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Editors --- "DownUnderAllOver: Developments Around the Country" [2006] AltLawJl 28; (2006) 31(2) Alternative Law Journal 105

  • DownUnderAllOver: Developments around Australia
  • DownUnderAllOver
    Developments around Australia


    Australia: a terra nullius for asylum seekers and refugees?

    Post-Tampa 2001 saw the Howard government roll back the rights of asylum seekers and refugees in a host of radical amendments to the Migration Act 1958 (Cth). One such measure was the construction of the Orwellian concept of a class of unlawful non-citizens known as ‘offshore entry persons’. One becomes an ‘offshore entry person’ by virtue of entering Australia at a place determined to be an ‘excised offshore place’, namely: Ashmore and Cartier Islands, Christmas Island and Cocos Island. ‘Offshore entry persons’ are deprived of all fundamental rights in Australian law, including a bar on applying for a visa or refugee status (s 46A). Furthermore, ‘offshore entry persons’, and those who are suspected of seeking to join this unlucky category of persons by trying to enter an excised offshore place, can be detained by government officials at the discretion of the Minister for Immigration at a place that she sees fit (s 189(3) and (4)).

    In June 2002 and March 2003 the Howard government attempted to excise further parts of the nation off the northern coast of Australia. However those attempts to extend the rights-free zone failed (see the Migration Legislation Amendment (Further Protection Measures) Bill 2002).

    The introduction of the Migration Amendment (Designated Unauthorised Arrivals) Bill 2006 is an attempt by the government to extend the operation of the Pacific Solution and excise the entire migration zone. The proposed legislation would replace the concept of ‘offshore entry persons’ with ‘designated unauthorised arrivals’ (s 5F of the Bill). All paople arriving at mainland Australia by sea without a visa on or after 13 April 2006 will be deemed a ‘designated unauthorised arrival’ and will be transferred offshore and be denied access to Australia’s refugee determination system, unless the Minister, in her discretion, allows the person to remain in Australia. A ‘designated unauthorised arrival’ will include people who have arrived in Australia by air after being rescued at sea or having been found hiding on a ship.

    In the Second Reading speech for the Bill, Andrew Robb MP declared that the offshore processing arrangements introduced in October 2001 ‘have been an outstanding success in ensuring that the integrity of Australia’s borders can be maintained …’ (Commonwealth, Parliamentary Debates, House of Representatives, 11 May 2006, 24–5). For the government, deterrence appears to be the only measure of success. There is no mention of the high cost, both human and financial. The Pacific Solution has had a devastating human impact on the asylum seekers arbitrarily detained for years in inhumane conditions in Nauru and Papua New Guinea and independent experts have advised the government of the mental illness suffered by detainees as a result of the policy. Another fact that the government likes to downplay is that the vast majority of the offshore detainees have eventually been resettled in Australia. By August 2004, 60 per cent of the 905 recognised refugees were settled in Australia. This equated to 531 resettled in Australia and 335 in New Zealand, with only 40 resettled in other countries.

    The announcement of the Pacific Solution Take Two is aimed to deter further West Papuan asylum seekers from fleeing to Australia following the Indonesian government’s anger at the granting of visas to 42 West Papuan asylum seekers who arrived by boat on 18 January 2006. The government’s proposal fails to appreciate the situation of escalating violence in West Papua driving West Papuans to flee or the fact that the exodus of West Papuans is unlikely to subside unless there is a political resolution to the crisis.

    The Bill will essentially make Australia a terra nullius for asylum seekers and refugees with respect to their fundamental rights. It represents a disturbing attempt by the government to further avoid its international legal obligations by the construction of clever legal fictions and excised zones.

    EVE STAGOLL is manager of the Law Institute of Victoria Legal Assistance Scheme administered by PILCH in Melbourne.

