High Court Review 2004: Limits on the Judicial Protection of Rights

The High Court's role of judicial review has often been examined for its impact on rights protection, an area of particular interest in Australia due to the historical lack of an explicit bill of rights in either statutory or constitutional form. In 2004 rights issues were presented in particularly stark relief in several key cases, demonstrating the difficulties of the role of judicial review in the Australian constitutional framework. The cases analysed here produce compelling evidence of the limitations of relying on judicial review for rights protection within the Australian system of government. They demonstrate that in the absence of a clearer framework for the protection of rights the judiciary can uphold unambiguous decisions of the legislature enshrined in statute, even where and when those provisions are considered to override the rule of law, international standards and human rights principles.     

Partisanship and the gender gap: support for gender quotas in Australia

The percentage of women elected in the Australian Parliament is comparatively low. This poor track record has generated debate within political parties about the necessity of gender quotas (or targets) to increase women’s representation. Using the 2016 Australian Election Study, this paper proposes to test support for different measures aiming to increasing women’s representation in Australian politics. More specifically, I investigate the role of partisanship in explaining gender differences in support for gender quotas. I find that differences in support for quotas are greater among women, and among men, than between women and men. The paper also demonstrates that the role of political values in explaining differences in support for gender quotas is non-uniform. Indeed, attitudes towards government intervention, minority rights, and gender equality are more crucial in explaining differences in support for legislative quotas among men than among women.     

The power of belief: religious freedom in Australian parliamentary debates on same-sex marriage

ABSTRACT

More than merely a theme of the Australian parliamentary debates on the bill to legalise same-sex marriage, ‘religious freedom’ appeared in the bill’s very title. This paper explores why and how this happened using a corpus-assisted analysis of the 663 parliamentary speeches made during the marriage legislation debates from 2004 to 2017. The analysis demonstrates that by 2017, the idea that marriage equality was a profound threat to religious freedom was well entrenched in the parliamentary discourse. The study finds that the potential offence of religious sensibilities came to be regarded by politicians as more significant than ongoing discrimination, thereby granting tremendous social power to religious institutions to practise discrimination in the face of changing values in society.     

Rethinking voter identification: its rationale and impact

Voter ID is a contentious issue in electoral democracies worldwide. This article surveys arguments for and against voter ID in the Australian context, presenting data from the first election in the country to require it. The data demonstrate a differential impact on regional electorates and on electorates with concentrations of Indigenous voters. While the law in question (from the State of Queensland) was moderate in its overall impact, confusion created by it may have suppressed turnout. The law has since been repealed, but voter ID now has the support of a conservative majority on the Commonwealth Parliament’s electoral matters committee. We conclude that voter ID is not a solution to eliminating fraud, but an additional bureaucratic layer upon the ritual of casting a ballot and a hurdle with unintended consequences.     

Rethinking Law and Violence: The Domestic Violence (Prevention) Bill in India, 2002

This essay focuses on the controversy generated by recent proposed legislation on domestic violence in India. An alternative draft bill on domestic violence prepared by the feminist legal NGO, the Lawyers’ Collective, and supported by women's groups nationally, includes a demand that victims of domestic violence (usually wives) be permitted by law to continue to occupy the domestic home, a demand that the Government bill has refused to include. This demand is theoretically informed by a politics of space. Bodies and space are linked, to the extent that each is an abstraction without the concept of the other to ground it. The feminist legal proposal challenges property‐as‐absolute‐(male) ownership by conceptualising the household as, instead, shared domestic space. The proposal does not dissimulate common sense – it is conscious of being radical, in part at least because it demystifies the ‘domestic’ as an ideological construct and offers it instead realistically and minimally as simply an alternative to destitution. The recognition that there are no support structures for dependant women outside the family (such as, for example, state‐sponsored welfare institutions), so that destitution can be both sudden and real for women of any class and circumstances, has led to the conceptualisation of a law that formulates a right to shared space as one that makes no claim to shared ownership – while at the same time questioning the other's absolute property right. Despite the limited nature of the claim it makes, this proposal has been viewed as threatening by Indian law‐makers.     

