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Editors --- "DownUnderAllOver" [2000] AltLawJl 112; (2000) 25(6) Alternative Law Journal 304

DownUnderAIIOver
A regular column of developments around the country

Federal Developments

Update on international climate change negotiations

The Sixth Session of the Conference of Parties to the Climate Change Convention (COP 6) commenced on 13 November 2000 in the Hague, Netherlands. Ministers and diplomats from over 160 countries including Australia are attending. COP 6 comes at a critical time in the climate change negotiations.

Background to the negotiations

Human activities cause certain gases such as carbon dioxide, methane and nitrous oxide to be released into the atmosphere. These gases are called 'greenhouse' gases because they increase the capacity for the atmosphere to absorb energy from the sun. Rising levels of greenhouse gases are believed to cause climate change. This is because the earth must shed energy into space at the same rate at which it absorbs energy from the sun. Warming up is a natural way for the earth's climate system to expel extra energy. Global warming could have a significant impact on food security, human health, the natural environment and global economic activity.

In response to growing international concern over global warming, the United Nations Framework Convention on Climate Change was adopted in 1992. The objective of the Convention is to stabilise greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous human-induced interference with the climate system.

The Kyoto Protocol

The Kyoto Protocol was adopted at the Third Conference of the Parties to the Climate Change Convention in Decem­ ber 1997. It is intended to further the aims of the Convention and to set quantified limitation and reduction objec­ tives within specified time frames for anthropogenic emissions of green­ house gases.

The Kyoto Protocol will not enter into force until it is ratified by 55 parties to the Climate Change Convention, including industrialised countries rep­ resenting at least 55% of the group's total 1990 carbon dioxide emission. To date, 30 countries have ratified the Protocol -all of them developing countries. Australia has signed but not ratified the Protocol.

Once it enters into force, the Kyoto Protocol will impose legally binding greenhouse gas emission reduction obligations on industrialised country Parties (Annex 1 Parties) including Australia. In particular, the Annex 1 Parties would be required to achieve specific greenhouse gas emission targets in the period 2008-2012. For example, the United States, Canada and Japan would be required to reduce greenhouse gas emissions by 6% below 1990 levels. On the other hand, Australia, Norway and Iceland could increase greenhouse gas emissions. Australia would be permitted to increase its emissions by up to 8% above 1990 levels.

The Protocol directs countries to take domestic actions in order to achieve their emission limitation and reduction commitments, such as implementing measures to improve energy efficiency and sustainable agriculture. It also establishes three supplemental mechanisms that countries may use to lower the costs of meeting their emissions targets. These 'flexibility' mechanisms are: the clean development mechanism; joint implementation; and emissions trading. The Protocol also provides that countries may gain credits against their emission targets for promoting certain land-use activities such as afforestation, reforestation and other activities that strengthen carbon 'sinks'. New trees and plants are called sinks because they remove carbon dioxide from the air.

Discussions at COP 6

The Kyoto Protocol has left it to the Conference of Parties to resolve a number of important matters that will impact on the operation of the Protocol and the costs for countries in meeting their emission targets. These include rules governing the operation of the flexibility mechanisms, rules for obtaining credits for the removal of car­ bon dioxide by sinks and a regime for monitoring compliance.

There is an expectation that decisions on all of these matters will be made at COP 6. The decisions reached at COP 6 are likely to determine whether the Kyoto Protocol will enter into force in time to allow countries to make demonstrable progress towards lowering greenhouse gas emissions and tackling global warming in the next decade.

Joshua Brien

Joshua Brien works in the Office of International Law, Attorney-Generals Department, Canberra.

The views in this item are the author's and not necessarily those of the A-G's Department.

Postscript: The COP 6 discussions wound up on 25 November, 2000 with many environmental groups and participants left feeling that the US had attempted, in the words of Greenpeace's Climate Policy Director, 'to literally sabotage the environmental integrity of the Kyoto Protocol'. However, what seemed like a concerted attempt by certain industrialised nations to avoid any real commitment to further reduce greenhouse emissions ended in a stale­ mate with the EU holding firm against the US-led proposals. It is likely that COP 6 talks will be reconvened in early 2001. • FD

Mandatory sentencing = cruel and inhuman punishment

The mandatory sentencing laws of the Northern Territory and Western Australia continue to be the subject of international criticism, with a fourth UN report in one year raising concerns about the socio-economic circumstances faced by Aboriginal and Torres Strait Islander people and their treatment at the hands of Australian governments.

