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Editors --- "DownUnderAllOver: Developments around the country" [2001] AltLawJl 95; (2001) 26(5) Alternative Law Journal 257

A regular column of developments around the country

Federal Developments

Australian Catholic Bishops' Conference v Sundberg

For several days in September, seven High Court judges and a raft of QCs and junior barristers discussed the intricacies of assisted reproduction and the importance of sperm. The case was brought by the Australian Catholic Bishops' Conference (the Bishops) and the Australian Episcopal Conference of the Roman Catholic Church (the Church), seeking to overturn the decision of Sundberg J in McBain v Victoria [2000] FCA 1009, which resulted in a declaration that various sections of the Infertility Treatment Act 1995 (Vic) were inconsistent with the Sex Discrimination Act 1984 (Cth) (SDA) and to that extent invalid (see Kristen Walker, 'Equal Access to Assisted Reproductive Services: The Effect of McBain v Victoria' (2000) 25 A/t.L/288). A decision by the High Court is not expected for some months; this note explains the way the case was brought and outlines the issues raised.

How the case came before the High Court

The case before Sundberg J was brought by Dr McBain against the State of Victoria, the Infertility Treatment Authority that administers the Infertility Treatment Act and Leesa Meldrum, whom he wished to treat. The Bishops and the Church sought leave to intervene or to appear as amici curiae (friends of the court) to argue against Dr McBain. Ultimately, they elected not to seek to intervene and simply appeared as amici. After Dr McBain succeeded, none of the parties wished to appeal. Ordinarily, that would be the end of the matter. However, the Bishops and the Church wished to con­ test Sundberg J's decision. They could not appeal as they were not parties - participation as an amicus is not equivalent to being a party. Instead, they instituted proceedings in the original jurisdiction of the High Court seeking prohibition, mandamus and certiorari against Sundberg J and prohibition against Dr McBain. They thus sought to use the High Court's original jurisdiction to grant remedies against an officer of the Commonwealth under s.75(v) of the Constitution and the Court's general jurisdiction over matters involving the interpretation of the Constitution under s.30 of the Judiciary Act to bypass the ordinary appeal process.

In order to ensure that there was a substantive response to the arguments of the Bishops and the Church (as a judge of the Federal Court would not appear to defend his judgment), the Women's Electoral Lobby (WEL) sought to intervene in support of women's access to assisted reproductive services. Gummow J granted WEL leave to intervene. The Australian Family Association, a 'family values' organisation which presented homo­ phobic material to the court, including a document that associated homosexuality with sex with Labradors (transcript, 4 September 200 I), also sought to intervene on the side of the Bishops, though putting a somewhat different argument. The Human Rights and Equal Opportunity Commission (HREOC) intervened on the side of WEL and the Commonwealth Attorney-General intervened, arguing in part in support of the Bishops and in part in support of WEL.

Do Bishops have standing?

There were a number of procedural issues raised by the novel way in which the case was brought, most importantly whether the Bishops and the Church had standing. This was in part defused by the grant of a fiat to the Church by the Commonwealth Attorney-General, one of very few fiats granted in recent years. The fiat is a device to allow a person to take a legal case where they might not have standing. It arose in England as a way to allow public interest matters to come before the courts; but in England the Attorney-General is not a member of Cabinet and the fiat has not become politicised. In Australia, because of the Attorney-General's political position, the fiat is often granted or (more often) withheld on political grounds - a fiat is granted when the government's ideological position corresponds with that of the person seeking the fiat. By the grant of the fiat, the Attorney-General becomes a formal party to the case, but the case is conducted and financed by the 'rela­ tor', that is the person to whom the fiat was granted.

However, in this case the Attorney only granted his fiat for part of the Church's case, not for all of it. The fiat allowed the Church to argue that the Victorian Infertility Treatment Act is not inconsistent with the federal SDA but the fiat did not cover the argument that the SDA itself does not validly prohibit discrimination on the basis of mar­ ital status. In order to proceed with that argument, the Bishops and the Church needed to demonstrate standing. They argued that the Church provides various services, such as adoption and obstetric services, to married couples only, and that this gave them a sufficient interest in the proceedings. How­ ever, the Church does not provide any assisted reproductive services to any persons, thus the standing argument seems weak. WEL argued that the interest of the Church and the Bishops was simply 'intellectual and emotional' and thus not sufficient, on the present state of the authorities, to give them standing.

