The subject matter of the event was especially timely, as the state’s new voluntary assisted dying (VAD) legislation sat poised between the two houses of Parliament – it had passed the Legislative Assembly less than a week before, and is due to be debated in the Legislative Council this week.

As emphasised by the forum’s facilitator and Victoria Law Foundation’s Executive Director, Lynne Haultain, the VAD legislation sits at the crossroads of medicine and law, and to accommodate this the night’s panel was made up of a mix of well-credentialed legal and medical professionals.

Representing the medical realm were Steven Amsterdam, a palliative care nurse and author, and Dr Scott King, Clinical Director of Palliative Medicine at Calvary Healthcare Bethlehem. From the legal world were Kathy Wilson, an expert in succession and elder law from Aitken Partners, and Julian Gardner AM, Chair of Mind Australia and former Victorian Public Advocate, who sat on the Ministerial Advisory Panel on Voluntary Assisted Dying.

VAD legislation: Why now?

There were a number of thought-provoking themes that emerged from the night. The first was the question of why this legislation has a chance of success now when assisted dying laws have failed time and again to gain political momentum in Victoria. Julian Gardner put it down to politics – this is the first time assisted dying has been put forward by the government, rather than being proposed in a private member’s bill.

He noted too the persuasiveness of the evidence presented to the Ministerial Advisory Panel:

Existing laws are not being enforced, and mercy killing is not being prosecuted; one person a week commits suicide who might be eligible for VAD; and 1-5% of people suffering from terminal illness can’t be relieved by palliative care.

Another interesting explanation raised was that a generation of Baby Boomers, who tend to value ‘autonomy’ and are used to being in control of their lives, is starting to anticipate end-of-life questions. Having the option to choose VAD, it was argued, can provide a sense of control and comfort, even if the number of people who actually use it is small.

Impact of VAD on healthcare professionals

A good deal of the evening was devoted to the attitude of healthcare professionals in Australia. While support for VAD sits at around 70% of the general population, the level of support is much lower in the medical community.

Haultain teased out the possibility that VAD is in some sort of competition with palliative care. While the panel agreed that the two are not in direct competition, the medical professionals on the panel were concerned that VAD might undermine the work of palliative care specialists. Steven Amsterdam explained that palliative care has a branding problem, in that people in Australia tend to associate it with death, with the palliative care department seen as a place ‘you go to die’. Given we’re a death-averse society, people put off palliative care as long as possible, and Amsterdam raised the concern that VAD might present yet another barrier to getting people into palliative care. Dr King emphasised this point by explaining that palliative care has a much greater acceptance in other parts of the world, such as the UK, and that Australians are very wary by comparison.

Will the vulnerable be protected?

An issue that attracted attention was whether there are sufficient measures in the legislation to protect against coercion of people to end their own lives using the VAD processes. Julian Gardner explained the protections (outlined fully here) and emphasised that taken together, these measures reduce as far as possible the risk of coercion. Kathy Wilson noted that the lack of a definition of coercion in the legislation is a weakness, and that ‘undue influence’ is generally very hard to prove in cases of elder abuse. She noted that:

Doctors need to be aware of the subtle forms that coercion can take when it comes to family members attempting to abuse laws like VAD for personal gain.

Overall, the evening involved an engaging mix of dialogue and education.

Hosting a panel made up of medical and legal professionals allowed for debate on the complexities of an issue that touches on death, autonomy, elder abuse and the repercussions of law reform on both medical professionals and their patients. Opening the discussion up to the general public gave anyone who was interested the opportunity to ask questions and clarify how the proposed laws might impact them and their loved ones.

Victoria Law Foundation is a not-for-profit organisation that provides easy-to-understand information about the laws and legal system to Victorians.

More on BucketOrange Magazine

• Legalising Euthanasia Explainer: Victoria’s Voluntary Assisted Dying Bill Hits Parliament

How does a society balance the values of freedom and safety? And what role do political leaders have in maintaining that balance? If we take recent comments from our political leaders seriously, then they either don’t care about these questions, or consider themselves helplessly unable to resist the demands of the nation’s law enforcement agencies. Either reality is concerning.

In early October this year, leaders from Commonwealth, state and territory governments agreed to a new package of anti-terrorism laws. Four of these reforms, in particular, have caused a stir since the announcement:

• Laws allowing police to hold terrorism suspects as young as 10 years of age without charge for up to two weeks
• Laws introducing a National Facial Biometric Matching Capability program making passport, visa, citizenship and driver’s licence photos available to authorities in real time to identify criminal suspects
• The new crime of carrying out terrorist hoaxes; and
• The new crime of possessing instruction manual material for carrying out terrorist acts.

