War means Woman at Risk: Australia’s Obligations to Protect the Rights of Refugee Women

Written by: Jessica C. Tselepy, runner-up in this year's essay competition.

Summary:

The Australian Government has created a Women at Risk program for refugee women resettling within Australia that attracts little praise outside of government sponsored materials. While it is a starting point for greater change, it currently functions in a way that neglects the rights of these women. These individuals remain to be at risk of human rights violations upon resettlement, especially discrimination and domestic abuse, with no effective intervention being currently pursued by the government. Australia’s protection obligations under international law are additionally being inadequately upheld in both national law and resettlement mechanisms. Until the Australian Government ceases to hide behind their empty progressive self-title, practical solutions will fail to be pursued.

 

War is a gendered affair. Global contexts of conflict are rife with abuses of power from the established strong against subjugated masses. The proliferation of sexual and gender based violence (GBV) in such times of conflict has led to a massive movement of individuals escaping the fear of, or continuation of, grave violations of their human rights[1]. While the proportion of the world’s 65.3 million people forcibly displaced are comprised of women by half, estimates show that current refugee camps around the globe are comprised of women by 80%[2]. The focus of the UNHCR on the heightened risk facing female refugees has led to the implementation of several national ‘Women-at-Risk’ (WaR) programs around the globe[3].

In 1989, Australia established the ‘Women at Risk’ visa (subclass 204) as a subcategory in their Refugee and Humanitarian Assistance program[4]. According to government estimates, this program has directly assisted more than 16,500 women and their families to gain permanent visas to rebuild their lives in Australia[5]. While painted in a positive light by government reports and limited selective statistics, the reality for female refugees resettling in Australia is not as bright.

The goal of this essay will be to critically analyse the essay questions, a) to what extent have the rights of refugee women been protected in Australia, and b) how much does the ‘WaR’ visa program directly contribute to this protection? My thesis statement is this: Australia’s protection obligations under international law are not being adequately invoked within national law nor its resettlement programs. Further, the implementation of the program, both in application requirements and processing standards, renders Australia’s contribution to the international refugee crisis minute.

This will be explored in two main areas. Firstly, examining the explicit problems with the provisions of the visa program to establish both its advantages and disadvantages to any applicant (Learning Outcome 6). Secondly, exploring the ignorance at a domestic level of how WaR visa holders are resettled. 

The current international context will then be examined to establish its influence on Australia’s domestic WaR policy, and will further be utilised to explore potential avenues for improvement. A critical analysis of international legislation and comparisons will help elucidate the gaps in the Australian ‘model’ and unfold the implications of complex issues and developments in immigration law and policy (Learning Outcome 4).

 Before this, I must firstly provide a brief examination of Australia’s complex pool of migration legislation and relevant judicial materials, to assess the national trends and biases in dealing with female refugees (Learning Outcome 1).

Domestic Legal Context

Through a long history of racial discrimination, Australia has created a reputation for overlooking the special needs of groups most in need of assistance. Our legal framework remains ultimately ineffective in addressing some of the most discriminative circumstances facing female refugees.

One such issue is framing women within the family (private) context. For instance, while both children and women are covered in parts by general national legislation, they are seldom referred to specifically, and are often lumped together as dependents to a male ‘head’[6]. This becomes problematic when attempting to address issues such as domestic violence, where the perpetrator may be present in all aspects of an application. Nonetheless, Australian refugee law has traditionally found persecution within the domestic sphere by non-state parties as being separate from the protections given under international law. While estimates indicate approximately 35% of women worldwide experience violence by an intimate partner[7], they are typically not considered to be a separate group deserving protection from non-state agents, enumerated neither by international nor Australian law.

The first inklings of positive change can be detected more in the judicial context than the legislative one. In Chen Shi Hai v Minister for Immigration and Multicultural Affairs[8], both Kirby J’s and McHugh J’ judgements made explicit reference to the discrimination suffered by female asylum seekers in the form of sexual abuse. This began to affirm the separation of discrimination based on gender. The case of the Minister for Immigration and Multicultural and Indigenous Affairs v Khawar[9] furthered this distinction, where Kirby J extended the consideration of persecution to include non-state actors, where state negligence could be construed as withholding protection.

While the courts have fluctuated in their treatment of female refugees and asylum seekers (notably ruling against Plaintiff M68 despite health concerns related to her pregnancy in Plaintiff M68/2015 v. Minister for Immigration and Border Protection & Ors[10]), it appears the Australian government is still more interested in rulings that support an effectively discriminative status quo. This is demonstrated clearly in the Migration Legislation Amendment Act [No 6] 2001 (Cth) (MLAA)[11]. Women are not mentioned once in the amendment itself. Further, changing section 48 of the Migration Act to prohibit family members from making further visa applications is directly disadvantageous for women. As the principal applicant is usually male, this implicitly maintains a bias that the more ‘valid’ asylum seekers are protective males who are persecuted by the state, and that women should be regarded as their dependents. This passive stance by the legislature works to promote the silence of women in the application process, and maintains gender imbalances in those applications received.

Conversely, the Australian Government has made a few explicit attempts to acknowledge gender issues, through the Refugee and Humanitarian Visa Applicants: Guidelines on Gender Issues for Decision-Makers (1996)[12] and the Guidelines on the Recognition of Sex and Gender (2013)[13]. Such efforts may be aimed in the right direction; however, they remain ineffective on a wide range of issue affecting female refugees. For instance, the 1996 Guidelines are silent on whether women should submit their claims as a dependent or individual. Ultimately, effectively limited the attention has been on creating practical change in processing for refugee women.

Issues with the WaR Program

One of the most seemingly progressive programs introduced by the Australian Government was their WaR program (WaRP). A few leading issues arise upon examination.

a)    ‘Burden of Proof’

Gender-based oppression can involve heinous acts committed against women. Unsurprisingly, many women in these traumatic situations may not feel comfortable sharing their experience entirely, if at all. A study by Settlement Services International in 2012 found that not only did many refugee women resettling in Australia feel ashamed of the abuse they underwent, but were also further stigmatised by these experiences within their communities[14]. As one case study articulated, women leaving violent husbands were considered to have “brought shame to her husband”[15].

Rape itself was only recently recognised as a crime against humanity in 1998, and thus grounds for refugee status[16]. Even today, many cases of rape of refugee women are dismissed by officials, judges, and some Australian officials. Findings show that seven out of twenty-two senior male officials in Australia used the phrasing “only rape” to describe the trauma of female refugees, when discussing whether it should be considered a grounds for a WarP referral[17].

Perhaps the most egregious factor of this entire phenomenon is that Australia does not accept any refugees for resettlement who are found to be HIV+[18]. Adding to the burden of trauma is the frequency with which HIV can be transmitted through this unprotected act, and the extra stress this places on women who’ve been sexually abused when applying. 

b)    IDPs

Outside of the world’s large numbers of refugees and asylum seekers lies the stark numbers of those internally displaced. According to a global report on Internal Displacement conducted in 2016, there are twice as many IDPs as there are refugees in the world[19]. However, any citizen eligible for WaRP must have successfully escaped their home country.

            Reaching a camp of refuge within one’s home country does not, however, decrease the frequency of gender-based violence. We Are Women Activists (WAWA) member Hawa Ali Jama stated that, “we are seeing more and more women who have been raped in displaced camps…”[20] She has reported that it is especially common for IDP men to request marriage from women, and when they are refused they rape them. Still, IDP women are blankly rejected.  

c)     Speed and numbers

Australia has traditionally struggled to fill quotas for WaRP, despite the overwhelming numbers of women in need of assistance. For instance, in the first two years of the program, less than one third of the annual allocation of visas were issued[21]. This is despite that fact that a majority of the numbers projected to be filled in the program include the female refugees’ families, limiting the spaces afforded to these women even more. Hayes and Winton (1991)[22] found that a large contributor to this was that the determination of eligibility was carried out by the country of first origin. These processes were often bogged down by bureaucracy and slow dissemination of information to officers, rather than reflecting the urgency of the situation.

d)    Unclear and deterrent guidelines

The vague requirements listed by the government seem more a political category than aimed at addressing female refugee’s vulnerabilities. Specified as those “in danger of victimisation, harassment, or serious abuse,”[23] women could be technically advantaged, as this technically allows any woman to make an application for this visa. Guidelines that are too specific may in fact be used against such women. For instance, in a Hong Kong refugee camp, a resettlement officer could not understand why any woman should be in a vulnerable position in Hong Kong because under their national laws “women are free to marry…so they should not be without male protection if they want it.”[24] This is based on the specification that eligible women must be single or have partners that are missing.

