Is constitutional change what Australia’s First People need?

There are more references to lighthouses, beacons and buoys in Australia’s Constitution than there are to Aboriginal and Torres Strait Islander people. As it stands, our First Peoples aren’t mentioned at all.

Most Australians and the two major political parties agree this must change – but opinion is divided on how such changes should take form.

The then prime minister Tony Abbott had wanted a referendum on Indigenous Constitutional recognition to take place on 27 May 2017 – the 50th anniversary of the 1967 referendum to include Aborigines in the census and amend racially discriminatory sections of the Constitution. But the 2017 referendum didn’t happen.

What needs amending?

Constitutional law professor George Williams has said, “The 1967 referendum deleted discriminatory references specific to Aboriginal people, but put nothing in their place. Torres Strait Islanders have never been referred to in the constitution. As a result, rather than recognising Indigenous people, the referendum left a silence at the heart of the Constitution”.

While race discrimination specifically against Indigenous people has been deleted, “Australia is now the only democratic nation in the world that has a constitution with clauses that still authorise discrimination on the basis of race”, says Williams.

There are two sections of the Constitution that mention race. The first, section 25, says that the states can ban people from voting based on their race. The second, section 51(26), gives federal parliament power to pass laws that discriminate against people based on their race.

Professor Melissa Castan says, “section 51(26), the so-called “races power”, has been interpreted by the High Court to allow the federal parliament to make laws that discriminate adversely on the basis of race.” She points out, “Parliament only ever used the races power regarding Aboriginal and Torres Strait Islander people.”

Some are concerned that a Constitutional amendment which states Indigenous people are the original custodians of the land will make non-Indigenous people feel like imposters in the place they call home.

Some concerns from Constitutional conservatives

Some Australians are concerned that a Constitutional amendment which states Indigenous people are the original custodians of the land will make non-Indigenous people feel like imposters in the place they call home.

This concern is an echo of the reluctance to embrace a national apology to Australia’s stolen generations in 2008.

Speaking at the Kennedy School of Government at Harvard soon after the apology, former Liberal PM John Howard said, “I do not believe, as a matter of principle, that one generation can accept responsibility for the acts of an earlier generation.”

The apology, however, did not trigger the onset of mass guilt in the non-Indigenous Australian population. It was overwhelmingly celebrated.

Howard went on to say his view was shared by Noel Pearson of the Cape York Indigenous Council, a man whom he regarded as “the voice of contemporary Indigenous Australia”.

Pearson remains an authority for many conservatives. In an effort to temper the concerns of constitutional conservatives, in 2015 Pearson put forward a three-part proposal to minimise Constitutional change:

  1. Remove racially discriminatory wording in the Constitution
  2. Devise a Declaration of Recognition to stand alongside the Constitution
  3. Assemble a parliamentary advisory body to comment on laws affecting Indigenous people

Vice-chancellor of the Australian Catholic University, Greg Craven, described Pearson’s proposal as “genuinely brilliant”.

The apology did not trigger the onset of mass guilt in the non-Indigenous Australian population. It was overwhelmingly celebrated.

“The greatest danger would be inserting vague, manipulable language into the Constitution,” Craven argued. “There are no references to ‘sovereignty’ or sweeping guarantees of equality and far-flung rights.”

Craven claims Pearson’s proposal will allay constitutional conservatives’ fears that recognition of Indigenous Australians will promote Aboriginal and Torres Strait Islander people as in some way superior to other races.

“Indigenous identity, indigeneity, is not superior to the identity of other Australians, nor does it in any way threaten that national identity”, Craven wrote. “It simply is the case that an identity based upon millennia of profound connection with this country, physical and spiritual, is sufficiently special to be worthy of safe, certain recognition.”

What are some of the proposals by Indigenous leaders?

