Alternative Law Journal
On 11 July 2001, the Environment Protection and Biodiversity Conservation Amendment (Wildlife Protection) Act 2001 became law. The Act replaces the Wildlife Protection (Regulation of Exports and Imports) Act 1982 with a new Part 13A of the Environment Protection and Biodiversity Conservation Act 1999 (the EPBC Act) and makes some other changes to that Act including to provisions relating to matters of national environmental significance.
The new Part 13A, like the legislation it replaces, gives effect to Australia's obligations under the 1973 Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), as well as regulating the export of Australian wildlife and the import of live plants and animals. The new Part 13A is expected to commence on 11 January 2002.
• Export and import of species: Division 2 of Part 13A deals with export and import of species to which CITES applies. It is an offence to import or export a CITES listed specimen unless in accordance with a permit. The Minister is to establish and maintain a list of species listed in CITES and may apply stricter measures than are required by CITES. Certain imports and exports are exempted, consistently with Article VII of CITES, including registered, non-commercial exchanges of scientific specimens between scientific organisations and the import and export of certain specimens as personal or household effects.
• Australian native species: Division 3 of Part 13A regulates the export of Australian native species, whether or not those species are listed under CITES. A permit is needed for the export of any native wildlife specimen that is not included in a list of exemptions established by the Minister. Export for commercial purposes of a live native mammal, bird, amphibian or reptile is prohibited.
• Import of live specimens: Division 4 provides that no live specimen can be imported into Australia unless it is included in a list of specimens suitable for live import, either subject to permit or without restriction, established by the Minister. Before the Minister may amend the list to allow a new species to be imported, an assessment of the potential impact on the environment must be conducted.
Importantly, the Minister must now take account of the precautionary principle in making certain decisions under Part 13A. The humane treatment of wildlife is also given greater weight than in previous laws. Penalties are increased -up to 10 years imprisonment and 1000 penalty units for unlawful export or import of specimens. A defendant charged with unlawful pos session of a CITES specimen or live non-native specimen bears an evidential burden in relation to proof of lawfulness.
• Fisheries: Part 13 of the EPBC Act, has been amended to allow the Minister to accredit Commonwealth and State management plans for fisheries, and Commonwealth fisheries regimes.
• National environmental significance: Part 3 of the EPBC Act prohibits, subject to assessment and approval, actions having a significant impact on matters of national environmental significance. The amendments allow regulations to provide that a specified action is taken to be an action to which a prohibition applies. Also, the Minister is now authorised to issue a certificate that a person has contravened, is contravening or would contravene Part 3 if the Minister has reason to believe that this is the case. A certificate is prima facie evidence in proceedings for payment of a civil penalty, or for an in junction to prevent a contravention of the Act. Other amendments relate to deemed referrals, existing uses of land and sea, and the meaning of significant impact.
These amendments commenced on 11 July 2001.
Susan Reye is General Counsel to the Department of the Environment and Heritage, Australian Government Solicitor.
The views expressed are those of the author and not those of the Australian Government Solicitor or the Department of the Environ ment and Heritage.
The report of the NSW Legislative Council's General Purpose Standing Committee No 3 titled 'Cabramatta Policing' should be required reading for those in politics, the judiciary, bureaucracies and corporations, who are inexorably pushing citizens further away from the decision-making pro cesses that affect their lives.
The report tells us that those who should have listened ignored the voices of the people of Cabramatta about their drug-related problems. It tells us the NSW Police Force (why it is called a 'Service' is still a mystery to this scribbler) operates in an authoritarian way and is in effect ruled by 'fear', treating dissenters harshly41t tells us class issues are alive and well, as evidence showed users from Sydney's northern and southern suburbs take advantage of Cabramatta as a distribution point for heroin and return to their homes to shoot up. Yet it is only Cabramatta that attracts the opprobrium. As another witness stated, if the problems of Cabramatta were present in the affluent Sydney suburb of Roseville 'there would be a great hue and cry'.
The report also tells us Cabramatta is a real community: one senior police witness made clear it was neither 'an Asian enclave' nor a 'ghetto' and it demonstrated the ease of co-existence of the many groups that make up its community. The Committee noted the 'rich civic life' of Cabramatta.