Taken by themselves, these proposed laws are worrying. There are serious concerns about the implications of expanding the scope of detention without charge and of a nation-wide biometric information sharing network. It is unclear whether these changes will add anything meaningful to the existing legal framework.

It’s when these laws are put into the context of Australia’s long-running fixation with security-based law reform, however, that their true significance for the overall health of Australian society becomes clear.

Some context

It’s not as if the state and federal governments’ agreement this month marks a new turn towards the expansion of law enforcement powers in the name of security. Instead, it is yet another step down a path we’ve been moving steadily along for at least 15 years.

The creeping expansion of law enforcement powers comes at a cost, namely the protective buffer of civil liberties. Civil liberties are a collection of freedoms that need to be protected if the dignity, integrity and well-being of individuals are to be kept safe from the demands of the community.

When the welfare of the collective is perceived to be threatened, there is a temptation to just do whatever needs to be done to meet the threat.

Being the confused, biased creatures that we are, we often accept measures that trample on the well-being and dignity of individuals or minority groups, in the name of communal safety.

This is one reason why civil liberties are so important; they go some way to protecting individuals against the fears of the group.

This means that in any society that cares at all for the importance of individual autonomy in the face of collective fear, there is going to be an ongoing struggle between the demands of security and the demands of civil liberty. Both are indispensable, and both have to be accommodated, somehow, side by side. People need to be protected from the violence of terrorists, and they need to be protected from the violence of the majority. Balancing these two goals is one of the most important and difficult responsibilities that political actors, from leaders to voters, have to manage.

Succumbing to the idea that ‘anything is acceptable as long as it keeps us safe’ means renouncing responsibility for maintaining that balance. Once that renunciation is made, there isn’t much that is going to resist the slide towards the lawless comfort of a police state.

To stop that slide, we need to acknowledge that the balancing of security and civil liberty relies on continuous dialogue and debate, and relies on institutional resistance to those arms of government tasked with keeping us safe.

What was most alarming about the October meeting was the insistence from our leaders that there is no debate to be had at all. For example, Victorian Premier Daniel Andrews stated:

Notional considerations of civil liberties do not trump the very real threat, the very real threat of terror in our country today.”

According to Andrews, this balance of ‘security versus civil liberties’ is not a debate we can afford to have. This idea of safety outweighing all else has been a recurring theme from our political leaders in recent years.

In September 2014, Tony Abbott told Parliament how Australians would have to accept reductions in freedom “for some time to come” as a consequence of increased security aimed at saving lives from the threat of terrorism. He ultimately justified the limiting of freedom as a necessary part of achieving a more fundamental freedom:

After all, the most basic freedom of all is the freedom to walk the streets unharmed and to sleep safe in our beds at night.”

The bipartisan nature of this attitude was evident in Opposition leader Bill Shorten’s reply when he noted that “keeping our people safe is above politics.”

This mindless assertion, that security is an automatic trump over all other considerations, strangles the debate that must be had about the appropriateness of eroding civil liberties in the name of safety.

Andrews also said:

What I would be worried about is if we, heaven forbid, had another terrorist attack in this country and it became clear that we had technology available to us – tools and powers and laws and resources available to us – and we had squibbed it because of notional concerns about civil liberties, overlooking something if terrorists strike.” 

These comments suggest that he is worried about opening himself up to blame for a future terrorist attack, should he resist any law or technology proposed in the name of keeping us safe. In a way, he is probably right to be scared, as his opponents and voters could well blame him and his colleagues personally after an attack.

However, there are going to be future terrorist attacks, and the argument will always be available after each one that politicians could have done more to prevent it. That makes the ‘security at any cost’ very attractive to a political leader. But resisting that fearful slide into ‘security at any cost’ is something we need from them. Acknowledging the possible personal consequences of taking a principled stand is one of the things that makes someone a leader.

If our leaders don’t resist their own fears, then they are followers.

This image of our leaders as meek followers is brought home more fully by Andrews’ suggestion that he and his colleagues have no option but to consent to whatever law enforcement agencies ask for:

The luxury that no political leader in Australia has is to say no to law enforcement, ‘No, we won’t give you what you say you need, we won’t give you the technology that you need to keep us safe … Please go and keep us all safe but we won’t give you what you need.” 

Of course, law enforcement agencies are in a position to know what they need to get their jobs done. But law enforcement agencies can’t be relied upon to know when the powers they demand upset the security/civil liberties balance to an unacceptable degree. ‘What law enforcement agencies want’ cannot be the standard by which we decide what is acceptable; the obvious and stark conflict of interest rules that out.

