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Editors --- "DownUnderAllOver" [2000] AltLawJl 51; (2000) 25(3) Alternative Law Journal 141

A regular column of developments around the country

Federal Developments

Do Chinese 'black children' constitute a 'social group' for the purposes of the Refugee Convention?

On 13 April 2000 the High Court delivered its decision in Chen Shi Hai v The Minister for Immigration and Multicultural Affairs. Chen was a 3-year-old Chinese national who was born in Australia whilst his parents were in immigration detention at Port Hedland. He was the youngest of his parents' three children. His parents were refused permission to marry in China in 1989 because they were not of marriageable age. Nonetheless, they began a defacto relationship and had their first son in China in 1990. Their second child, a daughter, was born in China in 1992. Chen's parents came to Australia on board 'The Cockatoo' in 1994, bringing with them their first son. The daughter remained in China. Chen was born in 1996. His parents have been refused protection visas and are awaiting return to China.

On Chen's behalf, a separate application for a protection visa was made under the Migration Act 1958, ss.36(2). The Refugee Review Tribunal found that he faced a real chance of persecution in China as a member of a social group known as hei haizi or 'black children'. The Tribunal found that because he was born outside the parameters of China's one child policy and because he was born of an 'unauthorised marriage' Chen would be known in China as a 'black child'. As a 'black child', he would be denied access to food, education, and to health care beyond a very basic level and would probably face social discrimination, prejudice and ostracism. The Tribunal found that such children would constitute a 'social group' for the purposes of the Convention Relating to the Status of Refugees. How­ ever, the Tribunal denied Chen's application because it did not consider that he would face a real chance of persecution in China 'for reasons of' his member­ ship of that group. That was because China's policies were designed primarily to penalise the parents who have children outside of the approved guidelines, and not the children themselves.

Justice French of the Federal Court allowed Chen's appeal. However, a full bench of the Federal Court upheld an appeal by the Minister. O'Loughlin and Carr JJ held that 'black children' could not constitute a social group and that in any event the adverse treatment likely to befall Chen on return to China was not by reason of him being a 'black child' but because of his parents' con­ duct in contravening the laws of China. Nicholson J dissented.

The High Court unanimously allowed Chen's appeal. Gleeson CJ, Gaudron, Gummow and Hayne JJ held that the Tribunal did not err in finding that 'black children' constitute a particular social group for the purposes of the Convention.

The Court noted its earlier decision in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225, in which it found that people who opposed China's one child policy and feared enforced sterilisation did not, on that account, constitute a particular social group. However, it found that the question of whether 'black children' constitute a social group arises in a context quite different from that in Applicant A. The Court distinguished the Chinese laws of general application, which limit the number of children that a couple may have, from those practices or laws applied to children born in contravention of the one child policy. In the case of 'black children', they are persecuted for what they are (the circumstances of their parentage, birth and status) rather than by reason of anything they have done (as in the case of parents breaching the one child policy). Nor are the children defined as a social group by reason of the persecution they face - rather, a child is a 'black child' regardless of what perse­ cution may befall her or him.

The Court also found that the Chinese laws applying to 'black children' amounted to persecution. It held that ordinarily, practices or laws denying access to food, shelter, medical treatment and in the case of children, education, offended the standards of civil societies thereby amounting to persecution. The Court noted that although 'black children' are treated differently as a consequence of the one child policy, which is a law of general application, that consideration did not result in the conclusion that the persecution is not for the reason that they are 'black children'.

As a practical matter, it remains to be seen how the government will deal with the situation of a 3-year-old being granted a protection visa in circum­ stances where his parents are not per­ mitted to remain in Australia.

Justice Kirby concurred in a separate judgment and made some interesting observations about the need for courts, tribunals and officials to approach the meaning of refugee law with its broad humanitarian purpose in mind. Kirby J commented that:

the Convention was adopted by the international community and passed into Australian domestic law, to prevent the repetition of the affronts to humanity that occurred in the middle of the twentieth century and earlier. At that time, Australia, like most other like countries, substantially closed its doors against refugees. The Convention and the municipal law giving it effect, are designed to ensure that this mistake is not repeated.

