Alternative Law Journal
|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Alternative Law Journal |
|
On 11 April 2002, the High Court of Australia handed down its decision in Minister for Immigration and Multicul tural Affairs v Khawar [2002] HCA 14.
The case is notable for its consideration of whether an application for refugee status can be based on instances of domestic violence.
The case involved an application for protection visas by Mrs Khawar and her three children. The evidence in support of the application included threats to set the applicant on fire and to throw acid on her, as well as instances of domestic violence leading to hospitalisation. In her application, Mrs Khawar stated that the authorities in Pakistan had not responded to her requests for assistance.
In a 4:1 decision (Gleeson CJ, McHugh, Gummow and Kirby JJ; Callinan J dissenting) the High Court found against the Minister for Immigration and Multicultural Affairs who had appealed the decision from the Full Federal Court.
The majority found that the lack of response by the authorities, due to discrimination in the conduct of their duty to provide persons with protection against violence, might be sufficient to ground an application for refugee status. To quote from Chief Justice Gleeson:
it would not be sufficient for Ms Khawar to show maladministration, incompetence, or ineptitude, by the local police. That would not convert personally motivated domestic violence into persecution on one of the grounds set out in Art 1A(2). But if she could show state tolerance or condonation of domestic violence, and systematic discriminatory implementation of the law, then it would not be an answer to her case to say that such a state of affairs resulted from en trenched cultural attitudes. [para 26]
Chief Justice Gleeson, McHugh and Gummow JJ were of the view that 'women in Pakistan' may be a sufficient social group in considering an application for refugee status. To quote again from the Chief Justice's judgment:
The size of the group does not necessarily stand in the way of such a conclusion. There are instances where the victims of persecution in a country have been a majority. It is power, not number, that creates the conditions in which persecution may occur. In some circumstances, the large size of a group might make implausible a suggestion that such a group is a target of persecution, and might suggest that a narrower definition is necessary. But I see nothing inherently implausible in the suggestion that women in a particular country may constitute a persecuted group... [para 33]
Justice Kirby also briefly considered the issue of what may constitute a particular social group before noting that there was material before the Tribunal that may have enabled it to define a narrower class than 'women in Pakistan' (paras 128-9).
Justice Callinan dissented from the majority, arguing that it was 'unlikely' that 'half of the humankind of a country, classified by their sex' could form a social group for the purpose of considering an application for refugee status (para 153). Justice Callinan went on to note that 'there will always be questions as to the efficacy and availability of local measures to prevent [domestic violence]' and that '[w]hat there is here is what sadly occurs from time to time everywhere, as any experienced lawyer knows' (para 154).
The case is not altogether dissimilar from R v Immigration Appeal Tribunal, Ex parte Shah [1999] UKHL 20; [1999] 2 AC 629, a deci sion of the House of Lords in the United Kingdom. In that case, Lords Steyn, Hoffmann, Hope and Hutton (Lord Millett dissenting) held that two women at risk of being falsely accused of adultery could form part of a social group in considering an application for refugee status. The House of Lords also held that the persecution the women feared was caused by their membership of a social group as the State of Pakistan had denied them the equivalent protections available to men. • SB
The NSW Ombudsman reported to Parliament about major systemic problems in the NSW Department of Community Services (DOCS). Subsequently, a NSW Parliamentary Committee has begun its own inquiry. The government says reforms are underway, whilst claiming that thousands of children sleep safe at night because of DOCS. The public service union says there is a climate of fear in DOCS between management and staff. Meanwhile, a leaked internal memo suggests DOCS didn't know where many of the children in foster care actually were.
The Ombudsman says his ongoing investigations into DOCS are 'unprecedented' and lists the following issues as under investigation:
• failure to investigate allegations of employees abusing children
• DOCS response to increased child abuse reports
• DOCS implementation of recommendations to reduce risk to children
• poor internal administrative practices, including poor record keeping, problems with the computerised Client Information System, case allocation problems when a family transfers to another DOCS office, lack of knowledge about policy and procedure and the failure of information flow between Head Office and branch offices,
• failure to notify the Ombudsman of allegations about DOCS employees abusing children, and
• procedures for dealing with FoI requests.
A quick check in the archives will reveal that little of the systemic issues in the Ombudsman's report are new, but he has done the citizens of NSW a favour by bringing so many concerns together in one place. To give some idea of the pedigree of the Ombudsman's report, consider these non-exhaustive points about DOCS, drawn from sources other than the media.
