Elders' legal bid to save homes, culture coming to end
Their Country on the outer islands of Zenadth Kes (Torres Strait), less than 10 kilometres off Papua New Guinea, is under siege from the impacts of climate change.
The two men fear the loss of their islands, their culture and their way of life, forcing their families and communities to become Australia's first climate refugees.
The Uncles have taken the federal government to court in the Australian Climate Case, seeking orders which would require the Commonwealth to undertake steps to prevent further harm to their communities.
This would include cutting greenhouse gas emissions in line with the best available science.
The Commonwealth has argued it is not legally required to consider the best available science or the impacts of climate change when setting emissions reduction targets.
On Tuesday, the Federal Court is due to make a decision in the case and the men hold hope that their fight might safeguard the future of their people.
Mr Pabai and Mr Kabai launched the action against the federal government in 2021.
They are arguing that the Commonwealth owes a duty of care to Torres Strait Islanders to take reasonable steps to protect them from harm.
During on-country hearings in 2023, witnesses described how devastating their loss of culture due to climate change had been.
"We don't want to be climate refugees," Pabai Pabai, who has spent his life on the low-lying island of Boigu, tells AAP.
Paul Kabai remembers a time when his family would hunt, fish and eat produce from gardens grown by the community.
But that has all changed, he says.
The beaches on his island - Saibai - have receded, turning to mud and mangroves.
Its river system is inundated with saltwater and, alarmingly, even the island's cemetery has been impacted by flooding.
"Even our cultural sites are being destroyed by rising seas," he laments.
"We're both very worried about what we are losing, our hunting grounds are being destroyed by strong currents.
"Where can we show our culture to the younger generation?" he asks.
"In this way we are losing our culture, everything that belongs to our ancestors."
Drawing closer to a decision in the case is a significant milestone for Mr Pabai and Mr Kabai.
It has been an emotional journey for them, their communities and supporters but as the Uncles approach the end of this battle, they hold close the reasons they began such a long fight.
Pointing to the example of fellow Torres Strait Islander Eddie Mabo whose lifetime of campaigning resulted in a landmark High Court ruling, recognising the rights of First Nations people to their lands, countering the idea of 'terra nullius' asserted by the British at colonisation, Mr Pabai says the battle has been waged for his ancestors.
"I'm standing firm on his shoulders," he says.
"If we come to winning this case, this is a victory for my family and communities on Boigu and all the community around the country and around the world."
As much as this is about the people who came before and protecting what they've left, Mr Pabai says his two-year-old son and the generations to come, in the Torres Strait and further afield, are front of mind.
"My main focus is on the new generation," he says.
"This is why I'm doing it - for the love of my son, for all the people in my community in the Torres Strait, for bushfire and flood survivors, for the farmers and the children and grandchildren."
No matter the legal outcome, Mr Kabai says he believes the action he and Mr Pabai have taken will make a difference.
"We will be very proud, even if we win or if we lose," he says.
"The government is listening now, they know what is happening and they must do something about climate change."
Uncle Paul Kabai and Uncle Pabai Pabai are afraid for the future of their ancestral homelands.
Their Country on the outer islands of Zenadth Kes (Torres Strait), less than 10 kilometres off Papua New Guinea, is under siege from the impacts of climate change.
The two men fear the loss of their islands, their culture and their way of life, forcing their families and communities to become Australia's first climate refugees.
The Uncles have taken the federal government to court in the Australian Climate Case, seeking orders which would require the Commonwealth to undertake steps to prevent further harm to their communities.
This would include cutting greenhouse gas emissions in line with the best available science.
The Commonwealth has argued it is not legally required to consider the best available science or the impacts of climate change when setting emissions reduction targets.
On Tuesday, the Federal Court is due to make a decision in the case and the men hold hope that their fight might safeguard the future of their people.
Mr Pabai and Mr Kabai launched the action against the federal government in 2021.
They are arguing that the Commonwealth owes a duty of care to Torres Strait Islanders to take reasonable steps to protect them from harm.
During on-country hearings in 2023, witnesses described how devastating their loss of culture due to climate change had been.
"We don't want to be climate refugees," Pabai Pabai, who has spent his life on the low-lying island of Boigu, tells AAP.
Paul Kabai remembers a time when his family would hunt, fish and eat produce from gardens grown by the community.
But that has all changed, he says.
The beaches on his island - Saibai - have receded, turning to mud and mangroves.