A transnational history of immigration restriction: Natal and New South Wales, 1896–97

This article investigates the creation of Natal's 1897 Immigration Restriction Act and traces the legislative connections between southern Africa and Australia. It describes Natal's anti-Indian agitation of 1896–97 and argues that the colony's government initially sought to solve the ‘Asiatic question’ by adopting a racial immigration bill passed in New South Wales in 1896. However, the threat of violent extra-legal action by white settlers convinced the Natal government to replace this bill with one that made no direct reference to race. Natal ministers realised that racial legislation would face constitutional obstacles and were anxious to enact a restrictive immigration law without delay. The new Act was partly modelled on American immigration legislation and, though not explicit on race, its educational test was primarily designed to restrict Indian immigration. The Natal law was in turn used as the basis for Australian immigration legislation. Given these transnational connections, Natal's response to the ‘Indian question’ should be placed in a global context.     

The Archbishop of Canterbury,the Episcopal Bench,and the Passage of the 1911 Parliament Act

The passage of the 1911 Parliament Bill ended the power of the British house of lords to veto any legislation passed by the house of commons. Henceforth, it could only delay the passage of a measure. The bill was carried by a mere 17 votes and friction between Unionists who took up die‐hard opposition, advised abstention, or actively sought to aid passage was bitter. The role which the archbishop of Canterbury played in canvassing the episcopal bench and helping to ensure final passage of the bill has not attracted much attention. Prior to the debate, the archbishop advised abstention but did not dissuade others from encouraging bishops to support the bill to help ensure passage. Before the vote, therefore, ‘die‐hards’ opposing any concession to the government, ‘hedgers’ advising Unionist abstention in the vote, and ‘rats’, Unionists willing to vote for the bill to ensure passage despite personal reservations, attempted to sound out and pressure the bishops in their direction. At the debate, the archbishop changed his mind and decided he must support the bill in order to avoid a greater crisis, and 12 other bishops joined him in the government lobby, helping to create the final majority of 17 by which the measure passed. Consideration of the role of the bishops adds to the understanding of the mechanics by which the bill passed, amidst considerable intrigue, pressure and acrimony, as well as further illuminating the extent and intensity of the divisions within the Unionist party at this critical moment.     

Botswana: abortion "debate" dynamics

The Penal Code (Amendment) Bill or the abortion bill has the objective of liberalizing the current law on the regulation of abortion. Abortion had been strictly prohibited and carried stiff penalties. Anyone who attempted to assists a woman to procure an abortion could be liable to 7 years' imprisonment. However, medical abortions were distinguished as being medically determined to save the health of the mother. Demands for a reevaluation of the law came from the medical profession, and in response the Minister for Presidential Affairs submitted a bill to Parliament in November, 1990. The expressed government rationale for these proposed amendments was concern about the health of women. In Botswana about 200 women die yearly because of pregnancy. According to the proposed law: an abortion could be carried out within the first 16 weeks of pregnancy if: 1) the pregnancy were a result of rape, incest, or defilement (the impregnation of a girl aged 16 or less, the impregnation of imbeciles or idiots), 2) the physical or mental health of the woman were at risk because of the pregnancy, 3) the child would be born with a serious physical or mental abnormality. The abortion could be carried out only if 2 medical doctors approved it. The amendments fall far short of increasing women's control over their bodies. The Botswana Christian Council issued a statement early in the public debate. While it did not oppose the bill in its entirety, clear concern was expressed concerning the apparent right of determining who lives and who dies depending on the handicap of the child. This rather liberal position was challenged by the Roman Catholic Church which interpreted abortion as the murder of God-given life. The bill was nevertheless passed by Parliament in September 1991, and the President signed it on October 11, 1991.     

“A Most Revolting State of Affairs”: Theodore Roosevelt’s Aldermanic Bill and the New York Assembly City Investigating Committee of 1884

In 1884 Theodore Roosevelt chaired a special committee of the New York Assembly, charged with investigating corruption in New York City departments. Roosevelt had also presented to the Assembly a bill to strip the city’s Board of Aldermen of their power to confirm mayoral appointments. The “Roosevelt bill” sought to break the power of Tammany over these appointments, and reduce waste and corruption. While the committee’s investigation provided the press lurid examples of corruption and incompetence, in the end it did little to diminish Tammany’s power. For Roosevelt, however, the committee hearings served as a perfect backdrop to his Aldermanic bill which was eventually signed into law by Governor Grover Cleveland. The parallel paths of the bill and the committee revealed Roosevelt as a shrewd politico building his reputation as an urban reformer.     