The UN Committee Against Torture has released its Conclusions and Recommendations after considering the federal government's latest report on Australia's obligations under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The Committee lists five points of concern and eight recommendations in its Conclusions and Recommendations and calls on the federal government to 'ensure that all states and territories are at all times in compliance' with their obligations under the Convention, and to 'keep under careful review legislation imposing mandatory minimum sentences ... particularly with regard to the possible adverse effect on disadvantaged groups.'

In its submission to the Committee, the Aboriginal and Torres Strait Islander Commission {ATSIC) stated that 'excessive punishments out of pro­ portion to the crime committed is precisely the outcome of the mandatory sentencing regimes in the Northern Territory and Western Australia ... Mandatory sentencing gives rise to grossly disproportionate punishment and as such constitutes cruel, inhuman or degrading punishment.' In a statement released on 22 November 2000, ATSIC Chairman Geoff Clark noted that the Committee had specifically expressed appreciation for the contribution of non-governmental organisations and statutory agencies to its work.

However, the federal government's criticisms of the UN Committee system earlier this year appear to have paid off to some extent, with a certain 'softening' of the Committee's approach. At least, this is the line being pushed by Attorney-General Daryl Williams, who stated in response to the Conclusions and Recommendations that ‘Australia's policy of constructive engagement with the UN human rights committees is proving to be effective ... Australia will consider the Committee's recommendations and will respond to them when we deliver our fourth report under the Convention, which the Committee has asked to be delivered in four years.' Despite this confidence, the issue may be in the public spotlight again sooner than the Attorney-General thinks, with Greens Senator Bob Brown announcing that he will push for a Senate inquiry into his private member's bill (introduced earlier this year) to over­ tum the mandatory sentencing laws in Western Australia and in the Northern Territory.

In addition to its concerns about mandatory sentencing, the Committee against Torture raised concerns about the apparent lack of review mecha­ nisms for asylum seekers who claim they would face torture or intimidation if forced to return home. In Amnesty International's view the Committee has highlighted a critical gap in Australia's refugee protection which still allows people to be deported to countries where they risk such treatment. • FD

Northern Territory

And more mandatory sentencing ...

The temptation is too great! For those readers sick of hearing about mandatory sentencing, adjust your dial now. The saga continues and it is impossible to resist the chance to furnish readers with the gory details!

The Court of Summary Jurisdiction in Darwin recently heard a submission that mandatory sentencing has corrupted the sentencing process. This followed the imposition of a one-year sentence for stealing a ladder and $5 worth of electrical tape. Magistrate Alisdair McGregor agreed with the submission, stating that mandatory sentencing had corrupted the sentencing process, as a worm corrupts a ship.

Chief Minister and Attorney General Denis Burke took umbrage at such comments and said: 'If a magistrate doesn't have confidence in the system in the Northern Territory, they've got a clear opportunity, I would think a responsibility, to resign'. Shadow Attorney-General Robert McClelland says Mr Burke's comments are over the top and as the most senior law officer in the Territory, Mr Burke is responsible for protecting the dignity of the court.

The President of the Northern Territory Criminal Lawyer's Association, John Lawrence said that if principle and convention had any role to play, it should be the Attorney-General who resigns from his portfolio. Mr Lawrence said that the Attorney-General has directly attacked the legal system, which it is his responsibility to defend.

Meanwhile recent figures released by the Australian Bureau of Statistics show that the Northern Territory has the highest murder rate in Australia, despite there being a mandatory sentence of life imprisonment for that crime. Western Australia and the Northern Territory have the first and second highest rates of break and enter, despite mandatory sentencing laws for the crime in each of those jurisdictions. • FH

Chief Magistrate's appointment goes to trial

In a related development, the case brought by the Northern Australian Aboriginal Legal Aid Service (NAALAS) against Chief Magistrate Bradley is to go to trial.