The open phrasing, however, can also increase the subjectivity of the selections made. This disadvantages women when considering the examples provided by the (then) Department of Immigration and Multicultural Affairs (DIMA) of what may constitute ‘risk’. This includes “societal oppression of women, denial of full participation in civic life, forced marriage, and female genital mutilation.”[25]

To provide some level of restriction to those women eligible, the Australian Government stipulated that assessment should involve consideration of factors including connection to Australia, whether there’s anywhere else for them to go, and whether there is capacity in Australian communities[26]. Such attempts at restrictions are still discouragingly vague and subjective. This is concerning not only for women’s rights, but for the sake of good governance.

Ignorance of Resettlement Problems

Resettlement is not equivalent to a human rights obligation completed. Women who, despite thin odds, have qualified for WaRP and resettled in Australia are faced with a completely foreign culture. While many of the programs the Australian Government has created appear sufficient in their description, there remains a gap in reaching those resettled WaRP visa holders who struggle with low socio-economic status, trauma, and continued risk. There are a few key areas where women resettled under WaRP experience difficulties.

a)    Education

Education could be, arguably, the most important avenue of transition for female refugees in Australia. As one woman articulated, “education leads to confidence for women.”[27] Many women arriving under the WaRP have little to no education, low English proficiency, and end up feeling more isolated from their new community. Many women arrive from cultures where their culture may have dictated that they stay at home and receive no education. The harms of this are expressed in a study of Pakistani immigrants in the United Kingdom[28], where it was found that depression was associated with a lack of fluency in English.

The major inhibitor to women receiving education in Australia is arguably their prioritisation of duties: in the post-arrival context, many women prioritise supporting other family member’s education and pursuing financial support for their family overseas. While this may be a systemic problem on ongoing international conflicts and entrenched cultural values, there still remains an evident thirst by women for education. One study found that nearly all refugee women interviewed expressed a high level of motivation for educational opportunities[29]. The avenue for access now needs to be bridged between the education offered and the desire to be educated.

b)    Employment

While many women resettled under WaRP have attempted to engage in employment, the pervasive issue of workplace discrimination and racism remains. As one Iraqi woman has expressed, “no one will give us jobs because we do not speak the language well, we do not have qualifications, any experience.”[30] Those that do have qualifications often find they are not recognised in Australia. Frequent cases arise of women turning to domestic work or work in the sex industry, increasing the probability of their rights being violated[31]. This can have flow-on effects to income, accessing services, and mental health.

c)     Continuation of GBV

A female refugee’s ‘risk’ is not over once she is resettled. It has been identified that refugee women are especially at risk of domestic violence once resettled[32]. While many women have testified to being more protected from domestic violence than they were previously, many female refugees with WaR visa also find it difficult to refuse unwanted sexual advances by a ‘sponsor’ where they feel indebted[33]. Refugee women have consistently communicated their hesitancy in approaching any authority for assistance, less they are not believed or their violent situation increases[34].

International Obligations

In a time of ‘asylum fatigue’, female refugees increasingly face the risk of being excluded from international protection. This can both be a result of Australia acting in contravention of their international obligations, and international obligations which are not comprehensive enough.

a)    Contravention

The Australian government have taken a somewhat preferential approach to international refugee law. They have argued that, “People resent the fact that the regime for the protection of refugees is established by international laws which constrain the operation of Australia’s domestic law.”[35] For example, in response to the increase in ‘boat people’ in the late 1990s, Australian officials even contemplated putting all international treaties “on hold.”[36]

The most notable, though ‘arguable’, contravention of international refugee law by Australia was the Tampa fiasco. The government swiftly passed through the Border Protection Act 2001 to excuse its actions[37]. However, introducing any such laws violates the principle of customary international law, under Article 27 of the Vienna Convention on the Law of Treaties (VCLT)[38], that a state may not evade its international obligations by adopting conflicting domestic legislation.

Despite this violation, arbitrary demarcations, such as the law adopted in 2001 to define islands within a 12-mile zone as outside the ‘migration zone’, continue to proliferate. This in itself directly violates Article 29 of the VCLT[39], pursuant to Article 2, paragraph 1 of UNCLOS[40], to implement the Refugee Convention in all sovereign territory.

Australia has also manipulated the interpretation of ‘genuine’ asylum seeker to be ‘law abiding’ rather than just fulfilling the conditions stipulated by the Refugee Convention to seek asylum. Australia has increased stopping immigrants who have been refused or granted asylum in another country[41]. By framing asylum seekers as ‘security threats’ and responding accordingly, Australia is technically failing obligations to protect refugees.

b)    Lacking Comprehensiveness

Nonetheless, international law is not perfect. A discomforting number of international conventions and agreements exclude reference to the specific problems of female refugees. This is arguably associated with the fact that gender specific harm is not enumerated under the 1951 Refugee Convention[42]. This includes family violence, forced marriage, honour killings, female genital mutilations, and sexual violence. Australia has therefore made an ostensibly progressive step in specifying FGM as a special condition for WaRP eligibility (although exact figures of how many women with FGM have been targeted is not readily accessible). Further, they have made special, though rare, exceptions to recognise women as a social group (as described in the court cases above).

However, when this exception is not made, rape, a leading tool of oppression and abuse against women, is not considered as cause for application. A refusal to acknowledge sexual abuse and domestic violence as special circumstances affecting female refugees could be construed as a contravention of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), which defines discrimination against women as “any distinction, exclusion or restriction made on the basis of sex,”[43] as well as the UN Declaration of the Elimination of Violence Against Women, which “requires state parties to pursue by all means appropriate and without delay a policy of eliminating discrimination against women”[44]. Australia is a party to both.

Recommendations

International comparisons, as well as seeking to fulfil international obligations more clearly, are useful contexts to explore potential avenues for improving WaRP. I make the following recommendations:

a)     International Legislation and Refugee Camps

·      Update the definition of refugee, and all relevant international legislation, to reflect the special group status of women at risk, particularly those subject to any gender based violence, including rape.

·      Require all refugee camps to involve women, through the construction of women’s committees, in the distribution of basic goods. Additionally, such committees may appoint official spokespersons for consultation with external agencies, so that women do not have to consult men, especially when seeking justice for sexual crimes. Camps which have adopted this practise have found significant decrease in sexual harassment[45].

b)    Data collection and Reporting

·      Increase data collection that reflects the refugee experience by gender, including more statistical data available on the reasons for fleeing their home country. Additionally, increase documentation of human rights and international law abuses by Australia.

c)     Application Process

·      Require all family members who are claiming asylum to complete individual application forms and be interviewed individually, with a female interviewer and interpreter if requested. This has been introduced in New Zealand and Canada, and allows women to freely express hardships that may be present within the private context[46].

d)    Domestic Education and Training

·      Education and training programs should incorporate resources for any relevant ethnic group, emphasising the importance of Elders and community leaders in assisting new families where appropriate. These leaders may be useful representatives in conflict resolution and negotiated settlements where a woman may not feel comfortable to do so.

·      Create a government sponsored public education program calling for the protection of full gender equality for refugee women, encouraging all Australians to reject cultural relativism when it intervenes with women’s fundamental rights, while respecting the right of refugee women to re-establish cultural norms they believe promote wellbeing. This is practised in Sweden and inspired by the Council of Europe’s Parliamentary Assembly 2005 Report on the Integration of Immigrant Women in Europe[47]. It is aimed to ease the transition of refugee women into traditionally biased communities.

·      Increase the creation and dissemination of literature, translated into all relevant languages of newly arrived refugee women, that covers the basics of Australian culture, money management, dealing with Australian institutions, and an overview of our major justice systems. This will allow women to begin their education process, while they may prioritise supporting family at home or seeking employment first.

Conclusion

The Australian Government has created a program under WaR that attracts little praise outside of government sponsored materials. While it is a starting point for greater change, it currently functions in a way that still neglects the rights of refugee women. This group is still at risk of human rights violations upon resettlement, especially discrimination and domestic abuse, with no effective intervention being pursued by the government. Australia’s protection obligations under international law, especially the 1951 Refugee Convention and the VCLT, are not being adequately upheld in national law nor in resettlement mechanisms. Until the Australian Government ceases to hide behind their empty progressive self-title, practical solutions will fail to be pursued. It is hoped that these few recommendations may contribute towards the impetus needed for effective change.

