How are the right to food and customary law linked? An Australian and South African comparison – Anna Bulman

Prior to colonisation, African peoples and Australian Aboriginal and Torres Strait Islander peoples lived in close connection with the land and environment, and governed themselves according to their own complex systems of law. With the colonies came completely different legal systems that were imposed onto the captured land, and which failed to properly recognise the existing structures.

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Transparency the key to avoiding a climate-action-induced economic crisis – Joshua Sheppard

An unfortunate side-effect of action on climate change

Buoyed by renewed global enthusiasm for climate action after the Paris Agreement and the US-China Joint Presidential Statement on Climate Change, the financial community is increasingly turning its mind to what happens when governments act to limit greenhouse gas emissions. Previously, fossil fuel companies had planned to develop approximately five times the amount of fossil fuel than we can safely burn if we are to prevent an average temperature increase of more than 2°C. Capital has been and will continue to be wasted on carbon intensive projects that should not proceed under the new regime; a reality that the market is beginning to wake up to. When this reality truly strikes investors, it may prompt a dangerous market-wide share sale in fossil fuel companies and precipitate a decline in those companies’ market values.

Australians with superannuation fund accounts stand to lose money when this carbon bubble bursts, because most superannuation funds invest in blue chip energy and resources companies such as ExxonMobil, BP, Shell, AGL, Santos and their financiers, large global banks and our Big Four banks in Australia; NAB, Commonwealth Bank, ANZ and Westpac. If and when fossil fuel companies suffer economic hardship because their projects are no longer viable (see, for instance, the bankruptcy of Peabody Energy in mid-April 2016), superannuation members will lose out. As the Asset Owners Disclosure Project Chair and former federal leader of the Liberal Party of Australia, Dr John Hewson, put it, the eventuation of climate risk could “easily precipitate a financial crisis”. Having put its support behind UN action on climate, the G20 has begun turning attention towards how to prevent such a crisis.

Why the risk of stranded asset persists

We all have a degree of leverage to ensure our concerns over the management of climate risk are addressed through our “consumer sovereignty”. Most Australians could easily change superannuation funds to those that are mitigating climate change risk in their investment portfolios. Like any market, if people demand a certain product, it is often supplied by budding entrepreneurs. However, it can be difficult at the best of times to understand whether one superannuation fund is better than another at managing its investment portfolio, let alone climate risk. Considering that many funds present their climate-related information in different ways, and use different metric systems of measurement, it is a tough task to make meaningful comparisons. This presents a concerning information and comprehension gap for consumers that has to be filled.

The G20’s big move

The challenge of providing transparency on climate risk to the financial sector has been recently taken up by the G20, which has asked the Financial Stability Board (‘FSB’) to examine how the financial system can better acknowledge and consider climate change risks. The FSB, made up of the finance ministers and central bank governors of the G20 countries, is a soft law body established in the wake of the Global Financial Crisis which aims to ‘assess vulnerabilities affecting the global financial system and identify…the regulatory, supervisory and related actions needed to address them’ (Art 2(1)(a), FSB Charter).

The FSB has, in turn, established a new Taskforce for Climate-Related Financial Disclosures (‘TCFD’), and appointed three-time mayor of New York City and businessman Michael Bloomberg, to lead the initiative. Its mission is to ‘develop voluntary, consistent climate-related financial risk disclosures for use by companies in providing information to investors, lenders, insurers and other stakeholders’. In its Phase I report (p 2), the TCFD concluded that disclosure by companies currently is ‘fragmented and incomplete’, and this is preventing ‘investors, creditors, and underwriters from accessing information that can inform their decisions’.

Most significantly, the TCFD announced in its Phase I report (p 26) that it will now examine voluntary, common disclosure standards for institutional investors. This will make disclosure frameworks part of the mainstream consciousness of the superannuation sector.

One model for the TCFD to consider is the Asset Owners Disclosure Project (AODP). The AODP aims to rectify the information and comprehension gap, by producing rankings and ratings of the world’s 375 largest superannuation and pension , as well as insurers and sovereign wealth funds, in regard to their management of climate risk. This initiative establishes transparency and comparability between pension funds by using a quick and easy-to-use scale. It encourages pension funds to take the initiative to file shareholder resolutions, which request that companies’ business models comply with a low-carbon economy, create innovative ways of financing renewable energy and reduce exposure to fossil fuel assets.