This issue highlights a double-sided nature of law. On the one hand, the law gives politicians and law enforcement the powers they need to maintain order. On the other hand, the law places restrictions on how they can go about their duties. This dimension of law as an impediment to action is important if we want to make sure that the power we delegate to the state isn’t handled arbitrarily.

Australia is particularly weak when it comes to protective and corrective mechanisms to provide protection against the accumulation of executive power. Andrews is telling when he calls our civil liberties ‘notional’. Unusually for a Western society, Australians do not have many legally-entrenched civil liberties. For example, there is no nation-wide Bill of Rights. This is why discussion and debate are so important, and why the demands of law enforcement require pushback from other actors in society.

Going too far?

October’s agreement is a further step down the path of ‘security above all else’. How can we tell when we’ve gone too far down that path? Identifying proposals for laws that are troubling in themselves, like the pre-charge detention of children, is one way. The Law Council has called the pre-charge detention laws ‘extraordinarily draconian’.

Another way is to listen to those who are trying to communicate the wider context of Australia’s turn towards the unshackling of executive power in the name of safety. Former President of the Australian Human Rights Commission Gillian Triggs is one such prominent voice:

Questions of national security, justified by a fear of terrorism, often conflated with a fear of unauthorised arrivals of immigrants, asylum seekers and refugees, even a fear of Islam itself, have shielded government measures from political challenge as a taboo subject, creating a vacuum of silence in the absence of strong leadership.“

It doesn’t require any imagination to see what an imbalance of executive power, handled by Australian authorities without independent oversight, would look like. In Australia’s archipelago of detention centres, there is a long-running reign of abuse and violence.

Civil liberty is already a shaky, ‘notional’ concept in Australia, especially for individuals belonging to groups marginalised from political power. Our obsession with crime and safety has its costs, and whether the unshackling of executive power should continue unchecked is a matter of urgent national debate. Sadly, it seems as though our leaders aren’t even prepared to acknowledge there is a discussion to be had.

What do you think about the balance between security and civil liberties? Do the ends justify the means? Let us know in the comments!

If passed, from mid-2019, the highly contentious legislation would allow those suffering from an advanced and incurable illness, disease or medical condition to seek a medically assisted death.

Since the subject of euthanasia can be so ethically complicated, the details of how the new laws will work in practice are important.

At the end of 2016, an independent panel of healthcare and legal professionals, the Voluntary Assisted Dying Ministerial Advisory Panel (the Panel) was asked to look into those details. The Panel published its final report in July and so it’s now possible to get a sense of how (what the Panel calls) voluntary assisted dying would work.

Who will be able to choose euthanasia?

There are two key tests to determine if a Victorian adult will be able to access assistance to die.

Firstly, they need to have ‘decision-making capacity’, so that they understand what is involved and can make a voluntary, informed decision.

Secondly, they need to have been diagnosed with an incurable disease, illness or medical condition that is:

(a) advanced, progressive and will cause death in not longer than 12 months and which is

(b) causing suffering that cannot be relieved in a manner the person deems tolerable.

These tests mean that there are a few situations in which someone who might want to use the voluntary assisted dying laws won’t be able to do so. For example, some people with dementia may not be able to access the voluntary assisted dying scheme.

Similarly, someone with a mental illness or a disability will not, for those reasons alone, be able to access the voluntary assisted dying scheme. Another result is that it will not be possible to nominate voluntary assisted dying as something you want to be done if you become unable to decide for yourself in the future.

How will someone be able to access euthanasia?

Before a person is able to access the voluntary assisted dying scheme, they have to make three separate requests and undergo two independent medical assessments.

The stages are:

• First request

A person must make a written request for voluntary assisted dying to a medical practitioner. This medical practitioner will be able to conscientiously object to taking part, but if they don’t, they will make a decision as to whether to act as the ‘coordinating medical practitioner’.

• First assessment

The coordinating medical practitioner must conduct the first assessment using the eligibility criteria and must ensure the person is properly informed.

• Second assessment

If the person is eligible, the coordinating medical practitioner needs to refer the person to a second medical practitioner who must carry out a second, independent assessment.

• Second request

If both medical practitioners decide the person is eligible, the person needs to then complete and sign a written declaration, witnessed by two independent witnesses.

• Third request

The person needs to make a final, verbal request to the coordinating medical practitioner. This has to be done at least 10 days after the first request.

Once this is done, and the coordinating medical practitioner has obtained the lethal dose of medication, the person is required to store the medication in a locked box until they decide to administer it.

How will vulnerable people be protected from abuse?