Its river system is inundated with saltwater and, alarmingly, even the island's cemetery has been impacted by flooding.
"Even our cultural sites are being destroyed by rising seas," he laments.
"We're both very worried about what we are losing, our hunting grounds are being destroyed by strong currents.
"Where can we show our culture to the younger generation?" he asks.
"In this way we are losing our culture, everything that belongs to our ancestors."
Drawing closer to a decision in the case is a significant milestone for Mr Pabai and Mr Kabai.
It has been an emotional journey for them, their communities and supporters but as the Uncles approach the end of this battle, they hold close the reasons they began such a long fight.
Pointing to the example of fellow Torres Strait Islander Eddie Mabo whose lifetime of campaigning resulted in a landmark High Court ruling, recognising the rights of First Nations people to their lands, countering the idea of 'terra nullius' asserted by the British at colonisation, Mr Pabai says the battle has been waged for his ancestors.
"I'm standing firm on his shoulders," he says.
"If we come to winning this case, this is a victory for my family and communities on Boigu and all the community around the country and around the world."
As much as this is about the people who came before and protecting what they've left, Mr Pabai says his two-year-old son and the generations to come, in the Torres Strait and further afield, are front of mind.
"My main focus is on the new generation," he says.
"This is why I'm doing it - for the love of my son, for all the people in my community in the Torres Strait, for bushfire and flood survivors, for the farmers and the children and grandchildren."
No matter the legal outcome, Mr Kabai says he believes the action he and Mr Pabai have taken will make a difference.
"We will be very proud, even if we win or if we lose," he says.
"The government is listening now, they know what is happening and they must do something about climate change."
Uncle Paul Kabai and Uncle Pabai Pabai are afraid for the future of their ancestral homelands.
Their Country on the outer islands of Zenadth Kes (Torres Strait), less than 10 kilometres off Papua New Guinea, is under siege from the impacts of climate change.
The two men fear the loss of their islands, their culture and their way of life, forcing their families and communities to become Australia's first climate refugees.
The Uncles have taken the federal government to court in the Australian Climate Case, seeking orders which would require the Commonwealth to undertake steps to prevent further harm to their communities.
This would include cutting greenhouse gas emissions in line with the best available science.
The Commonwealth has argued it is not legally required to consider the best available science or the impacts of climate change when setting emissions reduction targets.
On Tuesday, the Federal Court is due to make a decision in the case and the men hold hope that their fight might safeguard the future of their people.
Mr Pabai and Mr Kabai launched the action against the federal government in 2021.
They are arguing that the Commonwealth owes a duty of care to Torres Strait Islanders to take reasonable steps to protect them from harm.
During on-country hearings in 2023, witnesses described how devastating their loss of culture due to climate change had been.
"We don't want to be climate refugees," Pabai Pabai, who has spent his life on the low-lying island of Boigu, tells AAP.
Paul Kabai remembers a time when his family would hunt, fish and eat produce from gardens grown by the community.
But that has all changed, he says.
The beaches on his island - Saibai - have receded, turning to mud and mangroves.
Its river system is inundated with saltwater and, alarmingly, even the island's cemetery has been impacted by flooding.
"Even our cultural sites are being destroyed by rising seas," he laments.
"We're both very worried about what we are losing, our hunting grounds are being destroyed by strong currents.
"Where can we show our culture to the younger generation?" he asks.
"In this way we are losing our culture, everything that belongs to our ancestors."
Drawing closer to a decision in the case is a significant milestone for Mr Pabai and Mr Kabai.
It has been an emotional journey for them, their communities and supporters but as the Uncles approach the end of this battle, they hold close the reasons they began such a long fight.
Pointing to the example of fellow Torres Strait Islander Eddie Mabo whose lifetime of campaigning resulted in a landmark High Court ruling, recognising the rights of First Nations people to their lands, countering the idea of 'terra nullius' asserted by the British at colonisation, Mr Pabai says the battle has been waged for his ancestors.
"I'm standing firm on his shoulders," he says.
"If we come to winning this case, this is a victory for my family and communities on Boigu and all the community around the country and around the world."
As much as this is about the people who came before and protecting what they've left, Mr Pabai says his two-year-old son and the generations to come, in the Torres Strait and further afield, are front of mind.
"My main focus is on the new generation," he says.
"This is why I'm doing it - for the love of my son, for all the people in my community in the Torres Strait, for bushfire and flood survivors, for the farmers and the children and grandchildren."