In addition, the position of the Commonwealth Attorney-General was somewhat odd, as the Court noted frequently at the hearing. The Attorney, by granting the fiat, was formally a party to the case, yet also sought to intervene and then to argue both for and against the Bishops and the Church. While Kirby J seemed receptive to this manoeuvre, other judges found it problematic, though it remains to be seen whether their concerns will have any impact on the outcome of the case.

Also of concern to the Court was the fact that the Bishops and the Church were using the constitutional writs to bypass the ordinary appeals process in circumstances where the parties did not wish to appeal the original judgment. As Gaudron J put it, the Church and the Bishops 'sought to interfere in ... litigation that is completed' (transcript p.13). There was also an issue as to whether the remedies sought could be appropriately granted against a judge of the Federal Court. Thus much of the Court's time in oral argument was taken up with discussions of the technicalities of the constitutional writs.

Marital status discrimination and assisted reproductive services

The substantive issues in the case were essentially two. First, was access to assisted reproductive services covered by the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and thus by the SDA, which implements CEDAW? Second, did the prohibition on marital status discrimination apply to these services?

The relevant parts of the SDA are expressed to apply 'to the extent that [they] give effect to the Convention' and 'not otherwise' (ss.9(4) and 9(10), SDA). The reason for this restriction is that in part the SDA is based on the external affairs power of the Common­ wealth. Other parts of the SDA effectively prohibit marital status discrimination using other constitutional powers, but these did not cover the services provided by Dr McBain. The SDA would not be invalid if assisted reproductive services were outside the ambit of CEDAW, it simply would not extend to those services and there could thus be no inconsistency with the Victorian Infertility Treatment Act. The first argument turned primarily on whether CEDAW prohibits marital status discrimination generally, or whether it simply protects all women from sex discrimination, regardless of their mar­ ital status. CEDAW Article 1 defines 'discrimination against women' as:

any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullify­ ing the recognition, enjoyment or exer­ cise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.

The Bishops and the Church argued that this provision indicates that CEDAW is concerned about equality between men and women only. The con­ sequences of the Bishops' arguments, if they succeed, are far-reaching, as they will effectively remove marital status discrimination as a prohibited ground of discrimination under the SDA for many services, not just assisted reproductive services.

WEL and the Attorney-General, on the other hand, argued that CEDAW is concerned with two different kinds of discrimination, sex discrimination and marital status discrimination. They pointed to other provisions of CEDAW that evince a concern with marital status discrimination and a more general concern with 'all forms of discrimination against women' (Article 2). WEL also referred to General Recommendation 24 of the CEDAW Committee, the body that oversees CEDAW's implementation. That recommendation states that:

States Parties should not restrict women's access to health services ... on the ground that women do not have the authorisation of husbands, partners, par­ ents or health authorities, because they are unmarried or because they are women.

The second argument turned on the application of s.32 of the SDA, which provides that the prohibition on marital status discrimination does not apply 'to or in relation to the provision of ser­ vices the nature of which is such that they can only be provided to members of one sex'. This limitation was inserted into the SDA to satisfy Senator Harradine, who was concerned that the SDA might allow a woman to claim discrimination if she was refused an abortion (see, for example, Common­ wealth House of Representatives Hansard, 28 February 1984, 66 (Mr Young); Commonwealth Senate Hansard, 20 October 1983, 1892 (Senator Evans)). Under s.32, if assisted reproductive services can only be provided to members of one sex, then it is lawful to discriminate on the basis of marital status in providing those services.

The Church and the Bishops, sup­ ported by the Attorney-General this time, argued that the service in question is transferring ari embryo to a woman's body, which can only be provided to women. WEL, supported by HREOC, argued that the service in question is 'infertility treatment' or more generally assisted reproductive services, which can and are provided to men and women, particularly where the reason for seeking treatment is that the male is infertile. The argument thus turned on the appropriate level of generality at which to define the services provided by Dr McBain. This argument, too, has potentially far reaching consequences, because if a low level of generality is adopted then services such as treatment for breast cancer-only able to be provided to women -may be denied to single women with impunity, even though such services might also be described more generally as treatment for cancer.

And the result?

