On the right to silence, all the rhetoric is deafening

David Dixon | SMH | 16 August 2012

Premier Barry O'Farrell's announcement of plans to restrict the right to silence in NSW has set off another rhetorical joust between civil libertarians and critics of this ''right''.

While one side complains about the loss of liberty, the other claims change is necessary because organised criminals exploit the justice process. But both ignore key empirical and legal realities.

Much has been made of the fact that England introduced this change in 1994. However, it should be understood the change was the result of a sustained police campaign that was about politics, not about the reality of criminal investigation.

The right to silence had become a symbolic issue in determining who controlled criminal justice. Its restriction went against the recommendations of two royal commissions and a mass of empirical research (some of it by me).

This research showed that the supposed link between silence and organised criminals was exaggerated, with police sceptical about the effect of the 1994 law on such criminals.

It also showed that real police interviews are unlike those seen in Law and Order and The Bill, in which suspects either refuse to answer questions or skilful police interviewers shift them from denial to confession. In reality, most suspects confess immediately or maintain their denial, whatever tactics police use.

Where is the evidence that a change to the right to silence is necessary?

There has been very little research conducted in Australia. However, in 2006 I conducted a study of every recorded interview across NSW for an entire year, which found a situation very similar to that in England.

The fact is, people tend not to use the right to silence: it's hard not to answer questions and it's usually against your interest to refuse to do so. If police have significant evidence against you, it's best to co-operate.

In my research, the notable cases of failure to answer questions involved young, alienated men who refused to co-operate with police as a mark of honour, even though there was plenty of evidence against them. Their confessions weren't needed, and changing the laws of evidence wouldn't have changed their behaviour.

Best practice in criminal investigation would require police to interview suspects on the basis of evidence rather than relying on a confession. The problems of the latter approach - police malpractice and miscarriages of justice - are well known from a series of high-profile cases in England, Australia and the US.

English police interviewing techniques have substantially changed since the 1990s: they increasingly rely on evidence collected before interview. Australian police are adopting the English approach.

If our police need more resources and/or powers to use phone tap and intercept evidence, DNA and CCTV, in order to provide the evidence needed before interviewing suspects, that's a separate, and equally controversial, debate. We need to talk about how criminal investigation can and should be conducted, not spend time on exchanges of rhetoric about the right to silence. If Premier O'Farrell gets his way, it is likely to have consequences that his government won't welcome. The European Court of Human Rights has ruled that silence can be used as evidence against defendants only if they had received legal advice before being questioned: how otherwise is a lay person to know what might harm their defence in court if they don't mention it to police?

So if NSW changes its law and an appeal goes to the High Court, the Court is likely to find that using silence against a person who did not have legal advice denies them the right to a fair trial.

This means restricting the right to silence has a major and very expensive corollary: the government would have to fund free access to legal advice and organise duty solicitors to be on hand in police stations.

England has done so since the mid-1980s. In the latest research in England, 48 per cent of suspects interviewed in police custody had legal advice. By contrast, almost nobody does in NSW, because there is no public funding or organised system (except for juveniles and indigenous people).

Providing publicly-funded legal advice would be massively expensive, yet it is an inevitable consequence of restricting the right to silence.

The O'Farrell government needs to be very careful what it wishes for.

Professor David Dixon is Dean of Law at UNSW. His books Law in Policing and Interrogating Images report empirical research on police questioning of suspects in England and NSW.

The NYPD's criminal stop-and-frisk record

Darius Charney | The Guardian |  15 May 2012 

A march earlier this month against the NYPD's stop-and-frisk policy, led by community leaders and Princeton University professor and activist Cornel West. Photograph: Scott Houston/Corbis

The police department's policy amounts to racial profiling and the illegal harassment of thousands of New Yorkers a day.

Last week, the New York Police Department released quarterly data on its stop-and-frisk program. The numbers are worse than ever, and they confirm everything that is wrong with this practice.

From January through March 2012, 203,500 New Yorkers were stopped and frisked. That's an average of 2,200 people per day. Twenty-two hundred people a day, many of whom are stopped for no reason – or the wrong reason, like the color of their skin, or their age, or their gender expression – patted down, sometimes roughed-up, intimidated, asked for ID in their own neighborhood, sometimes in their own buildings, asked to empty their pockets. Twenty-two hundred people a day stopped by police as they walk down the street on their way home, to school, the corner deli, or to see friends. Twenty-two hundred people a day asked to justify their presence in the city in which they live.

This is already an outrage; but if you look further at the numbers, it's even more outrageous. Despite years of public outcry and lawsuits, theNYPD is stopping even more people than in previous years. In 2011, the department stopped a record 685,724 New Yorkers, a 600% increase since Raymond Kelly took over as police commissioner in 2002. But the 2012 numbers are on track to be still worse. At the rate it's going, the NYPD will stop nearly three-quarters of a million New Yorkers in 2012.

Eight-seven per cent of the people stopped by the NYPD in the first quarter of 2012 were black or Latino, while only 54% of the city's population is black or Latino. Despite claims to the contrary, the data show that even when you take other factors into consideration – including crime rates –stops are disproportionately concentrated in black and Latino neighborhoods. And in all neighborhoods, blacks and Latinos are significantly more likely to be stopped than whites. The data also show that NYPD officers use physical force more often when stopping blacks and Latinos.

Stop-and-frisk, as practiced by the NYPD, amounts to racial profiling, which is illegal. It violates the 14th amendment of the US constitution, which prohibits racial discrimination, and the fourth amendment, which protects against unreasonable searches and seizures.

Stop-and-frisk also fails to make New Yorkers safer. There is an implied trade-off that New Yorkers are told to accept: OK, so the practice is intrusive and humiliating and it violates your rights, but it's necessary to fight crime. That is a lie. The vast majority of stop-and-frisks – 90%, in the first quarter of 2012 – do not uncover evidence of a crime. Less than 1% lead to recovery of guns, the supposed goal of the stop-and-frisk program.

The NYPD is not catching criminals; they are stopping and humiliating thousands of New Yorkers a day who have done nothing wrong.

There is no evidence that stop-and-frisk is responsible for the city's drop in crime rate in recent years. On the contrary, New Yorkers feel less safe and often have their lives upended by unlawful stops. Many communities, especially communities of color, feel that they are under siege. To them, the presence of police on the streets signals not protection against crime, but a danger of becoming the victims of a crime: being illegally stopped, harassed, possibly beat up.

The Center for Constitutional Rights is suing New York City to end these gross violations of hundreds, or thousands, of people's rights. Occupying entire neighborhoods and treating vast portions of the city's citizenry as suspects violates the US constitution and fundamental human rights.

