Rights and Freedoms Explored

1 Issue 9, 2015
Rights + Freedoms
Issue 9, 2015
COURT OF
CONSCIENCE

Court of Conscience
Supported by

Contents
Lorana Bartels
Nikki Edwards
Eleanor Wood
George Williams AO
Women in Prison Advocacy Network
Aasiya Amin 43
13
37
20
32
6
A Right to Truth in Customary
International Law?
Beyond the Binary: A Capabilities
Approach to Transgender Rights
My Story
A Referendum or Plebiscite on Same-
Sex Marriage?
Ceremonies of Degredation: Strip-
Searching in Women’s Prisons
The ACT Prison: Human Rights Rhetoric
Versus Crowded and Bored Reality
Morgan Carpenter 25
Intersex Rights and Freedoms
Michaela Vaughan 48
‘Counter Friction to Stop the Machine’:
Civil Disobedience in Maules Creek
Court of Conscience
Issue 9, 2015
Rights + Freedoms
UNSW Law Society
unswlawsoc.org
Social JusticeVice President
Teela Reid
Presidents
Katerina Jovanovska
Simon McNamara
Editor-in-Chief
Amila Perera
is a third year Juris Doctor student and
27th year blue ruin.When she is not
knitting her eyebrows she is crocheting
natural fibre yarn and designing perfect
playlists.
Editorial team
Emily Azar
is a third year Arts/Law student.When
she is not doing her law readings, she
will normally be found watching her
favourite scenes of The Office.
Jinan Hammoudi
is a third year Commerce/Law
student.When she is not immersed
in her laborious law readings, she is
complaining to her cats about the
laborious law readings.
Julia Hosking
is a second year Juris Doctor student
with a penchant for using words like
penchant. She enjoys reading, writing
and other pastimes that don’t involve
physical activity.
Katherine Lau
is a third year Juris Doctor student
who enjoys to be in the company of her
labrador retriever while engrossed in an
Agatha Christie novel.
Cover
Alwy Fadhel
is an asylum seeker who is no longer
detained at Villawood Detention Centre.
His artworks are created using coffee
grounds. Images are inspired by the
trauma of isolation and the hope for
freedom. Court of Conscience is honoured
to feature Alwy’s work on the front cover
and between the pages of this Issue.
Design
Nicholas Watts
Monica Ma
is a fourth year student with a casual
interest in behavioural psychology and
a serious interest in card games. She
carries a deck of cards around every
day in the hope that an opportunity to
play arises.
Dinusha Wijesuriya
is a second year Commerce/Law
student who still isn’t entirely sure
what a ‘Working Paper and Similar
Documents of Various Bodies’ is. She
enjoys sleeping in, eating baked goods,
and yelling at people who reveal Game
of Thrones spoilers beyond Season 3.
Angelina Yurlova
is a third year Arts/Law student.
Although she does enjoy listening
to Tchaikovsky, Angelina is not a
ballerina.
5Court of Conscience4 Issue 9, 2015

Amila Perera
Editor-in-Chief
I welcome you to the ninth edition of the Court of Conscience.
In 2015, we are proud to publish a selection of high quality articles on
the theme of ‘Rights + Freedoms’. This is the second year running that we
have published a themed issue, featuring contributions from legal academics,
commentators and, most importantly, UNSW Law students.The theme for
this edition was chosen by the popular vote of students at UNSW Law.This
year, Court of Conscience also facilitated relationships between student writ-
ers and academic mentors through the Social Justice Writers’Workshop and
some of the articles in this Issue represent the fruits of that program.
This year’s Issue on ‘Rights + Freedoms’ is a timely addition to rights
discourse in Australia, as it coincides with the United Nations’ Universal
Periodic Review on Human Rights in Australia.The importance and curren-
cy of this topic is made clear through the diverse subject matter in this edi-
tion. George Williams tackles the same-sex marriage debate, while Eleanor
Wood and Morgan Carpenter explore the developing landscape of transgen-
der and intersex rights, respectively. Fifty years after the atrocities that oc-
curred in Indonesia under the Suharto regime, Nikki Edwards reminds us of
the ongoing significance of these events in contemporary international law.
But Court of Conscience also prides itself on amplifying new voices and
going beyond the boundaries of traditional legal commentary. I invite you
to turn to the contribution by Michaela Vaughan which blends her own per-
sonal account with analysis of the law of protest.We are especially honoured
to include in this edition the story of Aasiya Amin*, an asylum seeker who is
currently resident at Villawood Detention Centre.
My heartfelt thanks go to the marvellous editorial team for their creativ-
ity and dedication in pulling this Issue together. This group of remarkable
women have sourced contributions, created artworks and meticulously ed-
ited each article. Finally, to Nicholas Watts, whose skill and generosity have
made this publication beautiful, we are eternally indebted.
I am confident that each of the articles in this Issue offers the reader a
deeper appreciation of the subjects they traverse. These conversations are
ones which will have surely cropped up in the news — if not at the dinner
table — over the past year.We hope that this Issue will carry those conversa-
tions forward; that these articles will engage, inform and inspire.
*Aasiya Amin is not her real name.
Editor’s note
Vivien Nguyen 54
The Implications on the Treatment of ‘Boat People’
on the Integrity of Our Rights and Freedoms
Contents, continued
Andrew J Roberts
Tim Wilson
Public Education Funding in New South
Wales: A Silver Bullet?
Human Rights in Australia
64
60
Winner of the 2014 UNSW Primus Gradus Essay Competition

I. INTRODUCTION
Strip-searching has long been a mainstay of everyday
prison procedure. Predicated on notions of safety and
contraband detection, it is considered a necessary as-
pect of prison policy. However, despite its widespread
use, there is little empirical evidence to show that it is
an efficient means of discovering illicit implements and
substances. Even more concerning is the way in which it
abrogates the personal rights and freedoms of women in
prison. For the many women in prison who have been
victims of physical and/or sexual abuse, strip-searching
represents a form of revictimisation – one which they are
subjected to on a regular basis.This article contends that
the highly degrading and invasive nature of strip-search-
ing, coupled with its harmful psychological effects,
makes it a wholly inappropriate and outdated method of
ensuring prison safety. By rethinking the ways in which
prison security goals are pursued, it is hoped that a more
gendered and rights-based approach towards the treat-
ment of women in prison can be achieved.
II. STRIP-SEARCHING IN WOMEN’S PRISONS
In NSW, a strip-search is defined as:
A search of a person or of articles in the possession of a person
that may include (a) requiring the person to remove all of his
or her clothes, and (b) an examination of the person’s body
(but not of the person’s body cavities) and of the clothes.2
As the definition reveals, strip-searching is an inher-
ently invasive process that compromises the personal pri-
vacies of individuals subjected to it. In the case of wom-
en in prison, the process can be especially humiliating.
A substantial number of women in prison come from
disadvantaged social and personal backgrounds, where
experiences of abuse are not uncommon. According to
statistics, 45 per cent of women in prison have report-
ed being abused and/or controlled by their partners or
spouses within the year prior to their incarceration.3
This article contains extracts and
derives from an upcoming Women
in Prison Advocacy Network (WIPAN)
policy paper of the same title.
Special thanks to Mollie Boland
Anderson and Aude Wormser –
without their invaluable research
and input, this article would not
have been possible.
Ceremonies of Degradation1:
Strip-Searching in Women’s Prisons
Women in Prison Advocacy
Network (WIPAN)

prison by subjecting them to considerable trauma, con-
travenes these principles.23
B. The Regulatory and Procedural Framework
The failure of Australia to satisfactorily comply with
the international framework of standards regarding the
treatment of women in prison is concerning given the
harmful, long-term effects that strip-searching has on
these women.
In NSW, the power to search men and women in
prison is contained in both statute and regulation.
Section 79(r) of the Crimes (Administration of Sentences)
Act 1999 (NSW) allows for regulations to be made in
relation to the use of body searches. Pursuant to this,
reg 46 Crimes (Administration of Sentences) Regulations
2014 (NSW) sets out the rules governing the search of
individuals in prison and their cells. These regulations
are complemented by the Corrective Services NSW
Operations Procedures Manual (‘the procedures man-
ual’).24 For the purposes of this article, the 2012 version
of the procedures manual will be relied on, as it is the
most recent version of the strip-search procedures ac-
cessible by the authors.25
The regulatory and procedural framework contains
some safeguards that attempt to limit the potential for
strip-searches to be used in an abusive and punitive way:
1. Strip-searches may only be performed in two cir-
cumstances: when the general manager directs
that it be done, or when a correctional officer
considers it appropriate.26
2. Strip-searches must be conducted by a member
of the same sex, unless there is an emergency or
where exceptional circumstances apply.27
3. Strip-searches must be conducted ‘with due re-
gard to dignity and self-respect and in as seemly
a way as is consistent with the conduct of an ef-
fective search’.28
4. Strip-searches must be performed by a minimum
of two correctional officers (with one giving the
relevant directions and the other observing the
search), and must be supervised by a senior of-
ficer.29
5. Search areas are to afford individuals with suf-
ficient privacy and space, and correctional offi-
cers are to provide clear instructions on how the
search will be conducted.30
6. Prior to a search, the individual must be given
the opportunity to surrender any weapons/con-
traband they may have on their persons.31
7. Correctional officers are to wear surgical-type
gloves and are prohibited from touching the in-
mate.32
‘Women in prison already live in a
hyper-regulated reality, where their
every move is under strict control
by correctional officers. For these
women, strip-searches represent a
further form of oppression, wherein
feelings of powerlessness and loss
of esteem are invoked.’
Similarly, 49 per cent of all female offenders were vic-
tims of at least one form of abuse as a child.4 By sub-
jecting women in prison to regular strip-searches, au-
thorities are replicating the dynamics of coercion and
abuse.Women in prison already live in a hyper-regulated
reality, where their every move is under strict control by
correctional officers.5 For these women, strip-searches
represent a further form of oppression, wherein feelings
of powerlessness and loss of esteem are invoked.
Furthermore, strip-searches have the potential to re-
inforce concepts of learned helplessness among women
who have been abused.6 The process can be particular-
ly traumatising when performed by, or in the presence
of, male correctional officers, especially for women who
may come from certain Indigenous or other cultural
backgrounds, where relationships with men are restrict-
ed.7This can have adverse impacts on the emotional and
psychological states of women in prison, and can serve
to increase the risk of self-harm and substance abuse.8
To this extent, strip-searching may exacerbate existing
health and safety concerns instead of mitigate them.
Despite the harmful and degrading impacts of
strip-searching, its use has often been justified on the
basis of prison security – in particular, the need to stamp
out prison drug culture.9 There is little doubt that sub-
stance abuse poses a serious problem in prisons. A sig-
nificant number of women in prison have histories of
drug abuse, with 61 per cent of women in prison having
reported using illicit drugs within the year prior to their
imprisonment.10 The overrepresentation of illegal drug
use among female prison entrants highlights the need
for prisons to deal with the health and safety risks that
it presents.
Although strip-searching is aimed at containing
these risks, there is little evidence to show that it is ef-
fective in reducing the distribution and accessibility of
illicit drugs in prison.11 According to a study conducted
by Sisters Inside Inc, of 41 728 strip-searches performed
on women in prison in Queensland from 1999 to 2002,
only two uncovered drugs.12 Similar studies have pro-
duced comparable results.13When these results are con-
trasted with the significant damage that strip-searches
do to the women subjected to them, their use in wom-
en’s correctional facilities becomes difficult to justify.
III. WHERE ARE WE NOW?
The potential for strip-searches to be processes that rou-
tinise the degradation of women in prison begs the ques-
tion – what are we doing to ensure that the rights and
freedoms of these women are being protected?
A. The International Rights Framework
In 2010, the United Nations General Assembly adopted
the United Nations Rules for the Treatment of Women
Prisoners and Non-custodial Measures for Women
Offenders (‘the Bangkok Rules’).14 The rules marked
the first successful attempt by the United Nations at ad-
dressing the gender specific issues faced by women in
contact with the criminal justice system.
One of the issues dealt with by the Bangkok Rules is
that of body searches, and in particular, the threat they
pose to the personal privacies of women in prison. Under
rule 19, personal searches (including strip-searches)
are to be performed only by trained women staff in ac-
cordance with established procedures.15 The rule also
emphasises the importance of protecting the dignity
and self-respect of the women subject to such search-
es.16 Consistent with this, rule 20 encourages the de-
velopment of alternative screening mechanisms (e.g.
body scans) to replace strip-searches.17 In doing so, the
Bangkok Rules implicitly recognises the psychological
and emotional harm that strip-searches can have on
women in prison, and attempts to discover viable alter-
natives to strip-searching.
Although the Bangkok Rules is the first internation-
al instrument wholly dedicated to tackling the specific
challenges faced by women in contact with the crimi-
nal justice system, its principles are built on existing
rights frameworks. In seeking to deal with the unique
lived experiences of women interfacing with the crim-
inal justice system, the Bangkok Rules is consistent
with the Convention on the Elimination of All Forms
of Discrimination Against Women (CEDAW).18 It also
fills a gap left behind by the Standard Minimum Rules
for theTreatment of Prisoners, 19 by explicitly extending
the scope of human rights protections available to indi-
viduals in prison to women. In many ways, strip-search-
ing policies contravene principles regarding gender
discrimination. By applying a one-size-fits-all policy of
strip-searching on all individuals in prison without tak-
ing into account the significantly detrimental impacts it
has on the psychological states of women in prison, au-
thorities have failed to adequately safeguard the needs
of these women.
Another international instrument that has been sig-
nificant in the area is the International Covenant on
Civil and Political Rights (ICCPR).20 Article 7 of the
ICCPR protects individuals against ‘cruel, inhuman or
degrading treatment or punishment’.21 In a similar vein,
article 17 states that individuals should not be subjected
to arbitrary or unlawful interference with their privacy
and enshrines the right to legal protection against such
interferences.22 As some authors have noted, the ways of
strip-searching abrogates the privacy rights of women in
Ceremonies of Degradation: Strip-

