Civil Disobedience and Judicial Theories of Political Change
This post considers the latest episode of Australia’s engagement with civil disobedience under its constitutionally ‘implied freedom of political communication’ — Kvelde v New South Wales (‘Kvelde’). In Kvelde a judge of the New South Wales Supreme Court followed the tendency of some High Court judges of reducing the democratic value of civil disobedience to binary terms: if a form of political speech is already illegal, the Court will not engage with further legislative acts seeking to increase penalties for it. I describe this as the ‘binary approach.’ I argue that the binary approach reflects a particular judicial theory of political change not necessarily prescribed by the freedom, that is also out of step with historical Australian political practices.
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The Long Overdue Fall of Al-Kateb
On the 8th of November, the High Court of Australia delivered a landmark ruling that the indefinite detention regime under the Migration Act is unconstitutional, overruling the 2004 decision of Al-Kateb. The decision, both in form and substance, sent shockwaves through Australia’s legal and political establishment. In adopting the relatively uncommon procedure of issuing orders immediately following the hearing (with reasons to follow), a gap was created where politicians rushed to come up with a legislative response in the absence of any clearly articulated constitutional rules. In an island country, where several elections in the last 20 years have been ostensibly won and lost over concerns of ‘illegal’ immigration, this decision has been political dynamite.
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Limited Success
On 11.11 Australia and Tuvalu concluded a treaty on establishing the ‘Falepili Union,’ which deals with three pressing matters (art.1): climate change adaptation, collective security, and a new human mobility pathway. Hailed as ‘groundbreaking’, and ‘the most significant Pacific agreement in history,’ the Treaty certainly constitutes a profound step forward in building climate-resilient international relations, especially with its contributions to international migration law and international law on statehood. However, it also falls short in several instances, especially in fully respecting Tuvaluan equality in relation to Australia.
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Undermining the Energy Transition
Australia is confronted with three multi-billion dollar investment treaty claims from a mining company. The basis for two of the claims is a judgment from the Queensland Land Court, in which the court recommended that no mining lease and environmental authority should be granted to a subsidiary of the claimant for its coal mine. The investment treaty arbitration serves as another illustration of how the international investment protection system poses a threat to an urgent and just energy transition. In this blog post, I explain the background of the investment treaty claim, the decision of the Queensland Land Court, and argue that the Court’s decision is an important precedent for the connection between coal, climate change, and human rights.
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A Frozen Constitution in a Sunburnt Country
Australia’s Constitution remains frozen, with the loss of a referendum on 14 October 2023. Only eight out of forty-five national referendums to amend the Constitution have succeeded, with no successful change since 1977. The 2023 referendum would have recognised Indigenous Australians in the national Constitution and provided a means, described as a ‘Voice’, for them to make representations to Parliament and the Executive Government on matters relating to Aboriginal and Torres Strait Islander peoples. In this post, I will seek to give an overview of the reasons for the failure of the referendum, including the ‘No’ arguments, factors that contributed to the ‘No’ vote, and the demographics of the voting outcome.
Continue reading >>A First Nations Voice to Parliament
Last weekend saw tens of thousands of Australians rally in support of a referendum on an Indigenous Voice to Parliament. The Voice would be a representative body comprised of Indigenous Australians empowered to make representations to Parliament and the federal government on matters that relate to Aboriginal and Torres Strait Islander people. Its animating objective is to guarantee that Aboriginal and Torres Strait Islander peoples can have a say in the development of law and policy that affects them. The Voice is not a silver bullet. But if the referendum fails, basic problems concerning the relationship of Aboriginal and Torres Strait Islander peoples and the State will remain unaddressed. Indigenous Australians will also continue to struggle to have their interests considered in the processes of governance.
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Environmental Protest and Civil Disobedience in Australia
In Germany, disruptive protest demanding climate change mitigation policies has provoked popular and constitutional discussion. Commentators have questioned whether acts of illegality committed as civil disobedience should be treated distinctly from ‘ordinary’ criminality and punished more leniently. In other parts of the world, however, legislative activity has singled out the illegality involved in civil disobedience to the opposite end. Legislatures have introduced laws that radically increase penalties for existing offences involved in disruptive protest and blockades, conferred new powers on police, and created new offences for previously legal forms of protest. In this post I explore an Australian legislative trend of the last decade that specifically targets environmental civil disobedience by imposing additional criminal penalties upon its exercise. The Australian case study is a cautionary tale of what can follow a failure to recognise democratic value in civil disobedience and treat it with constitutional nuance.