Teacher fired over pregnancy can sue religious school

Terry Baynes | Reuters | May 16 2012

An appeals court on Wednesday revived a Florida teacher's lawsuit against a Christian school that fired her after she admitted to conceiving a child before her marriage.

Overturning a lower court ruling in the school's favor, the U.S. Court of Appeals for the 11th Circuit found that Jarretta Hamilton was entitled to a trial on her claims of pregnancy discrimination by the Southland Christian School in St. Cloud, Florida.

The fourth-grade teacher informed administrators in April 2009 that she was pregnant and needed to take maternity leave. During the conversation, she admitted that she had conceived the child three weeks before her February wedding.

The school fired her a week later. Administrator John Ennis explained that "there are consequences for disobeying the word of God," according to the court opinion.

Hamilton sued the school in 2010 under a federal law that bars discrimination based on pregnancy, seeking compensation for lost wages and emotional distress.

A federal district court ruled in the school's favor before a trial, finding that Hamilton failed to establish that she was fired for her pregnancy rather than moral concerns over her premarital sex.

The three-judge appeals panel disagreed.

The Atlanta-based court pointed to evidence that the school may have been more concerned about Hamilton's request for leave than about her admission to having premarital sex.

Ennis expressed concern over finding a replacement teacher, Hamilton testified.

"Hamilton has established a genuine issue of material fact about the reason that Southland fired her. The ultimate issue is one for a jury to decide," Judge Edward Carnes wrote for the unanimous panel, sending the case back to the lower court for a trial.

David Gibbs, a lawyer for Southland Christian School, said in a statement that he would vigorously defend the school's religious rights before the district court. Edward Gay, who represented Hamilton, was not immediately available for comment.

David Marr & Jim Wallace: Gays and Lesbians Do Not Belong in the Classroom

Festival of Dangerous Ideas | October 2011

Exempt from anti-discrimination laws, religious organisations of all faiths have the right to decide who they employ in their schools, and who they sack, on questions of faith and morals. For many Australians the idea that gay men and lesbians don't belong in the classroom is an unjust anachronism, but parents are opting in large numbers to send their children to schools that offer a 'values-driven' education. If there is a place for faith in the classroom, does equality of opportunity have to take second place, or can religious values and equality be reconciled?

David Marr is an Australian journalist, author, and political commentator. He writes for the Sydney Morning Herald. Jim Wallace is the managing director of the Australian Christian Lobby.
Chaired by Ann Mossop

Watch David Marr and Jim Wallace debate here

The Prisoner as a Human Being

Jon Stanhope | Right Now | 16 February 2012



This article is part of our February theme, which focuses on one of the great silences in the human rights conversation in Australia: Prisoners’ Rights. Read our Editorial for more on this theme.

In 2004 the Australian Capital Territory (ACT) Legislative Assembly enacted the Human Rights Act, the first Bill of Rights to be passed into law in Australia. In passing the Act, the ACT Government made an overt and very public commitment to the universality and inalienability of human rights.

In essence the Act provides that no one may be treated or punished in a cruel, inhumane or degrading way: that even the worst among us have human rights that should be respected even if we have been convicted of the most heinous crimes.

In 2009 the Alexander Maconochie Centre, the ACT’s first prison, became operational. The Government was motivated, when taking the decision to build the prison, by the opportunity to learn from the experience of other prisons in operation in Australia and to avoid the temptation, as politically enticing as it is, to employ the practice and language of retribution, punishment and demonisation.

The prison was the first in Australia to be built and operated in accordance with human rights legislation and principles. The fact it is named in honour of Alexander Maconochie, superintendent of the Norfolk Island penal colony from 1840 to 1844, a prison reformer unmatched in Australia before or since, was to be a constant reminder of the prison’s aims as a reforming institution, one which reflects a commitment to human rights and a belief in the possibility of rehabilitation and redemption.

The most recent Productivity Commission Report on Government Services, released on 31 January 2012 gives a first glimpse of some of the outcomes of the operational approach employed at the Alexander Maconochie Centre (AMC).

It reveals that the percentage of eligible prisoners employed at the AMC was 92.3 percent against a national average of 76.1 percent; the number of AMC prisoners enrolled in education and training is 92.0 percent as opposed to 34.8 percent nationally; and AMC prisoners spend an average of 14.1 hours out of cells while nationally prisoners are out of cells for 11.4 hours a day. Prisoners at AMC may also receive visitors six days a week including up until 8 pm and the crude imprisonment rate in the ACT is 68 per 100,000 while nationally it is 169 per 100,000. It is not surprising that the cost per prisoner of providing corrective services in the ACT is also the highest in Australia.

Prisoners are perhaps the last discrete group of human beings who are, in a general way, publically vilified, dehumanised and demonised within Australia without fear of censure.

Tough laws on people smuggling are a con

Michael Duffy | SMH | February 13, 2012

Occasionally I spend a day wandering from trial to trial in the Downing Centre, Sydney's giant justice factory. It's one way of keeping in touch with certain aspects of the city. A while ago I began to notice small dark men in the dock, always with an interpreter.

These are the crew from the Indonesian boats that carry asylum seekers to our shores, charged with people smuggling and farmed out by the Commonwealth to the states for justice. There are lots of them: as of last September, almost 200 had been convicted and another 251 were due before the courts.

The trials generally follow the same pattern: a naval and a federal police officer are flown down from north Australia to give evidence, followed by half a dozen passengers from the boat, who are brought from some distant detention centre to confirm that the accused was in fact responsible for sailing the vessel. The evidence can be interesting when the passengers describe their journey from home in some detail.

If you attend one of these trials, which are open to anyone, you will notice a strange thing. Although our leaders have long assured us the crew of these boats are vile people smugglers preying on human misery, in fact they often seem to come from far more wretched circumstances than their passengers.

These are frequently well educated people such as engineers who, despite the problems that made them leave home, were wealthy enough to raise something like $10,000 for the passage of each member of their families. And most of them have a future in Australia. The fishermen, in contrast, are the poorest of the Indonesian poor - as their appearance indicates, they come from the fringes of the Javanese empire.

Small fish in rough seas

Michael Gordon | The Age | February 8, 2012

Greens senator Sarah Hanson-Young wants to stop hundreds of so-called Indonesian people smugglers from serving mandatory five-year terms in Australian jails. As Michael Gordon reports, the treatment of small-time players has big consequences.

Budi was waiting for a bus in Jakarta when he says a stranger made him an offer that was too good to refuse - 10 million rupiah (about $A1000) to crew a boat that would take a group of people to an unnamed island.

He was 19 years old, uneducated and a long way from his home on the Indonesian island of Ambon. Another man at the bus stop was offered the same deal and, like Budi, agreed without a second's hesitation. The only catch, they were told, was that they wouldn't get paid until they came back with the boat.