No matter the legal outcome, Mr Kabai says he believes the action he and Mr Pabai have taken will make a difference.
"We will be very proud, even if we win or if we lose," he says.
"The government is listening now, they know what is happening and they must do something about climate change."
Uncle Paul Kabai and Uncle Pabai Pabai are afraid for the future of their ancestral homelands.
Their Country on the outer islands of Zenadth Kes (Torres Strait), less than 10 kilometres off Papua New Guinea, is under siege from the impacts of climate change.
The two men fear the loss of their islands, their culture and their way of life, forcing their families and communities to become Australia's first climate refugees.
The Uncles have taken the federal government to court in the Australian Climate Case, seeking orders which would require the Commonwealth to undertake steps to prevent further harm to their communities.
This would include cutting greenhouse gas emissions in line with the best available science.
The Commonwealth has argued it is not legally required to consider the best available science or the impacts of climate change when setting emissions reduction targets.
On Tuesday, the Federal Court is due to make a decision in the case and the men hold hope that their fight might safeguard the future of their people.
Mr Pabai and Mr Kabai launched the action against the federal government in 2021.
They are arguing that the Commonwealth owes a duty of care to Torres Strait Islanders to take reasonable steps to protect them from harm.
During on-country hearings in 2023, witnesses described how devastating their loss of culture due to climate change had been.
"We don't want to be climate refugees," Pabai Pabai, who has spent his life on the low-lying island of Boigu, tells AAP.
Paul Kabai remembers a time when his family would hunt, fish and eat produce from gardens grown by the community.
But that has all changed, he says.
The beaches on his island - Saibai - have receded, turning to mud and mangroves.
Its river system is inundated with saltwater and, alarmingly, even the island's cemetery has been impacted by flooding.
"Even our cultural sites are being destroyed by rising seas," he laments.
"We're both very worried about what we are losing, our hunting grounds are being destroyed by strong currents.
"Where can we show our culture to the younger generation?" he asks.
"In this way we are losing our culture, everything that belongs to our ancestors."
Drawing closer to a decision in the case is a significant milestone for Mr Pabai and Mr Kabai.
It has been an emotional journey for them, their communities and supporters but as the Uncles approach the end of this battle, they hold close the reasons they began such a long fight.
Pointing to the example of fellow Torres Strait Islander Eddie Mabo whose lifetime of campaigning resulted in a landmark High Court ruling, recognising the rights of First Nations people to their lands, countering the idea of 'terra nullius' asserted by the British at colonisation, Mr Pabai says the battle has been waged for his ancestors.
"I'm standing firm on his shoulders," he says.
"If we come to winning this case, this is a victory for my family and communities on Boigu and all the community around the country and around the world."
As much as this is about the people who came before and protecting what they've left, Mr Pabai says his two-year-old son and the generations to come, in the Torres Strait and further afield, are front of mind.
"My main focus is on the new generation," he says.
"This is why I'm doing it - for the love of my son, for all the people in my community in the Torres Strait, for bushfire and flood survivors, for the farmers and the children and grandchildren."
No matter the legal outcome, Mr Kabai says he believes the action he and Mr Pabai have taken will make a difference.
"We will be very proud, even if we win or if we lose," he says.
"The government is listening now, they know what is happening and they must do something about climate change."
Hashtags
Try Our AI Features
Explore what Daily8 AI can do for you:
Comments
No comments yet...