Readers may recall that in April 2000, NAALAS sought a declaration that the appointment of the Chief Magistrate for a fixed term and on special remuneration in February 1998, was invalid. The application is thought to have arisen out of sentencing remarks that Mr Bradley made, in relation to a NAALAS client, which indicated that government considerations on mandatory sentencing were relevant to the sentencing process. NAALAS requested that Mr Bradley disqualify himself on the grounds of bias (see (2000) 25(5) Alt.LawJlDownUnderAllOver).

In June 2000 Justice Olney ordered summary judgment in favour of the Chief Magistrate (and the NT) on the basis that NAALAS' claim did not disclose any cause of action.

NAALAS appealed and on 16 November 2000, the Court of Appeal of the Northern Territory (Priestley J, Doyle AJ & Brooking AJ) allowed the appeal. The Court made it clear that the decision to let the case go to trial did not mean that any final or binding decision adverse to the Chief Magistrate had been made. However, the Court held that the Statement of Claim did disclose a cause of action which was justiciable. It was arguable that the power of appointment pursuant to the Magistrates Act does not permit an appointment to be made further to an arrangement which subjected Mr Bradley to influence by the NT government in the carrying out of his duties. • KB

New South Wales

New South Wales drug reform proposal

On 1 November 2000, the New South Wales State Cabinet proposed drug law reform which will allow cannabis use by sufferers of chronic pain as well as those with degenerative and terminal illness. Premier Bob Carr announced the proposed reform and called for public input. If the reform survives com­ munity scrutiny, those affected will be exempted from criminal prosecution for growing and smoking marijuana.

But for all those anticipating decriminalisation of dope in New South Wales -whether you be jumping for joy or mumbling darkly about thin edges of wedges - think again! The reform is proposed only as an interim solution until synthetic cannabanoids are developed and made commercially available.

The Rabbitos' day in court

On 3 November 2000, South Sydney District Rugby League Football Club lost their Federal Court challenge to the decision made by News Limited, the National Rugby League{NRL), and the Australian Rugby League (ARL) to exclude them from the NRL.

Among the legal arguments put by counsel for South Sydney was that the agreement between the ARL and News Limited to reduce the NRL competition to 14 teams {the decision which effectively led to South's ousting) was in breach of s.45 of the Trade Practices Act 1974. The case was that the so-called 'fourteen team term' caused a restraint of trade which denied South Sydney supporters the services of their team. This and other arguments were ultimately all rejected.

In his conclusion, Finn J noted with great acuity that 'it is probably the case that the real matter of contention between the parties as perceived by Souths existed at some distance from the specific subject matter of this proceeding'. He went on to quote from a letter written by South Sydney to the NRL which included the following:

[i]n our view Rugby league is an icon to be preserved for the people who love and support it, not a product to be carved up to the media for their own financial gratification.

In the context of the court room, however, South Sydney argued not for the preservation of an icon but for the right to provide rugby as a product. This case is less about the subtleties of the Trade Practices Act, agency, partner­ ship or contract law than it is about com­ munity loyalty and cohesion versus big business and the commodification of sport. It is a battle fought in a language which the court room speaks rarely and usually by accident. • SMcC

Queensland

Election fraud: is time up for the Beattie government?

Queensland Deputy Premier Jim Elder has resigned after being advised of evidence of possible electoral fraud in his electorate, uncovered by the Criminal Justice Commission. While Queensland cannot hope to match the current electoral carry-on in Florida for news regarding elected officials, the resignation is naturally receiving extensive coverage north of the Tweed.

Thus far, the Shepherdson Inquiry by the Commission has heard evidence implicating three Labor MPs in relation to electoral fraud activities. Despite the inquiry hearing similar allegations involving a Liberal MP, the National-Liberal opposition has naturally been taking the opportunity to hammer the government. Opposition leader Rob Borbidge has focused on the fact that, before the most recent allegations were made public, the government had cancelled the final week of parliamentary sittings which had been schedu1ed for early December. Mr Borbidge is considering petitioning the Parliamentary Speaker or the Governor to recall parliament for the December sittings.

