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Editors --- "DownUnderAllOver: Developments around the country" [2000] AltLawJl 74; (2000) 25(4) Alternative Law Journal 197

DownUnderAIIOver
A regular column of developments around the country

Federal Developments

Australia at the United Nations

Australia's appearance before the United Nations Human Rights Committee (UNHRC) in July 2000 was neither the first consideration of Australia's record in human rights by one of the United Nations (UN) specialised agencies for the year nor the last.

In March this year, the UN Commit­ tee on the Elimination of Racial Discrimination considered Australia's implementation of the provisions of the International Convention on the Elimination of All Forms of Racial Discrimination. In response to the process of consideration and the concluding comments issued by this Committee, the Howard government initiated a review of the operation of the UN treaty committee system as it affects Australia. The Joint Standing Committee on Foreign Affairs, Defence and Trade is also considering Australia's relations with the UN. The terms of reference of the inquiry include the capacity of the UN to protect human rights.

This month, the UN Committee on Economic, Social and Cultural Rights will consider Australia's Report under the International Covenant on Economic, Social and Cultural Rights. In November, the UN Committee against Torture will consider Australia's combined Second and Third Report under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

The focus of this note is on the consideration by the UNHRC in July of Australia's Third and Fourth Reports under the International Covenant on Civil and Political Rights (the ICCPR).

The UNHRC comprises 18 experts elected to serve 'in their personal capacity'. Members include Louis Henkin of the United States of America and Fausto Pocar of Italy. Judge Elizabeth Evatt, former head of the Australian Law Reform Commission, was elected to the UNHRC in 1992.

After consideration of Australia's Third and Fourth Reports and submissions put forward by the Australian government and non-government organisations, the UNHRC made a number of recommendations regarding action that should be taken by Australia, including that Australia:

• take the 'necessary steps' to 'secure for the indigenous inhabitants a stronger role in decision making over their traditional lands and natural resources';

• 'restore and protect the titles and interests of indigenous persons in their native lands, including by considering amending anew the Native Title Act';

• give weight to 'securing continuation and sustainability of traditional forms of economy of indigenous minorities (hunting, fishing and gathering), and protection of sites of religious or cultural significance' in legislation to protect indigenous heritage;

• 'intensify' efforts to 'address the tragedies resulting from the previous policy of removing indigenous children from their families';

• reassess legislation regarding mandatory imprisonment in Western Australia and the Northern Territory;

• reconsider mandatory detention of 'unlawful non-citizens', including asylum seekers; and

• inform all detainees of their legal rights including their right to seek legal counsel.

The UNHRC also recommended that Australia reconsider its opinion regarding the decision of the UNHRC in Communication 560/1993, other­ wise known as A’s case. In this case, A had applied for refugee status in Australia and was detained pending consideration of the application and pending subsequent legal action. A sought a ruling in its Communication that the detention contravened the ICCPR. The UNHRC found that the length of detention of A in the circumstances amounted to arbitrary detention. How­ ever, the Australian government has expressed a differing opinion.

Of interest in the UNHRC's comments was the general concern expressed 'that in the absence of a constitutional Bill of Rights, or a constitutional provision' giving effect to the ICCPR, there remain gaps in the implementation of the ICCPR into domestic Australian law. In 1995, the UNHRC made a similar comment in considering the Fourth Report of the United Kingdom of Great Britain and Northern Ireland.

The UNHRC also commented on the Administrative Decisions (Effect of International Instruments) Bill 1999, which is intended to formally overturn the decision in Teoh [1995] HCA 20; (1995) 183 CLR 273 that the entry into a treaty by Australia may give rise to a legitimate expectation that administrative decision makers will make decisions consistent with the treaty, absent a specific indication to the contrary. The Bill was originally introduced into the federal parliament by the then-Labor government and has been passed by the House of Representatives and introduced into the Senate, but not passed by it. The UNHRC took the view that enactment of the Bill would be incompatible with Article 2 of the ICCPR, which includes an obligation on Australia as a party to the ICCPR to 'take the necessary steps, in accordance with its constitutional processes... to adopt such legislative or other measures as may be necessary to give effect to the rights' in the ICCPR. States are generally allowed the discretion to choose how the rights contained within the ICCPR will be incorporated into domestic law.

