On 1 December 2016 the NSWCCL and the Marsden family hosted the 2016 John Marsden Memorial Lecture. John Marsden was a former President of the NSWCCL, former President of the NSW Law Society and activist for LGBTIQ rights and civil liberties. The event was held at the Masonic Centre in Sydney. It was a particularly successful and well-attended event, with over 120 people.
Jim Marsden welcomed the audience and gave a powerful personal insight into his brother John's life, which was so tragically damaged by society's then deeply hostile attitude to homosexuals. Read more here.
Pauline Wright, Vice President of the NSWCCL and President elect of the New South Wales Law Society, spoke briefly of her experience as a young lawyer working for John Marsden, before introducing The Hon Michael Kirby AC CMG (an honorary life member of NSWCCL.)
Michael Kirby began with some thoughts on his friend John Marsden, including that John had chosen to be more “in your face” about his sexuality than others at the time.
Kirby's speech (SEE FULL SPEECH HERE) reminded us of the contribution of John Marsden to the education of LGBTIQ students, noting that attendees at the lecture included recipients of scholarships that he established at the University of Western Sydney.
He mentioned prior John Marsden memorial lectures, by Anand Grover, Professor Jenni Millbank and then DPP Nick Cowdery (now an active member of the NSWCCL Committee). He thanked Nick Cowdery for his presence at this lecture.
Michael’s topic was John Marsden, LGBTIQ Rights today: the Ongoing Challenge for Equality. He delivered a clear and illuminating update on LGBTIQ rights issues from an international perspective, organized around a summary of the good news, the bad news and breaking news.
The good news concerns the greater acceptance of LGBTIQ rights and the important legislative improvements that have occurred in many countries in recent years. He noted that in the last 16 years, a very short time relatively speaking, many countries have enacted laws for marriage equality.
Sadly in Australia, out of step with other advanced democracies around the world, we do not yet have marriage equality. Michael Kirby’s reaffirmed his well-known opposition to the plebiscite and listed many other important legislative changes that have not required a plebiscite. Neither should marriage equality. Michael considered that with the blocking of the plebiscite, marriage equality in Australia is certainly a few more years away.
In his summary of the bad news he drew particular attention to the disturbing fact that in many countries around the world, including many Commonwealth countries, violence against LGBTIQ people is endemic.
As breaking news news, Michael reported on a recent important Human Rights Council resolution establishing the appointment of an expert to investigate violence and discrimination based on sexual orientation and gender identity.
It was not an uncontested outcome. African nations in early November forced a vote on whether the appointment of the expert should be delayed. Thankfully that resolution was blocked. However, the vote in favour of the appointment of the expert was close. Several countries abstained or failed to vote. If they had voted, it is entirely possible the vote may have gone the other way.
This is a sobering situation, given that this issue is not about marriage equality or other rights, but violence against LGBTIQ people - a fundamental right that people should not fear violence just because of their sexual orientation.
The audience response to Michael's speech made it clear that they appreciated his informative summary of the state of LGBTIQ rights around the world.
Louise Marsden (one of Johns sisters) gave a vote of thanks to Michael Kirby. In passing she noted their Catholic father's injunction that she and her siblings should not only love well, but love whoever they choose.
The evening finished in a convivial atmosphere, sharing drinks and canapés with old and new friends. It was a fitting reminder of the trail blazing work of John Marsden.
We would like to express our sincere thanks to the Marsden family for supporting the evening.
Jim Marsden Speech
Michael Kirby Speech
Concerns over human rights standards in Australian juvenile justice centres were brought to national attention with Four Corners’ recent expose on Don Dale Detention Centre in the Northern Territory. However, these revelations were not unprecedented. After a two-year inquiry, Australian Law Reform Commission’s 1997 Seen and Heard report presented a number of proposals for reform of juvenile justice processes and detention facilities.
15 years later, the UN Committee on the Rights of the Child (‘UNCRC’) noted that Australia’s juvenile justice system ‘still requires substantial reforms for it to conform to international standards.’ In 2013, the Australian Human Rights Commission called for a review of the Australian Government’s reservations to the Convention on the Rights of the Child. It also recommended ratification of the Optional Protocol to the Convention Against Torture and better monitoring of juvenile justice legislation and policy. These were echoed in a report published by Amnesty International last year, especially to address the overrepresentation of Aboriginal children in detention.
It follows that, while only a small proportion of Australia’s youth population has contact with the criminal justice system, there remain serious, yet still unaddressed, concerns about protection of the rights of those who do. This report will evaluate juvenile justice legislation across Australian states and territories in relation to international human rights law. Those areas of law which do not comply with Australia’s human rights obligations include: the age of criminal responsibility for young people, mandatory sentencing, detention on remand, discipline, living conditions within detention centres and both national and international mechanisms for investigation of detention facilities. In doing so, the report will highlight how law reform and other practical initiatives may be necessary to better protect the civil liberties and human rights of children throughout all stages of the juvenile justice system; in particular, the right to protection from cruel, inhuman or degrading treatment, freedom from arbitrary detention and the right to a fair trial...