What neither of them understood was that there was never any chance that the boat would make the return journey, or that they would receive the payment. What neither could envisage, or even vaguely comprehend, was that they would wind up in an Australian jail facing a serious criminal charge with a mandatory five-year jail term.

Budi, not his real name, is an accidental people smuggler, if you accept that cooking noodles and keeping the engine going on an unseaworthy fishing boat for a group of desperate asylum seekers constitutes people smuggling. He is one of about 500 Indonesians in the Australian criminal justice system who share a common bond.

Almost all of them, according to what they have told lawyers, Indonesian officials and Australian Federal Police, are peripheral players in what, for a few Mr Bigs (who never accompany their human cargo to its final destination), is a lucrative business.

It is a sad reflection of the toxic debate between Labor and the Coalition on asylum seekers that one of the few areas of common ground is their support for legislation that denies judges any discretion in sentencing those who crew boats that carry asylum seekers to this country.

Under amendments passed by the Rudd government with Coalition support, so long as there are more than five people on the boat, crew members are charged with aggravated people smuggling and, if found guilty, sentenced to a mandatory term of five years in jail, with a minimum of three.

Today, Greens senator Sarah Hanson-Young will challenge the consensus of the major parties by introducing a private member's bill to remove mandatory minimum sentences for people-smuggling offences, and enable the courts to distinguish between the architects of the trade and the incidental players.

While Hanson-Young's Migration Amendment (Removal of Mandatory Minimum Penalties) Bill would appear doomed, it will prod the conscience of MPs on both sides of the Parliament who agree with human rights advocates and judges that the mandatory jail terms for those who crew asylum seeker boats are problematic, to say the least, on several fronts.

Labor fuzzy to the core

Mark Latham | AFR | 9 February 2012

Recently The Australian newspaper has had a lot of fun with Labor’s fuzzy embrace of the concept of social inclusion. In particular, it has highlighted the haplessness of the new Minister for Social Inclusion, Mark Butler. When asked what the concept meant, Butler fell back on the cliché of “social inclusion meaning different things to different people”.

When pressed for greater detail, the best he could say was: “Social inclusion is about government delivering services and supports to people experiencing social exclusion in different ways.”

Behind the Monty Pythonesque humour of a minister defining social inclusion as the opposite of social exclusion, rests a sad political truth.

Labour-leaning parties no longer have anything worthwhile to contribute to the egalitarianism of society. The class war has ended. People who grew up working class now aspire to the ownership of capital. After two decades of robust economic growth, Australia has entered an age of affluence and social mobility.

The losers left behind in this process, however, are forever falling further behind. They are part of an entrenched underclass, just 5 per cent of the population – easily ignored by the political system. The Liberal Party assumes they vote Labor, while the ALP takes them for granted. Their closest contact with Labor politicians is through ethnic branch-stacking.

In no part of the Western world have left-of-centre parties found a solution to the problems of the underclass. Their fallback position has been to establish publicly funded committees such as social inclusion boards, thereby giving the appearance of caring about the disadvantaged, while in practice achieving very little. This is the modern version of the warm inner glow.

The Caging of America: Why do we lock up so many people?

 Adam Gopnik | The New Yorker | January 30, 2012

A prison is a trap for catching time. Good reporting appears often about the inner life of the American prison, but the catch is that American prison life is mostly undramatic—the reported stories fail to grab us, because, for the most part, nothing happens. One day in the life of Ivan Denisovich is all you need to know about Ivan Denisovich, because the idea that anyone could live for a minute in such circumstances seems impossible; one day in the life of an American prison means much less, because the force of it is that one day typically stretches out for decades. It isn’t the horror of the time at hand but the unimaginable sameness of the time ahead that makes prisons unendurable for their inmates. The inmates on death row in Texas are called men in “timeless time,” because they alone aren’t serving time: they aren’t waiting out five years or a decade or a lifetime. The basic reality of American prisons is not that of the lock and key but that of the lock and clock.

That’s why no one who has been inside a prison, if only for a day, can ever forget the feeling. Time stops. A note of attenuated panic, of watchful paranoia—anxiety and boredom and fear mixed into a kind of enveloping fog, covering the guards as much as the guarded. “Sometimes I think this whole world is one big prison yard, / Some of us are prisoners, some of us are guards,” Dylan sings, and while it isn’t strictly true—just ask the prisoners—it contains a truth: the guards are doing time, too. As a smart man once wrote after being locked up, the thing about jail is that there are bars on the windows and they won’t let you out. This simple truth governs all the others. What prisoners try to convey to the free is how the presence of time as something being done to you, instead of something you do things with, alters the mind at every moment. For American prisoners, huge numbers of whom are serving sentences much longer than those given for similar crimes anywhere else in the civilized world—Texas alone has sentenced more than four hundred teen-agers to life imprisonment—time becomes in every sense this thing you serve.

For most privileged, professional people, the experience of confinement is a mere brush, encountered after a kid’s arrest, say. For a great many poor people in America, particularly poor black men, prison is a destination that braids through an ordinary life, much as high school and college do for rich white ones. More than half of all black men without a high-school diploma go to prison at some time in their lives. Mass incarceration on a scale almost unexampled in human history is a fundamental fact of our country today—perhaps the fundamental fact, as slavery was the fundamental fact of 1850. In truth, there are more black men in the grip of the criminal-justice system—in prison, on probation, or on parole—than were in slavery then. Over all, there are now more people under “correctional supervision” in America—more than six million—than were in the Gulag Archipelago under Stalin at its height. That city of the confined and the controlled, Lockuptown, is now the second largest in the United States.

The accelerating rate of incarceration over the past few decades is just as startling as the number of people jailed: in 1980, there were about two hundred and twenty people incarcerated for every hundred thousand Americans; by 2010, the number had more than tripled, to seven hundred and thirty-one. No other country even approaches that. In the past two decades, the money that states spend on prisons has risen at six times the rate of spending on higher education. Ours is, bottom to top, a “carceral state,” in the flat verdict of Conrad Black, the former conservative press lord and newly minted reformer, who right now finds himself imprisoned in Florida, thereby adding a new twist to an old joke: A conservative is a liberal who’s been mugged; a liberal is a conservative who’s been indicted; and a passionate prison reformer is a conservative who’s in one.

