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Editors --- "DownUnderAllOver: Developments around Australia" [2004] AltLawJl 43; (2004) 29(3) Alternative Law Journal 151

Developments around Australia

Federal Developments

Budget contravenes international law on housing and social security

The Howard Government's 2004 Budget forecasts a $2.4 billion surplus and delivers substantial tax cuts to high income earners. Yet it contains no increase in real expenditure on preventing or responding to homelessness. This contravenes international human rights law, according to prominent human rights lawyers.

The lack of expenditure on homelessness is despite a recent Senate report on poverty and financial hardship describing the nature and extent of homelessness in Australia as a 'national disgrace'. On Census night in 2001, almost 100 000 people experienced homelessness across Australia.

A coalition of activists and organisations (which includes Chris Maxwell QC, PILCH, the Centre on Housing Rights and Evictions, Fitzroy Legal Service and Tamara Walsh) noted that under the 2004 Federal Budget:

• There will be no real increase in expenditure on the provision of public housing for those unable to access appropriate and affordable private housing, despite public housing waiting lists extending up to 10 years.

• There will be no real increase in expenditure on crisis accommodation and support services for people experiencing or at risk of homelessness.

• Youth Allowance (income support for young people and students), Newstart Allowance (income support for people looking for work), the Disability Support Pension and the Age Pension will all remain pegged at levels well below the Henderson Poverty Line.

According to the coalition, the very significant number of people in Australia without access to adequate hous1ng or income is a gross violation of human rights. In 1976, Australia ratified the International Covenant on Economic, Social and Cultural Rights. Article 11 provides that all people have the right to adequate housing which enables them to live in security, peace and dignity. Article 9 provides that all people have the right to social security. Article 2 obliges Australia 'to the maximum of its available resources' to progressively ensure the rights in the Covenant, including adequate housing and social security.

The coalition argues the Howard Government is failing to discharge this fundamental obligation. Between 1996 and 2003, Commonwealth expenditure on public hous1ng decreased in real terms by over $296 million. Such retrogression is prohibited by international human rights law. While the United Nations Committee on Economic, Social and Cultural Rights recognises that the task of ensuring that all people have access to adequate housing and income is ongoing and must be assessed in the context of a country's resources, Australia has no excuse. In fact, the Committee has consistently stated that, in a country as wealthy and affluent as Australia, the denial of the right to adequate housing and income to any significant number of people is, prima facie, a human rights violation.

Under the 2004 Budget, 100 000 or more people will remain homeless and without access to adequate housing or support and a very substantial number of social security recipients will be forced to live below the poverty line. Yet the Federal Treasurer is using money that should be spent on affordable housing to deliver surplus budgets and tax breaks for the rich. This is despite research demonstrating that it costs three times more to prov1de health care and social services to people on the street than it costs to house them.

How many homeless is too many? International law demands substantially increased expenditure on public housing, homelessness assistance and social security to ensure that all Australians enjoy the right to an adequate living standard.

PHILIP LYNCH is Coordinator of the PILCH Homeless Persons' Legal Clinic.

The Family Court and the detention of children seeking refuge

On 29 April 2004 the High Court of Australia handed down its decision in Minister for lmmtgration and Multicultural and lndigenous Affairs v B [2004] HCA 20.

The case decided that the Family Court of Australia lacked jurisdiction to order the release of children held 1n immigration detention. It involved an appeal by the Federal Government against a decision of the Full Family Court, which had ordered the Minister for Immigration and Multicultural and Indigenous Affairs (the Minister) to release five children from detention.

The children were being detained as unlawful non-citizens under the Migration Act. It had been claimed that the children were fleeing the Taliban regime 1n Afghanistan, although the

Refugee Review Tribunal found them to be nationals of Pakistan. Proceedings commenced in the Family Court in Adelaide were dismissed by Dawe J on the basis that the provisions within the Family Law Act related to the welfare of children were subject to the specific terms of the Migration Act.

