Issue 3, 2009

Issue 3, 2009 22009

COURT OF CONSCIENCE

Editor’s Note Welcome to the latest issue of Court of Conscience. Court of Conscience aims to reaffirm the law’s prime function of establishing productive engagement with, and contribution to, solutions for social issues that challenge us. This issue features the prominent debates of whether Australia needs a Human Rights Act and whether non-state actors are accountable under international law. Contributors to the magazine include the Social Justice Committee, industry experts and academics: Edward Santow – Director of the Charter of Human Rights Project, Gilbert an Tobin Centre of Public Law; Justice Nolan; -Deputy Director of the Australian Human Rights Centre; George Williams – Foundation Director of the Gilbert and Tobin Centre of Public Law. I’d like to thank the Social Justice Officers – Mina Aresh and Rachel Smith for all their hardwork and efforts. I hope you enjoy this edition of Court of Conscience. Alpana Modi

Aliquam dolor.

Australian Bill of Rights George Williams Human Rights Act Edward Santow The applicability of human rights standards to non-state actors Justine Nolan Commonwealth Reforms on Same Sex Couples Angela Small A Culture of Life: The Death Penalty Kim Thanh Nguyen

Intellectual Property Law: The Indigenous Experience Ashley Walker Responsibility to Protect Max Dalton Racism Raihana Wahab Racial Discriminationor or Testamentary Freedom? Rahil Patel

Does Australia

need a

Human Rights Act?

Australia is the only democratic democracy without human rights legislation. Does this mean that the human rights of Australians

are not adequately protected?

Edward Santow – Director of the Charter of Human Rights Project, Gilbert and Tobin Centre of Public

Law and George Williams – Foundation Director of the Gilbert and Tobin Centre of Public Law voice their views on this issue.

Despite the many good things about our democracy, Australian law still routinely permits the mistreatment of people in ways that are unjust and infringe the dignity, respect and freedom to which all human beings are entitled. We should aspire to do better. A large part of the problem lies in how human rights in Australia are uniquely dependent on the wisdom and good sense of our elected representatives. This can be an especially frail shield when any one party controls both houses of the federal or any other parliament. Without a charter of rights, freedoms can be ignored or taken away too easily. As Australians we like to assume that we have our rights, but as a matter of law we do so for only so long as they have not been taken away. While the legal system has many checks and balances to temper public power, we have no law that ensures respect for our basic freedoms. One example of the problem from recent years is how Australia locked up children in conditions that caused many of them to become mentally ill. It seems unthinkable that this could have occurred, yet it did.

AUSTARLIAN BILL OF RIGHTS George Williams It is long past time that we redressed this and modernised our system of government by introducing an Australia-wide human rights law. We should provide the best possible protection for vulnerable groups like children and the elderly and for important values like freedom of speech. Until recently, no Australian government had achieved a charter of rights. The breakthroughs came in the Australian Capital Territory with the Human Rights Act 2004 and Victoria with its Charter of Human Rights and Responsibilities Act 2006. But is there a need for national reform? After all, there is rightly much to be proud of in our political freedoms and democratic institutions. The problem is that while our system of government generally works well for most Australians there are too many examples of it failing to protect the rights of the most vulnerable and disadvantaged in the community. We possess problems of law and accountability that range from restrictions on freedom of speech under sedition law to the removal of Aboriginal people as part of the Stolen Generations to the treatment of people with mental illness.

Australia is now the only democratic nation in the world without a national charter or bill of rights.

The problem was the law, which said that the detention of people seeking asylum in Australia was mandatory. That law was applied without exception, even to unaccompanied children already suffering trauma. One of these children was five-year-old Shayan, who arrived in Australia in March 2000. Along with other members of his family he was taken to the Woomera detention centre, a facility ringed by desert in South Australia. While in detention, Shayan witnessed hunger strikes and riots, saw authorities responding with tear gas and water cannons, and watched as adult detainees harmed themselves. By December that year, the detention centre’s medical records reveal that Shayan was experiencing nightmares, sleep disturbance, bed wetting and anxiety. He would wake in the night, gripping his chest and saying, ‘They are going to kill us.’ He also drew pictures of fences containing himself and his family. Three times during that year the detention centre managers strongly recommended to the government that Shayan be moved from Woomera. Despite further recommendations and psychological assessments reporting high levels of anxiety and distress, it was several months before he and his family were moved to Villawood detention centre in Sydney. At this time, Shayan was diagnosed with post-traumatic stress disorder. During the next few months he was admitted to hospital eight times for acute trauma and, because he refused to drink, dehydration. He also became more withdrawn.

Medical staff consistently recommended that he should be removed from detention and drew a direct link between Shayan’s trauma and his experiences in detention. However, it was not until August 2001 that the government transferred him into foster care. In doing so, he was separated from his parents and sister until they were released in January 2002. Shayan was one child among many. The statistics make for grim reading. The Human Rights and Equal Opportunity Commission found that the number of children in immigration detention peaked at 1,923 in 2000–01. By the end of 2003, a child placed in detention was kept there for an average of one year, eight months and eleven days. Some children were detained for more than three years. Almost all of the detained children were found to be refugees and so were eventually released into the community. The detention of children like Shayan occurred under an Australian law introduced in 1992 by the Keating government and continued after John Howard became Prime Minister. In other nations, it would have been counter-balanced by law, called a bill of rights, charter of rights or human rights act, setting out and protecting people’s fundamental human rights. In Shayan’s case, this might have included the rights of children and more general rights such as freedom from arbitrary detention. By contrast, the Australian immigration law was unchecked. In fact, when it was challenged in the courts it was held to be legally unobjectionable.

The High Court of Australia ruled on the detention of children in 2004. Held in the Baxter detention centre near Port Augusta in South Australia, four children sought a court order for their release, arguing that the mandatory detention regime in the Migration Act did not apply to children. This was unanimously rejected on the basis that the Act was expressed in clear terms, with no exceptions made for children. According to Chief Justice Murray Gleeson: ‘It is hardly likely that parliament overlooked the fact that some of the persons covered … would be children. Human reproduction, and the existence of families, cannot have escaped notice.’ It was also argued on behalf of the children that the law breached the Australian Constitution. This too was unanimously rejected on the basis that the Constitution does not guarantee their freedom from involuntary detention. Another High Court case that year went further, finding that detention remains lawful even where the conditions are harsh or inhumane. A final High Court decision in 2004 added that the detention could be indefinite. Ahmed Al-Kateb arrived in Australia by boat in December 2000 without a passport or visa. Taken into detention under the Migration Act, he sought refugee status but was refused. In June 2002, Al-Kateb indicated that he wanted to leave Australia for ‘Kuwait, and if you cannot please send me to Gaza’. In August he stated, ‘I wish voluntarily to depart Australia, and ask the minister to remove me from Australia as soon as reasonably practicable.’

Al-Kateb was born in Kuwait in 1976 of parents of Palestinian origin. Simply being born in Kuwait did not confer Kuwaiti citizenship, and the absence of a Palestinian nation left him ‘stateless’. The Commonwealth sought unsuccessfully to remove him to Egypt, Jordan, Kuwait and Syria as well as to Palestinian territories (which required the cooperation of Israel). Faced with this stalemate and no foreseeable end to his detention, Al-Kateb applied to the courts for his release. In nations like the United Kingdom and the United States, judges have found that the law does not permit indefinite detention. But the Australian High Court found by four to three that the Migration Act and the Constitution permit unlimited detention. Al-Kateb could be held in detention until his removal from Australia, which in turn might have lasted until an independent state of Palestine was created. One of the majority judges, Justice Michael McHugh, conceded that Al-Kateb’s situation was ‘tragic’. He also noted that ‘Eminent lawyers who have studied the question firmly believe that the Australian Constitution should contain a Bill of Rights.’

But in the absence of such a law he found that ‘the justice or wisdom of the course taken by the parliament is not examinable in this or any other domestic court’ since ‘it is not for courts … to determine whether the course taken by Parliament is unjust or contrary to basic human rights.’ With these words, McHugh spelt out what it means for Australia not to have a charter or bill of rights. Without such an instrument, there may be no check on laws that violate even the most basic of human rights. Australian law is at odds with the fundamental rights of humankind set down in the Universal Declaration of Human Rights, adopted in 1948 by the General Assembly of the newly formed United Nations. After recognising the ‘inherent dignity and… the equal and inalienable rights of all members of the human family,’ the declaration sets out our basic rights as ‘a common standard of achievement for all peoples and all nations.’ These rights are described in a straightforward way and include that ‘Everyone has the right to life, liberty and security of person’ and that ‘No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment’. Since the Universal Declaration was adopted, other treaties and conventions have set out in more detail the basic rights of all people. The two most important are the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. These entered into force internationally in 1976 and were ratified for Australia by the Fraser government.