The history of Australian legal opposition to Japanese Antarctic whaling

ABSTRACT

Whaling has been a consistent theme in Australia’s relations with Japan since the 1930s, Australia having endeavoured to regulate, restrict, or bring to a complete halt Japan’s Antarctic whaling virtually since it began. Australia’s motivations have been mixed, involving at various points, some combination of protection of Australia’s coastal whaling industry, concern for Australia’s security, for safeguarding Australia’s Antarctic territorial claim, and more recently, concern for Australia’s whale-watching industry and/or for the whales. Since environmental consciousness became a primary factor in the 1970s, Australian policy has been aligned with that of anti-whaling non-governmental organizations (NGOs), albeit that certain actions of NGOs have caused difficulties for the Australian Government. Law – inclusive of legal argument in the course of diplomacy, domestic laws, and international litigation – has been a mechanism of influence used by the Australian Government and NGOs. This paper traces Australia’s legal opposition from its beginnings until Japan’s announcement in December 2018 that it would end Antarctic whaling.     

Winding Back Australian Women's Rights: Conventions,Contradictions and Conflicts

Since 1996, Australia's Coalition government has been involved in winding back women's rights. It has diluted the role of the Sex Discrimination Commissioner, attempted to weaken the Sex Discrimination Act to allow for discrimination on the basis of marital status, and has refused to provide Australian women protection through the international realm via the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women. In taking these steps, the government has not only placed rights in conflict against each other but has also been contradictory in its approach. The attempts to wind back women's rights demonstrate the fragility of existing rights protection measures in Australia more generally and suggest the need to consider alternative rights protection mechanisms such as sex equality guarantees in a bill of rights.     

International Human Rights Conventions and Australian Political Debates: Issues Raised by the 'Toonen Case'

In April 1994, the United Nations Human Rights Committee communicated its view to the Australian Government that Tasmanian anti-gay laws were inconsistent with Australia's international human rights obligations. Issues of Australia's human rights protection, treaty accession and Commonwealth-State relations, each of which have traditionally been characterised by major partisan differences, were brought to the fore of political debate. While the HRC decision at first appeared to give the coalition much scope to advance its arguments, subsequent developments highlighted considerable weaknesses in the rhetorical strategies of conservatives, and the difficulty of using the Tasmanian laws as a federalist cause ce le bre. In the long term, ironically, the coalition may well have weakened the efficacy of sovereignty-based arguments in Australian political debate.     

Suit of power: fashion,politics, and hegemonic masculinity in Australia

In 2010 the Australian Labor Party selected Julia Gillard as leader, making her Australia’s first female Prime Minister. Between 2010 and 2015 there was a renewed focus on issues of gender inequality in the way that women politicians have been treated in Parliament and in the media. Specifically, women in positions of political and institutional power such as Julia Gillard, Julie Bishop, and Quentin Bryce, were critiqued on their clothing choices in the Australian media. In this article, I argue that the Australian media’s attention to the fashion choices of women in politics is problematically gendered, because it subordinates aesthetic features that do not conform to hegemonic masculinity. I argue that in response to the dominant masculine aesthetic norm in politics, women politicians are using their sartorial choices to challenge this marginalisation of femininity in the political sphere.     

Towards a Democratic Bill of Rights

This paper examines two different bill of rights models for Australia: the Dialogue model and a Democratic model. The Dialogue model aims to protect rights through a bill of rights, strong political review mechanisms, intergovernmental dialogue, and rights-based judicial review. The paper argues that, despite its popularity, there are serious problems with the legitimacy and effectiveness of the Dialogue model and it outlines an alternative model, a ‘democratic bill of rights’, which attempts to avoid these problems by strengthening democratic institutions and political review mechanisms without adopting rights-based judicial review. The paper concludes that a democratic bill of rights is likely to be an effective and more democratically legitimate way of protecting and promoting human rights in Australia.     

Heritage Beyond Borders: Australian Approaches to Extra-National Built Heritage

The rights of the state to protect heritage within its borders, to ratify international conventions and to cooperate in bilateral engagements have been foundational concepts of heritage governance. Extreme circumstances may result in an intervention by non-state parties, but in times of peace it is typically the state that prevails. Drawing from recent efforts (2000s) of the Australian Federal Government to create a ‘List of Overseas Places of Historic Significance to Australia’, this paper explores the complications that can arise from the privileging of state authority in current approaches to heritage. This serves as a point of departure for considering the more widely applicable contradictions, limitations and loopholes of a global approach that favours the ‘state’ and the ramifications this might have for heritage diplomacy.     

