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CROSSING CONTINENTS: INTERNATIONAL LAW Issue 03 2013 UTS Law Students’ Society Quarterly Academic Journal 12

(In)credible children

The difficulty facing the most vulnerable asylum seekers: children 24

In the land of Gods and monsters The plight of victims of a rising global epidemic: international child sex trafficking 36

Snowed-In

Casting a light on Edward Snowden and the new wave of whistleblowers 42

Q&A

With James Crawford who was the first Australian member of the United Nations International Law Commission 46

Stop. Hammer time. Is the United Nations an effective international peacekeeping institution?


CREDITS

tfb 2013 [Issue 03]

the full bench

EDITORS Michelle Smerdon (LSS Publications Director) Lauren Fitzpatrick Joanna Mooney Francesca Elias Arciuli

DESIGNER Hamish Burrell © UTS Law Students’ Society This publication is copyright. Except where permitted under the Copyright Act, no part of this publication may form or by any means (electronic or otherwise) be reproduced, stored in a retrieval system or transmitted by any process without specific written consent of the UTS Law Students’ Society. Enquiries are to be addressed to the publishers. Disclaimer All expressions of opinion published in the TFB are not the official opinion of the UTS Law Students’ Society unless expressly stated. The UTS Law Students’ Society accepts no responsibility for the accuracy of any opinions or information contained herein and readers should rely on their own enquiries to make decisions in their own interest. .

LSS VICE PRESIDENT (EDUCATION) Kate Taylor

MARKETING Anita Juric

COVER ARTIST Bethan Phillips

WITH THANKS TO Daniel Mckenzie and co. Kwik Kopy Printing centre Neutral Bay 121 Military Road, (cnr. Bydown Street), Neutral Bay, NSW 2089 Tel 02 9953 3077 Fax 9953 0530 www.neutralbay.kwikkopy.com.au

The Full Bench (tfb) is published in Sydney annually by: UTS Law Students’ Society PO Box 123, Broadway NSW, 2007 Room cM5A.01.08, city Markets campus, Cnr of Quay Street & Ultimo Road Ph (02) 9514 3448 Fax (02) 9514 3427 www.utslss.com

The Full Bench


CONTENTS

Contents

04 06 08 11 12

Editorial, President & VPE Addresses

30

Editors’ Question

32

19 22

34

In 10 words or less

The leadership spill: tragic or terrific?

The difficulty facing children seeking asylum

Keeping a global eye on women’s rights

24 28

International laws versus morals

36

Snowed-In

40

Take two for Radovan Karadzi

Whistleblowers unveiled

Haran DeLillo

42

Q&A: James Crawford

44

Review:

Family law relocation issues

Kristen Troy

Are we slamming the doors on refugees?

International law

Lauren Fitzpatrick

Policits versus morality: A report from the 2013 Clayton Utz ALSA Conference, Perth

Anita Juric and Louise Zhan

Australia’s hardline asylum seeker policy

Martha Crnkovic

When laws attempt to point our moral compass North

Ivana Katic

A relocation of boundaries

Child sex tourism

English High Court upholds exclusive Australian jurisdiction clause

Will the ICTY bring Karadzi to justice?

Johanna Deutsch

In the land of Gods and monsters

Just jurisdiction?

Ana-Maria Cindric

(In)credible Children

Stuart Davey

Aloysius Robinson

Mitchell Kelly

Obiter

Melanie Nicol

15

Opinion: the clash between culture and international law

46

Debate: Stop. Hammer Time. Is the United Nations an effective international peacekeeping institution?

Pavlina Zdraveski and Laila Nawsheen

47

Verbatim: Law School jokes

Activism in China An outsider’s perspective

Robert Guzowski

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EDITORIAL

Editorial Dearest readers, welcome to the international edition of The Full Bench!