_____________________________________________________________________________

[1] Manderson, Lenore, Margaret Kelhar, Milica Markovic and Kerie McManus, ‘A Woman without a Man is a Woman at Risk: Women at Risk in Australian Humanitarian Programs’ (1998) 11 Journal of Refugee Studies 267.

[2] United Nations High Commission for Refugees (UNHCR), Figures at a Glance, (20 March 2017) < http://www.unhcr.org/en-au/figures-at-a-glance.html>.

[3] Australian Government: Department of Social Services, Getting Settled: Women Refugees in Australia (2013).

[4] Ibid.

[5] Department ofImmigration& Border Protection, Australia’s Refugee and Humanitarian Program (20 March 2017) <http://www.border.gov.au/about/corporate/information/fact-

sheets/60refugee>.

 

[6] Freedman, Jane, ‘Gendering the International Asylum and Refugee Debate’ (2015) Springer 120.

[7] World Health Organization, ‘Global and regional estimates of violence against women: prevalence and health effects of intimate partner violence and non-partner sexual violence’ (2013) 2.

[8] [2000] HCA 19.

[9] [2002] HCA 20.

[10] [2015] HCA 14.

[11] Migration Amendment Bill (No. 6) 2001 (Cth).

[12] Australian Government, Australian Government Refugee and Humanitarian Visa Applicants: Guidelines on Gender Issues for Decision-Makers (2013).

[13] Australian Government, Australian Government Guidelines on the Recognition of Sex and Gender (2013).

[14] Bartolomei, Linda, Rebecca Eckert, and Eileen Pittaway, ‘What happens there... follows us here: Resettled but Still at Risk: Refugee Women and Girls in Australia’ (2014) 30.2 Refuge: Canada's Journal on Refugees.

[15] Ibid, 10.

[16] Canning, Victoria, ‘Who's human? Developing sociological understandings of the rights of women raped in conflict’ (2010) 14.6 The International Journal of Human Rights 849-864.

[17] Pittaway, Eileen, and Linda Bartolomei, ‘Refugees, race, and gender: The multiple discrimination against refugee women’ (2001) 19.6 Refuge: Canada's Journal on Refugees.

[18] Correa-Velez, Ignacio, Sandra M. Gifford, and Sara J. Bice, ‘Australian health policy on access to medical care for refugees and asylum seekers’ (2005) 2.1 Australia and New Zealand health policy 23.

 

[19] Internal Displacement Monitoring Centre, ‘Global Report on Internal Displacement’ (2016).

[20] Akua-Sakyiwah, Beatrice, ‘Somali Refugee Women’s Perception of Access to Services in the UK’ (2012) University of York.

[21] Hugo, Graeme, ‘From compassion to compliance? Trends in refugee and humanitarian migration in Australia’ (2002) 56.1 GeoJournal, 40.

[22] Hayes, Diana, and Sylvia Winton, ‘An Evaluation of the Women at Risk Scheme’ Australian National Consultative Committee on Refugee Women (1991).

[23] Department of Immigration and Border Protection, ‘Woman at risk visa (subclass 204)’ (2016) Australian Government  < https://www.border.gov.au/Trav/Visa-1/204->

[24] Manderson, Lenore, Margaret Kelhar, Milica Markovic and Kerie McManus, ‘A Woman without a Man is a Woman at Risk: Women at Risk in Australian Humanitarian Programs’ (1998) 11 Journal of Refugee Studies 267.

[25] Ibid.

[26] Refugee Council of Australia, ‘Recent Changes in Australian refugee policy’ (2016) < http://www.refugeecouncil.org.au/publications/recent-changes-australian-refugee-policy/>

[27] Rees, Susan, and Bob Pease, ‘Refugee settlement, safety and wellbeing’ (2006) Melbourne: Immigrant Women’s Domestic Violence Service 7.

[28] Bhugra, Dinesh, and Oyedeji Ayonrinde, ‘Depression in migrants and ethnic minorities’ (2004) 10.1 Advances in Psychiatric Treatment 13-17.

[29] Watkins, Paula G., Husna Razee, and Juliet Richters, ‘‘I'm Telling You… The Language Barrier is the Most, the Biggest Challenge’: Barriers to Education among Karen Refugee Women in Australia’ (2012) 56.2 Australian Journal of Education 126-141.

[30] Manderson, Lenore, Margaret Kelhar, Milica Markovic and Kerie McManus, ‘A Woman without a Man is a Woman at Risk: Women at Risk in Australian Humanitarian Programs’ (1998) 11 Journal of Refugee Studies 267.

[31] Parreñas, Rhacel Salazar, ‘Servants of globalization: Women, migration and domestic work’ (2001) Stanford University Press.

[32] Menjívar, Cecilia, and Olivia Salcido, ‘Immigrant women and domestic violence: Common experiences in different countries’ (2002) 16.6 Gender & society 898-920.

[33] Manderson, Lenore, Margaret Kelhar, Milica Markovic and Kerie McManus, ‘A Woman without a Man is a Woman at Risk: Women at Risk in Australian Humanitarian Programs’ (1998) 11 Journal of Refugee Studies 267.

[34] Kagan, Michael, ‘Is truth in the eye of the beholder-objective credibility assessment in refugee status determination’ (2002) 17 Geo. Immigr. LJ 367.

[35] Crock, Mary, Ben Saul, and Azadeh Dastyari, ‘Future seekers II: Refugees and irregular migration in Australia’ (2006) 2 Federation Press 174.-

[36] Ibid.

[37] Peyser, Emily C, ‘Pacific Solution? The Sinking Right to Seek Asylum in Australia’ (2002) 11 Pac. Rim L. & Pol'y 431-795.

[38] United Nations, ‘Vienna Convention on the Law of Treaties’ (1969) 1155 United Nations Treaty Series, 331.

[39] Ibid.

[40] UN General Assembly, ‘Convention on the Law of the Sea’ (1982).

[41] Heywood, Philip R., and Hannah Stanley, ‘Rights and wrongs of Australian government asylum seeker policy’ (2015).

[42] UN General Assembly, ‘Convention Relating to the Status of Refugees’ (1951) 189 United Nations, 137.

[43] UN General Assembly, ‘Convention on the Elimination of All Forms of Discrimination Against Women’ 1249 (1979) 13.

[44] UN General Assembly, ‘Declaration on the Elimination of Violence against Women’ (1993).

[45] Buscher, Dale, ‘Refugee women: Twenty years on’ (2010) 29.2 Refugee Survey Quarterly 4-20.

[46] McKay, Leanne, ‘Women asylum seekers in Australia: discrimination and the Migration Legislation Amendment Act (No 6) 2001 (Cth)’ (2003) 4 Melb. J. Int'l L. 439.

[47] Vink, Maarten P, ‘Limits of European citizenship: European integration and domestic immigration policies’ (2005) Springer.

Legal action and Climate Change: An interview with Dr Justine Bell-James

Dr Justine Bell-James is a Senior Lecturer at the TC Beirne School of Law, teaching undergraduate and postgraduate courses in the areas of environmental law and property law.  Dr Bell-James undertook her postdoctoral research at the Global Change Institute at The University of Queensland, focussing on legal, policy and insurance responses to coastal hazards and sea-level rise. Dr Bell-James's research focuses on legal mechanisms for protection of the coast, drawing upon environmental, planning, property and tort law. In addition to her work on sea-level rise, Dr Bell-James is also particularly interested in novel legal mechanisms for protection of coastal ecosystems like mangroves and seagrass, protection of the Great Barrier Reef, and biodiversity offsets in the coastal context.

What legal or policy action is being taken globally, and in Australia to mitigate the effects of Climate Change?

Globally, things have really picked up since the Paris Conference and subsequent Agreement in 2015, and the work leading up to that. We now have a new legal mechanism aimed at restricting warming by 2 degrees by 2100, with an aspirational goal of 1.5 degrees. The big problem with this scheme is that there is some disconnect between the goal that we are working towards and the mechanism that’s being put in place to try and achieve that.

Currently, the scheme relies on all the individual countries that are subject to the Agreement putting forward what they are going to do domestically to reduce emissions – their ‘Nationally Determined Contribution’ (‘NDCs’). The expectation – or perhaps hope - is that when you add these up, you’ll get the end goal. The problem is that with what countries have promised at the moment, we will only restrict warming to about 2.7 degrees. Therefore, while the Paris Agreement has a great underlying objective, the mechanism currently in place to try and achieve this objective is flawed.