The scale and the brutality of our prisons are the moral scandal of American life. Every day, at least fifty thousand men—a full house at Yankee Stadium—wake in solitary confinement, often in “supermax” prisons or prison wings, in which men are locked in small cells, where they see no one, cannot freely read and write, and are allowed out just once a day for an hour’s solo “exercise.” (Lock yourself in your bathroom and then imagine you have to stay there for the next ten years, and you will have some sense of the experience.) Prison rape is so endemic—more than seventy thousand prisoners are raped each year—that it is routinely held out as a threat, part of the punishment to be expected. The subject is standard fodder for comedy, and an uncoöperative suspect being threatened with rape in prison is now represented, every night on television, as an ordinary and rather lovable bit of policing. The normalization of prison rape—like eighteenth-century japery about watching men struggle as they die on the gallows—will surely strike our descendants as chillingly sadistic, incomprehensible on the part of people who thought themselves civilized. Though we avoid looking directly at prisons, they seep obliquely into our fashions and manners. Wealthy white teen-agers in baggy jeans and laceless shoes and multiple tattoos show, unconsciously, the reality of incarceration that acts as a hidden foundation for the country.

How did we get here? How is it that our civilization, which rejects hanging and flogging and disembowelling, came to believe that caging vast numbers of people for decades is an acceptably humane sanction? There’s a fairly large recent scholarly literature on the history and sociology of crime and punishment, and it tends to trace the American zeal for punishment back to the nineteenth century, apportioning blame in two directions. There’s an essentially Northern explanation, focussing on the inheritance of the notorious Eastern State Penitentiary, in Philadelphia, and its “reformist” tradition; and a Southern explanation, which sees the prison system as essentially a slave plantation continued by other means. Robert Perkinson, the author of the Southern revisionist tract “Texas Tough: The Rise of America’s Prison Empire,” traces two ancestral lines, “from the North, the birthplace of rehabilitative penology, to the South, the fountainhead of subjugationist discipline.” In other words, there’s the scientific taste for reducing men to numbers and the slave owners’ urge to reduce blacks to brutes.

A Human Rights Agenda for the new Attorney-General, continued

Human Rights Law Centre | December 2011

Australia’s new Attorney-General, Nicola Roxon, was sworn in on 14 December 2011.

We asked some of Australia’s leading human rights advocates, activists and academics to tell us, in less than 100 words, what the Attorney’s top human rights priority or initiative for 2012 should be. We’ll be sharing more of them with you in the coming days and weeks.



John Tobin is an Associate Professor at Melbourne Law School and a member of the HRLC Advisory Committee

The prioritisation of efforts to address human rights considerations is always fraught with danger. But the reality of limited resources means that prioritisation is a fact of political life. Given this reality, the top priority for the new Attorney General in 2012 must be ensuring the successful implementation of the Human Rights (Parliamentary Scrutiny) Act 2011. The requirement to scrutinize all new legislation in light of international human rights standards must not be reduced to a shallow process of compliance. Instead, the Attorney General must lead from the front and demonstrate that substantive engagement with international human rights standards leads to more effective and equitable legislative outcomes.

Lucy McKernan is Manager of Strategic Projects with the Public Interest Law Clearing House (Vic)

That a five year old girl can be lawfully refused admission to a government funded kindergarten on the basis of her parents’ same-sex relationship, is a disgrace. Even the Acting Bishop for the relevant Catholic diocese was ‘appalled’ by the discriminatory decision, yet Australian laws allow this form of discrimination by religious organisations.

Attorney-General Roxon should remove the blanket exceptions for religious organisations permitting them to discriminate on the grounds of sex and age. At the very least, the Attorney should prohibit discrimination by religious organisations in respect of their government funded functions and require greater transparency from organisations seeking to rely on the exceptions. Importantly, the Attorney should also show leadership by encouraging her State counterparts to follow suit.

Les Malezer is Co-Chair of the National Congress of Australia’s First Peoples

The priority for Aboriginal and Torres Strait Islander Peoples is to gain recognition and respect as first peoples, and acknowledgement and protection of Indigenous rights.

In 2012, the Attorney General must make the Human Rights Framework effective, leading cultural change across government. For Aboriginal and Torres Strait Islander peoples this includes giving the recommendations and reports of the Australian Human Rights Commission, including the ATSI Social Justice Commissioner, real authority, not just political lip service. The Government must implement and be accountable to reports on human rights by national and international authorities. There should also be a focus on judicial and legal education, to ensure legal professionals understand Indigenous rights and can properly and impartially resolve cases regarding those rights.

Lucy Adams is a Senior Lawyer with the PILCH Homeless Persons’ Legal Clinic

On census night in 2006, approximately 105,000 Australians were homeless, including approximately 7,480 families. Australia needs a human rights-based framework for addressing homelessness.
InVictoria, we have seen how legislative protection of human rights can work in practice through the Victorian Charter of Human Rights. The HPLC has relied on the Charter’s binding obligations on public bodies – to give proper consideration to human rights in decision-making and to act compatibly with human rights – to avoid the eviction of 42 people, including 21 children, from social housing into homelessness.

Enforceable human rights obligations, including national homelessness legislation that enshrines the right to adequate housing, are critical to Australia’s ability to effectively prevent and address homelessness.

"Panic" by David Marr: on John Hatzistergos

David Marr | SMH | 17 April 2008 

That this is the last civilised nation not to guarantee its citizens' rights counts for nothing. We don't have foot and mouth disease or video games for grown-ups. So what's to stop us quarantining Australia against bills and charters of rights?

The Attorney-General, John Hatzistergos, has been thundering against them lately in the best traditions of NSW Labor. Bob Carr was one of the wittiest and most determined opponents of handing out rights we could enforce in court. It's something one-party states never willingly allow.

"We do not live in a perfect society and never will," Hatzistergos solemnly informed the Sydney Institute last week. "There may well be laws perceived by some to be unjust in our community. It is however wrong to suggest that they can be remedied by enacting charters with wide-ranging values and all will be well."

If only our grim-faced Attorney-General had been around in 1791 to tug James Madison's sleeve and stop him making the historic mistake of presenting the US Congress with constitutional amendments guaranteeing free speech and a free press; the freedom to assemble and the freedom to worship; the assurance that life and liberty will only ever be infringed by due process of law - and, alas, the right to bear arms.

Two-and-a-bit centuries later in Australia, the courts are all but powerless to prevent these rights being legislated away. And a good thing too, says Hatzistergos: "Transforming social and political questions into legal ones … forces the courts to start making decisions … for which they do not have democratic legitimacy."

That's American talk. America gave the world the great model of entrenched rights and lately America has bred mighty rhetoric attacking the courts as undemocratic for protecting them.

The wisdom of experience? Yes and no. Hatzistergos and his tribe are mouthing the words of those sore losers whose democratic sensibilities are offended by the secular, decent revolution pulled off by the US Supreme Court in the last half century that began in 1954 with Brown v Board of Education of Topeka, ending racial segregation of schools.

Constitutional reform crucial to indigenous wellbeing

Noel Pearson | The Australian | December 24, 2011

There is an existential angst about the place of indigenous cultures in the Australian nation.