    Community groups opposing the proscription of PKK

    A range of community, legal and civil rights organisations released a statement in March 2006 voicing their opposition to the recent listing of the Kurdistan Workers Party (PKK) as a terrorist organisation under the Criminal Code Act 1995 (Cth). The listing of the PKK in Australia highlights some of the dangers of the government’s proscription regime in terms of the potential to undermine fundamental principles of criminal law. Proscription can also be inconsistent with Australia’s international obligations under the International Covenant on Civil and Political Rights, most notably those obligations relating to freedom of association (art 22). Groups are concerned about the impact of the proscription on members of the community as virtually any support of Turkish Kurdish human rights objectives that are shared by the PKK could leave Australians open to prosecution. Under the Criminal Code, people who associate with proscribed organisations are liable for criminal prosecution, regardless of the nature of that association or any intention of the individual to engage in terrorist acts. This is ‘guilt by association’, and as such violates one of the basic principles of criminal law, which holds that guilt should only be attributed to individuals on the basis of their own actions, not the actions of others. Under this listing, asylum seeker claims of persecution due to real or alleged association with the PKK or related organisations could also expose refugees to criminal prosecution for membership or a number of other serious offences..

    The Parliamentary Joint Committee on Intelligence and Security reviewed the listing of the PKK and tabled its reports in April 2006. While the majority report supported the listing of the PKK, a minority report issued by the Hon Duncan Kerr SC MP and the Hon John Faulkner recommended the government reassess this listing. The reasons provided by the minority report included: the lack of evidence meeting the criteria for listing an organisation; the lack of evidence of any direct positive security benefits resulting from the proscription; and the importance of considering the impact of the listing on members of the Australian community. Community groups supportive of the findings of the minority report are urging parliamentarians to reconsider the issue with a view to removing the listing of PKK.

    ALISON G AGGARWAL is Advocacy and Human Rights Officer, Combined Community Legal Centres Group NSW.

    Prisoners and the human right to vote

    A federal government proposal to deny the right to vote to all prisoners will, if enacted, violate a number of Australia’s obligations under international human rights law.

    The Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Bill 2005, which is currently before federal Parliament, seeks to amend the Commonwealth Electoral Act 1918 (Cth) to remove the franchise from any person serving a custodial sentence. The policy rationale for this proposed amendment is unclear but seems to be based on two Coalition propositions, namely:

    1. denial of the right to vote to prisoners is educative in that, according to Senator Eric Abetz, it ‘ensures that people realise the importance of the democratic system and the role it plays within our societal structures’

    2. denial of the right to vote to prisoners is a deterrent or disincentive to the commission of crime.

    The practical impact of this amendment will be the disenfranchisement of at least 20,000 prisoners around Australia. The amendment is likely to impact disproportionately on Indigenous people, who are 16 times more likely to be imprisoned than non-Indigenous people and who comprise approximately 20 per cent of the prisoner population compared with roughly 2 per cent of the general population.

    The proposed disenfranchisement of prisoners is manifestly inconsistent with a range of international human rights norms and principles. Most obviously, the proposal is inconsistent with art 25 of the International Covenant on Civil and Political Rights (ICCPR), which enshrines the right to vote for all citizens and only permits restrictions on that right in so far as they are objective, reasonable, proportionate and necessary. It is notable that no evidence has been advanced (nor exists) to support the propositions that the proposal will have either an educative or deterrent impact. In fact, all of the available evidence demonstrates that policies which promote social inclusion, rehabilitation, civic engagement and participation can reduce and resolve marginalisation, disadvantage and poverty, all of which are significant causal factors and risk indicators of criminal activity. On the other hand, policies and practices which are discriminatory or result in social exclusion are closely linked with increased crime rates and recidivism.

    The inconsistency between the human right to vote and the disenfranchisement of prisoners has been recognised by a number of courts over recent years, including the Supreme Court of Canada, the European Court of Human Rights and the South African Constitutional Court. The proposal to deny prisoners the right to vote has not in any way been demonstrated by the government to be objective, reasonable, necessary or proportionate and, as such, violates art 25 of the ICCPR.