The forthcoming TCFD disclosure standards will give individual superannuation fund members a bigger source of leverage to demand that climate risk is managed properly. In turn, this will continue to drive competition between superannuation funds and their suppliers, which can only mean better outcomes for members. The information and comprehension gap appears to be closing swiftly and comprehensively. By focusing on transparency and disclosure, the G20 may well consolidate recent climate action successes with the assurance that the transition to a post-fossil fuel world can be more financially stable too.

Joshua Sheppard is a penultimate year law student at Monash University and a project manager for the Asset Owners Disclosure Project.

Resolution 29/22: Does international law protect ‘various forms of families’? — Giulia Dondoli

In July 2015, the United Nations Human Rights Council issued Resolution 29/22 on the protection of the family as the natural and fundamental group unit of society. The Human Rights Council requested that the Office of the High Commissioner for Human Rights (OHCHR) prepare a report on the protection of the family and present it at the 31st session of the Human Rights Council. Such a report is a relevant step forward for lesbian gay bisexual and transgender (LGBT) parent-families’ rights within the United Nations aegis.

Resolution 29/22 focused on issues related to single-headed households, protection of children, disparity of household responsibilities between men and women and the protection of disabled members of families. To prepare the report, a note verbale was sent; 24 states and 81 civil society organisations responded with their input to the OHCHR. In particular, Denmark pointed out that Resolution 29/22 does not ‘properly recognize [sic] the fact that various forms of families exist’. Furthermore, the United Kingdom, the United States, and organisations such as Sexual Rights Initiative, and OutRight Action International, asked the OHCHR to consider LGBT parent-families.

Indeed, in the report submitted by the OHCHR to the Human Rights Council pursuant to item 37 of Resolution 29/22 (OHCHR report), the OHCHR states that there is no definition of ‘family’ in international law, and that there is a general consensus within UN documents that the concept of ‘family’ must be understood in a ‘wide sense’. While states maintain a margin of appreciation in defining the concept of family (para 26), the report encourages states to ensure that children born in de facto unions and in LGBT parent-families have equal rights of those born from married and heterosexual couples (para 42).

However, the OHCHR report also reiterates that men and women of full age have the right to marry (para 28. See also article 16 of the Universal Declaration of Human Rights and article 23(2) of the International Covenant on Civil and Political Rights (ICCPR)), and this right can only be understood to mean that a man can marry a woman and vice versa. Indeed, in 2002, the UN Human Rights Committee clarified in Joslin et al v New Zealand that the expression ‘men and women’ denotes that only different sex couples have the right to marry, because the drafters of the ICCPR considered marriage to mean an exclusively heterosexual institution (Luca Paladini, ‘Same-Sex Couples before Quasi-Jurisdictional Bodies: The Case of the UN Human Rights Committee’ in Daniele Gallo, Pietro Pustorino, Luca Paladini (eds) Same-Sex Couples before National, Supranational and International Jurisdictions (Springer, Heidelberg, 2014) 533 at 545). Nevertheless, the OHCHR report also stresses that the Committee on Economic, Social and Cultural Rights has called upon states to provide some sort of legal recognition — for example civil partnership acts or legal recognition of de facto couples — for same-sex couples (OHCHR report, para 27).

The prohibition of discrimination on grounds of sexual orientation and gender identity is a politically controversial issue and a developing concept in international human rights law (Frederick Cowell and Angelina Milon, ‘Decriminalisation of Sexual Orientation through the Universal Periodic Review’ (2012) 12 Human Rights Law Review 341 at 344; Ronald Holzhacjer, ‘State-Sponsored Homophobia and the Denial of the Right of Assembly in Central and Eastern Europe: The “Boomerang” and the “Ricochet” between European Organizations and Civil Society to Uphold Human Rights’ (2013) 35 Law & Policy 1 at 8). In general, issues related to LGBT rights — particularly those related to LGBT family rights — trigger strong reactions from conservative/religious states and organisations. Indeed, conservative voices did not delay in expressing their disappointment with the OHCHR report. In February 2016, Global Helping to Advance Women and Children, the UN Family Rights Caucus and 26 organisations with consultative status at the UN Economic and Social Council submitted a written statement to the UN Secretary General (A/HRC/31/NGO/155) which maintained that the OHCHR report seeks to advance the status of LGBT relationships contrary to international law. The written statement continued to say that the claim that there is a general consensus within the UN on the term ‘various forms of families’ is ‘false and disingenuous’; and concluded by calling upon the OHCHR to edit the report by removing reference to the recognition of different forms of families.

