Alternative Law Journal
The 13th Commonwealth Law Conference was held in Melbourne from 13 to 17 April 2003. The Conference provided an opportunity for some 1500 delegates from around the Common wealth to discuss points of common interest and concern.
The Conference had originally been scheduled to take place in Zimbabwe. However, given the violence there, it was moved to Australia.
A key address at the conference was delivered by Cherie Booth QC, who presented a paper on human rights, the rule of law and democracy. Notably, she made mention of the principle in Teoh and of the emerging right to democratic governance. In this regard she highlighted the need to look at democracy not just in procedural terms, but more particularly in terms of inclusiveness and in meeting developmental concerns.
Also from Britain, Christopher Pat ten (the former Governor of Hong Kong and now EU Commissioner for External Relations) gave a second key address. He outlined both the benefits and detriments of globalisation. He stressed the importance of managing the process of globalisation, in particular the needs of the alienated and dispossessed. He also discussed the 'scattering to the winds' of the principle of non-intervention in sovereign states in the wake of the recent interventions into Kosovo and Iraq as well as the 'war on terror'. Patten also spoke of the need for good governance and the links between good governance and development. In relation to foreign aid, he noted that it is indefensible for wealthy countries to spend seven times as much subsidising agriculture as they do on aid.
Another highlight was an address by Geoffrey Robertson QC, president of the Special Court of Sierra Leone. He was forthright on the need for independent courts to try people for crimes arising out of the conflicts in Afghanistan and Iraq. He was also forthright on the question of defamation and publications via the Internet, during a panel discussion comprising representatives of all aspects of the recent Dow Jones v Gutnick litigation.
A further highlight was Justice Michael Kirby, who delivered a number of papers at the conference, including one on the future of human rights. He noted the challenges posed to such rights by new technologies and the 'war on terror', and lamented changes to the UN Commission on Human Rights.
The presentation by Justice Albie Sachs of the South African Constitutional Court was also particularly note worthy. Justice Sachs lost an arm and an eye to a car bomb planted by supporters of apartheid. He outlined his experiences serving on the Constitutional Court as well as the plight of the disadvantaged in South Africa.
There were many more panels than space to describe them here. These included panels on indigenous rights, corporate governance, women and the law, terrorism, equality, migration law and multijurisdictional legal practice.
Further information, including recordings of key sessions, is available from the conference organisers: email firstname.lastname@example.org; website <www.liv.asn.au/conferences/comlawc.html> • SB
The ACT has taken an important step on the way to becoming the first Australian jurisdiction to establish a Bill of Rights. The May 2003 report of the Bill of Rights Consultative Committee recommended that the ACT introduce a Human Rights Act to codify and protect rights enunciated in the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.
The Chief Minister established the Committee in April 2002. Following debate and wide-ranging community consultation, in November 2002 the pro cess culminated in an innovative deliberative poll, involving 200 randomly selected ACT residents. Differing views were received throughout the consultation process, although a majority (60%) was in favour of a Bill of Rights.
The Report's proposal is most closely modeled on the United Kingdom's Human Rights Act 1998 and is quite distinct from the US position. The Act would not be constitutionally entrenched. Its principal utility will be as a guide to interpretation. Courts will have to seek to construe all legislation consistently with the Act, and public authorities are to act consistently with the rights it protects. The role of the Assembly is also expanded to include the scrutiny of all proposed legislation for consistency with human rights.
The judiciary will have no power to invalidate a law that cannot be consistently construed with human rights. The ACT Supreme Court will be able to make a 'declaration of incompatibility', but this will have no legal effect. Rather, such legislation will be referred to the Attorney General. This could result in amendment, repeal or no change at all. The position is slightly different with subordinate or delegated legislation, which will be able to be ruled invalid if its source statute permits removal of the incompatibility.
The range of protected rights is quite broad. The proposal seeks to protect more than traditional civil and political rights like the right to vote and freedom of expression. Amongst others, it seeks to protect rights to work and to receive the highest attainable standard of health care. The report's authors did not believe that some fundamental rights were worth less than others.
However it is significant that the proposal recognises that no right is without reasonable limitation. Thus, rights may be restricted on account of 1 'financial circumstances' or to the 'extent that such restriction is 'reasonable and justifiable in an open and democratic society'. (Here, the report refers to South Africa where courts there have been reluctant to overturn rational decisions by government agencies.)