That said, the Paris Agreement also has something called the ratchet mechanism - countries have to make new NDCs every five years, and with each new promise they need to ‘ratchet up’ their obligation, or ‘increase ambition. The idea is that eventually we will get to the point where what countries are promising to do will meet the goal of the agreement. Unfortunately, we are not there yet.

In Australia it’s an even sadder story. After the Abbot government came into power and removed the carbon pricing mechanism, they introduced a substitute called the Emission Reductions Fund (‘ERF’). This is essentially a pool of money to buy emission reduction credits from companies. So, for example, a group might implement some sort of emissions reduction project (e.g. plant a forest which will sequester carbon), and by doing that they can generate credits which the government will buy using the fund monies.

The problem with that is that it’s costing the government money, rather than the polluters. The second problem is that the pool of money isn’t large enough to buy enough credits to meet our Paris Agreement commitment. The funds currently allocated to the ERF would only be capable of purchasing 14% of what Australia has promised to do, and 7.5% of what would be needed to keep warming within two degrees.

So, we have a flawed international mechanism to start with, and the domestic measures we have in Australia will not come even close to what we promised to do under that flawed mechanism.

In Queensland there have been several major challenges to coal mine developments on the basis of their contribution to climate change. How were these challenges framed?

To get approval to develop a mine in Queensland, there are hundreds of approvals you need, but there are two major state based ones: a mining lease and an environmental authority. These are administered under separate pieces of legislation.

There have been three major challenges in Queensland: the recent Carmichael Mine case (2015),  the Hancock Coal case (2014), and the Wandoan Mine case (2012). These three cases involved challenges to the grant of both the mining lease and the environmental authority. Under the legislation, there are prescribed factors to be taken into account in determining whether to grant an approval. The big problem is that neither of those pieces of legislation specifically requires climate change to be considered. So, the litigants have effectively tried to utilise requirements to consider impacts on the environment generally to try and frame these climate change arguments.

 

What are some of the major difficulties associated with these challenges, and other climate change related litigation?

The first is the lack of specific legislation. The groups that have been mounting these challenges have had to frame their climate change arguments within the context of general environmental law. Simply arguing that a mine will contribute to climate change is insufficient. Instead, the argument is a multi-step process, that the mine development will cause climate change, and climate change will have an impact on the environment. It’s kind of like arguing a chain of causation – there are several steps that build upon another.

The other big challenge that these groups come up against is the issue of Scope 3 emissions. A mining project involves three types of emissions; Scope 1 emissions are the emissions that will happen directly from that mine (eg. when you dig into the coal seam a certain amount of CO2 will be released). Scope 2 emissions include things like the electricity the mine consumes and the emissions which derive from that. Scope 3 are the indirect emissions. If coal is sold to a third party in China or India or elsewhere and they burn it, the emissions produced are the Scope 3 emissions. These Scope 3 emissions are unequivocally the biggest problem in the context of climate change – they make up about 99% of the emissions from a mine. Digging the coal up out of the ground in Australia has a minimal impact on climate change; it’s sending that coal overseas and having it burnt that will make a huge contribution to global climate change.

The consequent difficulty is convincing a Court that Scope 3 emissions are relevant in granting a mining lease or environmental authority. Unfortunately, Courts have struggled to accept that something that happens in Queensland is going to lead to something happening overseas, which will, in turn, have an impact on the atmosphere globally that will then ‘come back’ to Qld and have some sort of impact here. This is complicated ‘chain of causation’ type problem.

Although these challenges were ultimately unsuccessful, is such litigation still valuable? What can be taken away from the findings in these challenges?

Yes, these challenges are still valuable. Considering the three challenges that have been heard in Queensland from a purely legal perspective, we’ve seen an incremental development in the law. Even though three challenges were ultimately unsuccessful on climate change grounds, with each the court has been prepared to go a little further in what is considered relevant.

These challenges are also valuable in that they bring public attention to these issues, and the other environmental impacts of these proposals. For example, in the Carmichael Mine case, through undertaking all preparations for the trial, the challenge group found that the mine site was the only habitat for a particular threatened species, the black throated finch. Prior to that case there was a belief that there were several major habitats for this finch, but it was discovered that the mine site is in fact the main habitat. In this way, the process of preparing for litigation can shed light on other issues as well.

Are there any negative effects that such litigation may have on law reform in the area?

There is a really clear example of the negative effects this litigation can have in Queensland. In 2007, there was a notorious case heard by the Land and Resources Tribunal (the predecessor to the Land Court). In that case, both parties agreed that climate change was real and caused by human actions. The issue was whether or not the particular party in that case would contribute to climate change.  However, the judge in that case went away and did some research of their own and found some interesting material online casting doubt on climate change science. This information was included in the judgment. That case was swiftly appealed and the Court of Appeal overturned it. However, within a few hours of the Court of Appeal decision, the Queensland State Government announced that it would introduce special measure legislation to specifically deal with this issue and allow the project to proceed, because it couldn’t have legal technicalities holding up the project. So that was a case where unfortunately the litigation lead to a swift response by the legislature for that particular project.

It’s hard to identify any other overtly detrimental responses. There have been a couple of other legal changes that have been made in the last few years, which some commentators have attributed this to that litigation. I don’t think that is the case – there has been a lot of other things happening externally that have led to a tightening of climate change policy, and I don’t think you can necessarily marry the two together. But certainly yes, there have been impacts in the past.

What challenges does future litigation in this area face?

There is still that issue of trying to convince the court of the relevance of scope three emissions. Even though we making progress, you are going to need a pretty progressive court to accept the multi-step arguments advanced by the parties. At present, the biggest challenge is that judges are required to work within the confines of legislation that is not directed at climate change. How far can you stretch the legislation which really wasn’t designed for this purpose? In NSW there is a specialist Land and Environment Court that has judges that are trained in environmental law. They have proven more amenable to accepting these sorts of arguments. Unfortunately, these decisions are sometimes overturned by the NSW Court of Appeal. 

From a practical perspective funding is also a problem. The clients for these sort of challenges are often community groups. In the Land Court parties often bear their own costs, so the financial ramifications of losing a case aren’t crippling. However, if you go on appeal there is the prospect of an adverse cost order being made against you. These are effectively David and Goliath battles and there are often practical reasons why some cases aren’t taken as far as they need to go: the client simply cannot afford to bear the costs.

 

 

Life at the Bar: In Conversation with James Green

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Interviewed by Benjamin Teng

James Green is a barrister at Level Twenty-Seven Chambers on George Street, Brisbane. He is a graduate of The University of Queensland (with degrees in Law and Economics) and a former Valedictorian of the T.C. Beirne School of Law. I recently had the opportunity to sit down and talk to James about life as a young barrister at the Bar.

 

Ben: Thanks for taking the time to meet with me James. I can imagine you’ve had a pretty busy day.

James: It’s no problem at all.

Ben: We might just start with some questions to get a bit of a background on you.  Can you tell us a little bit about yourself?

James: I started doing law and journalism in 2004 but swapped to law and economics after the first year or so. I did an Honours year in economics. I finished those degrees in 2010, which was the same year that I did an associateship with Justice Keane. He was in the Queensland Court of Appeal when I started at the beginning of 2010 and then about a month into it he was appointed to the Federal Court as Chief Justice, and I got to go with him. I really enjoyed my time as an associate. It was a fantastic year with the luxury of being able to watch a lot of good advocates from the relative safety of the associate’s table. It’s also probably where I first started seriously considering going to the Bar.

In 2011, I went to London to start as a trainee solicitor at Linklaters. I spent 12 months working in their financial regulation and litigation groups, and then I did 6 months on secondment toLinklaters’ competition group in Brussels. After that I studied the BCL at Oxford for about 9 months. Then I came back to Brisbane and I worked at Corrs in their construction litigation group. I was called to the Bar in 2014.

Ben: So it wasn’t until the associateship with Justice Keane that you really started to consider a career at the Bar?

James: That’s right. The other opportunity I had to see court work during my university years was through the Magistrate’s Work Experience Program organised by JATL (then WATL). I thought that was a really good program. I sat in court with Magistrate Halliday up at Petrie for 10 weeks. I had the chance to see private advocates, as well as a lot of self-representation and police advocacy. But particularly as an associate, I got to see how the advocates worked every day and how their arguments ultimately translated into judgments.