When Australia ratified the two international human rights covenants we agreed to make them part of our domestic law. While there has been action in a few areas, such as in regard to privacy and racial discrimination, the covenants have not been enacted in full by the federal parliament. This leaves us in breach of international law. The best way to bring about an Australia charter of rights would be to honour our international commitments by passing an act through the federal Parliament to make the covenants part our of law. No change to the Constitution would be required, and there would thus be no need for a referendum. As an ordinary act of parliament, the charter could be changed over time. An Australian charter of human rights would better protect our freedoms in the law. It would provide valuable insights for government and the community on as to how effective the law can be in protecting human rights. In doing so it will show how any law has its limits, and indeed how the law can, by itself, not fix some of the most intractable problems. This will reveal how any strategy for better human rights protection must also pay close attention to political and other forms of leadership and to community attitudes. Without reinforcement from these quarters, the positive impact of a charter will be blunted.

George Williams is the Anthony Mason Professor and Foundation Director of the Gilbert + Tobin Centre of Public Law at UNSW. This article is developed from his book A Charter of Rights for Australia (UNSW Press, 2007).

AUSTARLIAN BILL OF RIGHTS Edward Santow Australia is a wonderful country, blessed with abundant natural resources and a liberal, stable democracy. Nevertheless, it should be absolutely clear that the laws of this country do not adequately protect human rights. Now is the time for an Australian Human Rights Act.

Some of the most egregious recent cases of human rights violation in Australia are well known. The indefinite detention of asylum seekers such as Ahmed Al-Kateb, the Cornelia Rau affair and so on have been covered extensively by the media. However, there are also numerous, quieter violations of human rights in Australia. To take an example:

A pregnant single mother, with two children, was to be evicted from public housing for no stated reason, with the near certainty of homelessness for herself and her children. Advocates used the Victorian Charter of Human Rights and Responsibilities to persuade her landlord to overturn this cruel and damaging decision.

Australia is now the only liberal democracy in the world that does not have some kind of national human rights statute. There are various countries whose human rights laws would not be suitable for Australia. Almost no-one in Australia suggests, for example, that we should adopt a US-style Bill of Rights.

Instead, Australia should adopt a Human Rights Act that properly responds to the values and principles that underpin our democratic system. The developing consensus favours the adoption of a Human Rights Act modelled on similar legislation in the United Kingdom, New Zealand, Victoria and the Australian Capital Territory. Those legal systems are very similar to Australia’s federal system. More importantly, the operation of those laws shows very clearly that these laws can make a significant difference in enhancing the legal protection of human rights, especially for people who are disadvantaged.

Operation of an Australian Human Rights Act

But how would a Human Rights Act work? The model currently being considered would have four main elements.

First, it would be an ordinary Act of Parliament, not part of the Constitution. This would make an Australian Human Rights Act significantly different from, say, the US Bill of Rights. In particular, in the separation of powers between Parliament, the Executive and the Judiciary, Parliament would remain the ‘first among equals’. This is because it would not allow the courts to invalidate legislation inconsistent with the Human Rights Act, and it would also allow Parliament to amend the Act without having a referendum.

Secondly, a Human Rights Act would require Parliament to consider how each draft law complies with human rights standards. This would not stop Parliament from passing laws that are inconsistent with human rights, as is sometimes necessary to balance competing vital interests, such as the need to combat terrorism. However, it would require MPs openly to consider whether such rights infringements are necessary. For example, the Explanatory Memorandum that preceded the Charter of Human Rights and Responsibilities Act 2006 (Vic) states that this reporting process

“increases transparency in the consideration of human rights in parliamentary procedures” for the development of new legislation.

Thirdly, a Human Rights Act would set out a list of rights deemed to be especially important in Australia.

The Act would oblige all public

authorities to comply with those rights. The term ‘public authority’ refers to public servants, government departments and agencies, and private organisations performing functions on behalf of the government.

Fourthly, a Human Rights Act would direct legislation to be interpreted consistently with the rights set out in the Act itself. To illustrate how this would work, take the leading United Kingdom case of Ghaidan v Godin-Mendoza, which considered the interpretive provision of the Human Rights Act 1998 (UK). In Ghaidan, the House of Lords was asked to interpret a provision of the Rent Act 1977 (UK), which gave the partner of a tenant certain property rights after the tenant dies. The Rent Act provided for the conferral of property rights to the ‘surviving spouse’ of a tenant when the spouse had been living as the tenant’s ‘wife or husband’. The House of Lords (Lord Millett dissenting) held that the term ‘spouse’ extended beyond heterosexual couples, to include homosexual couples.

This interpretation allowed the Rent Act provision to operate consistently with the anti-discrimination principle and the right to private life in the UK’s Human Rights Act.

The final element of this Human Rights Act model deals with the situation where the relevant legislation is irreconcilably inconsistent with a human right or rights.

It considers the kind of situation where, unlike in Ghaidan, the Parliament clearly manifests an intention to discriminate between people on, say, the ground of sexuality. In this situation, the impugned law would continue to operate. The Human Rights Act would not invalidate it. Instead, the Act would provide a mechanism to bring the human rights inconsistency to the attention of Parliament and the Government. The Government then would be required to account publicly for the inconsistency. However, Parliament would decide – at its absolute discretion – whether or not to amend the impugned law.

Responding to criticism of a Human Rights Act

The former NSW Premier Bob Carr recently wrote a piece in the Sydney Morning Herald in which he reiterated his opposition to an Australian Human Rights Act. Nowhere does he suggest how the protection of human rights in Australia should be improved. He seems to imply that the rights enjoyed by the strongest members of our community are shared equally by all.

In the second part of this piece, I would like to respond to three of Mr Carr’s central arguments.

He ignores the fact that Mr McHugh has long advocated a Human Rights Act.

Indeed, Mr McHugh – along with a panel of constitutional experts that included two former High Court judges and a number of senior members of legal practice and academia – stated clearly on 22 April 2009 that there is “no constitutional impediment” to a properly-drafted Human Rights Act.

Secondly, Mr Carr fundamentally misconceives the role of the Australian Human Rights Commission under a Human Rights Act. He suggests that, under a Human Rights Act, the Commission would be given a role “in effectively striking down laws” that are incompatible with rights protected by the Act.

This suggestion is absurd. Under the Human Rights Act model now being considered, where a court finds that a law is irreconcilably inconsistent with a legally-protected right, there will be a mechanism of notifying Parliament of this inconsistency. Parliament would then choose, at its absolute discretion, whether to amend the law, repeal it or simply leave it as it stands. This is exactly what happens now in countries such as the UK.

Crucially, no court would be able to ‘strike down’ laws that are incompatible with human rights. Similarly, no executive body – be it the Human Rights Commission or some other entity – would be able to invalidate legislation for this or any other reason.

For arcane constitutional reasons, it is preferable for an executive body to act as a go-between, simply to communicate the decisions of courts in this area to Parliament.

This preserves the strict separation of powers between Parliament and the Judiciary. This communication role could be performed by any executive body. Indeed, given that it involves very little discretion, the best option might be to give this role to the registry of the court itself.

Thirdly, Mr Carr warns that the particular human rights protected by law can take on a life of their own. He warns that the right to privacy “could stifle media freedom” and “a right to free association [could] wipe out trade unionism”.

The problem with Mr Carr’s examples is that they ignore the experience of comparable jurisdictions that have a Human Rights Act. For example, the UK has much more diverse media ownership and significantly less restrictive defamation laws than Australia, and yet it has a Human Rights Act. In fact, its defamation laws have been relaxed precisely to take account of freedom of expression. It is equally laughable to suggest that the law’s protection of freedom of association in New Zealand (or Victoria or the ACT) has threatened the union movement.

The National Human Rights Consultation, chaired by Father Frank Brennan, is considering whether Australia should adopt a Human Rights Act. Over 35,000 people have made submissions, which makes this the largest public inquiry in Australian history. The vast majority of those submissions recognise that Australia needs to do more to protect human rights. In my view, the most important plank of the human rights reform process would be the passing of an Australian Human Rights Act.