In conclusion, the mention in the OHCHR report to different types of families, and the prohibition of discrimination against children born in LGBT parents-families, are much-needed steps forward in the advancement of LGBT family rights. However, at this point, it is crucial to see whether a second resolution on the protection of the family can evolve in a direction that reflects the sentiments expressed in the OHCHR report.

Giulia Dondoli is a PhD Candidate at Te Piringa — Faculty of Law of the University of Waikato.

Australia’s use of private military and security companies: Options for accountability under international law — Anna John


On 23 February 2016, news emerged that the Australian Department of Foreign Affairs and Trade (DFAT) had renewed its contract with Australian private security company, Unity Resources Group (URG). URG was contracted by DFAT to provide personal security services for embassy staff at the Australian diplomatic mission in Baghdad. URG won this contract after allegedly halving its fees from $101.5 million between 2011 and 2015 to about $51 million for the next five years. The company’s staff have claimed that URG’s cost-cutting has compromised their wages, as well as the quality of weapons, equipment and medical treatment provided to them. As a result, staff have had to buy their own equipment, and many have chosen not to continue with the company.

Why privatise security?

This news raises broader issues about Australia’s use of private security companies. There are, for a start, fundamental moral and ethical concerns. Why aren’t personnel from the Australian Defence Force (ADF) being assigned the task of providing security at the diplomatic mission? The ADF, as a public institution, has been entrusted to act in the interest of the Australian public. On the other hand, private actors are thought to be motivated primarily by profit, which may not necessarily translate to the best interests of the Australian public. URG’s cost-cutting moves do little to assuage this fear. Further, the reliance on such companies is also contentious because of their reputation for excessive force and disregard for human rights. For example, the notorious incidents at Abu Ghraib in 2003 and Nisour Square in Iraq in 2007 both involved gross misconduct by private security contractors employed by the US military.

On the other hand, there are strong arguments for the use of private military and security companies (PMSC). The term ‘PMSC’ is a broad label for companies that undertake a range of security activities including guarding, military training, intelligence gathering, logistical support and combat advice. PMSCs may provide governments with an organised, efficient and cost-effective option to supplement their existing military presence. The UN has used PMSCs in its peacekeeping operations, and it is generally acknowledged that PMSCs have in some cases been able to contribute to a peaceful outcome where a state’s armed forces have not. The classic example of this was in the 1990s conflict in Sierra Leone. Executive Outcomes, a PMSC, was successful in containing a violent uprising by the guerrilla force Revolutionary United Front, negotiating a peace agreement, and regaining control of the diamond fields in the country. Just six months after Executive Outcomes’ contract was terminated in 1997, a military coup ousted the democratically elected civilian government.

Legal issues

There are however a number of legal issues that arise from the Australian Government’s use of PMSCs. While it is not possible to address all of these legal issues (and applicable legal frameworks) in this post, a significant problem area is accountability for the wrongdoing for PMSCs under international humanitarian law, international human rights law and international criminal law. The violent and unpredictable circumstances in which PMSC personnel operate places them in positions where they can readily violate human rights laws and other international rules. For example, if the situation in Iraq worsens — which it may, in light of Islamic State activity — URG personnel may be compelled to use force; potentially lethal force. This has occurred in the past: in 2007, an URG security convoy used excessive force, killing two women (including one humanitarian worker) in a car that did not stop for the security convoy despite ‘hand gestures and signal fire’. Similarly, in Baghdad in 2006, URG contractors shot and killed 72 year-old Australian-Iraqi, Professor Kays Juma who also did not stop for security guards.

To date, there has been no criminal prosecution for either of URG’s acts. Problems of jurisdiction have been the major obstacle to the accountability of URG for their conduct. In particular, as PMSC operations may be governed by more than one jurisdiction, the application and enforceability of criminal laws becomes complicated. One might even go so far as to suggest that this is an unspoken reason of why states find the option of private security attractive: it allows them to avoid the risks of deploying the military. Security companies have their own insurance, and DFAT bears no responsibility for the provision of medical aid, evacuation and ongoing rehabilitation (See James Brown, ‘Guns for Hire’, The Monthly (May 2014)).