Ben: You nonetheless went to Linklaters and worked there and then later Corrs before going to the Bar though. What was the thinking behind that?

James: I think it is useful before coming to the Bar to have experience as a solicitor. There are a number of reasons for that.

First, it obviously helps from an experience point of view.  Particularly coming straight from university, there is a lot to learn about how the law operates in practice. Also, knowing what to expect when you come to the Bar in terms of working with solicitors, and understanding the pressures that they work under, is (I think) really important. Knowing that solicitors have to manage their relationship with the client (and that they are trusting you with that relationship as a barrister) is also very important, and something that is useful to experience first-hand. It’s also useful to have good contacts at firms before coming to the bar, compared to coming to the bar without knowing anyone on the solicitor side of the profession.

Second, you do need some savings before going to the Bar. There are some relatively significant start-up costs. For example, the Bar course, desks and office furniture, wig and gown, text books, database subscriptions and so on, are all things you’ll need to organise yourself. And then of course you need some savings to get you through the first couple of months at the Bar because it does take a little bit of time for income to actually start coming through. You might send an invoice but it can take around 3-4 months for it to actually reach your account (and sometimes longer). So, the initial few months can be a bit tricky, but once you get through the first say 6 months, it smooths out a bit.

Ben: So for you it really was more of a calculated step towards the Bar? As opposed to trying to see if being a solicitor in a firm might, despite your then existing inclinations towards the Bar, be for you?

James: I did really enjoy my time as a solicitor, both overseas and in Brisbane. I think I could have seen myself as a solicitor long term. It was more that the opportunity to come to the Bar presented itself and I thought I may as well go for it. I don’t think there’s any “right answer” to when somebody who might already be a solicitor should go to the Bar. There are people in Chambers who have worked their way up to being partners in big firms and then have come to the Bar. Others haven’t worked in a law firm at all.

Ben: When you say that the opportunity presented itself do you mean that you were offered a readership room in chambers?

James: That’s right. So the Chambers application process for me consisted of writing to the head of the chambers with a letter or cover letter (similar to applying to a firm) saying that I was interested in coming to the Bar, and asking if they have room and when it would be available. I emailed the head of the group I am in at the moment and he was able to offer me a readership room. 

Ben: So how old were you then?

James: I was 28 at the time.

Ben: Would you say that would be on the younger side of those being called?

James: Probably about average. Thinking back to my Bar Practice Course, there were a number of people who were about my age. There were a couple of people who were younger, and a few who were older, but probably not that many. In chambers, people have come to the Bar earlier than me. But yes, around 30 seems to be one of the main times that people contemplate coming to the Bar.

Ben: That’s interesting. Maybe one last question before we move on to what life at the Bar is actually like. You mentioned earlier that you took 9 months to read for the BCL at Oxford. Can you talk us through what your reasoning behind reading for a BCL was? And have you found that it has helped you in practice?

James: There are a lot of people that do do further study before coming to the Bar. But there are also a lot of people that don’t. And there are people who do well at the Bar in both categories. Does it help? I think it can help if there is a particular area of law that you want to specialise in, but I don’t think it is really “necessary” before coming to the Bar. It might help a bit to distinguish you from others junior barristers, but again, there are other ways of doing that. Further study can also be helpful if you want to work internationally or become an academic. I think that lifestyle is another good (and legitimate!) reason to do further study – a career in the law is likely to span decades, and taking 9 months off work to ‘re-live’ the student lifestyle is an opportunity that doesn’t come up too often.

Ben: To move on to life at the Bar now: do you maybe want to start things off with why how you find the lifestyle at the Bar as opposed to the lifestyle as a solicitor in a firm? And what about the lifestyle at the Bar do you most enjoy?

James: I suppose the main thing is that a Barrister is generally a lot more in control of how they operate. Having said that, I think there’s also a bit of a misconception, that I probably bought into, that Barristers are more in control of their time (compared with solicitors working in a firm). While that’s probably true when things are quiet, or you have nothing on, when you’re busy you really have a lot less control over your time because you are subject to court dates, client requests and solicitor requests, which does mean it can be very difficult to organise your calendar. Unlike a firm where you can maybe delegate work to a junior or somebody else to take time off or go on a holiday, it’s very hard to do that at the Bar.  Often, and particularly if you are the only barrister working on a brief, your only option is to give that brief to somebody else. You will potentially get it back but more often than not it will just stay with that other person. So, you do feel the pinch a bit more when you take breaks.

I also think, generally, there is a lot more responsibility resting on your shoulders as Barrister in terms of how a case is run and presented, which cuts both ways. If you’ve managed to present a case well I think you can legitimately feel a sense of satisfaction about having done a good job. Equally, if things haven’t gone well I think it can be relatively tougher to come to terms with. And those days do happen. I suppose you are a bit more exposed to the extremes of practice at the Bar compared to working in a firm. Solicitors have tough days as well, of course, but court is a very public place for Barristers in particular. Also, a lot of the work can be very urgent, and I think that unless you are able to deal with stress or compartmentalise it somehow there is a chance that work at the Bar can sort of become all-consuming, particularly with constant applications and moving court deadlines. Deadlines and workloads can build up quite quickly.

Ben: Do you think that part of that sort of stress is caused by there being less sort of camaraderie at the Bar than what you might expect to find in firms? I guess what I really mean is that at the end of the day you are a sole practitioner?

James: Well the second bit is probably right in the sense that if something goes wrong it can be your fault or it can at least be seen to be your fault. But I don’t know if the first part is necessarily true. Particularly in chambers, I have found all of the barristers to be very friendly and are very willing to help out members of the junior Bar. There are a number of people in chambers who I feel very fortunate to be able to call upon for advice if I have questions. Most people, I think, will tell you they have been the beneficiaries of such guidance themselves when they were starting out, and I think there is a strong sense of “paying it forward” and mentoring junior barristers at the Bar.

I think solicitors generally come to barristers for a couple of reasons. One is that they want independent advice on something. Another is that they want you to make a decision on something. That can be tricky because there are often no “perfect” choices, and sometimes it is a matter of picking the least bad option. Or attempting to identify a good option that hasn’t been thought of yet. Those tasks in particular are ones that are pretty solitary in a way. You can talk to the solicitors about the issues but ultimately they have come to you to solve those issues. And that is where, particularly with tricky cases or where ethical considerations come up, going to colleagues at the Bar for advice has been very helpful.

It’s not as solitary as I thought it might be, but there are definitely those nights where, I think Justice Keane had a phrase in one of his speeches, he said: ‘your only companions in the whole world will be the beads of sweat running down your back.’[1] There have definitely been those moments. But that is just the nature of the job.

Ben: But you find that it’s all worth it?

James: Yes, definitely. I suppose that last answer may have seemed a bit negative! Maybe we should steer towards the positives, and there are many. It is a great intellectual challenge. That is something that I really enjoy.

Ben: Of course. On that note, what sorts of matters do you take?

James: It has been a mix of commercial matters, generally. I haven’t done any family or crime. I wouldn’t necessarily say no to a brief in those areas, but there does come a point where you end up gaining more experience in certain areas over others.The commercial matters I have done have mostly been a mix of insolvency and bankruptcy, general commercial contractual disputes, leasing disputes and construction disputes, and also some costs disputes, acting for the former solicitors of various parties.

Ben: You probably remember your first matter. What was the process of getting that matter? Did it get passed to you from a senior barrister, or did you get approached?

James: It’s a mix. Particularly in the first year, junior barristers sometimes do ‘devilling’ work, which is work that more senior members of the Bar will get you to do and they will pay you out of their own pocket. So usually things like research memos, or draft pleadings, or other discrete tasks. I’ve found that that source of work tends to drop off after the first year or so, and then it sort of turns more into junior briefs, which you might get because another junior can’t do that work and have suggested you instead. Alternatively, a Silk or more senior junior might have a case that they need help on, and they suggest to the solicitors that they get you involved as a junior. You slowly build up a bit of a reputation and a group of instructing solicitors, but that does take time.

As to the first bit of work that I got, it was from a senior member of chambers and it was ‘devilling’.

The first matter that I appeared on by myself was from somebody who I knew at university, who worked at a small firm. He gave me a brief to appear in Adelaide and attempt to set aside default judgment, which was a great learning experience.

Ben: Just on this train of thought, am I right in saying that you did IMLAM and Jessup while you were at UQ?

James: Yes, that’s right.

Ben: So, then and now, standing up and actually presenting to the bench, is that something that you enjoy?