In February 1997, the NSW Council on the Cost of Government reported on various DOCS problems, including: senior management deficiencies; ad hoc monitoring, research and review functions; ambiguous accountability for service delivery; a lack of any management information system and unclear resource allocation bases.
In January 1998, the NSW Council of Social Service (NCOSS) convened a summit of70 major welfare bodies and unions to assess the 'deep seated problems' of clients of DOCS. NCOSS noted that: 'The continuing crisis in DOCS will not be solved until we have an absolute focus on effective policies, adequate resources, the best training and support, and structures capable of delivering positive outcomes for vulnerable children, families and people with disabilities'.
In a 1995 book titled The Human Cost of Managerialism (edited by Stu art Rees and Gordon Rodley), an obvious but anonymous author, using the nom de plume Col Face, told tales of life in DOCS, and declared:
The catchcry of productivity and efficiency accompanied a number of 'restructures' resulting in cuts to the work force and a reduction in real dollar terms of funding to non-government ser vices. The staff cuts were accompanied by the introduction of new technology and the Senior Executive Service (SES). The cumulative effect of these actions was to reduce services to the individuals · families and children DOCS claims t serve, while government propaganda created an expectation of better access to high quality services. The net result is a work force, in both government and non-government welfare services, that feels used, ignored, devalued and under increasing strain. [p.l83]
In December 1997, the Community Services Commission (CSC) issued a report about the death of a four-month-old baby. Many of the observations of the CSC are echoed in the 2002 Ombudsman's report but more significantly, the CSC report stated:
There appears to be a reluctance on the part of senior management to acknowledge or to come to grips with resource shortages and their impact on workloads and staff. A significant onus is placed on CSC Managers to overcome resources problems locally. [p.9]
On 14 June 1996, the NSW Government and Related Employees Appeals Tribunal (GREAT), dismissed DOCS action against a country divisional manager, tending to confirm what had been said in The Human Cost of Managerialism and concerns about the current climate in DOCS. The DOCS case was that the employee had failed in her duties as a local manager, but GREAT recognised an increase in workload, a lack of officers, particularly experienced officers, out-of-date procedure manuals, failure to communicate instructions and poor personnel management practices - all senior management issues-as the root cause of the problem. GREAT noted that the DOCS approach to crisis in the system was to pick on personnel rather than correcting systemic problems before turning to individuals.
How many Directors-General ago were all these issues? Needless to say, little about these issues appears in any DOCS Annual Reports -reinforcing the value of reports by people like the Ombudsman. It is to be hoped that a stream of specific Ombudsman's reports reaches Parliament over the next year.
All this points to a total failure of the rule of law, sacrificed for the rule of meaningless managerial fads and the rule of accountants. Despite a commitment in the recent NSW Budget to add extra staff, a failure to solve the managerial and systemic problems identified by the Ombudsman means these extra workers will be little more than 'notification fodder'.
A NSW election is coming soon (March 2003) and bidding has already started for the sale of apparitions about the way to control crime and the need for more prisons, not to mention the illusory 'reform' of tort law. Kids and the deprived-that is, DOCS clients will again be ignored and in a few years we will be reading another Ombudsman's report. Perhaps someone's thought-lines need some rewiring? The Ombudsman's report can be accessed at
• PW
Australia-wide, youth bankruptcies have for some time exceeded bankruptcies for those over 54 years, and been on a par with the 45-54 age group. Queensland leads the nation in the rate of personal bankruptcy, but in particular has the highest rate of youth bankruptcy. In the under 25 bracket, Queensland accounts for 30% of all personal, ie non-business, bankruptcies.
Worryingly, whilst bankruptcies in the economically most active age bracket (25-44) have declined significantly in the last couple of years, the numbers have climbed amongst both younger and older Australians.
Unemployment is the most commonly cited factor in personal bankruptcies and, as Simon Cleary, Legal Aid Queensland's Youth Advocate notes, Queensland has particular problems with youth unemployment. But inadequate and insecure income is only one side of the equation. The other is exposure to unaffordable consumption.
Mobile phones are a significant risk factor in youth insolvency. Young people are a central target of this hyper competitive market. They are signed on to long-term deals, typically with unlimited financial exposure and at often usurious rates with little regard for credit risk or even if the user has more than one service. Bankruptcy statistics do not record this problem, since they use a narrow category of 'excessive use of credit', excluding contracts of supply such as mobile phone deals.