Introduction

Traditionally, considerations of human rights take place in the context of a state-based system of global governance; however, the rise and rise of the corporation as a powerful non-state actor in recent decades has seen increased interest in understanding the emerging relationship between human rights and business and what if any, responsibility business should assume for protecting human rights. This discussion has been led, guided and pushed by non-governmental organisations (NGOs) intent on exposing and closing the accountability gap for corporate initiated human rights abuses. Beginning in the early to mid 1990s, Human Rights First (HRF) began to more publicly engage in the struggle to develop clarity and consistency around human rights standards that might be applicable to companies and develop potential accountability mechanisms to ensure such standards are reflected in their business operations. HRF’s work in teaming up with other groups to found the Fair Labor Association was a crucial step in the development of an innovative collaborative mechanism that involves companies and NGOs working together to protect workers’ rights. More recently, HRF has been working with a diverse group of stakeholders that includes NGOs and U.S. based technology companies such as Yahoo! Inc, Google Inc. and Microsoft Corporation to limit and ‘regulate’ corporate involvement in internet censorship activities in China.

Picture extracted from HRF.

Justine Nolan lectures in international human rights law at the University of NSW and is the Deputy Director of the Australian Human Rights Centre. She worked with Human Rights First from 1998-2003. Michael Posner is the President of Human Rights First (HRF). As the Executive Director of HRF he helped the organization earn a reputation for leadership in the areas of refugee protection, advancing a rights-based approach to national security, challenging crimes against humanity, and combating discrimination.

THE APPLICABILITY OF HUMAN RIGHTS STANDARDS TO NON-STATE ACTORS

A New Frontier In Human Rights Protection: Human Rights, NGOs And Business

Justine Nolan and Michael Posner

Human rights and business – an accountability gap

Instruments of public international law which enunciate human rights obligations are primarily directed towards states. It is commonly said that the main multilateral human rights instruments contain legal obligations only for states, and cannot be interpreted as implying human rights obligations for non-state actors. In the 60 years since the drafting of the Universal Declaration of Human Rights (UDHR) international human rights law has continued to emphasise the primary responsibility of states to protect human rights while remaining at least partially blind to the opportunity to speak more directly to powerful non-state actors such as corporations. An alternative interpretation is that international human rights law establishes minimum standards for the treatment of all human beings, derived from the inherent dignity of the human person, which are to be adhered to by all – governments, individuals and all other entities in society, including corporations. International human rights law contains standards that all elements of society are obliged to observe, but the capacity to enforce those standards will differ according to the character of the obligation-holder. While public international law has developed mechanisms for the enforcement of human rights obligations against states, it has been left to states to develop their own enforcement mechanisms as far as non-state actors, including individuals and corporations, are concerned and the realities of the multijurisdictional nature of multinational companies means that in many cases, there is an accountability gap for protecting human rights from corporate abuse.

The influence of business on the economic and political environments has, in most countries, increased greatly in recent decades and so too have ‘soft law’ mechanisms, aimed at ‘regulating’ the impact of business on human rights in the form of codes of conduct, international guidelines and other devices. The emergence of the United Nations Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights in 2003 sparked intense debate about how responsibility for human rights might be apportioned between state and non state actors. With many states unwilling or unable to assume the mantle of responsibility for protecting rights from corporate abuse, NGOs in particular have been asking long and hard, whether some, any or all of such responsibility should fall to business?

WORKERS RIGHTS IN THE APPAREL AND FOOTWEAR INDUSTRY

In the mid 1990s increased NGO and media attention focusing on the ‘sweatshop’ conditions in which consumer goods, bound primarily for the U.S and European markets, were being produced led to a rash of initiatives aimed at curbing abuses of workers’ rights around the globe. The argument was advanced that in the rush to find cheaper and quicker ways to produce shoes, apparel, and other labour-intensive goods for the global marketplace, multinational corporations were moving much of their manufacturing to countries where basic legal protections for workers were non-existent and union organizing is prohibited or discouraged. Substandard working conditions ranging from inadequate wages to inhumane hours to life-threatening hazards in the workplace were exposed and companies such as Nike, Levis and the

Gap were forced to defend their supply chain practices. Workers are largely unprotected from these abuses by either their own governments or the international system. Though the International Labour Organization has articulated labour rights standards for nearly 90 years, these assume that national governments will enforce them. Unfortunately, many governments lack the capacity and often the will to do so.

Human Rights First’s own commitment to pursue labour rights as human rights was a response to these developments. In 1996 HRF joined with a unique new coalition of apparel and footwear companies, human rights, labour rights, and consumer advocates to draft a blueprint for the new, non-profit Fair Labor Association (FLA). The challenge was and is to create accountability—independent, transparent, and enforceable mechanisms for ensuring that human rights standards protect ordinary people. Officially incorporated in May 1999, the non-profit organization continues to be a collaboration of companies, NGOs, and colleges and universities. It engages in review and monitoring to assess whether companies are in compliance with FLA standards and requirements and reports the results of independent external monitoring and issues annual reports on participating companies and college and university licensees as part of its commitment to transparency. The challenge to protect workers’ rights from corporate abuse is ongoing and multifaceted but this NGO led initiative has provided greater transparency in supply chain production of those companies who have taken up the challenge to protect human rights.

INTERNET CENSORSHIP: CORPORATE COLLUSION IN VIOLATING HUMAN RIGHTS

In February 2006 a very contemporary human rights dilemma rose to the forefront when companies such as Yahoo, Google and Microsoft, were called to a United States congressional hearing and subjected to a very public grilling about their cooperation with the Chinese government in censoring Internet content. In mid 2002 Yahoo signed China’s ‘Public Pledge on Self-discipline for the Chinese Internet Industry’ (sponsored by the government affiliated Internet Society of China) which required Yahoo to “refrain from producing, posting or disseminating harmful information that may jeopardize state security and disrupt social stability, contravene laws and regulations and spread superstition and obscenity” and that it “monitor the information publicized by users on websites according to law and remove the harmful information promptly”. The combination of vague instructions and associated harsh penalties often results in companies censoring even more aggressively than does the Chinese government. Most recently, Yahoo has attracted intense criticism after it was revealed it played a role in identifying Chinese journalist Shi Tao to the government. Shi had forwarded an email to an overseas human rights group in which the government had ordered journalists not to cover the 15th anniversary of the 1989 suppression of protestors in Tiananmen Square. Chinese authorities were able to trace the email back to Shi with the assistance of Yahoo! Holdings (Hong Kong), which provided account holder information to the Chinese Government. In April 2005 Shi received a ten-year prison term for attempting to exercise his right to freedom of

expression. Google and Microsoft have also come under criticism for their role in censoring internet content and initially at least, providing limited transparency to users about such censorship. Questions have arisen as to who should or can assume the responsibility for protecting human rights such as freedom of expression and privacy that are placed in jeopardy by such censorship?

For the last 18 months, these companies along with human-rights groups including HRF, academics and socially responsible investors have been working to develop a code of conduct for operating in countries that limit free expression and individual privacy. The process of drafting such a code and a governance framework to regulate adherence to the code in a multistakeholder environment is complex, but not revolutionary. As the working group continues the process to develop its ‘Global Principles on Freedom of Expression and Privacy’, its credibility and integrity will be affected by two main factors: the substantive content of the code itself and the implementation process for ensuring corporate adherence to the code including the degree of transparency of that process. While governments continue to have the primary obligation to protect human rights the ‘supplementary responsibility’ of technology companies to ensure they are not complicit in the abuse of such rights remains.

The strength of the Principles will be impacted by such issues as the extent to which participating companies are required to ensure their subsidiaries, business partners and participants in their supply chain adhere to the principles? How will the code be monitored? How will the monitors be paid? How frequently will they monitor adherence to the principles and how will the monitored activities be chosen – by the corporation or by an independent group? These are all questions other industries, such as the apparel industry before it, have grappled with, with a mixed degree of success. The focus on technology companies and their role in protecting human rights is but the latest frontier for action being pursued by NGOs such as HRF.

Conclusion

The drive by NGOs, such as HRF, to apply human rights protection principles to business has contributed to the growing ‘corporate responsibility’ movement that asks corporations to operate in a manner that takes into account the human rights of all those they encounter.

While the proliferation of codes of conduct and innovate litigious techniques applied by NGOs in the last two decades has meant that hundreds of companies have now publicly committed to upholding basic human rights, the challenge is to ensure the standards espoused in codes or guidelines adopted by business are consistent, comprehensive and implemented.

In 2008, Hallmark released a new line of Same-Sex wedding cards in response to “consumer demand.”

Now Angela Small writes in hope that Kevin Rudd responds to his citizens.

In 2008, Hallmark released a new line of Same-Sex wedding cards in response to “consumer demand.”

Now Angela Small writes in hope that Kevin Rudd responds to his citizens.