I HAVE been close to the epicentre of indigenous policy for 20 years now. During this time I have dealt with premiers and prime ministers, ministers and public servants, both great and small, smart and dumb, committed and careless.

I think I have seen every permutation of policy and program, and the swings of the policy pendulum from left to right and back again. Real progress has been made in some areas, but the larger picture is one of waste and failure.

Like other Australians who take this policy scene to heart, my moods swing from ebullient optimism to deep depression. The small gains lift me but the entrenched failures stricken me.

My experience is less than half that of Lowitja O'Donoghue, Marcia Langton and Galarrwuy Yunupingu. I recall sitting on the beach at Yunupingu's Arnhem Land outstation with former minister Mal Brough and hearing Yunupingu list the names of the prime ministers and ministers he had dealings with since the days of the Gorton government. His story could have been titled Groundhog Day.

It is not for nothing that the one conviction I share with these leaders is that constitutional reform which properly defines the place of indigenous Australians in the nation is a matter of first importance.

Gay marriage debate has a long way to go

Frank Brennan | Eureka St | 6 December 2011

On the weekend the ALP party conference voted to amend the party platform on same sex marriage. The platform now states: 'Labor will amend the Marriage Act to ensure equal access to marriage under statute for all adult couples irrespective of sex who have a mutual commitment to a shared life.'

Churches and religious organisations will retain the freedom to perform marriage ceremonies only for a man and a woman eligible for marriage under the rules of the church or organisation.

The conference voted by 208 to 184 to allow Labor MPs a conscience vote on the issue. Tony Abbott continues to insist that Liberal MPs will not be granted a conscience vote. This will change. If it doesn't, several Liberals, including Malcolm Turnbull, will cross the floor. It could even become a leadership issue in the party.

Within the life of the present parliament, our elected leaders will probably be voting on the issue, and in all likelihood the members of all major parties will have a conscience vote.

How should the conscientious Catholic member of parliament vote? If I were a member of parliament, I would support a law for the recognition of civil unions similar to the present United Kingdom law, and I would vote against any bill extending the definition of marriage to include the union of two men or two women.


I would do so because I think the State should not discriminate against couples who have a mutual commitment to a shared life (whatever their sexual orientation), while affirming that the bearing and nurturing of the children of the union is a constitutive good of marriage (even though not all marriages produce children).

A Human Rights Agenda for the new Attorney-General

Human Rights Law Centre | 15 December 2011

Australia’s new Attorney-General, Nicola Roxon, was sworn in on 14 December 2011.

We asked some of Australia’s leading human rights advocates, activists and academics to tell us, in less than 100 words, what the Attorney’s top human rights priority or initiative for 2012 should be. We’ll be sharing more of them with you in the coming days and weeks.



Catherine Branson QC is President of the Australian Human Rights Commission

My hope is that the new Attorney-General’s priorities will include bringing along her fellow ministers and parliamentarians in making the new human rights scrutiny processes effective and seeing through the consolidation of federal discrimination laws process to create an effective national equality law. She should also ensure the ratification of the Optional Protocol to the Convention against Torture and establish a national system of monitoring places of detention. Finally, the Attorney must ensure that human rights considerations inform policy in all areas of her portfolio, for example in security policy where there is an urgent need for a system enabling review of adverse security assessments.

Nicolas Patrick is a Partner and Head of Pro Bono with DLA Piper

I would prioritise the human rights of people in places of detention. A significant proportion of Australia’s prison population suffer from mental illness. There is a causal and consequential link between imprisonment and mental illness. Australia is warehousing people with mental health problems in prisons, where mental health care is entirely inadequate.

The number of juveniles in detention is also a major concern, along with the over-representation of Aboriginal and Torres Strait Islander peoples. These issues raise significant concerns with respect to Australia’s obligations under the Convention against Torture, the Convention on the Elimination of Racial Discrimination and the International Covenant on Civil and Political Rights and require the urgent attention of the Australian Government.

Professor David Kinley is Chair in Human Rights Law at Sydney Law School

Dear Attorney,

Pay very close attention to the newly established parliamentary human rights scrutiny committee. This is a sleeping giant, whose potential power and range is underappreciated; indeed largely unnoticed. Having authority to scrutinise all bills for compliance with all Australia’s international human rights obligations goes far beyond the scope of any equivalent mechanism overseas, and it will embarrass and expose. So, heads up for the enhanced human rights scrutiny of the next wave of immigration, anti-terrorism or workplace relations proposals.

PS. Don’t take up smoking this year.





Ed Santow is Chief Executive Officer of the Public Interest Advocacy Centre

Over the last few years, the Australian Government has made progress in improving the protection of our basic rights. However, Australia still lacks a comprehensive human rights law. This increases the vulnerability of already disadvantaged people — like Indigenous Australians, people experiencing homelessness and people with a disability. To rectify this, the new Attorney-General should take the lead in fully implementing the recommendations of the 2009 National Human Rights Consultation, including by enacting a comprehensive Human Rights Act.

Nicky Friedman is Head of Pro Bono & Community Programs with Allens Arthur Robinson

The new Attorney should ensure that asylum seekers can access and exercise their legal rights.
Since the High Court’s decision in M61, which confirmed that review by the courts is available to asylum seekers who are processed offshore, legal assistance providers have been hit with floods of applications for legal representation in judicial review proceedings. Despite the huge increase in demand, no extra funds have been provided and legal aid and community legal centres are turning away desperate people. The Attorney should provide funds to boost the capacity of refugee and immigration community legal centres and legal aid commissions to deal with these matters immediately.

Professor Sarah Joseph is Director of the Castan Centre for Human Rights Law

There are many human rights priorities for Australiain 2012, such as properly implementing the new Human Rights (Parliamentary Scrutiny) Act and vastly improving this country’s impoverished refugee debate. As the number one priority, however, I would say that the Australian Government must take the lead in vigorously supporting amendment of the Australian Constitution to better recognise and protect the rights of Indigenous peoples, and to educate Australian people about the need for such amendment. A campaign against Constitutional recognition has already begun (see eg, J Albrechtsen inThe Australian on 14 December). The government and the opposition must get on the front foot to counter the scaremongering.

Interpreting The Constitution In The Digital Era

NPR Fresh Air | November 30, 2011



GPS monitors can track your every movement. Brain scans can now see lies forming in your brain. And advancements in genetic engineering may soon allow parents to engineer what their children will look and be like.

These new technologies are "challenging our Constitutional categories in really dramatic ways," says George Washington University law professor Jeffrey Rosen. "And what's so striking is that none of the existing amendments give clear answers to the most basic questions we're having today."

On Wednesday's Fresh Air, Rosen, the co-editor of the new book Constitution 3.0: Freedom and Technological Change, details how technological changes that were unimaginable at the time of the Founding Fathers are challenging our notions of things like personal vs. private space, freedom of speech and our own individual autonomy.