The allegations of electoral fraud generally relate to the enrolment of party members and friends to vote in electorates when they were ineligible to do so. Such actions appear to have been motivated by tight factional contests for party pre-selection rather than to boost the chances of the party in marginal electorates. One inquiry witness, Warwick Powell, referred to the Australian Workers Union faction of the Labor Party holding functions at which 'war stories' were told detailing the tactics which faction members had used to succeed to overcome the Left faction of the party.

Premier Peter Beattie cut short a trade promotion visit to Japan and Korea to deal with the fall-out from Elder's resignation. Beattie has asked the electorate to trust him to clean up the mess. 'I will fix it' is his assurance and he has emphasised that he will apply the 'highest standards' in dealing with any Labor member implicated by the inquiry in wrongdoings.

No doubt, there's more to be told in this story. The Beattie government appears set to face the election due in 2001 (it may be held as early as March) in very difficult circumstances. • JG

South Australia

Animal Liberation brings criminal proceedings against battery egg producer

In a current case, Animal Liberation is testing whether it is able to bring prosecutions to enforce the Prevention of Cruelty to Animals Act, instead of or in addition to any prosecution brought by the RSPCA.

Following a recent night raid on a battery egg shed, Animal Liberation made a formal complaint to the RSPCA alleging that the egg producer was operating in breach of regulations under the Prevention of Cruelty to Animals Act concerning overcrowding of hens.

The RSPCA announced that it would not bring a prosecution. Mean­ while, the egg producer obtained an injunction preventing Animal Liberation from publishing video evidence taken during the raid. In his supporting affidavit, the egg producer made references to allegations of breaches of the Act following a previous inspection carried out by the RSPCA.

Animal Liberation has now brought its own criminal prosecution against the egg producer on the strength of the information in the affidavit. As part of the prosecution, Animal Liberation has issued a subpoena seeking documents from the RSPCA relating to three specific inspections of the egg producer carried out by the RSPCA. So far, the RSPCA has declined to produce these documents, which were obtained by the RSPCA in the course of exercising a statutory power, and has sought the directions of the Court on the issue. It will be interesting to see whether Animal Liberation will be able to use such documents to enforce the Prevention of Cruelty to Animals Act in cases where the RSPCA declines to do so (for what­ ever reason). The production of the documents is to be considered when the matter resumes on 21 November.

The latest development in the case is that the RSPCA has now indicated that it is considering a prosecution on differ­ ent grounds to those of Animal Liberation. • SH


SA lawyers to get a piece of the real estate pie

As a result of a recent review by the Office of Consumer and Business Affairs, it has been recommended that lawyers will be able to register as land agents and engage in the real estate business, subject to demonstrating competency in land appraisal. The recommendations are, however, being challenged by the Real Estate Institute of South Australia (REISA).

The Land Agents Act regulates 'p{o­ vision of services other than conveyancing relating to the sale of land and businesses in South Australia'. Currently, legal practitioners are able to offer these services and are 'exempt from the requirement to be registered insofar as they provide such services in the course of their legal practice'. Lawyers have not been allowed to engage in the systematic selling of real estate, so there has not been a need to consider whether or not they should be registered under the Act.

The Final Report on the National Competition Policy Review of the Land Agents Act found that legal practitioners are competent in the legal aspects of land and business transactions although they are not sufficiently trained in appraisal. However, lawyers can acquire the necessary qualifications by completing a 20-hour property appraisal course. The review was carried out in accordance with the Competition Principles Agreement entered into in 1995 by State and Territory governments with the object of reviewing legislation that restricts competition.

REISA has challenged both the recommendations and the constitution of the Review Panel. In response to REISA's submissions, the Minister for Consumer Affairs has agreed to reconvene the Panel with an additional member from the real estate industry. The Panel will consider new submissions by REISA regarding the registration of lawyers and the need for increased com­ petition. REISA argues that the large number of land agents presently operating in South Australia provide adequate competition and that increased competition will result in job losses. • SH

Tasmania

Reconciliation? Legislative Council rejects Aboriginal Lands hand back

In September 2000, the Legislative Council of Tasmania rejected the Aboriginal Lands Amendment Bill 2000 introduced by the Bacon Labor Government. The government put forward the Bill as an instrument of reconciliation. Premier Bacon argued that the estimated 25,000 Tasmanians who walked across the Tasman Bridge in Hobart in the name of reconciliation provided evidence that the community supports the government's efforts towards this process, and therefore were supportive of the Bill.

