The failure of Australian legislation on indirect discrimination to detect the systemic racism which prevents Aboriginal people from fully participating in the workforce

Government figures put the current indigenous unemployment rate at around 23%, 3 times the unemployment rate for other Australians. This thesis aims to assess whether Australian indirect discrimination legislation can provide a remedy for one of the causes of indigenous unemployment - the systemic discrimination which can result from the mere operation of established procedures of recruitment and hiring. The impact of those practices on indigenous people is examined in the context of an analysis of anti-discrimination legislation and cases from all Australian jurisdictions from the time of the passing of the Racial Discrimination Act by the Commonwealth in 1975 to the present. The thesis finds a number of reasons why the legislation fails to provide equality of opportunity for indigenous people seeking to enter the workforce. In nearly all jurisdictions it is obscurely drafted, used mainly by educated middle class white women, and provides remedies which tend to be compensatory damages rather than change to recruitment policy. White dominance of the legal process has produced legislative and judicial definitions of "race" and "Aboriginality" which focus on biology rather than cultural difference. In the commissions and tribunals complaints of racial discrimination are often rejected on the grounds of being "vexatious" or "frivolous", not reaching the required standard of proof, or not showing a causal connection between race and the conduct complained of. In all jurisdictions the cornerstone of liability is whether a particular employment term, condition or practice is reasonable. The thesis evaluates the approaches taken by appellate courts, including the High Court, and concludes that there is a trend towards an interpretation of reasonableness which favours employer arguments such as economic rationalism, the maintenance of good industrial relations, managerial prerogative to hire and fire, and the protection of majority rights. The thesis recommends that separate, clearly drafted legislation should be passed to address indigenous disadvantage and that indigenous people should be involved in all stages of the process.

Australian anti-discrimination law

This is the first major Australian anti-discrimination law text book which contains a comprehensive and critical examination of the major statutes and cases in all jurisdictions.

Systemic racism: the hidden barrier to educational success for Indigenous school students

Explanations for poor educational experiences and results for Australian Indigenous school students have, to a great extent, focused on intended or conscious acts or omissions. This paper adopts an analysis based on the legislation prohibiting indirect racial discrimination. Using the elements of the legislation and case law it argues that apparently benign and race-neutral policies and practices may unwittingly be having an adverse impact on Indigenous students' education. These practices or policies include the building blocks of learning, a Eurocentric school culture. Standard English as the language of assessment, legislation to limit schools' legal liability, and teachers' promotions.

An overview of Australian intrans*igence : a systemic Pandora���s Box

Despite the fact that Australia is a socially progressive country and boasts one of the largest Gender Dysphoria Clinics in the Southern Hemisphere, delivering services for almost four decades, Australian Governments fail to arrive at any consensus on the legal and human rights approaches to Trans*people. The subsequent lack of recognition does little more than increase the levels of frustration of and the continued discrimination to Trans*people, including adverse mental health problems, in this country. The purpose of this presentation is to provide an overview of the Australian systems that govern Trans*people and to identify how Trans*identities are manipulated in our Federal system of government; a system which offers little to protect the human rights of Trans*people. In order to contextualise the Australian situation, I commence with a brief description on the layers of government which will include how Australian Trans*people are currently protected under the law in those jurisdictions. I then present some of the impracticalities endured by the transitioning individual (single or married) including change of documentation and legal gender status before, during and after surgical transition for both those born on and off shore. This presentation will also include discussion of legislation that has been described by Trans*advocates as ���Gesture���, ���Cart before the Horse��� and ���Harmful���. I will conclude with a way forward by suggesting the development of a coordinated all of government approach in consultation with key stakeholders for ���Trans* Friendly Legislation��� to improve the human and legal rights, and ultimately the health and wellbeing of Australian Trans*identities.

The New Architecture of EU Equality Law after CHEZ: Did the Court of Justice reconceptualise direct and indirect discrimination?

The Court of Justice���s decision of the 16 July 2015, in Case C-83/14 CHEZ Razpredelenie Bulgaria AD v Komisia za zashtita ot diskriminatsia, is a critically important case for two main reasons. First, it represents a further step along the path of addressing ethnic discrimination against Roma communities in Europe, particularly in Bulgaria, where the case arises. Second, it provides interpretations (sometimes controversial interpretations) of core concepts in the EU antidiscrimination Directives that will be drawn on in the application of equality law well beyond Bulgaria, and well beyond the pressing problem of ethnic discrimination against Roma. This article focuses particularly on the second issue, the potentially broader implications of the case. In particular, it will ask whether the Court of Justice���s approach in CHEZ is subtly redrawing the boundaries of EU equality law in general, in particular by expanding the concept of direct discrimination, or whether the result and the approach adopted is sui generis, one depending on the particular context of the case and the fact that it involves allegations of discrimination against Roma, and therefore of limited general application.

