At the State Legal Educators Conference on Thursday 30 July, Peter Black gave a presentation titled The Challenge of User-generated and Peer-produced Networks, Content & Culture. You can watch a video of that presentation here:
The Prime Minister has announced that the government remains opposed to same-sex marriage. He said that marriage should be a ‘union between a man and a woman’. However he welcomes a debate on gay marriage (see Courier Mail Thursday 30 July , 2008).
Stephen Keim supports same-sex marriage and his article first published in Brisbane Legal sets out why.
Proposition 8 and Rights to Marriage
One of the curious aspects of the elections conducted across the United States of America on the first Tuesday in November 2008 was the passage of a number of referendum proposals that stripped gay couples of the right to marriage or some form of civil union. The America that had voted for the change promised and represented by Barack Obama had also shown itself to be niggardly with the rights of others.[1]
At time of writing, the Californian Supreme Court has just finished hearing argument in a case that argues that the Californian version of that referendum was, itself, unconstitutional. At first, the argument seems anti-intuitive in that proposition 8, the proposal which banned same sex marriage, was an amendment to the Constitution of California. The argument,[2] however, is based on core commitments to equal rights in the Constitution. The whole purpose of Constitutional protections of minority rights is to stop an elected majority from treating particular minorities in a discriminatory way and removing from them the rights enjoyed by the rest of the population. It goes against the purpose of this core aspect of the Constitution for a majority, by the initiative (referendum) process, to overrule minority rights which have been recognised by the courts as protected by the Constitution. If this is allowed to happen, the central commitment to equality in the Constitution would just become a chimera.
The judges have reserved their decision. Media reports, [3] based on the thrust of the questions asked of attorneys by the judges, suggest that the case may be unsuccessful.
The passage of proposition 8 and similar proposals in other States galvanised supporters of rights to same sex marriage. Demonstrations in support of equal treatment for gay people proliferated across America. Even many normally conservative small towns in the American Bible Belt saw outbreaks of activism.
The Atlantic Monthly’s columnist and blogger, Andrew Sullivan, documented in words and pictures[4] this unexpected result of what appeared to be a set back for the gay rights movement. The demonstrations appear, in the photographs, to be cheerful and good humoured. The protest signs display characteristic street humour. One of my favourites is: “Against Gay Marriage: Then Don’t Have One”.
For me, however, a fundamental truth emerged from the response of bloggers across the world to Andrew Sullivan’s own comments urging that this new level of activism be maintained. Sullivan had said: “When every gay person and every friend or family member of a gay person really, truly believes that the status quo is unacceptable, we will win.” What emerged from the responses, however, is that rights of gay people, like other minority rights, are too important to be left to the minority and their friends for their protection. Suppression of minority rights is a challenge to the rights that each of us enjoys as well as a challenge to our sanctimonious world view.
It is too easy for people to feel about same sex marriage that this is just an indulgence. Deep inside, we can hear ourselves thinking: “What will they want next. They are not thrown into jail, anymore. Surely that’s enough.” The reality, however, of the desire for gay marriage is far from an indulgence.
From the blogs, the anecdotes of true suffering emerged. One was the story of a man who had to leave his brother and father, both terminally ill, so he could live with his non-US partner in Canada. Because their overseas union was not recognised by US law, his partner was not allowed admission to the US. Another concerned a man whose partner had died after they had been together for 34 years. The funeral home would not accept the surviving partner’s instructions for a cremation. A family member’s instructions were required.
The most heart breaking story, however, involves a hospital scene. In true Alan Ramsay style, I will uplift and reproduce the whole anecdote:
“I remember a story told me during the AIDS epidemic. A man was visiting a friend dying in hospital. It was a grim scene, as it often was in those days. The next bed in the ward had a curtain drawn around it. And from behind that curtain, you could hear someone quietly singing. The man told his friend, “Well, at least that dude is keeping his spirits up, however sick he is.” And the friend replied:
“Oh, that’s not the patient singing. He died this morning. And his family came to collect the body. That voice you hear is the man’s partner. The family didn’t approve of his relationship and they have barred him from coming to the funeral and kicked him out of their shared home. That song he’s singing is the song they called their own. It was playing when they met. He used to sing it to him all the time when he was dying.”
“He’s still singing it even though they’ve taken the body away. He’s singing it to an empty bed. I guess it’s the last time he feels he’ll ever be close to the man he loved. They were together twenty years. The hospital staff don’t have the heart to ask him to leave yet.”
