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Editors --- "DownUnderAllOver: Developments around the country" [2001] AltLawJl 35; (2001) 26(2) Alternative Law Journal 97

A regular column of developments around the country

Federal Developments

Australia and US 'Alien Torts'

It might seem strange to be writing about a piece of United States legislation in a column about Australian legal developments. Especially a piece of US legislation which dates back to 1789.

But the US legislation in question, the Alien Tort Statute, can apply to Australian citizens and Australian corporations with a presence in the United States regarding actions taken any­ where in the world. Indeed there are Australian corporations who have already felt the long reach of the Alien Tort Statute.

The Alien Tort Statute sat quietly on the statute books in the US until 1980 when it was revived in the courts. In Filartiga v Pena-Irala (United States Court of Appeals, Second Circuit, [1980] USCA2 576; 1980 630 F.2d 876), the plaintiffs, who were citizens of Paraguay, used the Statute to bring a case in the US against another citizen of Paraguay, who happened to be visiting the US, for acts of torture in Paraguay.

The Alien Tort Statute provides that: 'The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States'. The terms of the statute indicate its breadth. The Statute allows plaintiffs who are not citizens of the US to sue, in the US, individuals and corporations with a presence in the US, for acts in violation of a treaty to which the US is a party. The statute also seems to apply to violations of customary international law, including aspects of international human rights law and international environmental law.

The Alien Tort Statute was extended in 1991 by the Torture Victim Protection Act which allows citizens of the US to sue for acts of torture or extrajudicial killing 'under actual or apparent authority, or colour of law, of any foreign nation'.

The initial raft of cases under the Statute concerned individuals, such as a former Bosnian-Serb leader in Bosnia and Herzegovina, a former army general and defence minister in Guatemala and a former general in Argentina. More recent cases have targeted corporations. These have typically been large multinational resource companies.

The Statute cannot be used to bring actions against foreign governments. This is because governments are generally protected by the doctrine of sovereign immunity and the act of state doctrine. The doctrine of sovereign immunity provides the representatives of a government with a general immunity from prosecution in the courts of a foreign country. The act of state doc­ trine provides that the courts of one country should not sit in judgment of the acts of the government of another country committed in its own territory.

At the international level both doc­ trines have been weakened by exceptions which have developed, such as in relation to commercial acts, and are further developing in relation to international crimes. Developments in the latter regard, however, have not proven very persuasive in the courts of the US which defer to the protections offered foreign governments under the relevant domestic legislation of the US, the Foreign Sovereign Immunities Act.

A further general difficulty for those wishing to make use of the Alien Tort Statute is in recovering any sums awarded by the courts. Many of the defendants take opportunities to remove themselves from the jurisdiction of the US and many others do not have significant assets, at least by the time that damages are awarded.

There is now a substantial body of cases under the Alien Tort Statute. However, the line of authority is yet to be fully tested before the Supreme Court of the United States. For now, the Statute remains on the books. Its increasing use means that Australian citizens and corporations with a presence in the US will be open to the jurisdiction of the Alien Torts Statute regarding actions taken anywhere in the world. • SB


'A black day in the administration of justice in Queensland'

April 10 saw the release from prison of a man when DNA testing proved that he could not have committed the crime of which he had been convicted. Frank Button had served 10 months of a six-year sentence imposed for the rape of a teenage girl. Taking into account time spent on remand, Button had been in jail for just over a year.

Director of Public Prosecutions, Leanne Clare advised the court that there would be an investigation into the police and prosecution handling of the investigation, acknowledging that the case involved a miscarriage of justice which was uncovered by DNA testing conducted after the completion of But­ ton's trial last August. The Criminal Justice Commission has also initiated an inquiry into the police investigation and Police Commissioner Bob Atkinson has asked the force's Ethical Standards Command to review police practices to check whether appropriate standards were in place.