Currently, s 5 of the Marriage Act 1961 defines marriage as the union of a man and a woman to the exclusion of all others, effectively banning gay marriage. Tasmania, Victoria, and the Australian Capital Territory, all allow a form of civil union, giving gay couples similar rights to married couples. The Rudd Government's recent Same-Sex Relationships Act 2008 amended 84 discriminatory laws including social security, Medicare, family law and child support. The Government says that it is committed to ending all other discrimination on the grounds of sexuality, yet recently reaffirmed its anti-gay marriage stance at the Labor Party conference in Sydney. The Greens have proposed a bill to amend the Marriage Act to allow gay marriage. The bill is currently being considered by the Senate Legal and Constitutional Affairs Committee.

Angela Small

Is a 24-year-old

graduate law

student at UNSW.

She has been with her

girlfriend for two and a

half years and they are getting

married (in all but the legal sense)

in October in the Hunter Valley.

Dear Mr Rudd, Firstly, let me just say that I am, by and large, a supporter of yours. I was particularly proud to have voted for your party in the 2007 election when you apologised to Aboriginal Australians for the many atrocities they have been subjected to over the past 200 years. Many people criticised your apology as being merely symbolic and lacking any substance, but I believe that symbols are important. Why not make another symbolic gesture and remove the so called ‘ban’ on gay marriage. Really, Mr Rudd, if you think about it, you’ve already done the hard work. With the recent changes made by Same-Sex Relationships Act, you have, to your own admission, removed the discrimination from Commonwealth legislation. To be fair, it’s not as if I haven’t made any sacrifices on the path toward equality. I can no longer receive Youth Allowance while studying law because my partner’s income exceeds the very low threshold. But I haven’t complained, Mr Rudd, because equality involves such sacrifices. However, by the same token, you can’t have almost equality. Equality doesn’t lie on a continuum. It’s an all or nothing kind of thing, and if you’re stopping short of the right to marry, then that is what I would call nothing. It’s not as if it would be an unpopular decision, (and I know you value popularity). Sixty per cent of Australians support gay marriage. I know you like supporting minority groups, but this is just taking it too far. Don’t you see Mr Rudd, this isn’t just about me. Although I would love for my upcoming wedding in October to carry all possible legal weight, this is bigger than me. This is about a teenager growing up in a small town, with small-minded people, who thinks they might be gay. This is about the suicide rate for young queer people being eight times higher then their heterosexual peers. This is about the symbol.

The symbol says homosexual love is not as valued as heterosexual love. The symbol says homosexuals are promiscuous. The symbol says gay people don’t deserve the same rights as straight people. The symbol says that Australia is a backward nation. The symbol says your personal opinion should shape the will of our nation.

Yours Sincerely, Angela Small

P.S. Malcom, if you’re reading this, I would happily switch teams for you (in the political sense obviously) if you were to support gay marriage. Really, at this point, what have you got to lose?

A Culture

of Life Kim Thanh Nguyen

Capital punishment is the process in which the criminal justice system terminates the life of a guilty party. Though the world is moving towards an abolitionist approach accentuated in the United Nations resolutions and the Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty, capital punishment is still in practice.

Countries which still have the death penalty cite reasons of deterrence, retribution, obtaining justice, closure for the victim and oddly, “rehabilitation”. Of course, the death penalty does not rehabilitate the guilty party and return them back to society, but this argument rests on Thomas Aquinas’ theory that the guilty party could escape punishment in the afterlife.1

As empirical evidence has failed to provide scientific proof that executions have a greater deterrent effect than life imprisonment, then why is it still implemented?

Religious beliefs can also influence whether a country enforces the death penalty. Iran practices a system of religious law which is a strict interpretation of Sharia law where two main kinds of crimes are punishable by death.

A Culture

of Life Kim Thanh Nguyen

The first is murder and the second fasad, meaning to spread mischief or undermine the authority of the state. Though fasad has been predominantly used to punish rapists, adulterers and drug mules; parliament has introduced a bill to punish bloggers that encourage corruption, prostitution or conversion from Islam2.

In addition, in Iran capital punishment is applicable to homosexual behaviour even if the acts were consensual. Consequently if a rape occurred between two people of the same sex will often go unreported as the death penalty applies to both parties. Hence, there is an issue of miscarriage of justice as the offender gets away with the crime.

Countries with the death penalty will also argue that they have the right to state sovereignty which is enshrined in the UN Charter; "Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state."3 It is no wonder countries for example Malaysia is concerned with attempts by more powerful member states who question the national laws of the country and the administration of justice under these laws.4 Thus there is a clear tension between having to respect local laws, customs and sovereign rights reaffirmed in the United Nations Charter and protecting in the sanctity of life.

The international community has taken important steps to protect those headed toward the death penalty. The safeguards guaranteeing protection of the rights of those facing the death penalty, paying special attention to the imposition of the death penalty on persons younger

than 18 years of age at the time of the offence, is particularly important as minors might not have the mental capacity to fully comprehend their actions and they are likely to rehabilitate.

These safeguards do not condone the death penalty but recognises that all countries are not going to abolish the death penalty and ensures something is done to respect human rights particularly for the vulnerable.

Problems start to arise as not all countries are transparent in reporting their capital punishment practices. More unsettling, is when the reports do come out about the thirteen year old girl from Somalia who “allowed herself” to be gang raped and was stoned to death in a stadium of a thousand people5. Or how in April of this year in Sudan, judicial authority allowed the execution of nine people who were innocent and whose guilty pleas were obtained under torture. Wrongful executions are a serious miscarriage of justice. It is suggested that police have high pressure to clear the books and in turn use their discretion to provide falsified evidence. This is particularly problematical in weak or corrupt countries. Sadly it appears that these practices of unfair trials and cruel executions disproportionately affect the poor, least educated and most vulnerable members of society.

Western countries are also not immune to flaws in the justice system. The United States believes that valuable safeguards are implemented for example, if the punishment was disproportionate to the severity of the underlying offence, it could be challenged under the 8th Amendment of the Constitution as being cruel and

people, without appearing to be prying in the Nation’s internal affairs. Again there is a clear tension as the Australian government cannot protest about individual executions of say, Indonesian citizens in Indonesia10. However, as a neighbour it can work quietly in encouraging the application of the rule of law and human rights.

To conclude, I echo Cameron Murphy’s view that “Capital punishment is not a cultural difference... It is not a right that applies to some human beings but not others simply because of their race, where they happen to live or what crime they have committed.” Life is universal and should be respected regardless of cultural norms or religious authority. When States take a life of a human being, it contributes to a societal culture of violence. After all, how can a culture of life be built when it is bound by the paradox of ‘righting a wrong’ by taking another life?

unusual punishment. The United States believes that the death penalty is not a cruel and unusual punishment if it is applied non-arbitrarily and non- discriminatorily, yet racial discrimination blatantly plagues the system. In 2001 a Justice Department report found 75 percent involved minority defendants.6 Of this 75 percent, over half were black.7 In addition, geographical discrimination exists where the district (either retentionist or abolitionist) in which the trial takes place directly affects the trial’s outcome. In addition, most Americans on death row are financially disadvantaged and use public defenders who are arguably less experienced in capital punishment cases.8 In saying that, what are the Australian government’s obligations to those facing the death penalty overseas? The Australian government has made it clear that they oppose the death penalty and will provide diplomatic representation to those

[1]http://www.bbc.co.uk/ethics/capitalpunishment/for_3.shtml [2]www.bbc.co.uk/religion/religions/islam/islamethics/capitalpunishment.shtml [3]http://www.globalpolicy.org/component/content/article/154/26073.html [4]http://www.un.int/malaysia/Recent%20Statement/GA_main.htm [5]www.amnesty.org/en/formedia/press-releases/somalia-girl-was-child-13-20081031 [6]http://www.deathpenaltyinfo.org/race- and-death-penalty [7] "Pervasive Disparities Found in the Federal Death Penalty, "New York Times, Sept. 11, 2000 [8]http://www.wcl.american.edu/hrbrief/spring98/html/death.html [9]http://www.canberratimes.com.au/news/opinion/editorial/general/apathy-is-not-an-option/1350903.aspx [10] Ibid.

The Racial Discrimination Act aims to ensure that Australians of all backgrounds are treated equally and have the same

opportunities. Does this mean that the discrimination based on race in Australian is adequately protected?

Views on Racial Discrimination

Racial Discrimination or Testamentary Freedom?