The Full Court of the Family Court upheld an appeal against that decision. Chief Justice Nicholson and O'Ryan J (Ellis J dissenting) also held that the child welfare jurisdiction of the Family Court extended to decisions against 'third parties' (persons other than those with parental-type responsibilities for the child in question). The Minister for Immigration was ordered to release the children from immigration detention.

An appeal to the High Court was unanimously upheld and the Family Court's order was set aside. Chief justice Gleeson and McHugh J considered that the Family Court's jurisdiction was confined to 'matters', defined in terms of some right that may be determined or privilege that may be created by a court, or some duty or liability that is enforceable against a person by another person. They considered that section 67ZC of the Family Law Act, conferring jurisdiction on the Family Court in relation to the welfare of children, does not of itself confer jurisdiction in respect of a 'matter' under a law of the Parliament because it does not confer rights or impose duties on anyone. They also decided that, absent a specific power, the welfare jurisdiction does not extend to making orders binding on third parties to advance a child's welfare.

Justices Gummow, Hayne and Heydon held that the Family Court lacked the power to make the orders sought. They held that references of State power in this regard were limited to matters of maintenance, custody, guardianship and access. Similarly to the Chief justice and McHugh J, they also held that the powers of the Family Court do not include a power to make an order binding on the Minister to release children from immigration detention.

Justice Kirby considered Australia's international obligations noting that 'it was strongly arguable that the mandatory obligation to detain such children for very long periods whilst the cases of their parents were winding their way through the primary decis1on-making processes ... constituted a breach of Australia's duties under international law'. However, Kirby J decided that any such breach could not be used to read down the provisions of the Migration Act to allow the release of the children from detention. This was because Kirby J decided that it was 'beyond doubt, that the purpose of the Australian Parliament in enacting laws for the mandatory detention of aliens arriving in Australia as "unlawful non-citizens" was to include children'. To quote Kirby J:

Mandatory detention of unlawful non-citizens who are children is the will of the Parliament of Australia. It is expressed in clear terms in ss 189 and 196 of the [Migrat1on Act]. Those sections are constitutionally valid. In the face of such clear provisions, the requirements of international law (assuming it to be as the respondents assert and as the UNHRC. in part, has found) cannot be given effect by a court such as this.

Justice Callinan found, similarly to Gummow, Hayne and Heydon JJ, that the only jurisdiction relevantly transferred to the Commonwealth by the states was the parental responsibility for and the parental maintenance of children. He then held that such powers do not 'comprehend a general discretionary welfare power over any or all children, whether of a marriage of not, exercisable in such a way as to override ... other powers over children, such as to detain them in immigration detention, or rehabilitative, reformative, or penal jurisdiction'.

Following the decision of the High Court, the Government moved to designate the place of residence of the children in Adelaide as an alternative place of detention under section 5(1) of the Migration Act. It is understood that the father of the children is detained the Baxter Immigration Detention Centre and that the mother of the children is separately detained in a similarly designated place of residence.


Legislative reform in the first I 00 days

17 May 2004 marked the first 100 days of Team Beattie's third term in government. The Premier celebrated the fact with a press release proclaiming '100 days and already more than 100 achievements'. So long as he doesn't start banging on about 1000 achievements over the next 1000 years I'll desist from being alarmed. Legislative reform has been high on the third term agenda.

Phasing out broadscale clearing

The Vegetation Management and other Legislation Amendment Act 2004 became law on 29 April. The Act is a key part of the implementation of election commitments to phase out broadscale clearing. Premier Beattie announced that the new laws would make Queenslanders world leaders in the battle against global warming and that 'we would be doing much more to combat global warming than Europeans and Canadians'. Good to see that, in energy consumption, we sub-tropicals are competitive with those in the coldest regions of the world.