Overall, the consideration given by the UNHRC to Australia's Third and Fourth Reports appears measured, with a number of positive comments being made and with other comments being generally framed in terms of recommendations. The breadth of the comments reflected both the breadth of subject material canvassed and the length of the reporting process.

As always, arguments can be had about the level of knowledge of mem­ bers of the UNHRC regarding the com­ plexity of domestic Australian law. This seems inevitable given the lack of resources available to the UNHRC and the limited time frame in which to con­ sider reports. The benefits of consider­ ation on the other hand flow from the breadth of experience of members of the UNHRC as well as any develop­ ments in domestic Australian law which might be engendered by the resulting debate. • SB

Stop Press

On 11 August 2000 the Federal Court handed down its decision in a case concerning the claims of two Aboriginal Australians who had been removed from their families as children, and suffered abuses by officers of the Commonwealth. Justice O'Loughlin found that the claims against the Common­ wealth could not be proven as a matter of evidence, although this finding did not deny the existence of the Stolen Generation. The full text of the judgment in Cubillo and Gunner v Commonwealth [2000] FCA 1084 (11 August 2000) can be found at: www.fedcourt.gov.au or www.austlii.edu.au/au/cases/cth/federal ct/2000/1084.html. -

Northern Territory

Where have all the Registrars gone?

Darwin, from 25 August 2000 will be without a Registrar in the Family Court. What happened to the federal government's promise not to cut funding to the regional areas?

The Territory has gone from having a Registrar who could make urgent decisions, with some form of judicial power, to a federal magistrate based in Townsville. In addition, Cairns, Alice Springs and Darwin will be part of a circuit serviced by this magistrate. There is fear that this magistrate may not come to Darwin for about 12 months due to delay is the setting up of the federal magistracy. A chief magistrate and four senior magistrates have so far been appointed, but the process will continue until a total of 15 magistrates are appointed.

While such a scheme will eventually allow for more federal matters to be dealt with in the federal courts rather than magistrates courts, it has meant a substantial cut to the resources of the Family Court in the Northern Territory. What will this do to the 15 month waiting list for the Family Court here in Darwin?

Townsville now has a Federal Court judge and a magistrate while Darwin has only a circuit magistrate. Is the Northern Territory now to be considered as 'the western part of Queensland'? • KB

Customary law defence fails

Who remembers the case of Y who was charged with assault and criminal damage committed against a photographer on Aboriginal land? (See (1999) 24 Alt.L/98.)

Under the Criminal Code (NT), a person does not commit an offence if his/her acts are 'authorised' or 'excused' by 'law'. Y's two arguments were:

• he was 'authorised' to do what he did because the Criminal Code and the Aboriginal Land Rights (NT) Act (the Land Rights Act) 'recognised' Yolgnu law as operating on Land Rights Act land, and Yolgnu law authorised the assault and criminal damage;

• he was 'excused' from criminal liability by the Criminal Code defence of honest claim of right (his belief that under Yolgnu law he was entitled to do what he did).

A magistrate dismissed the charges against Y. The DPP appealed and the Supreme Court found that neither the Criminal Code nor the Land Rights Act 'recognise' Yolgnu law and that the defence of honest claim of right did not apply to the facts. The decision was upheld by the Court of Appeal, which ruled on 22 June 2000 that:

• the Criminal Code and Land Rights Act do not recognise Yolgnu law on Aboriginal land and the Criminal Code therefore operates fully on this land;

• Y had no honest claim of right re­ cognised by Northern Territory law. The Northern Land Council has now

filed an application for special leave to appeal to the High Court. This application is likely to be heard early next year.

Stephen Herne

Stephen Herne is NT lawyer.

Customary law defence succeeds

In Trenerry v Rivers, the defendant was charged with an offence under the Fisheries Act (NT), which amounts to possession of a gill without authorisation, established beyond reasonable doubt.

Section 53 of the Fisheries Act provides that the Act does not limit the right of Aboriginals who have traditionally used the resources of the area from continuing to use the resources in that manner.

Magistrate Lowndes found that:

• there was co-existence of two methods of fishing-one traditional (aboriginal) and the other commercial (non-aboriginal). The importance is that the traditional aspect is proved;

• the absence of the defendant from the area for the first 21 years of his life does not preclude a finding that the defendant has continued, uninterrupted, to observe the relevant traditional laws and customs.