The learner: John Howard's system of national security advice

This article uses an explanatory framework suggested by presidential studies scholars, Charles Walcott and Karen Hult (1995; 2004), to document the forces that have shaped the structures of support to decision-makers in the Australian national security policy domain. It traces the continuities in national security advisory arrangements – the ‘deep structures’ of advice and support to Australian prime ministers and their cabinets. The article focuses especially on the variable of prime ministerial choice. It argues that John Howard is the great learner of Australian politics, who in national security, as elsewhere, has demonstrated a formidable ability to capitalise on his inheritance from his predecessors Future Prime Ministers will continue to need effective advisory structures. Howard's legacy will shape these arrangements into the future.     

Slipping through the cracks: museums and social inclusion in Australian cultural policy development 2007–2010

This article explores the actions taken by the Australian Government during the period of 2007–2010 in regard to its proposal to develop a new national cultural policy. Despite its stated commitment to the creation of opportunities for the re-articulation of existing publics and the formation of new ones, the newly elected federal government’s social inclusion and productivity policies did not, at any stage, seek to draw a positive or causal association between museums and social change. This was despite the museum sector’s numerous attempts to communicate its value in precisely these terms to government. It was also despite the precedents for this policy initiative that existed internationally, particularly in the UK. This article explores the actions taken by the Australian Government during the period of 2007–2010, the international context within which these occurred, and the reactions generated by the museum and collections sector in response to the events.     

Australian aid after the ‘Golden Consensus’: from aid policy to development policy?

ABSTRACT

In the decade preceding the election of the Abbott Coalition Government in 2013, a so-called ‘golden consensus’ governed Australian aid policy. During this period Australia’s aid spending increased by over 80% in real terms. However, after winning government the 2013 Federal Election, the Abbott Government made a series of significant and unexpected aid policy decisions, cutting the aid budget three times in fifteen months and integrating AusAID, Australia’s aid agency, into the Department of Foreign Affairs and Trade. This article considers the future role of aid in Australia’s diplomacy primarily by engaging with a prior question: how was it possible for the golden consensus to be uprooted so easily? Conducting a post-mortem reveals that Australia’s development constituency bears some responsibility for the fragility of the consensus. This analysis also reveals the critical role the development constituency will play in determining the extent to which Australia is able to embrace the ‘beyond aid’ agenda. To meet this contemporary challenge, the development community must heed the lessons of the collapse of the golden consensus and, in particular, overcome its reticence to engage in broader foreign policy debates.     

The Greening of the Queensland electorate?

The Greens at the 2004 Queensland State election almost trebled their primary vote from 2001, an increase suggesting the party has already filled the vacuum left by the declining Australian Democrats as the State's principal Left-of-Centre minor party. This article argues, first, that much of this growth in support can be attributed to the substantial interstate migration to the State's southeast, a pattern that has contributed to a partial transformation of Queensland's traditional political culture to one more disposed to Green support. Second, given that this growth is set to continue, it is argued that the Queensland Greens are yet to maximise their vote. This article analyses the 2004 Queensland State election results to determine the impact of Green preferences under the State's Optional Preferential Voting (OPV) system, and to locate where geographically, and among whom demographically, Green support was strongest. A rudimentary profile of the ‘typical’ Queensland Greens voter is also offered.     

‘Women are a colonised sex’: Elizabeth Reid,Human Rights and International Women’s Year 1975

This article situates Australian Elizabeth Reid’s contribution to International Women’s Year (IWY) (1975) within ongoing historiographical discussions on development and human rights. The world’s first advisor on women’s affairs to a head of government, Reid used the burgeoning Women’s Liberation Movement’s critique of ‘sexism’ to challenge IWY’s goals of formal equality, a limited and undesirable outcomes that prevented women and men from instead becoming ‘more human’. These ideas were then used to challenge the dominance of economic development over individual and collective rights at the 1975 Mexico City conference, placing Reid as a participant in the 1970s human rights ‘breakthrough’.