The Panel included a number of different safeguards to help make sure that people do not abuse the assisted dying scheme.

New criminal laws

The Panel has recommended the creation of the following offences:

• inducing a person, through dishonesty or undue influence, to request voluntary assisted dying
• inducing a person, through dishonesty or undue influence, to self-administer a lethal dose of medication
• falsifying records related to voluntary assisted dying; and
• administering a lethal dose of medication to a person who does not have decision-making capacity

Witnesses

The written request must be witnessed by two people in the presence of the coordinating medical practitioner.

One of the witnesses must not be a family member, and both must be at least 18 years of age. Neither witness can be a recipient of any material benefit resulting from the person’s death. If it is the coordinating medical practitioner that administers the lethal dose, an independent witness must be present.

Self-administration

The person who has accessed the voluntary assisted dying scheme is the only person who is permitted to administer the lethal medication.

The only time anyone else will be able to administer the medication is if the person is physically unable to do so themselves. In these circumstances, the coordinating medical practitioner will be able to administer the medication.

Minimum training

Both medical practitioners must be qualified as Fellows of a College. At least one needs to have at least five years post fellowship experience, and at least one needs to have expertise in the person’s disease, illness or medical condition.

Both must have had training in making voluntary assisted dying assessments.

Medication permit

The coordinating medical practitioner will need to apply to the Department of Health and Human Services for a permit before they are able to write a prescription for the lethal dose of medication. A pharmacist will only be able to dispense the medication if there is a valid permit.

Oversight

The Panel recommended the creation of a Voluntary Assisted Dying Review Board, a statutory body that would review every case to make sure the safeguard processes are being followed.

When will the voluntary assisted dying system be set up?

The Victorian health minister, Jill Hennessy, has said that she would introduce legislation to Parliament today and that legislation would come into effect within an 18-month window of the bill passing.

Tomorrow, 21 September 2017, NSW Nationals MLC Trevor Khan will also formally introduce a voluntary assisted dying bill into the NSW Parliament with a second reading speech in the upper house, and formal debate due to begin in October.

This means that if these bills are successful, the voluntary assisted dying framework could come into effect by mid-2019.

What do you think about the contentious bill to legalise assisted dying for terminally ill patients? Do you support or oppose it, and why? Let us know in the comments! 

In 2014, two 12-year-old girls were arrested in connection with a violent premeditated attack on a classmate. The victim had been stabbed 19 times with the knife, missing a major artery in her heart by a millimetre. When interviewed by detectives, both girls claimed that they had been motivated to carry out the attempted murder by Slender Man. By killing their friend, they would gain Slender Man’s favour and go to live with him in the forest.

The origins of Slender Man are well documented. Since his first appearance online in 2009 in a SomethingAwful.com forum Photoshop contest, he has been evolving in a high-speed process of creative, open-source legend building.

Original Slender Man image which first emerged in 2009 for a SomethingAwful.com forum Photoshop contest. The picture has spawned endless interpretations and reimaginings in online forums by horror fanatics.

There are many theories about why he has become the most notorious exclusively online urban legend and taken such a firm root in the collective online consciousness. One theory is that his ambiguity drives his creepiness and his popularity; people see their own particular fears staring back at them from Slender’s featureless, pale face.

Following the stabbing by the 12-year-old girls, Slender Man has become a source of fear in a different way. He has become a symbol for the dark side of the internet. Authority figures have come out against Slender Man, using the stabbing as a call for parents to be careful of what their children consume online. One commentator has written that there are now two Slender Mans – one haunting the internet, another haunting the adults whose children use it.

So how does society manage the fear spawned by a horror character like Slender Man, especially where fictional online violence begins jumping off computer screens and moving individuals to harm others in the real world?

Criminal law is one of the mechanisms available for society to deal with the inevitable community destabilisation and fear caused by such shocking and violent incidents.

The relationship, here, between the law and fear, is complicated.

On one hand, the law is an instrument that communities have developed to strike back against the behaviour of individuals considered deserving of punishment. In the aftermath of scary and inexplicable incidents, the justice system is relied on to restore the feeling that the collective interests of society are protected.

Another of the first images created of Slender Man. The fictional online horror character has gone on to become one of the most enduring and influential online urban legends of all time.

Communal fear, in the case of the Slender Man-inspired stabbing, demands that the law responds in a number of ways. One is through retribution – these offenders must be punished for what society considers to be immoral behaviour that is harmful to others. Another is through deterrence – these offenders must be made an example of by being given an appropriate sentence so that such awful attacks won’t be replicated by others in the future. Another is through incapacitation – these offenders must not be allowed to re-offend, and so must be locked away in the interests of community welfare.