Rahil Patel

“The soul of the dying Testator beats against the barriers of the law, which appear to him to confine within such narrow limits the power which he thinks ought to be his, over the property which he fondly believes is his”1

Consider the situation of a Jewish testator both with an intention to maintain his property within his family line, and at the same time ensuring that his property is not disposed to a Gentile. Unimaginable that when he passed away his family might subvert his intent, he inserts an express condition requiring his daughter to marry a person “of Jewish race”2 on condition precedent. Yet, even with the strict principles surrounding testamentary freedom, in Re Tarnpolsk Danckwerts J held that the words “of Jewish race” were void for uncertainty, being “impossible for a possible candidate to show with reasonable certainty that he satisfies the test which the testator has attempted to lay down.”3 It is clear that while the doctrine of uncertainty underpinned this decision, the “unruly horse”4 of public policy played a large part in the fabric of the decision. On one hand, the private disposition of property by an interest-holder should be free to dispose their property as they see fit; in contrast, it is an imperative role of

the courts to provide not only “equality before the law”, but the redress of unequal treatment of one citizen to another. Finding the correct balance between the two is indeed a difficult task. The introduction of legislation in Australia, most notably the Racial Discrimination Act 1975 (Cth) and the Anti-Discrimination Act 1977 (NSW), provides for a statutory framework in which to operate, but with explicit exemptions in the areas of charitable benefits5 and a resilient common law, Questions of how far racist conditions on private dispositions of property should extend continue to plague the system. The first point of departure is that racist conditions have their roots in the beliefs and conscience of an individual. Due to the guiding role the judiciary has on the transformation of minds in society, it is argued that a move away from a strict freedom of property disposition will be adopted in the future. Even within the private sphere and acknowledged by the growing number of “widely accepted treaties and statutes”6 since the 1950’s, “nothing could be more calculated to create or deepen divisions between existing religious”7 or racial groups than the sanction of property disposition which would permit racist conditions. The judicial arm – being “an active agent in the promotion of the public weal”8 - has a moral duty to eliminate the tacit enforcement of racist conditions. Racist Conditions and Uncertainty While there is an obvious disfavour towards racist conditions within the current judiciary (and no doubt, society), this has not persuaded the

courts to openly resolve the conflict in terms of public policy. Under the veil of ‘uncertainty’, conditions that impose a distinction on “race,” “religion‟ and “faith‟ have often required “the greatest precision and in the clearest language the events in which the forfeiture of the interest given to the beneficiary is to take place.”9 In Kay v South Eastern Sydney Area Health Service,10 the words “young White Australia Couple” were determined void for uncertainty.11 Determining whether someone was firstly “white” and secondly, “Australian” is ultimately a matter of degree and since the testator did not indicate as to what degree of “race” was required, the testator did not, “from beginning, precisely and distinctly,”12 provide adequate certainty. The uncertainty found in Kay surrounding the words “White Australian” demonstrates the courts adoption of a “subtle and…artificial”13 distinction between certainty of expression and certainty of operation.14 As used, the words “clearly express a definite requirement that the testator had in mind.”15 Yet in operation, the NSW Supreme Court has construed the words to be ambiguous. While “race” has been defined to include, “colour, nationality, descent and ethnic, ethno-religious or national origin,”16 the concept of “race” is arguably very artificial and inevitably a product of social construct. As Young CJ demonstrated, “does it mean Australian by birth or a person who since has obtained Australian nationality?”17 Does it require pure Australian blood or is it based on skin colour alone? Is there in fact a practical means of ascertaining if one is of pure Australian blood at all?

These questions attack the heart of racial discrimination, for inevitably racism is a state of conscience plagued with “unadulterated vanity, malice, or spite.”18 Racist Conditions and Public Policy “[A] testator may impose any condition that his whim and caprice may dictate, however unreasonable, unless it be contrary to the law or public policy.”19 A useful framework that should be looked at in assessing the extent of racist conditions in private property disposition is that offered by the Canadian judiciary. In Pepsi-Cola the Supreme Court of Canada noted that “the common law does not exist in a vacuum,” but “reflects the experience of the past, the reality of modern social concerns and a sensitivity to the future.”20 These “sensitivities” have been replicated in “widely accepted treaties and statutes,” which for Canadian jurisprudence has “point[ed] the direction in which such conceptions, as applied by the courts, ought to move.”21

The Canadian Charter of Rights and Freedoms has had a significant impact on the judiciary in respect to testamentary freedoms and conditions. In the pre-Charter era, Canadian judges “consistently refused”22 to endorse the doctrine of public policy to void racist conditions. Echoing the views of Windeyer J, public policy was “a vague and unsatisfactory term and calculated to lead to uncertainty and error when applied to the decision of legal rights.”23 However, highlighting the changed legal (and social) environment since the introduction of the Charter, the decision of Fox v Fox Estate24 confirmed within the private sphere: “[i]t is now settled that it is against public policy to discriminate on grounds of race or religion.”25 The seminal case of Canada Trust Co v Ontario Human Rights Commission26

established and weighed the competing dispositional interests and laid the foundations for Fox. Here, a public trust was designed to provide educational funds for needy, white, British, Protestant students, with repeated references to both the superiority of the white and Protestant classes. Justice Robins specifically acknowledged that the “freedom of an owner of property to dispose of his or her property as he or she chooses is an important social interest.”27 Whether inter vivos or within a will, the free-movement of interests by an interest-holder is a vital element of common law. However, the Judge continued: “The concept that any one race or any one religion is intrinsically better than any other is patently at variance with the democratic principles governing our pluralistic society in which equality [of] rights are constitutionally guaranteed and in which the multicultural heritage of Canadians is to be preserved and enhanced.”28

With an emphasis on the principles enunciated in the Charter, Human Rights Code and a democratic pluralistic society, and in light of both Canada Trust and Fox, the Canadian judiciary has developed the doctrine of public policy extensively. No longer is it adequate for a racist condition to hide behind the banner of „testamentary or depositional freedom. As per Justice Galligan’s judgement, it is no longer an option for will-makers to insert discriminatory clauses, even within the private sphere.29 Racist conditions and testamentary freedom must yield to public policy. Pausing here for a moment, it is interesting to consider the converse arguments that can be placed in favour of strict testamentary freedom – and consequentially, a tacit approval of racist conditions: firstly, testamentary freedoms is derived from an era of “rugged individualism”30 and has been labelled the “corner-stone”31 of the common law, precisely because it is “the freedom to choose [the] beneficiary and to set the conditions for the benefaction.”32 While the disposing interest-holder may “proceed more often from spite than from benevolence,”33 the intended recipient is under no legal compulsion to convert, practice or accept the racist condition. The donee always has a choice as to either accepting the gift with the conditions or to disclaim and maintain complete freedom of restrictions. It has also been argued that it is a logical extension of an owners freedom to deal with his or her property while alive, and any restriction on that right would blunt the advantages of dispositional freedom: namely, the promotion of the accumulation of wealth, and self-reliance in their children who are not guaranteed an inheritance.34

Notwithstanding these arguments, the influence of public policy within the private disposition of property can be argued as the primary “channel through which constitutional values flow into private law.”35 The “private/public divide is already an illusory concept; for example, one has to only look at private contractual arrangements that are capable of being void on public policy grounds if its terms are deemed detrimental to society or ‘contra bonos mores’ – a doctrine which already extends to contracts involving racial discrimination.36 Further, judicial enforcement of racist conditions, as an agency of the state, is in fact a public act of constitutionally prohibited discrimination.37 As Judge Edgerton stated in relation to racist covenants in America, “since the injunctions are based on covenants alone and the covenants are based on colour alone, ultimately the injunctions are based on colour alone.”38 The court must consider that enforcement of one racist condition will often mean the enforcement of all like conditions. Inevitably this “will have a tendency to produce injury to the public interest or good of the common weal.”39 It is time to resolve this conflict by openly acknowledging that the doctrine of public policy should, and indeed, must be used to override racial discrimination in testamentary dispositions. Australia’s Future Direction In a legal environment where there is a distinct sparsity of cases related to racist conditions within the private disposition of property, Australian jurisprudence is in a state of formative development. While the substantive equality provisions provided for within the Racial Discrimination Act 1975 and the Anti-Discrimination Act 1977,

specifically ss 9(1A)(b), (2) & 12 (1)(b), (2) and ss 7 & 20 respectively, provide for an operational framework, it is clear that large gaps still exist in which racist conditions can operate. For example, both s 8(2) RDA and s 55 A-DA specifically exempts charitable gifts. In Kay, for example, where the deceased bequeathed $10, 000 to a children’s hospital “for the treatment of White babies” the Supreme Court upheld the condition on the basis it was not affected by either act.40 Further, to „bribe‟ one who receives a gift is also within the prerogative accorded to testators, with the common law recognising both the condition precedent and condition subsequent. While little regard has been given in the past to the unreasonable, absurd or spiteful motivations of the testator generally, there is a strong argument that alongside the repeated references to “persons”41 within the RDA, the private-sphere is now no longer exempt from public policy considerations. The inherently discriminatory nature of racist conditions abuses not only racial harmony, but more importantly the core value of equality, which brings it firmly within the realm of public policy. Racist conditions are grounded in the belief that a class of people should be treated inferior because of their race, and while it can be seen as irrelevant whether the disposition of property occurs because of a propagation of their belief or simply a perpetuation of individual prejudices, the outcome is equivalent in each case: that is, the beneficiary is required to act in accordance with the conscience of another. While it may be conceded that a ‘choice’ often does exist either to accept or disclaim, this prompts the riposte that it is simply bad public policy to accept discrimination in any form.