While Australia is approximately 7,000km away from China, 12,000km away from the United States, and 14,000km away from Europe, what occurs in these nations, and other nations across the globe, can in fact have a debilitating or enlightening affect on our country, and on us as individuals. Today we are seeing violent clashes in Egypt where the Arab Spring of 2010 has left its mark, a constant stream of asylum seekers travelling the globe to escape violence and persecution in their home countries, as well as a constant challenge for the Government to balance the protection of its citizens overseas, with respecting the sovereignty of other countries – Schapelle Corby remains in gaol in Bali on drug charges, Julian Assange remains under the protection of the Ecuadorian Embassy, and the “Peru 6”, who returned from their vacation to find themselves facing charges of murder, await their fate at the hands of a South American judiciary. The United Nations has 15 current peacekeeping missions operating in Darfur, Haiti, Afghanistan… the list continues. What is becoming increasingly clear is that the world is bigger than just you and me. This edition we follow Martha Crnkovic and Melanie Nicol who investigate the plight of the most vulnerable people in our society – children – through the harrowing lenses of child sex trafficking, and child persecution. We hear from Stuart Davey who speaks of being “appalled” by the conditions in Nauru,

4

drawing upon his first hand experiences to discuss the broader issue of asylum seekers. Robert Guzowski, returning from a recent visit to China, sheds light on activism in China, and how the country may be reaching a “tipping point” for social and political change. And, of course, as you turn the pages you will be privy to other international issues worthy of discussion. We once again bring you “In 10 words or less”, where our readers talk about the leadership spill, with the vast majority commenting that Australia’s position on a world scale has been damaged by childish politics. A common theme you will come to notice throughout the articles, particularly after reading our debate segment on the effectiveness of the United Nations, is that the resources and manpower to combat issues on an international scale are not sufficient. Our world remains riddled with political turmoil and unrest, disadvantage and inequality of sexes and races, and victims of violence and corruption with nowhere to go. At the time of writing, there were 7,172,641,883 people in the world. Each person is experiencing something different: maybe they are struggling through a difficult assignment, celebrating a birthday, suffering from a terminal illness, or sheltering from political unrest. It is time to open your mind to the global world in which you live, because although Australia may be far away, we are not immune to international law and international issues.

Happy reading!

The Full Bench


UTS LSS WELCOME

From the LSS President Dear Students, Welcome to the third edition of The Full Bench (TFB) for 2013.

Thank you to our contributors for providing us with an insight into some of the international legal

The fabulous editors of TFB have

issues that face us today.

focus on international law and global

THANK YOU TO... THE EDITORS:

legal issues. Some of the topics that

sÂŹ

-ICHELLEÂŹ3MERDON

are discussed range from issues facing Australians accused of crimes

sÂŹ

,AURENÂŹ&ITZPATRICK

whilst travelling abroad, to activism in China, to the difficulties facing the

sÂŹ

&RANCESCAÂŹ%LIASÂŹ!RCIULIÂŹAND

sÂŹ

*OANNAÂŹ-OONEY

composed the third edition with the

international sphere in regards to the protection of women. I hope this edition provides you with an opportunity to enhance your understanding and awareness of the impact of international global issues, and the affect such issues can have on Australia. As we begin the semester, I wish you all the best with your studies and I hope you make the most of the opportunities presented by both the LSS and the Faculty of Law. As always, should you have any questions or queries about any aspect of the UTS Law Students’ Society (the ‘UTS LSS’), please do not hesitate to contact me via email at president@utslss.com. A big thank you to Michelle Smerdon, the Publications Director 2013 for the phenomenal publication produced. The extensive level of work and organisation that has been put into this journal is spectacular. Thank YOUÂŹTOÂŹ+ATEÂŹ4AYLOR ÂŹ6ICEÂŹ0RESIDENTÂŹ%DUCATION ÂŹFORÂŹHERÂŹSUPPORT ÂŹSUPERIORÂŹ

THE CONTRIBUTORS: Thank you all for providing an insight into the controversial legal issues that surround society.

OUR SPONSORS FOR THEIR CONTINUED SUPPORT AND COMMITMENT TO THE UTS LSS: sÂŹ

(ENRYÂŹ$AVISÂŹ9ORK

sÂŹ

#LAYTONÂŹ5TZ

sÂŹ

#ORRSÂŹ#HAMBERSÂŹ7ESTGARTHÂŹAND

sÂŹ

+INGÂŹÂŹ7OODÂŹ-ALLESONSÂŹÂŹ

+INDÂŹREGARDS +ATHERINEÂŹ!GAPITOS LSS President

organisational skills and guidance.