Gender-specific safeguards are also available to
women in prison:
1. Where a woman is participating in the Mothers
and Childrens Program and is residing with her
child/children, staff must ensure the search is
conducted away from any children.33
2. Strip-searches of women are performed in two
stages, with only one-half of the body (either the
top or bottom half) exposed at any one time.34
While these safeguards attempt to strike a balance
between the invasiveness of strip-searching and its use as
a security policy, not all of the safeguards are sufficiently
adequate.
First, there is something to be said about the test of
appropriateness as a threshold for whether a strip-search
should be conducted. Although the test seeks to limit
the discretion of correctional officers, it sets a low bar
for body searches. In fact, it is arguably a lower standard
than the ‘reasonable suspicion’ test imposed on police
officers wanting to conduct body searches without a
warrant.35 Moreover, the test of appropriateness is one
that is highly subjective and open to abuse.What is or is
not ‘appropriate’ is likely to differ between correctional
officers.
Second, the fact that the rule against strip-searches
by members of the opposite sex is relaxed in emergen-
cies and exceptional circumstances is problematic to the
extent that the words ‘emergency’ and ‘exceptional’ are
not defined. This leaves the scope of the safeguard un-
certain.
Third, while standards that make reference to the
dignity and self-respect of women arguably minimise
the trauma of ordinary body searches (i.e. frisk and
pat-down searches), they are difficult to reconcile with
strip-searches. As the accounts of many women in pris-
on reveal, strip-searching is a humiliating process in
and of itself, regardless of whether the search is done
in accordance with procedures. Requiring correction-
al officers to protect the dignity of these women when
conducting what is an inherently degrading exercise is
not only paradoxical but also impossible. Furthermore,
instruments that frame the standard in this way erro-
neously imply that there is an appropriate and correct
method of conducting strip-searches, and fail to recog-
nise the deep emotional and psychological impacts they
have on women in prison.
The difficulties presented by some of these safe-
guards are exacerbated by the fact that certain aspects
of strip-searching policy continue to compound existing
power discrepancies between correctional officers and
women in prison. Regulation 131(4)(a) of the Crimes
(Administration of Sentences) Regulation 2014 (NSW) for
example, allows correctional officers to have recourse
to force to search in specified circumstances.36 It is not
open to individuals in prison to refuse to participate in
body searches, as resistance and non-compliance is a
correctional centre offence.37 To this extent, the power
imbalance between correctional centre authorities and
women in prison is reinforced, as women in prison are
unable to assert their privacy rights. Even more humili-
ating is the fact that women who are on their period may
be asked to remove their tampons or sanitary pads as
part of the search.38 This can be especially demeaning,
particularly when performed in the presence, and under
the behest, of correctional officers.When such practices
are viewed within the context of the personal histories
of women in prison and the basic standards of treat-
ment that they are entitled to, the degrading nature of
strip-searching as a policy becomes evident.
IV. CONCLUSION
Ultimately, the impacts of strip-searching must be ex-
amined against the backdrop of the unique lived expe-
riences of women in prison. Although they are subject
to certain restrictions as punishment for their offences,
women in prison remain individuals with inherent rights.
For these women, the loss of liberty represents the to-
tality of their punishment – anything that goes beyond
that is unwarranted. In the case of strip-searching, the
harmful emotional and psychological impacts that it has
on women in prison constitutes a form of extra-curial
punishment that cannot be justified, particularly when
the inefficacious nature of strip-searches is recognised.
It is time that we ended the abuse and discrimination
against women in prison, and brought our criminal jus-
tice policies in line with recognised standards of fairness
and humanity.
REFERENCES
1. See generally Harold Garfinkel, ‘Conditions of
Successful Degradation Ceremonies’ (1956) 61(5) American
Journal of Sociology 420.
2. Crimes (Administration of Sentences) Regulation 2014
(NSW) reg 46(5).
3. Devon Indig et al, ‘2009 NSW Inmate Health Survey:
Key Findings Report’ (Report, Justice Health, 2010) 70.
4. Lubica Forsythe and Kerryn Adams, ‘Mental Health,
Abuse, Drug Use and Crime: Does Gender Matter?’
(Trends and Issues in Crime and Criminal Justice, No 384,
Australian Institute of Criminology, 2009) 5.
5. Amanda George, ‘Strip-searches: Sexual Assault
by the State’ (Paper presented at Without Consent:
Confronting Adult Sexual Violence, Melbourne, 27–9
October 1992) 212. <http://www.aic.gov.au/media_library/
publications/proceedings/20/george.pdf>.
6. Cathy Pereira, ‘Strip Searching as Sexual Assault’
(2001) 27 Hecate 187, 189.
7. See, eg, Melissa Lucashenko and Debbie Kilroy, ‘A
Black Woman and a Prison Cell: Working with Murri Women
in Queensland Prisons’ (Research Paper, Sisters Inside Inc,
2005) 17.
8. Jude McCulloch and Amanda George, ‘NakedIllustration by AngelinaYurlova

The ACT Prison: Human Rights
Rhetoric Verses Crowded and
Bored Reality
Lorana Bartels
Power: Strip Searching in Women’s Prisons’ in Phil Scraton
and Jude McCulloch (eds), The Violence of Incarceration
(Routledge, 2009) 107, 115.
9. Pereira, above n 6, 190.
10. Ingrid Johnston and Jenna Pickles, ‘The Health
of Australia’s Prisoners 2012’ (Report, Cat. No PHE 170,
Australian Institute of Health and Welfare, 2013) 74.
11. Pereira, above n 6, 190.
12. Sisters Inside Inc, Submission to ACT Human Rights
Commission, Human Rights Audit and Review of Treatment
of Women at the Alexander Maconochie Centre (AMC),
October 2013, 45.
13. See also Jude McCulloch and Amanda George,
‘Naked Power: Strip Searching in Women’s Prisons’ in
Phil Scraton and Jude McCulloch (eds), The Violence of
Incarceration (Routledge, 2009) 107, 118; Susanne Davies
and Sandy Cook, ‘Women, Imprisonment and Post-release
Mortality’ (1998) 14 Just Policy: A Journal of Australian
Social Policy 15, 19.
14. United Nations Rules for the Treatment of Women
Prisoners and Non-custodial Measures for Women
Offenders (the Bangkok Rules), GA Res 65/229, UN GAOR,
3rd
Comm, 65th
sess, 71st
plen mtg, Agenda Item 105, UN
Doc A/RES/65/229 (21 December 2010).
15. Ibid annex 12.
16. Ibid.
17. Ibid.
18. Convention on the Elimination of All Forms of
Discrimination Against Women, opened for signature 1
March 1980, 1249 UNTS 13 (entered into force 3 September
1981).
19. Standard Minimum Rules for the Treatment of
Prisoners, ESC Res 663 C, UN ESCOR, Plen, 24th
sess, 994th
mtg, Supp No 1, UN Doc E/3048 (31 July 1957); Standard
Minimum Rules for the Treatment of Prisoners, ESC Res
2076, UN ESCOR, Plen, 62nd
sess, 2059th
mtg, Supp No 1,
UN Doc E/5988 (13 May 1977).
20. International Covenant on Civil and Political Rights,
opened for signature 19th
December 1966, 999 UNTS 171
(entered into force 23 March 1976).
21. Ibid art 7.
22. Ibid art 17.
23. Kat Armstrong, Eileen Baldry and Vicki Chartrand,
‘Human Rights Abuses and Discrimination Against Women
in the Criminal Justice System’ (2007) 12 Australian
Journal of Human Rights 203, 212; Debbie Kilroy, ‘Stop
the State Sexually Assaulting Women in Prison: Strip
Searching’ (Paper presented at Expanding Our Horizons:
Understanding the Complexities of Violence Against
Women, Sydney, 18–22 February 2002) 19.
24. Corrective Services NSW, ‘Corrective Services
NSW Operations Procedures Manual: Section 12.4
Searching Inmates and Correctional Centres’ (Procedures
Manual, Corrective Services NSW, September 2012).
25. In 2014, Corrective Services NSW made updates
to its Operations Procedures Manual. However, s 12.4,
which relates to the searching of inmates and correctional
centres, has not been made publicly available. As a result,
the present article relies on the 2012 version of s 12.4 and
any recent updates made to the procedures may not be
captured in this article.
26. Crimes (Administration of Sentences) Regulation
2014 (NSW) reg 46(1).
27. Corrective Services NSW, Corrective Services NSW
Operations Procedures Manual: Section 12.4 Searching
Inmates and Correctional Centres (Procedures Manual,
September 2012) s 12.4.6.
2014 (NSW) reg 46(3).
September 2012) s 12.4.6.
30. Ibid s 12.4.6.1.
31. Ibid.
32. Ibid.
33. Ibid s 12.4.6.2.
34. Ibid.
35. See Law Enforcement (Powers and Responsibilities)
Act 2002 (NSW) ss 21, 31.
2014 (NSW) reg 131(4)(a).
37. Ibid reg 46(4).
September 2012) s 12.4.6.2.