[1] Sir Arthur Hobhouse, The Dead Hand: Address on the Subject of Endowments and Settlements of Property (1880) 16. [2] Re Tarnpolsk. Barclays Bank Ltd v Hyer [1958] 3 All ER 479. [3] Re Tarnpolsk. Barclays Bank Ltd v Hyer [1958] 3 All ER 479. [4] Trustees of Church Property of the Diocese of Newcastle v Ebbeck (1960) 104 CLR 394, 415 (Windeyer J). [5] Racial Discrimination Act 1975 (Cth) s 8(2)(a). [6] Blathwayt v Baron Cawley [1976] AC 397, 426 (Lord Wilberforce). [7] Re Drummond Wren [1945] 4 DLR 647, 678 (Mackay J). [8] Re Drummond Wren [1945] 4 DLR 647, 679 (Mackay J). [9] Clayton v Ramsden [1943] AC 320, 332 („Clayton‟) (Lord Romer). [10] [2003] NSWSC 292 („Kay‟). [11] Kay [2003] NSWSC 292, 34. [12] Clavering v Ellison (1859) 11 ER 282, 289 (Lord Cranworth). [13] N D M Parry, „Uncertainty and Conditional Gifts‟ (1982) 126 The Solicitors’ Journal 518., 518. [14] Clayton [1943] AC 320, 334 (Lord Romer); 329 (Lord Russell). [15] Trustees of Church Property of the Diocese of Newcastle v Ebbeck (1960) 104 CLR 394, 411 (Windeyer J). [16] Anti-Discrimination Act 1977 (NSW) s 4(1). [17] Kay [2003] NSWSC 292, 34. [18] Sheena Grattan and Heather Conway, „Testamentary Conditions in Restraint of Religion in the 21st Century: An Anglo-Canadian Perspective‟ (2005) 50 McGill Law Journal 512, 516. [19] „Conditions on Testamentary Gifts as a Device of Control‟ Note (1936) 36 Columbia Law Review 439, 439. [20] Pepsi-Cola Beverages (West) Ltd v Retail, Wholesale and Department Store Union, Local 558 [2002] 1 SCR 156 („Pepsi-Cola‟), 167. [21] Blathwayt v Baron Cawley [1976] AC 397, 426 (Lord Wilberforce). [22] Grattan and Conway, above n 21, 526. [23] Trustees of Church Property of the Diocese of Newcastle v Ebbeck (1960) 104 CLR 394, 415 (Windeyer J). [27] Canada Trust (1990) 74 OR (2d) 481, 495. [24] (1996) 28 OR (3d) 496 („Fox‟). [25] Fox (1996) 28 OR (3d) 496, 502.

[26] (1990) 74 OR (2d) 481 („Canada Trust‟). [27] Canada Trust (1990) 74 OR (2d) 481, 495. [28] Canada Trust (1990) 74 OR (2d) 481, 495. [29] Fox (1996) 28 OR (3d) 496, 502. [30] E H Carr, What is History? (2nd ed, 2001) 28. [31] Philip Hoser, „Family Provision for Non-spouse Dependants‟ (1984) 14 Family Law 171, 171. [32] Lorraine E Weinrib and Ernest J Weinrib, „Constitutional Values and Private Law in Canada‟ in Daniel Friedmann and Dahpne Barak-Erez (eds), Human Rights in Private Law (2001), 68. [33] Jeffrey G Sherman, „Posthumous Meddling: An Instrumentalist Theory of Testamentary Restraints on Conjugal and Religious Choices‟ (1999) University of Illinois Law Review 1273, 1276. [34] Adam J Hirsch and William K S Wang, „A Qualitative Theory of the Dead Hand‟ (1992) 68 Indiana Law Journal 1, 2. [35] Justice Aharon Barak, „Constitutional Human Rights and Private Law‟ (1996) 3 Review of Constitutional Studies 218, 237. [36] Nagle v Feilden [1966] 1 All ER 689. [37] „Current Legal Attacks on Racial Restrictive Covenants‟ Note (1947) 15 University of Chicago Law Reivew 193, 202. [38] Ibid 199. [39] Re Neeld, Carpenter v Inigo-Jones [1962] Ch 643, 680 (Upjohn LJ). [40] [2003] NSWSC 292, 17. [41] Racial Discrimination Act 1975 (Cth) ss 9, 12, 13.

“Racism. I know what you are thinking.

Not again. It is a topic that is a useful conversation starter, an easy prey for ill mannered jokes and a favorite for debaters. Why, the most popular girl at my school was the one who could put on several accents and ridiculed different races, not unlike famous standup comedian Russell Peters. However, why is it that such a widely addressed issue remains unresolved? Racism is the belief that the culture and practices of a race or group of people is superior to that of others. Racist acts and thoughts demean individuals or groups by disempowering them. While there are, in extreme situations, psychological reasons for racism, not many of us can say that we suffer from xenophobia. Over the course of history, though fortunately few, there have been overt displays of racism that have significantly affected our experiences of racism now. The holocaust has created a world that is more tolerant of Jews for the hardship suffered by their ancestors while the world wars have created an integrating Japanese community which contributes tremendously to the global economy.

As much as Australia prides itself in being a multicultural society, one fact remains true: racism is a problem. Phrases such as “wogs” referring to Lebanese people and “fobs” or “curry” to indicate Indians are not uncommon. While you can say it is slang, it is a cause for division and disrupts the fabric of society.

It appears that multiculturalism has become a pride forced upon Australians than one embraced and desired in a futuristic approach.

Above all, it is an attack upon fundamental Australian values and the idea of a “fair- go”.

Within my first few weeks in Australia, I had my first experience of being a victim of a racist attack. Not only was I insulted and told to “go back to where you came from”, the attack persisted every morning on my way to school. What happened to freedom of expression and liberty? Should our already limited protection of human rights in the constitution be further limited by our intolerance for devout civilians to express themselves through their beliefs?

Instead, we will turn our focus onto the legal community. It may be obvious to some that the most influential high court judge’s bench is occupied primarily by aged white males. Although it could be reasoned that these judge’s are indeed qualified and possess the qualities most valued in the profession, it is also indicative of an underlying preference for people who fit this unofficial criteria to sit on the bench.

Regardless, Obama’s inauguration remains the most widely watched show, standing at 37.8 million viewers. This may seem to suggest that the many people are for change and transformation. Again, why is it that such a simple issue remains a huge problem to date?The answer would lie simply in the fact that change takes effort. An effort many aren’t willing to take and when they do, it is merely a small step forward. This small step is negligible in comparison to the people’s mentality which remains backward. Let’s stop acknowledging; or worse, denying; the existence of racism in our world. Let’s start with the man in the mirror and change in a holistic effort to make this world a better place.

Thoughts of racism ...

Raihana Wainrab

”

If humanitarian intervention is,

indeed, an unacceptable

assault on sovereignty, how

should we respond... to gross

and systematic violations of

human rights that offend every

precept of our common

humanity?

