Rules to Reality: how regulation shapes, or fails to shape, our daily lives

Today I am talking with Zaki Haidari and Dr Anthea Vogl on Australia’s immigration system and the use of the “Code of Behaviour”.

Zaki is a 2020 Australian Human Rights Commission Human Rights Hero, an Ambassador for the Refugee Advice and Casework Service, and works at Amnesty International as a Refugee Rights Campaigner. Zaki himself is a refugee, having fled Afghanistan after being targeted to be killed by the Taliban and has survived a terrifying boat journey to Australia in 2012. Despite this and a range of social, legal and financial obstacles, he has thrived, learning English and has become a well-known and respected human rights advocate speaking about the cruelty in Australia’s refugee system.

Anthea is senior lecturer at the UTS Faculty of law. Her work takes a critical and interdisciplinary approach to the regulation of migrants and on-citizens, with lots of this content falling within refugee, migration, and administrative law and theory. She is one of few Australians to highlight the issues in the Code of Behaviour.

As I mentioned, today we discuss the Code of Behaviour. In 2013, then Minister for Immigration and Border Protection, Scott Morrison, introduced a Code of Behaviour for asylum seekers released from detention. In order to be released from detention, asylum seekers must sign the code. The Code contains obligations on asylum seekers that both duplicate, and exceed the criminal law. These include requiring people to not make sexual contact with another person without their consent, to obey existing Australian laws, and undefined content, like to not engage in any, and I quote “anti-social or disruptive activities that are inconsiderate, disrespectful or threaten the peaceful enjoyment of other members of the community”….you know, like possibly advocating for your human rights. If you are found by the Department to have breached any of these conditions, you can have your welfare taken, or be put back in on-shore or off-shore detention.

All of these provisions are part of what’s called refugee and administrative law. They have all of the flavour and consequences of criminal law, but without any of the checks and balances before courts. Zaki has lived this and Anthea has researched this. Anthea’s research reveals all of these features in more depth, but also, that that non-governmental organisations are being co-opted into acting as police and surveillance officers of refugees and migrants.

We enter a new Albanese government with new Ministers for Immigration and for Home Affairs. This Code was written with a Ministry pencil, and can be erased at a Ministers discretion – Parliament was never involved. Consider writing to your local MP and the Ministers for Immigration and Home Affairs to have this inhumane code removed immediately.

[Note: Apologies for my audio at times - need a new microphone!]

 

This episode is recorded from the sovereign lands of the Wurundjeri People of the Kulin Nation. First Nations people have been custodians of this land for tens of thousands of years. Colonisation is a process that law and regulation, have been deeply complicit in, taking land, sea, children and lives, and I note that stolen wages and racial discrimination in the workplace being are another historic and contemporary example. I want to acknowledge that despite colonisation, 60 000 years of wisdom continues, and so too does non-Aboriginal Australia’s obligations to take a daily personal responsibility to do support reconciliation through truth and justice.

One of the central gaps in this podcast has been how the workplace, or the relationship between the worker and the employer, is regulated. I’ve been fortunate to speak to Josh Bornstein to help us navigate this space.

Josh is a Principal Lawyer with Maurice Blackburn and National Practice Leader of both its Social Justice Group and its Employment and Industrial Relations Group. In 2019, he was awarded Workplace Relations Partner of the Year by Lawyers Weekly. He’s got over 20 years of experience as an employment and industrial relations lawyer, addressing bullying, sexual harassment and representing some of Australia’s key unions and civil society organisations. He’s on the board of progressive think tank, the Australia Institute, and has written loads of articles, that I’ll put in the shownotes.

Josh takes us on a journey through some of the key issues and opportunities in 2022 with a new federal government, the chronic issues facing gig workers in the Australian economy, we take a lovely detour to discuss digital platforms and their regulation, before reflecting on Josh’s work around gender equality.

A wonderful episode that I could have run for much longer!

I hope you enjoy the episode. Rate it and share it as usual ploiiise.

Shownotes

Recent articles by Josh:

https://www.canberratimes.com.au/story/7595716/how-to-fix-hatred-online-impose-a-duty-of-care/

https://www.themonthly.com.au/blog/josh-bornstein/2022/31/2022/1648679235/great-wealth-redistribution#mtr

https://thenewdaily.com.au/opinion/2022/02/08/democratic-recession-josh-bornstein/

https://www.theguardian.com/business/commentisfre

Professor the Honourable Kevin Bell AM QC is the Executive Director of the Castan Centre for Human Rights Law, Commissioner for the Yoo-rrook Justice Commission, and Co-Chair of the Steering Committee of the National Mental Health Commission National Stigma and Discrimination Reduction Strategy. Among his many accomplishments, as Justice of the Supreme Court of Victoria and President of the Victorian Civil and Administrative Tribunal Professor Bell has presided over some of Victoria’s most important human rights judgements, including Patrick’s Case and the 2017 PBU & NJE case on electroconvulsive treatment.