tions 22(1) and 19(1) respectively. The ACT goes fur-
ther than Victoria, however, in giving citizens the right
to bring legal action in relation to alleged breaches of
duty by public authorities to comply with the provisions
of the HRA.8
It was against this backdrop that the ACT opened
its first prison in March 2009,9 ACT prisoners having
previously been housed in New South Wales (NSW).
Significantly, the prison was named after the so-
called ‘father of parole’, 19th Century penal reform-
er Alexander Maconochie.10 As the Attorney-General
noted in a speech in 2008, naming the new prison af-
ter Maconochie reflected the ACT’s philosophy of re-
habilitating, rather than punishing, prisoners.11 The
management of the AMC is governed by the Corrections
Management Act 2007 (ACT). Notably, unlike compa-
rable legislation in other Australian jurisdictions,12 this
legislation makes its commitment to human rights prin-
ciples explicit.13
The AMC is an open-campus facility which accom-
modates all unsentenced and sentenced male and female
prisoners in the ACT. About half of the accommodation
is five-bedroom cottages and no female detainees are
housed in cells. It is suggested that this model ‘enable[s]
detainees to develop and practice living skills’ and ‘facil-
itates normalisation’.14
According to the ACT Corrective Services (ACTCS)
website, the AMC:
emphasises rehabilitation, compliance with Human Rights
principles and adherance to the Healthy Prison Concept.
A Healthy Prison is one in which: everyone is and feels safe
(detainees, staff and visitors alike); everyone is treated with
respect and as a fellow human being (again, all people within
the AMC); everyone is encouraged to improve him/herself
and is given every opportunity to do so through the provision
of purposeful activity; and everyone is enabled to maintain
contact with their families and is prepared for release.15
On paper, the ACT’s commitment to prisoners’
human rights is clearly far ahead of anywhere else in
Australia and should be seen as a model worth emulat-
ing. There have also been a number of positive reports
about the AMC. For example, as Official Visitor, Ivan
Potas stated in 2011 that he was ‘rather impressed’ and
‘praised the prison’s human rights compliance’.16 A
2011 independent review of the AMC (the Hamburger
Review) described it as:
unique in relation to other Australian prisons in the high level
of attention paid to detainees’ human rights in its Legislation,
policies and procedures, in the design of its facilities, in deliv-
ery of services to detainees and in the scrutiny applied to its
administration.17
In 2014, David Biles asserted that, ‘hav[ing] visited
just about every prison in Australia … the AMC is one of
the best designed and equipped correctional institutions
in this country.’18 Also in 2014, a human rights audit of
the treatment of women at the AMC found that ‘women
detainees at AMC are treated humanely in custody, and
that correctional staff and management are respectful
of the particular needs and vulnerabilities of women.’19
It appears, therefore, that substantial progress has been
made towards respecting ACT prisoners’ human rights.
As I will detail in the following sections, however, the
ability of the AMC to deliver on its human rights prin-
ciples is hampered by two key issues: overcrowding and
the lack of purposeful activity for prisoners.20
III. BUILD IT AND THEY WILL COME?
One of the key arguments against establishing a prison
in the ACT was the concern that this would lead to an
increase in the use of prison in a jurisdiction that had
always had Australia’s lowest imprisonment rate.21 It is
of course impossible to conclusively determine the caus-
es of changes in the use of imprisonment.22 In the ACT
context, the Justice Minister, Shane Rattenbury MLA
(the Minister) and Human Rights Commissioner, Dr
Helen Watchirs OAM, have argued that a number of
factors have caused recent increases, including commu-
nity attitudes, judicial appointments, court delays and
improved policing.23 Nevertheless, it has emerged that
the year that the AMC opened represented a low point
in the ACT’s imprisonment rate, at 74 per 100 000,
compared with 85, 90 and 93 in 2006, 2007 and 2008
respectively.24
By contrast, since 2009, the rate has risen steadily
to 130 per 100 000 in 2014.25 Notably, the ACT im-
prisonment rate rose 25 per cent over the two years to
December 2014, compared with a national increase
of only 12 per cent.26 Concerningly, the number of
Indigenous prisoners increased by 47 per cent, com-
pared with 17 per cent nationally.27 Interestingly, these
increases have not been accompanied by any significant
policy changes, such as reforms to bail in NSW and pa-
role in Victoria.
According to the most recent Australian Bureau
of Statistics (ABS) data,28 the AMC had 343 people
in full-time custody in the December 2014 quarter.
By May 2015, 29 the Minister indicated that numbers
were fluctuating between 348 and 353. There was a
40 per cent increase in the AMC population between
January and October 2013, at which point the Minister
acknowledged that the AMC was ‘close to capacity’.30
By that stage, extra beds had been installed to increase
the AMC’s capacity from 332 to 366. Nevertheless, pris-
on expert David Biles warned that overcrowding ‘may
jeopardise safety and security’,31 earlier noting that as-
signing two prisoners to a single cell raises questions
about the potential for serious or even fatal assaults.32
Biles described the Government’s response to the ‘cri-
sis’ as ‘breathtakingly inept’ and ‘pathetic’.33 Even the
Minister agreed that ‘the overcrowding …pose[d] a risk
for human rights compliance and rehabilitation at the
prison.’34
The current pressures appear to be at least in part
of the Government’s own making, although it is worth
The Australian Capital Territory opened
its first prison, the Alexander Maconochie
Centre (AMC) in 2009. Named after
a 19th
Century reformer who is often
dubbed the ‘father of parole’, the AMC
is Australia’s first ‘human rights’ prison,
in one of only two Australian jurisdictions
to be governed by a human rights
framework. As this article will illustrate,
however, the AMC has failed to live up
to its lofty goals, with a recent Auditor-
General’s report concluding that there
was ‘a very large gap between what
was anticipated and what has occurred
since the opening of the AMC’. Two key
issues – overcrowding and the lack of
meaningful activities for prisoners – will
be considered in this article.
Lorana Bartels BA LLB LLM (UNSW) PhD
(UTas). Lorana is an Associate Professor at
the University of Canberra and Honorary
Associate Professor at the University of
Tasmania.
I. INTRODUCTION
The Australian Capital Territory (ACT) opened its first
prison – the Alexander Maconochie Centre (AMC) – in
2009, to significant fanfare about being the first ‘human
rights’ prison in Australia.1This objective is laudable and
provides some direction for other Australian prisons to
follow. As I will demonstrate in this article, however, it
has unfortunately failed to live up to its lofty goals.
It is beyond the scope of the present article to dis-
cuss the human rights of prisoners in detail, but there
are a number of international law documents that pre-
serve these rights. The most significant of these is the
International Covenant on Civil and Political Rights
(ICCPR),2 Article 10(1) of which provides that ‘[a]ll
persons deprived of their liberty shall be treated with hu-
manity and with respect for the inherent dignity of the
human person’. In addition, Article 7 provides that ‘[n]o
one shall be subjected to torture or to cruel, inhuman or
degrading treatment or punishment’.3
In 1955, the United Nations (UN) also established
Standard Minimum Rules (SMRs) for prisons,4 which
set out minimum standards relating to issues such as ac-
cess to food, water, clothing and social information.The
SMRs underpin the Standard Guidelines for Corrections
in Australia,5 which govern the treatment of inmates in
Australian prisons. However, the ICCPR and Standard
Guidelines are not enforceable in Australian law.6
II. A NEW WORLD ORDER? THE ACT’S
‘HUMAN RIGHTS’ PRISON
The ACT and Victoria are in a different position to
the rest of Australia, due to the passage of the Human
Rights Act 2004 (ACT) (the HRA) and Charter of Human
Rights and Responsibilities Act 2006 (Vic) (the Charter).
As Naylor has noted, ‘these essentially incorporate the
ICCPR rights’.7 Specifically for the present discussion,
section 10 of the HRA and Charter replicate Article 7
of the ICCPR, while Article 10(1) is replicated in sec-
Lorana Bartels