Related Articles
The Advertiser
4 hours ago
- The Advertiser
Envoy's recommendations have put the Prime Minister in a bit of a bind
An old adage says a government should never set up an inquiry unless it has a very good idea as to what its findings might be, lest it comes back to bite. That was certainly true of last week's report by the special envoy to combat anti-Semitism, Jillian Segal. It seems Prime Minister Anthony Albanese felt he had to be seen to be doing something about the appalling violence inflicted upon members of the Jewish community. Segal's recommendations, however, will put him in a bit of a bind. He says the government is considering the recommendations. But whatever he does will be seen as too much by some and too little by others. The trouble for Albanese is that there are several cogent objections to some of Segal's recommendations, and there is the possibility that enacting some of them could be contrary to the religion clause of the Constitution. Segal recommended that the government withhold financial support from universities, programs or people that facilitate, enable or fail to act against anti-Semitism and that Holocaust and anti-Semitism education be embedded in the school curriculum. The trouble with this is that it favours one religion over another. Section 116 of the Constitution says: "The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion..." Early constitutional scholars John Quick and Robert Garran (Australia's fist Attorney-General) wrote that "establishment" means "the erection and recognition of a State Church, or the concession of special favours, titles, and advantages to one church which are denied to others". The High Court held in the 1981 DOGS (Defence of Government Schools) case that state aid to religious schools did not offend Section 116 because all religious schools were equally entitled to funding based on criteria that applied to all. And that really is the answer here: have tough laws against all violence and incitement to violence and hatred. It might be that the appointment of envoys to combat anti-Semitism and Islamophobia (which the government has done) might run foul of Section 116 on Quick and Garran's special-favours test. Perhaps a more important point is that even if the constitutional challenge is a weak one, the mere fact that someone might run it in the High Court would unnecessarily stir up religious controversy. Another of Segal's recommendations is that all public institutions be required to use the International Holocaust Remembrance Association's definition of anti-Semitism. The text of the definition is not the problem; rather, it is the fact that seven of the 11 illustrative examples referred to criticism of Israel and therefore suggest that any criticism of Israel can amount to anti-Semitism. This is dangerous territory. Criticising governments is a fundamental part of freedom of speech, freedom of association, and assembly. Attacking the behaviour of the Israeli government and Prime Minister Benjamin Netanyahu over its violence in Gaza should not be seen as anti-Semitic. Again, if Albanese tries to legislate for this, he might run foul of the implied constitutional protection for political communication. The High Court has held that representative democracy implies an informed electorate, which in turn requires freedom of political communication. Any curtailing of that freedom has to be justified as serving a legitimate purpose that is compatible with representative and responsible government. Creating offences based on the Holocaust definition might not pass muster. Perhaps the best use of the constitutional arguments would be for the government to use them as a reason for not acting on these over-reaching and specific recommendations, but rather to work on a campaign promoting general religious and racial tolerance; a campaign against religious hatred; and action to prevent and punish violence during all protest action. Segal also recommended that public funding be withheld from universities, programs or people that facilitate, enable or fail to act against anti-Semitism. MORE CRISPIN HULL: Imposing collective punishment for an omission to act has its drawbacks. As we have seen in the US, when governments threaten the funding of institutions that do not behave the way the government commands, those institutions often buckle, and academic freedom and freedom of speech suffer. Freedom of speech, assembly and association are hallmarks of democracy and are keys to combating authoritarianism. One sort of authoritarianism is theocracy. Iran is a good example. It would be better to take religion out of the equation altogether. Once you have freedom of speech, assembly and association (with the usual attendant lawful limits), there is no need for a separate, additional freedom - that of religion. If people can preach to assembled associations of people whatever they might regard as "truth" and other people can freely preach a different "truth", what more do they need? Shutting down protests and free speech is not the way to stop violence. People should be protected against violence and the perpetrators punished, regardless of the motive - religion, gang enforcement, greed, or politics. Throughout history, protest has been an important element in the pursuit of peace and the exposure of violence, corruption and colonialism - Vietnam moratoriums and Gandhi come to mind. Albanese now faces a difficult task of deciding what to do with these recommendations. He should be mindful that freedom of speech, assembly and association are more important than a separate freedom of religion because the former three already guarantee the last. An old adage says a government should never set up an inquiry unless it has a very good idea as to what its findings might be, lest it comes back to bite. That was certainly true of last week's report by the special envoy to combat anti-Semitism, Jillian Segal. It seems Prime Minister Anthony Albanese felt he had to be seen to be doing something about the appalling violence inflicted upon members of the Jewish community. Segal's recommendations, however, will put him in a bit of a bind. He says the government is considering the recommendations. But whatever he does will be seen as too much by some and too little by others. The trouble for Albanese is that there are several cogent objections to some of Segal's recommendations, and there is the possibility that enacting some of them could be contrary to the religion clause of the Constitution. Segal recommended that the government withhold financial support from universities, programs or people that facilitate, enable or fail to act against