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Editors --- "DownUnderAllOver: Developments around the country" [2004] AltLawJl 23; (2004) 29(2) Alternative Law Journal 97

Developments around Australia


Male teaching scholarships and the Sex Discrimination Act

In late 2002, the Catholic Education Office of the Archdiocese of Sydney (CEO) applied to the Human Rights and Equal Opportunity Commission (HREOC) for a temporary exemption from the Sex Discrimination Act 1984 (Cth) (SDA), in order to offer scholarships exclusively to male student teachers. In February 2003, HREOC rejected the application and the CEO appealed that decision to the Administrative Appeals Tribunal (AAT). In early March this year, with a decision from the AAT still pending, the Federal Government sought to make political capital out of the issue, introducing the Sex Discrimination Amendment (Teaching Profession) Bill 2004. The Bill seeks to establish a 'permanent exemption' under the SDA for gender specific scholarships granted to teaching students.

The Bill quickly passed the House but was then referred to the Senate Legal and Constitutional Affairs Committee (a report is due by 11 May 2004). All this despite the fact that after the Bill's introduction, HREOC approved an amended exemption application by the CEO to award 12 scholarships each to male and female teaching students. On approval of the revised application, the CEO discontinued its pending AAT proceeding.

The Bill has been widely questioned by relevant unions and opposition parties. The Federal Government, through the Prime Minister and Minister for Education, has denounced critics of the Bill as being 'politically correct' and of over-zealously supporting the existing SDA, at the expense of common sense and the need to create role models for boys. There IS some irony in the Federal Government making a virtue of taking remedial action to address the needs of a particular group, when at other times it has loudly proclaimed, especially in the context of Indigenous affairs, the need for 'the same law for everybody', and, 1n particular, rejected affirmative action as being insulting to women.

The criticisms that will be made of the Bill 1n submissions to the Legal and Constitutional Affa1rs Committee are clear enough. For one thing, the Bill undermines the key principle that the SDA ensure equality between the sexes, with special measure discriminatory exemptions to be granted only where necessary to achieve substantive equality -for example, where there remain hangover effects of previous long-standing discrimination. There is no evidence that males have suffered any discrimination in entering the teaching profession. It seems more likely they have chosen not to enter the profession for pragmatic reasons, including the relatively low status of the profession, comparatively low salaries, and poor promotional opportunities (although those men who do enter the profession find themselves enjoying greater promotional opportunities than their female colleagues). What's more, the debate around this issue seems to assume that male school students need male teachers as role models. Yet, as education experts and a 2002 report of the House of Representatives Standing Committee on Employment, Education and Workplace Relations (Boys: Getting 1t Right) attest, what matters is the quality of teaching, not the gender of those providing it

A new Families Tribunal?

In the same week that Family Court Chief justice Alastair Nicholson enjoyed a ceremonial farewell from the bench, the federal Cabinet debated whether to establish a new Families Tribunal. Outspoken to the end, the Chief justice, who formally retires on 2 july 2004, strongly criticised the proposal.

The proposal for a Families Tribunal comes out of a recent report on child custody arrangements released by the House Standing Committee on Family and Community Affairs (Every P1cture Tells a Story, Report on the Inquiry into Child Custody Arrangements in the Event of Family Separation, December 2003, <>). The Committee recommended that the Commonwealth establish a new non-adversarial Families Tribunal. The Tribunal would have jurisdiction over property matters where all parties consented, and over matters concerning care of children where there is no entrenched conflict, or issues of substance abuse or child abuse. A mediator, a child psychologist and a legally qualified person would constitute the Tribunal. Procedural rules would be simplified. Lawyers and experts would not appear before the Tribunal, unless the Tribunal consents. Such a Tribunal could significantly reduce the role of the Family Court in settling family disputes, effectively narrowing its jurisdiction to difficult child matters, property matters where the parties chose not to use the Tribunal, and, problematically, enforcement of Tribunal orders.

