Ruqayyah Snyder
Australia is a country with a diverse range of laws that govern the behaviour of its citizens and visitors alike. While the country has made significant strides in various aspects, there are still some areas where the law could be improved to better serve the needs and rights of its people. From the decriminalisation of illicit drugs to the recognition of Aboriginal and Torres Strait Islander people in the Constitution, there are several laws that Australians believe should be changed to reflect the values of the country in the modern age.
| Characteristics | Values |
|---|---|
| Marriage equality | Australia is the only English-speaking nation that denies the right of people in love to get married |
| Influence of the church | The Catholic Church has undue civic power |
| Drug decriminalisation | Prohibition has failed, harm minimisation comes with treating people with drug problems in the medical system |
| Mandatory offshore detention of asylum seekers and refugees | The policy has caused immense harm, wasted billions of taxpayers' dollars, and is illegal under a UN charter |
| Medicinal use of cannabis | There are compelling arguments in favour, including the effectiveness of cannabis in relieving distressing symptoms and the criminalisation of compassionate actions of affected people |
| Inclusion of Aboriginal and Torres Strait Islander people in the Constitution | The Indigenous community is not united about constitutional recognition, but there are discussions about including some recognition in the Constitution’s preamble |
| Non-discrimination, due process, and equality before the law | The inclusion of these principles in the Constitution can help guide the creation of laws and policies |
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What You'll Learn
Decriminalisation of illicit drugs
Australia has been witnessing a shift in perspective towards viewing drug use as a health and human rights issue. The country is considering decriminalising illicit drugs, which means removing criminal penalties for drug use or possession. Instead of being charged, an individual with a small amount of drugs may receive a fine or referral to a health/treatment service. This approach has been supported by many Australians, with only 5% supporting a prison sentence for cannabis possession.
The shift in perspective is also reflected in the support for decriminalising ecstasy and cocaine, which has increased between 2016 and 2019. Additionally, 41% of people were in favour of legalising cannabis, and 69% supported changing legislation to allow the use of cannabis for medical purposes. The Australian Parliamentary Group on Drug Policy and Law Reform is debating drug policy reform, including options for reform such as depenalisation, decriminalisation, and legalisation.
There is consistent evidence that decriminalisation does not increase drug use or encourage new users. Instead, it reduces the demand on and cost of the criminal justice system. For example, Portugal decriminalised the use and possession of all illicit drugs in 2001 and saw a reduction in problematic drug use, drug-related HIV and AIDS, and drug-related deaths. Similarly, in Australia, South Australia, the ACT, and the Northern Territory have decriminalised cannabis by applying civil penalties, and all other states have depenalisation systems in place for cannabis through diversion to education, assessment, or treatment.
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Recognition of same-sex marriage
Prior to the federal legalisation of same-sex marriage, six Australian jurisdictions (Tasmania, the Australian Capital Territory, New South Wales, Queensland, Victoria, and South Australia) recognised same-sex marriages and civil partnerships performed overseas. These jurisdictions comprised 90% of Australia's population.
In 2017, the Marriage Amendment (Definition and Religious Freedoms) Act 2017 became law on 8 December and came into effect the next day. This new legislation immediately recognised overseas same-sex marriages, and the first same-sex wedding under Australian law was held on 15 December 2017. The bill passed the Senate by 43 votes to 12 on 29 November 2017 and passed the House of Representatives on 7 December 2017, with 128 votes for, 4 against, and 15 abstentions. The bill received royal assent on 8 December 2017, and same-sex marriages lawfully entered into overseas automatically became recognised from that date.
The passage of the law followed a voluntary postal survey of all Australians, in which 61.6% of respondents supported the legalisation of same-sex marriage. This result gave unstoppable momentum to the historic social reform, which was described as "a time for marriage equality, for love" by Prime Minister Malcolm Turnbull. The reform was also described as "a gift of equality and inclusion" by veteran LGBTIQ rights campaigner Rodney Croome.
Despite the federal legalisation of same-sex marriage, different relationship recognition schemes remain in place as an option for couples in Australia's six states and three internal territories. Under federal law, same-sex couples are treated as de facto relationships, and while de facto couples have most of the same rights as married couples, these rights may be difficult to assert and are not always recognised in practice.
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Medicinal use of cannabis
On 17 October 2015, the Australian Federal Government announced its intention to legalise the commercial cultivation of cannabis for medicinal and scientific purposes. Subsequently, on 24 February 2016, the Australian parliament amended the Narcotic Drugs Act, officially legalising the commercial growing of cannabis for medicinal use with the changes taking effect on 1 November 2016.