The then Aboriginal and Torres Strait Islander Social Justice Commissioner, Mick Gooda, was reluctant to accept a Declaration that sat outside of the Constitution, so was not a legal document. “It is the law out of which all other law in this country comes from and to be recognised in [the Constitution] is probably the ultimate form of recognition,” he said.

Geoff Clark, former chairman of the disbanded Aboriginal and Torres Strait Islander Commission, had proposed Australia, “include a simple clause in the body of the Constitution that the consent of the Aboriginal people is required for the application [of] laws and policies that may have an effect on Aboriginal people.”

Such a clause would have had the power to stop a government initiative like the Northern Territory Intervention, which has been criticised for lack of consultation with Indigenous communities. On the other hand, Craven says, Pearson’s body of Indigenous representatives, would “advise, suggest and comment. Its views would be debatable, disputable and disposable.”

RECOGNISE was an Indigenous advocacy group governed by the board of Reconciliation Australia, which from 2012 to 2017 ran a campaign “to see fairness and respect at the heart of our Constitution, and to ensure racial discrimination has no place in it. Our goal is a more united nation.”

Based on the recommendations by an Expert Panel in 2012, RECOGNISE proposed Constitutional amendments that included a provision for government to: “pass laws for the benefit of Aboriginal and Torres Strait Islander peoples”.

However, for many Indigenous people, the goal is not constitutional reform, it is sovereignty and a treaty. As mentioned in this Expert Panel report a survey conducted by the National Congress of Australia’s First Peoples in July 2011 revealed: “88 per cent of Congress members identified constitutional recognition and sovereignty as a top priority. Unfortunately, it was apparent from consultations and submissions that sovereignty means different things to different Aboriginal and Torres Strait Islander communities.”

The Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples was established in November 2012 to interpret the findings from the Expert Panel.

What might voting ‘No’ look like?

Senator Cory Bernardi remains opposed to a Constitution that makes special reference to racial groups. “Anything that seeks to divide our country by race, and every proposal that I’ve heard of seeks to do exactly that, I think is doomed to fail … I would be absolutely campaigning for the ‘No’ vote,” Bernardi told AM.

If stamping out racism is what Bernardi was aiming for, that is honourable. But the way he conjures a post-racial society seems to frame race as a distinctly negative quality. Wilful ‘colour blindness’ to what makes us different denies what makes us special. From wherever on earth we descend, we should hope to draw on our racial heritage as a source of pride, and find a comforting sense of community in our culture.

A position statement from The Royal Australian and New Zealand College of Psychiatrists states: “The lack of acknowledgement of a people’s existence in a country’s constitution has a major impact on their sense of identity and value within the community, and perpetuates discrimination and prejudice which further erodes the hope of Indigenous people.” The College concluded, “Recognition in the constitution … is an important step to support and improve the lives and mental health of Indigenous Australians.”

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What does our Constitution stand for?

Power without restraint: juvenile justice in the Northern Territory

The institutional abuse of children detained by the government of the Northern Territory is a bone-chilling example of what occurs when raw power is exercised without ethical restraint.

The scenes broadcast by the ABC’s Four Corners program in July 2016 were the stuff of nightmares – the kind of thing done by ‘other people’, in ‘other countries’, in ‘other circumstances’. But this nightmare became real, for us – here and now. The prime minister announced a Royal Commission to investigate what had happened and why.

But first, we need to look at the general conditions that made the unthinkable possible. Those conditions do not just apply in the context of juvenile ‘justice’ in the Northern Territory. Australian governments are responsible for the detention of people throughout our states and territories as well as on Manus Island and Nauru. In every case, there is a risk (and often a reality) of people with power exercising it in a manner that fails the test of the most basic standards of decency.

Every person who is detained deserves to be treated with a basic measure of respect – even those who committed the foulest crimes still retain their intrinsic dignity as a ‘person’.

Second, we need to reckon with arguments that the ‘ends justify the means’ and the prisoner or detainee is the author of their own fate – that they ‘deserve what they get’.