On the other hand, the law attempts to introduce an element of reason, logic and formulaic police and court procedures when such sickening and violent crimes take place. In this respect, legal process can be a means of preventing us from seeking to act on these fears by pushing for harsh retributive justice too rashly. Browsing the comments sections underneath articles on the Slender Man stabbing is a useful reminder of the need for formal legal processes to guard against a communal knee jerk reaction which can manifest as emotional demands for vengeance.

Either way, fear plays a part in explaining the existence of criminal law – fear, perhaps, of the terrible things people are capable of doing to each other either as individuals or as furious mobs.

The mixing of law and fear isn’t limited to the realm of criminal law. Legislation can become infused with fear, reflecting a reaction to dread rather than a process of careful consideration and the development of sound policy. This can happen in response to national tragedies – one example is arguably the USA PATRIOT Act. It can happen in response to unreflective national prejudice – in Australia, for example, we currently have in place a complex system of prison camps to keep us ‘safe’ from people fleeing war and terror overseas.

Fear is also built into deeper systems of structural law, particularly constitutional law, which can have a distinct flavour of fear. One of the central objectives of a constitution in liberal democratic states is to restrict the powers of government, for fear of allowing too much power to rest with any one decision-maker. The various arms of government, namely the courts, parliament and the executive, are set against one another in a system of checks and balances, each suspicious of the accumulation of power by the others.

This is not to argue that fear is always an irrational response to events, but it can be. If there is no real basis for a fear, people may be hurt by the creation of laws aimed at protecting society against non-existent phantoms. Political actors are easily tempted to use fear-mongering tactics to serve their own agendas, exploiting a community’s deepest, darkest prejudices to push for more extreme, heavy-handed laws. This makes fear a dangerous basis for responsible law-making.

There are arguments to be had about dealing with concerns over children’s access to disturbing content on the internet. About the appropriateness of subjecting children to adult criminal justice systems. About the resources available to cope with the prevalence of serious mental illness.

More scary, perhaps, is the extent to which fear itself, like the tentacles sprouting from Slender Man’s back, is already wrapped around all of us and our systems of law, poised to pull tighter if we refuse to acknowledge it and in so doing, fail to guard against it.

** The Wisconsin appeals court upheld a decision to try the girls as adults:

“The court found that this was a violent, premeditated and personal offence. There was a conscious decision made at the time of the offence to let the victim die. They told [the victim] that they would leave to get her help. They did leave, and they left to walk to the Nicolet National Forest to locate the Slenderman mansion. This is charged as attempted murder but you have to keep in mind for both defendants that this was, in fact, an effort to kill someone, not a mistake by hitting them too hard. Not a mistake by pushing them too hard. The issue of brain development is important for the court to consider. They were young when the offence occurred but they get older every day, frankly. But what happens at age 18 and, in this court’s view, that is a critical factor for the court to evaluate. There would be no oversight, no control, no ways to ensure public safety. They have committed an offence that is serious, it’s frankly vicious and there has to be assurance that that doesn’t happen again – that a serious offence is dealt with on a serious basis that offers protections to everyone. On that basis, I order that the defendants be retained in the adult jurisdiction.” –

Morgan Geyser and Anissa Weier will face trial in September-October 2017.

As the 45^th Federal Parliament gets underway, the legalisation of same-sex marriage is one of the issues dominating headlines.

It is hard to know how the matter will play out, but there is one option that was first raised by the Abbott government – and that is to hold a plebiscite. This option is being pushed by the Turnbull government, and it has attracted a lot of criticism.

If you have not been paying close attention to this debate you might be a bit confused about what a plebiscite is. That would not be at all surprising, as plebiscites are so rarely used to resolve important issues in Australia.

What is a plebiscite?

A plebiscite is a popular vote on a national question concerning any matter that does not affect the Constitution.

The result of a plebiscite is not legally binding, and so the government does not have to take any particular action once the Australian public has its say.

How does a plebiscite work?

Unlike a referendum, in which constitutional questions are decided by the electorate, the format and

procedures for a plebiscite are not defined in legislation. As a result, there are not any specific rules about how a plebiscite should be conducted.

The usual way to set up a plebiscite would be for parliament to pass an enabling bill setting out the vote’s purpose.

This bill might clarify:

• The criterion for approval, for example a simple majority or some other standard
• Whether the vote is compulsory
• Whether the question will be a simple ‘Yes’ or ‘No’ or something more complicated
• Whether campaigns for ‘Yes’ or ‘No’ will be provided with government funding
• Any actions expected of the government as a result of holding the plebiscite.

Why hold a plebiscite on same-sex marriage?

