Transgender Rights and Discrimination

The release of final terms of reference for the ALRC inquiry into the national Content Classification (censorship) regime coincides with belated publication of terms of reference for the review by the Australian Capital Territory Law Reform Advisory Council (the body that replaced the Territory's Law Reform Commission) of legal recognition of transgender and intersex people in the ACT.

The Council has been asked to "inquire into and report on steps necessary to provide for legal recognition of transgender and intersex people in the Territory" and to "ensure that such provision is compliant with" the Human Rights Act 2004 (ACT), with particular regard to -

a) the existing provisions of the Births, Deaths & Marriages Registration Act 2004

b) the potential implications of legal recognition of transgender and intersex people in the Territory for public functions or documentation under the Territory and Commonwealth law

c) the potential implications of legal recognition of transgender and intersex people in the Territory for mutual and other recognition of a person's sex by and among the States, Territories and Commonwealth

The Council is also to "broadly examine and report on the scope of" the Discrimination Act 1991 (ACT).

A media release from the ACT Department of Justice & Safety offers a somewhat different indication of the review. It states that -

Transgender rights & legal recognition

The Council will provide opportunities for public comment as it undertakes the inquiry.

The terms of reference for the Council's latest inquiry are available online ...

As part of its inquiry, the Council will consider advice by the Human Rights Commission on the current state of ACT law. The advice reviews the requirements for registering a change of sex under the Births, Deaths, & Marriages Registration Act 1997, and includes some recommendations for legislative reform.

The Council will also consider the recommendations of the Australian Human Rights Commission in its Sex Files: the legal recognition of sex in documents and government records report of April 2009.

Inquiry into the Discrimination Act 1991

The Attorney General also requested that the Council broadly inquire into the scope and operation of the Territory's primary anti-discrimination legislation, the Discrimination Act 1991.

This inquiry will proceed independently of the inquiry into transgender rights and legal recognition.

The Council's first step will be to identify more detailed terms of inquiry. As with the inquiry into transgender rights, there will be opportunities for public comment, and further details will be posted on this website.

The thin 'Cultural Relativism Versus Sexual Rights as a coherent set of Human Rights' [PDF] by Marco Fanara quotes authors of a Canadian report as commenting that -

The notion that there are two and only two genders is one of the most basic ideas in our binary Western way of thinking. Transgender people challenge our very understanding of the world. And we make them pay the cost of our confusion by their suffering.

Classification Review

In an appearance before the Senate Legal & Constitutional Affairs Committee this afternoon I commented that ongoing reduction of the Australian Law Reform Commission's budget significantly inhibited that excellent body's capacity to provide the national legislature - and more broadly the Australian community - with advice that is coherent, progressive and fully informed.

The ALRC's importance is reflected in the announcement this week of the terms of reference for its inquiry into the National Classification Scheme, ie review of the Commonwealth, state and territory frameworks for rating film, literature and other content.

The review was foreshadowed by the Attorney-General earlier this year and is to be completed by 30 January 2012 (an extension from the initial date of 9 December 2011), with an expectation that there will be "widespread public consultation across the community and industry".

The terms of reference for the review are claimed by the Attorney-General to have been informed by "community consultation". The extent of that consultation is unclear; with colleagure Dr Sarah Ailwood I made a submission regarding those terms and subsequently made a separate submission to the Senate Legal & Constitutional Affairs Committee inquiry regarding the same subject.

The ALRC review is to "consider issues" including -

• existing Commonwealth, State and Territory classification laws
• the current classification categories contained in the Classification Act, Code and Guidelines
• the rapid pace of technological change
• the need to improve classification information available to the community
• the effect of media on children and
• the desirability of a strong content and distribution industry in
Australia.

McClelland has asked the ALRC to -

develop options for ensuring the system of classification in Australia is able to accommodate developments in technology in light of media convergence and the global availability of media content.

Appointment of a new ALRC Commissioner to work on the review is expected shortly.