The Law Council of Australia has expressed strong reservations about the proposal, arguing that it is likely to be expensive, and that the exclusion of lawyers is likely to be counter-productive in the longer run, s1nce lack of legal representation will mean inappropriate cases are not filtered out This criticism underplays the very real benefits that m1ght accrue when parties can access a less adversarial tribunal, staffed by specialists. Such benefits might include earlier resolution of disputes, better-informed decisions and consequent cost sav1ngs. As it turns out, federal Cabinet has reportedly recently failed to endorse any such tribunal, at least for now, expressing reservations about the establishment cost Instead, it referred the proposal to a Cabinet sub-committee for further investigation.

Regardless of the merits of such a tribunal, a real stumbling block, identified by Chief Justice Nicholson, is the High Court's approach to judicial power expressed in Brandy's case. There it was held that there could be no automatic enforcement of a tribunal's orders through mere registration of those orders in a court. The House Standing Committee was alive to this constitutional issue. However, it failed to satisfactorily explain how orders of the Families Tribunal could be enforced in the absence of a full re-hearing in the Family Court. Such a requirement would seriously undermine some of the benefits claimed for the Tribunal.

STEVEN WHITE teaches law at Griffith University.

New South Wales

All politics is local

Local government elections across NSW in late March raised a range of curious legal issues. Prominent among them was the reminder that there is no constitutional recognition of local government in Australia: councils exist only because or when state governments allow them to. And state governments often don't.

Only weeks before the council elections on 27 March, the NSW Government sacked Sydney City and South Sydney Councils, who had not agreed on a merger plan promoted by the NSW Government. Labor's ex-Federal Minister Michael Lee then campaigned for Lord Mayor of the merged body. Not only was he not elected, he lost to an independent member of the NSW Parliament, Clover Moore. Ms Moore, a thorn in the side of NSW governments since she held the balance of power, with John Hatton, in the early 1990s, not merely became Lord Mayor of the city: her ticket won an absolute majority on the council. It is inconceivable that the Government would sack the council again.

A nice twist arose on the 'implied freedom of political communication' that we now know resides in the Australian Constitution. The ABC's Media Watch has reported on a local newspaper that does not report local politics. Rather, it offered local politicians the chance to buy advertising space, giving them the right to then write accompanying editorial. While it looks like lazy journalism, and a free ride for the local pollies, a different take is that it abdicates responsibility for political reporting, giving the opportunity for public comment only to those who can pay for the privilege and conveniently excluding a wide range of political voices.

SIMON RICE is a NSW lawyer.

Northern Territory

The strange case of the disappearing Kurds

On 20 November 2003, Justice Mildren delivered judgment in Cox v Minister of ImmigrationMulti-Cultural and lndtgenous Affatrs [2003] NTSC 111. The plaintiff, the Director of the NT Legal Aid Commission, had applied for habeas corpus in respect of 14 Turkish Kurds, asylum seekers who had been in an Indonesian fishing boat washed up on Melville Island, north of Darwin. Mildren J was constrained to reject the application on technical legal grounds but made searing criticism of the Federal Government's conduct. The affidavit evidence for the plaintiff exposed a Federal Government policy of blunt non-cooperation and secrecy, 'on which His Honour commented:

It is plain from this and also from the evidence of Mr Eyers, as well as other ... evidence ... that the policy of the [federal] government was to operate as clandestinely as possible and to prov1de no access to the plaintiff or her officers and no information to the plaintiff or to the public through the media to the extent that this could be avoided. Not only were the pla1nt1ff and her officers deliberately given the nun around by the [federal government/department], but attempts to prevent the media from coming anywhere near the vessel were made by the imposition of a 3,000 metre exclusion zone over the Island and the closing of the airport to prevent the media as well as others from gett1ng to the Island. Behaviour of this kind usually implies that there IS something to hide. Even to this Court the information provided by Mr Eyers who was effectively the spokesman for the first and third defendants was quite minimal.

