AustLII Home | Databases | WorldLII | Search | Feedback

Alternative Law Journal

Alternative Law Journals (AltLJ)
You are here:  AustLII >> Databases >> Alternative Law Journal >> 2003 >> [2003] AltLawJl 62

Database Search | Name Search | Recent Articles | Noteup | LawCite | Author Info | Download | Help

Editors --- "DownUnderAllOver" [2003] AltLawJl 62; (2003) 28(4) Alternative Law Journal 200

A regular column of developments around the country

Federal Developments

Homelessness and Social Security Rights

As part of its ongoing process of welfare reform, the Commonwealth Government is currently reviewing the system of income support for working-age people. This review, which covers payments including Newstart, Youth Allowance and the Disability Support Pension, could have a significant impact on people who are home­ less or at risk of homelessness.

In 1996, the Australian Bureau of Statistics calculated that there were over 105,000 homeless people across Australia on Census night. A primary cause of homelessness is an inability to access social security payments or an inability to make ends meet given inadequate levels of payment.

The fundamental human right to social security is codified in article 9 of the International Covenant on Economic, Social and Cultural Rights ('JCESCR'). Although article 9 does not specify the type or level of social security to be guaranteed, the United Nations Committee on Economic, Social and Cultural Rights has commented that it must be available to 'cover all risks involved in the loss of means of subsistence beyond a person's control'.

In Australia, the Social Security Act 1991 (Cth) regulates eligibility for, and payment of, social security. The Social Security Act does not confer an enforce­ able right to social security, but instead confers a benefit or privilege that can be expanded or revoked at the government's discretion. At present, social security payments are pegged at a level well below the poverty line. For many people, social security payments are insufficient to access adequate food, housing, clothing and health care. In a recent study it was found that over 90% of persons observed to be begging in Melbourne were social security recipients. In 2002, more than 83% of people accessing homelessness services funded by the Supported Accomodation Assistance Program (SAAP) listed social security as their primary income source. Consistent with article 9 of ICESCR, any reform of income support for working-age people must enshrine the fundamental human right to social security at a level sufficient to realise an adequate standard of living.

There are several other important reforms necessary to ensure that the right to social security is fulfilled for homeless people.

Centrelink's 'proof of identity' requirements need to be changed to enable homeless people to use a letter from a social worker or case worker as legitimate identification. Proof of identity requirements discriminate against the homeless, many of whom are unlikely to hold the requisite documents or have the money or resources to obtain them. Accessing documents may be especially difficult for women and children fleeing domestic violence and for refugees and asylum seekers.

Homeless people should be excluded from complying with activity test requirements. Eligibility for payment of working-age payments (such as Newstart) is generally contingent on the claimant complying with an activity agreement. Activity agreements often impose conditions-such as regularly attending job interviews or promptly responding to Centrelink correspondence - with which many homeless people are unable to comply.

Social security payments should never be reduced below the level necessary to ensure an adequate standard of living. Failure to comply with the requirements of an activity agreement usually results in a person being 'breached', meaning that their payment is reduced or terminated. Breaches often result in a vicious cycle of poverty and homelessness as an individual's energies are directed towards surviving rather than securing employment.

Homeless people should have access to free post office boxes. With no fixed address, many homeless people do not receive Centrelink correspondence.

Finally, an integrated package of social security assistance to homeless people needs to be developed that includes housing, employment assistance and personal support to ensure sustainable outcomes. Studies in Australia, the US and Canada demonstrate that establishing long-term solutions to homelessness reduces the use of other government services and substantially reduces the total cost to the government. • PL

Joint Standing Committee Reports on Homelessness and Voting Rights

The Joint Standing Committee on Electoral Matters tabled its 'Report of the Inquiry into the 2001 Federal Election' in Federal Parliament on 23 June 2003. The Committee makes over 30 recommendations to increase voter participation, improve electoral management and maintain the integrity of the electoral roll.

The franchise of homeless people­ as discussed in the submissions of the PILCH Homeless Persons' Legal Clinic, the Big Issue and the Council to Homeless Persons -is considered in detail in the Report at pages 83-95. In particular, the Committee acknowledges that up to 80,000 homeless people who may have been eligible to vote in the 2001 federal election did not do so due to voter registration requirements. The Committee makes several recommendations in relation to the enfranchisement of homeless people, including:

• that the itinerant elector provisions outlined in s 96 of the Common­ wealth Electoral Act 1918 (Cth) be amended to clearly apply to homeless people;

• that the Australian Electoral Com­ mission (AEC) simplify its itinerant elector application form to assist homeless people; and • that the AEC target homeless people in a public awareness campaign, in­ forming them about itinerant elector enrolment.