GPS Monitoring

Rosen points to United States v. Jones, a case the Supreme Court is currently considering. At issue is whether police need to have a warrant from a judge before attaching a secret GPS monitor to a car to track a suspect around the clock.

"The relevant constitutional text is the Fourth Amendment, which says, 'The right of the people to be secure in their houses, persons, papers and effects against unreasonable searches and seizures shall not be violated,' " he says. "But that doesn't answer the question: Is it an unreasonable search of our persons or effects to be monitored in public spaces?"

The government contends that the Fourth Amendment only bans warrantless searches of private spaces — and that a GPS device is just an extension of basic human surveillance. But some others disagree, Rosen says. Judge Douglas Ginsburg, a member of the U.S. Court of Appeals in Washington, D.C., argued that there is a difference between short-term and long-term surveillance, and that people have the expectation of privacy in both situations.

Regardless of what the Supreme Court decides, Rosen says, the "GPS case has the potential to be the most important privacy case of the decade."

"Will the justices be willing to look beyond the existing Fourth Amendment categories, which have been inadequate to confront these new virtual technologies, and take a leap of imagination?" he asks. "Really, the leap they're being asked to take is the one that Justice Brandeis took in the 1920s when the court decided for the first time the constitutionality of wiretapping."

In that instance, Brandeis wrote the dissenting opinion in Olmstead v. United States, a landmark case in which the court ruled that neither the Fourth Amendment nor the Fifth Amendment protects a defendant against having personal conversations wiretapped by federal agents.

"Brandeis noted that at the time of the framing of the Constitution, a far less intrusive search — namely breaking into someone's home and riffling through their desk drawers to identify a critic of King George III — was the quintessential example of an unreasonable search," Rosen says. "[Brandeis added] that it was now possible to invade the privacy of people of both ends of a telephone wire. And then ... Brandeis looked forward to the age of cyberspace. He said, 'Ways may someday be developed — without breaking into desk drawers — to extract papers from home and introduce them in court before a jury. ... The court should translate the Constitution and recognize that you don't need a physical trespass to create an unreasonable search.'"

Rosen says it took decades for the Supreme Court to embrace Brandeis' insights. In 1967, the high court overruled Olmstead v. United States in the case Katz v. United States, which extended the Fourth Amendment to include all areas where a person "has a reasonable expectation of privacy." Law enforcement agents were then required to obtain a warrant before wiretapping suspects.

The Constitution In The Year 2025

But how the Fourth Amendment — and the other amendments to the Constitution — should extend to quickly changing technologies is unclear.

Recently, Rosen and his colleague Benjamin Wittes asked leading legal scholars to imagine technologies that might be developed in the next few decades that would challenge current constitutional laws. Their hypothetical scenarios, collected in Constitution 3.0, address questions about a variety of topics, including security, free speech, privacy and the constitutional right against self-incrimination.

Rosen describes one privacy scenario, imagined at a conference by Google public policy chief Andrew McLaughlin, in which websites like Google and Facebook could someday potentially post video from live surveillance cameras online — and then archive those videos in a database.

Detention conditions: degrading, intolerable and inhumane

Phil Lynch | The Drum | 30 November 2011

Conditions of detention in Australia have been in the news for all the wrong reasons recently.

In April, an independent report tabled in Western Australia's parliament described prison conditions in that state as "degrading, intolerable and inhumane".

Recent reports from Victoria's Ombudsman have been similarly critical, variously describing conditions in youth detention facilities, police cells and the Melbourne Custody Centre as "appalling", "disgraceful" and incompatible with basic human rights.

Inhumane conditions of detention are not confined to correctional facilities. Nor are they confined to the mandatory immigration detention facilities so infamously described by Australian of the Year Professor Patrick McGorry as "factories for mental illness" and by the Australian Medical Association as "a form of child abuse".

Inhumane conditions also persist in many mental health and disability services. Indeed, investigations reported in The Age newspaper over the last two months have revealed the deaths of at least 36 people in Victorian psychiatric wards in the last three years, together with widespread allegations of physical and sexual abuse of patients.

This is just a snapshot of the developments that make Australia's implementation of the UN's Optional Protocol to the Convention against Torture and Ill-Treatment so imperative, and the two-year delay in ratifying that treaty since Australia signed it in 2009 so galling.

The Optional Protocol is an international treaty which aims to prevent ill treatment and promote humane conditions by establishing systems for independent monitoring and inspection of all places of detention.

It is not only in the interests of persons deprived of liberty, but also the broader community, that all places of detention – whether prisons, psychiatric hospitals, police cells or disability facilities – promote rehabilitation and reintegration and that all detainees are treated with basic dignity and respect. Independent inspections and oversight are critical in this regard.

At the national level, the Optional Protocol requires that countries establish what is known as a "national preventative mechanism", or NPM. An NPM is an independent body with a mandate to conduct both announced and unannounced visits to places of detention, to make recommendations to prevent ill treatment and improve conditions, and to report publicly on its findings and views.

At the international level, the Optional Protocol establishes an independent committee of experts – comprising doctors, lawyers, social workers and academics – with a mandate to carry out country missions to monitor deprivations of liberty. The UN Sub-Committee on the Prevention of Torture, as it is called, is also tasked to work cooperatively with states and NPMs to provide advice and training on the prevention of ill-treatment in places of detention.

The whole system is premised on the evidence and experience that external scrutiny of places of detention can deter and, where necessary, help to redress torture and other forms of ill treatment. By making places of detention more open, transparent and accountable, it helps to ensure that persons deprived of liberty – whether people with psychiatric illness, prisoners, people with disability or asylum seekers – are treated with basic dignity and respect.

Existing systems for transparency and accountability of places of detention are manifestly inadequate in Australia. In Victoria, for example, the Office of Correctional Services Review is an internal business unit within the Department of Justice. It reports to the Secretary of the Department – the very secretary with responsibility for correctional management – and does not make its reports public. The problem of lack of independence is not confined to corrections. The 36 deaths in psychiatric facilities are being investigated by the Office of the Chief Psychiatrist, an office which, according to its own website "has responsibility under the Mental Health Act for the medical care and welfare of persons receiving treatment or care for a mental illness".

Australia signed the Optional Protocol in May 2009. Since that time, progress on ratification and implementation has been slow, with wrangling between the states and the Commonwealth about who is to foot the modest bill for detention monitoring and oversight. This is despite international evidence as to the very high social and economic costs of failing to prevent and redress ill-treatment. On any estimate, the costs of independent monitoring and oversight are absolutely dwarfed by the $23 million paid by the Commonwealth for the unlawful detention and ill-treatment of immigration detainees over the last decade, costs which could have been largely avoided with a functioning and effective NPM.