From the Vice President (Education) The facility with which people now travel or communicate internationally, the increasingly global pattern of regulation in many fields, and the acceptance of a wide range of issues as matters of international concern have made it inevitable that lawyers are increasingly interested in legal developments outside Australia and in developments that affect Australia as part of the international community. This edition of The Full Bench explores legal issues from around the globe and also the effectiveness of international law and organisations in addressing these challenges. As you read through the stimulating articles and opinion pieces, consider the role that international law can

f

play within the global landscape and the legitimacy of that law, as well as giving thought to the responsibility of our nation as a developed state. Good luck for Spring Semester and happy reading!

To stay up to date with The Full

Bench news, remember to like us on Facebook:

https://www.facebook.com/ utsthefullbench2012 and if you’re interested in contributing or want to give us some feedback, be sure to email publications@utslss.com.

+ATEÂŹ4AYLOR 6ICEÂŹ0RESIDENTÂŹ%DUCATION

The Full Bench

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EDITORS’ QUESTION

Editors’ Question SHOULD AUSTRALIA ENACT LAWS THAT REQUIRE MANDATORY COMPLIANCE WITH INTERNATIONAL CONVENTIONS AND TREATIES THE GOVERNMENT SIGNS UP TO? MICHELLE SAYS: -9¬ fellow editors, despite noting

My knee-jerk reaction:

some procedural and practical

Of course. People seeking

issues, seem to be overwhelmingly

asylum

in favour of this question. However,

greater protection and climate

what I feel has not been addressed

change would actually be taken

is the pressing issue of our very own

seriously. Neither issue would

cultural and social matrix.

be used as a political trump

The

6

KATE SAYS:

legislature

face

the

would

be

offered

card and Australia would be

overwhelming task of accommodating for our society in their

truly practicing what it preaches internationally.

role as lawmakers, and it is only through deciding how and

My subsequent cynical law-student reaction:

what to ratify that our society can be accommodated for.

1)

The Commonwealth Legislature is granted

There are currently 193 member states in the United

its power to make laws for the nation by virtue of the

Nations, each country consisting of a different political

Constitution. While I am unsure whether such laws as

structure, different social norms and a different legal system.

proposed could be justifiable under the external affairs

It would be naïve for us to think that every international treaty

power, mandatory compliance with conventions and

and convention is going to suit the Australian population, or

treaties that the Government signs up to surely blurs the

that every treaty is consistent with the ideals, morals and goals

separation of powers by giving the executive arm the

of Australia. The Australian legislature must have the power

power to import such instruments directly into domestic

to legislate on what it feels are the international laws that

law without passing through the scrutiny of those who are

compliment, rather than hinder our political structure, or social

elected to represent the population.

goals.

2)

In a practical sense, mandatory compliance is a

That being said, the Australian legislature has undoubtedly

difficult concept as conventions and treaties are almost

failed in respect of our human rights international obligations

always drafted in terms of ends and not means. Would the

in our wanton laws surrounding the detention of asylum

laws of mandatory compliance then need to prescribe that

seekers. While we must allow for flexibility in the legislating

the government must take steps to ensure that there are

of international law, in instances where human rights are

means in place that would reasonably be expected to meet

circumvented we must question those in control of our

that end? Who would the government be accountable to if

legislature.

they failed to do so?

LAUREN SAYS: Australia into rights

voluntarily

enters

international treaties,

human obliging

them to comply with their provisions, and to implement them

domestically.

And

while Australia often tries to scrape through with the bare

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EDITORS’ QUESTION

almost certain not to comply with Australia’s international law

minimum to comply, it is clear that this is not enough. In the International Covenant on Civil and Political Rights (ICCPR), ratified by Australia in 1980, Article 14(5)

obligations’, despite any loopholes that the government may think it has found.

requires Australia to ensure that ‘Everyone convicted of a

If Australia were to enact laws requiring mandatory

crime shall have the right to his conviction and sentence

compliance with the conventions or treaties that it has signed,

being reviewed by a higher tribunal according to law’.

an overhaul of the current refugee policies would be required.