More counter-terrorism laws

The Terrorism (Community Safety) Amendment Act 2004 became law on 20 May. The Act strengthens the powers to prevent and respond to terrorist acts, including extending covert police search powers. The Act is fairly restrained compared to legislation such as NSW's Terrorism (Police Powers) Act 2002, which gives police the power to search people, vehicles and premises in a target area where there is an imminent threat of a terrorist act. The Queensland Act is the last in a series of terrorism reforms that began in 2002, including the rather terrifying Chem1cal, Biological and Radiological Emergency Powers Amendment Act 2003 that gives emergency responders the power to detain and treat people in the event of a CBR incident.

Improving child safety

The Child Safety Amendment Bill 2004 was introduced into parliament on 20 May. The Bill represents the first phase of legislative reform implementing the recommendations of the Crime and Misconduct Commission report Protecting Children –An Inquiry into Abuse of Children in Foster Care. The Bill includes a number of significant reforms including empowering the Child Safety Department to respond to notifications, made before a child is born, that the child may be in need of protection after birth. The Bill also changes the Commission for Children and Young People into the Commission for Children and Young People and Child Guardian, with an array of new powers to monitor and oversee cases handled by the Child Safety Department.

Reform of the legal profession

On a less dramatic note, the Legal Profession Act 2004 was introduced into parliament on 29 April. The author must confess to being deeply confused by the tortured progress of legal profession reform in Queensland. To date it has involved discussion papers released in 1998 and 1999, announcement of a package of reforms in 2000, a National Competition Policy Review and subsequent issues paper released in November 2001, and then in 2002 a report by retired Chief Judge Mr Pat Shanahan and a report from the Legal Ombudsman. Then came a Legal Profession Reform Bill 2003 which progressed through parliament to become the Legal Profession Act 2003, but which was never proclaimed, and now we have the Legal Profession Act 2004.

According to the explanatory notes, 'for simplicity [the 2004 Act] incorporates and replaces the Legal Profession Act 2003'.

Now that's all cleared up, I've run out of space to explain what is actually in the Act. However solicitors and barristers will be pleased to know that they will not be admitted separately as at present

It might have been easier just to dissolve the whole profession, and reinstate used car salesman to their rightful place as the most mistrusted of occupations. Can you believe they hate us more than them?

ANTHONY REILLY is a Queensland lawyer and public servant

South Australia

South Australia's first pastoral land-use agreement

South Australia's first Indigenous Land Use Agreement between a pastoralist and native title applicants was signed on 14 March at Todmorden Station in the state's far north.

The station, which covers more than 7000 square kilometres between Oodnadatta and Marla, was the subject of the Agreement between the State Govemment, the Lillecrapp family as lessees of Todmorden Station and the Yankunytjatjara people.

The signing was the culmination of a process begun in December 2001, which involved a number of face-to-face meetings between the lessees and a committee nominated by the wider Yankunytjatjara community to negotiate on behalf of the traditional owners of the country covered by the pastoral lease.

The Agreement provides recognition of the traditional owners of the area and greater certainty for present as well as future activities by the lessees and the traditional owners. Whilst the right to access pastoral stations in order to carry out traditional pursuits has been available to Aboriginal people since the 1850s, the Agreement is an acknowledgement that those rights exist and sets out a framework of rules with respect to all sides' rights and interests. All parties and native title claimants will be legally bound by the terms of the Agreement under the federal Native Title Act 1993.

Negotiating an agreement about how pastoralists and native title applicants can work together to protect each of their interests in the management of the land minimises the considerable cost, time and anxiety associated with the prosecution of native title applications. Negotiations of this kind also build the personal relationships between the parties and mutual respect and understanding of each other's interests in the land. Such respect can then provide a foundation for settling native title applications. The development of native title over the last 11 years or so has shown that negotiated agreements and settlements are far preferable to the heartache and extraordinary expense associated with litigating applications to the bitter end.