The Bill proposed the transfer of titles of eight parcels of Crown land to the Aboriginal Land Council of Tasmania. The parcels comprise in total some 52 000 hectares, representing less than 0.8% of the total size of Tasmania. The Legislative Council rejected the Bill on the basis that insufficient community consultation had taken place. Various members of the Council argued that many individuals and organisations had expressed concern over the Bill, that the Bill was potentially divisive, and that it therefore hindered rather than advanced reconciliation.

Cynics argue that Labor is being opportunistic in courting the Aboriginal community and those supportive of Aboriginal interests by taking a leading role in handing back land. It is said that the government does this comfortable in the knowledge that the Legislative Council will reject their bills. The government does, however, appear genuinely to be committed to their Aboriginal Lands Amendment Bill. While there is opposition and some unease in the broader and Aboriginal community over certain aspects of the Bill, it does appear to enjoy broad support.

Sealing to recommence?

The protected Australian fur seal is becoming an increasing and more aggressive nuisance to Tasmanian salmon farmers, leading to proposals to put down nuisance seals.

Salmon farmers argue that they are contending with a considerable loss of fish and that some 'rogue' seals have begun attacking fish farm workers. The current practice of removing nuisance seals south to Bass Strait several hundred kilometres from the fish farms is not proving effective.

The proposal is to have identified rogue seals tranquilised and then taken to a veterinarian to be put down. How­ ever, the vet on whose shoulders this task would fall has stated that he would refuse to do it. If the proposal hardens into practice, it will certainly be con­ tested through all available means.

Preminghana resolution?

In 1997, a gate was placed across a public access road to Preminghana (Mt Cameron West) on the north west coast of Tasmania. The road crossed vulnerable sand dune environments and Aboriginal middens which are protected under the Aboriginal Relics Act.

On 10 October this year, a group of 30 protesters blockaded the road near the gate. The protesters argued that a 1995 agreement to hand the land back to Aborigines guaranteed access to the area and that this access had been denied by the gate; consequently, the gate across the public road was illegal.

A recent meeting involving representatives of all interested parties and further legal advice resulted in the protesters disbanding the blockade and in the removal of the gate. The road is now closed and a new public access road will be built subject to Aboriginal heritage inspection. The gated road has been the source of much anger and the protection afforded these vulnerable sites has itself been vulnerable. It appears that a long overdue resolution is now possible.

No more asbestos in the park

In May 2000, the name of the Asbestos Ranges National Park was changed to Narawntapu National Park. This name is the indigenous name for the Badger Head coastal region that the park encloses.

UniTasGreens, a society of the University of Tasmania Union, has recently expressed interest in a campaign to change the name of Mt Wellington to its indigenous name and/or names. While the name change from Asbestos to Narawntapu appeared to ruffle few feathers, it is thought that this was due to the word asbestos rather than an endorsement of the change itself. A proposal to change the name of Mt Wellington, on the other hand, may prove to be far more incendiary.

Mitchell Rolls

Mitchell Rolls teaches in Aboriginal Studies at the University of Tasmania.

Victoria

Gender discrimination amendment to Equal Opportunity Act

The Equal Opportunity (Gender Identity and Sexual Orientation) Act 2000 received royal assent on 12 September

2000. The Act amends the principal Act to prohibit discrimination on the basis of:

1. gender identity, defined as the identification of a person of one sex or indeterminate sex as a member of a particular sex; or

2. sexual orientation, defined as meaning 'homosexuality (including lesbianism), bisexuality or heterosexuality'.

The amendments strengthen the current prohibition on discrimination against a person on the ground of' lawful sexual activity' and include transgender persons within the protection of the Equal Opportunity Act.

Unfortunately, the Act permits an employer to continue to discriminate on these bases if it is 'unreasonable in the circumstances for the employer not to discriminate against the person'. Factors to look at when assessing reasonableness include: cost to the employer and the employer's financial situation, feasibility of the employer not discriminating and the impact of the proposed discrimination on the person being discriminated against. An exception also applies in the case of sport.