But, as Simon Cleary observes, in many ways mobile phone plans are credit supplies: parallels with the ease of access to credit cards are clear. Indeed the industry is hoping to profit from this, as it experiments with 'third generation' models under which purchases would literally be paid by phone, with the phone company acting as the financing/billing agent. The immediate challenge for the law and regulators is to start conceiving of phone plans as potential credit traps and to treat them accordingly.
On 1 June, Queensland awoke to new restrictions on smoking. As part of the National Tobacco Strategy, the Tobacco and other Smoking Products (Prevention of Supply to Children) Amendment Bil/2001 comes into effect, after a long lead time.
The Bill is somewhat misleadingly named, since there are only limited changes aimed at supply to youth. These are: increased fines for supply to minors, restrictions on retail product placement and promotional signs, and the corralling of pub vending machines into bar and gaming areas, to help staff police their use.
The big changes are limitations on where smokers will be allowed to light up, to decrease passive smoking. The legislation bans smoking in all enclosed places, with a limited number of exceptions. Only two important zones will be open to smoking: private dwellings and vehicles (including those used for business, unless the smoker is alone) and licensed premises (other than a dining area during meal time).
Of course that still leaves every open area-unless the occupier wants to ban smoking. Further, where smoking is permitted, areas need not be cordoned off, so, for example, smoke will drift from a bar into the dining area. The most curious compromise is that smoking is forbidden in casinos, but allowed in 'premium gaming' rooms.
So, if you are enjoying a durry indoors, stub it out now - unless you're at home, nursing a pint at your local, or you are one of those many AltLJ readers who enjoy a Havana cigar as they 'high roll' their spare millions away! • GO
In the pre-dawn of 5 March 2002, dozens of police and Department of Natural Resources and Environment staff broke up Australia's longest-running forest protest at Goolengook. Fort Goolengook had been constructed by the protesters to afford themselves some limited protection following a vicious attack by a violent mob of drunken loggers in February 2000. The criminal charges laid against some of the offenders in the wake of that attack are only now being heard. Following demolition of the blockade, the state government spent at least $600,000 to keep the public out of the Goolengook forests and to allow the loggers in. Measures included round-the-clock guards, a large police presence and the establishment of a 25 kilometre 'temporary exclusion zone'. A similar zone was also set up around the Wombat forest near Daylesford. According to Senior Counsel's advice, these exclusion zones are illegal as beyond the Department's power.
Several commentators have expressed the view that the decision to forcefully dismantle the five-year blockade was a cynical attempt by the state government to mollify the logging and woodchipping companies and the CFMEU's Forestry Division. This is because the raid came remarkably soon after the release of a report revealing the Department had been massively over-estimating the number of saw log-quality trees remaining in Victorian state forests which prompted the Premier to announce reductions in saw log volumes in some areas (tragically, no reduction in woodchip levels or area to be logged was countenanced).
In the wake of all this, NCS Pearson (an international media company with over $10 billion in revenue, which counts the Red Cross, Nestles, McDonalds and KPMG amongst its clients) was commissioned by Concerned Residents of East Gippsland to undertake a poll of the residents of East Gippsland, including Orbost. The entirely independent poll cost the small group $7000 of its meagre funds. On 24 and 26 April 2002, 400 people were interviewed. The interviewees reflected the population age and gender distribution (to within 3%) of the Shire-one quarter were aged 65 or over and 7% were employed in the logging industry.
The results were illuminating. Two-thirds of the interviewees answered 'no' to the question 'Do you think old growth native forests should be clearfell logged?' Fifty per cent thought the Gippsland Regional Forests Agreement had not worked, while only 15% believed it had. Almost 60% of the respondents believed tourism, rather than logging, offered 'greater potential for providing secure, long-term jobs in East Gippsland'. Seventy per cent answered 'yes' to the question 'If there was an alternative for providing sawn timber-such as plantations, would you agree with the phasing out of native forests?' (In fact, suitable plantations exist across the border in NSW which are as close to East Gippsland as the export woodchip mill at Eden.) And almost half thought there was 'too much woodchipping' (this in the 'woodchipping heartland' of Victoria). There was no clear support for the way the Department 'manages' forest resources nor for what the government did in trashing Goolengook.
East Gippsland is an area where logging dominates the local culture, if not the local job market (logging and milling provides employment for just 2.8% of the Shire and just I 0% of the inhabitants of Orbost -far less than the strident voice of the industry would suggest). However, this poll showed that a significant proportion of ordinary people living in East Gippsland is fed up with the Department's mismanagement of our precious forests. The poll reveals that many residents are open to the possibility of alternative industries that would help protect remaining old growth areas and provide employment opportunities. It is a sad indictment of society when a small, not-for-profit organisation-rather than the state government-feels obliged to take the initiative and commission a survey of local community views about government decisions purportedly taken on their behalf. Or are government's decisions in this region made simply to benefit multi national woodchipping companies (proportionally, very low employers) and one union, at the expense of the community and the environment?