As to the 'minimal' nature of the evidence of Mr Eyers, the main Federal Government witness, the judge remarked:

Mr Eyers was asked specifically why Ms Cox's request to seek access to those on board the vessel was not acceded to. He replied that it was normal procedure that unless a person requested legal assistance it is not provided. He sa1d that he did not know whether any of the persons concerned had asked for legal assistance or not and did not know whether any of them had asked for asylum. Even allow1ng for the urgency under which this affidavit was sworn I found it incredible that the [federal government's] principal witness could not answer these questions.

The tell-them-nothing, keep-prying-media-eyes-out policy effectively stonewalls interest groups while the Government quietly and without too much fuss tows away unwanted intruders from its territorial waters and the radar of the Australian public. Indeed, as Mildren J noted, 'At the time of the hearing the vessel was under tow and on the high seas'. That all this represents official policy seems to be confirmed by a post­ hearing admission by the Federal Government that the Kurds on arrival had indeed claimed asylum: an issue of which Mr Eyers stated he had no knowledge at the hearing.

Whatever the strict legal rights and wrongs of the matter, it is worrying that a government that regularly and self­ righteously proclaims that it abides by the virtues of openness and transparency displays, in practice, an opaqueness on issues involving fundamental rights. This, along w1th the Alice in Wonderland logic of territory excision, reflects badly on a country professing compassion and a belief in the 'fair go'.

KEN BROWN is a retired lawyer.


Justice delayed: Indigenous wages claim

A major piece of litigation is brewing in the Federal Court over the underpayment of Indigenous mission workers. Under the name James Baird and Others v the State of Queensland and the Lutheran Church of Australia Inc, the case stands to reap millions of dollars in delayed justice for up to 1500 Indigenous mission workers and embarrass a former, and potentially the current, state government.

It involves two Lutheran missions at Wujal Wujal and Hope Vale in Far North Queensland. Indigenous mission workers were paid by state grants, at rates set by the state.

In the face of both well established equal pay cases (such as the Cattle Stations case of 1966) and the Racial Discrimination Act 1975 (Cth) (RDA), the state through the 1970s and 1980s continued its long-standing practice of paying under-award rates to Indigenous workers on reserves and missions.

The discrimination was stark: non-Indigenous workers employed by both church and state in the same occupations received award rates. For callings such as domestics, wardsmen and kitchen hands, the underpayments were in the order of 30%. According to the claim, this continued until 1986, when industrial agreements were finally reached: but lo and behold some workers were retrenched to avoid an increase in the total wage bill.

The claim asserts direct discrimination under the RDA. Indeed, evidence uncovered by Phil Falk, an Indigenous law lecturer at Griffith Universrty, shows state Cabinet was aware of the likely breaches and was under pressure from the Federal Government Yet, bald-facedly, Premier Bjelke-Petersen wrote to Prime Minister Fraser, in effect threatening to withdraw funding and render the workers unemployed, unless the Federal Government subsidised the wages to the tune of-the unemployment benefit!

As Falk points out, Bjelke-Petersen's culpability does not end there. He was head of the Lutheran Council in the 1970s and helped establish Hope Vale mission, raising issues of conflict of interest and duty of care.

Remarkably, Falk uncovered sensitive documents such as these in boxes abandoned in a shed on the Wujal Wujal community. With everyone from local Murris and volunteer students sifting through mountains of documents, the case is set down for trial beginning 2 December.

Readers may be aware of ongoing criticism of the Beattie administration over its low offer to settle the 'stolen wages' question. That relates to unpaid and misused Indigenous wages which for many decades were diverted, by law, into 'trust' funds, the benefit of which -contrary to even the rhetoric of 'protectionism' -overwhelmingly accrued for state purposes.

This new case raises similar issues of discrimination, but is legally distinct. It is more akin to a 1996 case over employment at the government reserve at Palm Island. After a HREOC hearing, but only in the face of a Federal Court application, the Palm Island case WC\5 settled with some (but far from full) repayments and a public apology.