Button had pleaded not guilty but was convicted without DNA evidence. Sperm swabs had been taken from the victim but it had not been possible to obtain a DNA profile of the perpetrator. Investigating police had taken possession of sheets from the bed in Button's house where the rape took place but the sheets had not been analysed. The Court of Appeal was advised that investigators assumed that, because the sheets were from Williams' house, his DNA would be on the sheets as a matter of course.

After Button's conviction, his solicitor Bernard Bradley maintained efforts to have the sheets analysed for traces of DNA. When the sheets were tested, a stain produced a DNA profile which could be matched to the sperm swabs. It established that Button had not com­ mitted the crime.

Justice Glen Williams noted that investigating police appeared to have dismissed a rumour that another man had had intercourse with the victim. He described it as 'a black day for the administration of justice' which showed the need for Queensland's main forensic testing service, the John Tonge Centre, to be adequately staffed and funded.

Button had refused to take part in a sexual offender rehabilitation program while in jail, maintaining his innocence. This stance had meant that But­ ton would not have been eligible for remissions on his sentence.

Karen Fletcher, Director of the Prisoners Legal Service in Brisbane has suggested that the Queensland government should implement an 'innocence project' similar to those which operate in the USA. Such projects enable prisoners to make a simple application to have the evidence against them DNA tested.

If you want to access the decision via the Queensland Supreme Court website, you'll have to wait. At the time of writing (27 April), the decision had not been posted on the web. Indeed, the most recent Court of Appeal decision on the site was from 22 December 2000. • JG


Jail, then unwanted reprieve, for peaceful environmental protester

Sarah Bayne was arrested in March 1998 for chaining herself to a log truck during anti-logging protests at Mother Cummings peak. In Launceston Magistrates Court, she pleaded guilty to interfering with forestry operations and was fined nearly $5000. Bayne refused to pay the fine, declaring it would be an admission of guilt that she does not accept.

In February this year-some three years after her arrest - the Hobart Magistrates Court sentenced Bayne to a jail term of 51 days. This is thought to be the longest prison sentence in Australia arising from a peaceful environ­ mental protest. The court was clearly reluctant to imprison the quietly spoken, reserved law student, and suspended the jail term for six months. Bayne, anxious for the affair to conclude, is seeking ways to hasten her arrest.

Tasmanian Aborigines not 'ordinary Tasmanians'

In March, the Tasmanian Legislative Council rejected by eight votes to six a watered down Aboriginal Lands Bill that would have returned six parcels of Crown land the Aboriginal community.

The Bill was first introduced in November 1999. A Legislative Council Select Committee recommended amendments. In August 2000, the Bill was passed in the House of Assembly but adjourned in the Council to allow for more consultation with a number of interested parties. The government amended the Bill significantly, excluding two Fumeaux group islands from the proposed hand back.

Following the Legislative Council's rejection of the amended Bill, Opposition Leader Sue Napier said the decision was 'a victory for ordinary Tasmanians.' The proposed land hand back appears to enjoy considerable support in the broader Tasmanian community. Perhaps supporters are extraordinary Tasmanians.

Clean and green, but genetically modified

Tasmania is supposedly free of genetically modified (GM) crops. The State government has placed an interim moratorium on their commercial use, and is considering making this a permanent ban.

Nevertheless, between 1997 and 2000 multinational agricultural companies Aventis and Monsanto were allowed to trial GM crops under strict controls. Compliance with these controls necessitated the removal of remnant plant material following completion of the trials. In February 2001 regulatory breaches at a number of sites were discovered, including the regrowth of thousands of plants. The Tasmanian government was of the understanding that only 14 GM crop trials took place in Tasmania, but have since learnt that the number was 58, and possibly more.

The extent of the breaches by Aventis and Monsanto of the safety regulations between 1997 and 2000 is in a report currently in the hands of the Australian government, which appears reluctant to forward it to the State government. The State government is awaiting receipt of the full report before it decides what if any legal action to pursue. The 'escape' of the GM crops threatens the clean, green and GM-free image that Tasmania is promoting in a bid to attract more markets (and an increasing share of existing ones) for its produce.