In most jurisdictions around Australia, once the right to

I would rather the government consider the consequences

appeal has been exercised and a final decision made, there

before signing on the dotted line, than fail to uphold. If Australia

is no express power to entertain a second appeal, including

signs up to conventions and treaties, then mechanisms should

where relevant fresh evidence becomes available.

be put in place that would enable enforcement of their

Currently, discretionary power is given to the Attorney-

provisions. Is that too much to ask Canberra?

General to consider or dismiss a petition for review of conviction or sentence, “if he thinks fit”. As such, there is no legal right to any further hearing of the matter. I

JOANNA SAYS:

AGREE¬WITH¬THE¬(ON¬-ICHAEL¬+IRBY¬!#¬#-'¬WHEN¬HE¬SAYS ¬

I agree with Fran in the sense that it

“Where questions of human freedom are at stake, it is not

seems contradictory to agree to be

appropriate to repose final power in so few hands”.

bound by an international convention

An independent public body such as the Criminal

or treaty but not enact laws that are

#ASE¬ 2EVIEW¬ #OMMISSION¬ IN¬ THE¬ 5+ ¬ TO¬ REVIEW¬ POSSIBLE¬

in compliance with that convention

miscarriages of justice in the criminal courts, would be

or treaty. Worse still, and what

ideal. The integrity of Australia’s justice system, and its

commonly happens, is to act in a

guaranteed compliance with ICCPR, demands that a

manner that is contradictory to those

mechanism is available which allows manifest miscarriages

treaties or conventions, thereby undermining the legitimacy of

of justice to be considered by the courts. And laws must be

International Law altogether whilst highlighting the impotence

enacted to ensure this is the case.

of international bodies, such as the United Nations. However, a concern in relation to mandatory compliance is that consideration before signing on the dotted line has the

FRAN SAYS:

potential result in no signing at all. This is because Parliament the

would be obligated to pass laws enacting the treaties and

affirmative seems like the only

conventions that the Executive agrees to be bound by.

sensible response to this long

This could result in Government spin doctors using these as

overdue question. Perhaps a

political footballs, as we often see in the case of any significant

more telling question is, why

legislative change in Australia, such as the Carbon Tax, recent

has Australia NOT enacted

asylum seeker policies and the National Disability Scheme - all

such laws to date?

of which the opposition has threatened to repeal in any case.

An

answer

in

signed

Given the nature of Australian politics, perhaps an

and ratified the Universal Declaration of Human Rights,

agreement to be bound still presents something to work

with Article 14 stating that all have the right to seek

towards and is better than the alternative, being nothing at all!

Australia

has

and enjoy, in other nations, asylum from persecution. Australia’s mandatory detention of refugees contravenes this obligation. Ben Saui, Professor of International Law at Sydney University, has stated that ‘the new asylum seeker arrangement between Australia and…(PNG) is

The Full Bench

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OBITER

Obiter “Assessing whether or not someone is a genuine refugee is potentially a life or death decision. There’s absolutely no margin for error. The consequence of getting that wrong may be that you return a genuine refugee to face the very persecution from which they’ve fled. Now short-cutted processes, abolishing appeal rights, things like that... all they do is increase the risk of error.” - David Manne, Lawyer, on Australia’s asylum seeker policies

8

10.5 million refugees of concern to the UNHCR in 2012 - United Nations High Commissioner for Refugees

30,000 claims for asylum received by Australia in 2012 - Asylum Seeker Resource Centre

1 in every 6 children aged 5-7 are involved in child labour

“Human beings are not property. On the International Day for the Abolition of Slavery, let us reaffirm the inherent dignity of all men, women and children. And let us redouble our efforts so that the words of the Universal Declaration of Human Rights — ‘no one shall be held in slavery or servitude’ — ring true.” - Kofi Annan, former Secretary-General of the United Nations

worldwide - International Labour Organisation

Approximately 300,000 children under 18 are exploited in over 30 armed conflict worldwide as child soldiers. Some of these are as young as 7 or 8 years of age. - US Department of State 2005