In response to these recommendations, the AEC has undertaken to include homeless people as a target group in its public awareness campaign for the next federal election. The AEC has also foreshadowed that it will work with welfare agencies to ensure that enrolment forms and registration assistance are available on-site.

The federal government is required to respond to the Report within three months.

It is imperative that the government accepts and implements the recommendations of the Committee. In particular, s 96 of the.Act should be amended in the following ways:

• Homeless people should be eligible to register as itinerant electors in the electorate with which they have the 'closest connection'. It is important that homeless people be able to enrol in the electorate in which they live, so as to directly choose those who represent them.

• The period of time after which a per­ son will be deemed ineligible to vote as an itinerant voter if they reside in one 'real place of living' should be extended from one month to six months.

• The definition of 'real place of living' should be clarified to exclude any housing that is inadequate or is not safe and secure. This would en­ sure that homeless people who live in non-conventional accommodation such as cars, squats, shelters or refuges for a period of longer than six months are not ineligible as itinerant electors.

The right to vote is a fundamental human right, the effective exercise of which is necessary to ensure that the voices of marginalised and disadvantaged groups are heard. The federal government and the AEC need an ongoing commitment to work with homeless people and welfare agencies to ensure that homeless people are able to participate in the democratic process and to have their say. • PL

Northern Territory

Dhakiyarr's spirit laid to rest

The spirit of Dhakiyarr Wirrpanda (also known as Tuckiar), a Yolngu man from North East Arnhem Land was fmally laid to rest -almost 70 years after he was charged and convicted for the mur­ der of Constable Albert McColl.

On Saturday, 28 June 2003 a special event took place at the Supreme Court of the Northern Territory in Darwin. A special Wukidi ceremony was con­ ducted by the family of Dhakiyarr to guide his spirit's return to his ancestral land and to heal the wounds caused by the tragic events that occurred. In 1933 Dhakiyarr was charged with murder for spearing Constable Albert McColl. The precise circumstances of the incident remain controversial. These events ended with Dhakiyarr's disappearance. His disappearance still remains unsolved.

The Wukidi ceremony was con­ ducted at Liberty Square next to the Northern Territory Supreme Court and then moved into the Supreme Court building where nine memorial poles were unveiled by clan members. The memorial poles were prepared by well-known Aboriginal artists from the region Dhukal Wirrpanda, Wuyal Wirrpanda, Gawirrin Gumana AO, Djambawa Marawili, Miniyawany Yunupingu, Menga Mununggurr, Wanyubi Marika and Wukun Wanambi. The poles have great spiritual significance to the Yolngu and stand permanently in Northern Territory Supreme Court as a symbol of reconciliation.

As a way of healing the events of the past, the family of Dhakiyarr presented gifts to members of Constable McColl's family and they also thanked the Chief Justice of the High Court of Australia for their decision. Important dignitaries in attendance included the Northern Territory Administrator, Chief Minister of the Northern Territory, Chief Justice of the Supreme Court of the Northern Territory and Chief Justice of the High Court of Australia. The Ceremony was also open to members of the public.


The incredible history leading to this event started in August 1933 at Woodah Island in Blue Mud Bay in remote North East Arnhem Land where a police party was sent from Darwin to investigate the killing by Yolngu of five members of a Japanese Pearling Lugger. The police arrested and restrained a group of Yolngu women. The group of women included Dhakiyarr's wife. The women were detained by Constable Albert McColl. Dhakiyarr upon seeing his wife captured and bound in chains speared the Constable to death. The precise circumstances of the killing remain controversial and will remain a mystery forever.

A missionary subsequently persuaded Dhakiyarr to come to Darwin. On his arrival he was arrested and tried for murder. He was convicted and sentenced to death by hanging.

Dhakiyarr successfully appealed to the High Court and his conviction was quashed. His trial was held to have not been fair or just. The decision is reported at Tuckiar v The King [1934] HCA 49; (1934) 52 CLR 335. The Administrator was directed to ensure his safe return to his country. However, after his release from Fannie Bay Goal in Darwin he was never seen again. • HR


The Di is Cast Again

Recent columns have chronicled first the charges, then the sentencing, of now former Chief Magistrate Di Fingleton, for retaliation against a witness. (Not a witness before her, but a fellow magistrate who filed an affidavit in sup­ port of another magistrate in proceedings against Fingleton relating to work arrangements.)