James: I think more and more it is. Time on your feet, particularly as a junior, is hard to get because in commercial litigation in particular a lot of matters will settle before they go to trial.But I do like it. It does force you to be very concise and clear about what your case is. And the more you appear before the judges, the more you are able to develop a bit of rapport with them. I think that in particular is where you feel like you are adding value for the client: knowing what to do to get an outcome and knowing what questions are likely to be asked by the bench, that sort of thing.

Ben: And just to speak to the people that are doing or have done moots at university, there is obviously some disconnect between the way that advocacy in a moot is and the way that it is in court. Could you elaborate on that?

James: Yes, I think that’s true. I think that one of the biggest disconnects, and this might seem obvious, is that you don’t get any practices! It would be great if you could run a trial 15 or 16 times before different benches, and work up the perfect opening submissions or cross-examination. Obviously it’s not practical and no one is going to pay for it. In real life you’ve just go to prepare as best you can and do it right the first time.

The other big difference is the evidentiary side of things. In mooting, you are typically in the High Court or the highest court of the relevant jurisdiction and are asked to make submissions on what the law should be. Most cases in real life are disputes about the facts, where the law is relatively clear or there are only one or two key legal issues. So, I find a lot of my time is spent delving into the facts; conferencing with witnesses and so on, or working out what is admissible and what is not. That is something that you don’t see a lot of in mooting.

The third main difference is the interaction with the bench. In a moot you’ve got a confined amount of time and the judge is going to ask questions that are usually about points of law. In real life, you’ve got a judge who is more often than not very busy, has a lot of matters on their list, and wants to get the answer as quickly as possible and then move on to the next case. And that’s true in trials as well. Judges are very good at getting to the point of matters quickly, and they’ll generally just want to hear what they need to decide the case in as short and concise form as possible.

Reliance on written submissions is probably another thing that distinguishes practice from mooting. Judges will more often than not take some time to read your submissions. For instance, they might adjourn until after lunch to read them, and then come back for oral submissions. And then depending on how good your written submissions are will dictate how much more work you have to do in the oral submissions. If you’ve set it all out perfectly in your written submissions, there likely won’t be much more to do, perhaps just a few clarifications here and there. You won’t go through and present your whole case again. You will generally very much be assisting, touching on the main points and helping the judge.

Ben: So then, can you describe in a very high-level way, how you would go about preparing to appear in court?

James: The first thing is to read the brief. And read it carefully. You might have a lot of time to get through it or you might not have much time at all. But whatever time you’ve got, try and get as familiar with the matter as fast as you can.

The second thing I try to do is to identify what is missing. What is the court going to want to see to get the relief that the client wants? Often there will be at least one or two things that aren’t answered but need to be answered. That is something where a barrister can really add some value.

The next step is to get that information. So, conferencing the witnesses, looking at affidavit material or contemporaneous documents to try and put that evidence in a way that the judge will look at.

After all of that, you need to start preparing for the hearing. If it’s a trial there will be a lot of preparation with witnesses, if it’s an application you’ll need to start putting together written submissions.  Basically, you need to know what you’re going to say to the judge at the end of the trial or at an application.

Of course, you also need to be prepared to deal with whatever the other side is doing. You can never be sure when the other side might make their own application, or take some step which you need to address urgently.

Ben: Can you give us some kind of idea of what a ‘short’ period of time to prepare is? And what a ‘long’ period is?

James: The shortest period of time to prepare that I have had was probably a couple of days ago. 

Ben: Perfect!

James: I was asked to appear on an urgent interlocutory injunction to stop a landlord taking possession of leased premises, which the lessee alleged were the subject of an option to renew which had been exercised. I was asked to be involved in that injunction at 3:30pm or thereabouts and it was listed urgently at 5:30pm that same day. So, that’s the shortest.

Ben: Pretty short.

James: Pretty short! I mean I suppose in theory it could be shorter, but I don’t think by much.More often than not, you’ll have a couple of days to about a week to prepare. The standard time for an application is 3 clear days.

For trials it really depends. Some of the big commercial trials might take years of work before they actually get to court. There will be long periods where you personally aren’t doing any work on the matter. But it can also be quite quick. I was brought on to a trial once only a few weeks beforehand. There had been other people involved in the matter before then but my involvement started quite late in the piece.

Ben: How often then would you say that you find yourself in court?

James: It really depends. There would be months where I wouldn’t go to court at all. There would be weeks where I go a couple of times.

I think that civil practitioners tend to be in court less than practitioners who specialise in other areas, such as family or crime. Criminal practitioners are often in court weekly, even daily. Family practitioners often seem to be in court at least once a week.

Ben: Well those are some really great, detailed insights. We might take a step back now as we round out the interview and ask a few more general questions. What do you enjoy most about the Bar? If you were trying to sell going to the Bar to someone, what would you say?

James: I’d probably say the independence. The colleagues, both at the Bar and at the firms that instruct you, are also a great reason to come to the Bar. You do build up meaningful relationships over time with your instructing solicitors, clients and fellow barristers. I suppose some people might think that there isn’t a lot of camaraderie between barristers because you might come up against each other in court. But I’ve certainly worked on cases with a barrister on one matter, and against them on another, and remained friendly throughout.

Ben: Absolutely. Two more questions? I’m conscious of time.

James: No, no, go for it.

Ben: I know that some barristers have sort of ‘dual’ practices in the sense that they will have chambers in, for example, London, as well as here. Is that something you would ever consider doing?

James: There are barristers that practice in a number of jurisdictions. I would like to do something like that one day but it is a bit difficult from a practical perspective. I think it is hard to build up a practice in more than one jurisdiction. You might have work in a number of jurisdictions, but I think you always sort have one that is your de facto base. At the end of the day you are supposed to be in court advocating. That is the skill that you hold yourself out as having. And to do that you have to be in the same place as the court, unless you really like travelling a lot. It is hard to do them at the same time.

Ben: That’s a good point.

James: It is possible to do work in different jurisdictions, though, even while based in Brisbane.  I have done some work for a case in the Solomon Islands, for example. So there is some scope for international work. However, I do think that it is, relatively, a lot easier for a solicitor to have an international practice, compared to a barrister. Solicitors can follow their clients around the globe, and just hire a barrister or local counsel to do the necessary advocacy wherever the relevant court is, as and when the need for that work comes up.

Ben: And I guess, finally, do you have any advice for students at university who may be considering the Bar?

James: I think if you’re thinking about coming to the Bar it’s a good idea to get some experience as a solicitor first because that will help you work out what the legal profession is like.If you want to try working in-house, or working for the government, or something else like that, I think it is best to do all of those things before coming to bar. That is just because as a self-employed person you are running your own business and it’s much harder to take 6 or 12 months off to go and try something different because you still have to pay your chambers fees, your bills, and you might have no income in that time (especially if you go and study, for instance). So if you want to explore different careers (legal and non-legal), I’d generally recommend doing that first.  The more experience you have before coming to the Bar, the better because it is quite challenging.

That said, being a barrister might not be your last career step, you might go and do something completely different.

Ben: This has been fantastic. Particularly because not many students know what the Bar, especially as a young barrister, can be like.

James: It is hard to get insights because it can a fairly opaque profession for those on the outside looking in. That is partly just because at the end of the day you are a self employed small business. So there isn’t really anybody you can ‘apply to’ or expect to help you set it up. You just have to go and do it yourself.

In London, for example, there is more of a system in place to assist junior barristers, and most chambers will pay pupils a stipend for the first year. Students tend to apply for those positions at the same time that they apply for clerkships in firms. In Brisbane there isn’t really any system like that. So, unless you’re going to self-fund, it can be tough to come straight to the Bar after university. I think that’s why a lot of people (including myself) go and do other things first.

Ben: Well thank you very much James.

James: My pleasure.

 

 

[1] Justice Patrick Keane, Toast to New Silks, Australian Bar Association Dinner, High Court of Australia, Canberra, 3 February 2014:

 ‘Sometimes the position of leading counsel can be the loneliest place in the world. From time to time, you will have what the French call a "mauvais quartre d'heure" – a bad quarter of an hour – where you have had a very hard time at the hands of the court and you look down to your junior or instructing solicitor for comfort, but they assiduously avoid making eye contact, and even shift their seats away to increase the space between themselves and you. On those occasions your only companions in the whole world will be the beads of sweat running down your back.’

 

Dr Rebecca Ananian-Welsh on the marriage equality postal survey.