‘The AMC is an open-campus
facility which accommodates
all unsentenced and sentenced
male and female prisoners in the
ACT. About half of the accommo-
dation is five-bedroom cottages
and no female detainees are
housed in cells.’
for more time to consider the report’s recommenda-
tions’, although the Minister has indicated his personal
support for prison industries.59
V. CONCLUSION
There are many positive aspects to the AMC. As dis-
cussed above, detainees are treated respectfully and hu-
manely.The facilities are pleasant and nearly half of the
detainees live in cottage accommodation designed to
foster healthy living skills.The ACT also has the nation’s
highest proportion of prisoners engaged in education.60
In addition, the Extended Throughcare Program, which
links ‘prisoners up with everything from housing, em-
ployment, transport, health services, and drug and alco-
hol rehabilitation’ for a year following their release from
the AMC, is an Australian first.61 Anecdotally, there has
been initial success in keeping participants from return-
ing to custody, and the program is currently being inde-
pendently evaluated.
The Minister acknowledged in a 2013 Legislative
Assembly committee hearing that he did not think that
the AMC ‘will ever be perfectly human rights compli-
ant’.62 Clearly, there is still much more to be done. An
editorial in the Canberra Times opined that ‘despite ex-
pectations that Australia’s first “human rights-compli-
ant” prison would break the old correctional mould, the
reality has proved different’.63 As I have noted previous-
ly, ‘if the Government [wants] to hold its standards up
very high and say this is a human rights prison, this is a
healthy prison, then they need to ensure they meet those
objectives’.64 This article has considered two key issues
affecting the AMC: overcrowding and prisoner bore-
dom. It is acknowledged that overcrowding is largely out
of the control of ACTCS. Nevertheless, addressing these
issues is a critical step along the way towards building a
new correctional mould.
REFERENCES
1. Simon Corbell, ‘The New ACT Prison: What Is
Planned and What Will Be Achieved’ (Speech delivered
at the Christians For An Ethical Society Forum on the
ACT Prison, Canberra, 19 March 2008); see also Julian
Drape, ‘“Human Rights Principles” For ACT Prison’, Sydney
Morning Herald (online), 11 September 2008 <http://www.
smh.com.au/national/human-rights-principles-for-act-
prison-20080911-4eiq.html>.
2. International Covenant on Civil and Political Rights,
opened for signature on 16 December 1966, 999 UNTS 171
(entered into force 23 March 1976) art 10(1).
3. Ibid art 7.
4. First United Nations Congress On The Prevention Of
Crime And The Treatment Of Offenders, Geneva, 22 August
-- 3 September 1955: Report / Prepared By The Secretariat,
UN ESCOR, UN Doc A/CONF/6/1, (May 1956) annex I 67 [1].
5. Corrective Services ACT, Corrective Services NSW,
Northern Territory Corrective Services, Correctional
Services S.A., Queensland Government, State Government
Victoria Department of Justice, Tasmanian Government
Department of Justice, Government of Western Australia
Department of Corrective Services, ‘Standard Guidelines
for Corrections in Australia’ (Guidelines, 2012).
6. Bronwyn Naylor, ‘Protecting the Human Rights
of Prisoners in Australia’, in Paula Gerber and Melissa
Castan (eds), Contemporary Perspectives on Human Rights
Law in Australia (Thomson Reuters, 2013) 395, 401. The
Standard Guidelines, ibid, expressly state in the preface
that they ‘constitute outcomes or goals to be achieved
by correctional services rather than a set of absolute
standards or laws to be enforced’. See also Collins v State
of South Australia (1999) 74 SASR 200.
7. Naylor, above n 6, 405.
8. Human Rights Act 2004 (ACT) s 40C. For a recent
case in which a prisoner unsuccessfully claimed the
Government had breached its obligations under the
HRA, see Islam v Director-General of the Justice and
noting that the Minister was not part of the Government
at that stage. Nonetheless, the Government has been
dogged by revelations that it chose to ignore advice on
projected prison numbers.35 Specifically, it was report-
ed in October 2013 that the Government had ‘buried
a confidential report that suggested Canberra’s prison
would be full almost immediately, instead using its own
figures to justify a smaller facility that is now facing crit-
ical overcrowding problems.’36 This advice suggested
that the ACT would need space for at least 335 prison-
ers by 2009 and 340 by 2013. Furthermore, a separate
2001 report which ‘urged the government to build the
prison to a total capacity of 480’37 was also ignored.The
Government instead adopted modeling that predicted a
worst-case scenario of 275 prisoners by 2042.38
In response to ongoing pressure, in April 2014, the
ACT Government announced it would spend $54 mil-
lion building a new 56-cell block with 80 beds and a 30-
bed special care centre for detainees requiring intensive
support.39 The special care centre is due to open in late
2015 and the new block in mid-2016.40 Pending com-
pletion of the extension, the Government has upgrad-
ed the Symonston Correctional Facility (premises near
the AMC which house offenders on periodic detention)
to use as a temporary full-time prison when required.41
The Human Rights Commissioner and Official Visitor
will be granted access, but it has been suggested that ‘the
decision is likely to raise questions on…whether it will
be human rights compliant, given its comparative lack of
services and facilities’.42 The first prisoners were moved
to Symonston in June 2015.43 Additional inmates were
moved over in July,44 bringing the number housed there
to 28, over 7 percent of the prison population.
IV. TOO MUCH TIME WITH NOTHING TO DO
The second issue relates to the lack of purposeful activ-
ity for prisoners. The 2011 Hamburger Review recom-
mended that:
ACT[CS] and AMC Leadership give high priority to ensur-
ing the centre’s philosophy of active engagement by detainees
in meaningful activities is achieved through an efficiently
organised ‘structured day’ where the various staff disciplines
ensure attendance and participation by detainees in their
programs, activities and employment.45
Three years later, the human rights audit in rela-
tion to women prisoners recommended that ‘ACTCS
further investigate options for establishing a prison in-
dustry at the AMC to provide greater structured em-
ployment opportunities for detainees’.46 In a comment
accompanying the release of that report, the Human
Rights Commissioner observed that ‘the most urgent
problem facing women was the lack of structured em-
ployment opportunities through a prison-based industry
inside the AMC.’47 Biles likewise suggested that ‘[t]he
most serious shortcoming in the AMC is the shortage
of meaningful work’,48 while Prisoners Aid ACT and the
Victims of Crime Assistance League described prison-
ers as ‘sitting around idle instead of learning trade ap-
prenticeships because industrial workshops that were
part of the original plan were never installed because of
cost cutting’.49 In response, the Minister indicated that
the Government was ‘exploring industry options for the
AMC’.50
To date, that exploration has not yielded results. In
April 2015, the Auditor-General released a report on
the rehabilitation of male prisoners at the AMC.51 The
report made a number of damning findings about the
lack of a rehabilitation framework and inadequate infor-
mation management systems.The Auditor-General also
found that ‘a “structured day” with “purposeful activity”
is not being achieved for many detainees. It is therefore
likely that some detainees are bored, which can com-
promise their rehabilitation’.52 The report found that
detainees who do not work spend an average of only five
hours per week involved in the three main activities of
education, therapeutic programs and visits, which is sig-
nificantly less than the 30 hours envisaged in the 2007
delivery strategy.53 Overall, there was ‘a very large gap
between what was anticipated and what has occurred
since the opening of the AMC’.54
The report made 10 recommendations, including
that:
oo ACTCS develop a rehabilitation framework that
‘guides the integration of rehabilitative activities
and services to achieve a “structured day” that
incorporates sufficient “purposeful activity” for
detainees…and guides the provision of employ-
ment’55; and
oo the ACT Government clarify the role of prison
industries in providing employment for detain-
ees and develop a paper outlining options and
recommending the role of prison industries.56
The report prompted a critical editorial in the
Canberra Times, which suggested that ‘[t]he misfortunes
surrounding the planning, construction and operation
of the Alexander Maconochie Centre have become le-
gion, and there are few signs of a let-up’.57The President
of the Law Society, Martin Hockridge, stated that the
report was ‘particularly disappointing because the AMC
had been mooted as the country’s first human rights
compliant prison, with a particular emphasis on rehabil-
itating offenders before their release as productive mem-
bers of the community’.58 The Government has ‘asked
Lorana Bartels