At trial, Fingleton was sentenced to one years imprisonment. She did not appeal the head sentence. Because of her position as a judicial officer, the sentencing judges were always going to consider the offence an aggravated one. Instead, Fingleton sought to have the sentence fully suspended in recognition of the fact that her career and reputation were destroyed, and the hardship of the protective custody she would have to endure. The Court of Appeal has rejected her appeal against conviction, but the sentence will be suspended after six months: R v Fingleton [2003] QCA266.

At the time of the appeal verdict, Fingleton was under media pressure to resign. It was said to be unseemly that she should remain in office, suspended but on full pay, once a conviction was recorded. But Fingleton was entitled to test the conviction and dutifully resigned when her appeal was lost - albeit only after Attorney General Welford delivered a media ultimatum that he would ask the Supreme Court to remove her.

Despite those tough words, the AG is in the bad books with much of the remaining Magistracy, including Acting Chief Magistrate Hine. Hine delivered a public rebuke after the AG quipped that he wouldn't mind it if a few more were to resign. The govern­ ment has advertised for a replacement for the can-of-worms position that is the Chief Magistracy, stressing its interest in interstate applicants. It has had over 40 expressions of interest.

Meanwhile, after publicly stating she would not appeal further, Fingleton has now sought leave to appeal to the High Court against the conviction. Due for release in early December at the latest, she may well be out of jail before the matter is finally resolved. But if suc­ cessful her reputation and legal career would be resurrectible.

A New Watchdog for the Profession

Last August and December this column reported the imbroglios overwhelming the self-regulatory system of complaint handling against solicitors. The government is now working on plans to enact a new system of regulation, to cover both barristers and solicitors.

Novel features-for Queensland at least -will be a Legal Services Commissioner with investigatory powers. After investigation, a Legal Practice Tribunal, chaired by a Supreme Court judge will hear any misconduct charges. Lesser charges of unsatisfactory conduct will be resolved by a Legal Practice Board, involving practitioners and lay people.

The system will be funded from interest on solicitors' trust accounts. But whilst the Commission will be a government agency - and not a self-regulatory body - it will commence in January with eight staff, only three of whom will be investigators. At the height of the recent deluge of com­ plaints, particularly involving Baker Johnson, the Qld Law Society (QLS) bad 12 investigators at work. The Com­ mission is therefore expected to rely on powers to second QLS staff. While it makes sense for the new body to draw on existing expertise, secondment rather compromises the appearance of independence.

So while complaining it had not been consulted sufficiently, the QLS has been happy to recognise that the new system involves a heavy dose of co-regulation. • GO

South Australia

Media Identification of the Accused

Four years after the discovery of eight bodies in a Snowtown bank vault South Australian papers are now able to release photos and/or descriptions of John Justin Bunting and Robert Joe Wagner, the primary suspects in the case.

The reporting of this case has been subject to over 200 suppression orders issued since 1999. Considerable time and resources have been involved in presentations for and against the granting of these orders.

Depending on the outcome of a cur­ rent Legislative Review Committee report, the practice of deciding whether the identification of a defendant before conviction is appropriate may become a moot issue for the courts.

The Committee is considering sub­ missions from interested parties on the operation of the Evidence Act 1929 (SA), in particular, 'the effect of the publication of names of accused per­ sons on them and their families who are subsequently not convicted or not found guilty of any criminal or other offence'. The main consideration of the inquiry is whether, if convicted of a crime, the accused's name should be generally suppressed until all avenues of appeal are exhausted.

Currently s 69A of the Act allows suppression of identity where the suppression is necessary to prevent prejudice to the proper administration of the trial or to prevent undue hardship to victims, witnesses or children.

The section also acknowledges the role of the media, since the court must consider the public interest and the con­ sequential right of the media to publish such information. Interestingly, the section requires the court to give 'substantial weight' to the consideration of public interest and the media.

The Law Society of South Australia's submission to the review commit­ tee suggests that the status quo be reversed. That is, that all names be sup­ pressed until conviction and that the prosecution or police be able to apply for an order allowing publication, but only if such publication will help the investigation.

Not surprisingly the Adelaide media objects strongly to this proposal. In an opinion editorial, The Advertiser reported that the review has the potential to 'precipitate a dangerous attack on democracy, transparency and account­ ability'. It also suggests that suppression orders of the kind proposed would be equivalent to 'censorship worthy of communist or despotic state'.

