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A day behind time, on 14 November 2001 in Doha, Qatar, a new international trade round was launched at the 4th Ministerial Conference of the World Trade Organisation (WTO).
What this means can probably best be gauged by looking at the results of the previous round. The Uruguay round of trade negotiations began in Uruguay in 1986 and concluded in Marrakesh in 1994. These negotiations resulted in the 550-page final act which established the WTO.
There were four documents to come out of the Ministerial Conference in Doha: a Ministerial Declaration; a Declaration on the Agreement on Trade-Related Aspects of Intellectual Property Rights; a Decision on Implementation-related Issues; and an Agreement on the Transition Period for Certain Developing Countries under the Agreement on Subsidies and Countervailing Measures.
The key document was the Ministerial Declaration. The Declaration sets out the scope that negotiations will encompass. These negotiations are scheduled to conclude 'not later than 1 January 2005', although if the previous Uruguay round of negotiations is anything to go by, the round is likely to be concluded sometime later than that date.
The agenda for negotiations is a broad one. Whilst some would have liked to see the agenda broadened further to include labour standards and general environmental considerations, even the launch of a new round itself remained in doubt after the events in Seattle. As it was, consensus was only reached by deferring a number of issues until the next session of the Ministerial Conference in 2003.
There was no single negotiating forum at Doha. Rather there was a range of negotiating forums which were in play at the same time. The plenary was the most formal of these. At the plenary, the head of delegation, usually the Minister for Trade or equivalent, provided a short set piece speech outlining their objectives for the negotiations. Then there was the Committee of the Whole- otherwise known as the 'COW'. This was the central body overseeing the negotiations and through which the various documents had to pass.
Aside from the plenary and the COW, there were a number of meetings running simultaneously on the various areas for negotiation such as trade and environment, access to medicines and agriculture. Where particular difficulties emerged between states, key states were brought together to negotiate a compromise. These meetings of key states are commonly described as meetings in the 'Green Room'-a reference to the colour of the room in the early days of the General Agreement on Tariffs and Trade. Towards the end of the negotiations, the Green Room operated to allow difficult issues to be broken off from the COW for face to face negotiations.
Unlike Seattle, the Conference was not accompanied by the violence that has accompanied trade meetings in recent years. Protests were peaceful, restrained and well covered in the press. A notable example was the Greenpeace flagship, the Rainbow Warrior, docked in the port in Doha. Less coverage was devoted to the close working relation ship between a number of NGOs and member governments. NGOs operated effectively 'behind the scenes' to ensure that their views were reflected in the approaches taken by governments.
Access to medicines -One of the key results of the negotiations was the declaration on the interpretation of the Agreement on Trade-Related Aspects of Intellectual Property Rights. The declaration affirmed 'that the Agreement can and should be interpreted and implemented in a manner supportive of WTO Members' right to protect public health and, in particular, to promote access to medicines for all'. Although not a legally binding document, the declaration provides scope for interpreting the Agreement in a manner consistent with the protection of public health.
The environment -Although a number of developed countries campaigned strongly for broader negotiations on the environment, they were opposed by developing nations who view these as attempts at protection. Limited agreement was, however, reached on commencing negotiations on a limited range of environmental matters including on the relationship between existing WTO rules and specific trade obligations set out in multilateral environ mental agreements. Negotiations are also to commence on clarifying and improving the disciplines on fisheries subsidies which, like agricultural subsidies, distort prices and limit competition. The Committee on Trade and Environment was further instructed to give attention to a range of issues including 'labelling requirements for environmental purposes' and 'the effect of environmental measures on market access'.
Agriculture -Agriculture has always been one of the most contentious of trade issues and the negotiations in Doha were no exception. Export subsidies allow subsidising countries to displace competitive producers. The negotiations were successful in reaching a commitment to 'comprehensive negotiations aimed at: substantial improvements in market access; reductions of, with a view to phasing out, all forms of export subsidies; and substantial reductions in trade-distorting domestic support'. This commitment was expressed to be without prejudice to the outcome of the negotiations.
Non-agricultural products- There was agreement on negotiations aimed at reducing or eliminating tariffs, which was expressed to include 'the reduction or elimination of tariff peaks, high tar iffs, and tariff escalation, as well as non-tariff barriers'.
Implementation - The Ministerial Conference decided on a number of implementation-related issues and concerns, going primarily to the needs of developing countries which were addressed in a separate decision.