Accountability under international human rights law

One obvious option for accountability under international law is international human rights law (IHRL). IHRL is an attractive option for victims because it allows for an acknowledgement that there has been a violation of their human rights or those of their loved ones. Under some frameworks, such as the European Convention of Human Rights, wrongdoers can be ordered to compensate victims. It is also an attractive framework because it covers the spectrum of potential wrongdoing by PMSCs. In the two incidents outlined above, URG may have violated the right to life enshrined in article 6 of the International Covenant on Civil and Political Rights. Other rights that are susceptible to violations by PMSCs include: the right to liberty and security of the person, the right to freedom from torture and cruel, inhuman and degrading treatment, the right to health, the right to a private life, the right to an adequate standard of living and the right to the use and enjoyment of property (see Lenzerini and Francioni, ‘The Role of Human Rights in the Regulation of Private Military and Security Companies’ in Francioni and Ronzitti (eds) War by Contract: Human Rights, Humanitarian Law, and Private Contractors (Oxford University Press, 2011)). These human rights are enumerated in human rights treaties that impose enforcement obligations upon states. The obligations upon states to prevent and prosecute abuses by private actors act as an accountability mechanism. However, the extent to which IHRL imposes binding obligations on non-state actors is unclear; while IHRL traditionally addressed only states, customary international law is developing to include non-state actors (see Andrew Clapham, Human Rights Obligations of Non-State Actors (Oxford University Press, 2006)).

PMSCs act in a contractual relationship with the hiring state. Their acts are thus considered to be acts of private persons and not acts of the state, despite their services often entailing the carrying weapons and the risk of physical harm to other people (Francioni, ‘Private Military Contractors and International Law: An Introduction’ (2008) 19 European Journal of International Law 961 at 962). Therefore, any human rights violations committed by a private security provider contracted by the Australian Government will not be attributable to the Government prima facie. The exception to this is where PMSCs exercise elements of ‘governmental authority’ or where the state exercises control over the PMSC’s conduct. Even if this threshold is not met, but a state gives a ‘quiet nod’ to PMSC misconduct, state responsibility for a lack of state due diligence can be engaged. Nevertheless, the nature of the relationship between the state and the PMSC renders it difficult to impose and enforce international human rights laws.

Accountability under international humanitarian law and international criminal law

International humanitarian law (IHL) is another framework through which PMSCs could be held to account for their wrongdoing. To an extent, IHL applies automatically during times of armed conflict. The status of PMSC personnel in situations of armed conflict is determined on a case-by-case basis. While PMSC personnel will generally be considered to be civilians under this framework, they can be held to account for their violations of IHL. The enforcement of IHL is through the criminalisation of grave breaches of international law (e.g. war crimes) under the Statute of the International Criminal Court (the ICC Statute) or the instrument of an ad hoc international court or tribunal, or through the suppression of its violations through the use of national legislation.

Here, there is an interplay between IHL, international criminal law (ICL) and domestic criminal law when it comes to the enforcement of IHL. Importantly, ICL does not impose obligations on corporations. Therefore, PMSCs as corporations cannot be held criminally liable for grave violations of ICL (except, for instance, in circumstances where ICL is incorporated into domestic legislation allowing for the criminal prosecution of corporations – this is discussed further below). PMSC contractors can be prosecuted individually for their breaches of IHL either through ICL or through national legislation. However, there are a number of obstacles involved in establishing the individual criminal liability of PMSC personnel.

First, host States are unlikely to prosecute PMSC personnel due to their limited capacity in times of conflict. In armed conflicts, it is not unusual for States to lose control over the own capitals, let alone exercise control over the actions of PMSCs. Second, hiring States are generally reluctant to prosecute their own troops for fear that this will undermine morale (Quirico, ‘The Criminal Responsibility of Private Military and Security Company Personnel under International Humanitarian Law’ in War by Contract, 424). Furthermore, the collection of evidence for the prosecution of war crimes in a national court requires an exceedingly coordinated international effort. Few States are prepared to undertake the efforts required to acquire evidence (Quirico, 424). In addition, PMSC personnel are often granted immunity contractually through agreements that the hiring state has with the host state. The details of the agreements between the Iraqi government and the Australian government are not public, so we do not know for sure whether URG, for example, enjoys immunity. In comparison, US forces deployed in Afghanistan did have immunity from local jurisdiction (Quirico, 444). Moreover, de facto immunity can be granted through judicial approaches. For instance, courts in the US have cited the political-question doctrine while declining to adjudicate upon claims relating to governmental action where discretion is essential to protect constitutional or political interests (Quirico, 443). In Australia, claims against PMSC personnel might fail on the basis of justiciability. Cases such as Minister for Arts, Heritage and Environment v. Peko-Wallsend and Hicks v Ruddock demonstrate how justiciability considerations underlie the courts’ decision to review (or not to review) government decisions involving international relations. Finally, if PMSC personnel are prosecuted, they are often charged with ‘street crimes’ under domestic law rather than war crimes. For example, the former Blackwater employees implicated in the Nisour Square massacre were charged with crimes of manslaughter and firearms offences. However, their conduct could potentially have amounted to violations of the War Crimes Act of 1996 (US), for murder of civilians, mutilation or maiming, and intentionally causing serious bodily injury (Quirico, 443).

