Douglas McDonald-Norman | University of Technology Sydney (original) (raw)
Theses and Projects by Douglas McDonald-Norman
Report prepared for Josephite Community Aid in partial fulfilment of the requirements of a BA/LLB (hons) degree, Oct 2014
This report has been prepared by Josephite Community Aid to answer some commonly-asked questions ... more This report has been prepared by Josephite Community Aid to answer some commonly-asked questions about refugees and asylum seekers in Australia. It explains Australia’s obligations under the Refugees Convention and rebuts several common myths about refugees and asylum seekers. It discusses how refugees come to Australia, and provides information about the circumstances from which they have often escaped. It provides an overview of the complicated, lengthy process by which the Australian Government decides whether an asylum seeker is entitled to protection in Australia, including common difficulties and barriers faced by asylum seekers in proving their claims for protection.
This thesis examines the scope of social and economic rights under the Indian Constitution, with ... more This thesis examines the scope of social and economic rights under the Indian Constitution, with particular regard to developments since the 1970s. The contributions of individual judges and procedural innovations (such as Public Interest Litigation) towards the development of ‘social jurisprudence’ are assessed. This thesis discusses the scope and limits of the 'right to life' (and the 'right to dignity') in Indian law, with particular regard to rights to education and ‘livelihood’ under the Indian Constitution.
Articles and Chapters by Douglas McDonald-Norman
Australian Law Journal, Jul 2018
This article considers the application of PW Young, “Fact finding made easy” (2006) 80 ALJ 454 to... more This article considers the application of PW Young, “Fact finding made easy” (2006) 80 ALJ 454 to the unique challenges faced by decision-makers and advocates in refugee status determination (RSD) in Australia, drawing upon the author’s experiences in refugee law and advocacy. Unlike most other forms of proceedings, RSD offers little scope for corroboration of individual claims for asylum, requiring greater consideration of the inherent plausibility of claims and the manner in which such claims are presented than of whether external sources can verify particular claimed incidents. The utility of Young’s observations in this context is assessed and the need for caution in applying principles of fact-finding drawn from other jurisdictions to the particular context of RSD is emphasised.
Refuge: Canada's Journal on Refugees, Nov 2017
This article examines the use of country information in determining claims for refugee status bas... more This article examines the use of country information in determining claims for refugee status based on sexual orientation or gender identity. Limitations to country information remove diverse individual experiences from the "historical record" and obstruct marginalized individuals' ability to prove their claims for protection. Discrimination and marginalization may be echoed and perpetuated within country information itself, which privileges certain voices over others. MD (same-sex-oriented males: risk) India CG [2014], the United Kingdom's current "country guidance" decision on claims for protection by same-sex oriented men from India, is examined in light of these themes.
Sarasu E. Thomas (ed), Gender, Human Rights and Law, Aug 2016
In its decision in Suresh Kumar Koushal and anor v NAZ Foundation and ors (Koushal), the Supreme ... more In its decision in Suresh Kumar Koushal and anor v NAZ Foundation and ors (Koushal), the Supreme Court of India declared that section 377 of the Indian Penal Code, which criminalises sexual acts ‘against the order of nature,’ does not contravene the Constitution of India. By analysing Koushal in light of contemporary debates in refugee law, this article aims to identify potential alternate directions for Indian constitutional law with regard to the rights of lesbian, gay, bisexual, transgender and queer (“LGBTQ”) people. Scholars and practitioners in international refugee law have developed innovative means by which decision-makers, including judges, may give regard to forms of harm not visible through regard to state records and actions alone, and in doing so to rethink settled notions of what constitutionally-prohibited forms of ‘harm’ may be. These innovations may be drawn upon in future legal advocacy on behalf of LGBTQ people in India.
Australian Journal of Human Rights, Jul 2016
This article analyses and challenges the traditional assumptions upon which decision-makers deter... more This article analyses and challenges the traditional assumptions upon which decision-makers determine the ‘credibility’ of claimed religious conversions in refugee status determination. Refugee law, as practised by decision-makers, ‘constructs’ religious orthodoxy, examining and judging claimants by virtue of their departure from (assumed) standards of knowledge and adherence to particular tenets, and the methodological and practical failings of such ‘constructions’ in practice. The article examines varied responses by courts of appeal to the assessment of credibility by decision-makers at first instance, ranging from ‘deference’ to such assessments to a more sceptical approach, and assesses the value of the latter approach in developing more realistic expectations and assumptions on the part of decision-makers.
Alternative Law Journal, Mar 2016
Drawing upon interviews with politicians, judges, lawyers and academics, this article examines th... more Drawing upon interviews with politicians, judges, lawyers and academics, this article examines the decline of appointments of judges with prior experience in elected office in Australia. This article discusses potential causes of this decline and offers a preliminary analysis of how political experience may benefit judges in the performance of their duties.
Indian Historical Review, Dec 2015
William Broome was the last British judge to remain in judicial service in India, and the only on... more William Broome was the last British judge to remain in judicial service in India, and the only one to have been appointed to a High Court after independence. Despite having come to India as an officer of the Indian Civil Service (ICS), Broome remained in India after independence, marrying an Indian woman, raising his children as Hindus and taking Indian citizenship in 1958. As a judge of the Allahabad High Court, Broome adopted an expansive interpretation of fundamental rights under the Constitution of India and played a pivotal role in the case of Raj Narain v. Indira Gandhi. The article examines Broome’s defiance of British racial attitudes during the Raj, his career as a judge in independent India and his significance in Indian history, including his ties to Jawaharlal Nehru and Indira Gandhi. This article argues that the lives and service of British judges in independent India, including William Broome, exemplify continuity between the colonial justice system and the judiciary of independent India.