Kofi Annan, 1999 In order to maintain peace and security in the anarchic international community, an international rule of law is essential, whereby any actor within the international order can be held accountable for their actions. Intrinsic to this notion is the altruistic advocacy of ‘humanitarian intervention’, which is ostensibly utilised to protect the basic human rights of citizens in nation-states where the state itself is unable or unwilling to protect those rights. The Responsibility To Protect (‘R2P’) report addresses the emerging norm of humanitarian necessity in the ‘new world order’, and sets out practical guidelines for

for the implementation of a program of humanitarian intervention by the United Nations.1 However R2P is far from being seriously implemented, as the tensions between the notion of an international rule of law and politics have seen the realist policies of states stymie any substantial attempts to enforce it. This essay argues that the internationally upheld norm of the equality of political sovereignty directly prohibits any form of un-requested humanitarian intervention, and thus renders it illegitimate under current international law. The practicality of R2P relies on the strict adherence to a legally codified set of rules overseen by the UN, so as to curtail the exploitation or misuse of humanitarian intervention by other international organisations. Despite for the obvious protection of individuals in need, traditional conceptions of sovereignty must yield to a new norm of legally valid multilateral humanitarian intervention, as this is the essential ingredient to attaining an effective international rule of law. A legitimate program of humanitarian intervention would require a paradigmatic

And the world just walks on by… Max G. Dalton investigates our Responsibility to Protect

paradigmatic shift in the sovereignty norm. Hedley Bull contests that international society is comprised of five “institutions” which legitimise the existence of the order that defines international society.2 He argues that these institutions - war, the balance of power, the great powers, diplomacy, and international law - are not static, but rather evolve to accommodate changing circumstances.3 Makinda links Bull’s thesis to the modern conception of sovereignty, and contests that the survival of sovereignty is dependent on these institutions, and if these institutions evolve then so will sovereignty.4

Realist critics argue that such a shift in sovereignty would undermine the institutions that govern international relations, and inevitably undermine international peace and security. The predominance of this view has meant that, although adopted at the ‘2005 World Summit’ by the UN General Assembly, politics has stymied the implementation of the measures recommended in R2P.5 However, the forces of post-Cold War globalisation continue to fundamentally challenge the institution of the state, requiring increased interdependence between nations. Rodrik indicates the incompatibility of this ‘new world order’ with the political sovereignty of states.6

Thus, applying Bull’s thesis, if a new norm of humanitarian necessity was to be

acknowledged by the international community, sovereignty could consequently adapt to complement the contemporary environment.

Discussion of R2P gives rise to the notion of ‘sovereignty as responsibility’, coined by Francis Deng7 and embodied in R2P8. This doctrine recognises that in maintaining sovereignty over a region, the sovereign of that region has an inherent responsibility to protect the individual human rights of its citizens.9 When a state is unwilling or unable to carry out this duty, the international community has an automatic responsibility to act its place.10 Specifically, R2P advocates a global, UN-implemented strategy to “prevent” humanitarian disaster, “react” to humanitarian crisis with the use of force as a last resort, and to assist affected regions with “recovery, reconstruction and reconciliation”.11 However, as was noted earlier, the practicality and legitimacy of such a policy requires a paradigmatic shift in the sovereignty norm.

Referring again to Bull’s thesis, it is arguable that this shift in sovereignty is possible through an evolution in international law. Such a change to international law must come from the UN Security Council (UNSC), and this 1 stems from the reality that the organisation is inherently inequitable. Chapter VII of the Charter establishes the UNSC as the sole body in international society which can

legally violate another nation’s sovereignty.12 This license, combined with the power of given to the five permanent members, has meant that the operation of the UN Charter, and thus international law itself, has been underpinned by the individual interests of the permanent members. This creates the paradox that the permanent members are largely in control and therefore exempt from the application of the rule of law they are entrusted to uphold.13 Köchler consequently argues that a paradigmatic shift is required by way of democratic reform of the UN and the abrogation of the veto right.14 This argument is consistent with the proposals of the R2P report.15 Without such reform, the UN and international law will remain paralysed in relation to humanitarian intervention.

The practical implementation of R2P will only be effective and sustainable if employed multilaterally under international law. The emerging norm of un-lawful intervention, born out of frustration over the paralysis of the UN, is inconsistent with international security.16 NATO’s military intervention in Yugoslavia reflects this concern, as the use of force was prima facie in breech of 2(4) of the Charter. Robertson is not alone in arguing that, as well as the breech of the Charter, the conflict was outside of international law in other areas, such as the “indiscriminate bombing from 15 000 feet which caused the death of the very people the Western alliance was ostensibly meaning to protect”.17 However the paradox of this argument is that without NATO intervention, 1.7 million Kosovo-Albanians would have become victims of genocide.18

There is strong political opposition to decentralising state sovereignty in favour of the UN multilateralism R2P proposes, as some argue it will provide powerful states with a vehicle to justify the use of force in advancing their interests.19 Köchler embodies this argument:

The revival of the just war concept... may open the gates to ideological fanaticism of an emotional intensity... it will undermine international legitimacy and destroy any hopes of peaceful coexistence.20

This opposition to R2P is heightened by the significant obstacle that in order for this level of recognition of international law to take place, states would have to undertake the normative process in international law of introducing R2P into their domestic law. These arguments are the manifestation of the realist suspicion of humanitarian intervention and ultimately an enforceable international rule of law. They are consequently the dominant obstacles to the practical implementation of R2P.

In opposition to realist claims, Wheeler notes that a strong argument can be made that adopting R2P would both reduce the risk of states employing “bogus humanitarian claims” to justify the use of force, and increase the likelihood of the UNSC acting to prevent, and end future atrocities.21 Proponents of R2P argue that if implemented by the UN, states wanting to intervene would be beholden to the strict guidelines outlined in the report, forcing them to prove their actions were in conformity with R2P and international law.22 Therefore it is arguable that UN-sponsored multilateral action actually provides more protection

to the international community than illegal ad hoc interventions such as Yugoslavia.

Another argument advocating the UN’s adoption of R2P refers again to the notion of a new, globalised world order. The nature of the new global order means that modern threats to security are deeply interconnected, and Annan provides ‘terrorism’ and global pandemics as possible outcomes of the international community’s failure to intervene in war-torn nations.23 Implicit in this argument is the reality that sovereignty is no longer able to protect a state from security threats, and that no nation can deal with these threats on its own. The recent global threat of Influenza A (H1N1) provides veracity to this contention, as although the virus originated in a developing country, it penetrated the security of the world’s most powerful nations within weeks.24 R2P recognises the need for international cooperation on human rights, and provides an accountable strategy for the implementation of a policy of intervention.

Wheeler states that “it is an inherently flawed legal order that requires law-abiding states to break the law in order to protect minimum standards of humanity”,25 and Annan argues that the UNSC must rise to the challenge.26 There must be consensus amongst the great powers that the nature of sovereignty must be re-evaluated and re-interpreted to legally permit humanitarian intervention. This involves the acceptance that humanitarian crisis constitute security threats to the entire global community, as the nature of the

modern system means that all threats are transnational. This fundamental change must be codified in international law and monitored by the UN to ensure accountability. The acquiescence of the international community to illegal ad hoc interventions such as NATO in Yugoslavia would be highly detrimental to peace and security, as the level of state-exploitation cannot be monitored. It is acknowledged that the implementation of R2P would be challenging; however the alternative, forcing the UN to become a bystander to human rights abuses, is far worse. As Annan notes, “future generations will never forgive us if we continue down this path.”27 In conclusion, contrary to the claims of realists, R2P would provide the solely accepted legal means for intervention, and would therefore limit the ability of states to utilise intervention of any sort to cloak their interests. A legitimate system of humanitarian intervention through the practical proposals of R2P is ultimately the essential ingredient for an effective international rule of law. Both those who are committing human rights abuses, and those who intervene to halt the atrocities will be held accountable to the objective, democratically adopted measures which will provide a serious and legitimate program of intervention. This commitment is as critical to international peace and security as it is to the protection of individuals whose basic human rights are being compromised.

[1]International Commission on Intervention and State Sovereignty, The Responsibility To Protect (2001) [2] Ibid. [3] Bull, H. The Anarchical Society (1977). [4] Makinda, S.M, ‘The Global Covenant as an Evolving Institution’ (2002)6 The International Journal of Human Rights 113, 115. [5] Ibid. [6] Rodrik, D, ‘Feasible globalisations’, in Weinstein, M. (ed.), Globalisation: What’s New? (2005)177, 194 [7] Dung, F Soverignty as Responsibility; conflict management in Africa (1996). [8] ICISS above n1. [9] Deng, above n7, 32. [10] ICISS above n1. [11] ICISS above n1, 3-7. [12] Köchler, H. (2001), Humanitarian Intervention in the Context of Modern Power Politics: Is the Revival of the Doctrine of the “Just War” Compatible with the International Rule of Law? 13 [13] Robertson, G. (2008) Crimes Against Humanity 490. [14] Köchler above n12, 1. [15] Wheeler, N. (2005) ‘Strangers in Peril’, in The World Today, 61(8/9), 15-17 [16] Glennon, M.J. (1999) ‘The New Intervention: The Search for a Just International Law’, in Foreign Affairs,78(3), 2-7, 6 [17] Robertson, above n13, 473 [18] Ibid. [19] Vincent, R.J. (1974) Non-intervention and International Order, Princeton, Princeton University Press ; Köchler above n12, 28. [20] Köchler above n12, 28. [21] Wheeler, N. (2001) ‘International law and organisation’, in International Affairs, 77(3), 687-688. [22] Ibid [23] Ibid [24] Al Jazeera. (2009) ‘H1N1: At A Glance’, accessed May 18th 2009, <http://english.aljazeera.net/news/americas/2009> [25] Wheeler, above n21, 688. [26]Annan, K. (1999) ‘UN press release’, The United Nations, accessed 16 May 2009, <www.un.org/News/Press/docs/1999> , 49 [27] Ibid, 65.