Normally, you would expect parliaments in a liberal democracy to place strict curbs on the exercise of power by government officials. But in recent years, the tendency has been to take the opposite path – to smooth the way for excess.

This has been done by creating numerous exceptions to the application of usual legal and ethical restraints that have been designed, over millennia, to tame power – such as judicial oversight, civil and criminal liability, media scrutiny and respect for individual rights like habeas corpus.

Australia has wide exemptions – for members of the intelligence services, for those detaining suspected terrorists, for detention centres and, as evidenced in the Four Corners report, for those guarding juvenile detainees in the Northern Territory.

Section 215 of the Northern Territory’s Youth Justice Act confers a wide-ranging immunity on virtually all people working with juvenile detainees. Specifically it says:

“The person is not civilly or criminally liable for an act done or omitted to be done by the person in good faith in the exercise or purported exercise of a power, or the performance or purported performance of a function, under this Act.”

It is yet to be determined whether or not the behaviour revealed by Four Corners was done ‘in good faith’. If so, then the people responsible can never be held to account. The parliament of the Northern Territory has, for all intents and purposes, written a blank cheque.

Cultural failure is the responsibility of those in positions of authority. It cannot be addressed by lopping off the heads of a few ‘rotten apples’ buried in the depths of the barrel.

These provisions were likely enacted as part of a law-and-order campaign. It probably never occurred to legislators that children might be tear-gassed, bound to chairs (and all the rest) by their guards. I’ve no doubt they are now appalled at what has been done. But their lack of forethought does not lessen their responsibility for what they have made possible. It only deepens it.

Governments bear the ultimate responsibility for the treatment of those they detain. Such responsibilities cannot be outsourced. Every person who is detained deserves to be treated with a basic measure of respect – even those who committed the foulest crimes still retain their intrinsic dignity as a person. If we do not deny this for the worst of humanity, how can it be absent for children? They may be angry. They may be rebellious. They may be violent. Even so, they are children. Our children.

It is almost certainly the case that those responsible for abuse are not monsters. They will be just like most of us – most likely unable to conceive of treating their own children as they have those in detention. It’s an age-old puzzle. How can basically good people end up doing such terrible deeds?

It will be revealing to see if we take a wider look at what made this national disgrace possible and ask where else the same seeds have been planted.

There are a number of factors that were likely at work here:

  • The guards could have been conditioned to look at their task through a purely legal lens – ‘if it’s not illegal it’s not wrong’.
  • An element of tribalism – people conforming to the norms of a tight (usually isolated) group that overwhelms the dictates of individual conscience.
  • A belief they were serving a ‘higher good’ (law and order) and their child victims deserved harsh treatment.
  • A belief that the methods employed were ‘best practice’ sanctioned by a ‘respected authority’.
  • A sense the children were not deserving of basic respect because they were ‘not like us’ – most likely linked to their Aboriginality.
  • And most importantly, people within the group may have questioned what was being done while lacking the moral courage to speak out for fear (usually well-founded) of retribution.

Cultural failure is the responsibility of those in positions of authority. It cannot be addressed by lopping off the heads of a few ‘rotten apples’ buried in the depths of the barrel. Instead, we need to look at the ‘rotten barrel’ – and who made and maintained it.

How we respond to this issue will tell us a lot about Australia and its people. In particular, it will be revealing to see if we take a wider look at what made this national disgrace possible and ask where else the same seeds have been planted.

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When will we hold corrupt governments to task?

Why compulsory voting undermines democracy

Australia is one of the 19 countries in the world that legally enforces the vote. For Australian citizens voting is not merely a right, but also a duty. First introduced in Queensland in 1915, extended to the whole country in 1924, compulsory voting is a salient feature of the Australian electoral system. But is it democratic?