    In addition to being manifestly inconsistent with the right to vote, the proposal to deny the franchise to prisoners is inconsistent with a number of instruments and norms pertaining to the rights and treatment of prisoners, including:

    • art 5 of the UN Basic Principles for the Treatment of Prisoners, which provides that ‘all prisoners shall retain their human rights and fundamental freedoms’ except to the extent that a limitation is ‘demonstrably justified by the fact of incarceration’

    • art 10 of the UN Basic Principles for the Treatment of Prisoners, which provides that prisoners should be subject to conditions ‘for the re-integration of the ex-prisoner into society’

    • art 60(1) of the UN Standard Minimum Rules for the Treatment of Prisoners, which states that correctional services should ‘seek to minimize any differences between prison life and life at liberty which tend to lessen the responsibility of the prisoners or the respect due to their dignity as human beings’

    • art 10 of the ICCPR, which provides that prisoners must be accorded all of their civil and political rights, including the right to vote, subject to the restrictions that are ‘unavoidable in a closed environment’.

    Finally, the move to disenfranchise prisoners is likely to constitute a violation of art 5(c) of the Convention on the Elimination of All Forms of Racial Discrimination, which, read in conjunction with arts 1 and 2, provides that the right to vote must be equally accorded to all citizens without distinction on the grounds of race and that any restriction to this right must have neither the purpose nor effect of discriminating on the grounds of race. As discussed above, it is clear that a blanket disenfranchisement of prisoners will have a significantly disproportionate and therefore discriminatory impact on Indigenous people contrary to the Convention.

    PHILIP LYNCH is the Director and Principal Solicitor of the Human Rights Law Resource Centre Ltd.


    A NSW Charter of Rights …

    On 20 March 2006, the NSW Attorney-General announced he would be putting a proposal to Cabinet to invite public consultation on the values and rights Parliament should protect in an effort towards developing a NSW Charter of Rights.

    In 1999 the NSW Standing Committee on Law and Justice undertook an inquiry and reported on whether it is appropriate and in the public interest to enact a statutory NSW Bill of Rights and/or whether amendments should be made to the Interpretation Act 1987 (NSW) to require courts to take into account rights contained in International Conventions.

    The Committee compared different models used in other countries such as the UK, the USA, Canada, New Zealand and South Africa. The Committee also examined the advantages and disadvantages of a statutory Bill of Rights, compared with other options such as constitutional entrenchment and parliamentary scrutiny.

    While the Committee recognised that a Bill of Rights would have certain merits, including: protection of human rights for the community, protection of minorities, and educative value, it ultimately recommended against a Bill of Rights. Its main reasons being ‘that a Bill of Rights disturbs the relationships between Parliament and the Courts ... and a Bill of Rights will create uncertainty in the law for an extended period … [because it] provides far more opportunity for areas of disputed meaning than more narrowly focused legislation’ (Standing Committee on Law and Justice, NSW Bill of Rights, Sydney, Report 17, 2001, xiv). The Committee instead recommended that a ‘Scrutiny of Legislation Committee’ be established to systematically review legislation at the time it is introduced and to alert the Parliament to possible breaches of individual rights and liberties (such a committee has since been established in NSW). The Committee also recommended that the Interpretation Act be amended to allow judges to consider international human rights instruments in interpreting legislation where the meaning is ambiguous. This amendment was seen as endorsement of the existing common law rules of statutory interpretation.

    However, the 1999 inquiry was conducted before Human Rights Acts had been introduced in any other State or Territory. Since then, the ACT has introduced such legislation, Victoria has introduced the Charter of Human Rights and Responsibilities Bill 2006 into Parliament, Tasmania is in discussions and, in April 2006, the Attorney-General for WA, Jim McGinty, stated he is also considering introducing a Bill of Rights in WA.