Ultimately, the Assembly retains the final say on matters of human rights. The Assembly will be able to authorise conduct that might otherwise breach a human right. The Assembly will be able to pass laws inconsistent with the Act, provided it explicitly states that the law applies 'notwithstanding' the Human Rights Act. The overall aim of the process is to create a 'dialogue' about deficiencies in legislation and to refer such deficiencies back to the polit ical process for resolution.
Also proposed is an office of the Human Rights Commissioner. (A recent UK Joint Parliamentary Committee on Human Rights' report recommended a similar initiative.) The Commissioner's role will be educative, consultative and advisory rather than litigious. The Commissioner will report to the Assembly on an annual basis. This furthers the report's call for regular review of both the scope and operation of the proposed Act.
To address concerns that Bills of Rights invite frivolous litigation, the report considers the impact of such instruments on courts overseas. It finds there is no evidence of a major increase in litigation on account of human rights legislation.
Close regulation of court procedure in human rights cases is also proposed. Parties may be referred to alternative dispute resolution, and damages will be allowed only where 'necessary' to pro vide an effective remedy. However, the standing requirements are broad. Any aggrieved person will be able to bring an action (cf the UK where such a right is restricted to a 'victim' of an unlawful act).
The proposal mixes idealism with pragmatism, striking a good balance between individual rights and community needs. The proposal is ambitious, yet workable. If it is enacted, the ACT will become a leader within Australia on issues of human rights. Attention might then return to the issue at a national level, where Australia remains the only western nation without a Bill of Rights.
Nick Hume is an intern at the Gilbert and Tobin Centre of Public Law at the University of New South Wales
In the last issue we reported that the NSW Government had not taken steps to implement recommendations of its Bill of Rights Inquiry. We were wrong. Can we be excused for thinking that the Inquiry resulted in nothing? Even the NSW Premier's biographer said, only this year: 'Without the premier's [sic] support the [Bill of Rights] issue went no further' (M Dodkin, Bob Carr, the Reluctant Premier, at p 210). In fact the outcome of the Bill of Rights Inquiry was the Legislation Review Amendment Act 2002 (NSW) (LRA Act).
The LRA Act renames the NSW 'Regulation Review Committee' the 'Legislation Review Committee' and extends its role to the scrutiny of Bills. The Committee will advise the Parliament of the extent to which proposed legislation gives effect to or encroaches on 'personal rights and liberties'. The Parliament is under no obligation to amend legislation in response to any such advice.
The LRA Act was assented to in October 2002, but those parts that establish the Committee commenced only in May 2003; those parts that actually empower a rights-based review of legislation are yet to commence. They will be a welcome addition to the law-making process when they do.
We can only wonder what the Committee, had the LRA Act commenced on assent, would have made of the Terror ism (Police Powers) Act 2002 (NSW), which was passed in December 2002. That Act would certainly have attracted the Committee's attention in advising (s 8A) on whether a Bill 'trespasses unduly on personal rights and liberties', and 'makes rights, liberties or obligations unduly dependent upon insufficiently defined administrative powers ... and non-reviewable decisions'. • SR
And while on the subject of rights in NSW, the good news is that NSW has joined the rest of Australia (bar the Northern Territory) in introducing for mal equality for the so-called 'age of consent', ie the minimum age for legal sexual relations. Legislation has passed the NSW parliament which sets the age for consensual sexual relations between men at 16, the same as for relations between women, and for heterosexual relations.
Credit for the belated recognition of the right to equality goes not to the Government but to the whole of the Parliament. The legislation was voted on freely according to conscience, rather than along party lines. The National Party, however, resolved to oppose the legislation, forcing one of its MPs, Russell Turner, to cross the floor and vote for the reform. Real credit goes to Labor MP Jan Bumswoods, who championed the reforms for the third time.
Third time lucky. • SR
The Northern Territory Court of Appeal has recently upheld a prosecution appeal in the controversial Jackie Pacoe Jamilmira case. The 49-year-old defendant was charged with unlawful sexual intercourse with a 15-year-old girl and discharging a firearm in public. He pleaded guilty to both charges before a magistrate who sentenced him to a total of 13 months imprisonment, to be suspended after four months had been served. On appeal to the Supreme Court, Gallop J reduced the sentences to one day imprisonment effectively letting the defendant off on the basis that he had been acting in accordance with his custom as the girl was his 'promised wife.' The judge even went so far as to express surprise that the unlawful intercourse charge had been brought. A striking aspect of the appeal was an apparent concession by prosecution counsel that the original sentence was excessive and that the facts did not warrant actual imprisonment.
On further appeal, the NT Court of Appeal (Martin CJ, Riley J, Mildren J dissenting) ruled that the sentences imposed by the Gallop J was manifestly inadequate and imposed a total sentence of 12 months imprisonment, to be suspended after one month had been served.
Heated debate on the case has centred on the extent to which acting in accordance with custom should mitigate punishment for such an offence. The defendant contended that he had done nothing wrong as the girl had been promised to him and he was under customary pressure from some members of her family to take her as his wife.
However it could be argued, from the agreed facts and the expert opinions tendered to the Courts, that the defendant did not produce sufficient evidence to prove he hadbeen acting in accordance with custom. There was no evidence that any family meetings had taken place to determine that the girl should cohabit with the defendant. The defendant's actions might be regarded as an anticipatory exercise of incipient rights.
The agreed facts make it clear that the girl was a hesitant and unenthusiastic participant. Her victim impact statement that 'I am angry for what he done. I was sad and upset. I think about it all the time. I always get angry with every one. This makes me upset' emphasises her unhappiness. The afternoon after the sexual intercourse, the defendant became angry when the girl tried to leave the outstation area and return to Maningrida in a vehicle driven by friends. He told her to stay and fired a shot in the air to frighten her into remaining. She did so, fearing for the safety of herself and her friends.
No mention was made in any forum that the 1979 UN Convention on the Elimination of All Forms of Discrimination against Women, to which Australia is a party, expressly denies that the betrothal and marriage of children shall be of legal effect. The compatibility of customary law with modern human rights norms is likely to present an increasing challenge to the courts, human rights activists and those who advocate a wider application of customary law. • KB
Prosecutions for causing death or injury by dangerous acts are quite common in the Territory: those for causing death or injury by omission are less frequent. A rare instance of the latter occurred recently, following the terrible death of Isabel Von Jordan, a young German tourist grabbed by a crocodile whilst swimming in a billabong in Kakadu National Park. Unsurprisingly, the incident attracted international attention.
Glen Robless admitted that as tour guide he was responsible for the deceased and others and that he had allowed them to swim in a billabong without adequate warning of the danger of crocodiles, causing serious danger to their lives, health and safety.
The events happened in late October 2002, in the oppressively humid build-up season in the Territory. The tour party had had a strenuous and active day in the Park and after supper the defendant took them for a swim in a nearby billabong. Signs adjacent to the billabong clearly indicated that crocodiles inhabited the area and warned of the dangerous consequences of a crocodile attack. However the defendant had noticed Aboriginal Australians swimming there and had come to regard the billabong as safe. He used a torch to look around and, not seeing any sign of crocodiles, he entered the water and allowed the party to follow.
After a short time, he left to visit a tour group camping nearby. During his absence, three swimmers, including the deceased, went into deeper water. Ms Von Jordan disappeared, taken by a crocodile. An immediate search soon sighted a crocodile with her body in its mouth. The crocodile was killed and her body recovered.
Since the death resulted from the omission, the offence carried a maxi mum penalty often years imprisonment. The defendant's counsel advanced a host of mitigating factors: his age, 46; his immediate admission of culpability, his cooperation and plea of guilty; his clear remorse and ongoing guilt; his work record; the loss of his career and the lack of any intent or foresight of the danger on his part. Several positive character references were also produced to the Court.
The Chief Justice noted that the event had had serious repercussions beyond the tragic death. Her sister who was next to the deceased when she was seized had been severely traumatised and unable to continue her tertiary studies. Her parents were understandably grief-stricken.
Nevertheless, whilst acknowledging that a custodial sentence must follow such a serious omission, the Chief Jus tice felt able to suspend its operation. The defendant was sentenced to three years imprisonment, suspended provided that the defendant committed no further offence within 18 months. • KB
Regular readers will remember the extraordinary charges brought against Chief Magistrate, Di Fingleton, which arose out of what in other contexts would have been nothing more than ugly inter-office politics. Magistrate Gribbin had provided an affidavit in support of civil action by Magistrate Thacker who had alleged that Fingleton had bullied her in relation to an undesired transfer. Fingleton later demanded that Gribbin show cause why he should keep his role as a district co-ordinating magistrate, given his alleged lack of loyalty to his boss.
After a hung jury in her first trial, Fingleton has now been convicted of retaliating against a witness (Criminal Code (Qld) s 119B). This recent, somewhat obscure, crime designed to protect judicial officers, jurors and witnesses after the event, carries a maximum penalty of seven years. Justice Helman has sentenced her to serve one year. (Her lawyers are appealing both conviction and sentence.)
The damning email in which Fingleton asked Gribbin to justify his continuing co-ordination role was cen tral to the conviction. On its face, it cer tainly could be read as a threat of payback.
What is most puzzling is the severity of the sentence. Fingleton is being made an example of because of her high office. (Contrary of course to the defence argument that her past service and character and hence achievements should be taken into account.) But con sider some of the mitigating factors. Fingleton had the advice of a solicitor that it was legitimate to ask Gribbin to show cause, and that solicitor testified that he found Gribbin's claim that this might amount to contempt or perverting the course of justice to be preposterous. Whilst legal antennae ought to have twigged that the email could be read as illegitimate pressure, the email might also have been read as an attempt, however ham-fisted, at asserting dominance in an inter-office brawl.
Second, the position of co-ordinating magistrate was as much a burden as a benefit. According to the evidence given by other magistrates it was literally barely 'worth a carton of beer'. That is, the higher-duties allowance, after tax, was small given the onerousness of the administrative duties involved. Indeed, Fingleton did not actually strip Gribbin of this honour; at most she threatened it.
Further, Fingleton's actions came after Gribbin's affidavit was filed, and in the context of open personal animosity between the two. She must have known any threat would have been as likely to inflame his evidence against her as to moderate it. In this light her actions may seem more crass and ill-tempered, than deserving of a year's ' sentence, especially since regardless of sentence, the conviction itself was guaranteed to imperil not just her Chief Magistracy but her legal career.
Of course, a jury has spoken on the legality of her actions. But contrasted with egregious examples of suborning witnesses (eg bribery or physical coercion of a truly defenceless witness prior to them giving any formal statement) the offence seems comparatively slight.. How often are lowly employees who seek to give evidence in unfair dismissal, negligence, or harassment suits against their employers subject to maltreatment or passed over for benefits? How often are such employers ever charged? In that light, and given the original spark for the tragedy, it seems Fingleton's primary sin may have been unsubtle and counter-productive management skills. • GO
There has been recent discussion in South Australia over dedicated parliamentary seats for Aboriginal people. The Speaker of the Assembly (Peter Lewis), the Aboriginal Legal Rights Movement-Native Title Unit (ALRM NTU) and the Congress of Native Title Management Committees all strongly support Aboriginal parliamentary representation.
Peter Lewis is on record as supporting a dedicated seat in the Lower House. The Congress of Native Title Management Committees and ALRM-NTU would like to see Aboriginal representation guaranteed in both Houses.
The Congress of Native Title Management Committees first raised the issue of proper Indigenous representation in 2000, when its members voted no confidence in the South Australian Liberal Government following the passage of the Native Title (South Australia) (Confirmation and Validation) Act. To promote the objectives of the Congress, the Executive Officer of ALRM-NTU will attend the Constitutional Convention meetings that are expected to take place later this year. • AR
*Readers are referred to Aboriginal Way, March 2003, Issue No. 17, p.l for more information.
For the second time in six months, the Fair Trading (Amendment) Bill 2003 (the amending Act) was introduced into Victorian Parliament. Last year it got as far as the Lower House before the election was called. Now, with Labor majorities in both Houses it has received a smooth ride into law. Quoting from the Minister's Second Reading Speech, the amending Act 'will transform the [FTA] into the most advanced consumer protection legislation of any Australian state or territory and will make for a fairer Victorian marketplace and more confident consumers'.
The amending Act originated in a June 2002 Fair Trading Act Review Reference Panel Report. This report was remarkably consumer focused, despite the Panel containing several industry representatives and the Report incorporating elements from industry submissions. This was a clear testament to the powers of persuasion of the Panel's consumer advocates.
What does the amending Act do? Quite a lot actually. It gives vastly increased powers to the Director of Consumer Affairs. The Director can require traders to substantiate product claims (eg if a company is advertising an anti-ageing cream, proof can be demanded of its anti-ageing properties). The Director can require a trader to 'show cause' why she should be allowed to continue trading. The Director can make public warnings about, suspend the licences of, and obtain 'cease-trading' injunctions against rogue traders. And the Director can require any person to pro vide information, produce documents and give evidence in relation to an alleged contravention of the FTA. The penalties for many offences under the Act have been doubled.
Provisions relating to door-to-door sales have been strengthened, with sellers now prohibited from turning up on any Sunday or public holiday, or out side the hours of 9 am to 8 pm weekdays (9 am to 5 pm Saturdays) and from staying longer than one hour (with the possibility of a half hour written extension). The cooling-off period has been extended from 5 days to 10, or 6 months if the trader fails to notify the customer of her cooling-off rights. And if the door-to-door seller tells the customer she can cancel the contract by contacting that seller, this method of cancellation is now permitted. (Under the old legislation the customer would have been obliged to send a written cancellation notice to the supplier within the cooling-off period. Unscrupulous sellers would often neglect to mention this to their, often NESB, customers who would then try to cancel by contacting the seller to cancel, only to be given the run-around until the cooling-off period expired.)
Terms in consumer contracts that give an unfair advantage to the trader are now prohibited and regulations can be made to prescribe unfair terms that must not be used in standard form con tracts. These provisions are based on similar UK and EU schemes, which have removed many skewed standard form contracts from the marketplace. Further, consumer contracts must be in plain English and if they are not, the Director can seek an order from the Civil and Administrative Tribunal pre venting their use. The amending Act also, logically, moves into the FTA the implied contractual warranties and conditions provisions from the Goods Act 1958 (Vic) and the 'small claims' procedures from the Small Claims Act1973 (Vic) (repealing that Act).
Two provisions from the 2002 Bill, which did not make it into the final version of the amending Act, are a requirement on publishers to collect information from advertisers (thanks apparently to vigorous lobbying from the big end of publishing town) and a Division proposed to strongly regulate telemarketing practices.
Consumer Affairs Victoria (CAV) has always had plenty of powers to investigate and prosecute breaches of the various consumer Acts. However, unlike its federal counterpart, the ACCC, CAY has initiated very few prosecutions. It is unclear whether this is due to a lack of resources or a lack of will. Most financial counsellors and consumer advocates suspect the latter. We will have to see whether the Department with its new Minister, new Director and brand new arsenal of powers courtesy of the amending Act will have the guts to stand up to unscrupulous traders.
Despite the many above-mentioned consumer-friendly amendments, the amending Act effectively removes significant rights for consumers engaging in sporting or leisure activities ('recreational services'). The amending Act allows recreational services providers to contract out of their obligations to ensure the services will be rendered with due care and skill and be reasonably fit for their purpose. Consumers will now be required to sign a waiver form that will prevent them or their estate suing for death or personal injury under the contract (but not negligence rights, which are curtailed by another Act, as explained below). This is yet another example of the state government kowtowing to the insurance industry at the expense of the rights of the injured.
J Lo Biafra is a Melbourne lawyer.
In 1999 the then Liberal Government's Prostitution Bill 1999 (which aimed to eradicate street work and kerb crawlers) attracted criticism by the Labor Opposition as 'a very bad Bill drawn up by incompetent opportunists who have no regard for civil liberties or the state of civilisation in Western Australia' (Hon Nick Griffiths MLC, Parliamentary Debates, 7 December 1999). The Bill removed the right of silence, reversed the burden of proof and contravened human rights treaties to which Australia is a signatory. The Hon Mrs Roberts claimed that the law was 'bad law'.
The Labor Party's concerns were such that the Prostitution Act 2000 (WA) was only passed with the inclusion of a two-year sunset clause. In the event, the Act did not achieve its objectives; rather it sent street work underground and support agencies have consistently reported increases in the occupational hazards facing such workers, such as violence and sexual assault.
Three years on, the Labor government (under the guidance of Police Minister Roberts) has rolled the existing Act into the Prostitution Control Bill 2002. The Bill introduces 35 imprisonable offences and 42 finable charges for sometimes minor infringements. It mimics the Queensland/Victorian licensing models, where the majority of brothels operate illegally because of difficulties with licensing approval. Moreover, the Bill will establish an insufficiently accountable Prostitution Control Board, which, coupled with expanded police powers, will create a potential haven for institutional corruption.
Sex workers, the community sector, the Greens, women's interest groups and experts in public health, human rights and legal reform are opposing the Bill on the exact grounds Labor opposed the Liberal Bill three years ago.
Tracey Summerfield and Chantal Caruso
Tracey Summerfield is a PhD candidate and part-time lecturer in law at Murdoch University. Chantal Caruso is currently completing her Master of Arts in Public Policy at Murdoch University.
DownUnderAllOver was compiled by Alt.LJ committee members, Ken Brown, Graeme Orr, Simon Rice, Amy Roberts and Stephen Bouwhuis together with invited writers listed under their items above.