The main argument in defence of compulsory voting is the importance of raising citizens’ participation in elections. Australia’s turn-out rate has never fallen below 90% since 1924, in striking comparison with most Western countries that struggle to reach 60%. These are nevertheless, merely quantitative considerations: the fact that more people go to vote is not a better thing for democracy. In fact, it could be argued that compulsory voting is likely to do more damage than good, by reducing the quality of the electoral outcome.

Forcing everyone to vote means that the voice of those with no interest in politics will influence the decision about who rules the country.

Forcing everyone to vote means that the voice of those with no interest in politics will influence the decision about who rules the country. This generates what author Jason Brennan calls ‘pollution of the polls’ in his book The ethics of voting1 and is one of the main causes of the actual crisis of democracy worldwide: incompetent politicians winning elections through media control (the recent case of Italy under Silvio Berlusconi epitomises this phenomenon).

By the same token, compulsory voting cannot be defended by arguing that a government’s legitimacy of a majority formed by a low turnout is questionable, for numbers alone do not add credibility in this regard.

Those who do not care about politics should not vote.

Favouring democracy to other forms of government cannot be because of the mere fact that democracy allows everyone’s voice in the public arena. This might be, if anything, a reason against democracy. Dragging people to the polls will do nothing to improve the quality of our democratic lives, insofar as people do not take seriously what they are doing. There must be something else that makes democracy preferable to other forms of government.

This something else is the empowerment of the citizen. In a democracy, everyone has the power to partake in determining the rules according to which the community should be run. However, the misunderstanding lies in the fact that democracy does not entitle citizens to do everything: it confers not only entitlements but also responsibilities. Those who do not care about politics should not vote.

It could even be argued that they should not have a right to vote, and maybe the state would be better off justifiably preventing them from, not forcing them into, voting. Citizens should undergo a basic competence test, as with driving. This is because careless voters may seriously undermine those other citizens who spend time and energy gathering sufficient information before voting.

People’s efforts to follow politics to develop an informed idea might be cancelled out by the vote of someone else who does not care, but still is given the power to vote. In such a situation, making the effort to follow politics might even be irrational for the individual citizen, given that this effort may well be wasted due to the careless voters. Thus, compulsory voting backfires twice, since it even makes it pointless for citizens to develop political awareness.

Compulsory voting may advance the misleading idea that democracy works even without citizens’ commitment or responsibility.

It is not only wrong to think citizens have a duty to vote. As Brennan argues in his book, it is rather the case that some citizens (those who do not care about politics) have a duty to not vote, for we all have duties to not cause damage to others. It is also the case that not everyone has the right to vote, for the latter is not an unconditional entitlement we receive through mere membership to a democratic community. If people do not care about politics, then they do not have a right to participate—forcing them to vote is counterintuitive, and counterproductive. The right to vote can be gained, and lost, depending on one’s commitment to democratic values.

Compulsory voting does not seem to offer any substantial advantage to the democratic life of a country, since quantity does not mean quality (and in the end, it is the quality of our decision-making procedures that should matter). Compulsory voting may advance the misleading idea that democracy works even without citizens’ commitment or responsibility. To be sure, no one should be forced to be a responsible citizen: however, neither should anyone be forced to do what responsible citizens can do; that is, cast their vote at election time.


1. Brennan, J. (2011), The ethics of voting, Princeton University Press

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Is compulsory voting a salient democratic feature?

Big Brother is coming to a school near you

It’s Monday morning in Newcastle when a child arrives at school, places her finger on the scanner, and waits until a crackly electronic voice acknowledges her.

In Sydney, a wall-mounted CCTV camera records a 12-year-old boy entering a classroom and taking his seat. While this might sound like an Orwellian prophecy, it’s slowly becoming reality. Surveillance technologies such as CCTV cameras and biometrics are being used in schools across Australia. What’s the point? And what are the issues we need to be aware of?

Australia is tentatively following in the footsteps of the UK in implementing surveillance in its schools. In England, it is estimated that 85% of secondary schools have some form of CCTV system, and that a third systematically fingerprint pupils from the age of four. Schools in Australia haven’t reached the same level of near-ubiquity yet, but they are demonstrating a growing appetite.