The specific terms of reference are -

Having regard to -

• it being twenty years since the Australian Law Reform Commission (ALRC) was last given a reference relating to Censorship and Classification

• the rapid pace of technological change in media available to, and consumed by, the Australian community

• the needs of the community in this evolving technological environment

• the need to improve classification information available to the community and enhance public understanding of the content that is regulated

• the desirability of a strong content and distribution industry in Australia, and minimising the regulatory burden

• the impact of media on children and the increased exposure of children to a wider variety of media including television, music and advertising as well as films and computer games

• the size of the industries that generate potentially classifiable content and potential for growth

• a communications convergence review, and

• a statutory review of Schedule 7 of the Broadcasting Services Act 1992 and other sections relevant to the classification of content

I refer to the ALRC for inquiry and report pursuant to subsection 20(1) of the Australian Law Reform Commission Act 1996, matters relating to the extent to which the Classification (Publications, Films and Computer Games) Act 1995 (the Classification Act), State and Territory Enforcement legislation, Schedules 5 and 7 of the Broadcasting Services Act 1992, and the Intergovernmental Agreement on Censorship and related laws continue to provide an effective framework for the classification of media content in Australia.

Given the likelihood of concurrent Commonwealth reviews covering related matters as outlined above, the Commission will refer relevant issues to those reviews where it would be appropriate to do so. It will likewise accept referral from other reviews that fall within these terms of reference. Such referrals will be agreed between the relevant reviewers.

In performing its functions in relation to this reference, the Commission will consider -

1. relevant existing Commonwealth, State and Territory laws and practices

2. classification schemes in other jurisdictions

3. the classification categories contained in the Classification Act, National Classification Code and Classification Guidelines

4. any relevant constitutional issues, and

5. any other related matter.

The Commission will identify and consult with relevant stakeholders, including the community and industry, through widespread public consultation. Other stakeholders include the Commonwealth Attorney-General’s Department, the Department of Broadband, Communications and the Digital Economy, the Australian Communications and Media Authority, the Classification Board and Classification Review Board as well as the States and Territories.

Proceeds of crime

Reading Corrective Services Act 2006 (Qld) s 28A, a 'proceeds of crime' provision passed last year.

The section prohibits the sale or commercial exhibition of artworks by current prisoners in Queensland corrective institutions.

28A Restriction on prisoner dealing with prisoner's artwork

(1) While a prisoner is in a corrective services facility, the prisoner must not sell, give, give possession of, or otherwise dispose of the prisoner's artwork, unless allowed to do so under section 28B, 28C or 28D.

Maximum penalty - 40 penalty units.

(2) Subsection (1) does not prevent a prisoner abandoning or destroying the artwork.

Artworks by prisoners can be gifted, albeit only with permission from the state Department of Corrective Services.

28B Giving prisoner's artwork to a person as a gift

(1) A prisoner may -

(a) with the chief executive's written approval, give a particular item of the prisoner's artwork to a person as a gift; or

(b) donate 1 or more items of the prisoner's artwork to the State.

(2) For deciding whether to give an approval under subsection (1)(a), the chief executive must consider all of the following -

(a) the chief executive's estimated value of the artwork;

(b) the person to whom the artwork is proposed to be given;

(c) the prisoner's stated purpose for making the gift;

(d) the number of previous gifts of artwork made by the prisoner, whether or not to the same person;

(e) any other matter the chief executive considers relevant.

Historian Ross Fitzgerald quotes Neal Price, curator of the Prisoners Legal Service's 2010 Last Works art auction -

If these artists were anywhere but in prison, our state and federal arts bodies would be in an uproar about the erosion of their rights to create and exhibit, the protection of their copyright and intellectual property and their right to have full access to arts and cultural activities.

Under s 28C a prisoner may, with the chief executive's written approval, give the artwork to the State to hold on the prisoner's behalf or to a person to hold on the prisoner's behalf.

Under s 28F

Person holding prisoner's artwork for prisoner

(1) A person, other than the State, holding prisoner's artwork on behalf of a prisoner must not sell, give, give possession of, or otherwise dispose of the prisoner's artwork, unless allowed to do so under subsection (2), (3) or (4).

Maximum penalty--40 penalty units.

(2) The person may give the artwork -

(a) to the prisoner, if the prisoner is discharged or released from custody; or

(b) to someone else to hold on the prisoner's behalf, if the prisoner consents.