Shaun Star (ed.), Australia and India: A Comparative Overview of the Law and Legal Practice, Oct 2015
Since their establishment, both the High Court of Australia and the Supreme Court of India have p... more Since their establishment, both the High Court of Australia and the Supreme Court of India have proven relatively receptive to arguments premised upon international legal material, including the case law of other jurisdictions. This openness to foreign and international experience has included references to the constitutional traditions of other nations in the interpretation of their domestic constitutions. The use of comparative experience in constitutional interpretation (in both Australia and India) has been justified by reference to both the genealogical descent of domestic constitutions (with precedents and principles drawn from nations whose constitutions inspired those of India and Australia) and functional, pragmatic needs (with new constitutional concepts in both nations being informed by successful and unsuccessful experiments in other nations). This chapter explores the history and significance of the use of comparative law in constitutional cases in Australia and India.
Socio-Legal Review, 2014
This paper assesses contemporary dilemmas in the assessment of asylum claims based upon sexual id... more This paper assesses contemporary dilemmas in the assessment of asylum claims based upon sexual identity, including international legal challenges to previously-prevailing notions that lesbian, gay, bisexual, transgender and queer (“LGBTQ”) asylum seekers may escape persecution through ‘discretion’; difficulties faced in credibility assessment; and the need for greater receptivity to diversity of lived sexual identities across cultural barriers. It draws upon the author’s own experiences as researcher for an Australian law firm specialising in refugee law and advocacy.
National Law School of India Review, 2014
Refugee status determination (RSD) is often rendered unusually difficult due to a lack of availab... more Refugee status determination (RSD) is often rendered unusually difficult due to a lack of available documentary evidence to either support or contradict asylum seekers’ claims as to their experiences in their countries of origin (including their reasons for seeking asylum abroad). This field’s reliance upon asylum seekers’ own testimonies with regard to their experiences means that ‘credibility assessment’ is uniquely important.
This article discusses three grounds upon which the credibility of asylum seekers is frequently impugned – internal inconsistencies, applicants’ demeanour and presentation, and apparent implausibilities. In determining how much weight to give to each of these grounds, decision-makers responsible for RSD must give due regard to cultural and linguistic barriers, the psychological consequences of trauma, and the limits of their own experiences. This article draws upon the author’s experiences as Consultant to an Australian law firm with a significant practice in refugee law.
Alternative Law Journal, Dec 2014
This article discusses the methods used in refugee status determination (“RSD”) to determine whet... more This article discusses the methods used in refugee status determination (“RSD”) to determine whether asylum seekers’ accounts of their experiences are ‘plausible’ – that is, whether these experiences could possibly have occurred as described. Unreasonable findings of implausibility frequently result from decision-makers’ failure to question the limits of their own cultural or political frame of reference. Furthermore, decision-makers may rely to an unreasonable extent upon country information as a guide to plausibility in individual cases, without sufficient regard to the general terms in which country information is expressed and the potential unreliability of particular forms of country information (particularly government or official sources).
Conference and Workshop Presentations by Douglas McDonald-Norman
This presentation examines how country information is used to assess the claims of LGBTQ asylum s... more This presentation examines how country information is used to assess the claims of LGBTQ asylum seekers.
Paper presented at Thinking with Evidence: Seeking Certainty, Making Truth, 4th LASSnet Conference, India Habitat Centre, Delhi
This speech presents a paper written for the Fourth LASSNET Conference in 2016. The paper exami... more This speech presents a paper written for the Fourth LASSNET Conference in 2016.
The paper examines the use of ‘country information’ (information about asylum seekers’ countries of origin) in determining claims for refugee status based on asylum seekers’ sexual orientation or gender identity. Discrimination and marginalisation may be echoed and perpetuated within country information itself, which privileges certain voices over others. These restrictions remove diverse individual experiences from the ‘historical record’ and obstruct marginalised individuals' ability to prove their claims for protection. The paper examines MD (same-sex oriented males: risk) India CG [2014], the United Kingdom’s current ‘country guidance’ decision governing the assessment of claims for protection by same-sex oriented men from India, in light of these themes.
This paper examines the protection of social and economic rights under the Constitution of India ... more This paper examines the protection of social and economic rights under the Constitution of India (“the Constitution”). At the Constitution's inception, only civil and political rights were considered to be enforceable through judicial writs. Since the late 1970s, however, the Supreme Court of India (“the Court”) has interpreted the Constitution's guarantee of the 'right to life' (previously viewed solely as a restraint upon state action) as ensuring an enforceable ‘right to human dignity’, encompassing rights to education, healthcare and subsistence.
This thesis analyses the causes of this interpretive shift, including the changing nature of litigation before the Court, the Court’s attempts to reinforce popular perceptions of its legitimacy and the contributions of individual Justices. The relative contributions of each of these factors are evaluated. This paper argues that no individual cause of the Court’s turn towards activism can be viewed in isolation from the Court’s historical constitutional context or simultaneous political developments, with the corresponding decline in the legitimacy, reputation and capacities of other branches of the Indian state judged to be as responsible for the Court’s changing approach as developments within the Court itself.