The effectiveness of CCTV has never been proven and public support is often based on unsubstantiated political rhetoric that it ‘works’.

More than 50 schools in NSW have CCTV cameras in playgrounds and outside dining areas, with plans to install them in classrooms and corridors. Similarly, in Western Australia where the Department of Education confirmed its plans to roll out systems across the state’s schools, half of Perth’s secondary government schools have installed CCTV. Further momentum has been provided by the WA State School Teachers Union that tabled a motion to have at least five surveillance cameras installed in all schools.

The overarching reason cited for the use of CCTV is the prevention and detection of crime. However, it is important to remember that the effectiveness of CCTV has never been proven and public support is often based on unsubstantiated political rhetoric that it ‘works’. In the UK, arguably the CCTV capital of the world, a government funded evaluation failed to find evidence of efficacy. Just one out of 14 CCTV systems demonstrated a significant reduction in crime. More recent studies have revealed that for every 1000 cameras in London, just one crime per year is solved. A sobering thought when the government has already invested more than £500 million in the equipment.

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Would you work better if you knew you were being watched?

The Australian debate about asylum seekers and refugees

Debate about asylum seekers and refugees, especially when it concerns “boat people”, is often characterised by misrepresentation and hysteria. Amid all of the politics concerning the issue, the ethical dimensions of asylum are not always given their proper attention.

This paper seeks to offer a brief guide to the ethics of asylum and refugees, focusing in particular on four general questions:

  1. What should be the place of empathy and compassion in our moral reasoning with respect to asylum seekers and refugees?
  2. To what extent must any ethical account of refugee policy incorporate concerns about practical or political feasibility?
  3. What is the nature of Australia’s moral obligations to asylum seekers and refugees, and to what extent are these shaped by our understanding of membership?
  4. Can mandatory detention and offshore processing be ethically justified?

It would be a demonstration of good faith if Australia should increase its intake of refugees under its humanitarian program.

It is argued that empathy should figure in ethical reasoning, that it is irresponsible to adopt an ethical framework without attention to practical feasibility, and that in a liberal democracy, moral obligations are complicated by a value of self-determination.

In policy terms, the paper argues that it is difficult to justify the continuation of mandatory detention, and that onshore processing of asylum seekers who arrive in Australia by boat is the ideal response. Yet the latter would be best achieved with bipartisan political support and as part of a credible, regional solution. By itself, a shift to onshore processing is likely to lead to an increase in the arrival of boats carrying asylum seekers wanting to make it to Australian territory.

In such a scenario, political leaders must educate public opinion about asylum seekers and refugees and avoid politicking over boat people. Where such resolve is missing, a shift to onshore processing may carry the risk of a number of “spillover” effects – in particular, the possible undermining of public acceptance of a substantial, racially non-discriminatory immigration program, and of a multicultural Australian society.

If there is to be offshore processing, as may well be the case, there must be legislated minimum standards for how asylum seekers are treated in any offshore facility, based on relevant human rights standards, with adequate legal protections. It is also important that any durable policy response involves a regional dimension. It is important to ensure Australia bears a larger burden, if there is to be successful cooperation with our regional neighbours, particularly in stemming the arrival of asylum seekers by boat. It would be a demonstration of good faith if Australia should increase its intake of refugees under its humanitarian program.

There is also merit in proposals to establish an independent commission to facilitate informed public debate, and an independent authority to administer Australia’s humanitarian programs. At least until there can be strong bipartisan political leadership on this issue, it may be necessary to seek an institutionalised form of depoliticising this most divisive of issues.

Read Dr Tim Soutphommasane’s introduction to the Ethics of Asylum and Refugees Symposium, held on 30 June 2011.

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What extent do we need empathy in treatment of asylum seekers and refugees?

Who’s your daddy?

