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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 dig in to the issue of homelessness, looking at how a media campaign can lead to new criminal laws, how we have criminalised poverty and homelessness through history, and how the City of Melbourne is empowered to create new crimes (even if the Lord Mayor doesn’t really understand that’s what he is proposing). Are we returning to the old days of locking up “idle persons” and “incorrigible rogues”? Continue reading “1×02: Idle Persons and Incorrigible Rogues”
The Victorian Attorney-General, Martin Pakula, has tabled in parliament the report of the 2015 Review of the Charter of Human Rights. The review was conducted by Michael Brett Young, and took into account over 100 public submissions from individuals and community groups.
The most significant recommendations relate to enforcement of the Charter. Brett Young says the current Charter is “flawed” because it “does not include an ability to enforce the standards that it sets”. He notes: “Providing for human rights without corresponding remedies sends mixed messages to the public sector and to the community about the importance of those rights.”
One proposal is to create a stand-alone cause of action for breaches of the Charter. At the moment, section 39 allows people to raise a breach of the Charter only as part of a separate legal proceeding. People who can’t “piggy-back” their human rights case on top of a separate claim are left out. The Review recommends giving legal standing to “any human being who claims a public authority has acted, or is proposing to act, incompatibly with their human rights.”
The Review also recommends expanding the remedies that VCAT and the courts can provide for breaches of the Charter. It recommends they “should have power to grant any relief or remedy that [they] considers just and appropriate, excluding the power to award damages”. The focus should be on practical remedies, such as injunctions, that would improve compliance with Charter rights.
However, the Review also recommended: “Making damages a remedy under the Charter should be considered only as an incremental step once the direct cause of action is established and there is experience of it in operation. In Chapter 8, I recommend a further review of the Charter. That review should consider the inclusion of damages as a remedy.”
The long report includes a total of 52 recommendations, including strengthening the parliamentary review of bills and making the process more transparent; allowing the Minister to revoke a local council by-law that is incompatible with human rights; and ensuring that allegations of serious human rights breaches by police can be independently investigated.
It also specifically recommends the inclusion of a new Charter right: “that every person born in Victoria has the right to a name and to be registered as soon as practicable after birth.” This was in response to a campaign by the Castan Centre for Human Rights to improve the rate of birth registration in Indigenous communities
The Victorian Government has not yet responded to the recommendations.
Is VCAT a court? Yes and no, the Court of Appeal ruled in Subway Systems Australia Pty v Ireland  VSCA 142. The case was about a Subway restaurant franchise arrangement, including an arbitration agreement to deal with any disputes that arose. The Commercial Arbitration Act 2011 (Vic) prevents “a court” from hearing a matter that is covered by an arbitration agreement. The franchisees tried to take a retail tenancy dispute to VCAT, but Subway objected. The Court of Appeal majority judges held that parliament intended the law to “prefer arbitration of whatever kind has been agreed between the parties over State sponsored dispute resolution”, and the word “court” should be interpreted broadly in this context. So VCAT is usually considered to be a tribunal, but in some specific situations it is treated as if it was a court.
The Immigration Minister, Scott Morrison, has introduced a bill to make it easier to deport asylum seekers who face a risk of torture or death in their country of origin. The proposed changes are in response to statutory interpretation of the Migration Act that the government disagrees with. The Explanatory Memorandum to the bill states: “The Full Federal Court’s decision in Minister for Immigration and Citizenship v SZQRB … found that the threshold to be applied to assessing complementary protection claims is whether there is a ‘real chance’ of significant harm, the same threshold that applies to the assessment of claims under the Refugees Convention. The Government’s position is that the risk threshold applicable to the non-refoulement obligations … is ‘more likely than not’. ‘More likely than not’ means that there would be a greater than fifty percent chance that a person would suffer significant harm in the receiving country.” The Age columnist Tony Wright translates the legal language as follows: “In short, if there is a mere 49 to 50 per cent chance of … being hung by one’s thumbs from meathooks while being thrashed by a length of electrical flex, that’s good enough for Mr Morrison. They can be sent to whatever fate might await them.”
The United Nations Human Rights Committee says Victorian law should hold the government responsible for all actions by on-duty police officers, and the victim of a savage beating should receive compensation. In 1996, police broke in to Corinna Horvath’s home, bashed her, fabricated evidence, and later lied in court. She initially won compensation, but that was overturned when the Court of Appeal ruled the government was not vicariously liable under section 123 of the Police Regulation Act 1958 (Vic) because the indidual police involved had not acted “in good faith in the course of his or her duty”. The UN ruled this was a breach of the International Covenant on Civil and Political Rights: “It is the State’s responsibility to ensure that its police do not violate human rights and to remedy violations of human rights by its police”. It concluded that “the State of Victoria is obliged to change its domestic laws” to address the problem. The Victoria Police Act 2014, which commences in December, changes the State’s liability for torts committed by police, but Horvath’s lawyers say the new law will be “an expensive and lengthy two-step process” and does not go far enough.
The New York Times has launched a new video feature, “Verbatim”, based on dramatic re-enactments of the transcripts of legal proceedings. The first in the series, What is a Photocopier?, highlights the problems that arise when lawyers attempt to interpret the meanings of common words and phrases. (The transcript can be read here.)
In a speech to Monash University on Thursday, the Chief Justice of the Supreme Court, Marilyn Warren, called for a greater emphasis on statutory interpretation in legal education. Noting that “the ‘Priestley 11‘, the core subjects for a law degree… have not altered over the decades”, she observed that “[w]hilst cases on statutory interpretation feature significantly in the High Court of Australia and intermediate appellate and superior courts’ jurisprudence, statutory interpretation is not a compulsory subject.” The Chief Justice of the High Court, Robert French, expressed a similar view in 2011. When asked “What is the one piece of advice that you could bestow on a young law student?”, he replied, “I have got three words here: understand statutory interpretation. … I’m not sure there is enough emphasis given to it in legal education today.”
In a landmark ruling, the High Court upheld Norrie’s right to have hir sex recorded as “non-specific” in the NSW Register of Births, Deaths and Marriages. The opening line of the unanimous judgment rejected the idea that gender is binary: “Not all human beings can be classified by sex as either male or female.” Simon Rutherford of A Gender Agenda, which appeared in the case as amicus curiae, said, “This a fantastic decision for gender diverse and intersex people, who simply want to be recognised for who they are.” The case was based on interpretation of NSW legislation, so it will not be directly applicable elsewhere, but it is an important step in a trend towards “bring[ing] the law into line with social understandings of sex and gender diversity.”
According to The Age, “Infrastructure and mining giant Thiess may have breached Australian bribery laws by paying Indonesian police and military officials in return for security at its mines.” The police and soldiers are accused of beating workers protesting over their working conditions. Most laws only prohibit conduct within the relevant jurisdiction, but the Commonwealth Criminal Code imposes “extended geographical jurisdiction” for certain crimes. It prohibits bribery that occurs overseas, if the offender is an Australian citizen, resident, or company, allowing them to be tried here.