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The Road to Repression
On 2 December 2022, the UN Special Rapporteur Freedom of Association sent a remarkable Tweet. “Australia – ”, the Special Rapporteur tweeted, “I am alarmed at #NSW court’s prison term against #ClimateProtester Deanna Coco and refusal to grant bail until a March 2023 appeal hearing. Peaceful protesters should never be criminalised or imprisoned.” The Special Rapporteur was referring to the arrest of Deanna ‘Violet’ Coco to 15 months in prison with a non-parole period of eight months for blocking one of five lanes of traffic on Sydney Harbour Bridge during a climate change protest for 28 minutes.
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Rising Before Sinking
On 22 September 2022, just one day before global climate protests took place in around 450 locations, the UN Human Rights Committee (Committee) has published its landmark decision in the case Daniel Billy et al. v. Australia. In casu, the Committee found that Australia failed to adequately protect members of an indigenous community present in four small, low-lying islands in the Torres Strait region from adverse impacts of climate change, which resulted in the violation of the complainants’ rights to enjoy their culture (Art. 27 ICPPR) and to be free from arbitrary interferences with their private life, family and home (Art. 17 ICCPR). The Committee thereby issued the first decision at the international level to tackle substantive human rights questions in the context of climate change that relate to the current situation of small islands and their indigenous inhabitants.
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The Republic Debate in Australia
With the death of long reigning monarch Queen Elizabeth II, and the ascension of King Charles III, a conversation has been reignited as to whether it is time for Australia to move to a republic. In Australia, this conversation is complicated by the failure of the republic referendum in 1999. The divisions over the model of selecting the Head of State that marred that vote remain unresolved, and there is a distinct lack of any urgency within the broader Australian public.
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What Makes Responsible Government Responsible?
How important is it for a Parliament to know which Ministers are appointed to administer which departments? This odd question has been at the centre of a furore in Australia in recent weeks. It has focussed attention on the legal and political requirements for ‘responsible government’, to use the characterisation of the relationship between Crown, Ministers and Parliament that is in common use in parliamentary systems in the British tradition, including those in Australia. It raises some intriguing questions for the construction of the executive chapter of the Australian Constitution, which are all the more important in times of global concern about democratic decline.
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Novak Djokovic and the Australian Migration System
The cancellation of tennis star Novak Djokovic’s visa by the Australian government last week highlighted some of the legal contestations and confusion surrounding vaccination mandates, but also gave a glimpse of Australian migration and public law. There is hope that the proceeding will provide some momentum for the reform of its most controversial aspects.
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Wie die Überwachung des öffentlichen Raums den politischen Protest in Australien aushöhlt
Während Protestbewegungen auf der ganzen Welt an Schwung gewinnen - von Extinction Rebellion, Black Lives Matter bis hin zu starken Pro-Demokratie-Protesten in Chile und Hong Kong - bauen Regierungen auf der ganzen Welt ihre Überwachungskapazitäten im Namen des "Schutzes der Öffentlichkeit" und der "Bewältigung von Notfällen" aus. Australien ist keine Ausnahme von diesem Trend.
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How Public Space Surveillance is Eroding Political Protests in Australia
As protest movements are gaining momentum across the world, with Extinction Rebellion, Black Lives Matter, and strong pro-democracy protests in Chile and Hong Kong are taking centre stage, governments around the world are increasing their surveillance capacities in the name of “protecting the public” and “addressing emergencies”. Australia is not an exception to this trend.
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Rhetorik der Terrorismusbekämpfung, das Abschreckungsparadigma und das Ende des Asyls
Obwohl der Zusammenhang zwischen Terrorismus und Asyl in Australien keine empirische Grundlage hat, haben bestimmte Gesetze, Maßnahmen und Praktiken, die im Jahr 2001 zur Terrorismusbekämpfung eingeführt wurden, bis heute Bestand - insbesondere die Offshore-Abfertigung von Asylbewerbern, die auf dem Seeweg ankommen. Ich behaupte, dass Australiens Abschreckungsmodell eine negative "Signalwirkung" auf die heutige Asylpolitik und -praxis einiger europäischer Staaten hatte.