There are different ways of framing the answer to this question.

Proponents of the plebiscite generally emphasise the democratic merits of allowing the Australian public to decide the issue. Some critics of the plebiscite see it as a means of derailing or at least delaying the push for same-sex marriage.

Is it necessary that the decision to legalise same-sex marriage be left to a nationwide vote?

There is certainly no legal necessity for a nationwide vote.

Given that the Federal Parliament already has the constitutional power to enact marriage equality, there is no need for a referendum. In the December 2013 case The Commonwealth of Australia v The Australian Capital Territory, the High Court held that the marriage power in section 51(xxi) of the Constitution encompasses same-sex unions.

Considering that the result of a plebiscite has no legal force there is no reason, legally speaking, to hold a plebiscite.

Is it appropriate that the decision to legalise same-sex marriage be left to a nationwide vote?

There are no obvious advantages to holding a plebiscite on this issue, beyond vague arguments for the value of direct democracy when dealing with divisive issues of policy.

On the other hand, a number of reasons have been put forward as to why a national vote on the issue of same-sex marriage would be inappropriate.

Risk of harm to mental health

Concerns have been raised about the impact a national vote may have on the mental health of members of the LGBTQI community. For example, the Australian Psychological Society has emphasised the “significant risks to the psychological health and wellbeing of those most affected” that a public vote would present.

Cost

In 2015 the Australian Electoral Commission submitted to a Senate Committee inquiry that a plebiscite would cost an estimated $158.4 million, not including any Commonwealth funding for Yes and No campaigns.

The Australian Electoral Commissioner has stated that “[t]he costs of a stand-alone event are very comparable to a normal federal election.”

Lack of objective

There is no clear reason to hold a plebiscite.

Given the lack of legal effect of any result, a plebiscite would effectively be “no more than a formalised national opinion poll.”

An opinion poll is not required, as polling has already shown that a majority of Australians favour the introduction of same-sex marriage. Neither a ‘Yes’ or ‘No’ result would necessarily settle the question. A ‘Yes’ vote would not have to be acted upon by parliament. A ‘No’ vote would, given the trends in other Western liberal democracies, likely just delay the inevitable.

Human rights and democracy

Many of those who consider the issue from a human rights perspective argue that it is inappropriate to put such a question of equality before the law up for popular vote:

• Liberty Victoria has argued that putting a matter that is amenable to ordinary legislation to a popular vote, especially involving legislation concerning a group long subject to a history of discrimination, “is to misunderstand the nature of representative democracy” to an extent that amounts to a parliamentary dereliction of duty.

• The Australian Human Rights Commission has argued that: “it is not appropriate that the Australian population is given a vote on the legal standing of the relationships of same-sex attracted Australians any more than it would be for the Australian population to vote on the legal standing of opposite-sex attracted Australians.”

• The Centre for Comparative Constitution Studies has described plebiscites as “manifestly inappropriate in circumstances where minority rights, including the right to equality, are at issue”.

Inconsistency

Australia has only had three plebiscites in its history: two votes on conscription during World War One, and a vote on the National Anthem in 1977.

Popular votes are very rarely used to gauge public opinion on matters of ordinary legislation.

This is not surprising, given that Australia is a representative democracy and we have a Parliament with the authority to pass legislation on behalf of the population. As a result, it would be extremely unusual for this question to be put to a popular vote.

As has been pointed out many times, the 2004 amendment to the definition of ‘marriage,’ which specifically excluded same-sex marriage, was not passed by Parliament after a plebiscite.

Parliament makes a huge number of important decisions without first consulting the public. So why hold a plebiscite on this issue?

In addition to being inconsistent, it may also set an inappropriate precedent.

Parliament has the power to legislate on the issue so why aren’t they?

In 2004, subsection 5(1) of the Marriage Act 1961 was amended to specify that marriage is “the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.”

Since then, 18 bills that deal with marriage equality or the recognition of overseas same-sex marriages have been introduced into Parliament. None have progressed past the second reading stage.

The increasing momentum for the recognition of same-sex marriage is a problem for the Coalition, as it is divided on the issue. As Katharine Murphy says, Malcolm Turnbull has many political reasons to turn to a plebiscite rather than a free vote on the question in Parliament.

As it stands, getting an enabling bill through parliament is looking less and less likely. The Greens and the Nick Xenophon Team have both announced they will not support a plebiscite, and it is likely that Labor will follow suit.

Conclusion

There is no legal necessity for a plebiscite on same-sex marriage.

Arguments for a plebiscite on the basis of direct democracy are flimsy and heavily outweighed by the disadvantages of holding a plebiscite on this specific issue. The only remaining reasons for holding a plebiscite on same-sex marriage are, therefore, political.