 Committee on the Rights of the Child, Consideration of Reports Submitted by States Parties under Article 44 of the Convention, 60th sess, UN Doc CRC/C/AUS/CO/4 (28 August 2012) .
 Australian Human Rights Commission, Children’s Rights Report 2013 (2013)
 Amnesty International, A Brighter Tomorrow: Keeping Indigenous Kids in the Community and Out of Detention in Australia (2015) <http://www.amnesty.org.au/images/uploads/aus/A_brighter_future_National_report.pdf>
NSWCCL wholeheartedly supports the High Court challenge brought by Doctors for Refugees against the Commonwealth and the Minister for immigration and Border Protection in relation to the secrecy provisions of Border Force Act 2015.
The Act contains provisions which allow for the imprisonment for up to 2 years of doctors, social workers and others who disclose ‘protected’ information regarding conditions in immigration detention centres.
As a result these people may be liable to imprisonment for complying with their professional standards and ethical obligation to report abuse, because such abuse occurs in an immigration detention centre. Reporting abuse outside immigration centres is required by legislation, but is criminalized in the context of immigration centres.
There is no convincing justification for the introduction of such draconian provisions. We believe the only reason for these provisions is to silence those working in detention centres. This is contrary to the principles of transparency and open debate, which are fundamental in a democracy. How can people support government policy when they have no idea what is being done in their name?
NSWCCL strongly opposed the introduction of the secrecy provisions of the Border Force Act, which were introduced with bipartisan support. These toxic and undemocratic provisions should be repealed immediately.
In March this year, the NSW government passed legislation aimed at intimidating anti-coal seam gas protesters, joining a growing trend toward restricting environmental activism in Australia. This legislation, The Inclosed Lands, Crimes and Law Enforcement Legislation Amendment (Interference) Bill 2016, follows similar legislation targeting Tasmanian anti-logging protesters and Western Australian environmentalists. The two primary purposes of the bill are to confer expanded powers on police and to severely enhance penalties for protesters.
Expansion of Police Powers
Under this legislation, police are empowered to give directions to protesters if they find the directions necessary to avert a serious safety risk. Because coal seam gas protests often occur on fracturing sites near heavy machinery, it will not be difficult for police to produce pretextual safety-related justifications in order to give directions to protesters, including directions to disperse. It is an offence to fail to heed these directions. The legislation also confers the power to stop, search, and detain without a warrant those protesters whom the police suspect are in possession of devices used to “lock on” or secure a person to fracturing equipment.
These changes give police wide discretion to control the activities of protesters, and even potentially to disperse or preemptively prevent protests based on police assessments of “safety risks,” which are left undefined by the law. They also allow police to search and detain people on the mere suspicion that they possess completely lawful and harmless items such as rope or glue. As the NSW Law Society warned in their submission opposing the bill, these expansions of police power are not offset with increased judicial oversight.
Anti-coal seam gas protesters should comply with police directions if they want to avoid legal consequences, but should also ask police to provide a safety-related justification for any directions, to check that police are operating within the contours of the law. Protesters should be aware that they may be searched or detained on suspicion of possessing securing devices and that these devices, if seized by the police, are forfeited to the government.
Measures to Deter Dissenters
This legislation also significantly increases the penalties associated with anti-coal seam gas protests. Prior to the bill’s passage, it was illegal to trespass on enclosed lands and such trespass was punishable with a maximum $550 fine. The bill increases this penalty by ten times for trespassers who “interfere with…[a] business.” The increased penalty also attaches to trespassers who merely intend to or attempt to interfere with business activities. This means that anti-coal seam gas protesters who are judged to intend to interfere with fracturing activities can be slapped with a $5,550 fine. For organizations which send many protesters to engage in collective action, the combined impact of these fees, assessed against each protester, could be massive.
Perhaps the most serious change enacted by this law is the redefinition of the crime of “interference with a mine” to include actions in which many anti-coal seam gas protesters regularly engage. This crime is punishable by up to seven years imprisonment, providing a serious deterrent against participating in anti-coal seam gas protests. The new definition of “mine” includes all extraction, exploration, construction and decommissioning sites for petroleum, gas and minerals. The crime encompasses intentionally or recklessly hindering the working of the equipment of a mine. The practical effect of this change for anti-coal seam gas protesters is that many of their most effective protest strategies – such as locking on to fracturing equipment or blockading to prevent the movement of such equipment – now constitute the serious crime of “interference with a mine.” These changes heighten the risks that anti-coal seam gas protesters must take to express their dissent, imposing heavy fines and jail time for even the slightest interference with the profit-generating activities of energy corporations.
These changes are an expression of the NSW government’s frustration with anti-coal seam gas protesters, who have been successful in deterring energy corporations’ extraction of coal seam gas through direct action campaigns. Although there have been some cases of minor injuries involved in such environmental protests, they have mostly been associated with police activity in the course of arresting protesters. The concurrent introduction of legislation reducing fines for energy corporations which engage in unlicensed exploration demonstrates that business interests are at least as salient for the NSW government as the “safety” interests which purport to justify these laws. Because the activities which are given heightened penalties in this bill were already prohibited before this law was passed, it is clear that the government intends to send a chilling message to anti-coal seam gas protesters.
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