The magistrate found that the defendant's conduct was done in the exercise or enjoyment of his traditional laws and customs, and that there has been an uninterrupted observance of those traditional laws and customs which can be traced back to his ancestors at a time immediately before European settlement. Therefore, a native title defence was established and the magistrate dismissed the charge. • FH

Queensland

Frayed, she's back

Early August, and Pauline Hanson resurfaces to re-register her One Nation Party. The darling of the reactionary right re-emerges after a series of batterings, culminating in the parliamentary party's disintegration, its de-registration for fraud, and the emergence of the splinter City-Country Alliance.

Justice Ros Atkinson found Hanson partly responsible for the deliberately misleading registration of One Nation Mark I - a party structured to relegate ordinary members to a powerless 'Sup­ porters Movement'. The men behind the madness, David Oldfield MLC and David Etteridge were nowhere to be seen when the Electoral Commission finally demanded repayment of $500,000 of public funding. Hanson, wealthy in property terms, was bound to a guarantee extracted during the de-registration hearings.

Hanson will now stave off bankruptcy, in part because supporters rallied with donations and in part because the Commission gave her generous time to pay. The Commission, embarrassed by its original mis-registration of One Nation, will scrutinise the re-registration with a fine tooth comb. New South Wales has already tightened party registration laws in the wake of the de-registration.

Meanwhile, One Nation's unlikely bete noire, former candidate Terry Sharples, sails on against the odds. An accountant by trade, Sharples is a legendary litigant in person, who won the de-registration case initially and on appeal, and also succeeded in a High Court petition against One Nation Senator-elect Heather Hill. Sharples must now fight One Nation's speculative application to the High Court to appeal the de-registration. Sharples' ability to lose friends and aggravate people is also legendary, particularly amongst lawyers who gave pro bono help.

Sharples wants to impugn the whole 1998 election, or at least those seats won by One Nation candidates. How­ ever, electoral law limitation periods are short and strict, and false ballot labels are no grounds for petitioning. Sharples makes Quixotic legal claims against various arms of the State, claiming they ought to have challenged the results. Meanwhile, a 2001 election beckons, the frayed One Nation some­ how still with 5% support. All in all, and contrary to One Nation paranoia, Hanson leads a charmed life. Political and regulatory actors alike have seemed wary of a backlash in their treatment of her and instead of bankruptcy and political oblivion, a Senatorship yet beckons.

A judicious apology

In ceremonies across the State, the Queensland Magistrates Court formally apologised to Indigenous com­ munities. A Deed of Apology and Commitment to ensure justice learns from its black history, was handed to Indigenous representatives. The ceremonies reflected earlier action by the Victorian Magistrates Court.

Despite the precedent, and despite the fact that Indigenous people have suffered under rules, procedures and agents who have often been at best ignorant of cultural difference, and at worst, biased or hostile, the ceremonies attracted strong criticism. Chief Stipendary Magistrate Di Fingleton suffered dressing-downs from former magistrates, and more worryingly, Chief Justice de Jersey. De Jersey, who has until now impressed with his progressive views on justice issues, attacked the apology from a traditional 'rule of law' perspective. The public and media followed, in a State that imagines political correctness is confined to the left.

Such criticism rings hollow. Why one Court is entitled to criticise another for the 'sin' of self-criticism, remains unclear. By his own standards, de Jersey's statements were political acts - the very thing he criticised. More substantively, majority conservative opinion denies guilt or shame for Indigenous oppression, asserting it was brought about collectively and institutionally for a greater, future good. Yet when an institution collectively atones for past wrongs, as a commitment to future improvements in attitude and practices, it is howled down. • GO

South Australia


Hindmarsh Island: the case continues

The Hindmarsh Island case (Chapmans vs Fergie, Luminis, Cheryl Saunders, Robert Tickner and the Cth) continues its hearing before Justice Von Doussa in the Federal Court. Evidence has been heard since February 2000.

The Ngarrindjeri women denying the existence of restricted women's knowledge associated with Hindmarsh Island (Kumarangk) have given evidence. The positions of these 'dissident' women regarding the issue have been clarified in this proceedings.

South Australian Museum staff Dr Philip Clarke and Dr Philip Jones gave evidence after the 'dissident' women. Their position regarding the existence of the secret women's business appears to have changed little. Dr Philip Clarke gave evidence about his role in the pro­ cess leading to the calling of a Royal Commission in July 1995.

Trevorrow, Ellen Trevorrow, Mar­ garet Jacobs, Veronica Brodie and Eileen McHughes. Dr Deane Fergie (anthropologist for the proponents) is presently giving evidence.