Intellectual property is referred to by IP Australia as the property of the mind and intellect. This canvasses a range of areas such as trademarks, copyright, designs and patents. Intellectual property is usually considered in the business environment, in the form of proprietary knowledge. However, this branch of law has come into contact with Aboriginal and Torres Strait Islanders across Australia through the mediums of art and academic research. This intersection is now referred to as Indigenous Cultural and Intellectual Property rights (ICIP).

Why are Indigenous Cultural and Intellectual Property Rights important to Indigenous people?

ICIP rights are important because they aim to prevent the exploitation of intellectual property of Indigenous people, thus protecting both the cultural and economic rights of Indigenous peoples with regards to their artwork and cultural knowledge. There is a close connection between indigenous knowledge, land and law, meaning that the role of custodians as guardians of that knowledge is of the utmost importance. Indigenous intellectual Property is described by solicitor Terri Janke to be Indigenous people’s rights to their heritage, which consists of “the intangible and tangible aspects of the whole body of cultural practices, resources and knowledge systems developed, nurtured and refined by Indigenous people and passed on by them as part of expressing their cultural identity”.

It is easy to see, from the comprehensive nature of this definition, why an infringement on ICIP rights would have culturally dire effects for the Indigenous person or persons involved.

Intellectual Property Law:

The Indigenous Experience

Ashley Walker

Accompanying the cultural significance of ICIP, is the economic aspect of intellectual property rights. Although this aspect is more significant with contemporary, rather than traditional indigenous art, it is important nonetheless. It was once claimed by deceased former Aboriginal Arts Board Chairman and artist, Lin Onus, that Aboriginal artists accounted for half of all Australian artists. In 2001, this claim prompted a Macquarie University economist by the name of David Langsam to do some research into the subject. Although accurate figures are difficult to obtain, it was found that while only accounting for 1.7% of the Australian population, Aboriginal people make up 25-50% of all working visual artists. In addition to this, the Report of Contemporary Visual Arts and Craft Inquiry of 2002 estimated the contribution to the economy of the Indigenous art market to be $200 million per annum. It is very likely that this figure is now higher. The vast nature of these figures illuminates how important it is to protect Indigenous Cultural and Intellectual Property rights.

What is the history of Indigenous Intellectual Property Rights? Throughout the history of Australia, Indigenous people have been exploited for financial gain. There have been numerous accounts of improper use of Aboriginal artwork such as:

One Dollar note: The Reserve Bank of Australia used a copy of a bark painting by artist David Malangi without authorisation or acknowledgement. The bank wrongly assumed that Mr Malangi was long dead. Western Desert Underpants: the unique style of western desert artists was used in designing underpants with an “aboriginal look”. The symbols employed within this unique design were used by the original artist to represent scared dreaming sites and ancestral journeys. Bulun Bulun T-Shirt: John Bulun Bulun attained permission from a senior traditional owner to use a dreaming design in his painting. The design was printed onto a t shirt produced by R. & T. Textiles. Ten Dollar Note: the bicentennial ten dollar note featured an artwork by Mr Yumbulul of “the Morning Star Pole”. The Morning Star ceremony is very important and the artist believed that the importance of the pole had been reduced by its inappropriate use. In addition to obvious artistic exploitation, the traditional knowledge of many Indigenous has also been subject to exploitation at the hands of academic research. Author Anita Heiss highlights that “over the last two hundred years, Indigenous Australians have provided copious amounts of information for PhDs, research theses, governmental reviews etc, but few have ever benefited in terms of financial or academic gain”2. As noted above, the protection of Indigenous Intellectual property, particularly in relation to traditional artwork, is necessary in order to avoid the subversion of the oldest living culture in the world.

land and culture by awarding damages for the ‘cultural harm’ the artists had suffered within their own communities. Another development in the recognition of Indigenous Intellectual Property rights is found Bulun Bulun v R. & T. Textiles4. In this case it was found that the Ganalbingu clan of North-Central Arnhem Land were owed a fiduciary duty by the artist Bulun Bulun as he was using designs that traditionally belonged to the clan. Although the court did not recognise communal copyrights in the artwork, it was noted that if Bulun Bulun did not take action against a copyright infringement, the community would be able to do so. This approach is grounded in equity which establishes a constructive trust on the legal owner of the copyright with the clan being beneficiaries. Although this approach does not establish any copyright rights for the clan, it at least provides a method to seek remedy should there be an infringement.

What incompatibilities still exist between Intellectual Property Law and Indigenous peoples?

Despite the developments in recent time, there are a number of reasons why Intellectual property law falls short of protecting the rights of Indigenous peoples. These include:

Oral tradition: the absence of a written language has meant that Indigenous intellectual property in the form of cultural knowledge is passed down the generations through an oral tradition. This presents a problem as the Copyright Act only deals with work that is reduced to a material form. In addition offering no protection for oral stories, it is often a person such as an anthropologist or academic who holds the copyright, simply for recording traditional knowledge.

Has there been an increase in the recognition of Indigenous Intellectual property rights? It appears, through increased awareness, that there has been an increase in the level of the recognition that Indigenous Intellectual property rights have received. This recognition has been received through both the common law and the legislature.

There were proposed reforms to the Copyright Act through the tabling of the Indigenous Communal Moral Rights Bill 2003. Janke and co. interpreted it to establish “the right of a community member to bring an action for infringement or moral rights in a copyright work or film that embodies communally owned material such as designs themes and dances”. Despite this propositions attempt to recognise communal copyrights, it essentially relies on a voluntary agreement between author and community. It is this voluntary element that leaves the proposition somewhat impotent to protect communal copyright. There has been much discussion about this Bill, however, no decisive action has been taken by Parliament.

Due to the lack of action by the legislative branch of government, it has been left to the judiciary to form some sort of protection for Indigenous people. The landmark case in recognising the intellectual property rights is Milpurrurru & Others v Indofurn Pty Ltd and Others3. It was found that carpets produced in Vietnam and sold by a Perth based company were identical in form and colour to traditional artwork created by Aboriginal artists. The Aboriginal artists succeeded in bringing an action under s37 of the Copyright Act. However, what was significant about this case was that Von Doussa J acknowledged the connection between aboriginal art,

Communal Ownership: enshrined in s35 of the Copyright Act is the notion of individual property that was inherited from English common law. This directly contrasts with the Indigenous concept of communal ownership experienced in communities throughout Australia. It is this contrast which makes it difficult for many Aboriginal artists to claim copyright as it would be claiming something that in fact belongs to the community. Time: the copyrights Act also provides protection for 50 years after an author dies. This limitation renders protection somewhat useless considering that the traditional knowledge behind much Aboriginal art has been passed on for over forty thousand years. Conclusion

Aside from constrained acknowledgement in the courts, Intellectual property law appears to fall short in its recognition of Indigenous intellectual property rights.

This shortcoming is derived from the communal ownership and oral tradition experienced within Indigenous communities. Much like native Title, indigenous communities are disadvantaged by exhibiting communal title to property, real or intellectual. It also seems that the only way to overcome this disadvantage is to stagnate oral stories behind artwork by reducing them to a written form. The absence of a written language in Aboriginal culture makes artwork and oral stories of the utmost importance in the survival of Aboriginal tradition. It is for this reason that protection of the intellectual property of the artists and storytellers is paramount for Indigenous communities.

[1]Janke,Terri, "Protecting Australian Indigenous Arts and Cultural Expression: A Matter of Legislative Reform or Cultural Policy?", Culture and Policy, vol. 7, no. 3, 1996, p.xvii. [2] Langsam, D. 1996 ‘Aboriginal Art: Australia’s Hidden Resource’ Art Monthly 87 [3] (1994) 130 ALR 659 [4] [1998] 157 193

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