    With NSW fast falling behind other States and Territories the NSW Attorney-General’s announcement was warmly welcomed by the NSW justice sector. In 2005 the NSW Law Society issued a discussion paper in which it noted that the current political climate has renewed the need for debates on a Bill of Rights. In particular, this has arisen due to the limitations on human rights in the context of the anti-terrorism laws, and the lack of protection provided to Indigenous, minority and other disadvantaged groups (Vinoli Thampapillai, ‘A Bill of Rights for New South Wales and Australia’, The Law Society of New South Wales, 2005). However, there will need to be strong public support for a NSW Charter of Rights to succeed — particularly as NSW begins to prepare itself for State elections in 2006.

    ALISON G AGGARWAL is Advocacy and Human Rights Officer, Combined Community Legal Centres Group NSW.


    Crime and punishment

    Queensland has the second highest prison population in Australia. This is due to an increase in prisoner numbers by 140 per cent since 1993. A further 90 per cent rise is expected by 2015.

    Some factors influencing the rate of imprisonment include:

    • population growth

    • demographic structure of the population

    • policies favouring imprisonment for sentences that may otherwise attract a different penalty

    • inmates serving longer sentences due either to limited use of parole and early release mechanisms or longer terms of imprisonment.

    The Beattie government, whose electioneering included being ‘tough on crime’, now faces the task of not only housing increasing numbers of prisoners but of considering the impact on the community of significant numbers of potential recidivists. In the past decade, the government has spent over $450 million on prison infrastructure and redevelopment. This includes upgrades to prison accommodation and security, implementation of new rehabilitation programs and revamped rehabilitation programs.

    A $76 million redevelopment of Sir David Longlands Correctional Centre will make it the primary reception centre prison for newly sentenced male prisoners in south east Queensland, who will stay at the centre for around three weeks while they are assessed for a place in one of south east Queensland’s prisons. Included in the redevelopment are:

    • increased cells from 342 to 558

    • renovation of 240 other cells

    • extensive upgrades to perimeter fences

    • upgrading tracking duress alarms

    • a new educational and intervention program

    • reopening of the centre’s commercial laundry

    • video-conferencing facilities.

    A further $101 million is being directed towards construction of a new women’s prison in Townsville and redevelopment of the adjacent Townsville correctional centre. The new women’s prison will have 150 cells as well as residential facilities and prison industry facilities. The redevelopment of the existing Townsville correctional centre includes an increase in cells from 96 to 200, together with new buildings and educational program spaces. The project is expected to be finished by the end of 2007.

    Alongside the introduction of upgraded facilities in Queensland prisons, the government has also provided funding to the Corrective Services Department for redevelopment of old rehabilitation programs and the gradual implementation of new rehabilitation programs for prisoners. This follows independent evaluations that indicated existing programs were not in line with contemporary rehabilitation research. New sexual offenders programs are to be implemented throughout the State, offering risk assessment followed by high or medium intensity treatment programs and a maintenance program. Other new programs have been introduced for anger management, substance abuse, violence intervention and cognitive skills.

    Over the last decade, debate about the effectiveness of the existing programs for rehabilitation of offenders in prison and the adequacy of funding for rehabilitation programs has been raised between the government and community and church organisations. Despite the Minister, Judy Spence, defending the Queensland system saying it has the ‘lowest number of recidivist offenders in the country’, the Incorrections report by Tamara Walsh in November 2004 assessed the recidivism rate at 60 per cent. The ever increasing numbers of prisoners means the social consequences for prisoners who are returned to the community is likely to be an issue for some time.

    It remains to be seen whether the government’s new measures provide the right mix of funding to balance punishment with ongoing rehabilitation into the community.

    KAY ROSOLEN is a solicitor with Legal Aid Queensland.

    South Australia

    ‘Get tough on crime’ credo

    One of the reasons for the Rann Labor Party’s popularity and its return to government has been its ‘get tough on crime’ credo. This has been more than just your typical all-bark-and-no-bite political rhetoric: since 2001, the average daily prison population of South Australia has risen by more than 14 per cent; South Australian Police have some of the most sweeping DNA testing powers in the country; and the government’s acrimonious relationship with both the DPP and the Parole Board is legendary.