This paper further examines the scope and limitations of constitutional guarantees forming part of the 'right to human dignity', by reference to the implicit rights to ‘livelihood’ and ‘education’. This thesis identifies restrictions upon these rights and places them within a broader theoretical framework, in order to identify points of continuity and predictability within India's 'dignity jurisprudence'.
Workshop presentation for Josephite Community Aid, Oct 18, 2014
This presentation was organised for the staff and volunteers of Josephite Community Aid in Octobe... more This presentation was organised for the staff and volunteers of Josephite Community Aid in October 2014 as part of the University of Technology, Sydney subject ‘58314 – Social Inquiry Placement’.
This paper discusses the processes by which decision-makers determine whether asylum seekers are ... more This paper discusses the processes by which decision-makers determine whether asylum seekers are telling the truth about their identities, their claims, and why and whether they fear being returned to their countries of origin. In particular, this paper discusses credibility assessment by reference to the rights of asylum seekers, including rights to non-refoulement and due process.
In refugee status assessment, the process of proving the 'truth' of one's sexual orientation (and... more In refugee status assessment, the process of proving the 'truth' of one's sexual orientation (and proving that one will be persecuted on account of this) is often infected by the cultural biases of individual decision-makers. Assessors may, for example, expect self-identifying homosexual or bisexual asylum seekers to act in a particular manner (conforming to Western assumptions about sexual behaviour or identity), or expect an unreasonable degree of detail and consistency with regard to asylum seekers’ experiences in their countries of origin. Alternately, assessors may conflate various forms of sexual identity (such as homosexuality and transgender status, or different forms of sexual expression from other cultures) under the blanket label of 'LGBT' or ‘LGBTQ’ (and assess risks accordingly).
This paper assesses contemporary dilemmas in the assessment of asylum claims based upon sexual identity, including international legal challenges to previously-prevailing notions that lesbian, gay, bisexual, transgender and queer (“LGBTQ”) asylum seekers may escape persecution through ‘discretion’; difficulties faced in credibility assessment; and the need for greater receptivity to diversity of lived sexual identities across cultural barriers. It draws upon the author’s own experiences as researcher for an Australian law firm specialising in refugee law and advocacy.
This paper examines the protection of social and economic rights under the Constitution of India ... more This paper examines the protection of social and economic rights under the Constitution of India (“the Constitution”). At its inception, only civil and political rights were considered to be enforceable under the Constitution; however, since the late 1970s, the Indian Supreme Court (“the Court”) has interpreted the Constitution as ensuring an enforceable ‘right to human dignity’. The amorphous notion of ‘dignity’ has been held to encompass rights to education, healthcare and subsistence, and to impose corresponding duties upon the state to ensure such rights.
This paper analyses the causes of this interpretive shift, including the changing nature of litigation before the Court, the Court’s attempts to reinforce popular perceptions of its legitimacy and the contributions of individual Justices. The relative contributions of each of these factors are evaluated. This paper argues that no individual cause of the Court’s turn towards activism can be viewed in isolation from the Court’s historical constitutional context or simultaneous political developments, with the corresponding decline in the legitimacy, reputation and capacities of other branches of the Indian state judged to be as responsible for the Court’s changing approach as developments within the Court itself.
This paper draws upon the author’s research as a recipient of the 2011 Prime Minister’s Australia Asia Award, including coursework and independent research completed at the National Law School of India University, Bangalore. This paper also draws upon the author’s practical experiences in Indian constitutional litigation while working at the Alternative Law Forum (a public interest law firm in Bangalore), including involvement in cases in the High Court of Karnataka concerning the expansive scope of the constitutional ‘right to life’. In addition, this paper draws upon scholarship by Indian and international academics, as well as decisions of the Supreme Court and High Courts of India.
Academic Blog Posts by Douglas McDonald-Norman
Eureka Street, Sep 13, 2018
In the five years I worked in refugee law, some of the most common and complicated legal challeng... more In the five years I worked in refugee law, some of the most common and complicated legal challenges I encountered were questions regarding the 'truthfulness' or 'credibility' of an asylum seeker's claims. Despite examining the same evidence, different decision-makers can draw different conclusions about whether an asylum seeker is telling the truth.
Report prepared for Josephite Community Aid in partial fulfilment of the requirements of a BA/LLB (hons) degree, Oct 2014
This report has been prepared by Josephite Community Aid to answer some commonly-asked questions ... more This report has been prepared by Josephite Community Aid to answer some commonly-asked questions about refugees and asylum seekers in Australia. It explains Australia’s obligations under the Refugees Convention and rebuts several common myths about refugees and asylum seekers. It discusses how refugees come to Australia, and provides information about the circumstances from which they have often escaped. It provides an overview of the complicated, lengthy process by which the Australian Government decides whether an asylum seeker is entitled to protection in Australia, including common difficulties and barriers faced by asylum seekers in proving their claims for protection.
This thesis examines the scope of social and economic rights under the Indian Constitution, with ... more This thesis examines the scope of social and economic rights under the Indian Constitution, with particular regard to developments since the 1970s. The contributions of individual judges and procedural innovations (such as Public Interest Litigation) towards the development of ‘social jurisprudence’ are assessed. This thesis discusses the scope and limits of the 'right to life' (and the 'right to dignity') in Indian law, with particular regard to rights to education and ‘livelihood’ under the Indian Constitution.