Mitchell Rolls

Mitchell Rolls teaches in Aboriginal Studies at the University of Tasmania.


Detention Centre protests

Regular protests at Maribymong Immgration Detention Centre (MIDC) are continuing. Conditions at the MIDC, in particular the situation of Palestinian refugee Mohammed Darwood -kept in solitary confinement for almost six months, despite his deteriorating mental and physical health - have increased opposition to mandatory detention. Victorian Trades Hall Council, the Ethnic Communities Council and other community organisations have called a mass demonstration for

3 June 2001.

The State government has written to Minister for Immigration, Phillip Ruddock, stating that it is 'totally inappropriate' that State prisons be used to punish immigration detainees, as is occurring now. A recent Common­ wealth Ombudsman report criticised the practice of transferring people, who have committed often only minor infractions of the rules, from immigration detention to State prisons. Victorian Minister for Corrections, Andre Haermeyer, has said the practice costs Victoria's taxpayers over $1 million a year and is a breach of human rights. He demanded Ruddock 'immediately make arrangements to accept custody of ... detainees who were transferred for management reasons alone'.

This development is good news for 27-year-old Sri Lankan asylum seeker Surunga Tennakoon. Surunga was transferred to Port Phillip Prison after he spoke to the media and protested the death of his friend Viliami Tanginoa at MIDC. Surunga was told his behaviour was 'unacceptable for the low security... environment'.

Damien Lawson

Damien Lawson is a legal education worker at Western Suburbs Legal Service and a member of 'No One Is Illegal'.

Police accountability roundtable

In the wake of yet another massive compensation award to a victim of police brutality (another improper strip search), the time was ripe for a roundtable on the issue of police accountability. On Wednesday, 4 April 2001, some 30 people attended a discussion about the accountability pro­ cesses currently in place for Victoria's police. The meeting was held at the Federation of Community Legal Centres, having been organised by long-time campaigner, Pauline Spencer from Fitzroy Legal Service. It was attended by a diverse range of people from organisations such as the Bar, the Law Institute, Victoria Legal Aid, com­ munity legal centres, youth and ethnic advocacy groups, private law firms, universities and more.

A lively discussion was held examining areas such as:

• the current level of police brutality and mistreatment occurring on the street;

• the effectiveness or otherwise of the current accountability structures (ombudsman/ethical standards de­ partment (ESD)/civil actions);

• what new systems are required to overcome the current (substantial) problems; and

• what actions are needed to achieve the changes identified.

A universal dissatisfaction with the current accountability structures was identified -primarily because of the lack of independence in the ESD, which is comprised solely of police officers, the lack of teeth in the ombudsman's office as well as the present State government's amendments to the relevant legislation (as discussed in this column in the December 2000 issue) which removes personal liability for actions from the individual police officer concerned to the state. It is the Victorian taxpayer who foots the bill for these huge compensation payouts, and individual police are not financially accountable for their actions, even where they breach the law.

Possible solutions floated included:

• the establishment of an independent, transparent police accountability mechanism the structure of which could be informed by models around Australia and internationally;

• more civil suits against the police;

• academic work and statistics production looking at, among other things, complaints lodged versus disciplinary charges upheld;

• a week-long phone-in to collect raw data on police brutality and incidents where there is a failure by officers to adhere to standing orders;

• targeting the education and other criteria used to employ new police recruits;

• lobbying of MPs for their support;

• media.

This meeting is the start of what will, no doubt, be a long campaign to change the accountability structures and ultimately the actual culture of the police and their interactions with the rest of society -the people they are paid to serve. If you or your organisation is concerned about the lack of police accountability in Victoria email Pauline for regular updates on this issue ( .

Legal insurance

Victorian Attorney-General, Rob Hulls, recently helped launch a product onto the Australian market that is a legal protection plan called AussieCover.