Issues to do with the relative weight of the confidentiality provisions of the Aboriginal Heritage Act 1988 (SA) and the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) are being vigorously debated.

Native title legislation

The State parliament is still considering the two Native Title Bills; the Native Title (SA) (Miscellaneous) Amendment Bill1999 and the Native Title (SA) (Validation and Confirmation) Amendment Bill 1999. The Miscellaneous Bill passed both houses of parliament with­ out amendment, but there has been some opposition to the Validation and Confirmation Bill. Given that the Northern Territory and all States except Tasmania have now introduced native title validation legislation, the resistance to the Validation and Confirmation Bill was unexpected. The Bill has passed a second reading in the Legislative Council and is now in Committee. It will be debated in the next session.


Warriparinga reconciliation place under threat

Warriparinga, a sacred place on the Adelaide Plains for the Kauna people, is part of a reconciliation project that began in the early 1990s. Members of the Kauna community approached the City of Marion to commence an interactive history project and provide a place for cultural renewal and coming together, a place of reconciliation. Warriparinga, located in Laffer's Triangle or Science Park, is currently under threat from the sale by the State government of adjoining land to Ansett Australia for a customer call centre. The proposed sale threatens the planned federally funded Kauma Living Cultural Centre. The Holdfast Bay Reconciliation Group and the Warriparinga Support Alliance are lobbying the State government to provide Ansett with an alternative site. • DH, HM, CS

Western Australia

Murder on trial

In response to an interviewer's question about what aspect of the law he would reform if he had the chance to do so, Chief Justice David Malcolm recently said that he would remove the unnecessary complication surrounding the offences of murder and wilful murder in Western Australia.

The Criminal Code in WA and Queensland draws a distinction between wilful murder, and the lesser charge of murder. In common law jurisdictions no such distinction is made. Chief Justice Malcolm said the distinction between the two offences was unnecessary, but acknowledged that it had been part of the Griffith Criminal Code in Western Australia and Queensland for 100 years.

Further, in sentencing, WA judges must rank wilful murders according to their seriousness ranging from life imprisonment with a minimum sentence of 15-19 years to strict security life with a minimum of 20-30 years. The Chief Justice commented that it was extremely difficult for a judge to rank offences of wilful murder according to seriousness and that deciding what the minimum sentence should be between 20 and 30 years puts the judge in an impossible position. He said that if the distinction between murder and wilful murder should remain, all wilful murders should be dealt with as if they were in the worst category on the criminal calendar, for which the offender is sentenced to strict security life imprisonment without any eligibility for parole. Any decision regarding eligibility for parole should be left to the Parole Board and the Executive government. • DD

Victoria

Access to assisted reproductive services for all women?

As everyone who has been reading the newspapers knows, on 28 July 2000, Justice Sundberg of the Federal Court handed down judgment in the McBain case [2000) FCA 1009, concerning access to assisted reproductive services in Victoria.

The Infertility Treatment Act 1995 (Vic) restricted access to the services of donor insemination (using anonymous and known donors) and in-vitro fertilization to heterosexual married and de facto couples (s.8(1)). The restriction also affected women in relationships with male partners who did not live together in a domestic de facto relation­ ship. To assist insemination outside the terms of the legislation was a criminal offence in Victoria, punishable by up to four years in prison. The McBain case was brought by Dr McBain, who wished to provide reproductive ser­ vices to Lisa Meldrum, a single woman. Sundberg J ruled that the restriction in the Act involved discrimination on the basis of marital status and was thus inconsistent with the Sex Discrimination Act 1984 (Cth), s.22 (the SDA). Section 8(1) and other provisions of the Infertility Treatment Act were thus invalid and inoperative under s.l09 of the Constitution.

Archbishop Pell of the Catholic Church in Melbourne, in a serious insult to affected Aboriginal families as well as single mother and lesbian families, said this would produce another 'stolen generation' of children. Senator Harradine expressed predictable out­ rage. But this would have remained a Victorian matter had not Prime Minister Howard seen the opportunity to disrupt the Australian Labor Party (ALP) National Conference with a divisive 'moral panic' announcement. Without any consultation with his minister for women's health, the Sex Discrimination Commissioner, the State of Victoria, fertility service providers or women generally, the Prime Minister announced the government's intention to amend the SDA to allow States to discriminate against single women and lesbian couples, excluding them from access to assisted reproductive services.