The government has been making it clear that without a plebiscite the prospects for the legalisation of same-sex marriage during the reign of the 45^th Parliament are zero. However, it is increasingly looking like the government could fail to gain the support it needs in Parliament to make the plebiscite happen.

Frustratingly, we may be heading back into deadlock.

What do you think? Should marriage equality be put to a nationwide vote? Or could a plebiscite on same-sex marriage set a dangerous precedent that Parliamentarians can avoid any controversial or difficult issues by sending them to a public vote? Join the discussion in the comments below!

The recent leak of the ‘Nauru Files’ underscores what has been clear for years now: our government’s treatment of people seeking refugee protection inflicts serious harm on children and adults who have done nothing to deserve it.

This regime, now collectively organised under the militarised ‘Operation Sovereign Borders’, involves a number of strategies designed to deter people fleeing persecution from making the trip to Australia by boat.

Our government’s central deterrent policy involves the interception of boats carrying asylum seekers, and sending those on board to detention centres on Nauru, Manus Island and Christmas Island. Detained asylum seekers are told that they will never be resettled in Australia.

The inhumane conditions in these detention centres, highlighted in yet more detail within the Nauru Files, are a central part of the deterrence strategy, which has for years resulted in constant reports of suicide, self-harm, rioting, murder, sexual abuse of children and rape of women, assault against children and preventable death. A recent undercover investigation by Amnesty International graphically conveys the conditions in the Nauru camp.

Another deterrent measure has been to intercept “suspected illegal/irregular entry vessels” and tow them back to Indonesian waters, or hand to those aboard over to the navies of interested governments. This policy involves risk of death and refoulement to migrants and crew, and has:

frequently resulted in self-harm and threats of suicide by the migrants, and […] several turn-backs involved very tumultuous, dangerous, and sometimes violent circumstances” Andreas Schloenhardt and Colin Craig.

Each policy involves its own form of deterrence, in order to make the consequences of attempting to reach Australia worse than looking for protection elsewhere.

Is Australia In Breach Of International Law?

Each of these policies breach, or at least create situations that seriously risk breaching, international law in a number of ways.

Our policy of indefinite mandatory detention, for example, has led the United Nations Special Rapporteur for Torture, Juan Méndez, to report multiple violations of Australia’s obligations under the Convention against Torture. In response to the release of the Nauru Files, the UNHCR called for the immediate removal of refugees and asylum seekers from Nauru. Our boat turn-back measures risk returning people to face persecution in violation of the Refugee Convention and are ultimately:

a way for Australia to evade its international obligations and, in effect, render its signature under the Refugee Convention meaningless”  Andreas Schloenhardt and Colin Craig.

Where Do Our Major Political Parties Stand?

Both major parties support these measures. The regime is currently shaped and administered by Malcolm Turnbull’s Coalition government, but the Labor Party continues to hold that these offshore detention centres are the best way to manage asylum seekers arriving by boat, and that boat turn-backs are a legitimate option.

It is this agreement between the two major parties that has done the most to guarantee the continued misery that is at the core of Australia’s approach to asylum seekers. Because of this bipartisan support there is no serious, nationwide debate on the topic.

The last election season showed clear evidence of this paralysing effect on discussion – Labor did not want to raise the issue of refugee policy, as it would have been seen as too weak by one end of the political spectrum, and too cruel by the other.

Because there is no sustained attack on the current system from a sizeable group within our national parliament, debate at the highest level is stalled and has congealed around the childish notion that we face a choice between punishing asylum seekers or being inundated by a flood of foreigners.

There are some significant differences in refugee policy between the two major parties. At the last election, to the extent that the issue was mentioned at all, Labor wanted to sell itself to progressive voters as the more compassionate political party on this issue, and some of the details of its policy do reflect this. For example, Labor promised to establish an independent advocate for children in detention, to guarantee independent oversight of Australian-funded offshore detention centres, abolish Temporary Protection Visas and increase funding to the UNHCR.

But for all these minimal concessions to humanity, it remains the case that both Labor and Coalition policies maintain those central components of Operation Sovereign Borders, namely offshore detention and boat turn-backs, that most seriously risk continuing breaches of international law.

What Reform Is Desirable?

Our violent treatment of innocent people attempting to reach Australia continues despite criticism from the United Nations and continuing efforts to create change by refugee advocates and concerned citizens.