Australian Law Journal, Jul 2018
This article considers the application of PW Young, “Fact finding made easy” (2006) 80 ALJ 454 to... more This article considers the application of PW Young, “Fact finding made easy” (2006) 80 ALJ 454 to the unique challenges faced by decision-makers and advocates in refugee status determination (RSD) in Australia, drawing upon the author’s experiences in refugee law and advocacy. Unlike most other forms of proceedings, RSD offers little scope for corroboration of individual claims for asylum, requiring greater consideration of the inherent plausibility of claims and the manner in which such claims are presented than of whether external sources can verify particular claimed incidents. The utility of Young’s observations in this context is assessed and the need for caution in applying principles of fact-finding drawn from other jurisdictions to the particular context of RSD is emphasised.
Refuge: Canada's Journal on Refugees, Nov 2017
This article examines the use of country information in determining claims for refugee status bas... more This article examines the use of country information in determining claims for refugee status based on sexual orientation or gender identity. Limitations to country information remove diverse individual experiences from the "historical record" and obstruct marginalized individuals' ability to prove their claims for protection. Discrimination and marginalization may be echoed and perpetuated within country information itself, which privileges certain voices over others. MD (same-sex-oriented males: risk) India CG [2014], the United Kingdom's current "country guidance" decision on claims for protection by same-sex oriented men from India, is examined in light of these themes.
Sarasu E. Thomas (ed), Gender, Human Rights and Law, Aug 2016
In its decision in Suresh Kumar Koushal and anor v NAZ Foundation and ors (Koushal), the Supreme ... more In its decision in Suresh Kumar Koushal and anor v NAZ Foundation and ors (Koushal), the Supreme Court of India declared that section 377 of the Indian Penal Code, which criminalises sexual acts ‘against the order of nature,’ does not contravene the Constitution of India. By analysing Koushal in light of contemporary debates in refugee law, this article aims to identify potential alternate directions for Indian constitutional law with regard to the rights of lesbian, gay, bisexual, transgender and queer (“LGBTQ”) people. Scholars and practitioners in international refugee law have developed innovative means by which decision-makers, including judges, may give regard to forms of harm not visible through regard to state records and actions alone, and in doing so to rethink settled notions of what constitutionally-prohibited forms of ‘harm’ may be. These innovations may be drawn upon in future legal advocacy on behalf of LGBTQ people in India.
Australian Journal of Human Rights, Jul 2016
This article analyses and challenges the traditional assumptions upon which decision-makers deter... more This article analyses and challenges the traditional assumptions upon which decision-makers determine the ‘credibility’ of claimed religious conversions in refugee status determination. Refugee law, as practised by decision-makers, ‘constructs’ religious orthodoxy, examining and judging claimants by virtue of their departure from (assumed) standards of knowledge and adherence to particular tenets, and the methodological and practical failings of such ‘constructions’ in practice. The article examines varied responses by courts of appeal to the assessment of credibility by decision-makers at first instance, ranging from ‘deference’ to such assessments to a more sceptical approach, and assesses the value of the latter approach in developing more realistic expectations and assumptions on the part of decision-makers.
Alternative Law Journal, Mar 2016
Drawing upon interviews with politicians, judges, lawyers and academics, this article examines th... more Drawing upon interviews with politicians, judges, lawyers and academics, this article examines the decline of appointments of judges with prior experience in elected office in Australia. This article discusses potential causes of this decline and offers a preliminary analysis of how political experience may benefit judges in the performance of their duties.
Indian Historical Review, Dec 2015
William Broome was the last British judge to remain in judicial service in India, and the only on... more William Broome was the last British judge to remain in judicial service in India, and the only one to have been appointed to a High Court after independence. Despite having come to India as an officer of the Indian Civil Service (ICS), Broome remained in India after independence, marrying an Indian woman, raising his children as Hindus and taking Indian citizenship in 1958. As a judge of the Allahabad High Court, Broome adopted an expansive interpretation of fundamental rights under the Constitution of India and played a pivotal role in the case of Raj Narain v. Indira Gandhi. The article examines Broome’s defiance of British racial attitudes during the Raj, his career as a judge in independent India and his significance in Indian history, including his ties to Jawaharlal Nehru and Indira Gandhi. This article argues that the lives and service of British judges in independent India, including William Broome, exemplify continuity between the colonial justice system and the judiciary of independent India.
Shaun Star (ed.), Australia and India: A Comparative Overview of the Law and Legal Practice, Oct 2015
Since their establishment, both the High Court of Australia and the Supreme Court of India have p... more Since their establishment, both the High Court of Australia and the Supreme Court of India have proven relatively receptive to arguments premised upon international legal material, including the case law of other jurisdictions. This openness to foreign and international experience has included references to the constitutional traditions of other nations in the interpretation of their domestic constitutions. The use of comparative experience in constitutional interpretation (in both Australia and India) has been justified by reference to both the genealogical descent of domestic constitutions (with precedents and principles drawn from nations whose constitutions inspired those of India and Australia) and functional, pragmatic needs (with new constitutional concepts in both nations being informed by successful and unsuccessful experiments in other nations). This chapter explores the history and significance of the use of comparative law in constitutional cases in Australia and India.