The hearing before the High Court took several days and raised many complex issues of procedure as well as sub­ stance. It is of course impossible to predict how the seven judges of the Court will decide the case, but I remain cautiously optimistic that Justice Sundberg's judgment in the McBain case will stand. Even if that occurs, however, the Howard government still has legislation before the parliament to undo the effects of that judgment (Sex Discrimination Amendment Bill (No I) 2000). A win in the High Court does not mean that the battle is over. Rather, it will shift to the parliament unless, per­ haps, there is a change in government at the federal level. Meanwhile, in Victoria, the Infertility Treatment Authority has adopted an interpretation of the McBain judgment that simply continues discrimination by denying single women and lesbian couples access to donor insemination unless they are 'medically' infertile, while not imposing such a requirement on a married woman or a woman in a 'de facto' relationship with a man. There is still a long way to go until equality for all women is achieved.

Kris Walker

Kris Walker teaches law at the University of Melbourne.

Northern Territory

Time for a change

After 26 years with the Country Liberal Party (CLP) in government, 'Territorians' were asked by the opposition leader to 'give the CLP a break'. On 18 August, Territorians did just that. With one exception, the previously safe CLP seats in the northern suburbs of Darwin experienced large swings towards the Labor candidates, bringing the ALP to a majority government.

It was not until 23 August that the ALP was confident enough with the numbers to claim government. Twelve of the 25 seats were claimed early in the week, but the cliffhanger was the Dar­ win seat of Millner. Matthew Bonson finally claimed the seat on the Thursday following the election.

The results stunned the most optimistic Labor supporters and the most hardened members of government. After 26 years there had been a feeling that change was not possible. In the post-election analysis, many theories were postulated. It may have started with the processes adopted to move towards statehood by Shane Stone's government in 1998. The process was criticised as being undemocratic and was boycotted by many Aboriginal delegates. The narrow defeat of the government's referendum proposal was an early sign that a government proposal could be rejected.

The controversial mandatory sentencing regime had been in place since 1997 with no apparent decrease in property offences and a marked increase in the number of people incarcerated. The legal profession in the NT and nationally raised questions about mandatory sentencing and the independence of the judiciary.

The North Australian Aboriginal Legal Aid Service challenged the appointment of the Chief Magistrate on the basis that a short-term secret remuneration package created a perception of a lack of independence. In the course of this litigation, Chief Minister Denis Burke was found guilty of contempt of court and personally fined $10,000.

In the weeks leading up to the election, industrial action by both nurses and teachers was underway.

In hindsight, all these events might be seen as a recipe for change.. Prior to the election, they appeared to be accepted by an apathetic voting population. This was not the case.

Following the election, the government announced the discovery of a budgetary black hole. A deficit thought to be $12 million had blown out to $100 million. The CLP rejected the allegation as a classic Labor ploy to avoid fulfilling pre-election promises.

Territorians are now expecting changes, but what will they be? Teachers were disappointed with the offers by the new government. The government blamed the budget blow­ out for their restraint. Teachers settled with an 18-month interim package. The CLP had warned voters that Labor would scrap mandatory sentencing. Independence of the judiciary and transparency were fundamental to Labor's platform. Labor has promised to re-introduce discretion into sentencing

by using 'exceptional circumstances' criteria, and to implement Freedom of Information legislation.

Indigenous Territorians will be expecting a more inclusive approach by government. Four out of thirteen Labor MLAs are Aboriginal. They include Minister John Ah Kit and Aboriginal lawyer Matthew Bonson, whose seat of Millner brought Labor over the line. Labor has promised to implement Learning Lessons, the 1999 Collins Report into Indigenous Education, and has called on the federal government for funding assistance. • FH

[Correction: In the August issue, we discussed the Bradley case - Mr Bradley is of course the Chief Magistrate of the NT and not a politician, as stated as a result of an editorial error. Ed].


CHOGM chopped

CHOGM 2001 was years in the making. The most important international gathering in Brisbane's history, involving delegations from over 50 nations. Yet it took just one phone call to unravel it. The British PM phoned his Australian counterpart a mere eight days from the opening. Within 24 hours the event was postponed.

Tony Blair's excuse for party-pooping? He'd just lashed his country's national security and foreign policy to the US wagon for the campaign triggered by recent attacks on the US. It would have been unseemly (to domestic audiences) to be filmed quaffing cocktails at a Spring talk-fest in balmy Brisbane, when the world's zeitgeist had turned to killing and dying. The Indian and Canadian Prime Ministers immediately agreed. In all, upwards of 20 leaders expressed doubts about attending.