Geographical indicators -The Conference decided on negotiations to establish a system of notification and registration of geographical indications for wines and spirits. The issue of the further extension of geographical indicators was one to be addressed in the Council for Trade-Related Aspects of Intellectual Property Rights. Essentially providing work for lawyers and limited protection for producers, geo graphical indicators have become one of the 'new protectionist measures'.
Investment and competition policy - These are topics to be the subject of negotiations on the basis of a decision to be taken 'by explicit consensus' at the 5th Ministerial Conference on the 'modalities of negotiations'. Whether these negotiations actually get under way, let alone avoid the pitfalls which have faced earlier attempts to negotiate an instrument related to investment, remain key sensitivities for a large number of governments.
Transparency in government procurement and trade facilitation -Facing similar sensitivities as investment and competition policy, on both of these issues negotiations are to take place 'by explicit consensus' after the 5th Ministerial Conference decides on the 'modalities of negotiations'.
WTO 'Rules' -Limited negotiations on anti-dumping, subsidies and countervailing measures were also agreed. Essentially these provisions cover circumstances where a state may protect itself from competition deemed to be unfair. So, for example, 'dumping' refers to the practice where goods from one state are sold at below what it takes to produce and sell the good. Although these measures are in theory designed to address market imbalances, in a growing number of cases they have been abused to provide domestic industries protection from competition.
Services-Negotiations with regard to services were already mandated under the General Agreement on Trade in Ser vices. The Ministerial Declaration calls for participants to submit initial requests for specific commitments by 30 June 2002 and for initial offers to be made by 31 March 2003.
Electronic commerce -Members are to maintain their current practice of not imposing customs duties on electronic transmissions until the 5th Ministerial Conference.
The Dispute Settlement Understanding- Negotiations are to take place on improvements and clarifications of the Dispute Settlement Understanding.
Labour standards -Given the wide spread and longstanding opposition to the inclusion of labour standards, in particular by developing countries, the declaration reaffirms the position taken at the Singapore Ministerial Confer ence that the International Labour Organisation is the competent body to set and deal with labour standards.
With such a wide agenda, and with such a short timeframe, negotiations will be challenging. Equally challenging, how ever, will be the need to involve society more generally in the negotiations, including the need to clearly articulate the benefits of each and every agreement. Given the show of public dissent in international trade articulated by different sectors of society in recent years, the negotiations outside the WTO will be equally as challenging as those within. • SB
In an election characterised by disgraceful political point-scoring on asylum seekers and a lamentable play on collective fears following the US terrorist attacks, the Greens shone brightly as the voice of reason and decency. As always the Greens focused on broader policies beyond simply the environment. Senator Bob Brown strongly criticised the 'old' parties (Bob's term, not Natasha's) for their heartless approaches and lack of any credible policies which possessed barely a modicum of foresight and concern for the future. This principled stance won many supporters who were sick of the indistinguishable 'two shades of grey' Labor and Liberal parties.
With a national vote of over 4% in the House of Representatives the Greens achieved their best result ever in a federal election. The gains were particularly good in Victoria where many disenchanted Labor voters opted to support the Greens at the expense of their sitting Labor members. The electorate of Melbourne saw the Greens scoop almost 16% of the primary vote, more than doubling their 1998 result, while other inner suburban seats, such as Wills and Batman, recorded similar high results for the Greens. Greens candidates actually were two-party preferred winners in many inner city Melbourne booths, including an amazing 29.4% of the primary vote in the inner-city suburb of Fitzroy. This is an extraordinary result for a small party with practically no significant funding to support it. However, having achieved this excellent outcome the Greens will now receive significant funding from the Australian Electoral Commission to put towards the next campaign, likely to be the Victorian State election next year as well as various council elections.
Bob Brown, himself, overcame a massive campaign by the logging industry and a dastardly Labor/Liberal preferencing deal that would have seen him left out in the cold. It seems both old parties view Bob as a mosquito in their ears. Bob scored an enormous 14% of the Tassie vote, thereby securing him, in his own right, another term in the Senate.
This writer would like to see the Democrats ask to join with the Greens. Then there truly would be a powerful third force in Australian politics. • GIO
(Glenn Osboldstone is proud to disclose he is a paid up member of The Greens)
A judicial inquiry into the conviction of David Eastman for the murder of Colin Winchester is set to formally commence on 30 November 2001 in the ACT. This latest development in the long-running saga of the Eastman case has the potential to lead to an order for a fresh trial, despite earlier unsuccessful attempts by Eastman to have his case re-opened.