Socio-Legal Review, 2014
This paper assesses contemporary dilemmas in the assessment of asylum claims based upon sexual id... more This paper assesses contemporary dilemmas in the assessment of asylum claims based upon sexual identity, including international legal challenges to previously-prevailing notions that lesbian, gay, bisexual, transgender and queer (“LGBTQ”) asylum seekers may escape persecution through ‘discretion’; difficulties faced in credibility assessment; and the need for greater receptivity to diversity of lived sexual identities across cultural barriers. It draws upon the author’s own experiences as researcher for an Australian law firm specialising in refugee law and advocacy.
National Law School of India Review, 2014
Refugee status determination (RSD) is often rendered unusually difficult due to a lack of availab... more Refugee status determination (RSD) is often rendered unusually difficult due to a lack of available documentary evidence to either support or contradict asylum seekers’ claims as to their experiences in their countries of origin (including their reasons for seeking asylum abroad). This field’s reliance upon asylum seekers’ own testimonies with regard to their experiences means that ‘credibility assessment’ is uniquely important.
This article discusses three grounds upon which the credibility of asylum seekers is frequently impugned – internal inconsistencies, applicants’ demeanour and presentation, and apparent implausibilities. In determining how much weight to give to each of these grounds, decision-makers responsible for RSD must give due regard to cultural and linguistic barriers, the psychological consequences of trauma, and the limits of their own experiences. This article draws upon the author’s experiences as Consultant to an Australian law firm with a significant practice in refugee law.
Alternative Law Journal, Dec 2014
This article discusses the methods used in refugee status determination (“RSD”) to determine whet... more This article discusses the methods used in refugee status determination (“RSD”) to determine whether asylum seekers’ accounts of their experiences are ‘plausible’ – that is, whether these experiences could possibly have occurred as described. Unreasonable findings of implausibility frequently result from decision-makers’ failure to question the limits of their own cultural or political frame of reference. Furthermore, decision-makers may rely to an unreasonable extent upon country information as a guide to plausibility in individual cases, without sufficient regard to the general terms in which country information is expressed and the potential unreliability of particular forms of country information (particularly government or official sources).
This presentation examines how country information is used to assess the claims of LGBTQ asylum s... more This presentation examines how country information is used to assess the claims of LGBTQ asylum seekers.
Paper presented at Thinking with Evidence: Seeking Certainty, Making Truth, 4th LASSnet Conference, India Habitat Centre, Delhi
This speech presents a paper written for the Fourth LASSNET Conference in 2016. The paper exami... more This speech presents a paper written for the Fourth LASSNET Conference in 2016.
The paper examines the use of ‘country information’ (information about asylum seekers’ countries of origin) in determining claims for refugee status based on asylum seekers’ sexual orientation or gender identity. Discrimination and marginalisation may be echoed and perpetuated within country information itself, which privileges certain voices over others. These restrictions remove diverse individual experiences from the ‘historical record’ and obstruct marginalised individuals' ability to prove their claims for protection. The paper examines MD (same-sex oriented males: risk) India CG [2014], the United Kingdom’s current ‘country guidance’ decision governing the assessment of claims for protection by same-sex oriented men from India, in light of these themes.
This paper examines the protection of social and economic rights under the Constitution of India ... more This paper examines the protection of social and economic rights under the Constitution of India (“the Constitution”). At the Constitution's inception, only civil and political rights were considered to be enforceable through judicial writs. Since the late 1970s, however, the Supreme Court of India (“the Court”) has interpreted the Constitution's guarantee of the 'right to life' (previously viewed solely as a restraint upon state action) as ensuring an enforceable ‘right to human dignity’, encompassing rights to education, healthcare and subsistence.
This thesis analyses the causes of this interpretive shift, including the changing nature of litigation before the Court, the Court’s attempts to reinforce popular perceptions of its legitimacy and the contributions of individual Justices. The relative contributions of each of these factors are evaluated. This paper argues that no individual cause of the Court’s turn towards activism can be viewed in isolation from the Court’s historical constitutional context or simultaneous political developments, with the corresponding decline in the legitimacy, reputation and capacities of other branches of the Indian state judged to be as responsible for the Court’s changing approach as developments within the Court itself.
This paper further examines the scope and limitations of constitutional guarantees forming part of the 'right to human dignity', by reference to the implicit rights to ‘livelihood’ and ‘education’. This thesis identifies restrictions upon these rights and places them within a broader theoretical framework, in order to identify points of continuity and predictability within India's 'dignity jurisprudence'.
Workshop presentation for Josephite Community Aid, Oct 18, 2014
This presentation was organised for the staff and volunteers of Josephite Community Aid in Octobe... more This presentation was organised for the staff and volunteers of Josephite Community Aid in October 2014 as part of the University of Technology, Sydney subject ‘58314 – Social Inquiry Placement’.
This paper discusses the processes by which decision-makers determine whether asylum seekers are ... more This paper discusses the processes by which decision-makers determine whether asylum seekers are telling the truth about their identities, their claims, and why and whether they fear being returned to their countries of origin. In particular, this paper discusses credibility assessment by reference to the rights of asylum seekers, including rights to non-refoulement and due process.