“Discrepant paternity” – or what fathers’ rights discourses call paternity fraud – has become a rallying point for parts of the fathers’ rights movement. Though fathers’ rights groups have successfully engaged with the media and politicians to achieve desired changes to the family law system, what is novel is the use of paternity fraud discourse to achieve these ends.

Types of paternity fraud

Bureaucratic and fathers’ rights discourse use the term paternity fraud to refer to two distinct phenomena. The first is where non-biological fathers are assigned legal and fiscal obligations for children they have never parented and may not even have known existed. Men attempting to use DNA evidence of non-paternity to terminate such obligations are blocked by legal and/or bureaucratic obstacles.

The second referent for paternity fraud in fathers’ rights discourse is the discovery by a man in a married or de facto relationship, through deliberate or incidental genetic testing, that he is not the biological father of one or more of the children he is parenting.

In Australia, the case of Liam Magill is a classic case of what I will call ‘cuckold’ paternity fraud. Several years after separating from his wife Meredith, Magill subjected his three children to secretive DNA paternity testing that revealed that the two youngest were genetically unrelated to him. He successfully terminated child support payments for these children and, because he was in arrears for payments for all three children, was effectively offered a refund for previous amounts paid for the two when this debt was cancelled.

Despite this, Magill pursued a claim for compensation from his wife on the grounds of deceit. While a lower court awarded Magilla $70,000 for pain, suffering and economic loss, the Australian High Court eventually dismissed the case on the grounds that the tort of deceit was an inappropriate vehicle for remedying the wide variety of dissimulation that can occur in intimate relationships.

Motivations for testing

Father’s rights groups claim that between 10 percent and 30 percent of children are being parented by men who are unaware they are not the genetic father. These figures are used to support their contention that discrepant paternity is a widespread social problem in need of systemic address through changes to family law and policy.

Fathers’ rights discourse implies that men are the prime instigators of paternity tests in the face of duplicitous and resistant mothers. This depiction is particularly seen in the push by fathers’ rights groups for ‘motherless testing,’ or the testing of the child’s DNA without the mother’s consent.

In arguing in favour of the legality of this sort of testing, fathers’ rights advocates claim that any law requiring the consent of both parents would effectively deny fathers the ‘right to know’ because mothers with something to hide would always withhold consent for the child to be tested.

Fathers’ rights discourse articulates four ways in which paternity fraud cheats or defrauds men or children: first, by creating a relationship between a man and a non-biological child/ren; second, by stripping non-biological fathers of the resources  they need to start another family in which they can create and raise biological progeny; third, by denying the biological father knowledge of his progeny and/or a chance to form a relationship with that progeny; and fourth, by denying children full and factual knowledge of their biological origins and the resulting opportunity to both form a relationship with their biological father and to gain knowledge of paternity genetics essential to their health.

The central claim of paternity fraud discourse is that a man’s relationship with a non-biological child does not constitute a real parent–child relationship, and that cuckold paternity fraud cheats or defrauds husbands of real fatherhood.

The causative agent in this fraud is the unfaithful wife who, through her sexual infidelity and subsequent failure to disclose it, causes the man to form a relationship with a biologically unrelated child that he wrongly believes – and has a right to expect – is his biological progeny. In its arguments in favour of compulsory DNA testing at birth, the group Men’s Confraternity reveals its understanding of authentic fatherhood as biological fatherhood:

“DNA testing should be a compulsory procedure at the birth of every child born to ensure that the correct father is registered. Paternity must be determined via DNA testing at birth because any man can be deceived into believing they are the father.” (Men’s Confraternity, 2006)

Citing figures impossible to confirm, the website Men’s Rights Online asserts that non-biological relationships between men and children provide no basis for legal paternity and its attendant fiscal obligations for children:

“The Court System … forc[es] males to continue paying child support for children that they are NOT the biological father of as DNA testing proves. It is also brought to the knowledge of the judges in the individual cases that DNA testing proves the male paying child support is NOT the biological father… A minimum of 1,600,000 (1.6 million) males are being forced to financially support children that they are NOT biologically related to.” (Men’s Rights Online, 2003–2006)

Implicit in much paternity fraud discourse are normative claims about the wrongs of female infidelity and subsequent duplicity with regard to it, and the potential reproductive consequences. Justice, the discourse suggests, requires men to be released from support obligations for children of the marriage not just because of the non-biological relationship between father and child, but because they have resulted from illegitimate female sexual and reproductive activity.