Importantly, the Australian Criminal Code 1995 (Cth) introduces offences ‘equivalent’ to the ICC Statute offences of genocide, crimes against humanity and war crimes into domestic federal criminal legislation. This introduction of international crimes confers jurisdiction upon courts to prosecute corporations for war crimes. This is an important and positive step towards the accountability of Australian PMSCs. However, many of the obstacles to accountability outlined above are also likely to prevent PMSC liability under the Australian federal criminal legislation.


Governments all around the world have been taking advantage of the cost-effective and efficient services that PMSCs provide to their armed forces. However, as demonstrated by the case of URG, there is a risk that such companies can violate international law during the course of their operations. Accountability mechanisms under IHL, IHRL and ICL are not yet sufficiently developed to tackle the introduction of a private actor into the military sphere, which has traditionally been reserved exclusively for States. URG’s cost-cutting moves may well have implications for the human rights of the local Iraqi population, but there appears to be no certain corresponding way in which these branches of international law can hold URG criminally responsible if such violations do occur.

Anna John is a final year Law/Arts student at the University of Queensland. She works as a research assistant at the University of Queensland’s T. C. Beirne School of Law. Anna was recently a guest researcher and research assistant at the Max Planck Institute of Comparative Public and International Law in Heidelberg, Germany.

Australia-China relations: A lawyer’s perspective — David Douglas

Recently, the Australia-China Youth Association (ACYA) hosted Australia-China Emerging Leaders’ Summits (ACELS) in Shanghai and Sydney respectively, which brought together many prominent youth delegates from the two nations. Legal practice in the Asia-Pacific region was a strong focus. Amongst the delegates and networking participants, there were a number of legal practitioners and law students from both Australia and the People’s Republic of China. Additionally, interesting conclusions were reached regarding the prevalence of legal issues for cross-border commercial activities between the nations.

Foremost, government and business leaders from the two countries attended ACELS. The consistent message coming across was one that all lawyers will be familiar with — the complexity of navigating regulatory regimes between Australia and China. Despite an overall decrease in regulation (a result of the China-Australia Free Trade Agreement and similar initiatives), the primary challenges facing businesses that aim to have bilateral operations still appear to be legal requirements of compliance with regulatory systems and effective communication with relevant regulators. Without knowledge of the precise regulatory limitations for a business’ operations in a jurisdiction, it is difficult for companies to achieve commercial certainty. It is imperative to understand the existing law and its practical application. Attendees highlighted that an absence of this knowledge acts as a ‘legal handbrake’ on prospective commercial operations.

An Australian company, whose operations in China are about 1/50 the size of their presence in Australia, provided the following example. Despite this overwhelming difference in size, it must complete double the number of reports in China as in Australia for regulatory compliance,. Evidently, the complexity of regulatory requirements places substantial burdens on the company, whose operations in China are not large. For the majority of foreign companies operating in China, this appears to be a shared experience — the inability to obtain commercial certainty can hamper their investment options.

Importantly however, Chinese companies looking to invest in Australia have faced similar difficulties. Many large-scale proposed investments appear before the Foreign Investment Review Board, or are so politically-charged that the project’s future becomes uncertain, such as Shanghai Pengxin’s involvement in a bid for the Kidman pastoral empire (see for example this ABC article). Similarly, the recent approval of the bid by Chinese company Landbridge to operate the Port of Darwin has been highly controversial and subject to intense public scrutiny (see for example this ABC article).