(3) If the person tells the prisoner that the person no longer wishes to hold the artwork on behalf of the prisoner -

(a) the person may give the artwork -

(i) to another person authorised by the prisoner to hold the artwork on the prisoner's behalf; or

(ii) to a person authorised by the prisoner to collect the artwork for delivery to another person to hold on the prisoner's behalf; or

(b) if -

(i) the prisoner has not been discharged or released from custody; and

(ii) the person has not received authority from the prisoner to deal with the artwork under paragraph (a) within 1 month after telling the prisoner the person no longer wishes to hold the artwork on behalf of the prisoner;

the person may give the artwork to the chief executive.

(4) The person may dispose of the artwork if all of the following apply -

(a) the prisoner is discharged or released from custody;

(b) the recipient makes reasonable efforts to locate the prisoner and ask the prisoner to collect, or arrange for the collection of, the artwork;

(c) the artwork is not collected by or for the prisoner within 6 months after the prisoner's discharge or release.

(5) The person must not ask for, or accept, consideration for -

(a) giving the artwork to someone else to hold on the prisoner's behalf; or

(b) giving the artwork to a person for delivery to another person to hold on the prisoner's behalf.

Maximum penalty for subsection (5) - 40 penalty units.

Teens and SNS

'Teenagers, legal risks and social networking sites' [PDF], a 109 page report by Melissa de Zwart, David Lindsay, Michael Henderson & Michael Phillips, investigates the legal risks of social networking as experienced by Victorian secondary school students, teachers and parents.

While risks posed by forms of abusive behaviour such as cyber-bullying and grooming have been emphasised, both in the mainstream media and in policy responses, comparatively little attention has been given to the potential legal risks that children and young people may face when they use social networking services (SNS).

This study surveyed 1004 middle school students (years 7-10), 204 middle school teachers and 49 parents of middle school students. In addition focus group interviews were conducted with 58 middle school students and 21 middle school teachers. The data was collected from 17 Victorian secondary schools from state (government run), Catholic and independent systems as well as metropolitan and rural locations.

In addition to collecting this empirical data, the authors conducted a comprehensive review of the literature, SNS Terms of Service (ToS), and the Australian and International regulatory environment.

The project identified areas of the law that give rise to possible legal liability for young people using SNS -

• Privacy, disclosure and breach of confidence;

• Intellectual property rights, especially copyright infringement;

• Defamation; and

• Criminal laws, including harassment and offensive material.

The authors conclude that young people, their parents, and teachers are generally aware that use of SNS can give rise to risks that must be managed. However there was a "worrying lack of understanding of the nature of the legal risks". They comment that although, strictly speaking, minors may not be held legally liable for breaching the Terms of Service (ToS) of SNS, the understanding by minors of obligations has implications for how those people may understand their obligations in the future (ie when they become adults), as the ToS are likely to be binding on adults.

Key findings are that -

1. 94.9% of surveyed middle school students (years 7 to 10) have used SNS.

2. Facebook is the most popular SNS (93.4% of students), followed by MySpace (26.6% of students). Many students use more than one SNS.

3. The majority of surveyed students update information on their SNS at least every day. Over a quarter update their SNS profile several times a day.

4. The students use SNS primarily to maintain current social networks. Making new friends and flirting were relatively low in students’ reported practices.

5. 80.4% of parents indicated that they had seen their child’s SNS profile at least once.

6. The most common content reported as posted to SNS by surveyed students is photographs of themselves (60.9%), closely followed by photographs of their friends (52.6%). Nevertheless, posting of third party content, including music, video and photos of celebrities, is still significant. The proportion of students posting videos to SNS increases with age.

7. A significant proportion of students (45.6%) reported that their photos had been posted on their friends’ SNS. The majority of students were not concerned with this practice.

8. The most highly valued feature of SNS was the ability to stay in touch with friends and family. SNS are also perceived to be less expensive than other forms of communication.

9. Surveyed students felt that SNS were safer than did their teachers and parents. Thus, while 48.8% of students recognised that there was some element of risk in using SNS, more than one quarter (28.3%) thought that SNS were safe. Moreover, 19.6% of students were ambivalent about risk, essentially reporting that the degree of risk was irrelevant to them as it is “just what everyone does”.

10. Students from years 7 to 10 are increasingly more selective in who can see their profile. The survey results suggest that year 7 students not only have more visible profiles, but are more likely to perceive SNS as safe or only a little bit risky.

11. 72.4% of surveyed students indicated that they had had unwanted or unpleasant contact by strangers via their social networking profile.