FAIRA, the Federation of Aboriginal and Islander Research Action, sought to conciliate the present claim before HREOC. but only a Federal Court order will be binding. Proceedings lodged in December 2003 involve eight applicants in a virtual representative action claiming both an apology, damages for back pay (including interest) and deprivation and humiliation. Dan O'Gorman, who acted in the Palm Island matter, has recently agreed to act as barrister in this hearing.

GRAEME ORR teaches law at Griffith University.

South Australia

Government school fees: charges for 'materials and services'

Prime Minister Howard recently suggested that parents were losing confidence in the public school system. Events in South Australia, concerning the setting and charging of school fees, might well undermine parents' faith in the public school system in ways the PM did not predict.

South Australia's Education Act was amended in November 2003 because of the looming expiration of a sunset clause concerning the setting and charging of school fees. This year's prescribed standard fee is $166 for primary schools and $233 for secondary schools.

Most South Australian public schools invoiced parents for the annual Materials and Services fee in February 2004. The receipt of the .invoices unleashed a tide of community discontent, with talkback radio fielding many calls from disgruntled and confused parents. Although the underlying issue was 'free education', the media debate focused on the nature of the items included in the various sections of the invoice and the fact that many schools charged more than the amount prescribed by the Act.

The invoices produced by many schools carefully distinguished items required for 'curricular' and 'co-curricular' activities.

'Curricular' included course materials and administrative services, for example, textbooks, stationery, printing and photocopying. The 'co-curricular' section included items such as 'Information Technology Levy' and 'Library Resources'. The invoices warned parents that students would not be provided with the items included in the co-curricular section unless 'the school received agreement for payment or the actual payment'.

Unsurprisingly, threatening to deny services to children was ill­ received. The criteria for classifying items as either curricular or co-curricular were also questioned. Bureaucrats and politicians joined the fray, ultimately agreeing that, in terms of the Act, no child would be denied access to materials and services deemed educationally essential. The education department conceded that 'Library Resources' and 'Information Technology' were indeed essential.

More disturbing, however, is the suggestion that often there ·was no intention of directing 'co-curricular' funds to the items nominated. Rather, distinguishing 'curricular' and 'co-curricular' was simply a ploy to permit charging above the prescribed amount Similarly, threatening to deny some services was only a 'scare tactic' to obtain higher payment from parents.

This school fee issue highlights the funding problems public schools face. Nonetheless, there is no excuse for providing incorrect and misleading information to parents. This is particularly pertinent considering the shift to 'local management' of public schools. The catchcry of arguments for local management included claims of increased 'equity, accountability and transparency'.

In theory, parents, through a school's governing council, retain the authority to set the level of fees at their school. However, it is the head teacher who explains the basis of the fee to the council. Some schools simply apply a CPI adjustment to the previous year's fee. That approach cannot be justified, long term, because it is an arbitrary method flying in the face of equity, accountability and transparency.

The recent amendments concerning the Materials and Services fee include a September 2005 sunset clause. To avoid a repeat of this year's fiasco, the challenge is to develop an equitable and transparent model for school fees as well as a process for providing accurate information to parents. Otherwise, as the PM suggests, parents will lose faith in public education and systems of local school management

PAUL MARKS is a lecturer in Legal Studies at Flinders University


EPA's first logging audits: goals and guidelines are frequently ignored in our forests

Last year the State Government announced the Environment Protection Authority (EPA) would be given the job of auditing logging operations in native forests. This decision was partly a result of public outcry over forestry carnage and partly to address conflict of interest claims levelled against the Department of Sustainability and Environment (DSE).

The EPA, appointing independent auditors, was to monitor compliance with the Code of Forest Practices for Timber Production. The Code was to ensure logging contractors carried out their operations with the minimum of environmental disturbance -an interesting theory given that logging a 'coupe' (ie the area to be logged) generally involves clearfelling followed by burning. The Code mandates buffers and filter strips to protect rainforest, creeks and drainage lines. It also contains prescriptions on locating, constructing and rehabilitating 'snig' tracks (the track along which chainsawed logs are dragged'), log 'landings' (where the logs are dragged and stored for sorting and loading), boundary tracks and roads, as well as many other 'goals and guidelines' covenng logging from planning the coupe to rehabilitation.