anti-Semitism and that Holocaust and anti-Semitism education be embedded in the school curriculum. The trouble with this is that it favours one religion over another. Section 116 of the Constitution says: "The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion..." Early constitutional scholars John Quick and Robert Garran (Australia's fist Attorney-General) wrote that "establishment" means "the erection and recognition of a State Church, or the concession of special favours, titles, and advantages to one church which are denied to others". The High Court held in the 1981 DOGS (Defence of Government Schools) case that state aid to religious schools did not offend Section 116 because all religious schools were equally entitled to funding based on criteria that applied to all. And that really is the answer here: have tough laws against all violence and incitement to violence and hatred. It might be that the appointment of envoys to combat anti-Semitism and Islamophobia (which the government has done) might run foul of Section 116 on Quick and Garran's special-favours test. Perhaps a more important point is that even if the constitutional challenge is a weak one, the mere fact that someone might run it in the High Court would unnecessarily stir up religious controversy. Another of Segal's recommendations is that all public institutions be required to use the International Holocaust Remembrance Association's definition of anti-Semitism. The text of the definition is not the problem; rather, it is the fact that seven of the 11 illustrative examples referred to criticism of Israel and therefore suggest that any criticism of Israel can amount to anti-Semitism. This is dangerous territory. Criticising governments is a fundamental part of freedom of speech, freedom of association, and assembly. Attacking the behaviour of the Israeli government and Prime Minister Benjamin Netanyahu over its violence in Gaza should not be seen as anti-Semitic. Again, if Albanese tries to legislate for this, he might run foul of the implied constitutional protection for political communication. The High Court has held that representative democracy implies an informed electorate, which in turn requires freedom of political communication. Any curtailing of that freedom has to be justified as serving a legitimate purpose that is compatible with representative and responsible government. Creating offences based on the Holocaust definition might not pass muster. Perhaps the best use of the constitutional arguments would be for the government to use them as a reason for not acting on these over-reaching and specific recommendations, but rather to work on a campaign promoting general religious and racial tolerance; a campaign against religious hatred; and action to prevent and punish violence during all protest action. Segal also recommended that public funding be withheld from universities, programs or people that facilitate, enable or fail to act against anti-Semitism. MORE CRISPIN HULL: Imposing collective punishment for an omission to act has its drawbacks. As we have seen in the US, when governments threaten the funding of institutions that do not behave the way the government commands, those institutions often buckle, and academic freedom and freedom of speech suffer. Freedom of speech, assembly and association are hallmarks of democracy and are keys to combating authoritarianism. One sort of authoritarianism is theocracy. Iran is a good example. It would be better to take religion out of the equation altogether. Once you have freedom of speech, assembly and association (with the usual attendant lawful limits), there is no need for a separate, additional freedom - that of religion. If people can preach to assembled associations of people whatever they might regard as "truth" and other people can freely preach a different "truth", what more do they need? Shutting down protests and free speech is not the way to stop violence. People should be protected against violence and the perpetrators punished, regardless of the motive - religion, gang enforcement, greed, or politics. Throughout history, protest has been an important element in the pursuit of peace and the exposure of violence, corruption and colonialism - Vietnam moratoriums and Gandhi come to mind. Albanese now faces a difficult task of deciding what to do with these recommendations. He should be mindful that freedom of speech, assembly and association are more important than a separate freedom of religion because the former three already guarantee the last. An old adage says a government should never set up an inquiry unless it has a very good idea as to what its findings might be, lest it comes back to bite. That was certainly true of last week's report by the special envoy to combat anti-Semitism, Jillian Segal. It seems Prime Minister Anthony Albanese felt he had to be seen to be doing something about the appalling violence inflicted upon members of the Jewish community. Segal's recommendations, however, will put him in a bit of a bind. He says the government is considering the recommendations. But whatever he does will be seen as too much by some and too little by others. The trouble for Albanese is that there are several cogent objections to some of Segal's recommendations, and there is the possibility that enacting some of them could be contrary to the religion clause of the Constitution. Segal recommended that the government withhold financial support from universities, programs or people that facilitate, enable or fail to act against anti-Semitism and that Holocaust and anti-Semitism education be embedded in the school curriculum. The trouble with this is that it favours one religion over another. Section 116 of the Constitution says: "The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion..." Early constitutional scholars John Quick and Robert Garran (Australia's fist Attorney-General) wrote that "establishment" means "the erection and recognition of a State Church, or the concession of special favours, titles, and advantages to one church which are denied to others". The High Court held in the 1981 DOGS (Defence of Government Schools) case that state aid to religious schools did not offend Section 116 because all religious schools were equally entitled to funding based on criteria that applied to all. And that really is the answer here: have tough laws against all violence and incitement to violence and hatred. It might be that the appointment of envoys to combat anti-Semitism and Islamophobia (which the government has done) might run foul of Section 116 on Quick and Garran's special-favours test. Perhaps a more important point is that even if the