canberratimes.com.au/comment/scales-of-justice-off-
balance-20130516-2jp71.html>.
34. Christopher Knaus, ‘Stanhope Says He Has
“Anxiety” Over Prison Management’, Canberra Times
(online), 11 October 2013 <http://www.canberratimes.com.
au/act-news/stanhope-says-he-has-anxiety-over-prison-
management-20131010-2vbro.html>. See also Christopher
Knaus, ‘Packed Jail Appeal Fails to Win Bail For Accused,
Canberra Times (online), 12 October 2013 <http://www.
canberratimes.com.au/act-news/packed-jail-appeal-
fails-to-win-bail-for-accused-20131011-2vegg.html>. The
impact of overcrowding on prisoners’ human rights has
also been discussed in the Victorian context: see Human
Rights Law Centre, ‘Investigation Into the Rehabilitation
and Reintegration of Prisoners in Victoria: Submission to
the Victorian Ombudsman’ (2015) 5.
35. ‘Poor Decisions Continue To Haunt Canberra’s Jail’,
above n 22.
36. Christopher Knaus, ‘Govt Was Warned of Prison
Crowding’, Canberra Times (online), 9 October 2013
<http://www.canberratimes.com.au/act-news/govt-was-
warned-of-prison-crowding-20131008-2v6ky.html>.
37. Christopher Knaus, ‘Government Rejected Call
For Bigger ACT Prison’, Canberra Times (online), 26
October 2013 <http://www.canberratimes.com.au/act-
news/government-rejected-call-for-bigger-act-prison-
20131025-2w7h4.html>.
38. Ibid.
39. Christopher Knaus, ‘$54 Million Jail Expansion
To Begin Soon’, Canberra Times (online), 29 April 2014
<http://www.canberratimes.com.au/act-news/54-million-
jail-expansion-to-begin-soon-20140428-37ebr.html>.
40. Lisa Mosley and Clarissa Thorpe, ‘Construction
Fast-tracked For New Prison Block and Special Care
Centre at Canberra Jail’, ABC News (online), 9 September
2014 <http://www.abc.net.au/news/2014-09-09/
construction-has-started-on-an-expansion-of-canberra-
jail/5731528>.
41. Christopher Knaus, ‘ACT Government Set To Use
Second Full-time Prison To Tackle Overcrowding Crisis’,
Canberra Times (online), 8 April 2015 <http://www.
canberratimes.com.au/act-news/act-government-set-
to-use-second-fulltime-prison-to-tackle-overcrowding-
crisis-20150408-1mgthh.html>.
42. Ibid. See also ‘Poor Decisions Continue To Haunt
Canberra’s Jail’, above n 22.
43. Megan Gorrey, ‘Inmates Moved To Symonston
As Canberra’s Jail Reaches Capacity’, Canberra Times
(online), 4 June 2015 <http://www.canberratimes.
com.au/act-news/inmates-moved-to-symonston-as-
canberras-jail-reaches-capacity-20150604-ghgiyx.
html#ixzz3klI7ZZsf>.
44. Christopher Knaus and Megan Gorrey, ‘More
Detainees Sent To Temporary Symonston Jail From
Overcrowded Prison’, Canberra Times (online), 21 July
2015 <http://www.canberratimes.com.au/act-news/
more-detainees-sent-to-temporary-symonston-jail-from-
overcrowded-prison-20150721-gih14o.html#ixzz3klItPLlR>.
45. Knowledge Consulting, above n 17, 70.
46. Watchirs et al, above n 19, 17.
47. Knaus, above n 20.
48. Biles, above n 18.
49. Julieanne Strachan, ‘Inmates Need to Learn and
Earn’, Canberra Times (online), 21 June 2014 <http://
www.canberratimes.com.au/act-news/inmates-need-
to-learn-and-earn-20140621-zsg9i.html>. For discussion
of the decision not to operate prison industries, ‘as there
was concern that...[this] would come at the expense
of meaningful Vocational Education and Training’, see
Knowledge Consulting, above n 17, 256.
50. Strachan, ibid.
51. ACT Auditor-General, ‘The Rehabilitation of Male
Detainees At the Alexander Maconochie Centre’ (Auditor-
General’s Report, ACT Government, 2015).
52. Ibid 2.
53. Ibid 183-4.
54. Ibid 7.
55. Ibid 17.
56. Ibid 17.
57. ‘Big Culture Change Needed for the AMC’,
Canberra Times (online), 20 April 2015 <http://www.
canberratimes.com.au/comment/ct-editorial/big-culture-
change-needed-for-the-amc-20150420-1moozs.html>.
58. Matthew Doran, ‘Legal Experts Call for Urgent
Improvements to Rehabilitation, Education Programs at
Canberra Jail’, ABC News (online), 26 April 2015 <http://
www.abc.net.au/news/2015-04-26/experts-call-for-
urgent-action-to-improve-canberra-prison/6422760>.
59. Matthew Doran, ‘Canberra’s Jail Falls Short of
Rehabilitation Standards, Prisoners Bored, Auditor-
General’s Report Shows’, ABC News (online), 18
April 2015 <http://www.abc.net.au/news/2015-
04-18/prisoners-bored-in-canberra-jail-says-act-
report/6402910?section=act>.
60. ‘How Much Does It Cost To Keep People in
Australian Jails?’, SBS News, 4, February 2015 http://www.
sbs.com.au/news/article/2015/02/02/how-much-does-
it-cost-keep-people-australian-jails.
61. Christopher Knaus, ‘Prisoner Support Program
A First, Canberra Times (online), 25 March 2013 <http://
www.canberratimes.com.au/act-news/prisoner-support-
program-a-first-20130324-2goek.html>. See also Lorana
Bartels, ‘The State of Imprisonment in Australia: Can the
ACT Achieve a “Human Rights” Prison?’ The Conversation,
17 April 2015 <https://theconversation.com/state-
of-imprisonment-can-act-achieve-a-human-rights-
prison-39119>.
62. Lisa Mosley, ‘Canberra’s Jail May Never Be
Fully Human Rights Compliant’, ABC News (online), 13
November 2013 <http://www.abc.net.au/news/2013-11-
13/canberras-jail-may-never-be-fully-human-rights-
compliant/5089852>.
63. ‘Growing Pains at the Alexander Maconochie
Centre’, Canberra Times (online), 7 November 2014
<http://www.canberratimes.com.au/comment/ct-
editorial/growing-pains-at-the-alexander-maconochie-
centre-20141107-11ijn8.html>.
64. Doran, above n 58.
Community Safety Directorate [2015] ACTSC 20. See also
Eastman v Chief Executive of the Department of Justice and
Community Safety [2011] ACTSC 33.
9. For background to the process leading up to this,
see Anita Mackay, ‘The Road to the ACT’s First Prison (The
Alexander Maconochie Centre) Was Paved With Rehabilita-
tive Intentions’ (2012) 11(1) Canberra Law Review 33, 35-39.
10. David Dressler, Practice and Theory of Probation
(Columbia University Press, 2nd
ed, 1969) 61.
11. Corbell, above n 1.
12. See, eg, Crimes (Administration of Sentences) Act
1999 (NSW); Corrections Act 1997 (Tas); Corrective Services
Act 2006 (Qld).
13. Corrections Management Act 2007 (ACT) Preamble,
ss 7, 8, 9, 12.
14. ACT Corrective Services, Alexander Maconochie
Centre (1 April 2014) ACT Government Information Portal
<http://www.cs.act.gov.au/custodial_operations/types_of_
detention/alexander_maconochie_centre>.
15. ACT Corrective Services, Custodial Operations
(15 September 2014) ACT Government Information Portal
<http://www.cs.act.gov.au/custodial_operations>.
16. ‘Canberra’s Holding Cells Harmful and “Dicken-
sian”’, Canberra Times (online), 28 November 2011 <http://
www.canberratimes.com.au/act-news/canberras-holding-
cells-harmful-and-dickensian-20111128-1v14c.html>.
17. Knowledge Consulting, ‘Independent Review
of Operations at the Alexander Maconochie Centre:
Report for ACT Corrective Services’ (Report, Knowledge
Consulting, 12 March 2011) 37.
18. David Biles, ‘First-rate Alexander Maconochie
Centre Needs A Little Work’, Canberra Times (online), 12
July 2014 <http://www.canberratimes.com.au/comment/
firstrate-alexander-maconochie-centre-needs-a-little-
work-20140712-zt483.html>.
19. Helen Watchirs et al, ‘Human Rights Audit on
the Conditions of Detention of Women at the Alexander
Maconochie Centre: A Report by the ACT Human Rights
and Discrimination Commissioner’ (Report, ACT Human
Rights Commission, April 2014) 5. For comment, see
Christopher Knaus, ‘Audit on Women in Prison Makes 61
Recommendations’, Canberra Times (online), 15 May 2014
<http://www.canberratimes.com.au/act-news/audit-on-
women-in-prison-makes-61-recommendations-20140515-
zrd73.html>; Patricia Easteal et al, ‘Females in Custody
in the ACT: Gendered Issues and Solutions’ (2015) 40
Alternative Law Journal 18.
20. Concern has also been expressed that the
number of lockdowns may be a breach of human rights:
Christopher Knaus, ‘Concern Inmates’ Rights Breached’,
Canberra Times (online), 27 May 2013 <http://www.
canberratimes.com.au/act-news/concern-inmates-rights-
breached-20130526-2n5mh.html>.
21. Australian Law Reform Commission (ALRC),
Sentencing, Report No 44 (1988) 139 [256].
22. Mackay, above n 9, 43-4. See also Standing
Committee on Justice and Community Safety, Parliament
of ACT, Inquiry Into Sentencing (2015) 13-23; ‘Poor
Decisions Continue To Haunt Canberra’s Jail’, Canberra
Times (online), 10 April 2015 <http://www.canberratimes.
com.au/comment/ct-editorial/poor-decisions-continue-
to-haunt-canberras-jail-20150409-1mh77k.html>.
23. See Peter Mares, A View of Pale Hills (25 February
2014) Insider Story <http://insidestory.org.au/a-view-of-
pale-hills>.
24. Australian Bureau of Statistics (ABS) (2014)
Prisoners in Australia, 2014, ‘Table 18: Crude
Imprisonment Rate, State/Territory, 2004-2014’,
Data Cube: Excel Spreadsheet, Cat No 4517.0,
< http://www.abs.gov.au/AUSSTATS/abs@.nsf/
DetailsPage/4517.02014?OpenDocument>.
25. Ibid.
26. ABS (2013) Corrective Services, Australia,
December Quarter 2012, Cat No 4512.0, <http://www.
abs.gov.au/AUSSTATS/abs@.nsf/Previousproducts/4512.
0Main%20Features2December%20Quarter%202012?
opendocument&tabname=Summary&prodno=4512.0&
issue=December%20Quarter%202012&num=&view=>;
ABS (2015) Corrective Services, Australia, December
Quarter 2014, ‘Table 3: Imprisonment Rates’, Data Cube:
Excel Spreadsheet, Cat No 4512.0, < http://www.abs.gov.
au/AUSSTATS/abs@.nsf/DetailsPage/4512.0December
%20Quarter%202014?OpenDocument>.
27. Ibid ‘Table 1: Persons in Corrective Services,
Summary’.
28. Ibid.
29. Clare Colley, ‘Would-be Prisoners Could Be
Diverted From Jail As Alexander Maconochie Centre
Numbers Surge’, Canberra Times (online), 5 May 2015
<http://www.canberratimes.com.au/act-news/would-
be-prisoners-could-be-diverted-from-jail-as-alexander-
maconochie-centre-numbers-surge-20150505-ggtpcz.
html>.
30. Lisa Mosley, ‘Canberra Prison Close to Capacity’,
ABC News (online), 10 October 2013 <http://www.
abc.net.au/news/2013-10-09/canberra-prison-at-
capacity/5012024>.
31. Christopher Knaus, ‘Overcrowding At Prison
“No Surprise”’, Canberra Times (online), 10 October
2013 <http://www.canberratimes.com.au/act-news/
overcrowding-at-prison-no-surprise-20131009-2v91e.
html>.
32. David Biles, ‘No Escaping Problems At Jail’,
Canberra Times (online), 8 February 2013 <http://www.
smh.com.au/federal-politics/no-escaping-problems-at-
jail-20130207-2e1bo.html>.
33. David Biles, ‘Scales of Justice Off Balance’,
Canberra Times (online), 7 May 2013 <http://www.
Lorana Bartels

Eleanor Wood ‘Biology gives you a brain. Life turns it into a mind.’
—Jeffrey Eugenides, Middlesex
In the High Court decision of New SouthWales Registrar
of Births Deaths and Marriages v Norrie,1 French CJ,
Hayne, Kiefel, Bell and Keane JJ held unanimously
that the Registrar was empowered to record the sex of a
person as ‘non-specific’ rather than ‘male’ or ‘female’.2
In reaching this conclusion, the judgment opened with
the statement, ‘not all human beings can be classified
by sex as either male or female’.3 The decision has been
described as a landmark ruling, attracting widespread
media coverage.4 Furthermore, the recent ruling is part
of broader developments in transgender rights, aware-
ness and advocacy. I suggest that a rights-based ap-
proach to determining capabilities, as set out by econo-
mist Amartya Sen5 and further explored by legal theorist
Martha Nussbaum,6 may offer a useful framework for
interpreting these developments.
I. MOVING BEYOND THE BINARY IN SEX
IDENTIFICATION
Up until recently, the majority of Australian law and pol-
icy has been framed around a binary system. There has
been very little scope to identify as anything other than
male or female. In R v Harris, the existence of a third
gender was explicitly rejected.7 Mathews J stated that,
‘there was no place in the law for a third sex’, because
‘such a concept could cause insuperable difficulties in
the application of existing legal principles’ and ‘would
also relegate transsexuals to a legal “no man’s land”’.8
The decision in NSW Registrar v Norrie is significant
because it challenges the male/female binary under-
standing of sex that has been entrenched in Australian
law and culture. The decision is part of broader devel-
opments in Australian policy to create space for sex
identities beyond the male/female binary in relation to
government recordkeeping, identity documentation and
Eleanor Wood is a third year Juris
Doctor student and professional
opera singer. Earlier this year, she
simultaneously completed her Equity
& Trusts mid-sem and performed in
Orfeo and Euridice.
Eleanor wishes to thank Professor
Fleur Johns, Dr Marc De Leeuw and —
especially — her dad, Dr Mike Wood,
for their sage guidance in the writing
of this article.