Some locals were of the same mind. After the terrorist attacks, primal fear led to public disquiet about the wisdom of congregating so many leaders in one spot (notwithstanding Premier Beattie's declamation that the Queensland Police Force was the 'finest in the world'). Nor is Brisburbia infrastructured for major events. Its public transport network remains neotenic. Concerns over safety and inconvenience were such that some CBD employees were being prevailed upon to work from home or take leave during CHOGM.

What now for the rainbow alliance arrayed under the 'Stop CHOGM' banner, which dreamt of an antipodean Seattle or Genoa? Could it declare 'mission accomplished', without having raised a voice in anger? Energies are turning, instead, to anti-militarism and anti-US globalism protests; though the international media will not now be in attendance.

Another irony is that the Immigra­ tion Department, having stalled a visa application from former Australian gay rights campaigner Peter Tatchell, will now have to properly consider his request. Tatchell may have planned to use CHOGM to re-enact his famous 'citizen's arrest' of Zimbabwean President Mugabe, who has described lesbians and gays as 'worse than dogs and pigs', and said they have no constitutional rights (BBC News, Saturday, October 30, 1999).

On the progressive left, the predominant school of thought is that CHOGM is an appendix of Empire, a waste of time for protesters as much as organisers. Demonstrating at CHOGM could equate to picketing the Enid Blyton section of a bookstore or the 5th day of a drawn test match. But Brisbane, and through it Australia, could benefit from playing host to CHOGM's multifarious delegations. Leaving aside geo-political hyperbole about CHOGM's 'big 4' (India, UK, Canada and the currently suspended Pakistan) and concerns about human rights in some Common­ wealth countries, including Zimbabwe. How often, otherwise, are we privy to deliberations involving such populous and diverse peoples as those from Bangladesh, Kenya, South Africa and Sri Lanka?

Innocence project

Law students at Griffith University Law School on the Gold Coast are teaming up with local law firm Witheriff Nyst to right wrongs in cases involving miscarriages of justice.

Drawing inspiration from a ground­ breaking project at Cardozo Law School in the USA, the Griffith University Innocence Project will involve students working as paralegals alongside solicitors, to overturn doubtful convictions. Forensic DNA evidence will be vital to most such cases. But much of the work will also involve such pains­ taking legal-clerical skills as file management and bureaucratic and court procedures, as well as client-ethics oriented skills including building a relationship with someone protesting against a wrongful conviction.

One team of students has already been involved in successfully overturning a conviction. While the students and lawyers concerned are working pro bono, the students will gain clinical credit for their efforts. Interested academics or practitioners -or those involved in similar projects-may care to contact Griffith's Law Dean. • GrO

South Australia

Federal Court reaches different findings to the Royal Commission regarding Hindmarsh Island (Kumarangk), South Australia

A recent Federal Court decision (Chap­ man v Luminis Pty Ltd (No 5) [2001] FCA 1106, judgment delivered

21 August) has reached significantly different findings to those from the South Australian Hindmarsh Island Bridge Royal Commission 1995. The Federal Court found that it was 'not satisfied that the restricted women's knowledge was fabricated or that it was not part of genuine Aboriginal tradition'. This is in stark contrast to the Royal Commission which found that 'the whole claim of the "women's business" from its inception was a fabrication'. It is interesting to note that from the outset the Court was informed (by both the applicants and the respondents) that 'the Court was not required to decide whether the restricted women's knowledge, the subject of the Fergie and Saunders Reports, was a genuine part of Aboriginal tradition'. Rather, the case was supposed to focus on whether or not the respondents (Mr Tickner, Professor Saunders, Luminis and Dr Fergie) had carried out their respective tasks properly. The Chapmans (the applicants) contended that the respondents were liable to pay damages on the grounds that their company (Binalong) suffered loss because the respondents' actions delayed the building of the Hindmarsh Island Bridge.

However, as the case proceeded, the subject of whether or not the women's knowledge had been fabricated and whether or not gender-specific restricted knowledge could be a feature of traditional Ngarrindjeri culture became a recurring issue and both the applicants and respondents called Ngarrindjeri women to contradict or support the existence of the traditional knowledge. Thus, Justice von Doussa felt compelled to comment on this aspect of the case. His reasons for the greatly differing findings in comparison to the Royal Commission in relation to the women's knowledge were as follows:

• The Royal Commission did not compel people to participate nor did it re­ quire witnesses to break confidences relating to the alleged women's knowledge. This meant that the proponents for the women's knowledge chose to take no part in the Royal Commission proceedings on the grounds that they were:

... deeply offended that a government in this day and age has the audacity to order an inquiry into our secret sacred spiritual beliefs. Never before has any group had their spiritual beliefs scrutinised in this way. It is our responsibility as custodians of this knowledge to protect it.