On 10 January 1989, Colin Winchester, the Assistant Police Commissioner of the Australian Federal Police, was shot and killed outside his Canberra home. The police investigation into the 'professional execution-style killing' and the subsequent coronial investigation before the ACT Chief Magistrate, led to the charging of former public servant David Harold East man with murder on Christmas Eve 1992. After a five-month trial in the ACT Supreme Court in 1995, he was found guilty and jailed for life. Various controversies surrounding Eastman's investigation, trial and subsequent appeals have established the case as a part of Canberra folklore, with many views and conspiracy theories doing the rounds of the legal profession and the general community. Various issues have been raised over the years by East man and his legal representatives about the conduct of the investigation and trial, including police investigative and evidence gathering procedures, the ballistics evidence presented at trial, the validity of the appointment of the trial Judge, and Eastman's mental health and capacity to manage his own defence, among other matters.
Eastman's conviction and sentence were upheld on appeal to the Full Federal Court in 1997, and in May 2000 the High Court considered his application for leave to appeal against the 1997 Full Federal Court decision. When the High Court rejected that application, it seemed that Eastman's 'last realistic chance of being cleared' of the murder had been exhausted. It is notable that, although a majority of the judges were prepared to grant Eastman special leave to appeal, a different majority of judges dismissed the appeal itself, which suggested that the request for leave to appeal was not entirely without merit. Although Eastman's mental health and/or fitness to plead were not raised at his 1995 murder trial nor at his Federal Court appeal in 1997, his lawyers were seeking a ruling in the High Court for an inquiry into whether their client had been mentally fit to plead and instruct his lawyers at the time of his trial. This was based on a psychiatric assessment that Eastman was 'severely psychotic' prior to his trial and on his 'irrational behaviour' at the trial including repeated dismissals of his legal team/s and verbal abuse of the trial judge in front of the jury. One thing that has remained consistent through out this saga is Eastman's claim of innocence - following the High Court's refusal to grant him leave to appeal, he declared his intention to ask the ACT government to establish a judicial inquiry into 'the entire affair'.
Under s.424 of the Crimes Act 1900 as it applies in the ACT, the Supreme Court may order an inquiry on application by the convicted person, or by someone else on the convicted person's behalf. Under s.423, the Executive may order an inquiry on its own initiative. Eastman personally petitioned the Chief Justice of the ACT Supreme Court, while his lawyers approached the ACT government. Chief Justice Miles also referred the matter to the Executive, who subsequently appointed former NSW Chief Magistrate Ian Pike to conduct an inquiry into whether Eastman was mentally fit to plead and instruct his lawyers before and during his trail. From these initial proceedings it is likely that a date in early 2002 will be set for commencement of the inquiry proper ... the case continues! • FD
In August 2001 DUAO reported that the HREOC case of Marsden had settled. The case had raised the issue of whether drug dependency is a disability. The case having settled we said naively: 'there is ... consequently little reason for a government to legislate away existing statutory protections, as NSW was threatening to do'.
What 'little reason' there might have been has in fact spawned the feared amendment. All we can say at this stage is that on 28 November 2001 a Bill was read for the second time, amending the NSW Anti-Discrimination Act. The amendment will effectively remove the protection of the Act for people discriminated against in employment if they are 'addicted' to a prohibited sub stance. 'Addiction' is not defined, and there is no reference to an ability to carry out the inherent requirements of the job. Whether and in what form the amendment will pass the NSW Upper House before the end of the year remains to be seen. • SR
If Australians are generally unaware of their national constitution, how much greater is ignorance of their State's structure? The Queensland Constitution comprises at least 29 documents. A recipe for obscurity indeed! In living memory, only Professors Lumb and Carney can be said to truly comprehend its intricacies.
One doesn't have to be an arch-republican to chuckle at references to 'Her Majesty (whom may God long preserve)', or to founder on unpunctuated sentences of 100 words or more (see ss.12 and 15 of the 1867 Act).
So no 'worthier' project could exist than re-vamping Queensland's constitution. Through 1999 and 2000 Profes sor Colin Hughes' team laboured over it. The result? The streamlined Parliament of Queensland and Constitution of Queensland Bills of 2001, suffused with plain English, notes and examples. They are a (relative) joy to read, and will go some way to making the subject teachable.
Entrenched provisions pose a hurdle to State reform. This kind of constitutional provision cannot be amended without special procedures, such as a referendum of people of the State. Queensland has its fair share of such provisions requiring referendum, thanks largely to Premier Bjelke-Petersen's ante-diluvian constitutionalism. Even moving them, verbatim, to a consolidated Act, risks challenges from constitutional purists and pedants. Professor Hughes' committee recommended removing entrenchment altogether, a move that had 17th century constitutionalists smiling.