Eleanor Wood
anti-discrimination legislation.9 Whilst the terms ‘gen-
der’ and ‘sex’ are sometimes used interchangeably, for
the purposes of expression, this article will refer to ‘sex’
in discussing biology and ‘gender’ in discussing social
and cultural identity.
The restrictive male/female binary can have harm-
ful effects on the wellbeing of sex and gender diverse
people. James McGrath has argued that attempts to
oversimplify the classification of a person’s sex can have
troubling effects for those ‘who do not fit neatly into one
of the two categories of male or female, and cause com-
plications for others who do not conform to social roles
expected of them. The law may be especially unkind to
people who do not fit into one of these two ill-defined
variables’.10
A recent study conducted by La Trobe University in
September 2014 indicated that two thirds of gender di-
verse and transgender young people experienced verbal
abuse because of their gender identity, and one in five of
the participants surveyed had been physically abused.11
Of the 189 participants surveyed, the study found half
had been diagnosed with depression and nearly half had
been diagnosed with anxiety.12 As Theodore Bennett ar-
gues, law’s reliance on this binary paradigm ignores ‘the
biological and lived realities of gender diverse people,
marginalizes non-binary sex identities and trades on
normative male/female bodies, sexualities and lives to
unfairly restrict access to rights and recognition’.13
II. WHY A CAPABILITIES APPROACH?
The nature of the lives people can lead has been the sub-
ject of attention of social analysts over the ages.14 While
economic criteria of advancement such as gross nation-
al product (GNP) or gross domestic product (GDP)
have frequently been relied upon to measure human ad-
vancement, Amartya Sen argues that direct indicators
of well-being and freedom are increasingly important in
social assessment. 15 He writes, ‘[i]n assessing our lives,
we have reason to be interested not only in the kind of
lives we manage to lead, but also in the freedom we ac-
tually have to choose between different styles and ways
of living’.16
In a capabilities approach, individual advantage is
assessed by a person’s capability to do things he or she
has reason to value. According to Sen ‘[a] person’s ad-
vantage in terms of opportunities is judged to be lower
than that of another if she has less capability – less real
opportunity – to achieve those things she has reason to
value’.17 The value of a capabilities approach is that it
emphasises the plurality of different features that may be
needed for human functioning: whether it be avoiding
premature mortality, having access to education to pur-
sue professional ambitions or taking part in community
activities in a meaningful way. A capabilities approach
focuses on human life, not just economic criteria such
as income or commodities that a person may possess,
which are often taken to be the main criteria of suc-
cess.18 Sen writes, ‘the idea of freedom also respects our
being free to determine what we want, what we value
and ultimately what we decide to choose’.19
However, one potential limitation of a capabilities
approach is that it values outcome over opportunity for
individual rights. I suggest both considerations are im-
portant in relation to policy decisions for transgender
rights.
Martha Nussbaum has further explored the capa-
bilities approach in considering social assessment and
policy in relation to civil rights, relying on the language
of liberty and freedom in fleshing out an account of the
basic capabilities. She argues that rights play an increas-
ingly large role in determining what the most important
capabilities are, suggesting ‘legal guarantees of freedom
of expression … and of religious exercise’ are aspects of
the general capability to use one’s own mind in a way
that is directed by one’s own practical reason.20 She also
emphasises ‘guarantees of non-interference with certain
choices that are especially personal and definitive of
selfhood’.21 I suggest that these aspects of a capabilities
approach are important to law and policy progressions
for transgender rights, and should continue to inform
decision makers in the future.
Nussbaum stresses the dynamic nature of her list of
basic capabilities, stating, ‘it is open-ended and humble;
it can always be contested and remade’.22 The current
list comprises life; bodily health; bodily integrity; sens-
es, imagination and thought; emotions; practical reason;
affiliation, friendship and respect; concern for other
species; play; and control over one’s environment, both
political and material.23 Nussbaum’s capabilities are
complete in and of themselves. Nussbaum states, ‘[t]he
central capabilities are not just instrumental to further
pursuits: They are held to have value in themselves, in
making a life fully human’.24
III. A STEP IN THE RIGHT DIRECTION
In NSW Registrar v Norrie, the reasoning of the High
Court was that the current Act was supported by ‘ex-
press legislative recognition of the existence of persons
of “indeterminate sex”’.25 The Court held that while
the Registrar was empowered to assess the veracity of
an application, the Registrar’s function did not encom-
pass ‘the making of any moral or social judgments’ or
‘the resolution of medical questions or the formation of
a view about the outcome of a sex affirmation proce- Illustration by Nour Tohamy

dure’.26This aspect of the decision raises a key question:
what role, if any, should the state play in regulating our
own sexual behavior and sexual identity?
While the High Court’s reasoning turned largely on
statutory interpretation, the New South Wales Court
of Appeal appeared to give greater weight to changing
moral values and the needs of individuals to flourish in a
contemporary society. In discussing ‘specific categories
of sex other than male or female’27 that might be con-
templated by the Act, the Court of Appeal seemed to
give weight to a naturalist sentiment that the law should
allow the individual to flourish through self-evidently
‘good’ values.This notion of the individual being able to
pursue human flourishing finds support in Nussbaum’s
capabilities approach.
The judgment of Beazley ACJ seemed to engage di-
rectly with the idea of the intersection between the law
and shifting moral values held by the community. She
states:
Matters such as gender identity and sexual preferences are
often overlain with social, moral and religious considerations
that may vary widely in different segments of the community.
The law’s role in the regulation of such matters may itself be
controversial or, at the least, influenced by the different views
within the community on such matters.28
This passage seems to endorse Nussbaum’s notion
of basic capabilities as ‘an ongoing cross-cultural inqui-
ry’ in which the law is informed by evolving community
values.29
III. CONCLUSION
Thanks to an increase in activism, public advocacy and
ongoing academic attention, the rights of transgender
people are increasingly recognised in contemporary so-
ciety.30 This is strengthened by recent examples of high
profile celebrities publicly discussing their transgender
identity, such as former Olympic athlete Caitlyn Jenner
and television actor Laverne Cox. In the face of this
growing recognition, law and government must consider
developing ‘a framework that does not compel subjects
to live in one of two categories, and does not attempt
to “freeze” sex and gender’.31 The key issue is no lon-
ger whether space should be opened up for non-bina-
ry sex identities, but rather how such a space should be
opened up. As law and policy continues to grapple with
transgender rights and identities, a capabilities approach
offers a more dynamic framework that promotes the
pursuit of individual rights and celebrates diversity.
REFERENCES
1. (2014) 250 CLR 490 (‘NSW Registrar v Norrie’).
2. Ibid 493 [2].
3. Ibid 492 [1].
4. Paul Bibby and Dan Harrison, ‘Neither Man Nor
Woman: Norrie Wins Gender Appeal’ The Sydney Morning
Herald (online) 2 April 2014 <http://media.smh.com.au/
news/nsw-news/norrie-wins-gender-appeal-5316581.
html>.
5. Amartya Sen, The Idea of Justice (Belknap Press,
2009).
6. Martha C Nussbaum, ‘Capabilities and Human
Rights’ (1997) 66 Fordham Law Review 273.
7. (1988) 17 NSWLR 158, 194.
8. Ibid.
9. Theodore Bennett, ‘“No Man’s Land”: Non-binary
Sex Identification in Australian Law and Policy’, (2014) 37
University of New South Wales Law Journal 847, 848.
10. James McGrath, ‘Are You a Boy or a Girl? Show Me
Your REAL ID’ (2009) 9 Nevada Law Journal 368, 368.
11. Elizabeth Smith et al, ‘From Blues to Rainbows:
The Mental Health and Well-being of Gender Diverse and
Transgender Young People in Australia’ (Research Report,
Australian Research Centre in Sex, Health and Society,
September 2014) 12.
12. Ibid 12, 66.
13. Bennett, above n 9, 848.
14. Sen, above n 5, 225.
15. Ibid 227.
16. Ibid.
17. Sen, above n 5, 231.
18. Ibid 233.
19. Ibid 232.
20. Nussbaum, above n 6, 273, 277.
21. Ibid 277.
22. Ibid 286.
23. Ibid 286–8.
24. Ibid 286.
25. NSW Registrar v Norrie (2014) 250 CLR 490, 496
[18].
26. Ibid 495 [16].
27. Ibid 499 [34].
28. Norrie v NSW Registrar of Births Deaths and
Marriages [2013] NSWCA 145, 65 [177].
29. Nussbaum, above n 6, 286.
30. Bennett, above n 9, 853.
31. Ibid 854.
Eleanor Wood
Morgan Carpenter

‘Intersex status’ is a new attribute in federal anti-discrim-
ination law that was introduced in 2013, but few institu-
tions have yet responded to this development.Those few
have typically focused on the same issues of honorifics,
pronouns and toilets that they might address in tackling
gender identity discrimination,1 while media reports fre-
quently suggest that LGBTI people are all gay.2 So what
does the law say, and what does it mean to address the
rights and freedoms of people born with intersex traits?
Intersex people are born with sex characteristics that
differ from stereotypical notions of male or female.3 The
Sex Discrimination Act 1984 (Cth) describes the ‘intersex
status’ attribute in physical terms, distinguished not only
from sexual orientation and gender identity, but also
from sex. The definition is broad, ensuring protections
for persons perceived to be intersex.
People with intersex variations are a heterogeneous
group, with varied kinds of bodies, experiences and iden-
tities. Intersex can mean a different number of sex chro-
mosomes; different physical responses to sex hormones;
or different developmental hormone balances and anato-
mies. A German researcher states they comprise ‘at least
40 different entities of which most are genetically deter-
mined. An exact diagnosis is lacking in 10 to 80 per cent
of the cases’.4 Disclosed by a doctor to a parent or an
individual, diagnosis remains an inexact science. Around
1.7 per cent of the population may have intersex traits.5
As a group, intersex people face a range of health
and human rights issues, caught between contrasting vi-
sions of who and how we should be. On the one hand, we
are seen to have intrinsic ‘disorders of sex development’.
Obvious differences result in medical interventions ex-
plicitly intended to make intersex bodies conform to so-
cial norms for one or other binary sex.6 These often take
place shortly after diagnosis, whether prenatally, shortly
after birth, during childhood and adolescence, or later
in life.
On the other hand, many of us face stigma and abuse
due to our sex characteristics, whether ‘treated’ or not,7
along with ‘misgendering’, treating our gender identities
or legal sexes as invalid, and expectations that atypical
Morgan Carpenter is the president of
Organisation Intersex International
Australia Limited, a national, intersex-
led Public Benevolent Institution
that engages in systemic advocacy,
education and peer/family support.
In 2015, Morgan moderated a
presentation on intersex to the UN
Committee on the Rights of Persons
with Disabilities. Morgan is also an
advisor to the first international
Intersex Human Rights Fund, managed
by the Astraea Lesbian Foundation for
Justice, and has acted as an expert
advisor to a range of governmental and
other institutions.
Morgan Carpenter
sex characteristics make us a third gender or sex.8
Addressing the rights and freedoms of people with
atypical sex characteristics means addressing the right
to be told the truth about our bodies; the right to be
informed, and to freedom of association with a commu-
nity.They include the right to physical integrity, to make
our own choices about irreversible treatments to our
bodies that are driven by social expectations; the right to
freedom from inhuman and degrading treatment,9 and
the right to determine our own identities.
I. RECOGNITION BEFORE THE LAW
Recognising intersex in law means recognising our
shared experience, and our specific health and human
rights needs; it does not mean recognising a novel gen-
der or sex classification.Those of us with obvious physi-
cal differences may face the same discrimination experi-
enced by many trans people, whether or not we change
sex classification.10 Some of us have non-binary, multi-
ple, or other distinctive gender identities, and these are
often informed by our biology, but we don’t all share a
common identity, least of all a common gender identi-
ty. We of course benefit from actions to reduce gender
inequality and the stigmatisation of gender non-confor-
mity, but intersex people only share with each other an
experience of being born with stigmatised atypical sex
characteristics.
Reductive gender-based approaches to intersex have
seen us portrayed in the media as the non-binary equiv-
alent of ‘trans-exclusionary radical feminists’, those who
oppose trans women identifying themselves as women.11
The reality is that we oppose this biological determin-
ism: the essentialism that equates intersex characteris-
tics with non-binary gender identity, and the essential-
ism that disorders our natural human bodily diversity.
Both approaches are harmful, and deny agency to inter-
sex individuals to make our own decisions.
Despite the simplistic rationalisations by the ACT
Law Reform Advisory Council,12 which has been ren-
dered from conflating identity and sex, and the deeply
flawed changes to the Territory’s birth registrations law
that followed, our human rights issues cannot be re-
duced to a novel third checkbox on a form. Assigning
infants and children to a third classification is abhorrent
when that classification is experimental, not well under-
stood or supported in society, and when it recognises
lesser rights in people than the traditional categories. A
child may even be confronted with forced disclosure of
their stigmatised characteristics at nursery or school.
Not only is a child’s assignment to a third classifi-
cation likely to be incorrect, given our existing range of
identities, but the possibility of such assignment increas-
es pressure on vulnerable parents to avoid such risks
through medical intervention. Having a third classifica-
tion open only to intersex and/or trans people is more
correctly a purification of the binary sexes. It danger-
ously misses the point. Our key issue is not so much the
existence of binary genders, but what is done medically
to make us conform to those norms. Any third classifica-
tion must be voluntary, opt in by a person who can con-
sent, and open to all; and it must not misassign intersex
people as a class.
Indeed, many intersex people already face stig-
ma and failures to recognise our birth sex assignment.
Sporting history is replete with examples of women
being banned from competition after medical testing
reveals they have an intersex variation.13 The scientific
basis for such exclusion has failed to be demonstrat-
ed.14Worse, medical papers published in 2013 and 2014
disclosed that four elite intersex women athletes were
subjected to ‘partial clitoridectomies’ and sterilisation as
part of a coercive process that determined whether or
not they could continue competing.15 Despite being one
of the few countries to protect intersex people from dis-
crimination, Australia’s legal exemption for competitive
sports, contained in the Sex Discrimination Act,16 has an
unfortunate global significance.
Several states and territories are currently review-
ing sex registration guidelines. Recognising the rights
and freedoms of intersex people would mean ending
the legal registration of sex, just like societies around
the world have ended the registration of race. However,
as with ending the registration of race, ending legal sex
classification would not mark the end of work to counter
discrimination, combat human rights violations and ad-
dress health disparities. Nor should it; but ending official
sex classifications on identity documents would be right.
Some intersex people change sex assignment, and a
particular difficulty faced by people in this situation is
the imposition of early involuntary or coerced medical
intervention to instil or reinforce an inappropriate gen-
der identity.
Birth registration laws have historically been used
to ensure that trans people are surgically sterilised be-
fore their identity is officially recognised. Local best
practice is to end those requirements for trans people.
However, world best practice would not only be permit-
ting self-declaration of sex or gender, but prohibiting
modifications to sex characteristics for all people, except
in cases where there is personal consent or a clear phys-
ical necessity.
To date, Australian discussions have perceived this
possibility as some kind of furphy, but Malta did pre-
cisely this in 2015, along with recognition of rights to
gender identity and bodily integrity, and the creation
of a ‘sex characteristics’ attribute in anti-discrimination
law.17 Malta remains the only country in the world that
prohibits sex assignment treatments and surgical inter-
ventions on minors.
II. MEDICAL TREATMENT
Surgeries and hormonal interventions to ‘normalise’ in-
tersex bodies currently take place on a routine basis in
Australia, such as when girls’ clitorises are deemed too

