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Editors --- "DownUnderAllOver Developments around the country" [2003] AltLawJl 23; (2003) 28(2) Alternative Law Journal 97

A regular column of developments around the country

Federal Developments

Proposed restrictions on the Human Rights and Equal Opportunity Commission

The Commonwealth Government has proposed legislation to change the powers and the operation of the Human Rights and Equal Opportunity Com­ mission. Two main concerns with the proposed changes are:

• the restructuring of the Commission from a President and five Commissioners with specific functions (Human Rights, Race Discrimination, Aboriginal and Torres Strait Islander Social Justice, Sex Discrimination, and Disability Discrimination) to a President and three general Commissioners; and

• the imposition of a limitation on the Commission to prevent it from intervening in proceedings unless it has the approval of the Commonwealth Attorney-General.

At present the Commission has the power, with the leave of the Court, to present written and oral argument in legal proceedings involving human rights and discrimination issues. The Commission has used these powers in approximately 35 cases before Australian courts and tribunals and has never been refused leave to intervene. In a number of the cases into which the Commission has intervened, the Commonwealth Government has also been a party to the litigation. These cases include the Tampa litigation and recent litigation concerning the rights of transgender people to marry. The Com­ mission has expressed the view that it is inappropriate that a party to the litigation should also have a 'gatekeeper function' in relation to potential interveners.

Dr Diane Sisely, who is the Chair of the Australian Council of Human Rights Agencies, comprising all state and territory Equal Opportunity and Anti-Discrimination Agencies, said of the proposed restrictions on the intervention powers, 'Such a move would be a dangerous violation of HREOC's role as an independent body responsible for monitoring Australia's compliance with its human rights obligations. ... Compromising HREOC's independence and intervention powers would lead to a serious erosion of human rights protection in this country'.

The Commonwealth Government will also shortly be appointing a new President for the Commission as the term of the President expires in April 2003. It has an almost unfettered power to appoint whomever it likes, and the proposed amendments do little to alter this situation. The government need only be satisfied that the President and other Commissioners 'have expertise in the variety of matters likely to come before the Commission'.

Internationally agreed standards for the appointment of Commission members call for appointments to 'be established in accordance with a procedure which affords all necessary guarantees to ensure the pluralist representation of the social forces of civilian society'. Countries such as Thailand, Korea, Nepal and Mongolia have far greater accountability in their appointment procedures for Commission members than does Australia. The procedures for appointment in other countries range from appointments based on nominations from the parliament, the executive and the judiciary through to selection by a committee including representatives from the judiciary, senior civil servants, universities, human rights NGOs, media and parliamentarians. In a number of countries specific qualifications, skills or experience are listed as necessary requirements for appointment.

It is also significant that the pro­ posed amendments remove the requirement that the person appointed to the position of Aboriginal and Torres Strait Islander Social Justice Commissioner has significant experience in the com­ munity life of Aboriginal people or Torres Strait Islanders. Under the reforms no commissioners will have to meet this requirement.

Under the reforms there is also a risk that the specialist functions accorded to the Commissioners, such as to promote discussion and awareness of the human rights of Indigenous Peoples, will be submerged within the general functions of the Commission.

It is noteworthy that in 1999, the International Committee on the Elimination of Racial Discrimination urged Australia to reconsider its attempt at that time to abolish the Social Justice Commissioner position. The Commit­ tee was concerned that the absence of a specialist commissioner might adversely affect the ability of the Com­ mission to address in an adequate manner the full range of issues regarding indigenous peoples that warrant attention. The Committee emphasised that this was particularly the case given the continuing political, economic and social marginalisation faced by the indigenous community of Australia.

The Commonwealth Senate's Legal and Constitutional Committee is holding an inquiry into the proposed changes. Further information regarding the inquiry can be found on the parliamentary website of the Commit­ tee. It is expected that the Committee will report at the end of May

2003. • Canberra Committee

New South Wales

Four more years hard Labor? Prospects for law reform

NSW can look forward to another four years of a Labor government, with Bob Carr's distinctively conservative approach to law reform. In the election campaign, the Premier undertook to review the ancient criminal justice rule against double jeopardy, a simplistic response to the complex issues raised by modern forensic methods, most notably DNA evidence. Some might have hoped that, the election won, such 'law and order' rhetoric would prove just that, and fade quietly away. Then lo! the Standing Committee of Attorneys General (SCAG) agreed to refer the question to a committee of experts.

Perhaps the experts will take more time to consider the complexity of the issue than an election campaign allowed. It seems like an ideal reference to the NSW Law Reform Commission, but such references in NSW are infrequent.