12. 13.8% of students were concerned about security risks, such as identity theft. A small group of student respondents (3.2%) identified concerns relating to privacy or unwelcome disclosure of data.

13. Parents and teachers were particularly concerned with issues of cyber-bullying, and grooming or stalking, with a lesser number expressing concerns about identity theft and disclosure.

14. Despite the acknowledged risks of students using SNS, there is surprisingly little ongoing conversation about SNS use between parents and their children, on the one hand, or teachers and their students, on the other. In this respect, almost half of the surveyed students (46.1%) reported that they did not talk with their parents about SNS use, while almost three quarters of the students (74.6%) reported that they did not talk with their teachers about SNS use.

15. Surveyed students reported an awareness of a variety of strategies for avoiding risks or problems associated with SNS use, including ignoring ‘friendship’ requests from strangers, blocking or deleting unpleasant or unwanted friends, setting their profile to ‘private’, not disclosing personal details, frequently changing their password, threatening people who wished to be added to the student’s SNS and self-censorship. Only 1% of respondents reported asking for guidance or help from adults as a viable strategy.

16. The majority of teachers have not used SNS in an educational context. However, a significant minority (36.1%) of the teachers who were asked this question indicated that they had used SNS for educational purposes, including communicating with their students about schoolwork.

17. The majority of teachers who were surveyed on the issue indicated that they were generally aware of risks, including legal risks, of teachers using SNS. However it is also clear that teachers had a variety of understandings about the specific nature of this risk.

Key recommendations were -

1. In order to enhance the benefits of SNS use, and minimise the disadvantages, it is important for children and young people to be equipped with the necessary information to empower them to effectively manage risks associated with the everyday use of SNS. The best way to do this is through specifically tailored educational activities. As children and young people must be primarily responsible for managing their own risks, it is essential that educational activities focus on providing clear and accurate information about all risks associated with SNS use, including legal risks. These educational activities should be aimed primarily at equipping children and young people with the skills required to be effective digital citizens, and not focussed on rare or hypothetical fears.

2. Education about the full range of legal risks potentially encountered by the use of SNS should be part of a fully integrated cybersafety school curricula. This means that attention that is properly given to more dramatic issues, such as cyber- bullying and ‘sexting’, should be balanced with attention to other potential areas of legal liability. This strategy should also assist in promoting awareness of, and debates about, the Australian legal system as it applies to online activities. While acknowledging the crowded nature of school curricula, the importance of SNS in the lives of students, and the potential significance of social media for future digital citizenship, suggests that room should be found for these issues to be directly addressed.

3. The best way to approach the teaching of legal literacy in the digital environment is by the use of practical examples drawn from real life case studies. With this objective in view, one of the outcomes of this project is the Education Resource Book, which includes a series of classroom exercises aimed at promoting understanding and discussion of specific legal issues. The researchers for this project encourage the production and use of this and similar resource material for the use of teachers of middle school students.

4. The reported prevalence of posting of photographs of students to SNS, suggests that the legal and ethical issues involved with the posting of photographs – which include privacy, confidentiality, defamation and copyright – merit specific attention in any cybersafety curriculum. The significance of understanding these issues is emphasised by the incidents involving a Melbourne teenager posting naked photos of AFL footballers to her Facebook site.

5. The potential disparities in the approaches to, and understandings of, legal risks associated with SNS use between parents, teachers and students, as well as the reported paucity of communication using SNS between students and parents and teachers, suggests that there is some need for education and training of teachers and parents, as well as students. Much can be gained by the community from greater informed discussion of the implications of SNS use, including legal implications, among parents, teachers and students.

6. Consideration should be given by Commonwealth, State and Territory authorities to encouraging SNS service providers operating in Australia to enter into a self- regulatory agreement similar to the Safer Social Networking Principles for the EU. This would provide baseline commitments against which practices of SNS service providers in their dealings with young people could be periodically assessed.

7. Given the concerns expressed by teachers interviewed for this project, there appears to be an identified need for further guidance to be provided to teachers about the use of SNS, especially in the pedagogical context. In particular, there is a pressing need for research and policy work to be undertaken in determining the extent of the ‘duty of care’ owed by teachers in any interactions with students via SNS. In this respect, it is important that the salient differences between interactions via SNS, and interactions offline, including the different legal implications, are fully taken into account.