In contrast, the Federal Court included testimonies from the proponent women. In addition, Justice von Doussa viewed the evidence of the 'secret envelopes' that contained the secret/sacred information on the condition that 'the evidence be received in a court closed to the public and to all men, save for the Judge whose role and presence was an inevitable part of the exercise of judicial power ...'

• The late emergence of the existence of the women's knowledge did not indicate fabrication (this finding was opposite to that in the Royal Commission). Indeed, Justice von Doussa stated:

From the Aboriginal perspective late emergence of tradition would not be indicative of fabrication: on the contrary, it is to be expected in the case of genuine sacred information of importance.

• The Royal Commission held that 'women's business' was unknown and unrecognised in the literature. Justice von Doussa, however, notes in his judgment that it is dangerous to elevate ethnographic studies as an infallible source of reference and that it is naive to think that all traditions have been recorded. Honour­ able Justice von Doussa further added that in relation to the anthropological evidence he had serious concerns about the objectivity of Dr Clarke (a proponent of the theory that the ethnographic studies used in the case were infallible, an employee of the South Australian Museum and the person who is credited with being the originator of the fabrication theory) and the opinions he expressed in evidence. In contrast, it is considered that the Royal Com­ mission was influenced by Dr Clarke's views.

• The Royal Commission held that only one Ngarrindjeri woman claimed to know of the women's knowledge relating to Hindmarsh Island. However, the Federal Court did not accept that only one woman knew.

• Justice von Doussa believed that in terms of eurocentric thinking and logic, the explanation proffered by the proponent women does not pro­ vide an understandable explanation why the linking of Hindmarsh Island to the mainland would have the fore­ cast devastating consequences for Ngarrindjeri society and culture. Furthermore, he stated:

The restricted women's knowledge describes what is said to be a spiritual belief associated with creation and procreation. Spiritual beliefs do not render themselves to proof in strictly formal terms. Their acceptance by true believers necessarily involves a leap of faith. To use lack of logic as a test to discredit those asserting a par­ ticular spiritual belief is to pose a test that is both unhelpful and inappropriate. I expect that non-Aboriginal people generally may have difficulty understanding many Aboriginal spiritual beliefs that are of profound importance to Aboriginal people. The asserted belief in this case is no different.

These findings will certainly have implications in relation to the way the Court perceives the validity of Indigenous oral traditions in future cases. Only time will tell what the practical out­ comes of this case for the Ngarrindjeri people will be. For now, at least, the Ngarrindjeri people can hail the Federal Court decision as a vindication that they did not make up the secret women's business. However, despite this important judgment the bridge is now built and the Ngarrindjeri people are continuing their fight and have requested that the government reinstate ferry access to Hindmarsh Island so they can have safe cultural access. • AR

Acknowledgement: Thank you to Daryle Rigney for his comments on this column.


Upping the ante - Tasmanian Aborigines prepare claim for half of State

Since March 2001 when the Tasmanian Legislative Council rejected the amended Aboriginal Lands Bill _that would have granted Tasmanian Aborigines 51,000 hectares of land, the Labor government led by Premier Jim Bacon has shown an unwillingness to pursue the matter further. The government argues that until there is change in the Legislative Council it would be point­ less to do so. To get round the Upper House stumbling block, Aborigines proposed a 99-year lease arrangement, whereby the parcels of land intended to be handed back would be leased to them instead. This proposal was rejected.

Frustrated by the apparent lack of further support by the government, Tasmanian Aborigines are preparing to mount a legal case that has the potential for far-reaching consequences. The case revolves around an 1831 verbal promise to Aborigines. George Augustus Robinson 'promised' ·Aborigines that if they relocated to Flinders Island as requested, the Crown would make land available for their continued use on the Tasmanian mainland. Despite relocating, this 'promise' was not honoured. Reading this verbal agreement-for which there is documentary evidence-as a treaty, Aboriginal Legal Serv1ce spokesperson Ricky Maynard argues there are grounds upon which to demonstrate an alleged breach of agreement, breach of fiduciary duty, or fraud. Aborigines are willing to take the case to the Supreme Court. If successful, the case could see extensive areas of Crown land returned to Aboriginal ownership and/or the award of considerable monetary compensation.