Some politicians were scathing about the Committee's investigation and about some of those, especially police, who gave evidence to it. Curiously, neither the local MP for Cabramatta nor the Police Commissioner gave evidence to the Committee, despite invitations, although the Commissioner sent a deputy.
During the course of the Commit tee's inquiry the State government announced a 'package' of initiatives to deal with the problems. The Commit tee is to review the result of the government's 'Cabramatta Package' and the response to the Committee's 25 recommendations, described by the Police Minister as 'sensible', in2002. • PW
In February 2001 we brought news of the discrimination case (Marsden) in which the Federal Court opened the way for a decision that drug dependency is a disability for purposes of the Disability Discrimination Act. We said 'whether that decision is actually made, and survives an inevitable appeal, will be known over the next year or so'.
Well, now we know: Marsden settled in July 2001. But this was not the usual 'terms not to be disclosed' settle ment: the terms were in the form of the following public statement:
Coffs Harbour & District Ex-Servicemen & Women's Memorial Club and Wayne Marsden have agreed to resolve their differences.
The Club regrets that the media reporting of this case may have been inaccurate, sensationalist and distressing to Mr Marsden.
The Club accepts that Hepatitis C and opioid dependence are disabilities.
The Club agrees that its actions in refusing Mr Marsden service of alcohol and expelling him from membership of the Club were based on a misunderstanding. The Club accepts Mr Marsden's explanation that he was not affected by alcohol or illegal drug use in the Club.
Mr Marsden acknowledges that the Club has responsibilities under the Liquor Act 1982, the Registered Clubs Act 1976 (as amended) and the provisions therein relating to responsible service of alcohol and harm minimisation.
The Club accepts that its decision to expel Mr Marsden may have been excessive in the circumstances but believes that there may have been a different result if Mr Marsden had attended the Club's board meeting to give his side of the story.
The Club· will welcome Mr Marsden back as a member with full rights and responsibilities of Club membership.
(signed) S Fraser
CEO Coffs Harbour & District Ex-Servicemen & Women's Memorial Club;
We can assume this is a good result for the parties. It is also a good result for the public interest. While there is no formal decision on the status of drug dependency as a disability, there is a substantial concession on the issue in this case, and consequently little reason for a government to legislate away existing statutory protections, as NSW was threatening to do.
The last issue of the Alt.LJ highlighted some of the verbal gaffes of NT Chief Minister and Attorney General Mr Burke in relation to the judiciary. Has he learnt from past blunders? Clearly not if the recent contempt judgment against him by senior Federal Court judge is any guide. On 24 July 2001 Justice Wilcox found the Chief Minister/Attorney-General guilty of con tempt of court for (among other things) 'intimidatory comments' uttered at a
press conference on 7 June 2001. Justice Wilcox observed that the Attorney General:
... deliberately adopted a course of con duct that he should have known to be un acceptable. He was attempting to influence the course of the litigation by putting pressure on NAALAS and potential witnesses.
Mr Burke has indicated he is appealing against his conviction but has stubbornly refused to stand down as AG pending this appeal. The Victorian AG raised the question of his fitness to act as the chief law officer at the recent State and Commonwealth Attorney-Generals' meeting in Darwin. The response of Mr Burke was to threaten to take his bat home and cancel the whole proceedings if comments and criticism on his standing were pursued.
Sadly we in the Territory are used to our rulers being regarded as figures of fun elsewhere. Even sadder is our knowledge that our reputation as a joke jurisdiction seems more and more justified.
Mr Burke was fined for contempt. The fine is personal and Mr Burke has confirmed that if his appeal is unsuccessful he will stump up out of his own pocket. He was more ambiguous about whether he would be prepared to personally pay the legal costs should he lose. However, the order of Justice Wilcox was plain and he commented:
I see no reason for an order against the Northern Territory government; the action that constituted contempt was an action for which Mr Burke ought to be regarded as personally responsible. There is no justification for putting the burden of NAALAS' costs on Northern Territory taxpayers.
Since these costs may run into six figures if the appeal founders, their potential burden far outweighs the $10,000 fine. We taxpayers must be vigilant to ensure that in the event of an unsuccessful appeal Mr Burke pays the full financial price for his ill-judged and intemperate outbursts.