Today we spoke about law, the role of judges in directly or indirectly exercising oversight of systems and how taking a human rights based approach can lead to the best experiences of and outcomes from, the courts.

[A note on language: there are diverse ways to understand and describe distress. Different terms are used in this podcast. We discuss in the episode, the need to acknowledge labelling and power in how terms like mental illness and mental health are used]

Show notes

Guardian Australia pieces on Victoria’s mental health regulator:

Story on under-enforcement: https://www.theguardian.com/society/2022/may/26/no-action-taken-against-victorian-mental-health-services-despite-more-than-12000-complaints?CMP=share_btn_tw

Olivia’s story: https://www.theguardian.com/society/2022/may/29/you-dont-have-a-choice-victorias-mental-health-regulator-criticised-over-complaints-handling?CMP=share_btn_tw

Cases discussed (explainers)

Patrick's Case: https://www.hrlc.org.au/human-rights-case-summaries/p-j-b-v-melbourne-health-anor-patricks-case-2011-vsc-327-19-july-2011

PBU & NJE: https://www.legalaid.vic.gov.au/about-us/news/landmark-judgment-strengthens-patients-rights-in-compulsory-electroconvulsive-treatment-cases

Matsoukatidou Case: https://www.hrlc.org.au/human-rights-case-summaries/2017/4/24/victorian-supreme-court-rules-that-courts-have-fair-hearing-and-equality-obligations-to-assist-self-represented-litigants

Today is another wonderful episode examining a hidden issue – children and young people as family violence survivors. Often when we discuss family violence, they’re absent in our mind, if we imagine them at all, it’s often as extensions of the mother. But children and young people are often victim-survivors themselves, either witnessing family violence, or directly experiencing family violence.

Melbourne City Mission’s Amplify report, written with young people, examines where the law, regulation, our systems and our communities are failing young people. Interactions with policing, healthcare, housing and education systems should provide opportunities for help, but often they become another instance of harm for young people. I’m joined today by two experts who have been involved in the report, Shorna Moore and April.

Shorna is a social justice lawyer and advocate and is dedicated to driving positive social change for children and young people. She is currently the Head of Public Policy and Government Relations at Melbourne City Mission. Shorna brings almost 15 years’ experience in executive policy and advocacy roles across the community legal, youth and homelessness sectors and has led successful campaigns on issues including family violence and youth homelessness. Shorna also draws on her own lived experience of family violence, adding depth and understanding to her work.

April – a pseudonym – is a youth advocate passionate about changing community service systems so they work better for children and young people experiencing family violence. April has lived experience of family violence and works with children and young people experiencing family violence in her capacity as a peer worker and consultant. She’s also working with Melbourne City Mission and sits on the Victim Survivor’s Advisory Council as a rep for young survivors.

A note today, that as you may guess, this episode touches on difficult experiences, including suicide, sexual assault and family violence. Please stay close to your supports as you listen to this episode if you need.

Show notes

Amplify report: https://www.mcm.org.au/news/silent-victim-survivors-of-family-violence#:~:text=The%20report%2C%20titled%20Amplify%3A%20Turning,justice%20and%20mental%20health%20systems.

A cracker today with Colette Einfeld, an expert in public policy and in particular “nudge policy”. Colette is days away from a finished PhD that examines how knowledge is used in nudge and behavioural insights. Nudge theory or policy, if you haven’t heard of it, is a concept from behavioural economics, political theory and the broader behavioural science that we can harness human cognitive processes and biases to shape a group or individuals behaviour for public policy purposes. It’s become a big deal in public policy. But so has co-design, the idea that you use design methodologies to develop policies, services and systems with the people who are most affected by those policies, services and systems. The reason I reached out to Colette is that they have co-authored a very influential paper (with Emma Blomkamp) looking at the relationship between these ideas of nudge and co-design. Do they work together, or against one another? Let’s find out.

Shownotes:

The academic article from Colette and Emma Blomkamp Blomkamp: https://www.tandfonline.com/doi/abs/10.1080/01442872.2021.1879036#:~:text=Nudge%20is%20an%20approach%20to,to%20respond%20to%20shared%20problems.

A blog by Colette and Emma: https://blogs.lse.ac.uk/impactofsocialsciences/2021/07/22/the-incompatibility-of-nudge-and-co-design-as-tools-for-policymaking/

Today I am speaking with Emeritus Professor of Law from the University of Sydney Law School, Terry Carney. If you think you have an original opinion, Terry probably already wrote it, like 20 years ago. Terry has written on and worked in, mental health law, child welfare, adult guardianship and administration law, and for the narrow purposes of this episode, social security law. In addition to overseeing the writing of the Social Security Act in 1991, Terry served 40 years as a member of the Social Security Appeals Tribunal, and its successor, the Social Services and Child Support Division of the Administrative Appeals Tribunal.