Mitchell Rolls

Mitchell Rolls lectures in Aboriginal Studies at the University of Tasmania.


Same sex domestic partnerships now law

In 1998, the Victorian Equal Opportunity Commission observed: 'lesbian and gay relationships are a reality'. Th1s has now finally been recognised in Victorian law. After a long and controversial battle, on Wednesday, 7 June 2001, the Victorian parliament finally passed into law the Statute Law Amendment (Relationships) Act 2001 with bipartisan support.

The Relationships Act is an important first step towards practical equality for lesbian, gay and transgender relationships and towards ending invisibility in society. It provides equal rights and responsibilities in many areas of Victorian law for domestic partners, irrespective of the gender of the partners.

A domestic partnership is defined as two people in a committed personal relationship as a couple, living together on a genuine domestic basis, but for some laws (to do with personal or health matters) a broader definition is used. Various factors are relevant including commitment, duration of the relationship, shared finances and property, whether one partner cares for the other's children and whether the relationship is publicly known and recognised.

The Relationships Act ends discrimination in many areas including:

Equal opportunity law -The Act outlaws discrimination based on domestic partnership. For example, if a person is prevented from joining in functions or clubs at work because he or she is in a domestic relation­ ship, this is discriminatory. The Equal Opportunity Commission will play a significant role in enforcing the rights contained in the Relationships Act.

Stamp duty -The exemption from stamp duty on a transfer of property between partners will now be avail­ able to lesbian and gay domestic partnerships.

Workers and accident compensation - Domestic partners and children in their care will now have equal rights to compensation on the death of a partner in a workplace or transport accident.

Property division on relationship breakdown - Lesbian, gay and transgender partners will now be eligible to use a simpler process to ad­ just property rights at the end of a domestic partnership, if that partner­ ship has lasted for at least two years.

Inheritance if there is no will-Domestic partners, whether straight or gay, for the first time will have rights to inherit a deceased estate and to buy out a shared home even if de-

ceased died intestate, under the Ad­ ministration and Probate Act 1958 (Vic). They will not have to go through the process of making a testator family maintenance claim.

Decision making in case of illness or death - Guardianship, Coroner's Court, organ donation and other laws will now recognise lesbian, gay and transgender domestic partner­ ships as family in the same way as heterosexual relationships. A domestic partner may be recognised as next of kin or family even if they do not live together.

All measures in the Relationships Act, apart from the property division regime and administration and probate amendments, have now been pro­ claimed and are operational. The remaining changes must come into force on or before 1 January 2002.

A second round of relationship recognition laws has been introduced into this sitting of Parliament, to make Victorian relationships equality almost complete. However, the Bracks government has not yet referred the issues of access to assisted reproductive technology and adoption, where discriminatory laws still remain in place, to the Law Reform Commission for review, in spite of an electoral promise. • MS

Racial and religious vilification laws in Victoria

The Racial and Religious Tolerance Act 2001 (Vic) was assented to on 27

June 2001 and commences on 1 January 2002. The Act makes public behaviour and statements that 'vilify' people on the ground of their race or their religious beliefs, unlawful. Vilification includes any conduct or behaviour in public or any public statements made that provoke, stimulate, encourage or promote hatred against, serious con­ tempt for, revulsion or severe ridicule of a person because of their:

1. colour, ancestry, national origin, or racial or ethnic background; or

2. religious beliefs or activities.

The law only applies to behaviour and statements which occur in public or which ought reasonably be expected to be heard or seen by another person. This includes: yelling offensive comments on the street, distributing letterbox material, newspaper articles, and statements made on Internet sites and sent by email. Motive is irrelevant and vilification need not be the dominant ground for conduct.

Explicit exceptions include:

• public conduct, debate or discussion engaged in for the purposes of artistic, academic, religious or scientific purpose;

• private conduct-except in circum­ stances where the parties ought reasonably to expect that the conduct would be seen or heard by others.

The Act amends the Equal Opportunity Act 1995 (Vic) to allow complaints of vilification to be lodged with and investigated and conciliated by the Equal Opportunity Commission of Victoria. Complaints may be lodged by an individual or several individuals jointly, a person on behalf of another person, or a representative body with sufficient interest in the complaint.