Paternity fraud discourse also asserts that, when biological paternity is wrongly ascribed to the social father, the biological father loses the opportunity to know he has a biological child and/or accept rights to and responsibilities for this child. The group Australian Paternity Fraud, for instance, claims that paternity fraud ‘victims’ include “the biological father that may not even know he is a father and who, when the deceit is uncovered, will suffer … mental … damage”.

Finally, it is asserted that paternity fraud denies children necessary knowledge of their biological origins, the chance to form a relationship with their biological father and the knowledge of paternal genetics necessary for optimal medical treatment.

At the heart of cuckold paternity fraud discourse is the claim that real fatherhood is biological fatherhood. However, neither this assertion nor assertions about the threat to children’s health posed by non-disclosure of paternal genetics stand up well to scrutiny.

Legal definitions of parenthood

DNA paternity testing is often credited with causing the paternity fraud phenomenon. When performed properly, DNA tests guarantee a 99.9% probability of paternity.

Legislators in both Australia and England see the commercial paternity testing industry as a means of reducing the cost to taxpayers of growing numbers of socially fatherless children. They understand that, while not all children have social fathers, they all have biological ones, and that the new testing technology could, for the first time in history, reliably identify these men.
Affordable and reliable genetic testing is available, and the legal and financial implications of test results for men, women and children are significant and profound.

Motivations to test

While research data are scant, those available suggest a variety of motivations for both men and women to undertake or consent to tests that lead to the discovery of discrepant paternity.

Counter to the picture offered by fathers’ rights discourse, such tests are not always undertaken by men in the face of the mother’s ignorance or resistance.

Discrepant paternity may be discovered via a genetic test taken for other reasons. For instance, genetic tests may be performed on  the parents of a sick child to ascertain whether the illness is caused by a hereditary condition or to determine whether the parent is a tissue match for a sick child. Parents of children diagnosed with a hereditary condition may also undertake genetic tests to discover their carrier status and the risk of transmission to future children. Separated and divorced mothers may test their children in the hope that proof of the social father’s non-paternity will allow them to block their ex-husband’s access to children of the relationship.

It is perhaps worth noting that the potential for mothers to deploy DNA paternity testing technology against social fathers to deny them access to children they have parented within the marriage was an early concern expressed by academic lawyers about the widespread use of DNA testing technology and concomitant legal changes to definitions of paternity and paternal obligation. This worry – about  the risk testing posed to the maintenance of men’s relationship with children – contrasts with what appears to be the main concern of contemporary academic lawyers: the claimed injustice of men’s inability to shrug off support obligations – and be compensated for past amounts paid – for genetically unrelated children.

Single and divorced mothers may wish to test, or be coerced into doing so by the state, in order to facilitate the identification and/or enforcement of paternal support obligations. In Australia, England and the United States, a failure to identify and, where necessary, prove the paternity of their child’s father may put all or part of the mother’s welfare benefits in jeopardy.

In Australia, it is estimated that around one third of tests are sought by mothers wanting or needing – through obligations related to their pension – to enforce child support obligations from biological fathers.

As well, men, or parties acting on their behalf, pursue tests. They do so, the evidence suggests, not to satisfy a disinterested pursuit of the truth – as father’s rights discourse often suggests – but in the hope of altering existing legal and fiscal obligations for children.