Illustration by AngelinaYurlova
big, or when boys are unable to stand to urinate. The
Australian Human Rights Commission reports such
rationales as ‘informed by redundant social constructs
around gender and biology’,18 but clinicians argue that
standing to pee is a ‘functional’ requirement for boys.19
Infants assigned as girls may be subjected to ‘femi-
nising genitoplasty’ at an average age of 15 weeks, and
follow-up consultations may include sensitivity testing
with a cotton bud or vibrator. On non-intersex girls,
such surgeries are considered abhorrent,20 prohibited
as ‘Female Genital Mutilation’ due, in part, to urinary,
sensitivity and other risks.
Most clinical guidelines are confidential, and so are
numerical and historical data. Published quantitative
data are also lacking, and there is no long term follow-up
in Australia,21 but scientific and medical papers disclose
the central role of surgical interventions.22
These are justified for social rationales such as mar-
riageability,23 facilitating parental bonding, and ‘min-
imizing family concern and distress’.24 In 2013, an
Australian Senate Committee Inquiry into involuntary
or coerced sterilisation found that there is ‘great dan-
ger’ of using such ‘psychosocial’ reasons for medical in-
tervention.25 It suggests these rationales are a ‘circular
argument that avoids the central issues[:] …surgery is
unlikely to be an appropriate response to these kinds of
issues.’26 Moreover, clinician documents also disclose
‘particular concern’ for post-surgical ‘sexual function
and sensation’.27
Clinical papers commonly portray ethical concerns
about medical treatment as controversies over surgical
timing and the degree of ‘severity’ warranting interven-
tion.28 In reality, the key ethical concerns are matters of
rights and freedoms: of informed consent and personal
Morgan Carpenter
autonomy.
The 2013 Senate Committee Inquiry found there is
‘no medical consensus around the conduct of normalis-
ing surgery.’29 Indeed, UK clinicians state ‘a schism has
developed between clinicians working in paediatric and
in adolescent/adult services’ due to a lack of evidence
for early surgeries and their consequences.30 The same
clinicians note an increase in the number of clitoral sur-
geries on under-14s in the UK in the last decade: ‘The
widespread practice of childhood genital surgery has
meant that there have been very few adults who have not
been operated on to enable robust comparative studies
to be carried out’.31 Doctors favour action, rather than
inaction; an ‘intervention bias’.32
At times, sterilisations take place due to elevat-
ed cancer risks, however, data about actual risk levels
are often sketchy, with no control groups available for
comparison. During the course of the Senate inquiry,
it was revealed that routine sterilisations of women with
Complete Androgen Insensitivity Syndrome no longer
take place – risk levels had been overstated – but the
date of their cessation is unknown, and there has been
no attempt at reparations. Moreover, clinicians have dis-
closed a range of non-therapeutic rationales for sterili-
sation such as sex of rearing and expected future gen-
der identity, and these were intertwined with rationales
about cancer risk.The Senate was disturbed by the idea
that ‘basing a decision on cancer risk might avoid the
need for court oversight in a way that a decision based
on other factors might not.’33
Clinicians are members of the same society as every-
one else, and subject to the same prejudices and fears.34
Research on physicians’ attitudes towards ‘normal’ fe-
male external genital appearance is disturbing; it shows
that desirability and propensity to suggest surgical re-
duction are informed not only by specialism (and pos-
sible financial benefit), but also by the physicians’ gen-
der.35
In June 2015, the Commonwealth government ac-
knowledged the 2013 Senate committee report, but stat-
ed that its recommendations are a matter for States and
Territories. In doing so, it commended guidelines that
are both non-binding and flawed.36 In contrast, Malta
has shown how meaningful action is possible and prac-
ticable. Intersex health issues may also be addressed
as forms of discrimination and violence,37 and by re-
moving loopholes in prohibitions of Female Genital
Mutilation.38
III. A HISTORY OF SILENCE
The intersex movement necessarily focuses much time
and energy on ending involuntary and coerced medical
treatment, but even if these cease tomorrow, there re-
main lifelong legacies of trauma, distrust and discrim-
ination.
The philosopher Miranda Fricker describes epis-
temic or hermeneutical injustice as preventing someone
with lived experience from making sense of their own
experience. An example is ‘the difficulty of making sense
of homosexual desire as a legitimate sexual orientation
in a cultural-historical context where homosexuality is
interpreted as perverse or shameful... forms of under-
standing available for making sense of homosexuality
were crucially uninformed and distorted.’39 Tackling
hermeneutical injustice requires a cognitive shift in un-
derstanding.
For people with intersex traits, this hermeneutical
injustice was at its most profound from the 1950s to the
early new millennium, where a culture of secrecy in di-
agnoses was fostered.40 The objective was to ‘enable the
child have a ‘normal’ physical and psychosexual devel-
opment.’41
That culture of silence gave people with intersex
variations no words to describe our sutures, scars and
lack of sensation, and no words to understand the com-
monalities that are share across the diversity of intersex
experiences.
In 2006, an invite-only group led by US clinicians
changed clinical language from intersex to ‘disorders
of sex development’,42 a move that sociologist Morgan
‘Addressing the rights and
freedoms of people with atypical
sex characteristics means
addressing the right to be told the
truth about our bodies; the right
to be informed, and to freedom of
association with a community.’