And speaking of law reform, after the Commission spent eight years reviewing the Anti-Discrimination Act 1977, the NSW government is still to act on the report, more than three years after it was completed. Indeed in that time NSW has distinguished itself as the first and only jurisdiction in Australia to wind back a commitment to human rights, with its removal of drug dependency from coverage by disability discrimination law. Another law reform recommendation that is still pending is that of the NSW Parliament's Bill of Rights Inquiry. The bottom line of the Premier's very public submission that there should be no such thing as a Bill of Rights in NSW was reflected in the Inquiry's final report. This came despite the tenor of the report being otherwise very much in support of some kind of guarantee of rights. The best the report could come up with was to suggest a legislation scrutiny committee. That recommendation came over two years ago: still no sign of its implementation.

A Bill of Rights in NSW would have made it very difficult for the government to act as it did last year when it outdid the Commonwealth's incursions on civil liberties in the name of anti-terrorism.

There's no shortage of human rights issues to be raised and debated in the coming four more years of Labor rule. • SR


Marching through March

On the weekend of 15-16 February, Brisbane city joined much of the world in staging enormous rallies to protest the war against Iraq and Australian involvement in it. Even on police estimates, a crowd well in excess of50,000 gathered. Winding its way through the city heart, it temporarily overwhelmed the consumerism of Sunday trading.

Of course none of these marches had any impact on the march to war. And so the demonstrations continued through March, and continue still, smaller but more regularly. And they occur not just in the CBD, but in suburban, candlelit vigils and gatherings in provincial and even rural centres.

Some protests have been well co-ordinated, eg, by the Queensland Peace Network, attracting significant numbers of people who have never contemplated public protest in their life. Others have been dominated by students, including a high proportion of high schoolers, who are being agitated and recruited by socialist organisations. These tend to be spontaneous and tinged with chaos, exuberance and even Dadaism. In one John and Yoko moment, caught on television, an early evening rally of over 5000 was saluted and cheered on by a naked couple, atop a swank hotel-room balcony, their love-tryst momentarily distracted by the street march below.

All this, readers will note, is a far cry from the 'too much law, too little order' days of the Bjelke-Petersen administration and its ban on demonstrations and assemblies. It is also a fair way removed from the perception of Brisbane as an essentially sleepy, sub-tropical town with a few tickets on it.

Is it a case of a generational change, or is it a case of plus ça change? A now undemonstrative relative of this correspondent recalls yelling at and cuffing Billy McMahon on one of his (generous) ears as he drove through a protest in Brisbane circa 1971. His response was, 'Don't worry about it love!' The war on Iraq may have limited parallels with Vietnam. One would certainly be astounded to see the present Prime Minister confront demonstrators, let alone with his car window down!

The symbolic war

Meanwhile, in the politics of symbolism, a kerfuffie arose in response to the flying of the UN flag outside City Hall. Brisbane Mayor, Jim Soorley, authorised the flying of the UN flag, insisting it will remain as long as the war continues. The Australian, Queensland and Murri flags continued to fly in their official positions, but the duck egg blue of the UN flag is much larger and hence appears to be more prominent.

Soorley coyly defended the gesture by invoking Australia's military commitment to peacekeeping in East Timor and Bougainville, under UN mandates. A simpler justification would be to point to the fact that Australia is a member of the UN, not the US.

Not unpredictably, Premier Beattie -a long time sparring partner of the Lord Mayor and marginally greater 'media tart' - jostled himself to the front of the debate, whilst simultaneously managing to avoid taking a substantive position on the larger issues at stake. Beattie publicly berated his ALP colleague for not flying the Australian flag more prominently, whilst professing to not object to the UN flag.

Soorley, a former Catholic priest, may be Labor's most prominent and outspoken anti-war politician any­ where in Australia. He has just announced his retirement for mid 2003, after 12 years in the directly elected office. • GO

Northern Territory

Dead and buried?

An interesting point of customary law surfaced in the recent decision in Milanka Sullivan v Public Trustee for the Northern Territory of Australia (NTSC 172 of2002). The plaintiff was a close friend and confidante of Clifford Possum Tjapaltjarri, a well-known Aboriginal artist, who died on 21 June 2002. Whilst in Adelaide Hospital undergoing treatment for cancer the deceased made a will on 22 April 2002 declaring that 'It is my wish that a memorial service be held for me at the Lutheran Church, Gap Road Alice Springs; that I am subsequently buried at Napperby ... ' He described Napperby as 'his homing place'. His wife and a son Daniel had also been buried there.

Upon his death, his elder brother Cassidy claimed that in Aboriginal custom he was the one to determine the place of burial and that Aboriginal custom and lore demanded that 'A person is buried in his father's father's place; homing place is nothing'. From this, Cassidy argued that the deceased should be buried at Mount Allan (Yuelamu), his father's father's place. He contended that Aboriginal custom should prevail over the wishes of the deceased. The Public Trustee made every effort to comply with the deceased's wishes. However the local Laramba Community Council, which administered the Aboriginal cemetery at Napperby, held discussions with the deceased's kinfolk and then advised the Public Trustee that 'It is clearly not appropriate that Tjapaltjarri be buried anywhere other than where his family directs'. Faced with this, the Trustee concluded that it was impractical to carry out the deceased's wishes and agreed to the arrangements put forward by the deceased's family.