JATL committee member Penelope Bristow recently interviewed Dr Rebecca Ananian-Welsh, lecturer at the TC Beirne School of Law, to discuss the legal and historical considerations behind the current marriage equality postal survey.

What is involved in a plebiscite and how are plebiscites different from referenda?

A referendum is a special beast. It is a vote for all electors and it may be compulsory. You can have state referenda – and we had one recently in Queensland to extend MPs terms from 3 to 4 years. But most commonly the term refers to the national vote required under section 128 of the Australian Constitution in order to change or amend that Constitution.

A plebiscite on the other hand has no constitutional basis or role. It is not binding and it may not be covered by compulsory voting rules. It is more like a national opinion poll.

Is the proposed postal survey the same as a plebiscite, or is it a novel arrangement?

At first it looked like a traditional plebiscite – the electoral commission would conduct a nationwide vote and Australians would go to the polls to vote ‘Yes’ or ‘No’ on an issue, but that vote would be non-binding and had nothing to do with constitutional change. But now the vote is not only non-binding and non-compulsory, but to be completed by post and run by the Australian Bureau of Statistics (ABS) rather than the Electoral Commission. This sets it apart from any previous plebiscites and makes it look even more like a simple survey or poll. But definitions are fluid here… perhaps it’s a ‘plebisurvey’? Though made up terms like ‘plebisurvey’ reflect just how vague and contested the whole issue has become. Officially, even the government has abandoned the term plebiscite and is opting for survey now. 

Has Australia engaged in a survey like this before? What does history tell us about surveys conducted to determine the public’s opinion on an issue?

There have been three sets of plebiscites in Australian history. The first, and most famous, were the votes held in the colonies in the lead up to federation. The ‘Yes’ vote in 1898 carried but not by a sufficiently significant margin in NSW, the largest and most powerful colony. That margin was strengthened when the question was again put to the people in 1900 – and we all know the outcome of the campaign for federation.

The second set of plebiscites concerned conscription in WWI. In 1916, as support for the War declined, Australia struggled to meet its troop supply commitments. The people voted against conscription by a narrow majority. As enlistments continued to fall, new Prime Minister Billy Hughes promised to introduce conscription only if backed by a plebiscite. So, Australians returned to the polls in 1917. Again the ‘No’ vote won the day, this time by a stronger margin.

Most recently, Australians were asked to vote on the national anthem. In 1974, the ABS conducted a poll of 60,000 people to determine whether they preferred Advanced Australia Fair, Waltzing Matilda or the Song of Australia as the national anthem. Advance Australia Fair gained the most support but views remained divided. After years of debate and controversy a voluntary plebiscite was held in 1977 and Advance Australia Fair again won the day.

What can we take away from this? Each of these examples concerned an issue of national identity – both for Australians and our place in the world. These were issues that impacted everyone. All Australians. Yes, conscription only directly impacted able-bodied men of a certain age – but that is such a large and, particularly at that time, important portion of the population that it is not difficult to see how almost every Australian could feel the impact of conscription. And this was also about our international commitments and our role in the Great War. This foundation of national identity and national concern is lacking in the current survey which concerns equality and the human rights of one, albeit significant, minority group within Australian society. Most voters will not be directly or even indirectly impacted by the introduction of marriage equality – and yet they are being asked to have their say on it. The definition of marriage is within the traditional legislative powers of federal parliament and has been the subject of numerous Acts of Parliament throughout Australian history, it is not clear to me why this change requires a national survey when, for example, lowering the voting age or changing the rules around divorce or property ownership did not.

In all previous plebiscites repeat votes simply strengthened the earlier result. In the case of the national anthem, the plebiscite merely confirmed the earlier opinion poll. There has been a wealth of polls on marriage equality, one wonders what more might be gained by a costly and non-binding plebiscite.

On a more optimistic note, history shows that the government is unlikely to ignore a non-binding plebiscite. And that this respect for the peoples’ views continues for successive governments, even if the next government runs a repeat plebiscite in the hope of introducing change.

The High Court recently dismissed a challenge to the same sex marriage survey. Who challenged the survey, and what issues did they raise?

There are legal issues and there are political issues. And at the crux of it all is the question of whether marriage equality should be dealt with in the courts, by parliament, or by society as a whole.

The legal issues were the subject of the recent High Court challenge. In the absence of a Bill or Charter of rights, those issues are fairly technical constitutional points about the power of the executive government to spend money.

In order for the government to run this survey, it needs a significant amount of money. Well over $100 million. Constitutionally, the government relies on parliament to grant it the funds to run the country – this helps to ensure responsible and representative government, that is, two of the central accountability measures that protect us from government overreach and arbitrary actions. Once a party comes to power it doesn’t simply have a blank cheque to act as it sees fit – its actions are overseen and to an extent controlled by Parliament.

The legislation to fund the survey passed the House of Representatives, but not the Senate. So, the government had to abandon the survey or gain access to the money by some other means. They decided to fund the survey from the existing ABS budget, specifically from money set aside for unforeseen and urgent matters. Independent MP Andrew Wilkie and others challenged this on the basis of the landmark constitutional case of Williams, in which the High Court confirmed that, generally speaking, executive spending should be supported by legislation. Wilkie argued that the government can’t sidestep parliament, that they need parliamentary authority to fund the survey, and that the Minister had not properly exercised his discretion when he decided that the survey was an urgent or unforeseen expense.

The High Court appreciated that the decision needed to be made quickly – after all, the ABS had already started spending money on printing materials for the mail out. So, it took the unusual step of handing down its decision but not giving a full judgment. That judgment will most likely be some weeks away. For now, all we know is that the High Court rejected Wilkie’s challenge and upheld the government’s capacity to fund the survey without Parliament’s direct approval. My feeling – and it is difficult to have more than a feeling on these issues considering how unpredictable the High Court can be, particularly in the area of executive power – is that the High Court’s decision will reflect a high degree of deference to the Minister’s decision that this spending was unforeseen and urgent. Generally, it is not for a court to step into the shoes of a Minister and question an exercise of his or her discretion. Only in extreme circumstances might one expect a court to overrule that kind of Ministerial decision. So once the Minister said that this spending – specifically, the spending of over $100 million on a non-compulsory, non-binding, postal survey on marriage equality conducted by the ABS – was unforeseen and urgent, I think the High Court was very unlikely to hold that the spending was not unforeseen or urgent. Even though there may have been some good reasons to say that spending on some kind of vote on this issue was clearly foreseen, even promised, by government. But we won’t know the real bases for the Court’s ruling until the judgment is delivered in coming weeks. As in so many constitutional decisions, different judges may have reached the same conclusion by distinct paths of reasoning.

What implications does this decision have for the future?

Constitutional lawyers will be pouring over the decision when it is handed down. Until then it is difficult to say how narrow or how far-reaching the High Court’s ruling may be. Worst case scenario, the decision could allow governments to see the phrase ‘unforeseen and urgent’ as, more or less, permission to use that financial allocation for policies that lack parliamentary support. A kind of clear path to avoiding Parliament and responsible government. That outcome is bad for democracy, bad for responsible government, bad for representative government. It grants the executive a power to spend that is largely outside the existing systems of checks and balances. But, ultimately parliament has to pass budget Bills – so that kind of outcome could be limited by Parliament simply refusing to pass Bills that earmark sizable sums for ‘unforeseen and urgent’ circumstances, determined at the Minister’s discretion. Parliament’s role in scrutinising budget Bills before they are passed becomes even more important.

In the same sex marriage debate, the decision gives a green light to the survey. It highlights the lack of constitutional protections for human rights and, the flip side of that: the lack of constitutional impediments to parliamentary control of human rights. In the areas of human rights and equality, our federal system rests on a belief in parliamentary supremacy. Here Parliament was sidelined and the executive government is running the show. But the ultimate decision will still, eventually, come down to Parliament. One is left to ask the age-old question: would human rights, particularly minority rights, be better dealt with under a human rights Act, that is, in the courts? Or can we trust Parliament and the Executive government with these important issues of equality and liberty? Australia remains the only democracy lacking a national Bill or Charter of human rights, and therefore the only democracy strongly adhering to the latter of these options. What we are all witnessing today in this same sex marriage debate should prompt us to pause and reflect on whether the parliamentary protection of human rights is the best approach for us, or whether a more systemic change – such as the introduction of rights protection legislation – is called for. Would you have liked to have seen the High Court have more legal tools at its disposal when the issue of the same sex marriage vote came before it? Or would you prefer judges stayed out of it and left it to politics? And if it is left to politics, should the civil liberties of a minority group be debated by the masses or is there a simpler, and cheaper way?