J. Lo Biafra
J. Lo Biafra is a Melbourne lawyer.
The Public Interest Law Clearing House (PILCH) has received notification from the Department of Defence that the Defence Signals Directorate unlawfully intercepted communications between the MV Tampa and solicitors from PILCH.
Solicitors from PILCH attempted to communicate with asylum seekers aboard the MV Tampa to assist them to exercise their rights under the Migration Act 1958 (Cth) and human rights law. When it became apparent that the asylum-seekers were being held incommunicado, PILCH approached Liberty Victoria to bring an application in the Federal Court for the grant of a writ of habeas corpus on the asylum-seekers' behalf. The writ of Habeas corpus is a common law remedy which orders the release of a person who is detained without lawful authority. The application was brought because Liberty Victoria did not have standing to prosecute the rights of the asylum-seekers under the Migration Act.
The Inspector-General of Intelligence and Security, Mr Bill Blick, found that the interception of communications between PILCH and the MV Tampa may have provided advance notice of legal proceedings against the federal government. Advance notice of proceedings may have enabled the government to formulate a legal and political response that ensured the asylum seekers could not vindicate their fundamental human rights.
It is essential to any meaningful notion of democracy that the government acts in accordance with the law. This includes respecting the privacy of Australian citizens, discharging humanitarian obligations, and observing the rights of asylum-seekers under international law. • PL
A report produced by Enforcement Management reveals that there are 124 people with 'special needs' who have accrued 5399 warrants for unpaid fines relating to behaviours associated with those needs. These include fines for begging, travelling without a valid ticket and drinking in public - offences which, in certain circum stances, are properly characterised as manifestations of poverty and disadvantage. The amount owing under the warrants exceeds $1.2 million.
In response to the report, the Magistrates' Court-in conjunction with the PERIN (Penalty Enforcement by Registration of lnfringement Notice) Court, the Sheriff's Office and the Homeless Persons' Legal Clinic-has recently established the Enforcement Review Project. This Project aims to identify and assist members of the community with special circumstances who incur multiple fines and whose circum stances diminish their responsibility for the infringements or render them unable to pay. 'Special circumstances' include homelessness, intellectual disability, psychiatric illness, alcoholism, substance abuse, family fragmentation and severe social dysfunction.
The Enforcement Review Project will develop a process whereby matters pertaining to people with special needs are brought before the Magistrates' Court for resolution. At present, such matters generally proceed through the PERIN system, amassing costs along the way. The Magistrates' Court, unlike the PERIN system, is equipped to address issues underlying behaviours such as begging and public drinking, provided that such issues are brought to the attention of the Court.
For more information about the Enforcement Review Project contact Anne Condon, Disability Coordinator at the Magistrates' Court, on 03 96287914. • PL
Over the past few years, workers in community-based agencies and government departments have been hear ing variations on the same frustrating theme: 'There is such a lack of resources and energy to coordinate responses to human rights issues in WA. What happened to activists pushing for law reform? Agencies have their funding so tightly tied by their funding bodies that they feel they can't speak up about controversial issues, or criticise the departments that fund them ... '
In an effort to deal with these frustrations, a new community legal centre, Human Rights WA (Inc), has been formed.
Launched on 10 May 2002, Human Rights WA is deliberately not tied to any government-funding program and currently relies on volunteer workers and management.
The objectives of HRWA are to:
• form strong links with agencies that work in the areas of human rights and public interest law and policy;
• facilitate information coordination and networking;
• perform a 'human rights watch' function, leading to media action and lobbying;
• provide training and education around advocacy;
• resource community-based groups that deal with human rights or public interest issues;
• facilitate human rights public interest case work.
Human Rights WA is made up of a mix of lawyers and non-lawyers. It welcomes new members, and enquiries can be made by email to: humanrightswa@wildmail.com
Shirley Southgate
Shirley Southgate is a Perth lawyer
DownUnderA//Over was compiled by Alt.LJ committee members Stephen Bouwhuis, Philip Lynch, Graeme Orr and Peter Wilmshurst together with invited writers listed under their items above.
DownUnderAIIOver
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/AltLawJl/2002/54.html