constitutional challenge is a weak one, the mere fact that someone might run it in the High Court would unnecessarily stir up religious controversy. Another of Segal's recommendations is that all public institutions be required to use the International Holocaust Remembrance Association's definition of anti-Semitism. The text of the definition is not the problem; rather, it is the fact that seven of the 11 illustrative examples referred to criticism of Israel and therefore suggest that any criticism of Israel can amount to anti-Semitism. This is dangerous territory. Criticising governments is a fundamental part of freedom of speech, freedom of association, and assembly. Attacking the behaviour of the Israeli government and Prime Minister Benjamin Netanyahu over its violence in Gaza should not be seen as anti-Semitic. Again, if Albanese tries to legislate for this, he might run foul of the implied constitutional protection for political communication. The High Court has held that representative democracy implies an informed electorate, which in turn requires freedom of political communication. Any curtailing of that freedom has to be justified as serving a legitimate purpose that is compatible with representative and responsible government. Creating offences based on the Holocaust definition might not pass muster. Perhaps the best use of the constitutional arguments would be for the government to use them as a reason for not acting on these over-reaching and specific recommendations, but rather to work on a campaign promoting general religious and racial tolerance; a campaign against religious hatred; and action to prevent and punish violence during all protest action. Segal also recommended that public funding be withheld from universities, programs or people that facilitate, enable or fail to act against anti-Semitism. MORE CRISPIN HULL: Imposing collective punishment for an omission to act has its drawbacks. As we have seen in the US, when governments threaten the funding of institutions that do not behave the way the government commands, those institutions often buckle, and academic freedom and freedom of speech suffer. Freedom of speech, assembly and association are hallmarks of democracy and are keys to combating authoritarianism. One sort of authoritarianism is theocracy. Iran is a good example. It would be better to take religion out of the equation altogether. Once you have freedom of speech, assembly and association (with the usual attendant lawful limits), there is no need for a separate, additional freedom - that of religion. If people can preach to assembled associations of people whatever they might regard as "truth" and other people can freely preach a different "truth", what more do they need? Shutting down protests and free speech is not the way to stop violence. People should be protected against violence and the perpetrators punished, regardless of the motive - religion, gang enforcement, greed, or politics. Throughout history, protest has been an important element in the pursuit of peace and the exposure of violence, corruption and colonialism - Vietnam moratoriums and Gandhi come to mind. Albanese now faces a difficult task of deciding what to do with these recommendations. He should be mindful that freedom of speech, assembly and association are more important than a separate freedom of religion because the former three already guarantee the last. An old adage says a government should never set up an inquiry unless it has a very good idea as to what its findings might be, lest it comes back to bite. That was certainly true of last week's report by the special envoy to combat anti-Semitism, Jillian Segal. It seems Prime Minister Anthony Albanese felt he had to be seen to be doing something about the appalling violence inflicted upon members of the Jewish community. Segal's recommendations, however, will put him in a bit of a bind. He says the government is considering the recommendations. But whatever he does will be seen as too much by some and too little by others. The trouble for Albanese is that there are several cogent objections to some of Segal's recommendations, and there is the possibility that enacting some of them could be contrary to the religion clause of the Constitution. Segal recommended that the government withhold financial support from universities, programs or people that facilitate, enable or fail to act against anti-Semitism and that Holocaust and anti-Semitism education be embedded in the school curriculum. The trouble with this is that it favours one religion over another. Section 116 of the Constitution says: "The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion..." Early constitutional scholars John Quick and Robert Garran (Australia's fist Attorney-General) wrote that "establishment" means "the erection and recognition of a State Church, or the concession of special favours, titles, and advantages to one church which are denied to others". The High Court held in the 1981 DOGS (Defence of Government Schools) case that state aid to religious schools did not offend Section 116 because all religious schools were equally entitled to funding based on criteria that applied to all. And that really is the answer here: have tough laws against all violence and incitement to violence and hatred. It might be that the appointment of envoys to combat anti-Semitism and Islamophobia (which the government has done) might run foul of Section 116 on Quick and Garran's special-favours test. Perhaps a more important point is that even if the constitutional challenge is a weak one, the mere fact that someone might run it in the High Court would unnecessarily stir up religious controversy. Another of Segal's recommendations is that all public institutions be required to use the International Holocaust Remembrance Association's definition of anti-Semitism. The text of the definition is not the problem; rather, it is the fact that seven of the 11 illustrative examples referred to criticism of Israel and therefore suggest that any criticism of Israel can amount to anti-Semitism. This is dangerous territory. Criticising governments is a fundamental part of freedom of speech, freedom of association, and assembly. Attacking the behaviour of the Israeli government and Prime Minister Benjamin Netanyahu over its violence in Gaza should not be seen as anti-Semitic. Again, if Albanese tries to legislate for this, he might run foul of the implied constitutional protection for political communication. The High Court has held that representative democracy implies an informed electorate, which in turn requires freedom of political communication. Any curtailing of that freedom