Pawnbroking review

A review is currently being undertaken by Consumer and Business Affairs Victoria into the pawnbroking industry. This follows widespread criticism of the interest rates being charged in the wake of deregulation (including the removal of interest rate ceilings) by the Kennett government.

The scope of the review includes an examination of 'payday lending' (PDL), an insidious practice that is relatively new to this State but has been proliferating overseas for some years and has been a part of the fringe credit industry in Queensland for the past 18 months. There are now payday lenders in all States except Tasmania. Payday lending sees people, often on government benefits or very low wages, handing over signed cheques or direct debit details for short-term loans supposedly to be repaid at the person's next payday. However, the loans are regularly rolled over leading to a spiralling debt trap. The loans attract often massive interest rates or 'fees' that opponents argue are effectively exploitation of those members of society who can least afford such imposts. Due to a legal loophole and the short-term nature of the loans, PDL is not covered under the Uniform Consumer Credit Code and so avoids many of the Code's disclosure and consumer protection provisions.

The Consumer Affairs Ministers in each State are presently deciding how to deal with PDL and initial reports suggest they will bring PDL in under the Code by amending the short-term (up to 62 days) loan exemption. Consumer

organisations argue this will not deal adequately with the practice and are lobbying to have the Code amended to force payday lenders to advertise annual percentage rates and to be subject to a cap of 48%.

Police pay compensation over tactics used against protesters

In the past month, the Victoria Police has settled numerous individual claims arising out of the 1993 Richmond Secondary College protests and a February 1994 protest in East Melbourne against logging in old growth East Gippsland forests. The claims arose after police used excessive force to clear demonstrators, including the discredited 'pressure point' tactics, labelled by the Australian Medical Association as 'highly dangerous'. The settlements follow the millions paid out in compensation and legal costs to those strip-searched as part of the disgraceful Tasty nightclub raid in 1994.

Further payouts seem likely as solicitors for those viciously clubbed, kicked and punched by police at the S11 protests put the finishing touches to dozens of writs. Many of the police actions caught on film clearly show them using tactics, such as the use of their billy-clubs in an overhead, swinging motion on defenceless and passive protestors, which were specifically forbidden in the Deputy Ombudsman's report released in the aftermath of the Richmond Secondary College protests.

When will police finally get the message? As Dr Jude McCulloch was quoted saying in the Age: 'The law says police can use reasonable force to arrest those committing summary offences, such as obstructing, but it doesn't say you can use force to prevent people committing offences. There is no clear power to disperse protesters using batons.' Police should either arrest protesters or let them protest - they should not deal out violent summary justice. Until this sinks in, the taxpayer will continue to fund compensation payouts to those injured as a result of the police breaching the laws they are meant to uphold. • GO

Report of the Independent Investigation into the Management and Operations of Victoria's Private Prisons

Following the State Coroner handing down his findings into five deaths at Port Phillip Private Prison, the Minister for Corrections, Mr Andre Haermeyer, established an independent investigation into the management and operation of Victoria's three private prisons. The investigation team, headed by Peter Kirby, heard from a wide range of parties and reported this month.

The report was conducted in the context of the new government (a long time opponent of prison privatisation) discovering that they were not able to extricate themselves from the private prison contracts. The investigation did not challenge the existence of private providers but rather sought to identify ways of improving the system overall. The Victorian prison example high­ lights the ability of commercial arrangements to undermine democracy.

The report makes 54 recommendations. Importantly it recommends that the duties of care owed by the private providers should be enshrined in the Corrections Act and that contracts be amended to allow for default notices to be issued for any breach of the provider's obligations. The report also recommends improvements be made to the Telstra telephone system which has been the target of dozens of complaints about cost and reliability.

Some are concerned that the report does not go far enough by failing to recommend the establishment of an independent monitoring body such as a prison ombudsman.

A full copy of the report is available from the Office of the Correctional Ser­ vices Commissioner or on the Department of Justice website.

Pauline Spencer

Pauline Spencer is a lawyer at Fitzroy Legal Service.

DownUnderAllOver was compiled by Alt.LJ committee members Karen Bowley, Fiona Dalton, Jeff Giddings, Samantha He/sham, Fiona Hussin, Siobhan McCann, Glenn Osboldstone, together with invited writers listed under their contribution above.

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