But whatever the virtues of Parliamentary Supremacy, or the size of Labor's majority, no government likes a referendum, least of all one on an arcane topic. The existing entrenchments remain, in the 'shell' of their parent Acts.
To be fair, the Bills are not just mere consolidation. For instance, the system of local government gets entrenched. Further, the Premier claims this is 'Step 1';real reform will be 'Step2'. So far only four-year terms and policing of party pre-selections, post Shepherdson, have been foreshadowed.
The federal election may have been dominated by guard-dog posturing to exploit voter paranoia. But it still man aged to flaunt a little colour.
As Nigel Freemarijuana prepared once again to submit himself to the people, in the Help End Marijuana Prohibition (HEMP) cause, he ran into an electoral commission (AEC) insisting he be enrolled under his birth name. Parliament decreed that names frivolous, offensive or otherwise 'not in the public interest' be struck from the rolls.
The justification was the 1998 poll's spate of names potentially insulting to certain public figures, such as Pauline Pantsdown, David Mouldfield and John PM Piss the Family Court-Legal Aid.
But the new law is overkill. The I998 crop could have been rejected as bogus aliases. Under the common law, whilst one's name is merely conventional, it must be provable by evidence of actual and general usage. So even the old stand-by, Mr Informal, ought to show proof of regular social and business dealings under that moniker.
Mr Freemarijuana successfully challenged the AEC. Its argument that his name gave him an unfair advantage over candidates with more humdrum names was rejected. The public interest, according to the AAT, is in having people enrolled in their common name.
A more egregious case, whose decision is yet to come, involves community television host and one time mayoral candidate, Tamara Tonite. Ms Tonite's name may seem frivolous at first glance, until one learns she is no longer known by her male birth name.
If nothing else, this law risks disrepute. It should not require the AEC to rule on whether a person's common name -a matter of personal identity-is politically or bureaucratically acceptable. • GrO
On I3 December 2000, the Australian government received a request from Latvia for the extradition of Konrads Kalejs. When the request was received, Mr Kalejs, an Australian citizen, who had always lived under his own name and against whom allegations had been current for decades, was suffering from dementia, cancer and blindness. He was then aged 87. It was obvious that the request for extradition could never result in a fair trial.
The key allegation was that Mr Kalejs had, in I942-43, been commander of the exterior guard of a camp at Salaspils, the Germans being in control inside the camp. It was said that he gave orders to guards to shoot at escaping prisoners, and that six were shot attempting to escape. There was no suggestion of any personal violence by Mr Kalejs or in his presence. There was no suggestion that he was party to the establishment of the camp or the conditions in it. It was not suggested that he ever went into the camp.
No evidence supported the request. In fact, extradition relations between Latvia and Australia were governed by a I924 treaty, which required evidence sufficient to establish a prima facie case. Latvia could not satisfy this requirement. The immediate past pros ecutor general of Latvia stated that there was no evidence against Kalejs.
The world's leading expert on the Holocaust in Latvia, Professor Andrew Ezergailis, said:
Mr Kalejs could not have committed the acts attributed to him, and no competent prosecutor could in good faith attribute to Mr Kalejs the conduct set out in the statement of conduct [ie in Latvia's alle gations against Kalejs].
He also said:
I consider that prosecution of genuine war criminals in Latvia would be a good thing. However, objective assessment could not conclude that Mr Kalejs is such a person.
Professor Ezergailis has noted that there are no atrocities known to have occurred at Salaspils.
Both Australia and Latvia were placed under pressure by the United States to make the request. The US used the desire of Latvia to join NATO to apply diplomatic pressure. Amongst other persons who intervened, Hilary Clinton, whilst running to represent New York in the Senate, wrote to the Australian government to insist that it take action.
A magistrate conducting a hearing under the Extradition Act is not sitting as a court, but as an administrator: the magistrate has no power to stay proceedings as an abuse of process, and may not consider matters of health, age and fairness. Under the Extradition Act the final decision as to whether a person is surrendered lies with the Minister. It is particularly unfortunate that the Minister repeatedly refused to exercise his power to stop the extradition proceedings when it was obvious, on all the medical evidence, that Mr Kalejs was seriously ill and there was no legitimate purpose to the proceedings. This meant that, on his final appearance, Mr Kalejs had to be carried semi-conscious into the Federal Court on a stretcher.
Mr Kalejs died on 8 November 200I. The following day, Efraim Zuroff, a key figure behind the pursuit of Mr Kalejs, said: 'I am very, very glad, I can say with great satisfaction that I helped ruin his golden years'.