has to be justified as serving a legitimate purpose that is compatible with representative and responsible government. Creating offences based on the Holocaust definition might not pass muster. Perhaps the best use of the constitutional arguments would be for the government to use them as a reason for not acting on these over-reaching and specific recommendations, but rather to work on a campaign promoting general religious and racial tolerance; a campaign against religious hatred; and action to prevent and punish violence during all protest action. Segal also recommended that public funding be withheld from universities, programs or people that facilitate, enable or fail to act against anti-Semitism. MORE CRISPIN HULL: Imposing collective punishment for an omission to act has its drawbacks. As we have seen in the US, when governments threaten the funding of institutions that do not behave the way the government commands, those institutions often buckle, and academic freedom and freedom of speech suffer. Freedom of speech, assembly and association are hallmarks of democracy and are keys to combating authoritarianism. One sort of authoritarianism is theocracy. Iran is a good example. It would be better to take religion out of the equation altogether. Once you have freedom of speech, assembly and association (with the usual attendant lawful limits), there is no need for a separate, additional freedom - that of religion. If people can preach to assembled associations of people whatever they might regard as "truth" and other people can freely preach a different "truth", what more do they need? Shutting down protests and free speech is not the way to stop violence. People should be protected against violence and the perpetrators punished, regardless of the motive - religion, gang enforcement, greed, or politics. Throughout history, protest has been an important element in the pursuit of peace and the exposure of violence, corruption and colonialism - Vietnam moratoriums and Gandhi come to mind. Albanese now faces a difficult task of deciding what to do with these recommendations. He should be mindful that freedom of speech, assembly and association are more important than a separate freedom of religion because the former three already guarantee the last.
ABC News
7 hours ago
- ABC News
Torres Strait Islanders travel to Cairns for landmark Australian Climate Case verdict
Torres Strait Islanders are awaiting the ruling in a landmark climate case today — one that, if successful, could have a significant impact on the future of their islands and culture. Guda Maluyligal traditional owners Uncle Paul Kabai and Uncle Pabai Pabai — from the islands of Saibai and Boigu — have travelled almost 900 kilometres from their ancestral homes to the Federal Court in Cairns to hear the outcome. For the past four years, they have led the case on behalf of all Torres Strait Islander peoples, arguing the Commonwealth has neglected its duty of care to take proper steps to protect their communities from the impacts of rising seas and climate change. Today, Federal Court Justice Michael Wigney will hand down his judgement. The first of its kind in Australia, the landmark litigation has been financed through the NGO the Grata Fund, and modelled on a successful case from the Netherlands. In 2023, the federal court visited the islands of Boigu and Saibai, about 6 kilometres from the shores of Papua New Guinea, and Badu. Evidence of coastal erosion, destruction of ancestral graves and soil salinity that prevents crops from growing was presented to the court. It also heard of extreme weather events, including storms that cause intense flooding and inundate the islands that lie at just 1.6 meters above sea level. The uncles also travelled more than 3,000 kilometres to attend Federal Court hearings in Melbourne in November 2023. The court heard that sea levels in the Torres Strait were rising at double the rate of the rest of the world and that inaction on climate change may cause irreversible impacts for First Nations people in the Torres Strait. Australia is the world's 11th highest per capita emitter of greenhouse gases, according to the CSIRO, contributing just over 1 per cent of global emissions. It's also among the largest fossil fuel exporters in the world. Climate scientist Malte Meinshausen, an expert in carbon budgets, told the court there were three "accepted methodologies" for determining each country's fair share of global emissions. Based on these, he said Australia needed to make deeper emissions cuts than its current 2030 targets if it wanted to be consistent with the global aim of limiting warming to 1.5 degrees. The court heard breaching this 1.5 degree limit would cause irreversible damage to small and low-lying islands, including those in the Torres Strait. The Commonwealth has acknowledged the Torres Strait Islands are vulnerable to the effects of climate change, but it argues Australia can't prevent or mitigate these effects on its own. It also said the question of its emissions target is for the parliament to decide, not the courts. "There is no consensus as to how GHG [greenhouse gas] emissions should be divided and in any case the question is one of policy and not climate science," it argued. The plaintiffs seek an order requiring the government to take action to prevent further harm to their communities, including by making deeper emissions cuts and implementing adaptation measures. If successful, the legal challenge could set an international precedent for how governments are held accountable for climate change impacts on vulnerable communities. At the heart of the case was the deep connection between Torres Strait Islanders and their land and what would be lost if the low-lying islands were claimed by the sea. The plantiffs' legal team argued the Guda Maluyligal people risked losing their culture if rising sea levels, caused by climate change, forced them to leave their homes. Uncle Pabai fears they will become "climate refugees". "The role I'm playing now is important in saving my people. For the next generation to come, I don't like to see Boigu under the water," he said. The case heard testimony from a number of elders and community members documenting sacred sites and cultural practices that have been handed down thousands of years, all at risk of being lost. Knowledge regarding the changing of the environment over time, including seasons shifting and animal migration times changing was part of the evidence. Whatever the outcome of the case, islanders vow they will continue to fight to protect their homelands. "We're not going to stop. If we stop, Saibai will be underwater," said Uncle Paul.