Holmes states ‘reinstitutionalises clinical power to de-
lineate and silence those marked by the diagnosis; that
this silencing is precisely the point of the new terminol-
ogy’.43 The new language reasserted medical authority
in the light of successful intersex advocacy that cast our
issues as human rights.44 However, it remains deployed
in clinical settings, along with specific, rare, and com-
plex diagnostic terms.
Silence does not simply perpetuate a legacy of shame
and secrecy, it prevents families and individuals from
providing informed consent. Clinical silence and com-
mon misunderstandings of intersex as an identity label
act as a form of epistemic or hermeneutical injustice.
They prevent parents from understanding their child
in non-pathological ways, and as a member of a social
group protected by the Sex Discrimination Act.45 Clinical
language erects a barrier to alternative treatment para-
digms based on self acceptance and respect for personal
autonomy.
Separately, a shift in terminology from LGBT to
LGBTI over recent years has not yet been matched with
an increased understanding of intersex. By focusing
only on issues of sexual orientation and gender iden-
tity, LGBTI research studies and services frequently
fail to address the particularities of intersex experience.
Misconceptions frame intersex as something more fa-
miliar, viewed with a trans lens, or an LGBT lens. Novel
and abstract terminology has also been adopted with
scant relevance, and continue to perpetuate hermeneu-
tical injustices.46
Intersex issues are thus caught between distinct-
ly different languages and approaches, and legal poli-
cy work remains disjointed. It must not remain so. The
problematisation of intersex bodies has profound im-
pacts on our education, work and intimate lives; some
of this will be documented in a major research study
published late in 2015.47
Tackling rights and freedoms for people born with
intersex traits means recognising our diversity, and
the hermeneutical injustices we face. It means tackling
medical disordering, interventions, and the silence that
surrounds them, through binding regulation and legisla-
tion. It means acknowledging a right not to undergo sex
affirming treatments.48 In the words of theWorld Health
Organization, it includes ‘remedies and redress to the
victims of such treatment, including adequate compen-
sation’.49
REFERENCES
1. See, eg, Mehnaz Yoosuf, ‘Recognition and Protection
for Intersex Persons’ (2015) 52 Law Institute Journal ;
Meredith Griffiths, ‘Universities Could Do More to Include
LGBTI Students, Human Rights Commission Assessment
Finds’, ABC News (online), 11 May 2015 <http://www.abc.
net.au/news/2015-05-11/universities-could-do-more-to-
include-lgbti-students-new-guide/6461132>.
2. See, eg, Bellinda Kontominas, ‘Domestic Violence
a “Silent Epidemic” in Gay Relationships’, Sydney Morning
Herald (online), 30 May 2015 <http://www.smh.com.
au/nsw/domestic-violence-a-silent-epidemic-in-gay-
relationships-20150530-1mm4hg>; Miki Perkins and Rachel
Browne, ‘Young Men Remain Alarmingly Homophobic, Study
Finds’, Sydney Morning Herald (online), 31 March 2015
<http://www.smh.com.au/national/young-men-remain-
alarmingly-homophobic-study-finds-20150330-1mb7ph.
html>.
3. United Nations Office of the High Commissioner for
Human Rights, ‘Fact Sheet: Intersex’ (Report, United Nat-
ions Office of the High Commissioner for Human Rights) 1.
4. Olaf Hiort, ‘DSDnet: Formation of an open world-
wide network on DSD’ (Paper presented at Proceedings
of the 4th
International Symposium on Disorders of Sex
Development, University of Glasgow, 7–9 June 2013).
5. Melanie Blackless et al, ‘How Sexually Dimorphic Are
We? Review and Synthesis’ (2000) 12 American Journal of
Human Biology 151, 159.
6. See Community Affairs References Committee,
Parliament of Australia, Involuntary or Coerced Sterilisation
of Intersex People in Australia (2013) 35.
7. See, eg, Iain Morland, ‘What Can Queer Theory Do
for Intersex?’ (2009) 15 GLQ: A Journal of Lesbian and Gay
Studies 285, 298; Rachel Moss, ‘Married Man Sees His
Doctor About Stomach Cramps - Finds Out He’s A Woman
With Period Pains’, Huffington Post UK (online), 28 July 2014
<http://www.huffingtonpost.co.uk/2014/07/24/married-
man-period-pains-woman_n_5616359.html>.
8. See Julia Baird, ‘Neither Female Nor Male’, The New
York Times (online), 6 April 2014 <http://www.nytimes.com
/2014/04/07/opinion/neither-female-nor-male.html>.
9. Micah Grzywnowicz, ‘Consent Signed with Invisible
Ink: Sterilization of Trans* People and Legal Gender
Recognition’ (Torture in Healthcare Settings: Reflections
on the Special Rapporteur on Torture’s 2013 Thematic
Report, American University Washington College of Law,
2013) 74.
10. See Morgan Carpenter and Dawn Hough,
‘Employers’ Guide to Intersex Inclusion’ (Guide, Pride in
Diversity and Organisation Intersex International Australia
Limited, 2014) 18.
11. Baird, above n 8.
12. ACT Law Reform Advisory Council, Beyond the
Binary: Legal Recognition of Sex and Gender Diversity in the
ACT, Report No 2 (2012) 9.
13. Maria José Martínez-Patiño, ‘Personal Account
A Woman Tried and Tested’ (2005) 366 (Suppl 1) The
Lancet S38.
Morgan Carpenter
14. Dutee Chand v Athletics Federation of India (AFI) &
The International Association of Athletics Federations (IAAF)
(Interim Arbitral Award) (Court of Arbitration for Sport,
CAS 2014/A/3759, 24 July 2015) 34, 155.
15. See, eg, Rebecca M Jordan-Young, Peter H
Sönksen and Katrina Karkazis, ‘Sex, Health, and Athletes’
(2014) 348 BMJ: British Medical Journal 20, 20; Patrick
Fénichel et al, ‘Molecular Diagnosis of 5α-Reductase
Deficiency in 4 Elite Young Female Athletes Through
Hormonal Screening for Hyperandrogenism’ (2013) 98 The
Journal of Clinical Endocrinology & Metabolism E1055,
E1057-8.
16. Sex Discrimination Act 1984 (Cth), s 42.
17. Gender Identity, Gender Expression and Sex Char-
acteristics Act 2015 (Malta) Act No XI of 2015, 14 April 2015.
18. Australian Human Rights Commission, ‘Resilient
Individuals: Sexual Orientation, Gender Identity & Intersex
Rights’ (National Consulation Report, Australian Human
Rights Commission, 2015) 57.
19. Australasian Paediatric Endocrine Group,
Submission No 88 to Senate Standing Committee on
Community Affairs, Inquiry Into the Involuntary or Coerced
Sterilisation of People with Disabilities in Australia:
Regarding the Management of Children with Disorders of
Sex Development, 27 June 2013, 4.
20. Australian Government Attorney General’s
Department, ‘Review of Australia’s Female Genital
Mutilation Legal Framework’ (Final Report, Attorney
General’s Department, March 2013) 6.
21. Ibid 18–9.
22. Lih-Mei Liao and Margaret Simmonds, ‘A
Values-Driven and Evidence-Based Health Care
Psychology for Diverse Sex Development’ (2014) 5
Psychology & Sexuality 83.
23. State Government of Victoria Department of
Health, ‘Decision-Making Principles for the Care of Infants,
Children and Adolescents with Intersex Conditions’ (Policy
Guidelines, Victorian Government, February 2013) 18.
24. S Faisal Ahmed et al, ‘Summary of Consensus
Statement on Intersex Disorders and Their Management’
(2006) 118 Pediatrics 753.
25. Community Affairs References Committee, above
n 6, 74.
26. Ibid.
27. See, eg, Australasian Paediatric Endocrine Group,
above n 19; Morgan Carpenter and Organisation Intersex
International Australia, Submission No 23 to Senate
Committee on Community Affairs, August Submission to the
Senate Inquiry on the Involuntary or Coerced Sterilisation of
People with Disabilities, 29 August 2013, 3.
28. Australasian Paediatric Endocrine Group, above n
19, 5, 9.
n 6.
30. Sarah M. Creighton et al, ‘Childhood Surgery
for Ambiguous Genitalia: Glimpses of Practice Changes
or More of the Same?’ (2014) 5 Psychology and Sexuality
34, 34.
31. Ibid 36.
32. A J Foy and E J Filippone, ‘The Case for
Intervention Bias in the Practice of Medicine’ (2013) 86
Yale Journal of Biology and Medicine 271, 271–2.
n 6, 91–2.
34. See Simon Copland, ‘CIA Torture Is Only Part of
Medical Science’s Dark Modern History’, The Guardian
(online), 22 June 2015 <http://www.theguardian.com/
science/blog/2015/jun/22/cia-torture-is-only-part-of-
medical-sciences-dark-modern-history>.
35. Welmoed Reitsma et al, ‘No (Wo)Man Is an Island-
The Influence of Physicians’ Personal Predisposition to
Labia Minora Appearance on Their Clinical Decision Making:
A Cross-Sectional Survey’ (2011) 8 The Journal of Sexual
Medicine 2377, 2382.
36. Commonwealth, Parliamentary Debates, Senate,
17 June 2015, 3756-770 (Mitch Fifield); see also Morgan
Carpenter and Organisation Intersex International
Australia, Submission No 23 to Senate Committee on
Community Affairs, Supplementary Submission on the
Involuntary or Coerced Sterilisation of People with
Disabilities in Australia, 8 March 2013.
37. World Health Organization, ‘Sexual Health, Human
Rights and the Law’ (Report, World Health Organization,
2015) 40.
38. Morgan Carpenter and Organisation Intersex
International Australia, Submission No 23 to Senate
Committee on Community Affairs, Third Submission to the
Senate Inquiry on the Involuntary or Coerced Sterilisation of
People with Disabilities, 3 June 2013, 3.
39. Miranda Fricker, ‘Forum on Miranda Fricker’s
Epistemic Injustice: Power and the Ethics of Knowing’
(2008) 61 Theoria 69, 70.
40. See generally Morgan Holmes, ‘Is Growing up in
Silence Better Than Growing up Different?’ (1997) 2(5) Chr-
ysalis: The Journal of Transgressive Gender Identities 1, 7–9.
41. Swiss National Advisory Commission on Biomedical
Ethics, ‘On the Management of Differences of Sex
Development: Ethical Issues Relating to ‘Intersexuality’’
(Report, Swiss National Advisory Commission on
Biomedical Ethics, November 2012) 8.
42. Androgen Insensitivity Syndrome Support Group
(AISSG), DSD Terminology (29 October 2014) AISSG <http://
www.aissg.org/DEBATES/DSD.HTM>.
43. Morgan Holmes, ‘The Intersex Enchiridion: Naming
and Knowledge’ (2011) 1 Somatechnics 388, 388.
44. Georgiann Davis, ‘“DSD is a Perfectly Fine Term”:
Reasserting Medical Authority Through a Shift in Intersex
Terminology’ (2011) 12 Advances in Medical Sociology 178.
45. Sex Discrimination Act 1984 (Cth).
46. Dean Arcuri, ‘Midsumma Says Bye to the Alphabet
Soup’, SameSame.com.au (online), 19 June 2015 <http://
www.samesame.com.au/news/12433/Midsumma-says-
bye-to-the-alphabet-soup>.
47. Tiffany Jones et al, forthcoming.
48. Council of Europe Commissioner for Human Rights,
‘Human Rights and Intersex People’ (Issue Paper, Council
of Europe Commissioner for Human Rights, 12 May 2015) 9.
49. World Health Organisation, above n 37, 27.

A Referendum or Plebiscite on
Same-Sex Marriage?
George Williams AO It is time that Australia joined other nations in permit-
ting people of the same sex to marry. As it stands, the
Marriage Act 1961 (Cth) discriminates between people
on the basis of their sexuality by restricting marriage to
the ‘union of a man and a woman to the exclusion of all
others, voluntarily entered into for life’.1
The unfairness involved in excluding same-sex cou-
ples from the institution of marriage has led many na-
tions to change their law. In most cases, this has been
by way of a parliament legislating to bring about the
reform. On occasion, court decisions have also played
a key role. For example, gay marriage was recognised
in Canada and the United States after judges held that
denying same sex couples the right to marry breached
constitutional guarantees of equality and freedom from
discrimination on the basis of sexuality.2
In the United States, its Supreme Court delivered
a landmark decision in 2015 in Obergefell v Hodges3
holding that the United States Bill of Rights guarantees
same-sex couples the right to marry. As a result, states
were required to issue marriage licenses to same-sex cou-
ples and to recognise same-sex marriages entered into
in other jurisdictions. The result reflected the reasoning
of other US courts, including a decision in 2012 by the
US Court of Appeals for the 9th Circuit, which found a
Californian ban on same-sex marriage unconstitutional
because it discriminated against same-sex couples con-
trary to the US Bill of Rights.4 The Court said that the
ban ‘serves no purpose, and has no effect, other than to
lessen the status and human dignity of gays and lesbi-
ans in California, and to officially reclassify their rela-
tionships and families as inferior to those of opposite-sex
couples’.5
To date, the Australian Parliament has rejected each
attempt to legislate for same-sex marriage. There is also
no prospect that an Australian court will provide a cata-
lyst for the recognition of same-sex marriage by way of its
interpretation of the Constitution. Indeed, no attempt has
even been made to launch such a case in Australia.This
is because Australia is now the only democratic nation
without a national Bill of Rights. As a result, Australian
George Williams is the Anthony Mason
Professor at UNSW Law and practises
as a barrister at the NSW Bar. He is
a well-known media commentator
on legal issues and he also reviews
science fiction and fantasy books for
The Weekend Australian and Books
and Arts Daily on ABC Radio National.

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