LYN COAD is an anthropologist at the Aboriginal Legal Rights Movement Native Title Unit


Offending while on bail

Given an increase in the proportion of the Tasmanian prison population made up of prisoners on remand (from 12.3% in 1992 to, 20.8% in 2002) the Tasmanian Government has begun showing interest in interstate reforms removing the presumption in favour of bail for alleged recidivists. In November 2001 the former Attorney General referred several questions to the Tasmanian Law Reform Institute relating to bail. The fourth question was 'What is the frequency with which repeat offences are committed while an offender is on bail?' In May this year the Institute released its research paper on that question.

Of over five thousand 'charge occasions' between 2001 and 2002, the Institute found that nearly 26% of charges involved a defendant already on bail. It found that 36.7% of defendants charged with a property offence, 13.4% of defendants charged with a driving offence, and 26.8% of defendants charged with an offence against the person, were on bail when charged. People who were charged while already on bail were most likely to be charged with a property offence, and most likely to have been on bail for a property offence.

Although the Institute generally supported attempts to reduce this level of offending, it did not support removing the presumption in favour of bail. The Institute pointed to:

• The significant benefits of granting bail (including allowing defendants to maintain employment, family and social ties, and saving the state the expense of keeping them in remand).

• The importance of the presumption of innocence.

• The often minor nature of the offences involved.

• The likelihood that tougher laws would have little impact on the level of offending while on bail.

The Institute also concluded that more appropriate options for reform were available, such as improvements to the bail decision-making process (eg by providing better information) and the bail system (eg by improving the use of bail conditions and supervision, and the way breaches of bail are dealt with).

More resources for Magistrate's Courts

In May the Attorney General announced a range of initiatives designed to increase the efficiency of the Magistrate's Court Two additional coroners and two temporary magistrates have been appointed to ease the caseload and to enable the other magistrates to devote more time to the core criminal business of the Court. The Court itself is also in the process of reviewing of its case management systems to find further efficiencies and improvements.

Legal aid now available for civil cases

As promised by the Government at the last election, legal aid support for serious personal injury claims, workers compensation claims and professional negligence claims has become available. The Civil Disbursement Fund provides assistance in paying up front disbursements, such as expert reports, medical reports, trial fees, and witness expenses. If the applicant's case is successful, the amount of assistance must be reimbursed to the Fund.

Tasmanians 'Safe at Home'

This year's state budget has allocated $17.7 million to the 'Safe at Home' package a1med at changing community behav1our and attitudes to family violence. The package includes:

• $1.34 million to establish Victim Safety Response teams;

• $1.01 million to establish a new court support service for victims, support for children who give evidence in legal proceedings, and the introduction of a mandated offender program for ongoing 'risk management' of offenders;

• $1.04 million towards a counselling and support service for those affected by family violence; and

• $20,000 to support an Aboriginal family violence advisory group to implement culturally appropriate responses for Aboriginal people.

The Sex Offender Treatment Program also received a substantial increase in funding, as did the increasingly overworked office of the

Director of Public Prosecutions. Funding has also been allocated to improve Magistrate's Court security.

SAMANTHA HARDY teaches law at the University of Tasmania.


Justice statement a step in the right(s) direction

On 27 May, the Victorian Attorney-General, Rob Hulls MP, released his much anticipated 'justice Statement'. The Justice Statement flags 25 major initiatives that the Bracks Labor Government proposes to undertake over the next 5-10 years to 'modernise justice' and to 'protect rights and address disadvantage'. These initiatives-which include reforming criminal-law and procedure, modernising the courts and the legal profession, improving responses to victims of crime, developing problem-solving courts to address underlying causes of crime, initiating community discussion and debate about a charter of rights, and improving access to legal aid -are extremely positive and constitute a significant step in the right direction.

However, 5-10 years is too long to wait for just1ce for over 20,000 people who experience homelessness across Victoria each night Recognising this, the Government should implement the following reforms as a matter of priority:

• Repeal the provisions of the Vagrancy Act 1966 which render begging, consorting and loitering criminal offences punishable by imprisonment The Government should act immediately to develop programs to respond more effectively to poverty and disadvantage rather than continuing to punish people for being poor.