Mr Burke has called a Territory election for 18 August 2001. This is interesting timing, as it avoids any embarrassing fallout from a failed appeal. It also falls, perhaps not uncoincidentally, two days before the hearings of two other cases relating to politicians, the Bradley and Tambling cases. In the Tambling hearing, Country Liberal Party (CLP) stalwart Senator Grant Tambling is challenging his disendorsment for not toeing the party line over online gambling legislation. That case may well cause the party serious discomfiture by revealing discord and strife within the CLP hierarchy.
By the time this is read we shall know if the CLP has triumphed yet again and Mr Burke can continue to babble on. • KB
In late July, right-wing One Nation Party founders Pauline Hanson and David Ettridge pleaded not guilty in committal proceedings on fraud charges. Hanson, former member of the House of Representatives for Oxley, is charged with three counts of fraud under the Criminal Code; Ettridge, former party director, faces one charge.
The charges concern the registration of One Nation under the Electoral Act (Qld)prior to the 1998 State election. In a civil case mounted by One Nation candidate Terry Sharples, Justice Ros Atkinson found the party's registration was induced by deceptive representations. Specifically, she found the party had been structured as an association and company controlled by Hanson, Ettridge and David Oldfield. The party's considerable grass roots support had allegedly been coralled into a separate entity, Pauline Hanson's One Nation Supporters Inc.
Hanson faces two extra charges, since it was she who formally applied for and received the $0.5 million public funding that flowed from the party's 22.5% vote in 1998. Ettridge (now estranged from the party) and Oldfield (now a NSW Legislative Council member) are regarded as the masterminds of the party's control-fetishised structure. Hanson, in the press, has admitted the registration was based on errors. Both defendants deny any intent to mislead.
Hanson repaid the $0.5 million, in large part through donations. She vows to fight the charges, and hopes supporters will pledge $0.2 million to assist. If she has her way, Ettridge will receive no support for his costs from One Nation.
Meanwhile, Sharples (a veteran litigant in person having also petitioned the High Court to unseat One Nation's Senator-elect, Heather Hill) continues his quixotic battles. He was turfed out of the committal hearing after appearing uninvited at the bar table proclaiming he had new evidence. This correspondent, who gave pro bono assistance to Sharples' cases, detects possible litigation addic tion, if not litigation neurosis.
The de-registration and fraud cases are firsts in Australia. But the prosecution faces an uphill battle. Sharples' case only succeeded on Jones v Dunkel grounds after One Nation declined to give evidence. Besides the higher onus, criminal fraud requires a clear intent to deceive for a benefit. The argument will be that party registration, giving access to control of public funding, as well as ballot label rights, is such a benefit.
The charges are political oxygen for One Nation. Mere charges do not disbar candidature and the committal may coincide with Hanson's Senate campaign. If tried post-election, sympathisers will see her as a martyr. Hanson, displaying her usual appreciation of the separation of powers, has declared the charges a political witch-hunt.
The primary victims of any fraud are those who believed they were members of One Nation. But, bizarre as the party's structure was, policy making in most parties has been insulated from ordinary members. Meanwhile, the Beattie government is due to appoint a new Electoral Commissioner whose first task may be to deal with proposed legislation for state oversight of inter nal party ballots. • GrO
In a move seen by many as racially discriminatory the Adelaide City Council, under pressure from the State government, has moved to declare a city wide dry zone. There is a perception that this decision is motivated to a large extent by concern with the behaviour of Aboriginal people in Victoria Square who use the Square as a meeting place. After a media campaign directed towards 'unruly' behaviour of people who occupy the Square, calls arose for the declaration of an alcohol free zone in the Square. But this would have been blatant in its discriminatory application. The result has been a dry zone which applies to the whole CBD and North Adelaide. While this does not mean the closure of hotels nor the prohibition of sidewalk dining and drinking, it has had the interesting result of removing the right of affluent citizens of North Adelaide to consume a nice red while playing petanque in one square in the city suburb. An action group to campaign for bocce players' justice is no doubt forming. In the meantime the Adelaide City Council has suggested that there be erected an Indigenous statue in Victoria Square to officially recognise the Square as a location of cultural importance for Aboriginal People. Perhaps a big set of petanque balls could be placed in the North Adelaide Square to mark the spot where the game was once enjoyed ...