Despite its name, there should be nothing optional about Australia's ratification and implementation of the Optional Protocol. The prevention of torture and ill treatment is certainly not regarded as optional or negotiable by like-minded countries. The United Kingdom, for example, ratified the treaty almost eight years ago, while New Zealand has no less than five independent, publicly accountable bodies mandated to visit and report on places of detention.

The Commonwealth, state and territory governments should all prioritise and expedite ratification and implementation of the Optional Protocol to the Convention against Torture. Any further delay in the prevention of ill-treatment has intolerable social and economic costs and is simply not an option.

Phil Lynch is Executive Director of the Human Rights Law Centre. You can follow the HRLC on Twitter @rightsagenda.

Occupying the First Amendment

Raymond Vasvaril | Slate | November 15, 2011

What the actions over Zuccotti Park teach us about public spaces and citizen protest.

For nearly 60 days, demonstrators gathered in Zuccotti Park, a privately owned and very publicly occupied sliver of lower Manhattan, to Speak Truth to Power at what has become the hub of the Occupy Wall Street movement. But last night, Power was in no mood to chat. So shortly after 1 a.m. several hundred New York City Police surrounded the park dressed in riot gear, illuminated the encampment with klieg lights, and delivered—on behalf of Power—the same message that made Max von Sydow so charming in the Exorcist: “Get out.”

And get out they did. In a few hours time, over 200 demonstrators were arrested. Police cordoned off streets approaching the park, keeping the curious, the sympathetic, and most notably the press away from the action. Several journalists reported being roughly handled by police in the process, and an order closing the air space over lower Manhattan ensured that news helicopters couldn’t get footage of the raid.

That was the state of affairs when the First Amendment right to peaceably assemble smashed into the right of cities to protect their parks. And that was the state of affairs at 8 a.m., when Mayor Michael Bloomberg issued a statement affirming his deep regard for the First Amendment. He proceeded to give the sort of stern lecture about rights and responsibilities that sitcom fathers give their badly behaved teens, the tenor of which was that while free expression is generally a good thing, this nonsense had gone on long enough, and the city of New York had run out of patience.

It is no exaggeration to say that what happened overnight could be a watershed moment for the Occupy Movement: Frankfort, Ky., San Francisco, and Cincinnati have all been occupied, but the encampment near Wall Street has been the spiritual and symbolic center of a leaderless movement that has taken the example of Zuccotti Park and turned it into a moral franchise of sorts around the world.

Plucked from poor villages, boys land in jail

Natalie O'Brien and Cosima Marriner | SMH | 6 November 2011

Homecoming ... Faisal Arysad's mother and grandmother await his return. Photo: Rebecca Henschke

FAISAL ARYSAD was 16 when he was offered a job as a kitchen hand on what he was told was a fishing boat. The offer of $500 was a fortune - almost one year's pay - for the boy who lived with his mother and grandmother in a dirt-poor fishing village in West Timor.

When passengers boarded the boat, he was told it was for a sightseeing tour of the surrounding islands. The next he knew, he told his lawyers, their boat was picked up by an Australian navy ship and he was put in detention, then jail.

''The people smugglers simply get naive people, and the youths fall into that category,'' said Faisal's Brisbane lawyer, David Svoboda.



Sent home ... Ako Lani, 16, back fishing on Roti Island. After six months in an Australian adult jail, he was led into court in manacles. Photo: Rebecca Henschke

''These kids sit in villages with no work. Recruiters walk into the village offering $500. They tell them they'll be met by a ship to pick these people up at their destination. When a ship rolls in and it's full of cannons it's really surprising. These kids are genuinely surprised it's the Australian navy.''

Despite Faisal telling Immigration officials he was 16, the federal police did not believe him. They gave him a widely discredited wrist X-ray test which estimated his age to be about 19. The police charged him with people smuggling and he was put in the Arthur Gorrie maximum-security jail in Brisbane, which houses paedophiles including Robert John Fardon and Brett Peter Cowan, the accused killer of Daniel Morcombe.

But eight months later the charges have been withdrawn after Mr Svoboda flew to Indonesia to gather proof of Faisal's age.

The Greens’ Threat to Religious Freedom

Greg Smith | Quadrant | October 2011

The most recent report by the United States Commission on International Religious Freedom paints a troubling picture. It describes the critical situation for millions of people who are suffering persecution, in many cases violent persecution, often sponsored by the state or governmental bodies in countries such as Burma, North Korea, Egypt, Eritrea, Iran, Iraq, Nigeria, Pakistan, China, Saudi Arabia, Sudan and Vietnam, among many others.

The situations in those countries remind me that I am blessed to live in Australia, which enjoys a high degree of religious freedom. That gratitude leads me to cherish the freedoms that we enjoy by ensuring that in an ever-changing society those freedoms are not diminished or lost. To borrow a phrase: “the price of freedom is eternal vigilance”.

Although adopting elements of other constitutions, the Australian Constitution retained the monarchy and Westminster parliamentary government from Britain. According to Justice McHugh in the High Court case of Australian Capital Television v Commonwealthin 1992: “the purpose of the Constitution was to further the institutions of representative government”.

In that sense, the Australian Constitution was overlaid onto an already existing tradition of legal jurisprudence which accepted the basic tenets of Westminster democracy. In the words of Justice Isaacs in 1926 in the case of Commonwealth v Kreglinger, the principle of responsible government: “is part of the fabric on which the written words of the Constitution are superimposed”. With that system came a series of principles and conventions which were unwritten but nevertheless fundamental to the operation of government and free society in Australia.

Viscount Bolingbroke, an eighteenth-century proponent of the principles of Westminster democracy, once said that the constitution is: “that assembly of laws, institutions and customs, derived from certain fixed principles of reason … that compose the general system, according to which the community has agreed to be governed”. That statement is particularly true of Australian constitutional law. The principles of representative and responsible government embodied in the Westminster system of government go well beyond the written words of the Constitution and embrace the laws, institutions, customs and principles which underpin it.

Fundamental to the principles of that system of government are the freedoms of speech, association, assembly, religion and movement, which can be traced back through the common law to the Magna Carta.

Therefore, with one main exception, the drafters of the Australian Constitution did not see it necessary to include a US-style bill of rights or other statement of principles guaranteeing the fundamental freedoms of those bound under it. Justice McHugh expressed this well in Australian Capital Television v Commonwealth:

Although the makers of the Constitution were much influenced by the terms and structure of the Constitution of the United States and “felt the full fascination of its plan”, they rejected the United States example of a Bill of Rights to protect the people of the Commonwealth against the abuse of governmental power. They did so because they believed in the efficacy of the two institutions which formed the basis of the Constitutions of Great Britain and the Australian colonies—representative government and responsible government.