Run by a company based in Western Australia, AussieCover is a legal insurance plan which offers customers access to a range of legal services provided by its member firms, one of which is located in each State and Territory except NT. According to an article in the West Australian quoting the chair of the company, the service is modelled on the kinds of legal services offered to union members by their unions and one of the reasons for its establishment was 'the realisation that fewer people were joining unions'.

A close examination of the services to be provided under the AussieCover service reveals that many of them are already on offer elsewhere on either a free or reduced rate basis. For example,

• AussieCover provides lawyers to handle workers compensation, TAC, personal injuries (but not 'disease, illness or sickness' which are very broadly defined) and unfair dismissal claims. All services have limits applying, for example only a trial lasting three days is covered. The majority of these claims currently attract a conditional fee arrangement ('no win/no fee') from various Labor law firms;

• AussieCover lawyers provide a free legal advice hotline. Victoria Legal Aid and other law firms and organisations already run such services;

• AussieCover provides reduced rate residential property settlement fees. So do the plethora of conveyancing firms now operating;

• AussieCover lawyers run claims by plaintiffs for motor vehicle property damage. These are often available under a third party property insurance policy, where the claimant is not at fault; and

• AussieCover provides a free one­ hour consultation on most matters. Many small and large law firms of­ fer this service to get clients in the door, particularly in relation to family law matters.

Currently, Victoria's usual bastions of free legal advice - Community Legal Centres (CLCs)-are undergoing an extraordinary process of 're­ view'. This kind of review has already taken place for South Australian CLCs. The clear, if not publicly stated, goal of this process is a reduction in the overall number of CLCs in addition to a re-focusing by those CLCs that remain at the end of the review on casework and advice provision rather than policy work and law reform (which inevitably encompasses criticism of the government). As occurred in South Australia, this will most likely be via amalgamations and tendering out the provision of legal services to other organisations, although the current Attorney-General, Rob Hulls, is on the public record as saying no Victorian CLC will be forced to close.

There is nothing wrong with Aussiecover offering legal insurance to customers who have signed up to a weekly insurance premium (for those who can afford it). The main problem ts the public endorsement by the government of the scheme at the same time as vital funding is potentially to be with­ drawn from grassroots providers of legal assistance. This is yet another example of the government abrogating its responsibilities - in this case, to provide access to justice to all at mini­ mal cost. Advising people to take out legal insurance .is not the panacea to cure the problems with the legal aid system or with CLCs, problems which are only likely to be exacerbated by the current review process. • GO

Western Australia

Lesbian and gay equality promise

Western Australian Attorney-General Jim McGinty has appointed a committee of 14, including gay and lesbian community leaders, to help develop legislative amendments to counter discrimination against lesbian and gay people in WA.

Western Australia is presently the only Australian State to deny equal opportunity protection against discrimination for lesbians and gay men. It is also the only State to have a criminal code age of consent provision set at 2 1 for consensual same-sex sexual activity. The age for consensual heterosexual sexual activity is 16.

McGinty has indicated that he wants the committee to look at the Criminal Code and the Equal Opportunity Act, the provision of property rights and superannuation benefits for de facto partners in same sex relationships, adoption issues and fertility treatment for same sex couples. He is quoted as saying that 'there can be no place for discrimination in this day and age and these changes will bring Western Australia's legislation up to date with the rest of Australia, while ensuring social equality'.

McGinty has stated that he does not want the committee to spend time revisiting ground that had already been covered on these issues. Rather, the committee is to identify those areas of the law which currently discriminate against lesbians and gay men and to provide him with a report which details the legislative reforms required to re­ move this discrimination. The introduction of legislation to end the discrimination encountered by the gay and lesbian community has been tagged as a priority in the first session of Parliament.

Christopher Kendall

Christopher Kendall teaches law at Murdoch University.

DownUnderAl/Over was compiled by Alt.LJ committee members, Stephen Bouhuis, Jeff Giddings and Glenn Osboldstone, along with invited writers listed under their contribution above.

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