The link between men’s, their new wives’ or their parents’ decision to test and the desire to alter legal responsibilities for children in the wake of relationship breakdown is further supported by Australian data showing that at least some men who test know that the child of the marriage is or may be genetically unrelated to them.

Finally, men with little doubt about their biological paternity may test to humiliate estranged partners and/or delay paternity adjudication and the assignment of support obligations.

Harm to children

The fathers’ rights argument about a child’s right to know takes in both the idea that the creation of a parenting relationship between a father and a genetically unrelated child is wrong because it is not a ‘real’ parent–child relationship and the claim that children’s health and identity formation are harmed by ignorance of their biological father’s existence and paternal genetics.

Claims of a child’s right to know also encompass assertions about the harms to children’s health resulting from non-disclosure of paternity uncertainty or discrepancy.

The claim that only biological paternity is real paternity is asserted rather than argued in father’s rights discourse, and is contestable on moral, logical, evidence-based and consistency grounds. In particular, the lack of argument leaves many questionable assertions including, though not limited to: What makes biological parental relationships real or valid in a way non-biological ones are not? How can genetics be understood as critical to the creation of real parent–child relationships when parties to such relationships can die unaware that their social parent–child relationship was not accompanied by a genetic one? If non-genetically based relationships between men and children harm both, how can the deliberate creation of such relationships in some contexts, most notably where a couple is infertile, be justified?

The central role that fathers’ rights discourse gives to paternal genetics in the establishment of a child’s identity may also be questioned.

While reflective of dominant Western social understandings that biological or blood relationships form the basis of kinship, Ruth McNair argues that “non-biological parenting has existed for millennia as a successful and meaningful addition to or replacement for biological parenting” (McNair, 2004, p. 39).

While some evidence exists to support claims that children may be harmed by the failure to disclose the existence of non-genetic parental relationships, McNair has found that this harm appears largely attributable to secrecy about the existence of such relationships rather than to a decisive role of genetic knowledge in identity formation (McNair, 2004, pp. 39–45).

Indeed, McNair adds:

“… the profound role social parenting plays in children’s understanding of who they are may be why some adopted children choose not to pursue knowledge about their genetic parents and suffer no negative outcomes as a consequence.”

Of course, identity is hard to define and measure, but this does suggest that, while it may be preferable for parents to give their children a truthful account of their conception story, including information relevant to their genetic lineage, the failure to do so need not necessarily damage children’s identity formation or overall social and psychological wellbeing.

The failure of fathers’ rights discourse to problematise the potential harms to children resulting from men’s behaviour around cuckold paternity raises questions about the sincerity of such concerns.

For instance, the discourse is largely silent on the question of paternal motives for testing and silent about the harms caused by men who respond to test results disconfirming biological paternity by abandoning children they have parented from birth.

In contrast to the gendered and non-nuanced depictions of cuckold paternity offered by fathers’ rights groups, analysis and evidence suggest that discrepant paternity reflects the complex nature of sexual and intimate relationships at the end of the twentieth and start of the twenty-first centuries.

At the heart of cuckold paternity fraud discourse is the claim that real fatherhood is biological fatherhood. However, neither this assertion nor assertions about the threat to children’s health posed by non-disclosure of paternal genetics stand up well to scrutiny.

In contrast, feminists who value autonomy may share concerns raised in cuckold paternity fraud discourse about the harm suffered by men and children when informed consent is denied.

Defining fatherhood in social and intentional terms could end the nexus in law, social policy and the public imagination between biological fatherhood and fiscal obligations for children, undermine the ‘you play, you pay’ philosophy supported by biological definitions of fatherhood, and reduce demand for DNA paternity testing with their high costs to father–child relationships.


McNair, Ruth (2004), Outcomes for children born of ART in a diverse range of families (occasional paper), Victorian Law Reform Commission, Victoria, Australia.

See also Men’s Rights Online at and Men’s Confraternity at 

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Is ‘paternity fraud’ a moral crime?