The first EPA report has now been completed, document1ng the audits undertaken on just 30 of the 455 coupes logged on public land in Victoria during 2002-2003. Unfortunately, the methodology of the audit process has been criticised. For example:

• most of the clearfelled coupes were audited after having been burned rather then while they were being worked or directly after. Thus some evidence of breaches would have been lost, eg coloured tape indicating where buffers were established, or discarded oil

• concerns about the scoring system used and the failure to accord greater weight to more serious breaches of the Code (eg destruction of habitat trees)

• the low number of coupes assessed - just 7% of the total

• the DSE was alerted as to which coupes were to be audited. Hopefully, these 'teething' problems will be remedied if. and when, there is the next EPA audit

Despite spin put on the report that there was a high level of compliance with many aspects of the Code, there were plenty of examples of Code breaches. The most significant included:

• incorrectly delineated buffers, particularly next to ra1nforest (which is supposed to be protected). The audits found that almost 40% of rainforest buffers did not comply with Code stipulations. Some DSE officers were found to be misinterpreting the definition of rainforest thereby failing to demark appropriate buffers

• incorrect marking of filter strips around drainage lines that were incorrectly marked and had trees felled into them, potentially affecting stream-flows

• 'merchantable logs' be1ng left on the ground or burnt rather than collected

• the failure to note significant breaches in coupe diaries and, accordingly, to penalise the logging operators

• inadequate protect1on of trees left standing in clearfelled coupes. Some trees are meant to be left to aid the regeneration process as seed trees or as habitat for arboreal wildlife needing hollows. The report found failures to clear debris, resulting in the burning of these trees in regenerative bums. According to the report this indicated 'an inconsistent understanding and application of the requirements for the retention of habitat trees'

• inappropriate location and maintenance of boundary tracks. Most of the lowest scoring coupes were in East Gippsland, particularly those with problems of rainforest identification and promotion. Yet It is unlikely that any logging contractors will be penalised. What is clear is that the findings are being used to support calls by local conservation groups for a re-assessment of logging regimes and for greater enforcement-for a change, against the industry rather than those protesting to protect the remnants of old growth and high conservation value forests. Serious Code breaches are raised year after year; each year the DSE promises improvements. The next EPA report needs to be an audit of the DSE to see whether it has acted on its promises to better police loggers and to train up its forest overseers to properly identify rainforest

CHE CIENFEUGOS is a Melbourne lawyer and treehugger.

Western Australia

An academic benchmark

The news of WA's latest Supreme Court appointment will interest those career academics who harbour dreams of one day being invited to sit amongst the 'honourable' ones.

Plucked directly from academia, Professor (now justice) Ralph Simmonds was Murdoch University's former Dean of Law and Chairman of the WA Law Reform Commission (LRC). He is the first academic appointed to the judiciary in WA and one of only a handful in Australia.

Time will answer the question- can academics make good judges? In this case, I hazard an affirmative guess. Apart from his acknowledged commercial, securities and corporations law expertise, Simmonds has, over the past eight years, directed the references of the LRC on a vast range of subjects with apparent ease. Attorney General jim McGinty is reported in The Australian as saying that Simmonds will be 'a breath of fresh air' for the judiciary and that the appointment 'reflects our determination to look beyond the usual pool of lawyers when seeking to fill important judicial roles'. Perhaps other Attorneys General will latch onto the trend and uncover more judicial appointments in academic circles. Apart from the obvious talent lying in some of our universities there are other benefits: coming from generally cramped and underpaid university conditions, academic appointments are no doubt easier to please than those Senior Counsel who have to give up their lucrative lifestyles for judicial honour!

TATUM HANDS is a PhD candidate in the Department of Political Science at the University of Western Australia.

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