8. There is a need to promote holistic policy responses to the full range of risks associated with the use of SNS by young people. Any responses should be coordinated so as to minimize the risk of fragmented, inconsistent, and potentially contradictory, policy initiatives at the Commonwealth, State and Territory levels. If, following the forthcoming report by the Commonwealth Joint Select Committee on Cyber-Safety, it is decided to establish an Online Ombudsman, the Ombudsman’s portfolio should extend to promoting education about the full range of legal risks associated with the use of SNS. In doing so, the Ombudsman should coordinate with Commonwealth, State and Territory Privacy Commissioners.

Journalism shield laws

The Evidence Amendment (Journalist's Privilege) Bill 2010 (Cth) - a Private Member's Bill put forward by the Andrew Wilkie MP and Senator Nick Xenophon - has passed through Parliament. It will amend the professional confidential privilege provisions in Part 3.10, Division 1A of the Evidence Act 1995 (Cth). That change will extend protection to confidential communications between journalists and their sources by presuming the communication is not subject to disclosure unless established as necessary or that public interest concerns outweigh the disclosure.

The Bill's authors explained that -

This Bill amends the Evidence Act 1995 (Evidence Act) by strengthening the protection provided to journalists and their sources. This Bill is intended to foster freedom of the press and better access to information for the Australian public.

This Bill provides that if a journalist has promised an informant not to disclose his or her identity, neither the journalist nor his or her employer is compellable to answer any question or produce any document that would disclose the identity of the informant or enable their identity to be ascertained.

This is based on the premise that it is vital that journalists can obtain information so they can accurately inform the Australian public about matters of interest. Accordingly, strong protection must be provided to enable the full disclosure of information.

They went on to explain that -

The Bill does recognise that there may be circumstances where the public interest in the disclosure of information is so strong that it should be provided to the court, but it is in line with existing legislation in the United Kingdom, New Zealand and many states in the United States, where it is up to those parties who want to force a journalist to reveal their source to prove that the public interest in disclosing the source outweighs the likely harm to the source and the public interest in the information being provided in the first place.

In 2007, journalists, Gerard McManus and Michael Harvey were convicted of contempt of court and fined $7000 each for refusing to reveal their source behind stories they wrote in 2004 for Melbourne's Herald Sun newspaper. This was a clear example of when journalists would not have otherwise been able to report on the actions of the Government (in this case, the Federal Government's decision to reject a $500 million increase in war veterans' entitlements) without their source, who, had he or she been revealed, would have suffered harm .

This Bill will replace the existing provisions in Division 1A of the Evidence Act. It will include a new provision that provides clear authority for a presumption that a journalist is not required to give evidence about the identity of the source of their information. This presumption can be rebutted in circumstances where the public interest outweighs any likely adverse effect for the person who provided the information to the journalist as well as the public interest in communication of information to the public by the media. These amendments are based on similar provisions of the New Zealand Evidence Act 2006, modified to ensure appropriate application in the context of Australian evidence law.

The changes to the Commonwealth evidence regime will strengthen provisions relating to information provided to journalists and require Courts to consider whether -

• information was passed contrary to the law in determining whether evidence should be admitted, or whether a source should be revealed; and

• there will be potential harm to the source and/or the journalist if evidence is given.

The authors note that identification of the relevant public interest is a matter for the determination of the court. However, it will encompass such considerations as the primacy of the administration of justice and the need to protect national security. Questions of the applicability of the privilege in particular cases could be determined in interlocutory proceedings rather than necessarily requiring journalists to face contempt proceedings after refusing to answer questions.

Commonwealth Attorney-General McClelland said that -

The Government has worked constructively with the Independents on their Bill and provided technical assistance and advice.

These amendments are not just about protecting journalists, they are about ensuring the public is able to access information, both in particular cases and on an ongoing basis.

These amendments recognise the important role that the media plays in informing the public on matters of public interest, and appropriately balance this against the public interest in the administration of justice.

The reforms are based on the model in New Zealand legislation which provides a rebuttable presumption in favour of journalists not disclosing information in court proceedings that would identify their source. ...

I will update my State and Territory counterparts on the passage of this legislation and again encourage them to adopt similar provisions at the state level as part of Australia's uniform evidence laws.

Amendments contained in the Bill will enable journalists' privilege to apply to all cases in any Australian court for an offence against Commonwealth law.