The absence in the written document of the Australian Constitution of express rights such as those granted by the Bill of Rights under the US Constitution did not prevent the High Court in that case from finding a constitutional protection for freedom of communication. To the contrary, the system of representative government was the precise reason why such a right existed. In the words of Chief Justice Mason in that case: “Freedom of communication … is so indispensable to the efficacy of the system of representative government for which the Constitution makes provision that it is necessarily implied in the making of that provision.”

The essential point is that fundamental freedoms of speech, association, assembly, religion and movement are indispensable to and inseparable from a system of responsible and representative government and are thus intrinsically embodied in Australian constitutional law.

To this general principle of avoiding “bill of rights”-style guarantees, there is one main exception found in section 116 of the Constitution which provides:

The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.

Marr’s Attack

Garrett Bithell | Sx Magazine | 30 September 2011

Revered social commentator and journalist David Marr is a persistent questioner of the status quo. This weekend, at the Festival of Dangerous Ideas, he is turning his razor-sharp powers of reasoning to the issue of religious exemptions from anti-discrimination legislation and the Australian Christian Lobby's Jim Wallace. Marr speaks to Garrett Bithell ahead of the highly-anticipated clash.

"Did you know there is a provision of the New South Wales Anti-Discrimination Act that allows a private school to expel any child simply for being gay? Isn't that good?"

The posh, nuanced voice of seminal commentator and Sydney Morning Herald journalist David Marr is tempered by a lethal combination of restrained anger and bitter sarcasm. "That's in our legislation," he reiterates. "You can be expelled from a private school simply for being gay. It's there!"

Marr, of course, is correct. Section 49ZO of the Anti-Discrimination Act 1977 (NSW), which basically states that it is unlawful for an educational authority to discriminate against a person on the ground of homosexuality, contains a nasty little subsection at the end. Allow me to quote section 49ZO(3): "Nothing in this section applies to or in respect of a private educational authority." It follows that if Sydney Grammar School, for example, was to expel a student for being gay, there is nothing the law could do about it.

In an age when the fight for equal marriage rights dominates GLBT activism, the startling, sweeping exemptions religious organisations, of all faiths, have from anti-discrimination legislation is sometimes forgotten. But the issue is set to be brought to the fore when Marr locks horns with Jim Wallace, Managing Director of the uncompromising Australian Christian Lobby, on the subject 'Gays and Lesbians Do Not Belong in the Classroom', as part of the Festival of Dangerous Ideas at the Opera House this weekend.

As Marr asserts, because marriage equality will largely be a symbolic victory in this country, religious exemptions from anti-discrimination laws represent the biggest threat to substantive equality we face. "I feel a lot more strongly about this than gay marriage," he tells SX. "Gay marriage is inevitable and it's right, but in Australia gay marriage is symbolic. It's very, very important symbolism, but meanwhile there are laws that actually impact on gays and lesbians."

To wit, religious organisations have the point-blank right to decide who they employ in their schools – and who they sack – based on questions of faith and morals. While for many Australians, the idea that gay men and women don't belong in the classroom is an unjust anachronism, parents are opting, in larger numbers, to send their children to these schools that offer a 'values-driven' education.

"What I find impossible to believe is that a grown-up, modern, kind, secular society offers churches the capacity to continue to punish people through employment for not living up to the churches' rules of sex," Marr says. "We're not talking about little boutique operations here. Church schools and hospitals are the biggest private employers in this country, and they are exempt from anti-discrimination laws. So there's a highway through anti-discrimination legislation."

For Marr, who's openly gay, the debate on Sunday is personal. "I certainly want Jim to tell me exactly why I – or my partner and half my friends – can't be employed by one of his organisations. What is it that we bring? What about the other sins and broken commandments? No, they don't matter! You can hire people who are greedy, or who don't love their mother and father, but you can't hire a person who goes to bed with somebody who has the same genitals as them."

The great folly is that amidst a tide of cultural change that has seen "the religious highway through anti-discrimination turned into a back lane" in places like Great Britain and the United States, Australia still sees the issue of exemptions as one of religious freedom. "We just don't get it in Australia," Marr states. "Politicians are scared stiff – they are so scared stiff they won't even take on the Scientologists, let alone the Anglicans! And when you've got a state that won't take on the Scientologists, you've got a completely gutless state.

"There are all sorts of religious practices that are forbidden by the state, like polygamy and genital mutilation, but we continue to honour religious bigotry about sex in employment law."

The exceptional power religious organisations continue to wield over our supposedly secular democracy is also the reason we still don't have a Bill of Rights, Marr continues. "I don't think people understand," he says. "It's not just the opposition of News Limited, which is perverse and interesting in its own way, but it's the absolutely immovable opposition of the Catholic Church – because they believe they have a much better chance of preserving their hold [on politics] through direct political influence rather than judicial decision-making."

As Stephen Fry once said, the Catholic Church is obsessed with sex. The only people who are obsessed with food, he continued, are anorexics and the morbidly obese – and that, in erotic terms, is the Catholic Church in a nutshell. "It's about power," Marr concludes. "If you can stand between somebody and their most basic instinct, then you have immense power over them. If the church is the gateway to sex, family and pleasure, it's hugely bloody powerful."

Moreover, one of the Church's most bizarre notions – and one that Wallace as a highly enthusiastic hard-line Christian wholly embraces – is that there is a place in the church for gay people, so long as we don't act on what even he acknowledges is a primal impulse. "It's mind-blowing, but one thing about Christianity – and also Islam – is that the capacity to give something up that is natural has always been seen as a measure of holiness," Marr tells. "So someone of Jim's tradition can go, 'so you're a poof? Just don't have sex and you'll be alright'. For them, that is not quite as ridiculous as it sounds to a secular human being. That might make you happy Jim, but your happiness is not really my first concern here."

The pitiful irony inherent in this ridiculously contentious issue is that "even the believers don't believe it anymore".

"Many church-people admit that if they actually enforced their own rules, and weeded out all of the lesbians from church-run old people's homes for example, or all of the poofs from Catholic hospitals, parishes would rise up in revolt! Therefore the rules are used in crueller ways – to pick people off, to bully people, to refuse to hire people."

Ultimately, the way we balance religious values and equality is staggeringly off-kilter. As Marr stipulates, religious freedom cannot be used as a trump card at the expense of a greater human rights framework. "We cannot give the religious a veto argument," he says. "It's pretty easy to reconcile [this issue] and many states do: When it comes to who runs church organisations – who their priests are – that's for them. But when it comes to employment to do work for church organisations, they don't, in my view, have a right to be exempted from anti-discrimination law.

"This religious vetoing has to stop, and I can't wait to come to grips with Jim on Sunday."