The Court approved this, noting that at common law a person has no absolute right to dispose of their body and that the only duty of an executor was to comply with the deceased's wishes as far as possible. Thus the Court was able to resolve the issues with reference to principles of western law and did not have to decide the issue raised by the deceased's kin that Aboriginal custom could override the deceased's wishes as expressed by will. Nevertheless the contentions put forward emphasise that a powerful body of indigenous feeling insists that an individual cannot shed the custom into whch they are born. • KJJ


Be alert ... and alarmed

Slater & Gordon, acting on behalf of the Victorian Peace Network and more than 40 anti-war organisations, has warned the Prime Minister that he may be liable to prosecution and punishment for complicity in the commission of war crimes by the self-styled 'coalition of the willing' in Iraq. The warning has been echoed by over 40 international law experts, including academics, barristers and former High Court judges ('Coalition of the Willing? Make that War Criminals', Sydney Morning Herald, 26 February 2003).

At international law, a 'war crime' includes any attack that causes 'incidental' loss of life or injury to civilians which is 'clearly excessive in relation to the concrete and direct overall military advantage anticipated' (Article 8, Statute of the International Criminal Court). Directed attacks on civilian infrastructure (such as power stations, water sanitation plants and communications networks) and (presumably) misdirected attacks on civilian populations (such as market places) may constitute war crimes.

Until recently, the adjudication of violations of international criminal law relied on the creation of ad hoc international tribunals (such as the Nuremberg Tribunal and the International Criminal Tribunal for the Former Yugoslavia) or the prosecution of individuals in domestic courts (as occurred in Israel in the Eichmann Case). With the establishment of the International Criminal Court last year, however, we now have an institutional mechanism for the investigation, prosecution and adjudication of alleged violations of international criminal law. Of significance to the Howard Government is that the Statute for the International Criminal Court attributes criminal responsibility for war crimes to the people who execute them and the people who plan them. Article 27 of the Statute specifically extends criminal liability to Heads of State, leaders of governments, parliamentarians and government officials.

As I write this, civilian casualties in Iraq mount and Australian television networks censor images of children allegedly decapitated by shrapnel from coalition military attacks. With Australia subject to the jurisdiction of the International Criminal Court, and the Victorian Peace Network pledging to assist in the investigation and prosecution of any alleged war crimes by the 'coalition of the willing', perhaps it is time for the Prime Minister to be alert ... and alarmed. • PL

Western Australia

Payment for miscarriage of justice

In 1963 John Button was convicted of the manslaughter of his girlfriend, and sentenced to 10 years imprisonment. In February 2002 the Western Australian Court of Appeal overturned the conviction (an account of the appeal was published in [2002] AltLawJl 51; (2002) 27(3) Alternative Law Journal 140). In recognition of the injustice suffered by Button (who served five and a half years of his prison sentence) the Western Australian government has approved an ex-gratia payment to him of $460,000. This amount was calculated to provide But­ ton with a retirement income of $35,000 for 23 years and contribute $60,000 toward his legal bills. The payment is the largest ever made in Western Australia. • DD

The end of the distinction between murder and wilful murder is nigh

Attorney General Jim McGinty recently circulated a press release announcing that the distinction between the offences of murder and wilful murder is about to become legal history in WA, a move that has popular support and will bring the state into line with the rest of the country. In the dramatically worded release it was stated that the new laws will:

• ensure judges are no longer forced to set lower sentences for 'shocking' crimes because they are ruled to be murder rather than wilful murder;

• increase the minimum possible time a person convicted of murder must spend in jail from seven to 10 years; and

• remove the requirement on judges to 'publicly grade' the severity of a murder, which has been 'horribly distressing' to family and friends of murder victims.

It is a shame that such a significant announcement was made in an emotive press release, which described in some­ what lurid detail the crimes of three offenders who received minimum jail terms of 14 years or less after juries found they were guilty of murder rather than wilful murder.

The Attorney's press release declared that these legislative amendments will relieve juries of the burden of deciding between the offences of murder or wilful murder. Under the present system if a jury decides that an offender has com­ mitted murder rather the wilful murder then the judge must impose a sentence of between 7 and 14 years imprisonment. Under the new system judges will be able to impose a minimum term of 10-30 years for any murder. The amendments will obviate the need for judges to perform their duties with 'tied hands'. Judges may have tied hands, but who ties them? • MH

DownUnderAllOver was compiled by Alt.LJ committee members Ken Brown, Danielle Davies, Megan Hoey, Philip Lynch, Graeme Orr and Simon Rice.

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