• Amend the Equal Opportunity Act 1995 to prohibit discrimination on the ground of social status, including homelessness, joblessness or being a social security recipient. Discrimination against people experiencing homelessness remains widespread but lawful across Victoria, particularly in the provision of accommodation and goods and services.

• Amend the Electoral Act 2002 to enfranchise homeless voters. It is estimated that up to 90% of homeless people were eligible but unable to vote at the last state election due to legislative impediments to enrolment and participation.

• Simplify and clarify the content of infringement notices to ensure that all people, particularly financially and socially disadvantaged people, are aware of their rights and opt1ons when they receive an 'on-the-spot' fine. This is likely to result in more people dealing with fines quickly and efficiently and thereby save enforcement costs.

• Expand the operation of the 'Special Circumstances List' at the Melbourne Magistrate's Court to ensure that people experiencing homelessness, drug dependency or poverty are able to receive sentencing dispositions that address the underlying causes of their offending behaviours. This would substantially reduce enforcement costs and recidivism and improve social, economic and health outcomes for disadvantaged people.

PHILIP LYNCH is Coordinator of the PILCH Homeless Persons' Legal Clinic.

Western Australia

Redefining the particular: the High Court in Applicant S ·

On 27 May, the High Court handed down the decision in Applicant S v MIMIA [2004] HCA 25. It clarifies the Australian interpretation of that most ill-defined of refugee categories, the 'particular social group'. The applicant is a young Afghan man of Pashtun ethnicity, who fled Afghanistan in 2000 to escape conscription into the Taliban army. His application for a protection visa was initially denied by the Refugee Review Tribunal, but he appealed that decision to the Federal Court, where Carr J ordered that the matter be remitted to the Tribunal. Justice Carr found that the Tribunal should have considered whether the applicant belonged to a particular social group. The Minister then appealed to the Full Federal Court, which reversed that decision.

The High Court has now set aside the orders of the Full Court, finding that: 'The majority of the Federal Court erred in law by requiring that there had to be evidence before the Tribunal that would support the claim that Afghan society perceived young able-bodied men as comprising a separate group.' In a 4:1 decision (Gleeson CJ, Gummow, McHugh and Kirby JJ, Callinan J dissenting) the Court spelled out the test to be applied in considering membership of such a group.

Gleeson CJ, Gummow and Kirby JJ stated that the 'general principle is not that the group must be recognised or perceived within the society, but rather that the group must be distinguished from the rest of the society.'

They then posed a three-stage test:

1. The group must be identifiable by a characteristic or attribute common to all members of the group.

2. This characteristic or attribute cannot be the shared fear of persecution.

3. The possession of this characteristic or attribute must distinguish the group from society at large.

This decision clarifies the Court's prior pronouncements in Khawar and Applicant A.

The Court also considered the question of whether conscription into the Taliban army could constitute 'persecution' under the Refugee Convention. The Minister argued that the conscription policy was a 'law of general application', and that as such there could be no finding of persecution. In response the Court distinguished its earlier decision in lsraelian, on the basis that the Taliban's policy was 'ad hoc and random' and could not be classified as generally applied. Further, the necessary 'legitimacy of object' that must exist in such cases was affected by the fact that the conscription was undertaken by an authority which was 'according to the Tribunal, considered by international standards a ruthless and despotic political body founded on extremist religious tenets'.

Matthew Howard, of Francis Burt Chambers in Perth appeared pro bono for the applicant, instructed by Maria Lamattina of Minter Ellison Lawyers. Maria is a member of the Amnesty National Legal Team. Four law students from the University of Western Australia (UWA) and Murdoch University assisted in the preparation of the case, including members of the WA Amnesty Legal Group and the UWA Refugee Appeals Project. These students undertook specific research tasks such as researching the approach taken in other common law countries and summarising relevant decisions.

LAURA REECE is a Judge's Associate in the District Court of Queensland.

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