Justice Kirby's comments are poignant in times when refugees from Kosovo and East Timor are being returned to their homelands against their wishes and sometimes against the best advice of humanitarian organisations. The global political situation and the form of oppression faced by individuals differs in many respects from that in existence after World War II when the Convention was being drafted. Cases such as Chen and Applicant A illustrate the need to refocus on the 'broad humanitarian purpose' of the Convention, notwithstanding the practical and political difficulties which undoubtedly arise in its interpretation.

Sonja Marsic

Sonja Marsic is a Canberra lawyer.


The ACT government is in the process of trying to bed down its budget for 2000/2001. This year has been the first attempt by the incumbent Liberal government to go through a draft budget process in which it encouraged community consultation. The government claimed victory over all manner of social ills as a result of this 'investment in social capital'.

ACT community legal centres sought to involve themselves in the community consultations and have been left battered and bruised by the process. Far from engendering any warm fuzzy social camaraderie with the department that oversees the delivery of justice services in the ACT, the bud­ get process has instead delivered a targeted attack on the concept of access to justice. In particular, the Consumer Credit Legal Service operated by Care Inc Financial Counselling Service has been de-funded altogether. So much for an investment in social capital. If the government has engaged an investment adviser in this process, perhaps now would be the time to be seeking a refund.

The ACT/CLC group


On 31 May 2000 the NSW Parliament passed an amendment to the Anti-Discrimination Act 1977 (NSW). This amendment introduces a new ground of unlawful discrimination making it unlawful to discriminate against someone in employment because of her or his carer responsibilities. The amendment provides a defence to employers who can show that it would cause them unjustifiable hardship to accommodate the caring needs of their employees. It is anticipated that the amendment will come into operation late in 2000.

The amendment is a welcome addition to the anti-discrimination regime in NSW and brings the State into line with ll other jurisdictions with the exception of South Australia, which is yet to prohibit discrimination on the ground of carers' responsibilities.

The definition of carer responsibilities in the amendment is broader than the traditional nuclear family but it does not include all extended family members. The definition will pose some problems for non-biological parents in same-sex relationships if they were not around when, for example, a child was born for whom they may now have carers' responsibilities. lt is also disappointing that the amendment covers only employment discrimination and does not extend protection to other areas of public life such as education.


Northern Territory

Bail for payback

On 4 May 2000 Justice Mildren of the Supreme Court of the Northern Territory granted bail to a traditional Aboriginal man charged with an aggravated dangerous act causing death, where he faced the prospect of traditional punishment (Ebatarinja v R 9929564 of 2000).

Clifford Ebatarinja, an Arrernte speaker, sought to return to a remote community in the central desert to undergo the traditional punishment of spearing in the legs or thighs. Ebatarinja was concerned that if he was not free to undertake traditional punishment in the usual form there may be two consequences. First, his relatives would face punishment from the victim's family in accordance with Aboriginal tradition. Second, Aboriginal elders would use 'Aboriginal magic' to kill him. With respect to the second consequence, the Court found that the defendant's belief was honestly and genuinely held and that there was a chance that the belief may affect Ebatarinja's health if he were not released on bail.

The Court found that the question of traditional punishment may be a relevant bail consideration in three situations under s.24 (1) of the Bail Act 1999 (NT): Where the defendant needed to be free for any lawful purpose; where the defendant is in danger of physical injury; or where the likelihood is that the defendant will commit an offence whilst on bail.

Justice Mildren concluded, in granting bail to the defendant, that he was not facilitating an unlawful act as there was no evidence that the victim's family would in fact impose a traditional punishment, what its form would be or if in fact it would be unlawful. • DW

Lugging behind

Sections of the Darwin arts community recently heaved a communal sigh of relief when Minister Chris Lugg was divested of the relevant portfolio and shifted (teachers' tum for fear and loathing) into Education. But as it turns out, Lugg doesn't feel himself limited by the constraints of ministry. On 10 May 2000, he rose during the adjournment debate and pronounced the Stolen Generation a fraud and a con, perpetrated by those with vested interests, and an unwarranted slur on the characters of those decent folk who formulated and carried out the policy. Nobody was stolen, and if they were, they asked to be.