These shared experiences at ACELS helped delegates to realise the high demand for cross-border commercial legal practice. Many commercial law firms specialise in advising foreign clients on the local regulatory environment, which presents an opportunity to the next generation of emerging commercial lawyers. They will need to be equipped with fluid skillsets, that enable them to not only advise clients on their home jurisdiction, but to collaborate with colleagues overseas in order to provide seamless advice that gives clients a holistic appraisal of regulatory conditions in each jurisdiction and the interplay between them. Following a string of newly signed free trade agreements between Australia and our major Asian trading partners in China, South Korea and Japan, much larger numbers of companies and investors will be exposed to the legal and regulatory difficulties associated with cross-border business. Naturally, this will lead to an increase in the demand for legal expertise in dealing with these issues.

David Douglas, President of the Australia-China Youth Association and graduate lawyer at a leading international law firm.

Racial discrimination in Australia: (lack of) protection for Muslims — Jennifer Tridgell


2015 brought an escalation of Islamophobia across the Western world. In the United States, Donald Trump called for creation of a Muslim register and restrictions upon Muslims entering the country. Worryingly, his inflammatory, and profoundly racist remarks resonated with many Americans, arguably by ‘merely indulging a [widespread] sentiment’ (Vox, 2015).

Meanwhile, Australian Muslims faced persistent abuse and discrimination, which intensified after the siege in Sydney’s Martin Place (AHRC, 2015). This is consistent with reports from the national Islamophobia Register. But 2015 also marked the 40th anniversary of the Racial Discrimination Act 1975 (Cth) (RDA).

In the words of Australian Race Discrimination Commissioner, Dr Tim Soutphommasane, this historic Act is not about punishing racism, but rather ‘protecting people against prejudice’. The RDA does not shelter Muslims, but only offers them ‘limited protection’, as a national consultation report by the Australian Human Rights Commission revealed. So why does an Act supposed to protect the most vulnerable groups in Australia from vilification, seem to fail?

A Matter of Definitions

For barrister Kate Eastman SC, the answer lies in delineating between the blurred definitions of race and religion. Whilst the RDA makes it unlawful to discriminate against a person on the basis of race, colour, descent, national origin or ethnic origin, it does not extend to religion (section 9). Yet since 1995, Jewish Australians have been comprehensively protected for sharing a common ‘ethnic origin’ (see for example the decision in Jones v Scully). This article calls for similar protection to be extended to Muslim Australians.

Uncertainty around scope of the term ‘ethnic origin’ creates difficulties for Australian courts, especially without clear definitions to guide statutory interpretation. Neither the RDA nor the treaty it incorporates, the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), have defined the meaning of each ground for discrimination, such as ‘race’ or ‘ethnic origin’.

As Eastman notes, the ICERD Committee has argued that these terms are flexible and should be interpreted in light of contemporary circumstances. It asserted that religion is intertwined with issues of ethnic and racial discrimination, and expanded the scope of ICERD to encompass discrimination against Muslims, Jews and Sikhs, amongst others.

However, in Maloney v R the High Court of Australia rejected an approach to interpreting the RDA as a living or organic instrument. Rather than consider recent developments in international law, which could spark ‘informal modification’ (French CJ at [23]), the Court treated the RDA as an instrument of static meaning.

International Jurisprudence

Australia has largely followed two major cases for defining ethno-religious grounds of discrimination. First is the New Zealand decision of King-Ansell v Police, where the defendant was charged with vilification of Jewish people under New Zealand’s equivalent of the RDA. The Court treated ‘ethnic origin’ as a fluid concept, a ‘historically determined social identity’ (Richardson J at [543]) that stems from a common historical origin, and shared beliefs, customs and traditions.

Secondly, in Mandla v Dowell Lee the House of Lords ruled that a school was guilty of discrimination by refusing entry to a Sikh boy, who insisted on wearing his turban and not cutting his hair in compliance with school uniform standards. The majority favoured two different approaches. Lord Templeman took an essentialist stance to define Sikhs as an ethno-religious group based on ‘common colour and a common physique’. On the other hand, Lord Fraser treated ‘ethnic origins’ as a contemporary concept and social construct that evolves over time. By contrast, Australia’s treatment of ethno-religious identity has been inconsistent.