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Counterterrorism rhetoric, the deterrence paradigm, and the end of asylum: an antipodean viewpoint
The Australian government’s agenda of progressive border securitization was, initially, sustained by counter-terrorism rhetoric. However, the focus of concern has shifted away from the potential terrorist threat posed by asylum seekers towards deterring unauthorised maritime migration. Though the nexus between terrorism and asylum lacks an empirical basis in Australia, certain laws, policies and practices premised on counterterrorism in 2001 endure to this day – offshore processing of asylum seekers arriving by sea, notably. I argue that Australia’s deterrence model has had a negative ‘signalling effect’ on some European states’ contemporary asylum policies and practice.
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Eine Kultur der Ausgrenzung wird in die Extreme getrieben
Seit seinen Anfängen hat Australien seine weitreichenden verfassungsrechtlichen Befugnisse im Bereich der Ausländer- und Einwanderungspolitik genutzt, um ausgrenzende Gesetze zu erlassen. In den zwei Jahrzehnten seit dem 11. September hat die Tendenz zur Ausgrenzung deutlich zugenommen.
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Post-9/11 Australia has pushed a tradition of exclusion to constitutional extremes
Since its earliest days, Australia’s sweeping constitutional powers over aliens and immigration have been drawn on to support broad exclusionary laws. In the two decades since 9/11, the tendency towards exclusion has increased significantly.
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Australia and the right of repatriation
A key pillar of Australia’s response to the COVID-19 crisis has been its closure of international borders. Since Australia’s constitution lacks an express bill of rights, Australians stranded abroad have turned to the United Nations as a last resort.
Continue reading >>The Australian Response to COVID-19: A Year in Review
Australia’s legal and political response to the outbreak of COVID-19 has been marked by the formation of a new intergovernmental forum, the National Cabinet, to lead a coordinated national response to the pandemic, and the declaration of successive states of emergency at the federal and state levels activating extraordinary executive powers, including limitations on movement and border closures. Australia’s response has, to date, resulted in the successful curtailment of community transmission of COVID-19 in Australian States and Territories. However, the response to the pandemic has also involved the removal of existing mechanisms of executive accountability, suspensions of Parliament and little parliamentary scrutiny or other oversight of executive action. These democratic deficits present fresh challenges for Australia going forward, particularly as the National Cabinet structure becomes permanent and the states of emergency endure for the foreseeable future.
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Optionen für die dritte Option – Fortschrittliche Regelungsmodelle anderer Länder
Der am 08.11.2017 veröffentlichte Beschluss des Bundesverfassungsgerichts enthält eine Deadline, die es in sich hat. Bis zum 31.12.2018 muss die Legislative eine verfassungsgemäße Lösung finden, mit der die angegriffenen Regelungen des Personenstandsgesetzes ersetzt werden. Der Beschluss nennt zwei mögliche Lösungswege: die Schaffung einer dritten Option und den generellen Verzicht auf einen personenstandrechtlichen Geschlechtseintrag. Beide Lösungswege bedeuten Neuland für die rechtliche Geschlechterordnung, allerdings nur für Deutschland. Wer ins Ausland blickt, stellt fest: Andere Länder haben längst innovative Regelungsmodelle gefunden.
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Bicameralism: an antipodean perspective
As outposts of the British Empire, the various state parliaments of Australia, and New Zealand as a whole, inherited the Westminster system of government with an elected lower house, in which government is formed, and an unelected house of review. In little under two hundred years, these parliaments have undergone a range of reforms, including democratisation of their upper houses. Two jurisdictions, however, took bolder steps: the Australian state of Queensland, and New Zealand, both demolished their upper houses entirely – with mixed results, at best.
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“Not universal, but all over the place”: Zur Globalität der Geschichte des Völkerrechts
Eine Weltgeschichte des Völkerrechts: Da steckt gleich eine Handvoll höchst […]
Continue reading >>Adressing Race in Australia’s Constitution
By PAUL KILDEA Amending the text of the Australian Constitution […]
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