While acknowledging the validity of suppressing identify in certain matters the editorial suggests that 'the over­ whelming legal and moral argument is in favour of preserving the democratic right of the population to be informed'.

Considering the recent 'trial by media' of the Hollingworth rape allegations, there is obviously a case against an unfettered 'right to know'. The golden rule is 'innocent until proven guilty', yet for many suspected of a crime, media coverage effectively jeopardises this principle, and in many cases leads to the destruction of an innocent person's reputation.

The media's presumption that the public should be warned about certain people may have more to do with the 'saleability' of a story than the public's right to know. A high profile person accused of a crime will always create more sensational headlines than a report of the same crime committed by an undisclosed or unknown perpetrator. The possible consequences of harm to the 'accused' should outweigh the public's right to know that a crime 'may' have been committed by a particular person.

Nonetheless, this is obviously a controversial issue with many competing claims about which rights and interests deserve more protection. But ultimately, natural justice for accused persons should outweigh the perceived need to identify a defendant in a media trial before any conviction is made. •DM


Same Sex Law Reform –Two Steps Forward, One Step Back

In 1997 Tasmania took its first tentative steps out of the homophobic dark ages with the decriminalisation of sex between consenting male adults. Since then, same sex relationship law reform seems to be proceeding on the basis of two steps forward, one step back.

In December 2001, the Tasmanian Joint Standing Committee on Community Development released its Parliamentary Report on the Legal Recognition of Significant Personal Relationships. In June this year the Committee's recommendations were incorporated into legislation introduced by Attorney-General Judy Jackson. The legislation provides for a registration scheme for same sex couples, allowing them to assume a range of legal rights and obligations generally equivalent to those of de facto heterosexual couples. The legislation also includes limited same sex adoption rights, incorporating some of the recommendations made by the Tasmanian Law Reform Institute in its report on that issue released in May 2003.

Given that most of the public responses to the Institute's issues paper opposed same sex adoption, the Institute was heavily criticised in the local media when it unreservedly recommended that same sex couples be allowed to adopt children. Despite the public outcry, the Attorney General initially supported all of the Institute's recommendations. However, in mid-June the legislation introduced into the lower house was a watered-down version, allowing someone in a same sex relationship to adopt the biological children of their partner, but stopping short of allowing gay couples to adopt generally. This step back was reportedly the result of a fiery Cabinet meeting, with Premier Jim Bacon, Deputy Premier Paul Lennon and Speaker Michael Polley believed to have expressed major reservations. The debate took an ironic tum when, in late June, Health Minister David Llewellyn revealed that gay and lesbian couples were allowed to foster children in Tasmania and had in fact done so on a number of occasions.

The passage of the Bills through the lower house was emotive, with Liberal MHA Sue Napier breaking down as she detailed her mixed feelings about the laws. The legislation was eventually passed on 25 June, but whether it will survive the Legislative Council is another matter. The Attorney General reports that five Labor Party votes are guaranteed, and another three votes would result in the Bills being passed. Various church and gay rights groups are busy lobbying local members.

If passed, the Relationships Bill 2003 and the consequential amendment legislation will result in the alteration of some 120 provisions relating to de facto and same-sex relationships, and a considerable, although not total, reduction in legislative discrimination in Tasmania.

Tasmanian Governor

Sir Guy Green, Australia's longest­ serving state governor, will retire in October after eight years in the role. Current frontrunners for his replacement include Tasmanian Supreme Court judge Peter Underwood and former senator Margaret Reynolds, a Launceston-based social justice campaigner with a long political career.

Court award for 1080 poisoning

This month the Launceston Magistrates Court awarded a dog owner veterinary costs after her dog was poisoned when it ate a carcass laced with controversial poison known as 1080. A recent Supreme Court decision also con­ firmed that a user of land was obliged to take responsibility for the way 1080 affected people outside the boundary of the land. President of the Environmen­ tal Defender's Office, Roland Browne, said 'I think it is quite significant to confirm the way users of land have to be well aware of chemicals and pesticides and poisons travelling off the land'. The poison is widely used by the Fox Free taskforce in its campaign to eradicate foxes in Tasmania.

Samantha Hardy

Samantha Hardy teaches law at the University of Tasmania.