    As for the next target of the newly re-elected Rann government’s ‘get tough on crime’ crusade, it may be an overhaul of s 69A of the Evidence Act 1929 (SA). Driven in part by The Advertiser’s inclination to describe suppression orders as representative of a ‘culture of secrecy’, the Premier has said that he will do everything he can to make sure the court system is transparent and that criminals are not protected by judges or the issuing of suppression orders. However, restricting the discretion of judges and their ability to issue suppression orders is not conducive to a tough stance on crime. Rather, it would make the administration of justice more difficult and will cause undue hardship for individuals affected by criminal proceedings.

    Conveniently, there are a number of points that The Advertiser forgets to mention to its readers; points Mr Rann would do well to consider before turning his ‘get tough on crime’ campaign into a ‘get tough on justice’ stunt. First, the court system is already transparent. Contrary to the assertions of The Advertiser, suppression orders do not ‘suppress our right to know’; they merely suppress the publication of evidence and/or images and anyone who has an interest in a particular case can enter an open court and hear evidence. Also, the courts maintain a registry of all suppression orders that relate to matters before a court.

    Second, the range of matters a court must consider before granting a suppression order already acknowledges public interest, the role of the media and judicial transparency. What the media chooses to ignore is that public interest must always be considered alongside:

    1. the possibility that media disclosure of information will taint the deliberation of potential jurors

    2. the possibility that disclosure may cause undue hardship to an alleged victim, witness or child.

    This means that a judge must sometimes balance competing principles and not, as The Advertiser might prefer, consider the interests of the media before those of individuals affected by the administration of justice.

    Currently, the Evidence Act and its application by judges suggest that a balance between these competing principles is already in place. The Premier would do well to leave it that way. After all, getting ‘tough on crime’ is not the same as getting tough on the legal system, and those likely to be harmed by confusion between the two are those who Mr Rann wants to better protect. The distinction between a tough stance on crime and a tough stance on justice is lost on some of Adelaide’s media. May it not be lost on our newly re-elected government.

    GREGOR DAWSON is a PhD student and teaches legal studies at Flinders University.


    Relationship between domestic and international human rights law

    The Court of Appeal has recently had occasion to consider and comment on the relationship between domestic law and international human rights law, including the use and relevance of international human rights in domestic proceedings.

    The case of Royal Women’s Hospital v Medical Practitioners Board of Victoria [2006] VSCA 85 (20 April 2006) <> concerned the issue of ‘public interest immunity’ and, in particular, whether it attached to a patient’s medical records. In the course of proceedings, the Court requested that parties make submissions on the relevance, if any, of international human rights law to the questions before the Court.

    Commenting on the submissions subsequently made to the Court, the judgment of the President of the Court, Justice Maxwell, makes the following critical points. First, the Court places significant value on international human rights law. Having regard to this:

    • the Court will encourage practitioners to develop human rights-based arguments where relevant to a question in the proceeding [69]

    • practitioners should be alert to the availability of such arguments and should advance them where relevant [69]

    • since the development of an Australian jurisprudence drawing on international human rights law is in its early stages, further progress will involve judges and practitioners working together to develop a common expertise [69].

    Second, there are at least three important ways in which international human rights law and jurisprudence may be relevant to the resolution of disputes under domestic law:

    • statutes should be interpreted and applied, as far as

    language permits, in conformity with international human

    rights treaties [73]

    • international human rights law may be used as a legitimate guide to the development of the common law [74]

    • the provisions of an international human rights treaty to which Australia is a party may serve as an indicator of contemporary values and the public interest [75].

    Third, having regard to the above, Australian courts have appropriately considered the use of international human rights in:

    • exercising a sentencing discretion

    • considering whether special circumstances exist to justify the granting of bail

    • considering whether a restraint of trade is reasonable

    • exercising a discretion to exclude confessional evidence [70].