Lugg attempted in his speech to impugn the methodology of Sir Ronald Wilson, author of the Bringing Them Home report, strangely enough by listing his impeccable legal credentials, which, says Lugg, in a coruscating display of mental agility, make the report 'all the more anomalous'.

Needless to say, Lugg's attack has outraged much of the Aboriginal com­ munity, including indigenous opposition member John Ah Kit, who spoke in support of the Report. • BP

South Australia

Reforming zeal in the Festival State

South Australia was, in the 1970s, the leader in many areas of law reform in Australia. How different is it 30 years later? Rather than leading the pack it is probably fairer to describe the pace of law reform as steady, incremental and generally non-controversial. At the same time, some aspects of law reform are also quite chaotic.

On the slow and steady front, the South Australian government is moving to reform legislation relating to speeding offences, driven by pressure to develop uniform laws and bring South Australia into line with other States. One bill will legislate to overcome the anomaly of not allowing deductions of demerit points for speeding offences. Currently demerit points are not deducted for these offences although they are for other driving offences. At the same time the government has also announced its intention to legislate to introduce a warning system for first offences of shoplifting. Such a system has been in place in Victoria for about 20 years. Curiously a similar proposal was put to the then-Labor government in South Australia in the mid-1980s but it was rejected due in large part to opposition from the police and the retail traders. The most recent proposal has the support of the retailers at least partly because they realise that it will reduce the work and costs involved in dealing with first offence shoplifters.

Other reform processes are more unpredictable. One example is the ongoing saga concerning reform of the regulation of prostitution. Four separate bills are before the parliament. One proposes delegalising and regulating most aspects of prostitution. At the other extreme, another bill pro­ poses in effect to criminalise more aspects of the industry but also includes prostitutes under occupational health and welfare legislation. It will be interesting to see how the parliament resolves these conflicting bills. Interested readers should also see Brian Simpson's article, 'Storm in a Wineglass', 25(2) Alt.LJ 79 (April 2000), about Adelaide brothel operator Stormy Summers, her mayoral ambi­ tions and prostitution reform.

Another chaotic reform process is the restructuring of the Commmunity Legal Centres (CLCs) in South Australia. The Commonwealth government has funded new centres in Port Pirie, Mt Gambier and the Riverland. At the same time, in a longwinded review process in co-operation with the State government, the Common­ wealth government has also decided to rationalise the number of CLCs. Tenders have been called for these new rationalised centres to commence operations in July. The CLCs have found rationalisation a difficult pro­ cess and have not managed to devise a joint position. As a result it is likely that some CLCs will close in the near future. This is almost certainly the end of the CLC movement in this State as a community based and controlled movement.

Finally on a positive note, Adelaide city voters had common sense enough to vote in a Chinese-born man to be the new Lord Mayor (not the above- mentioned Stormy Summers). This is a first for a capital city in Australia, we are told. We look forward to seeing the reforms that he will promote. • FR


Mediation over confrontation

Attorney-General Rob Hulls has expressed a preference for negotiation and mediation in determining native

title claims in Victoria. He said that there was no need for the 20 outstanding native title applications to be adjudicated in a court of law in the first instance, stressing that court proceedings should be a last resort.

Hulls' statements came after his visit to the sites claimed by the Wotjobaluk people, who lodged their application for native title rights in 1995. Ms Jenny Beer, spokesperson for the Wotjobaluk people, said that they were looking forward to the negotiations. A spokesperson from the Mirimbiak Nations Aboriginal Corporation, the native title body assisting the Wotjobaluk application, has welcomed the Attorney-General's approach, claiming it as the 'only way to address native title issues [and it] establishes a notable precedent for other State governments to follow.'

Both the government and the applicants have indicated their preference to have a land agreement formulated in the next few months. However, Cabinet has not yet released its official policy on mediation. Until this is finalised, negotiations for land rights continue between the Wotjobaluk native title claimants and other interest groups, including farmers and local councils.

Promoting private prisons

Minister for Corrections Andre Haermeyer has announced that 357 new permanent prison beds will be provided in response to Victoria's severe prison overcrowding. Of the new beds, 205 are to be publicly provided, whilst 152 are to be provided by private operators. This has caused a stir among political commentators who recall Labor's promise of 'no new private prisons' from their 1999 election campaign. The government has responded to the criticism, claiming that no new private prisons are actually being built, merely that those existing private prisons will be extended.