Sydney Morning Herald
8 hours ago
- Sydney Morning Herald
National news live: Latham denies abuse allegations, Albanese's China visit, Trump gives Putin 50-day deadline
Latest posts Latest posts 6.59am Court to decide today about our duty to future climate refugees A court will decide whether the federal government has a duty of care to protect First Nations people whose homes and communities are being threatened by the impacts of climate change. At risk of becoming Australia's first climate refugees, Uncle Paul Kabai and Uncle Pabai Pabai filed the landmark case against the government in the Federal Court in 2021. They claim it failed to protect their homelands among the Torres Strait Islands from climate change. The uncles are seeking orders from the court that would require the government to take steps to prevent harm to their communities, including cutting greenhouse gas emissions in line with the best available science. The court, which is due to hand down its decision on Tuesday, heard evidence communities on Boigu and Saibai could have less than 30 years left before their islands become uninhabitable. The Commonwealth has argued it is not legally required to consider the best available science or the impacts of climate change when setting emissions reduction targets. 6.59am Albanese to meet with China's Premier today By Paul Sakkal Prime Minister Anthony Albanese is expected to use a meeting with China's Premier Li Qiang today to spruik the benefits of Australia's stabilised relationship with its largest trading partner after vowing not to back down on security issues, including taking back the Port of Darwin. As chief political correspondent Paul Sakkal reported, mining magnate Andrew 'Twiggy' Forrest warned that an overemphasis on security risks was hurting trade. The prime minister used his remarks after the roundtable, which included industry leaders from both nations, to paint Australia as a stable, open trading nation against the backdrop of US President Donald Trump's stop-start trade wars. 'I think that Australia's support for free and fair trade does provide potential opportunities for Australia in this region as well, not just with China, but with ASEAN nations,' Albanese said. 6.59am Good morning and here are the top stories By Christopher Harris Hello and good morning to our coverage of everything that's making headlines around the country today. These are the top stories: Liberal candidate for Bradfield Gisele Kapterian has ended weeks of speculation and will today appeal against the election outcome in the once blue-ribbon North Sydney seat. Kapterian fell short in Bradfield by 26 votes to teal candidate Nicolette Boele in a recount, leaving Bradfield the most marginal seat in the country. Kapterian won the initial count by eight votes. Rogue independent NSW MP Mark Latham has denied shocking domestic abuse claims made by his former long-term partner and Liberal Party member Nathalie Matthews, which included accusations he forced her into degrading sexual acts. First reported on Monday night by The Australian, the allegations in documents filed with the NSW Local Court, detail Matthews' claims that Latham engaged in a 'sustained pattern' of abuse, including emotional, psychological and financial manipulation. Latham has denied the allegations. Donald Trump has threatened to place severe tariffs on Russia's allies if Vladimir Putin does not make a deal to end the war in Ukraine within 50 days, marking the first time the US president has set a deadline on action from his counterpart in Moscow. Home Affairs Minister Tony Burke has slammed conservative campaigning group Advance and its donors after it emerged that antisemitism envoy Jillian Segal's husband's family trust gave $50,000 to the controversial organisation. But Burke has defended Segal, saying that claims she should be held responsible for her husband's actions were outdated and misogynistic.