Unsuccessful conciliation may result in the matter proceeding to be heard by the Equal Opportunity Tribunal in the Victorian Civil and Administrative Tribunal. If proven, a person may be ordered to pay monetary compensation or to do something else to compensate for the hurt and indignity suffered by the other person.

A person can also be prosecuted for a serious offence if they intend to make public statements or to behave in a way which:

1. they know is likely to provoke hatred; and

2. threatens physical harm to another person or the property of that per­ son on the ground of their race or religious faith.

If proven, the offender can be imprisoned for six months or fined up to $6000. A prosecution cannot proceed without the written permission of the Director of Public Prosecutions.

On another note ...

Community Legal Centres (CLCs) in Victoria have now established a Human Rights Working Group. The purpose of the Working Group is to 'communicate, develop greater understanding and encourage the practical use of-within and outside the CLC sector-the principles and laws relating to fundamental human rights and freedoms, as expressed in international Conventions, Covenants and Declarations, in order to advance the cause of social justice'.

Nationally, CLCs have established a human rights network that will include non-CLC human rights activists and advocates.

For more information contact the Federation of Community Legal Centres (Vic) on 03 9602 4949 or


Simone Elias

Simone Elias is Convenor, Human Rights Working Group, Federation of Community Legal Centres (Jiic).

And some updates...

The good

Debate on the draconian Peaceful Assemblies Bill2001 (see DUAO, Aug 2001) has been delayed until the Autumn 2002 parliamentary sittings, due to the 'significant degree of com­ munity interest' and the emergence of 'a number of common concerns' (per letter from the Minister for Police, Andre Haermeyer, dated 20 September 2001). These common concerns presumably include the fact that the democratic right to peaceful protest will be severely curtailed under this Labor­ introduced legislation.

The bad

The National Parks (Marine National Parks and Marine Sanctuaries) Bill 200I, legislation that was to create marine reserves along some of Victoria's coastline in line with the recommendations of the Environment Conservation Council following its nine-year process of investigation and consultation (see DUAO, February 2001), has been shelved until further notice. This is due, in no small part, to lobbying by recreational fisher folks who persist in taking the short-term, selfish view about access to resources. All sides of government, including Independent MP, Craig Ingram (who, it is reported, has an interest in a valuable abalone fishing licence in one of the areas originally considered for protection in the EEC report: Richard Baker, Eleanor Cowie and Steve Cauchi, 'State gives nod to 12 marine parks', Age, 18 May 2QOI), have shown them­ selves sorely lacking regarding this important Bill.

The very ugly

The Regional Forests Agreement Bill is still on the agenda. According to Senator Bob Brown 'This ... legislation is resource security legislation for the logging corporations leaving taxpayers liable to billions of dollars in compensation if forests are saved in the future'. Fortunately, this Bill has been deferred to the next sitting period which will be after the next election. Unfortunately, both major parties support it. Read about what the RFA process has done to East Gippsland's forests in 'Sweet RFA' in this edition, p.255. • GIO

Western Australia

WA Land Access Taskforce - a tectonic force in operation

Geological plate tectonic movements create large chasms that later close during mountain-building events. This may be occurring in WA as it takes initial steps to close the huge post-Mabo chasm that presently exists between mining/exploration companies and WA's Indigenous population. With over 11,000 land access applications back­

logged in the Department of Minerals and Petroleum Resources, a state taskforce of government, industry and indigenous representatives have just released a discussion paper on the issue. They claim that under current provisions within the Mining Act 1978 (WA) and the Native Title Act 1993 (Cth) it would take more than 25 years to pro­ cess pending applications. Under past government policies these delays have led to settlement through litigation. Although some Indigenous Land Use Agreements under the Native Title Act are in place, the Mining Act still imposes additional land access delays particularly during change-over from exploration to mining licences where the process must be repeated. Several proposals have been put forth, with Aboriginal heritage management identified as crucial to the resolution of many of the problems. The taskforce represents a renewed interest in all par­ ties to reconcile differences of land access and native title issues.

LT & Peter Hwang

Peter Hwang is a solicitor for the Kimberley Land Council.

DownUnderAIIOver was compiled by Alt.LJ committee members Fiona Hussin, Glenn Osboldstone, Graeme Orr, Amy Roberts, Miranda Stewart and Linda Tompkins along with invited writers listed under their contribution above.

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