The announcement of the new beds comes after the coronial inquiry into the suicides of five prisoners (four deaths by hanging and one by drug overdose) at the private Port Phillip Prison in Laverton. The Coroner found that the prison operator, Group 4 and the State government had contributed to the deaths in failing to provide a safe environment for the prisoners. The Coroner found that the prison operator had been warned of the potential for hanging in prison cells prior to the suicides. It is interesting to note that the State government was also implicated in the deaths, in that their duty of care owed to prisoners was deemed not delegable to the private firm. Relatives of the deceased are currently seeking further legal advice from community legal centres.

At last ... breastfeeding

The Equal Opportunity Act (Vic) was amended in early May so as to prohibit discrimination against breastfeeding mothers in public places, which includes areas of employment, the provision of goods and services, education and the provision of accommodation. Community Services Minister Christine Camp­ bell supported the change, which she says will encourage the public acceptance of breastfeeding and foster better child and maternal health. • MR

Western Australia

Crime nets dollars - but not always good sense

Click on <> and you will be at the home page of a Perth based company trading as 'CrimeNet'. It promises a 'premier resource for protecting yourself, your loved ones and your property from crime' and states that 'our goal is to provide you with the information you need to protect yourself'. Of course, another CrimeNet goal is to make a dollar. The web site includes a pay per view database of 'criminal records'. The records are searchable by name, location, type of offence and occupation and have been compiled from newspaper reports and court records. Six dollars, paid by credit card over the web to CrimeNet, allows you to search for the record you want and a look at one record. Media reports suggest that there are 4000 records in the database.

When the site was launched earlier this year, it was the novel privacy issues that excited debate. CrimeNet promot­ ers promised accurate information and defended the public right to identify those who had been convicted of a crime. Opponents questioned the accuracy of the database and argued that the database turned a conviction for any offence at any time in the past into a life­ long sentence of, at best, stigmatisation and, at worst, victimisation.

The privacy debate ceased to be academic when a recent murder trial in Victoria was abandoned because of CrimeNet. The principle at issue in the case was not in doubt. A judge may abandon a trial that has been rendered unfair by the communication to the jury of information prejudicial to an accused person (Glennon [1992] HCA 16; (1992) 173 CLR 592). Directions from a trial judge to the jury may, depending on the facts, cure the unfairness arising from the communication. Justice George Hampel became aware that a CrimeNet record contained information about a defendant. The record was compiled from reports of an earlier trial for the same offence. As a result of an appeal, the defendant was being retried. Justice Hampel (according to a report in the Age on 25 May 2000) described the information in the record as falling into three categories: incorrect, partly correct or in dispute. Concern about the impact of the record on a juror who might view it caused the trial to be abandoned.

CrimeNet houses records that are, by definition, prejudicial to an accused. CrimeNet promoters argue that a public library similarly houses prejudicial records in the form of archived hard copy of newspapers. It is a fallacious argument. It is the likelihood of the communication of prejudicial information to a juror via CrimeNet that threatens a fair trial. A juror is unlikely to obtain the same information from a public library -having regard to the opening hours of a library and the logistics of a manual search.

The issue is on the agenda of the meeting of Commonwealth, State and Territory Attorneys-General in July 2000. No doubt, some will argue for legislation to ban CrimeNet and equivalent sites and for the site promoters to be charged with contempt. Increasingly, searchable archives of news services (eg ABC news services, Fairfax newspapers) are available on the web. These archives are a useful research tool for all manner of legitimate purposes. Should these also be banned? Should the management of those organisations also be charged with contempt? Perhaps a direction could be given at the start of each case alerting the jury not to examine or consider information about the case that comes from the Internet. There may also be value in a formal mechanism that alerts a web site promoter when a site contains material that is prejudicial to a fair trial in a forthcoming case. A site promoter who failed to remove material for the duration of the trial would, having been put on notice, be at risk of contempt. • MF

DownUnderAIIOver was compiled by Alt.LJ committee members Catherine Duff, Martin Flynn, Bill Pettett, Francis Regan, Michael Ryall and David Woodroffe along with invited writers listed under their contribution above



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