Indirect discrimination and the worker-carer: It's just not working

Although initially Australia saw some high-profile successes in antidiscrimination cases for workers with family responsibilities, recent trends in appellate decisions such as Schou suggest that indirect discrimination concepts do not succeed for workers with family responsibilities. The limitations of an individual complaint model to address systemic disadvantage such as that experienced by &lsquo;workercarers&rsquo; is simply in too much tension with entrenched expectations surrounding the contract of employment and the &lsquo;ideal&rsquo; or &lsquo;unencumbered&rsquo; worker. A re-imagining of the employment relationship and the role of the employer will be necessary to achieve substantive equality for workers with family responsibilities.<br />

Enhancing road safety for young drivers : how Graduate Driver Licensing initiatives can complement "anti-hooning" legislation

Street racing and associated (hooning) behaviours have attracted increasing concern in recent years. While New Zealand and all Australian jurisdictions have introduced ���antihooning��� legislation and allocated significant police resources to managing the problem, there is limited evidence of the road safety implications of hooning. However, international and Australian data suggests that drivers charged with a hooning offence tend to be young males who are accompanied by one or more peers, and hooning-related crashes tend to occur at night. In this regard, there is considerable evidence that drivers under the age of 25 are over-represented in crash statistics, and are particularly vulnerable soon after obtaining a Provisional licence, when driving at night, and when carrying peer-aged passengers. The similarity between the nature of hooning offenders, offences and crashes, and road safety risks for young drivers in general, suggests that hooning is an issue that may be viewed as part of the broader young driver problem. Many jurisdictions have recently implemented a range of evidence-based strategies to address young driver road safety, and this paper will present Queensland crash and offence data to highlight the potential benefit of Graduated Driver Licensing initiatives, such as night driving restrictions and peer-aged passenger restrictions, to related road safety issues, including hooning. An understanding of potential flow-on effects is important for evaluations of anti-hooning legislation and Graduated Driver Licensing programs, and may have implications for future law enforcement resource allocation and policy development.

Obligatory dangerousness criteria in the involuntary commitment and treatment provisions of Australian mental health legislation

Abstract Objective Involuntary commitment and treatment (IC&T) of people affected by mental illness may have reference to considerations of dangerousness and/or need for care. While attempts have been made to classify mental health legislation according to whether IC&T has obligatory dangerousness criteria, there is no standardised procedure for making classification decisions. The aim of this study was to develop and trial a classification procedure and apply it to Australia's mental health legislation. Method We developed benchmarks for ���need for care��� and ���dangerousness��� and applied these benchmarks to classify the mental health legislation of Australia's 8 states and territories. Our focus was on civil commitment legislation rather than criminal commitment legislation. Results One state changed its legislation during the course of the study resulting in two classificatory exercises. In our initial classification, we were able to classify IC&T provisions in legislation from 6 of the 8 jurisdictions as being based on either ���need for care��� or ���dangerousness���. Two jurisdictions used a terminology that was outside the established benchmarks. In our second classification, we were also able to successfully classify IC&T provisions in 6 of the 8 jurisdictions. Of the 6 Acts that could be classified, all based IC&T on ���need for care��� and none contained mandatory ���dangerousness��� criteria. Conclusions The classification system developed for this study provided a transparent and probably reliable means of classifying 75% of Australia's mental health legislation. The inherent ambiguity of the terminology used in two jurisdictions means that further development of classification may not be possible until the meaning of the terms used has been addressed in case law. With respect to the 6 jurisdictions for which classification was possible, the findings suggest that Australia's mental health legislation relies on ���need for care��� and not on ���dangerousness��� as the guiding principle for IC&T. Keywords: Involuntary commitment; Mental health legislation; Dangerousness; Australia

A comparative analysis of Australian sex offender legislation for sex offender registries

Australia has followed the course taken by other English-speaking countries in recent years of enacting legislation that requires convicted sexual offenders to register personal details with law enforcement agencies. These laws have been enacted to protect the public from the perceived threat posed by sex offenders, but have been written with little apparent reference to the available research literature about the nature and extent of this threat. In addition, there is no empirical evidence supporting the effectiveness of legislatively based sex offender registries to either reduce sexual offending or to enable the police to investigate sex crimes and apprehend offenders. This article compares and contrasts the current laws governing sex offender registration enacted by the various states and territories in Australia, and offers a critical analysis of their provisions in light of the research literature on sexual offending.<br />

Control of labor. Resolved: that labor organizations should be under the jurisdiction of anti-trust legislation.

Mode of access: Internet.

Exclusionary DNA of forensic workers and Australian forensic procedures legislation

Consideration of regulatory issues covering exclusionary DNA of forensic workers - probative effect of eliminating extraneous DNA in a criminal prosecution - current regulatory scheme leaves the legal position of forensic workers' exclusionary DNA obscure.

Global rules on conflict-of-laws matters in international insolvency law cases: An Australian perspective

The 2012 Report ���Transnational Insolvency: Global Principles for Co-operation in International Insolvency Cases��� ��� commissioned by The American Law Institute in conjunction with The International Insolvency Institute ��� annexed 23 ���Global Rules on Conflict-of-Laws Matters in International Insolvency Cases���. These proposed ���Global Rules��� are intended to ���serve as legislative recommendations��� to (inter alia) promote uniformity and greater certainty in the unpredictable area of conflict of laws. This article provides a brief commentary upon the 23 proposed Global Rules from an Australian perspective (comparing the effect and intent of each rule with the current Australian conflict-of-laws position) and offers some conclusions as to the merits of the ���Global Rules��� initiative.

'Rule of Law and Politics of Anti-Corruption Campaigns in a Post-Authoritarian State- The Nigerian Case'

This article evaluates the anti-corruption campaign instituted in Nigeria following on the post-authoritarian transition in the country, with specific focus on political corruption. The anti-corruption campaign is being prosecuted within a context where law is as critical a factor as politics. This article examines whether the judiciary, in view of its accountability deficit, can offer legitimacy to the campaign. How has its questionable credentials impacted on its involvement in the campaign to sanitise public life? What has been the impact of the judicial role on the rule of law? These are some of the important questions this article seeks to answer. The inquiry in this article demonstrates how the guardian institution of the rule of law faces an uphill task in the performance of that role in a post-authoritarian context.