However, the laws surrounding medicinal cannabis in Australia are complex and vary across states and territories. For instance, while the use, supply, and possession of cannabis are illegal in New South Wales, first-time offenders caught with small amounts of cannabis may only receive a caution. In Queensland, medicinal cannabis is only legal for possession and use by individuals if it is lawfully supplied, for example, through a prescription by a medical practitioner with the necessary authority.
Despite the legalisation of medicinal cannabis at the federal level, Australian farmers face rigorous and expensive licensing processes, making it difficult to compete with cheap imported products. Additionally, the advertising of medicinal cannabis products is restricted by state and Commonwealth laws, with advertising permitted only to wholesale, medical, and pharmaceutical professionals.
There is also the issue of driving under the influence of medicinal cannabis. Under current law, drivers found with any trace of THC in their saliva face mandatory license suspension and fines, despite THC being detectable for several hours after ingestion. While Victoria has passed legislation granting magistrates the discretion to evaluate individual cases, there is a push for further reform in this area.
Given the complexities and variations in state and territory laws, there is a need for continued discussion and potential reform to ensure equitable access to medicinal cannabis and to address issues such as licensing, advertising restrictions, and road safety.
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Mandatory offshore detention of asylum seekers
The Australian government introduced mandatory detention to maintain border control and differentiate between those who underwent offshore entry processes and those who did not. Under this policy, asylum seekers are detained while undergoing security and health checks to determine their eligibility to stay in the country. While the government argued that this approach was necessary to manage borders effectively, critics have highlighted the detrimental consequences of this policy.
In response to the mandatory offshore detention policy, the United Nations Human Rights Committee ruled that Australia violated its obligations under the International Covenant on Civil and Political Rights (ICCPR), specifically regarding arbitrary detention (Article 9). The Committee found that Australia remained responsible for the arbitrary detention of asylum seekers redirected to offshore facilities in Nauru, despite Australia's opposition to these allegations.
The conditions in these offshore detention centres have been described as inhumane, with reports of overcrowding, insufficient water supply and sanitation, extreme temperatures, and inadequate healthcare. The prolonged detention has resulted in deterioration in the physical and mental health of detainees, including self-harm, depression, kidney problems, insomnia, and weight loss.
To address these concerns, the Committee urged Australia to provide compensation to the victims and take steps to prevent similar incidents in the future. It recommended a review of migration legislation and bilateral transfer agreements to align with international human rights standards. Additionally, human rights organisations like Amnesty International Australia have called for an end to offshore detention policies, advocating for the humane treatment and fair processing of asylum seekers.
In conclusion, the mandatory offshore detention of asylum seekers in Australia has faced significant criticism and legal challenges due to concerns about human rights violations and inhumane conditions. While the Australian government has defended its stance on border control, there are ongoing efforts to reform these policies and ensure the protection of the rights and well-being of asylum seekers.
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Aboriginal and Torres Strait Islander people in the Constitution
The Australian Constitution, which came into effect on 1 January 1901, is a living document that continues to shape the country. However, it was drafted during a time when Australia was considered unoccupied land or 'terra nullius' before European settlement, and Aboriginal and Torres Strait Islander peoples were deemed a 'dying race', unworthy of citizenship or humanity. As a result, the original Constitution included discriminatory provisions, such as Section 51 (xxvi), which gave the Commonwealth the power to make laws for any race other than the Aboriginal race, and Section 127, which excluded Aboriginal natives from being counted in the national population.
While the 1967 referendum removed these offensive sections, it did not introduce new wording that recognised Aboriginal and Torres Strait Islander peoples as the traditional owners and First Peoples of Australia. This omission has been a long-standing issue, with various calls for constitutional reform to address past wrongs and celebrate the diversity of the nation. The 1992 Mabo decision by the High Court was a significant step, as it recognised the ongoing relationship between Aboriginal and Torres Strait Islander peoples and the land.
Constitutional recognition is not just about historical redress; it also aims to improve the present and future for Aboriginal and Torres Strait Islander communities. By recognising their deep, spiritual connection to the land and their contributions in various fields, Australia can foster collective national pride in the longevity of Indigenous heritage, culture, and history. Additionally, establishing an advisory body to guarantee an Indigenous voice in political decision-making would ensure that Aboriginal and Torres Strait Islander peoples have a say in the laws that affect them.
To achieve these changes, a referendum is required, as this is the only way to amend the Australian Constitution. While there have been 19 referendums proposing 44 changes since 1901, only eight amendments have been approved, demonstrating the difficulty of altering the Constitution. Nevertheless, with strong public support and political will, it is possible to bring about meaningful constitutional reform that recognises and values the place of Aboriginal and Torres Strait Islander peoples in Australia's past, present, and future.
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