In refugee status assessment, the process of proving the 'truth' of one's sexual orientation (and... more In refugee status assessment, the process of proving the 'truth' of one's sexual orientation (and proving that one will be persecuted on account of this) is often infected by the cultural biases of individual decision-makers. Assessors may, for example, expect self-identifying homosexual or bisexual asylum seekers to act in a particular manner (conforming to Western assumptions about sexual behaviour or identity), or expect an unreasonable degree of detail and consistency with regard to asylum seekers’ experiences in their countries of origin. Alternately, assessors may conflate various forms of sexual identity (such as homosexuality and transgender status, or different forms of sexual expression from other cultures) under the blanket label of 'LGBT' or ‘LGBTQ’ (and assess risks accordingly).
This paper assesses contemporary dilemmas in the assessment of asylum claims based upon sexual identity, including international legal challenges to previously-prevailing notions that lesbian, gay, bisexual, transgender and queer (“LGBTQ”) asylum seekers may escape persecution through ‘discretion’; difficulties faced in credibility assessment; and the need for greater receptivity to diversity of lived sexual identities across cultural barriers. It draws upon the author’s own experiences as researcher for an Australian law firm specialising in refugee law and advocacy.
This paper examines the protection of social and economic rights under the Constitution of India ... more This paper examines the protection of social and economic rights under the Constitution of India (“the Constitution”). At its inception, only civil and political rights were considered to be enforceable under the Constitution; however, since the late 1970s, the Indian Supreme Court (“the Court”) has interpreted the Constitution as ensuring an enforceable ‘right to human dignity’. The amorphous notion of ‘dignity’ has been held to encompass rights to education, healthcare and subsistence, and to impose corresponding duties upon the state to ensure such rights.
This paper analyses the causes of this interpretive shift, including the changing nature of litigation before the Court, the Court’s attempts to reinforce popular perceptions of its legitimacy and the contributions of individual Justices. The relative contributions of each of these factors are evaluated. This paper argues that no individual cause of the Court’s turn towards activism can be viewed in isolation from the Court’s historical constitutional context or simultaneous political developments, with the corresponding decline in the legitimacy, reputation and capacities of other branches of the Indian state judged to be as responsible for the Court’s changing approach as developments within the Court itself.
This paper draws upon the author’s research as a recipient of the 2011 Prime Minister’s Australia Asia Award, including coursework and independent research completed at the National Law School of India University, Bangalore. This paper also draws upon the author’s practical experiences in Indian constitutional litigation while working at the Alternative Law Forum (a public interest law firm in Bangalore), including involvement in cases in the High Court of Karnataka concerning the expansive scope of the constitutional ‘right to life’. In addition, this paper draws upon scholarship by Indian and international academics, as well as decisions of the Supreme Court and High Courts of India.
Eureka Street, Sep 13, 2018
In the five years I worked in refugee law, some of the most common and complicated legal challeng... more In the five years I worked in refugee law, some of the most common and complicated legal challenges I encountered were questions regarding the 'truthfulness' or 'credibility' of an asylum seeker's claims. Despite examining the same evidence, different decision-makers can draw different conclusions about whether an asylum seeker is telling the truth.
AUSPUBLAW (Australian Public Law Blog), Jun 18, 2018
This post examines recent changes to the United States Department of State country information re... more This post examines recent changes to the United States Department of State country information reports. It summarises their impact and places them in the broader context of public law. Decision-makers may not be able to effectively assess whether individual asylum seekers are at risk of persecution if the information upon which they rely in finding facts is itself compromised and shaped by government policies. The integrity of RSD decision-making requires that the evidence before decision-makers itself contains some element of integrity.
Scroll.in, Dec 26, 2017
Justice William Broome is not a well-known figure today. But he lived an exciting and inspiring l... more Justice William Broome is not a well-known figure today. But he lived an exciting and inspiring life. This article examines his career and significance.
Law and Other Things, Nov 11, 2017
This post examines one particular aspect of Koushal – its use and abuse of evidence of discrimina... more This post examines one particular aspect of Koushal – its use and abuse of evidence of discrimination, marginalisation and hardship suffered as a result of s 377. It argues that that decision’s cavalier approach to evidence (its preference for sources which underplay abuses and its blithe treatment of testimony from victims) reflects broader biases and structural faults within the legal system. This post compares MD in this regard to the United Kingdom Upper Tribunal’s decision in MD (same-sex oriented males: risk) India CG [2014] UKUT 00065 (IAC) (“MD”). MD is the UK’s current ‘country guidance’ decision for the broad, diverse category of ‘same-sex oriented males’. Its approach to available sources on the treatment of LGBTQ people by India’s legal system (and, more broadly, within Indian society) is preferable to that of Koushal but still problematic.
AUSPUBLAW (Australian Public Law Blog), Oct 23, 2017
This post examines the High Court’s decision in SZTAL in terms of Australia’s codification of its... more This post examines the High Court’s decision in SZTAL in terms of Australia’s codification of its international obligations, which departs in certain ways (to the detriment of people seeking protection) from the text of the instruments and from how these instruments have been interpreted in other nations. Like Australia’s extensive use of temporary protection visas, past attempts to create ‘zones of exception’ outside international law, and the 2014 enactment of a ‘statutory’ definition of refugee status (devoid of references to the Refugees Convention), Australia’s complementary protection scheme is an example of ‘Australian exceptionalism’ in terms of its international obligations – or, pejoratively, of Australian parochialism.
Law and Other Things, Oct 21, 2017
This is a book review of Abhinav Chandrachud’s Republic of Rhetoric: Free Speech and the Constitu... more This is a book review of Abhinav Chandrachud’s Republic of Rhetoric: Free Speech and the Constitution of India (2016).