On 18 August 2000, the government introduced the Sex Discrimination Amendment Bill (No 1) 2000 into the parliament. In addition to permitting States to discriminate against single women and lesbians regarding assisted reproduction services, the Bill as currently drafted allows States to discriminate against heterosexual de facto couples; this 'error' is to be corrected in a revised Bill.

At this stage, the government does not have the numbers in the Senate to enact the Bill without support of some members of the ALP, Democrats or the Greens. The ALP Caucus and the National Executive have said that the ALP will oppose the Bill and will not allow a conscience vote; the government is not allowing a conscience vote amongst its own members. The Democrats and Greens have stated that they will unanimously oppose the Bill. However, it is not clear if party discipline will hold in the ALP and some members may cross the floor.

Meanwhile in Victoria, the Infertility Treatment Authority, on advice from Gavan Griffith QC, is interpreting the McBain decision to allow only 'clinically' infertile single and lesbian women access to services, rather than 'socially' infertile women (that is, women who do not have a fertile male partner). Married women whose husbands are infertile will be able to be treated, however, according to the Authority. There is a strong legal argument that this interpretation is wrong as it continues discrimination on the basis of marital status, contrary to the orders made by Sundberg J.

Whatever happens at the federal level-and it now seems possible that the Howard-fomented panic about any assistance for 'non-coital fertilisation' (proposed new s.22(1D)(b) SDA) may die in the parliament-the Bracks government intends to refer the entire issue of assisted reproductive services to the newly established Law Reform Com­ mission for review.

Miranda Stewart and Kristen Walker

Miranda Stewart and Kristen Walker are Melbourne academics.

Modernising Regulation of Legal Practitioners

The legislation which governs the activities of lawyers and legal institutions in Victoria may be changed following an announcement by Attorney General Rob Hulls. With the goal of modernising and streamlining the cur­ rent regulation of the legal profession, a review of the Act will be conducted over the next few months by a review panel.

The Attorney General hopes that the review will canvas a shift towards a low cost and quick dispute resolution regime for disputes within the profession. He has noted the cumbersome and confused nature of the existing structure of the dispute resolution system, involving the Law Institute, Victorian Bar, Legal Ombudsman and the Legal Profession Tribunal. The panel will be encouraged to look at international systems of legal practitioner regulation for more efficient, fair and transparent schemes of regulation.

The goods news for those outside of legal professional circles is that the Attorney General has also indicated that any funds saved by the imposition of the new system of regulation may be used to boost legal aid funding - such a boost is greatly needed. • MR

Gay bashing: suspended sentences overturned

The Court of Appeal has overturned the suspended sentences imposed by Justice Cummins on two men in respect of the bashing death of a gay man in Melbourne, in DPP v Whiteside and Dieber [2000] VSCA 142.

The respondents encountered a woman who told them she had been raped. In the course of searching for the purported assailants, they came across the deceased, Keith Hibbins, a gay man, and partner, David Campbell. Fearing that the respondents were gay bashers, Hibbins and Campbell fled. The respondents pursued the men and, upon catching Hibbins, bashed him viciously. Hibbins died as a result of his injuries. The respondents were charged with his murder and entered pleas of guilty to charges of manslaughter. Each was sentenced to a suspended sentence of three years imprisonment.

On appeal, the Court of Appeal substituted sentences of six years imprisonment, with a four-year non-parole period. The Court of Appeal was clearly concerned by the vigilante aspect of the respondents' conduct. As

Brooking JA observed: '[T]his was 'vigilante conduct' in the sense that both [respondents] were motivated by a desire to punish a supposed rapist'. Winneke P said: 'It seems to me that no matter which way one tries to justify or explain the facts found by the Judge, the conclusion remains inescapable that a decent life has been taken because the two respondents, hitherto of good repute, decided to take the law into their own hands and became, without proper justification, the judges and punishers of the deceased . . . [T]heir conduct did have within it an element of the vigilante as that term is popularly understood.' CM

DownUnderAllOver was compiled by Alt.LJ committee members, Stephen Bouhuis, Karen Bowley, Danielle Davies, David Hollinsworth, Fiona Hussin, Helen Macdonald, Carl Mollel; Graeme Orr, Michael Ryall and Cheryl Simpson, along with invited writers listed under their contribution above.


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