Adelaide City Council has continued to move against a number of home less people living in a tent city in parklands on the city edge. In late May the campers were issued with notices to move on but after some publicity these were not enforced and the Department of Human Services was called to arrange accommodation. This saga continues …
And finally, the City Council has refused to fund spaces for graffiti artists to practise their art. It has been reported that one councillor said the Council should be removing graffiti not encouraging it.
As the tourist brochures state -'if variety is "the spice of life", then Adelaide is a hot destination'. • BS
New anti-smoking legislation in Tas mania takes effect from 1 September. From that date smoking will be banned wherever meals are served, and breaches of the ban risk a $5000 fine. Smoking, however, will not be banned where only snacks are served. But what is a meal and what is a snack? Apparently it's whether one eats with one's fingers or cutlery. Food requiring implements is deemed a meal; food eaten with fingers a snack. The Australian Hotels Association is lobbying to have the definition changed. They want any food served on entree-size plates to be deemed a snack under the legislation.
Tasmania now boasts a Law Reform Institute. Based at the University of Tasmania's law faculty, the institute is to undertake research and examine legal issues for the purposes of law reform. To this end in addition to initiating its own projects, it is to be responsive to issues raised by the community, the State government and the University. At the Institute's launch much emphasis was given to its planned function of ensuring that the State's legal system keeps abreast of the interests and concerns of the broader community. As Premier Jim Bacon somewhat optimistically declared: 'We now have an institute that will ... ensure that our legal system reflects contemporary community values'. Its first task is to review the Commissions of Inquiry Act of 1995.
Mitchell Rolls lectures in Aboriginal Studies at the University of Tasmania.
Under the guise of enshrining the 'right to peaceful assembly' as contained in Article 21 of the International Covenant on Civil and Political Rights, the State Labor Government is proposing to 'modernise' the Unlawful Assemblies and Processions Act 1958, replacing it with a Peaceful Assemblies Bill. In fact, this Bill removes some of the safe guards in the old Act and dramatically increases the scope of police powers.
Under the old Act, a magistrate was required to 'read the riot act' ordering a crowd or gathering to disperse before police could use force. This separation of police and magistrate functions was a separation of the executive and judicial powers to ensure some limits to the political use of the police force.
Under the proposed Bill this safe guard is removed. A police officer, of the rank of senior sergeant or above, may give a direction to an assembly of people (demonstration, march, picket line and so on) to disperse if the officer reasonably believes the assembly may become a 'riotous assembly' which is defined as 'an assembly, whether stationary or moving, which is being carried on in a manner involving unlawful physical violence to persons or unlawful damage to property'. Like new laws in the Northern Territory, these changes give the police extensive power to disperse a crowd they don't want hanging around for whatever reason. Any gathering - from a demonstration or a picket line to a football crowd or a street festival -can be judged as having the potential to act violently, by its very nature of being a crowd.
Police are under no obligation to ensure that everyone has heard the order to disperse because the order need only be audible to 'as many of [those assembled] as is reasonably practicable'. Any one who remains (or is unable to leave) after 15 minutes becomes guilty and may face a $1000 fine. As the police then have the power to disperse the assembly 'using no more force than is reasonably necessary', people may also cop a baton charge, as seen at the recent S11 protests which Victoria police have described as involving 'reasonable force'.
This regressive legislation should be of considerable concern to traditional Labor supporters, the union movement, which is not shy when it comes to putting on a 'peaceful assembly'. Public opposition to the Bill is growing and it may yet be prevented from passing the spring session of parliament.
Damien Lawson is a legal education worker at Western Suburbs Legal Service
In partnership with Blake Dawson Waldron, the Federation of Community Legal Centres Vic and North Melbourne Legal Service are working towards establishing Victoria's first community legal centre for young people. The Centre will not only fill a significant gap in service delivery to young people in Victoria, but is a unique project that will bring together the expertise and resources of both the private profession and community legal centres.
The service will be based at Frontyard Youth Service in the Melbourne CBD, which has agreed to pro vide premises to the Centre. Frontyard consists of an integrated team of service providers who work collaboratively to address the needs of young people at risk, including accommodation, financial, legal and health needs.