Bankruptcy does not Clean the Slate of Unpaid Fines

In State of Victoria v Mansfield [2003] FCAFC 154 (18 July 2003), the Full Court of the Federal Court recently held that infringement notices (or 'on-the­ spot fines') registered with the PERIN Court are not provable in bankruptcy. PERIN stands for 'penalty enforcement by registration of infringement notice'. The PERIN Court is, in effect, an administrative mechanism responsible for registering and enforcing unpaid fines for offences such as parking, traffic, public space and public transport offences. This overturns the previous decision of Merkel J reported in this column in December 2002.

The Full Court held that an amount payable to the PERIN Court pursuant to an enforcement order for an unpaid fine is a 'penalty or fine imposed by a court in respect of an offence against the law'. Under section 82(2) of the Bankruptcy Act 1966 (Cth), penalties and fines imposed by a Court in respect of a legal offence are not provable debts. This means that any amount owing for an infringement notice registered with the PERIN Court and subject to a PERIN Court enforcement order is not provable in a bankruptcy. Such debts survive bankruptcy and hence can be pursued throughout bankruptcy.

The decision of the Full Court is likely to have serious consequences for people who are socio-economically marginalised or disadvantaged. PERIN fines disproportionately affect people who are homeless, people with special circumstances and people with low incomes. They are a major factor in many people's debt crises. Given that bankruptcy is no longer a mechanism by which such people can 'clean the slate', reform of the PERIN system is now crucial to ensure that it does not discriminate against homeless people and people from marginalised or disadvantaged backgrounds. • PL

Western Australia

CASE for Refugees: One Year On

A year ago, in the June 2002 column, we reported the birth of a new Community Legal Centre (CLC). The Centre for Advocacy Support and Education for Refugees (CASE for Refugees) is a non-government CLC providing legal services to refugees living in WA. CASE for Refugees was formed in April 2002 to assist Temporary Protection Visa (TPV) holders and was incorporated in August 2002.

TPV holders are permitted to remain in Australia for a period of 36 months, after which they must reapply for further protection. The application process is particularly difficult for refugees who often do not speak English and come from different legal cultures. Legal assistance is crucial in preparing successful applications.

CASE for Refugees was formed by a collection of individuals, refugee com­ munity leaders, social services and advocacy groups who were concerned about what would happen to TPV holders when their visas began expiring in January 2003. A number of TPV holders had approached the people and organisations involved. The majority of these initial requests were from Hazara Afghans. They were concerned that, with the fall of the Taliban, they would be returned to Afghanistan and face persecution from other groups. These refugees required legal assistance to prepare their claims and support during the process. At the time, existing legal services in Perth did not have the capacity to meet this need. Perth was the only capital city that did not have a specialist immigration CLC. It was decided to establish CASE for Refugees as a CLC and to use this as a frame­ work to coordinate and support the volunteer and pro bono efforts of WA lawyers, community workers and citizens.

One year on, over 170 volunteers have been trained to take statements from clients, prepare written submissions, conduct and compile country in­ formation and to research possible legal appeals should applicants be unsuccessful. Volunteers also work on the identification of TPV holders in the community, dissemination of information throughout affected communities, administrative support, fundraising and coordination.

CASE for Refugees has more than 550 registered clients. Client interview teams have completed over 150 individual statements and submissions. The Immigration Department has already begun interviewing people from Afghanistan whose visas have expired. CASE for Refugees aims to have a volunteer scribe present at every interview to support the client and to ensure legal teams have access to a complete transcript of the interview in case of appeal.

CASE for Refugees has a strong Board of Management with relevant expertise. The organisation has expanded rapidly and now has office premises, equipment, a part-time Volunteer Coordinator and a part-time solicitor. It aims to employ another solicitor in the future and a community worker to de­ liver a high quality multidisciplinary service to TPV holders living in WA. Volunteers will remain an important part of CASE for Refugees and will gain access to better support and supervision through a core staff structure. CASE for Refugees also hopes to offer clinical education placements to students from a range of disciplines, thereby contributing to a growing awareness of refugee issues and a strong pro bono ethic amongst legal practitioners and human service professionals generally.

CASE for Refugees has received grants from the Myer Foundation and Perpetual Foundation. These grants meet staff salaries, but all operational costs (such as interpreting and translation) are covered by donations and fundraising activities.

CASE for Refugees celebrated its first birthday in June 2003. If you would like to know more about CASE for Refugees email or call (08) 9321 2900.•AM

DownUnderAllOver was compiled by Alt.LJ committee members Philip Lynch, Alana McCarthy, Debi McLachlan, Graeme Orr and Hannah Roe together with invited writers listed under their items above.

AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback