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Editors --- "DownUnderAllOver Developments around the country" [2001] AltLawJl 13; (2001) 26(1) Alternative Law Journal 44

A regular column of developments around the country

Federal Developments

Optional Protocol to CEDAW enters into force

On 22 December 2000 the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women entered into force.

The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) is one of the most highly ratified international instruments in the world. CEDAW commits state parties to pursue by all appropriate means a policy of eliminating discrimination against women in the political, economic, social, cultural, civil and any other field. This includes prohibiting discrimination against women, enshrining the principle of equality of men and women into law and taking all appropriate measures to guarantee women the exercise and enjoyment of human rights and fundamental free­ doms on a basis of equality with men.

CEDAW also established a Committee to consider progress made in implementing the Convention. As part of its role the Committee considers national reports submitted by governments that outline measures which they have taken to give effect to the provisions of CEDAW

Australia is one of 166 parties to CEDAW but is neither a signatory nor a party to the Optional Protocol. The decision of the government of Australia not to sign or become a party to the Optional Protocol was announced on 29 August 2000 following the government's review of Australia's interaction with the UN treaty committee system.

Two new mechanisms

The new Optional Protocol allows an individual or group of individuals to submit a claim of violation of the provisions of CEDAW to the CEDAW Committee, regarding states that have become parties to the Optional Protocol.

Any person wishing to successfully use the Optional Protocol procedure must first meet a number of requirements, including sufficiently substantiating their claim and exhausting all domestic remedies. This latter requirement is likely to mean that a state with a robust domestic legal framework which incorporates the provisions of the Convention into domestic law is unlikely to be found to be in breach of CEDAW by the Committee through this procedure.

The new Optional Protocol also provides for an inquiry procedure which enables the CEDAW Committee to initiate inquiries into grave or systematic violations of CEDAW by parties to the Optional Protocol. This inquiry may include a visit to the territory of the state concerned with its consent. Parties to the Optional Protocol are able to 'opt-out' of this second procedure.

The Committee has no power to make governments comply with the international obligations they have undertaken under CEDAW but it may report its suggestions and general recommendations, through the Economic and Social Council of the United Nations, to the General Assembly of the United Nations. Such publicity can generate international pressure on governments to comply with their undertakings.

The current government has not signed the CEDAW Optional Protocol. Australia is already a party to similar complaints mechanisms for the Inter­ national Covenant on Civil and Political Rights, the Convention on the Elimination of All Forms of Racial Discrimination and the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. Australia is also already a party to an inquiry procedure under the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment.

Entry into force

The Optional Protocol has come into force within a relatively short period of time. Between the adoption of the Optional Protocol by the General Assembly of the United Nations in October 1999 and the end of the year 2000 some 63 states had become signatories and 15 had become parties to the Optional Protocol.

Signatories to the Optional Protocol include Germany, Greece, Indonesia, the Netherlands, the Philippines and Sweden. Parties to the Optional Protocol include Denmark, Finland, France, Ireland, Italy, New Zealand and Thailand.

Partial lifting of one of Australia's reservations

A further announcement regarding CEDAW was that the Australian government has partially lifted one of its two reservations to CEDAW. This reservation allowed women to be excluded from 'combat and combat-related duties'. On 30 August 2000 the government notified the Secretary-General of the United Nations of its partial withdrawal of this second reservation so that the reservation now only allows women to be excluded from 'combat duties'. Combat duties are seen as including employment within armour, artillery, combat engineer and infantry units, as airfield defence guards or as clearance divers. The second reservation as to the provision of 'maternity leave with pay or with comparable social benefits throughout Australia' remains in place.


New South Wales

Drug dependency disability discrimination?

The Legal Aid Office at Coifs Harbour has done it again. The Office does its job of successfully prosecuting issues of access to justice so well that it is no wonder they continue to survive the restructure of NSW Legal Aid. The Office represented Mr Marsden in Marsden v HREOC & Coffs Harbour and District Ex-Servicemen and Women's Memorial Club Limited in the Federal Court.

The Marsden case was an appeal from the Human Rights and Equal Opportunity Commission. Branson J decided that, contrary to the reasoning of the HREOC Commissioner, a finding that opioid dependence constitutes a disability under the Disability Discrimination Act 1992 (DDA) could be made. She referred the matter back to the HREOC 'for further consideration', with no result as yet. Justice Branson did not decide that opioid dependence actually constitutes a disability under the Act.

The decision in Marsden has opened the way for a decision that people dependent on drugs, who experience bigotry, prejudice and unfair treatment as do people with disabilities already recognised under the DDA, may have rights under the DDA. Uninformed public comment has suggested that employers will be burdened under this decision by having to employ those who are drug dependent. The true position is that under the DDA, employers have the protection of both the 'unjustifiable hardship' provision and the 'ability to perform a job's inherent requirements' provision.

Meanwhile, the Kings Cross injecting room project continues to be delayed by legal action from business interests in the area. In contrast to its support for the injecting rooms, the NSW government seems to be opposed to the possibility raised by the Marsden case that drug dependency is a disability. An amendment to remove protection against discrimination for people dependent on drugs has been mooted as part of a pending package of reforms to the NSW Anti-Discrimination Act. SR

Northern Territory

Kenbi Land Claim

More than 20 years after the Kenbi land claim was lodged by the Larrakia people over the Cox Peninsular near Dar­ win, under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), a recommendation has been handed down in favour of the claimants. Aboriginal Land Commissioner Justice Gray found that six of the claimants satisfied the definition of 'traditional Aboriginal owners' in the Act in respect of most of the land claimed. If the recommendation is followed, the land granted will be conveyed to a land trust which will hold the land for Aboriginal people entitled by Aboriginal tradition to the use or occupation of the land. The class includes all of the claimants, a total of 1600 people.

The Northern Territory government made submissions to the Commissioner that acceding to the claim in whole or part would lead to detriment for the Northern Territory. It was sub­ mitted that the land claimed would become unavailable for the planned expansion of Darwin. Counsel for the claimants suggested that the submitted planning exercise leading to the proposal to urbanise the land claimed was a sham, designed to defeat the land claim. In effect, the Commissioner accepted the latter submission. He rejected the legitimacy of the statement in the planning proposal that set the Cox Peninsular as the only viable option for the expansion of Darwin. He said, 'A close examination of the documents suggests that three of the options have been set up so that they can be rejected, in favour of the only ''viable" option, using the Cox Peninsular'. In relation to the government's consideration of Aboriginal aspirations for land, the Commissioner said, 'It is obvious that the planners gave no weight at all to the interests of Aboriginal people in having under their control a significant area or significant areas of land.'

Immediately after the Commissioner's recommendations were handed down, Northern Territory Chief Minister Denis Burke was loudly pro­ testing about the decision on behalf of 'all Territorians'. The Northern Territory government has lodged an application for administrative review of the Commissioner's recommendations.

Within days of the Commissioner's recommendation being handed down, the federal portfolio of Minister for Aboriginal Affairs had been handed from Mr Heron to Mr Ruddock. As the Minister has the ultimate discretion whether to follow the Commissioner's recommendations, the significance of this reshuffle for the Larrakia remains to be seen- and their wait continues. • FH

Judge rages

Admissions ceremonies are often tense. After long hard years of study at Law School and a year spent as an articled clerk on breadline wages, the admission of a law graduate as a Barrister and Solicitor of the Supreme Court marks the completion of their quest, their moment of triumph.

However, many members of the legal profession will remember the admission ceremony on 6 February in the Northern Territory for another reason. Mr Justice Angel, the second most senior member of the NT Supreme Court, let rip on a number of matters which have obviously been hot under his judicial collar for some time. The general theme was the role and responsibility of the Attorney-General in defending the Courts, a role the judge felt the Attorney-General had singly failed to meet. He also criticised the refusal of the government to appoint a judicially approved candidate as a queen's counsel.

Tension between the bench and the Attorney-General - incidentally the Chief Minister-has been ongoing for some time, with the latter prone to sniping at judicial standards. Justice Angel's final words to those admitted to legal practice were:

You who have been admitted to legal practice today are now members of the Northern Territory legal profession, an honourable profession, and it is for you as it is for your fellow practitioners to uphold fearlessly your profession's highest principles and to assist ordinary people to understand their supreme worth in our community.
The Court congratulates you and wishes each of you success and satisfaction in your chosen profession.
Finally, in the words of Dylan Thomas:
'Do not go gentle into that good night. Rage, rage against the dying of the light.'


Ms Mildren's defence

More news from the upper echelons of the judiciary. Ms Liz Mildren, wife of Mr Justice Mildren herself a lawyer and her husband's Associate - has launched a spirited public defence of an eight-year sentence he handed down to a man convicted of sex crimes against a six year old.

The eight-year sentence had been pilloried in a letter to the local newspaper. Ms Mildren wrote a heartfelt and reasoned public reply. Her action is unusual and she herself acknowledged this and expressed herself concerned that she might-as a public officer – be dismissed from the service for going public.

The concerns of Ms Mildren possibly reflect the anxiety enveloping those associated with the judiciary as the Attorney-General has of late shown little sympathy for those serving in the superior courts. In the week following her letter, the Attorney-General refused to offer official support to the judges, observing that those who criticised them had a right to do so. This is of course so but one could not help feeling from the tenor of his remarks that his sympathies lie with those who carp at judicial action rather than with trying to maintain the dignity of the courts, a duty traditionally within the purview of an Attorney-General. As Ms Mildren observed in her letter this duty to defend the judges is one that he has not felt inclined to perform.


South Australia

South Australia's new native title legislation - certainty for whom?

Indigenous South Australians are 'hurt and angry following the passage of the Validation and Confirmation Bill [Native Title - South Australia - Amendment Bill 1999] which extinguished some native title rights in some parts of the state', said Parry Agius (Manager of South Australia's Aboriginal Legal Rights Movement's Native Title Unit) in a recent media release.The Congress of Native Title Management Committees have passed no confidence motions in Premier John Olsen and his Liberal government (with particular reference to John Meier, Graham Gunn and Minister for Aboriginal Affairs Dorothy Kotz) as well as expressing their anger at the actions and words of Independent member Peter Lewis and Terry Cameron of the recently formed SA First Party.

The new laws confirm the extin­ guishment of native title over 6-7% of South Australian land which includes perpetual, crown and miscellaneous leases. South Australian land covered by pastoral leases, unalienated crown land and national parks (about 80%) continues to be subject to native title claims. The remainder of the State is under freehold title.

The National Indigenous Working Group on native title believes that the Australian government is using legislation, such as the amendments discussed in this column, to deliberately overcome the effects of the Wik decision. Further, they comment that this issue of legislation is a critical debate in current race relations in Australia. Indeed, as Sandra Knack (member of the Legislative Council for the Australian Democrats) has pointed out, these new extinguishments mean that once again Indigenous peoples have 'to make the concessions, to make the sacrifices'.

The Liberal government argued that the new legislation was needed to pro­ vide some certainty for industry, lease­ holders and the National Native Title Tribunal. lain Evans stated:

If every type of perpetual and miscellaneous lease on the schedule of extinguishing tenures had to be considered by a court, it would be time-consuming and a very expensive process. The schedule reflects a judgment about public policy made by the Commonwealth Parliament that the clear authority about what categories of leases extinguish native title, and the level of uncertainty and inconvenience a perpetual and miscellaneous leaseholder would experience if the extinguishing nature of their leases were not confirmed justified compiling the schedule.

Graham Gunn argued further that the rural community in particular deserved certainty. He stated:

If you want to stir this up, fellow, we will stir it up, because some of us will not let down our constituency, make no mistake about that. The rural community built this country and created opportunities so that people like the honorable member can have a decent lifestyle. They were sold out once and we will not stand by and see them sold out again.

The opposition opposed the government's legislation on the basis that parts of it pre-empt decisions of the High Court. Opposition leader Michael Rann stated that 'there will be substantial decisions by the High Court, but the amendments being put in by the Attorney-General are basically a little side deal trick to try to pre-empt the courts to extinguish native title forever in South Australia. They take away from a section of the South Australian community, the Aboriginal community, their common law rights.' The opposition then went further by providing their own amendments which suggested that a holding action be used to preserve the existing Native Title Act until High Court decisions were made. The opposition also, like the Aboriginal Legal Rights Movement, argued that the new legislation could be considered racist. Parry Agius pointed out last year in an article in the Aboriginal Way: 'They [SA government] are not talking about taking away anyone else's land rights, just Aborigines ...' Lynette Breuer (House of Assembly member for the Australian Labor Party) stated: 'I am feeling extremely angry and basically what we'll see in this chamber today is racism rearing its ugly head, as it does in every aspect of our society'.

The government responded to the opposition by arguing that parliament should make the law and the courts should interpret it. Peter Lewis went further to state:

I have been distressed over the past 20 years by the idiocy of some of the High Court judges in determining that there is an implied right in existence and an im­ plied law in existence, when no such right has ever been written down and no such law has ever been put on the statute books. They just simply go off and, like Dickens, create fiction.

The remarks of Agius and Breuer strike at the heart of the issues concerning the new legislation. The South Australian government's eager attempts to provide certainty were certainly achieved, but they only provide certainty for some sections of the community. Can it be considered an accident that the section of the community that loses certainty regarding their land belongs to a particular race? If you find that the answer to this question is 'No' then you must also conclude (like the UN's Committee on the Elimination of Racial Discrimination found in relation to the Native 1itle Act 1998 amendments) that this legislation is race based. This is made all the more disturbing when one analyses the actions and words of the parliamentary members involved in the proceedings. Why was it that the government's Minister for Aboriginal Affairs was barely present during the discussions? Why did the parliamentary members have to resort to tenuous analogies to explain their positions and arguments? Why was it that the parliament could not even address with certainty the number of miscellaneous leases that were subject to native title claims? It seems that certainty was provided for some, based on very uncertain figures, at the expense of a section of the community whose rights to land are the most tenuous in the country. • AR


Sampling prisoners

Tasmania has introduced new retrospective DNA laws. As of 1 January 2001, all prisoners held in Risdon gaol, parolees and anyone suspected of committing a crime will have their DNA profiled. If suspects are charged and convicted the profile will go on to the national database. Controversially, suspects who are subsequently not charged with any offence will not have their DNA profile destroyed automatically. This will only be done if they apply to have it destroyed.

Sampling Aborigines

Just who is and who is not entitled to call themselves a Tasmanian Aborigine is a hotly contested issue in Tasmania, one that provokes public debate within the Palawa (Tasmanian Aborigine) community itself. The issue always grimly surfaces during ATSIC elections. Part of the reason for the controversy is that at the 1996 census 14,000 Tasmanians declared themselves to be Aboriginal, while the Tasmanian Aboriginal Centre (TAC) recognises about 6000 Aborigines.

If federal Aboriginal Affairs Minister Philip Ruddock, gives the go ahead, ATSIC will trial new rules in Tasmania at next year's elections, under which all voters and candidates will have to prove their Aboriginality. Responding to research by historian Cassandra Pybus suggesting that many Tasmanians claiming Aboriginality are in fact descended from black convicts, Garry Maynard, spokesperson for the Sovereign Council of Aboriginal Elders, has proposed DNA testing as a method of determining the veracity of claims of Aboriginality. Michael Mansell, legal manager of the TAC, disagrees, arguing that no Tasmanian Aboriginal person was able to escape having their lives documented, and therefore all genuine Tasmanian Aborigines should be able to produce confirmation of their status from the state archives.

Anti-semitism case still not resolved

Launceston resident Olga Scully is the test case for Tasmania's new anti­ discrimination laws. Ms Scully distributes leaflets which she claims provide balance to 'holocaust bunkum' and other 'lies about Germans'. The Human Rights and Equal Opportunity Com­ mission has already found that the material is anti-Semitic and in breach of the racial vilification provisions of the federal Anti-Discrimination Act and ordered Ms Scully to cease distributing the leaflets. Ms Scully has defied this order, prompting the Executive Council of Australian Jewry to file an application in the Federal Court seeking the order's enforcement. Ms Scully's activities were referred to the Tasmanian Anti-Discrimination Com­ mission long before the Human Rights and Equal Opportunity Commission report. Commissioner Jocelynne Scutt cites a heavy workload as the reason for the delay in presenting her findings to the State government.

Tasmania to stay open longer?

Tasmania still tucks itself cosily into bed at 6.00 pm and keeps Sunday as a day of rest. State governments, including the Tasmanian government, have shown considerable timidity in deregulating shop trading hours because they fear the backlash from the very vocal small business lobby and sundry others. However, the National Competition Council has stepped in where state governments fear to tread. Deregulate shop-trading hours, liquor and taxi licensing arrangements in accordance with national competition policy, they advise, or lose out on next financial year's Commonwealth national com­ petition incentive payments. Perhaps the Council's provocation will be enough to see the beginning of long overdue regulatory reform.

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


Proposed marine reserves for Victorian waters

The State government is currently considering a proposal from the Environment Conservation Council (ECC) to establish 13 marine parks and 11 sanctuaries along Victoria's coastline. The recommendations follow nine long years of investigations and consultations with all relevant stakeholders, including recreational and commercial fishers, tourism operators, divers, local communities, scientists and others.

The proposed parks and sanctuaries are needed to protect some areas that are still relatively pristine and to allow others, damaged by human activities­ such as over-fishing, dredging, the introduction of exotic pest species, and mineral exploration-to recover. The proposals advocate the prohibition of fishing, mining, collecting, and other detrimental activities from the protected areas.

Marine parks created in other parts of the world, including off New Zealand's north island, and off the coasts of Chile, South Africa, the US and France as well as Tasmania, have resulted in increases in the size and number of fish species and general biodiversity. This has led to improvements in the surrounding fishing industries as fish move away from the reserves and populate other areas. The reserves act as effective breeding grounds to build up stocks of species that are currently under threat from overfishing. Tourism has also flourished in those areas.

Whether the State government approves the ECC's recommendations depends to a large extent on whether it is willing to contribute the resources to adequately police and maintain the reserves. It is hoped the recently reported large budgetary surplus should make the right decision easier to make.

Logger thugs to stand trial for Goolengook attack

A year ago, the forest camp at Goolengook established and maintained since 1996 by conservationists was attacked at midnight by a rampaging mob of 30 plus loggers and their teenage sons, many of whom had been drinking. These goons savagely assaulted 12 peaceful demonstrators and destroyed an estimated $20,000 worth of equipment including three vehicles. Seven victims required medical treatment and one person was hospitalised with serious head injuries. All have experienced lingering psychological trauma.

Goolengook is located in what remains of Victoria's magnificent East Gippsland old growth forests. The efforts to save these special areas from the government sanctioned destruction of the regional forest agreement have resulted in Australia's longest running forest campaign. The campaigners have experienced ongoing violence directed against them by loggers throughout the course of this vital protest. Examples of previous incidents include:

• In December 1998, a local farmer and conservationist was attacked in his car while leaving the logging town of Orbost. The pro-logging assailants attempted to drag him from the vehicle and assault him before he managed to escape. No charges were laid.

• In 1998, shots were fired on a house in Orbost where protesters often stayed. Several children were present in the house at the time. No charges were laid.

• Again in 1998, a logger threw petrol in the face of a protester then threatened others with a running chainsaw during a protest.

• In February 2000, protesters driving through the forest were threatened by a logger with a gun. That same logger later assaulted protesters during a protest.

On the basis of previous inaction by police, it was presumed no charges would result from a police investigation into the midnight attack on the protesters' camp. It is pleasing to report that on 24 February 2001, 20 men were com­ mitted to stand trial in the Bairnsdale Magistrates' Court on a range of charges stemming from the Goolengook attack. It is hoped that severe penalties will be handed out to those convicted, to serve as a deterrent to this type of sickening and, frankly, misdirected behaviour.

If the loggers are upset by the threats to their livelihoods (livelihoods which, in any event, depend on the ransacking of the natural heritage owned by all of Victoria), they should direct their anger at the government. It is the small, locally-operated mills that are closing. The government allows multinational companies to clearfell for woodchips rather than conducting selective and potentially sustainable logging. The government has also drastically overestimated the levels of forests remaining and is now having to reassess the situation. To blame the protesters for the parlous state of the industry is simply misconceived. • GO

Western Australia

National anthem extinguishes native title?

A year ago, in March 2000, the Full Federal Court released its decision in State of Western Australia v Ward [2000] FCA 191. The majority of the Court held that in Western Australia, native title is extinguished where pastoral leases granted after 1934 have been enclosed or improved. Leave to appeal from this decision was granted by the High Court, and the appeal is scheduled to be heard in March 200 I.

In response to the Federal Court decision, the government of Western Australia developed a policy initiative called Guidelines: Granting of Mining Tenements where Native Title has been Extinguished by Previous Tenure (the 'Ward policy'). Under this policy, the Department of Minerals and Energy (DME) have been granting mining tenements without reference to the native title process, where it can be demonstrated that native title has been extinguished.

The practice of granting mining tenements before the High Court has settled the law in this area is dangerous. If the High Court allows the appeal in whole or in part, the legal basis of the Ward policy may be overturned. Every mining tenement granted under this policy is potentially invalid.

The issue of whether a pastoral lease is enclosed or improved is a complicated question of law and fact. Under the Ward policy, DME assumes the authority to determine whether or not a pastoral lease is enclosed. If it is not enclosed, then a s.29 notice under the Native Title Act is issued. If it is enclosed, the mining tenement is granted without notification to the native title claimants.

What definition of enclosure is DME using? In practice, DME has accepted pastoral leases as enclosed where there are waterways and roads running through them. In one particular case, a boundary of a so-called 'enclosed' pastoral lease is the coastline. If the coast­ line can constitute enclosure, could the next logical step be that native title is extinguished across Australia? As one land council lawyer has noted, the fact that "our home is girt by sea" does not bode well for native title.

Just for the record, before the election the newly formed Labor party government had expressed an intention to reverse the Ward policy and abide by the native title process. We shall have to wait and 'sea'. • OB

Judges on the move

For years, some of this country's very best footballers have moved from the sun-laden shores of Western Australia to the industrial metropolises of the east. This trend has continued with WA's Supreme Court judges, however thankfully with an exchange program in place the traffic has not been all one way.

Last year, WA Chief Justice David Malcolm spent a month on the NSW Court of Appeal to preside over the NRMA case. At the same time, WA played host to Justice Sheller of the Supreme Court of NSW. This year, Justice David Ipp, one of the WA Supreme Court's most senior puisne judges, has packed up his bags and wigs and moved to NSW to serve a 12-month term on the NSW Court of Appeal. As part of this arrangement, Justices Stein and Grove from NSW will take residence on the bench of the WA Supreme Court during the months of February and March.

It is believed that the exchange of judges between WA and NSW will continue on a regular basis and that eventually other Australian jurisdictions will become involved. In this way, judges are able to share valuable knowledge with their counterparts elsewhere and bridge the perceived gap between 'East' and 'West'.


Justin Lilleyman is Associate to the Han the Chief Justice of Western Australia.

DownUnderAIIOver was compiled by Alt.LJ committee members Olivia Barr, Stephen Bouhuis, Ken Brown, Fiona Hussin, Glenn Osboldstone, Amy Roberts and Simon Rice, along with invited writers listed under their contribution above.


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