Law and Other Things, Jun 25, 2017
To the best of my knowledge, one High Court judge appointed since Baharul Islam left the Supreme ... more To the best of my knowledge, one High Court judge appointed since Baharul Islam left the Supreme Court in 1983 had previously served in Parliament: Ferdino Rebello, former member of the Goa Legislative Assembly (1977-1980), who served on the Bombay High Court (1996-2010) and as Chief Justice of the Allahabad High Court (2010-2011). Appointments of Indian ‘politicians’ (serving or former) as judges have always been rare, and have all but vanished altogether; Rebello hence represents an interesting exception to an otherwise ironclad rule.
Law and Other Things, Apr 29, 2017
I’ve recently had the opportunity to read two fascinating works – Brij V. Lal’s In the Eye of the... more I’ve recently had the opportunity to read two fascinating works – Brij V. Lal’s In the Eye of the Storm: Jai Ram Reddy and the Politics of Postcolonial Fiji (2010) and Angela Woollacott’s ‘Radical roots in Fiji’ (2017). Both examine (in different ways) the roles of racial segregation and ‘colonial difference’ in British imperial rule in Fiji, and the subsequent impact of resistance to that mode of domination (both within Fiji and, as explored below, in Australia, including an outsized role in South Australian politics). Both offer interesting points of comparison and contrast to similar developments in Indian history and politics.
Law and Other Things, Apr 17, 2017
This is the third of a series of posts on colonial continuity in the Indian legal system. It exam... more This is the third of a series of posts on colonial continuity in the Indian legal system. It examines the life of Basil James of the Allahabad High Court.
Law and Other Things, Feb 18, 2017
George H. Gadbois, jr, passed away in February 2017. This post briefly considers Professor Gadboi... more George H. Gadbois, jr, passed away in February 2017. This post briefly considers Professor Gadbois’s magnum opus, Judges of the Supreme Court of India 1950-1989, and provides a personal account of the character of the man based on my limited dealings with him.
Law and Other Things, Feb 11, 2017
This post examines high refusal rates for Bangladeshi asylum seekers in Australia and suggests th... more This post examines high refusal rates for Bangladeshi asylum seekers in Australia and suggests that decision-makers must, in assessing claims for protection based on political conflict in Bangladesh, consider the extent to which Bangladeshi partisan affiliations are not necessarily ideological.
Law and Other Things, Jan 27, 2017
This post is a review of Jon Wilson's 'India Conquered' (2016).
Law and Other Things, Jan 22, 2017
This post is a brief biographical sketch of Sir Orby Howell Mootham, the second-last British Chie... more This post is a brief biographical sketch of Sir Orby Howell Mootham, the second-last British Chief Justice of an Indian High Court and the third-last British judge to serve in India.
Law and Other Things, Nov 26, 2016
On 26 November 2016, I took part in a panel at the Consulate-General of India in Sydney to celebr... more On 26 November 2016, I took part in a panel at the Consulate-General of India in Sydney to celebrate Constitution Day. This post contains my speech notes.
Law and Other Things, Nov 13, 2016
This post is a brief sequel to my previous post on how the Australian High Court’s decision in Co... more This post is a brief sequel to my previous post on how the Australian High Court’s decision in Cole v Whitfield could bear upon Indian jurisprudence on restraints on interstate trade and commerce. In the Entry Tax case, the Supreme Court cited Cole v Whitfield at length, with the eventual test devised by the majority – prohibiting discriminatory taxes on interstate trade rather than taxes in and of themselves – closely resembling that which resulted from Cole v Whitfield. Nearly 30 years after discredited Australian orthodoxies were killed off in their homeland, their Indian progeny have at last been interred.
Law and Other Things, Nov 2, 2016
The impact of section 377 of the Indian Penal Code is not measurable solely by reference to forma... more The impact of section 377 of the Indian Penal Code is not measurable solely by reference to formal prosecutions resulting in reported decisions. The complex interplay between formal criminalisation, a lack of reported prosecutions and societal stigma is reflected both in the sharp disparity between Naz Foundation and Koushal’s treatment of s 377 and to diverse, unpredictable outcomes for LGBTQ Indians applying for asylum in other nations (on the basis of feared persecution due to their sexual orientation or gender identity). In Australia, LGBTQ Indians have been recognised as refugees (albeit in the circumstances of individual cases) before Naz Foundation; between Naz Foundation and Koushal; and since Koushal. This post briefly considers these decisions in terms of how foreign decision-makers have engaged with the nature and operation of s 377.
Law and Other Things, Sep 11, 2016
In recent decades, a relative ceasefire has prevailed in Australia regarding section 92 after dec... more In recent decades, a relative ceasefire has prevailed in Australia regarding section 92 after decades of contention (albeit with some continued controversy). This owes, in large part, to the High Court of Australia’s unanimous decision in Cole v Whitfield (1988) 165 CLR 360. This post briefly examines the potential salience of the High Court’s decision in Cole v Whitfield to the interpretation of Part XIII of the Indian Constitution in terms of methodology and substance.
AUSPUBLAW (Australian Public Law Blog), Jul 7, 2016
This post considers the history and use of country guidance decisions in the UK, and examines the... more This post considers the history and use of country guidance decisions in the UK, and examines the potential benefits and drawbacks of their use in Australia. In particular, I consider the the value of consistency and certainty in decision-making promoted by country guidance decisions against the fact that these decisions may substantially increase the difficulty of proving that individual asylum seekers are genuine refugees.