Today we spoke about the Online Compliance Intervention policy, or as you would know it, robodebt. I asked Terry how the policy came about, what kinds of logical and legal errors it committed, and what those errors reveal about our public sector, public policy making and regulatory oversight systems. It’s not clear that we are in a better place a year or two away from Robo-debts collapse, so listen to what Terry says we need to do to reform the system.

Show notes

Calls for a Royal Commission from expert Dr Darren O'Donovan: https://theconversation.com/the-problem-is-not-fixed-why-we-need-a-royal-commission-into-robodebt-141273

A brief on the "Thodie" report mentioned by Terry: https://theconversation.com/report-on-public-service-overhaul-a-good-start-but-parliamentary-inquiry-is-needed-127602 

Brief article from Terry on automated welfare: https://www.ejaustralia.org.au/wp/social-security-rights-review/automated-decision-making-in-welfare/

Today I am speaking with Associate Professor Camilla Nelson. Camilla is an expert and writer on gender, law and media cultures at the University of Notre Dame. Camilla has authored several books, including recent essay collections called On Happiness and Dangerous Ideas About Mothers. I’m interviewing Camilla on her recent book co-authored with Professor Catharine Lumby, Broken: Children, parents and family courts.

In the discussion we highlight how the family courts have strayed from their original intention 50 years ago, how political violence has shaped their culture, and that this means children and women are often less safe after going through the system.

A content note that this talk does discuss family violence. Please call 1800 respect if you require assistance, or I know that you have your trusted supports.

Timestamps

Why regulation matters to children, women and families in the family court system (2:00)

How a lack of regulation of predatory lawyering is impacting families (11:00)

How the current family laws function to regulate and reinstate patriarchal relations between parents (19:00)

How access obligations can operate as surveillance systems on parents (26:30)

How this wasn’t the intention of Parliament when Gough Whitlam passed the Family Law Act 1974 (32:45)

How political terrorism led to more influence of men’s rights activists over the family law system (36:15)

How neutrally-appearing laws favour men over women in family law (43:00)

What kinds of changes do we need to make to improve the system (46:30)

What you can do to help (53:30).

 

Show notes

On the recent conviction of Leonard Warwick (the “Family Court Bomber”), 35 years after he committed the offence: https://www.youtube.com/watch?v=ZWvRgq5eylo

 

Write to your MP and the Attorney General!

Locate your local Commonwealth MP: https://www.aph.gov.au/Senators_and_Members/Members

The Attorney-General’s office (the Minister responsible for the legal system): https://www.attorneygeneral.gov.au/contact

 

Subject Line: Reform our family court system based on the rights of the child

 

Dear [Insert]

 

I am writing to you as a member of the [insert electorate]. I am contacting you to seek your public support and action to reform the Family Law Act 1974 (Cth) to better reflect the Convention on the Rights of the Child. Children today have fewer rights in family law processes than they did in 1974.

Australia signed the Convention of the Rights of the Child in 1990, but we still see no action to implement this in the family court. In casting my vote this election, I will be assessing whether you have fought for the inclusion of greater rights for children to be involved in the decisions that affect their lives.

The work to implement this has been done by countless previous law reform processes. The time for action to protect parents and children is now.

Today I speak with Deborah Glass, Victoria’s Ombudsman. The Victorian Ombudsman has led the way in promoting human rights across the State. Recent investigations into the treatment of public housing residents during lockdown, the solitary confinement of young people in youth detention, the practice of State Trustees in managing people’s assets, and the treatment of women in the Dame Phyllis Frost Centre, reveal these human rights issues. They also reveal the importance of urgent and effective implementation of OPCAT in Victoria. In this episode we examine how the Ombudsman believes human rights look should guide government decision-making and the Victorian Ombudsman’s role in supporting or examining that.

Of the 25 episodes in the podcast, this was the first in-person episode. I hope you are as excited about that as I am!

 

Shownotes

The Ombudsman for Human Rights: Case Book: https://www.ombudsman.vic.gov.au/our-impact/investigation-reports/the-ombudsman-for-human-rights-a-casebook/

Investigation into the Solitary Confinement of Children and Young People: https://www.ombudsman.vic.gov.au/our-impact/investigation-reports/opcat-in-victoria-a-thematic-investigation-of-practices-related-solitary-confinement-of-children-and-young-people/

Investigation into Dame Phyllis Frost Centre: https://www.ombudsman.vic.gov.au/our-impact/investigation-reports/implementing-opcat-in-victoria-report-and-inspection-of-dame-phyllis-frost-centre/

Investigation into Public Housing Towers Lockdown: https://www.ombudsman.vic.gov.au/our-impact/investigation-reports/investigation-into-the-detention-and-treatment-of-public-housing-residents-arising-from-a-covid-19-hard-lockdown-in-july-2020/

I am recording this from the sovereign lands of the Wurundjeri people. First Nations people have been custodians of this land for tens of thousands of years. Colonisation is a process that law and regulation, have been deeply complicit in, taking land, sea, children and lives. I want to acknowledge that despite ongoing colonisation, 60 000 years of wisdom continues, and so too does non-Aboriginal Australia’s obligations to take a daily personal responsibility to support reconciliation through truth and justice.