Extraditions are often politically sensitive. The regrettable reality is that such considerations, rather than the interests of justice, sway politicians. That was the position with the Kalejs case. It was clear Kalejs was too old, sick and demented to defend himself. Had the case been a prosecution, it would have been brought to an end by any prosecutor. The proceedings were an abuse of process, but only a politician was in a position to stop the extradition on that basis. The political pressures were such that the Minister was not prepared to take the only proper action in the circumstances.
For nearly two decades we have had a DPP who is independent of government, removing the prosecution pro cess from the political process. The Kalejs case highlights the need for a similarly independent commissioner for extraditions to carry out a function analogous to that of the DPP in prosecutions. Hopefully that would avoid Australian citizens being subjected to the unjust and inhumane process Mr Kalejs endured.
Brian Walters
Brian Walters is a Melbourne barrister who was recently made Senior Counsel.
Pawnbroking review outcomes
The announcement by Victorian Minister for Consumer Affairs, the Hon. Marsha Thomson, of a review of the regulation of pawnbrokers was reported in the December 2000 edition of the Alternative Law Journal. That review, which included extensive consultation between government, industry and consumer and welfare agencies, a Discussion Paper and an Options Paper, has finally wrapped up. Recommendations have gone to the Minister and amendments to the Act have been proposed.
The upshot is the Second-Hand Dealers and Pawnbrokers (Amendment) Bill 200 I, which was introduced to the Victorian Parliament on 3I October 2001. While the Bill does not include all the proposed changes to the regulatory regime that were advocated by consumer representatives, it does go some way to addressing many of the concerns identified.
One of the most pleasing provisions of the Bill is that it confirms the entitlement of a person who has pawned goods to claim any residual equity if the person, for whatever reason, does not redeem the goods and the pawnbroker sells the goods. The residual equity is the amount remaining after the amount owing under the loan contract and the reasonable costs of selling the pawned good are deducted from the proceeds of the sale. Where the amount of the residual equity is at least $10 the pawnbroker must send out a notice to the person who pawned the goods advising of the sale and that the person is entitled to claim the residual equity from the pawnbroker within 12 months from the date of the sale.
Other important amendments include:
• introducing a registration scheme to distinguish pawnbrokers from second-hand dealers. Previously, a second-hand dealer could automatically operate as a pawnbroker;
• prohibiting the pawning of motor vehicles;
• increasing penalties for breaches of the legislation;
• strengthening the enforcement mechanisms contained in the act by creating powers of entry, search, examination and seizure for Consumer and Business Affairs Victoria (CBAV) inspectors;
• enabling authorised officers to issue infringement notices to pawnbrokers for certain breaches of the act, such as: failure by the pawnbroker to keep accurate and complete records of all pawning transactions and where pawned goods are stored, failure to retain pawned goods for at least seven days, failure to display the proper notices in the shop and failure to give the person pawning goods a pawn ticket and notice in the prescribed form setting out the rights and responsibilities of the par ties to the transaction;
• providing a power to the Chief Commissioner of Police or the Director of CBAV to request the Victorian Civil and Administrative Tribunal undertakes an investigation into the conduct of a pawnbroker.
The Bill achieves a significant tightening of controls on an industry that has long been guilty of practices that tend to exploit the most vulnerable of consumers.
A copy of the Bill is available at <www.dms.dpc.vic.gov.au>
. • GIO
At the Fourth World Conference on Women in Beijing, a Declaration was made about a wide range of human rights issues concerning women. The 'Beijing Declaration' has since become the benchmark by which various governments' records on women and human rights has been measured.
The Western Australian chapter of the Beijing Committee had its inaugural meeting on 3 April2001. The committee is a joint initiative of the West Australian chapter of the International Commission of Jurists and Women Lawyers Inc (WA). It is chaired by Penelope Giles from Wickham Chambers and constituted by judges and lawyers. The Committee aims to monitor the implementation by the State government of the Beijing Declaration.
Current projects of the Committee concern the detention of women and children refugees in West Australian camps, the effectiveness of stalking legislation, and the level of protection extended to Western Australian residents against female genital mutilation. • MH
DownUnderAllOver was compiled by Alt.LJ committee members Stephen Bouwhuis, Fiona Dalton, Megan Hoey, Glenn Osboldstone, Graeme Orr and Simon Rice together with invited writers listed under their items above.
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URL: http://www.austlii.edu.au/au/journals/AltLawJl/2001/111.html