It is easy to forget the rights that we enjoy. It is difficult to understand how it feels to be treated as sub-human until it happens to you. Anecdotes like these, however, may help those of us who have not suffered to bridge the empathy gap.
The Commonwealth Parliament passed a law, last year, that gives some grudging recognition to gay partnerships in terms of Commonwealth entitlements. Some States have legislation which recognises civil unions. Equality remains, however, a long way away.[5]
In Australia, as in the United States of America, gay rights are human rights. It is a simple proposition but one that is hard to digest. Hopefully, we, as a community, can learn to understand that it is true.
In the US, a Colorado judge recently approved the use of Twitter, as well as live-blogging, inside the courtroom to cover an infant-abuse trial:
Prosecutors and defense attorneys wanted bloggers silenced in the courtroom next week, but a Boulder judge ordered Monday that cell phones and computers won’t be banned from the child-abuse trial of Alex Midyette, the Boulder Daily Camera reports. The attorneys argued that live-blogging and Tweeting the sensational case could tip witnesses to proceedings before they testified, thus impeding a fair trial. “I think there are other manageable options and less restrictive options than shutting down the flow of information during the trial,” Boulder District Judge Lael Montgomery said.
Last week, when the attorneys filed the joint motion to keep bloggers out of the courtroom, a Kansas journalist who has pioneered new media trial coverage cried foul. “Courts are supposed to be public and this is just another way of creating public access,” Wichita Eagle reporter Ron Sylvester wrote in an e-mail to the Colorado Independent. In addition to a Tweeting trial coverage, Sylvester maintains a blog, What the Judge Ate for Breakfast, with further insight into the local courts.
“[R]eporting through live blogging is simply text descriptions, just as newspapers have been reporting on the courts for ages,” Sylvester wrote. “When I use Twitter to cover trials, there’s really very little difference in what I do with social media than what I write for the next day’s newspaper.”
Montgomery agreed in her ruling Monday, ordering witnesses to refrain from reading about the testimony of other witnesses. “The court believes that is a more appropriate way to proceed than shutting off the reporting at the front end,” the Longmont Times-Call reported.
Before you get too excited about this ruling, I cannot see this ruling taking place in Australia. The principle of open justice in Australia is very different from the US, and my feeling is that the courts here would be more likely to grant TV or radio access than Twitter or live-blogging in Australian courts – and I can’t see TV cameras or microphones being regularly allowed into Australian courts any time soon.
Ben Kremer (who blogs at Lawfont) has created an iPhone and iPod Touch application that contains the text of the Australian Constitution. You can download the free application at the iTunes Store here.
Parents are allowed to smack their children in Queensland provided it is by way of correction or for purposes of discipline providing the force used is reasonable in the circumstances. This is the defence contained in Queensland’s Criminal Code section 280. For the arguments for and against reform to our ‘smacking laws’ see Legal Studies for Queensland, Chapter 7 pages 140 & 141.
New Zealand changed their law in 2007 removing the reasonable force requirement. This effectively made it illegal for parents to smack their children. The reform was undertaken to reduce the possibility of child abusers using the ‘reasonable force’ defence to escape conviction. This reform in New Zealand has been controversial. Some parents feel it is an unwarranted intrusion of the government into family life and that an occasional smack is an effective corrective tool that parents are entitled to use.
Hence the New Zealand government is taking the issue to the people. A referendum will be held to decide the issue. This could not be done in Australia as referenda are limited to amendments of the Constitution. See Legal Studies for Queensland . Chapter 2 pages 40 & 41.
280 Domestic discipline
It is lawful for a parent or a person in the place of a parent, or
for a schoolteacher or master, to use, by way of correction,
discipline, management or control, towards a child or pupil,
under the person’s care such force as is reasonable under the
circumstances.
All the states of Australia have had laws preventing cruelty to animals. Many of us would have been sickened at times by reports of cases of cruelty and of neglect to animals and felt vindicated by reading that the perpetrators were convicted for such acts. However, activist groups including PETA and Voiceless have been highlighting some systematic and inhumane practices particularly in commercial use of animals and animal farming practices, including mulesing, treatment of exotic animals in circuses, battery hens, confining pigs and cattle in filthy conditions, kangaroo culling, live sheep trade .