Today is international trans day of visibility. It is an annual celebration of trans pride and awareness, recognising trans and gender diverse experiences and achievements. It is also an opportunity to examine how regulation has shaped the lives of trans and gender diverse folk, often for worse, but hopefully for the better as we move forward. What better way to do that than with Lee Carnie who is a queer non-binary advocate I’ve been fortunate to work with.

Lee Carnie is a human rights lawyer, advocate and campaigner who has worked on progressive law reform campaigns for LGBTIQA+ rights for a number of years. Their currently the ED of advocacy and campaigns at Foundation for Young Australians and were previously the founding legal director at Equality Australia, Australia’s first national LGBTIQ+ legal advocacy and campaigning organisation.

This conversation covers some difficult terrain, particularly for members from the LGBTIQA+ community, so please be sure to reach out to your networks if difficult and big feelings come up for you. I hope you learn a lot from this episode as I did.

Shownotes

If you need to talk to someone:

QLife (1800 184 527) / www.qlife.org.au

Lifeline 13 11 14

VMIAC Check In (Victoria) (1800 845 009 / www.vmiac.org.au)

Reports mentioned:

End the Hate: https://www.hrlc.org.au/reports/end-the-hate

Safeguarding the End of the Rainbow: https://d3n8a8pro7vhmx.cloudfront.net/lgbtihealth/pages/668/attachments/original/1585530052/Safeguarding-the-End-of-the-Rainbow-Booklet-V1.pdf?1585530052

Where you can go to support:

Trans Day of Visibility: https://tdov.org.au/

In August 2021 the Cultural Review of the Adult Custodial Corrections System commenced. It looked at the culture, experiences, systems and processes within Victoria’s prisons and correctional centres. It looked at how these processes do or don’t serve people in custody, and corrections officers working in these settings. It is due to report in the middle of this year.

What disappointed me during the announcement was that on the Expert Panel, which I would add has great expertise and importantly representation from Jill Gallagher who is a prominent and eminently qualified First Nations leader and advocate, is that there was not a person who has lived experience of corrections. There was representation of people who work in the criminal justice system. That imbalance does a disservice to the process, and to people currently or formerly in the system. It should have been remedied.

People with lived experience have been consulted in this process, but as you will hear from Sarah and Jenny, people with lived experience have ample capacity to critically evaluate evidence. By failing to have someone with lived experience on the panel, it reinforces the othering, and tells the community that they shouldn’t be heard as experts.

I want to thank Natasha Dewhirst from Flat Out for supporting this process by connecting me to Jenny and Sarah (pseudonyms I should add), who were both paid for their time and expertise on this podcast. I also want to thank Monique Hurley from the Human Rights Law Centre, who is interviewed and made it happen. Most of all I want to thank Jenny and Sarah, who’s words still ring in my head.

I won’t reflect on the themes of this conversation, I’ll just say listen and act on what these three human rights advocates have to say.  

Shownotes:

Flat Out

Learn more about Flat Out: http://www.flatout.org.au/

Sign on to the Homes not Prisons campaign: https://homesnotprisons.com.au/#open-letter

The Women Inside & Out (WIAO) Program is an innovative approach to supporting women who have been criminalised. Based on research, evidence and feedback from the women we have worked with, we have secured three years of philanthropic funding to deliver a longer-term model of care. This project commenced in February 2020 and is funded until February 2023.

The Women Inside and Out Program provides assertive in-reach and outreach support and advocacy services for the increasing number of women in Victoria’s prison system. Through a combination of inclusive support and case management practices, women in the Inside and Out Program will be able to access supports up to six months before they are released and maintain the same worker for a further twelve months when in the community. In this way, relationships built on trust can develop, leading to better outcomes for women in; housing, finances, mental health, physical health and wellbeing, drug and alcohol, social inclusion, and other areas identified by the women.

This program is an important opportunity for Flat Out to develop an improved model of care – through social impact outcomes monitoring and evaluation. The learnings from this program will inform a new Best Practice approach to working with criminalised women.

Human Rights Law Centre

Learn more about the Human Rights Law Centre: https://www.hrlc.org.au/

See their joint submission (with Flat Out and other orgs) to the Corrections Review: https://www.hrlc.org.au/submissions/2021/12/1/cultural-review-of-the-adult-custodial-corrections-system