A Domestic Perspective

In New South Wales, courts have taken a narrow reading of ‘ethno-religious origin’ under the Anti-Discrimination Act 1977 (NSW). In Khan v Commissioner, Department of Corrective Services, an Indian Muslim prisoner claimed that refusal to provide halal food was discrimination based on his ethno-religious origin. His case was rejected, despite the fact that his Jewish inmates could request kosher food. Moreover, the Attorney-General of NSW expressly stated that the Act must recognise the link between race and religion, thereby deliberately clarifying that ‘ethno-religious groups such as Jews, Muslims, and Sikhs have access to racial vilification and discrimination provisions’. Despite the shortcomings of this approach, this case has not been overturned and remains the leading decision on ethno-religious discrimination in NSW.

To address this, the RDA should be amended to ensure greater protection for Muslims. Currently in Australia, it is sufficient that a person’s ‘ethnic origin’ is one of the factors in discrimination (RDA, section 18B). Yet where it is the sole factor, the victim does not have protection available. Additionally, attempts to distinguish between an individual’s religion and ethnic origins are often arbitrary and confusing. By either amending the RDA or adopting a national multicultural Act, as Professor Andrew Jakubowicz proposes, we can offer more comprehensive protection for vulnerable groups from ethno-religious discrimination in Australia.

Regardless of which approach is favoured, our government should consult all members of the community, including Muslims, on how to strength legislative protection. Finally, implementation is most effective when law is widely known and respected. Community education programs can raise awareness of the RDA, whilst also shaping a culture where racial discrimination is widely denounced.


Upon the enactment of the RDA, Prime Minister Gough Whitlam declared that it was a historic Act, which would ‘entrench new attitudes of tolerance and understanding in the hearts and minds of the people’. Over 40 years later, these sentiments are just as important today, especially as Islamophobia continues to sweep the Western world. If Australia is truly a land of the ‘fair go’, then Muslims clearly should have statutory protection from racial discrimination and vilification.

Jennifer Tridgell is a final year law student at Macquarie University and Assistant Editor of the ILA Reporter. She has previously worked at the Australian Human Rights Commission in the Race Discrimination team. This article is written in her personal capacity.

What’s the Big Deal? Legal Implications for Australians in the wake of the TPP — Anna John

The final stages of the Trans Pacific Partnership (TPP) negotiations were well-publicised in Australia, albeit hazy with regard to the implications of the agreement. Negotiations between Australia, the US, Japan and nine other Asia-Pacific countries over the mammoth deal have been ongoing for seven years. From an international law point-of-view, the fact that an agreement has been reached is in itself laudable.

DFAT has said that outcomes from the conclusion of the TPP include new market opportunities for exporters and investors, increased transparency of regulators frameworks, greater certainty for businesses, improved access for regional supply chains, and a reduction in bureaucratic processes. However, reactions to the deal so far have been mixed, and key economic commentators have concluded that the advantages and the disadvantages of the TPP are largely unremarkable (see for example, opinions by Ross Gittins, Joseph Stiglitz and Adam S. Hersh). Major changes to existing legislation as a result of the TPP are unlikely. There are, however, legal implications to be aware of.

Investor-state dispute settlement arrangements

One of the most contentious issues appears to be the investor-state dispute settlement (ISDS) mechanisms in the TPP. Australia initially maintained that it would not accept any arbitration mechanisms for investor-state dispute settlements. However, the final text of the TPP reveals that Australia has conceded to the ISDS provisions, which allow for the establishment of an arbitration tribunal specifically to adjudicate on claims arising from the operation of the TPP. As a result, foreign investors will be able to bring claims against a participating TPP country.

ISDS mechanisms can enable foreign investors to attack legislation enacted for the protection of the public interest. The best example of such a such a scenario is the Phillip Morris litigation. One of the avenues Phillip Morris used to challenge Australian plain-packaging legislation was the ISDS mechanism in the 1993 Australian bilateral investment treaty with Hong Kong. Recently, the Permanent Court of Arbitration dismissed the case, agreeing with Australia’s position that it did not have jurisdiction to hear the case.

Notably, the TPP disallows tobacco companies to challenge public health legislation. So Phillip Morris, for example, will not be able to seek relief under the TPP. Nevertheless, such free trade agreements can stand in opposition to public interest legislation. Article 9.15 of the the TPP’s Investment Chapter provides that a signatory party is not prevented from legislating in the public interest. However, there is a clause allowing non-discriminatory public welfare legislation to be challenged ‘in rare circumstances’, at appendix 9-B, clause 3(b). Effectively, this can give rise to challenges against legislation that protects legitimate public welfare objectives.