Law and Other Things, May 18, 2016
The Supreme Court of Papua New Guinea (“SCPNG”)’s recent decision in Namah v Pato [2016] PGSC 13;... more The Supreme Court of Papua New Guinea (“SCPNG”)’s recent decision in Namah v Pato [2016] PGSC 13; SC1497 (“Namah”) found the detention of asylum seekers (transferred from Australia to Papua New Guinea [“PNG”]) in a ‘regional processing centre’ on Manus Island to be ‘unconstitutional and illegal’. In its decision, the SCPNG highlighted the gulf between India and PNG’s approach to limitations on constitutional amendments, and provided an intriguing contrast to Kesavananda Bharati and successive Indian jurisprudence. This post is a brief overview of this aspect of the decision, including by reference to comparative developments in India.
Law and Other Things, Apr 21, 2016
The Immigration and Asylum Chamber of the United Kingdom Upper Tribunal (“UKUT”) can issue ‘count... more The Immigration and Asylum Chamber of the United Kingdom Upper Tribunal (“UKUT”) can issue ‘country guidance’ decisions, which guide (and, in most circumstances, bind) government decision-makers in assessing conditions in particular countries in determining whether asylum seekers are entitled to protection in the UK. The UKUT’s decision in GJ and Others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC) (“GJ and Others”) provides country guidance on ‘the current categories of persons at real risk of persecution or serious harm on return to Sri Lanka’. This post examines the conclusions reached in GJ and Others and the decision’s salience for India.
This casenote examines the Full Federal Court's decision in BZD17 v MIBP [2018] FCAFC 94.
Australian Law Journal, Feb 2018
This casenote summarises and analyses the Full Federal Court's decision in DAO16 v MIBP [2018] FC... more This casenote summarises and analyses the Full Federal Court's decision in DAO16 v MIBP [2018] FCAFC 2.
Australian Law Journal, Sep 2017
This casenote examines the High Court of Australia's decision in Plaintiff S195/2016 v Minister f... more This casenote examines the High Court of Australia's decision in Plaintiff S195/2016 v Minister for Immigration and Border Protection [2017] HCA 31.
Australian Law Journal, Jul 2017
This casenote examines the Singapore Court of Appeal's decision in Agam v BNP Paribas SA [2017] S... more This casenote examines the Singapore Court of Appeal's decision in Agam v BNP Paribas SA [2017] SGCA(I) 01.
Australian Law Journal, Nov 2016
In Mora, the Migration and Refugee Division (MRD) of the Administrative Appeals Tribunal (AAT) co... more In Mora, the Migration and Refugee Division (MRD) of the Administrative Appeals Tribunal (AAT) considered the question of when the AAT can re-open and reconsider previous decisions said to be infected by jurisdictional error. This casenote considers the decision and its significance.
Australian Journal of Human Rights, Nov 2017
This piece is a review of Andrea Durbach, Brendan Edgeworth and Vicki Sentas (eds)'s book "Law an... more This piece is a review of Andrea Durbach, Brendan Edgeworth and Vicki Sentas (eds)'s book "Law and Poverty in Australia: 40 Years After the Poverty Commission" (Federation Press, 2017).
Australian Journal of Human Rights, Nov 2016
This book review examines Gautam Bhatia's Offend, Shock, or Disturb: Free Speech under the Indian... more This book review examines Gautam Bhatia's Offend, Shock, or Disturb: Free Speech under the Indian Constitution (Oxford University Press, 2016).
The Full Bench (2011), issue 3, pp.19-21, 2011
If animals are to be granted protection against cruelty, then to deny such righ... more If animals are to be granted protection against cruelty, then to deny such rights to a hypothetical computer with the capacity to empathise with human concerns, to interpret documents calling for its termination and to respond in light of its sophisticated understanding of human culture seems an unusual act of ‘organic chauvinism’, granting legal force to an unclear division of man and machine.
The Full Bench (2011), issue 2, pp.19-20, 2011
On 9 July 2011, the people of South Sudan won their long-sought independence - the fruit of nearl... more On 9 July 2011, the people of South Sudan won their long-sought independence - the fruit of nearly 40 years of civil war (1955 - 1972, 1983 - 2005) and six years of protracted negotiations. The newborn nation’s draft Constitution is a bold, ambitious document, as devoted to codifying the aspirations of the South Sudanese people as it is with establishing the structure of their government. This article will discuss two notable features of the Constitution: its guarantees of fundamental rights and its protection of an independent judiciary and public service, both potential checks upon dictatorship, corruption or arbitrary executive power.
The Full Bench (2011), issue 2, pp.22-24, 2011
In this paper, the development of Indian constitutional law from a narrow interpretation of const... more In this paper, the development of Indian constitutional law from a narrow interpretation of constitutional guarantees (equivalent to that contemplated in Australia today) towards a broader reading of the requirements of substantive freedom is assessed for its relevance to Australian law.
The Full Bench (2011), issue 1, pp.26-28, 2011
This article examines the reasoning of the Court in M61 in order to clarify the decision’s impact... more This article examines the reasoning of the Court in M61 in order to clarify the decision’s impact on Australia’s treatment of asylum seekers, and to indicate future potential developments arising from the decision.