R U Okay? Day

In the lead up to ‘R U Okay? Day’ let’s start a conversation about mental health amongst law students.

Mental Health. It is a topic that is gaining traction on social media, and in society generally. It seems that we are more comfortable with talking about our mental health than we used to be. I myself am not so sure. We 'talk' about 'mental health issues', but do we really? Is expressing ourselves in sarcastic memes about mental breakdowns really a healthy way of discussing our mental health? (I, for one, am guilty of this).

The 2009 study; 'Courting the Blues: attitudes towards depression in Australian law students and legal practitioners', reveals troubling statistics on mental health in the legal profession and amongst law students. According to the report, 46.9% of law students, 55.7% of solicitors and 52.5% of barristers reported that they had experienced depression.

Just let that sink in for a minute. Almost half of law students, and more than half of solicitors and barristers report that they have experienced depression.

The statistics speak for themselves:

-       21.9% of law students reported high levels of distress (compared to 10.2% in the general population) and 13.3% reported levels of very high distress (compared to 3.1% in the general population)

-       22.3% of solicitors reported high levels of distress (compared to 9.2% in the general population) and 8.7% reported levels of very high distress (compared to 3.8% in the general population)

-       12.5% of barristers reported high levels of distress (compared to 9.2% in the general population) and 4.2% reported levels of very high distress (compared to 3.8% in the general population)

So, why is it that the rates of anxiety, depression and other mental health issues are so prevalent in the legal profession, and amongst law students? It begins a sort of 'chicken and egg' argument; do people who choose to study law already have a predisposition to anxiety and depression, or it it the study of the law itself that creates the problem?

Studies would seem to show that it is a combination. It seems that there are two personality traits in particular that we, as law students, possess that can be to our detriment: perfectionism and pessimism. This combined with the heavy workload and stress of studying a law degree - lead to higher rates of mental illness. 

'Yet law students are known to enter law school with rates of wellbeing no different to, and even higher than, the general population: apparently, legal education at both graduate and undergraduate levels has a negative impact on student wellbeing, and that impact becomes evident within the first six to 12 months of the degree.'[1]

One of my (and many other law students) idols in law, The Hon Michael Kirby, spoke about the issue of mental health amongst the legal profession in an address for the launch of the Daniel Solomons Memorial Scholarship at Ashurt's Sydney office, and I will let the eloquent words of one of my favourite legal minds do the talking....

Those who suffer the indescribable pain [of depression].... are rendered extremely vulnerable if their career choice has taken them into the law. The law is usually a very public vocation. Its top practitioners are on display most of the time. They face fierce competition. They are often perfectionists, overachievers, trapped in ‘pin striped prisons’. We now know that law places special and excessive pressures on students and practitioners. Working in symbiosis with clinical depression, this can trigger suicidal thoughts and actions. As wise commentators have observed, because lawyers generally sell their talent in modules of time, there is always pressure on them to sell more and more time, until there is no time left for the other priorities of life. 

There is some evidence that pressures of this kind are heaviest in large legal firms, where it is harder to maintain a life/work balance. Although many firms today (and some law schools, even Bar and judicial institutions) have attempted remedial measures to show that they care about the challenge of depression and the risks (including suicide) that it brings, commentators repeatedly observe that the lawyers most at risk commonly do not believe that these efforts are real or intended to be taken seriously: 

[P]rivate practice lawyers are often subject to tight, client-driven deadlines and exacting internal performance targets – the competitive and confrontational nature of legal practice leaves many believing that such wellbeing policies are not worth the paper they are written on. ‘A few months ago, my firm distributed helpful tips printed on colourful postcards suggesting we ought to “Go for a swim in the ocean” or “Go home and cook a meal with your family”,’ wrote one lawyer, anonymously ... in 2013. ‘Apparently the irony of recommending such fun and whimsy to a group of employees who are effectively required to remain at the office upwards of 14 hours a day for months on end was lost on the hopeful folks in human resources.’ Under such conditions, and with the profession’s poor track record in looking after its own, ... cynicism is well placed.

Certainly, there now seems to be a growing realisation of the existence of a kind of crisis in legal employment as a student and career choice. In a recent poll asking ‘is life as a lawyer what you thought it would be when you were a student?’, more than 37 per cent of respondent lawyers said ‘No, I wish I was working in a different career’. Only 11 per cent of the 444 respondents to the survey said their law career had fulfilled all their expectations.

Plainly, we have a problem here. Estimates suggest that one in three lawyers, from law school to final retirement, suffers at some stage from depression and low self-esteem. A number will face serious suicidal imaginings. If one googles lawyers’ suicides and inserts the name of the city or town, names will come up that one knew but sometimes one had forgotten. Tristan Jepson was such a name. His parents established the Foundation in his name to tackle the issue. Daniel Solomons was another young lawyer who fell victim to suicidal depression. Most of his colleagues did not know, could not understand and could not believe that such a talented and handsome, much admired person would suffer from such a condition at the end of his life. Or respond as he did. But that is the fact. Lawyers have to face the facts.[2]

I realise that I may have let my pessimism get the better of me with this post. However, I agree that lawyers (and law students) do need to face the facts. If we are to tackle the issue of mental health amongst our profession, and in our law school, we first need to acknowledge the problem.

As Michael Kirby flagged in his speech - band-aid solutions - such as in the example given of telling lawyers to “go for a swim in the ocean” or “go home and cook with your family” - can feel at best a half hearted and at worst a self serving attempt by law firms to pay lip service to mental health issues amongst the profession. The same can be said of “solutions” provided by universities. It is true that change has happened - since I began my law degree in 2012 UQ has moved away from 100% assessment pieces - in an effort to decrease the pressure on students. However, the culture has a long way to go. Some might say that giving students closed book 70% exams - and then throwing puppies and pancakes their way - might not be the most effective strategy… Change can happen from within - we can be more supportive of each other and consciously tackle our pessimism and perfectionist tendencies. Clearly there is a need for change both from the universities around Australia - as well as amongst us as students.

We need to move beyond talking about mental health in an offhand and flippant way. (Although I won’t lie I still see memes as a legitimate form of self expression - they just shouldn’t be the only way). If you think a friend is struggling really, genuinely check in on them - and this is what ‘R U Okay Day’ is all about.

‘R U Okay Day’ is on September 14th - https://www.ruok.org.au/ - check out their website on tips on asking a friend of colleague if they are okay, and how to best support someone if you think they are struggling. 

Have a listen to this interview with a lawyer who struggled with anxiety and depression and how his strategies for combating the problem - https://www.thehappyfamilylawyer.com/podcast/episode-6-overcoming-anxiety-depression-jerome-doraisamy/

Also - check out JATL’s blog post featuring tips from writer and lawyer Clarissa Rayward on living a happy life in the law: [insert Clarissa post link here?]

If you are feeling in need of support there are so many resources out there:

The Desk: Tailored for Australian tertiary students. This is a great site with resources specific to looking after your mental health while you are at uni. <https://www.thedesk.org.au/about>

The Black Dog Institute: Specific resources on depression and anxiety, including research and clinical resources. <http://www.blackdoginstitute.org.au>

Beyond Blue: Some really useful resources on anxiety and depression. <https://www.beyondblue.org.au/>

This includes an anxiety and depression checklist, which is a useful resource for some self reflection on how things are going with you... <https://www.beyondblue.org.au/the-facts/anxiety-and-depression-checklist-k10>

Lifeline: If you feel like you need to talk to someone, Lifeline offers a confidential counselling service, available 24 hours a day. 13 11 14 and their website is <http://www.lifeline.org.au/>.

Mood Gym: Interactive resources and strategies to help with anxiety and depression. <https://moodgym.anu.edu.au/welcome>

[1] Larcombe, Wendy; Tumbaga, Letty; Malkin, Ian; Nicholson, Pip; Tokatidis, Orania --- "Does an Improved Experience of Law School Protect Students against Depression, Anxiety and Stress? An Empirical Study of Wellbeing and the Law School Experience of LLB and JD Students" [2013] SydLawRw 15; (2013) 35(2) Sydney Law Review 407, 408.

[2] I encourage you to read the entire of Michael Kirby's speech: http://www.austlii.edu.au/au/journals/UNSWLawJl/2015/52.html