Intellectual property

The Intellectual Property Chapter of the TPP was crucial to the conclusion of the negotiations, especially for the Australian delegation.

The TPP and pharmaceuticals

One of the central issues was the length of the data exclusivity period, especially for biologics. Biologics are a type of medicine made of protein-producing cells found in living organisms, and are used to treat a number of illnesses, including diabetes and cancer. Generic versions of biologics, known as biosimilars, can be manufactured in Australia after a minimum of five years since the release of the biologic. This is known as the data exclusivity period.

The US pushed for a twelve-year minimum data exclusivity period during the negotiations. However, according to the final text of the TPP, the agreed data exclusivity period is five years. Since this is the same level of protection that is afforded to biologics under Australian legislation, there is no real impact here.

The TPP and copyright

Once again, it is unlikely that there will be any major change to domestic copyright laws. DFAT has confirmed that provisions under domestic legislation relating to copyright terms, patents and Internet Service Provider liability are all consistent with the TPP’s standards. Notably, there will likely be no introduction of new civil or criminal penalties for individuals who download movies illegally.

The biggest legal implication here for the Asia-Pacific region involves the TPP’s provisions on counterfeit and pirated goods. The TPP requires signatory countries to legislate against the use of counterfeit and pirated goods. This includes expanding the range of offences for counterfeit or pirated labels and packaging, broaden powers to allow the forfeiture of counterfeit or private goods, and ensuring that adequate damages are available for copyright and trademark infringement. Within the Asia-Pacific region, this may have large implications, given that the large majority of counterfeit goods originate from the Asia-Pacific region (mostly from China, but also from Malaysia, a TPP signatory). These countries will now be required to legislate according to the TPP’s provisions. This is a welcome development for Australia.

Finance Expats in the Asia-Pacific Region

Under the TPP, the Australian financial sector has more opportunity to integrate with those in the Asia-Pacific region. Australian bank and asset managers have been seeking expanded growth in Asia, with a focus on financial services exports. This includes lowering restrictions for Australian professionals to work in Australian financial companies overseas. Some countries within the Asia-Pacific region limit the number of foreign persons that can hold senior managerial positions in a financial institution in their country. The TPP places a cap on these restrictions, and also provides for special visa arrangements that will allow such professionals more certainty during their stay overseas. This is outlined by DFAT, announcing that Australian financial institutions will be ‘guaranteed’ the option to transfer specialists and managerial staff to their overseas branches for extended periods. Conversely, such provisions will also lead to an increase in financial services (and expats) from Asia-Pacific countries.

Where does the TPP leave us?

Overall, the TPP is a good deal for Australia, and promotes Australian involvement in the Asia-Pacific. Legally, the biggest uncertainty is what the ISDS provisions will entail. While an exception has justifiably been made for tobacco companies, the clause allowing public welfare legislation to be challenged is perturbing. For example, under a similar ISDS mechanism, a US investor was able to sue Costa Rica on the basis that its environmental legislation impeded their business interests, thus contravening a free trade agreement. As has been pointed out, ‘tobacco control measures are not the only policies worth protecting’. Litigation against public welfare legislation is detrimental to the public interest, can encroach on national sovereignty in a negative way, and could ultimately lead to the public expenditure of millions in legal fees.

A further (albeit political) consideration for Australia is its relationship with the US. Australia has an important role to play in the imminent economic dominance of the Asian countries. A criticism often brought against the TPP is that it preserves US interests in the Asia-Pacific region in the face of growing Chinese influence. Tellingly, the negotiations (released on Wikileaks)showed a reluctance on Australia’s part to step away from its alignment with US interests and establish itself as an important regional player in its own right. For example, Australia’s position in the negotiations lined up with the US 64 times. This was higher than its alignment with the next highest, Peru (54 times) and Singapore (51 times). Additionally, Australia ranked second last in terms of the support drawn by its proposals. The dominance of Asia-Pacific region should lead to a convergence in regional interests, but Australia appears to be taking a step away from this direction.

The TPP is an important step towards economic integration within the Asia-Pacific region. This is not without legal implications, and while many aspects of the deal are welcome and needed, a better outcome could be achieved in others.

Anna John is a final year Law/Arts student at the University of Queensland. She works as a research assistant at the T. C. Beirne School of Law. Anna was recently also a guest researcher and research assistant at the Max Planck Institute of Comparative Public and International Law in Heidelberg, Germany.