” on federalism. During the 2013 election campaign, Abbott said the division of powers was “our biggest political problem”, and promised a review: “The objective will be to reduce and end, as far as possible, the waste, duplication and second guessing between different levels of government that has resulted, for instance, in the Commonwealth employing 6000 health bureaucrats even though it doesn’t run a single hospital.” If the Liberals win state elections in SA and Tasmania this weekend, they will be in power everywhere except the ACT, which would allow Abbott to be bolder with his proposals. “It is always more helpful to be working with like-minded people who want to be constructive,” he said.