    The decision of Justice Charles, while not dealing with the relationship between international law and domestic law in the same detail, does consider a number of treaty provisions as potentially relevant to the exercise of a discretion whether to disclose medical records. In particular, Charles J refers to art 17 of the International Covenant on Civil and Political Rights (right to privacy), art 12 of the International Covenant on Economic, Social and Cultural Rights (right to health) and art 12 of the Convention on the Elimination of All Forms of Discrimination Against Women (right to non-discrimination in access to healthcare). The fact that Charles J considers and comments on these treaties in some detail is, arguably, a strong implicit recognition of their importance and relevance to domestic proceedings.

    The decision of the Court, particularly that of Maxwell P, represents an increased receptiveness in Victoria’s supreme appellate court to submissions based on international

    human rights law. The Human Rights Law Resource Centre

    considers this to be very heartening for the development

    of an international human rights law jurisprudence in Victoria and Australia.

    PHILIP LYNCH is Director and Principal Solicitor of the Human Rights Law Resource Centre Ltd.


    Barristers gagged? Western Australian Bar Association media guidelines

    In the wake of several high-profile cases come new guidelines from the Western Australian Bar Association. Barristers must now seek permission from the President of the Bar Association before speaking to the media in relation to proceedings in which the barrister is appearing or has appeared. In granting permission, the President must be satisfied that it is in the interests of the client and of justice, or that it is necessary to enable the barrister to respond appropriately to public criticism of their conduct.

    The new guidelines were proposed by the then Law Society President, Wayne Martin QC (two months before he was appointed Western Australia’s new Chief Justice), and approved at a General Meeting on 15 February 2006. The changes were prompted by complaints over controversial public comments made by Mark Trowell QC in relation to the Schapelle Corby case.

    The Bar Association’s President, Ken Martin QC, said the decision was designed to prevent American-style media circuses developing in Western Australia. The move seeks to discourage barristers from engaging in public advocacy, and provides a clear indication of the Bar Association’s accepted character and conduct for barristers, namely dispassionate and objective professionalism. Mr Martin said the rule was framed to provide flexibility in application to a number of potential circumstances, and would require individual assessment by the President.

    Belinda Lonsdale, President of the Criminal Lawyers Association, likened the rule to a gag on freedom of speech. She asserted that all barristers should have the right to speak freely on judicial matters, untempered by the discretion of the President. She questioned the practical implications of the rule, and the impact on a client’s rights to impartial justice in the public sphere,

    noting that the Director of Public Prosecutions was not bound by the guidelines.

    The recent reversal by the High Court of Andrew Mallard’s 1994 murder conviction highlighted the practical and ethical implications of the new guidelines. Malcolm McCusker QC was forced to seek approval from the Bar Association before publicly responding to claims made before the Court by the Director of Public Prosecutions, Robert Cock QC. Following the proceedings, Mr McCusker could not immediately respond to media outlets in relation to claims disputing Mr Mallard’s innocence.

    A new Chief Justice for Western Australia — and a new era of reform?

    After months of speculation, Wayne Martin QC, Perth barrister and recent Law Society President, has been appointed Western Australia’s 13th Chief Justice, taking over the helm from David Malcolm AC QC who retired early this year after 17 years in the role.

    The new Chief Justice was sworn in on 27 April 2006. His Honour has practised for over 29 years. He joined the bar in 1988, and has been a Queen’s Counsel since 1993. He has been the director of the Law Council of Australia, a former member of the Law Reform Commission of Western Australia and the Administrative Review Council, and led the legal team assisting the Commissioner on the HIH Royal Commission.

    Western Australia’s Attorney-General, Jim McGinty, said that it was the new Chief Justice’s significant contribution to the development and reform of the law that had set him apart from other highly qualified candidates. At his welcoming ceremony on 1 May 2006, Chief Justice Martin reinforced his desire to work with the State government to introduce a reform agenda to ensure a cheaper, more efficient, accessible, relevant and comprehensible justice system for Western Australia.

    MIRIAM MCKENNA is a law student at the University of Western Australia.

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