The Centre will not only provide a legal advice and casework services to clients of Frontyard, but will implement the model for a young people's legal service developed by the Federation over the past six months. Under this model, the Centre will resource the existing network of private and com munity-based legal services working with young people in their local com munities. The model will also create opportunities for the consolidation and expansion of current services provided by community legal centres, such as the various law education projects and Youth-Law lines. Through the involvement of the National Children's and Youth Law Centre on the management committee, the Centre will also provide support in Victoria to that Centre's award winning web-site Lawstuff.
Sarah Nicholson is Children and Youth Lawyer, North Melbourne Legal Service.
The Supreme Court has found Esso guilty of 11 offences under the Occupational Health and Safety Act, despite the company's protestations that blame should lie with their workers. The charges flowed from the 1998 Long ford gas explosion which killed two workers, injured eight others and cut gas supplies to the State. Rather than admitting liability and providing adequate compensation, Esso pointed the finger at their workers.
In handing down the fine of $2 mil lion (a record for breaches of this Act), Supreme Court Justice Philip Cummins blasted Esso for displaying a 'lamentable failure to accept responsibility'. He said the 'events of 25 September 1998 were the responsibility of Esso - no one else. Their cause was grievous, foreseeable and avoidable'. The case again exonerated the workers at the plant whose actions had previously been vindicated by the findings of the Longford Royal Commission on 28 June 1999.
The decision of the Court further strengthens the civil claims launched by lawyers acting for those businesses and individuals who suffered losses as a result of the interruption to gas supply. Further, as Kennett had removed the rights of workers to sue for negligence under the Workcover legislation, and the Labor government refused to fully backdate the restoration of those rights, the Longford workers who were injured in the blast will be seeking compensation via s.86 of the Sentencing Act. Unions, citing this case and other horrendous incidents of workplace fatalities, have called on both sides of parliament to support the Crimes (Indus trial Manslaughter) Bill. This Bill would widen the net to catch more directors and senior managers who fail to ensure a safe workplace. It would also significantly increase the penalties attaching to those found guilty under the Act. • GIO
Given their nature, it is easy to forget that shopping centres are privately owned and that the public's right of entry is based on a mere licence. This licence can be tenuous for many young people, who may find their access to shopping centres is limited because shopping centre owners or their agents perceive that young people are contrary to their commercial interests. Accordingly, youths may be split up or moved along by shopping centre security sim ply because they are hanging out in a group. Clearly this can create problems in terms of access to essential services.
Age-based provisions in anti discrimination legislation should be capable of addressing discrimination by commercial providers of goods and services. However, Western Australia's Equal Opportunity Act does not cater for the inherent power imbalance that makes many young people feel unable or unwilling to pursue a discrimination claim on their own or as a group. Currently, instances of age-based discrimination remain unaddressed because young people are often intimidated by the process designed to protect them.
This problem could be addressed by allowing bodies such as youth legal ser vices to represent young people in equal opportunity proceedings. The New South Wales legislation provides a suitable model for WA in the consideration of this problem. In that State, representative bodies have a conditional right to pursue a discrimination claim on behalf of consenting complainants.
SCALES, the legal clinic attached to Murdoch University, has recently received funding to look at this and other issues that affect the civic rights of young people in the southern suburbs of Perth. It is hoped that the government will meet its obligations to youth by looking seriously at any recommendations resulting from this study.
David Christensen is studying law at Murdoch University
A motion put forward at the recent Liberal Party convention in Western Australia seeks to significantly increase the volume of data that our government holds on its citizens. The motion pro poses that all babies born in Australia and all persons who are intending to stay in Australia for more than six months be fingerprinted, and have a sample of DNA taken. The convention schedule did not allow time for the motion to be discussed, and it has accordingly been reserved for future consideration. In light of the Liberal Party's opposition to the concept of the Australia Card one would assume that that the proposition will cause some controversy. Unless, of course, they are aware of some impending infant crime wave. Criminals these days are just get ting younger and younger. • DD
DownUnderAI/Over was compiled by Alt.LJ committee members Ken Brown, Danielle Davies, Graeme Orr, Glenn Osboldstone, Simon Rice, Brian Simpson, and Peter Wilmshurst together with invited writers listed under their contribution above.