While finding a solution to a problem as multifaceted as refugee flows is always going to be complex, there are no moral complexities to Australia’s current approach. It cannot be defended by anyone who considers torture or serious mistreatment of innocent people unacceptable. The only way to endorse our current policy is to accept that keeping a certain subgroup of foreigners out of Australia is a good enough reason to justify institutional abuse of innocent people, including children.

The repeated, craven and fallacious assurance from our leaders that we have had to choose between one of two regrettable options, either punishing asylum seekers or letting them die at sea, has poisoned Australia’s national identity. If defenders of the current system really were concerned with the wellbeing of refugees, surely they would have the imagination to think of solutions beyond creating a terror more profound than the original persecution.

Australia is not under any obligation to give permanent residency to anyone who wants to live here. Australia is under an obligation to assess the claims of people who seek refugee protection, including those people who are desperate enough to make the trip to Australia by boat.

Given that there is no reason to out-source the detention of asylum seekers to countries like Papua New Guinea and Nauru, other than attempting to avoid responsibility for their protection, the most obviously desirable reform is to close the detention camps on Nauru, Manus Island and Christmas Island, to bring detainees to mainland Australia and to process their refugee protection claims. The detention regime must then be replaced with an intelligent alternative, through a sustained and evidence-based national dialogue. An example of such a dialogue can be found here.

While the camps remain open, reform of the secrecy surrounding the detention centres is crucial, particularly Part 6 of the Border Force Act which serves to punish whistleblowers who report on the conditions inside the detention centres. Meaningful compliance with Australia’s obligations under the Refugee Convention would also require a stop to the policy of boat turn-backs.

What Reform Is Achievable?

It is easy to be pessimistic, given that the consistent reporting of the brutality in our offshore detention centres has so far failed to convince the Australian public that the current approach is unacceptably vicious. After all, there is a reason that both major parties continue to implement these abusive practices: as it stands, Australians as a group have indicated that they are comfortable with the situation.

Will our current leaders be moved to reform as a result of the violence gleaned from the Nauru Files? There are steps that Malcolm Turnbull can take to adopt a more nuanced and somewhat less violent policy. Whether he is so inclined, and whether he could convince his colleagues to follow him in such a direction, are different questions. Either way, it would be unwise for citizens sickened by the situation to rely on Turnbull as conduit of reform given the government’s pathetic response to the leaks so far.

Will the Labor Party decide to change their position? As long as both major parties continue to endorse boat turn backs and offshore detention centres, the chance of significant reform is low. Ball and Webb see this collusion between the two parties as the final link holding the current system in place, and argue that it will soon be insufficient to stem the rising criticism. A reversal from Labor would obviously make a huge difference, not least in reinvigorating national debate in and outside Parliament. Again, it would be unwise to invest much optimism in this possibility. Labor’s long-term involvement in creating and maintaining the system makes a sudden reversal, driven from within, unlikely.

But despite the likely intransigence of the major parties, the pressure is mounting.

The detention centre on Manus Island may have to close after the PNG supreme court ruled the detention of refugees and asylum seekers unconstitutional. Those advocating for reform, in previous years stuck on the margins of political power, are making increasingly resonant arguments as the scale of the abuse becomes harder and harder to deny.

Refugee rights groups and religious groups have staged sit-ins outside onshore detention centres and inside politicians’ offices. Members of the public are becoming increasingly aware of those companies involved in the detention centre business – Transfield, which was paid billions by the Australian government to run the Manus Island and Nauru detention centres, felt enough pressure to change its name to ‘Broadspectrum’.

Ferrovial, the multinational that recently took control of Broadspectrum, has announced it does not intend to run the detention centres once it can extricate itself from the situation. In addition, protesters have been targeting Wilson Security’s carparks because of their involvement in Australia’s offshore detention centres.

Another encouraging point, made by RMIT’s Dr. Binoy Kampmark, is that the Australian government has not been able to prevent information from inside the detention centres from leaking out.

And through it all, the Greens continue to advocate for a humanitarian approach to asylum seekers in the House of Representatives and in the Senate.

Conclusion

As many commentators are now stressing, the current system is not sustainable, and it will eventually collapse under the weight of its own inhumanity when certain conditions are met. Whether that happens sooner or later is something that the Australian public can determine.

Ultimately, responsibility for the situation lies with us and, as recently emphasised by Australian Human Rights Commissioner Gillian Triggs:

Vocal demand for reform from a concerned citizenry is the most likely means of change.

To put it in language that a Federal Minister might understand: we have to make it more politically painful for our government to continue the abuse than to close the camps and consider the alternatives.

Further Information

• Nauru Files – How you can help people held in detention by Australia.
• Sign the #BringThemHere petition.
• Refugee Council of Australia myth-busters for more information about asylum seekers.

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