Awareness that some animals need more humane treatment than they are currently receiving in Australia has led a legal reform movement demanding greater legal protection for all animals. Developments in this field include:
o President of the Australian Law Reform Commission, Professor David Weisbrot foreshawdows in the Commission’s journal – Reform – that animal rights is our ‘next great social justice movement’.
o A new book ‘Animal Law of Australasia’ edited by Peter Sankoff and Steven White was launched by Michael Kirby, former judge of the High Court of Australia. The books highlights the existing laws and regulations together with current weaknesses in our existing animal welfare laws. http://www.federationpress.com.au/bookstore/book.asp?isbn=9781862877191
o Arguments for a Universal Declaration of Animal Rights
o An animal law blog: http://animallawonline.blogspot.com
o Courses in animal law are being taught in nine Australian law schools.
o Legal developments in the US. Radio National reporter Damien Carrick looks at these developments which show animals may legally be more than the property of their owners. There are cases where American courts have appointed guardians for individuals animals and consider the best interests of the pet when determining pet custody in family law disputes. Listen to the report:
There is an article in today’s Courier Mail setting out the State government’s response to ‘glassing’. See Alison Sandy’s Brisbane’s ‘high risk’ venues, clubs targeted’ at: ‘http://www.news.com.au/couriermail/story/0,23739,25843372-3102,00.html
In The Australian Ross Fitzgerald focuses on the underlying problem of endemic binge drinking in the community and the nexus between alcohol and sport in the Australian culture, noting the level of risky drinking in young people and also the recurring incidents of anti-isocial behaviour/criminal offences committed by elite footballers. he proposes a range of restrictions on alcohol advertising.
See Ross Fitzgerald’s Peddling Youth Booze at: http://www.theaustralian.news.com.au/story/0,25197,25843608-7583,00.html
In the last twelve months over 400 Queenslanders have been treated for ‘glassing’. This is the term the media has given to an attack on a person with a broken bottle or glass which results in injuries and which takes place in a bar or nightclub. Alcohol or drugs typically fuel the attack. The injuries can be quite significant with deep lacerations leading to permanent disfigurement and in some cases blindness.
Whilst the term ‘glassing’ is new, acts of this type have always been criminal offences. Almost 50 years ago, one the most significant legal cases in Queensland which went on appeal to the High Court of Australia – Kaporonovski v R (1973) 133 CLR 209 – involved what would now be called a glassing. The facts are at page 164 Legal Studies for Queensland (5th ed) Vol 1.and can downloaded from Austlii. http://www.austlii.edu.au/au/cth/
Kaporonovski had been convicted by a jury of the offence of doing grievous bodily (s320 CC) harm. One of the issues argued in his appeal was that he had been provoked to act by an insult from his victim which had caused him to lose self control. The High Court laid down the important principle that provocation (s269 CC) is not an excuse/defence available on a charge of doing grievous bodily harm as assault is not an element of s320. Also, the High Court in this landmark case laid down the test for the operation of the accident excuse (s23CC) finding on the facts that it was foreseeable that smashing a glass in a person’s face would cause serious injury of the type that had occurred. Thus it was not an accident.
Current offences: Depending on the nature and severity of the injury glassing can result in charges of grievous bodily harm, wounding, assault occasioning bodily harm – even murder or manslaughter if it results in death. This is not new law. However, what is new is the increasing number of these glassing injuries.
What to do?
We do not need a new offence of ‘glassing’ to be created. The current law provides an appropriate range of offence options.
The most popular option proposed is for the licensing laws to require alcohol to be served in plastic cups not in glass. Difficulties abound with this proposal. Should it be applied to all premises serving alcohol, including lawn bowls clubs and fine dining restaurants? If it is t o be just the high risk (of glassing) venues, how are these venues to be fairly determined? One or more glassing attack? The age of the patrons? The location? How late the venues stay open? Should the plastic requirement be optional or mandatory?
Perhaps the change to plastic is really just a band-aid solution. If excessive alcohol consumption is the fuel flaming these glassings, then a switch the plastic may just mask the real issue. Excessive alcohol consumption will not be effected and it is likely alcohol induced violence will still occur just with a different implements – bar stools, wine bottles, and fists can be used and still cause injury. The government of Queensland has indicated that it will set up a parliamentary committee to enquire into alcohol related violence and write recommendations and is a recognition that glassing is part of a wider problem of endemic alcohol abuse within the community.
Perhaps there should be a re-think of whether Queensland really need our nightclubs and pubs to stay open until 5am?