“In the season of goodwill to all men, a new recipe for world peace has been found: Big Mac, large fries and a chocolate milkshake. New research in America has uncovered a previously unrecognised fact of diplomacy: no country with a McDonald’s has ever gone to war with another.” - James Langton, Sunday Telegraph 1996 – this theory was disproved in the Russian/Georgian conflict in 2008

500,000 the number of Tweets about the Australian leadership spill during the ballot - @TwitterAU press release

1.344 billion the population of China, the fastest growing country of our time - World Bank – United States Census Bureau

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IN 10 WORDS OR LESS

In 10 words or less

We asked our readers and contributors what they thought of the change of leadership in ten words or less – Has the spill undermined the legitimacy of Australian leadership internationally? Are Australian

THE LEADERSHIP SPILL: TRAGIC OR TERRIFIC?

politicians now seen as a group of backstabbers? Or, is it in fact a great political comeback?

BY JOANNA MOONEY A political playground: Rudd’s comeback At approximately 4:00pm on 26 June 2013, following months of endless speculation, former Prime Minister Julia Gillard called

Here’s what they had to say: “Petty and poorly timed. Wish Turnbull had come back!” – Jamesina McLeod

a ballot for the leadership and deputy leadership of the Australian Labor Party to be held at 7:00pm that evening. Ms Gillard confirmed that following the result of the ballot, which was no doubt designed

“Subterfuge à la Netflix’s House of Cards—only boring and lame.”– Aloysius Robinson

to put an end to Labor’s leadership woes once and for all, she would retire from politics if she lost. Would-be challengers were called

“Want to hear a good joke? Australian Politics.”

upon to pledge to do the same.

– Bianca Balzar

At approximately 6:00pm Mr Rudd, with a twinkle in his eye, announced that he would be a candidate for the position of leader of the Labor Party. He cited calls from the Australian people and

“A clear example of why political parties need primary elections.” – Ryan Diefenbach

members of the Cabinet, a desire to give Australians a real ‘choice’ going into an election year, and a desire to protect those who rely upon the ALP as reasons for his decision to run.

“It’s playground politics, children are running our country.” – Julia Smerdon

Mr Rudd won the ballot by 57 votes to 45 and was sworn in as Prime Minister amidst a large reshuffling of the Cabinet and much

“I am so embarrassed - Australian politics has lost all

speculation about what this ballot would do to the future of the

legitimacy.” – Hannah Rumble

Labor Party. This was the second time in 3 years that the Prime Minister had changed without the Australian public voting and news “Et tu, Brute?” – Kristen Troy

outlets around the world quickly dispersed the news. Reactions were DISSONANT ¬WITH¬.9¬4IMES¬REPORTING¬THAT¬2UDD¬HAD¬hPULLED¬OFF¬ONE¬OF¬ the most sensational political comebacks in Australian history,” while the Liberal party declared the Labor party to be “dysfunctional”.

Did you enjoy this segment and want to

“The change definitely undermined my faith in Australian politicians generally.” – Harriet Skinner

“Clearly, the parliament is no longer controlled by the people.” – Amy Simpson

contribute to our next ‘In 10 words or less’? Email publications@utslss.com for

“At least we have an ELECTED government.”

our next conversation topic.

– Emma Bechara

The Full Bench

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(IN)CREDIBLE CHILDREN

(In)credible children THE DIFFICULTY FACING CHILDREN SEEKING ASYLUM THE HIGH NUMBER OF CHILDREN CURRENTLY

“States that have signed the Refugee Convention

SEEKING ASYLUM HAS DRAWN ATTENTION TO

and Protocol are constrained in the procedures

THE INADEQUATE PROCESSES IN PLACE FOR THE

they adopt for refugee status determination by the

PROTECTION OF THE SOME OF THE WORLD’S MOST VULNERABLE PEOPLE. MELANIE NICOL EXPLORES THE PLIGHT OF THESE CHILDREN.

general international obligation to perform their treaty obligation in good faith. The instruments themselves, however, are silent about what such procedures should entail,�4 they said. PNG’s legal framework for processing refugees is

T

12

he world is at risk of losing a generation. In 2012, there were 15.4

quite basic because, with exception of its arrangements

million refugees and 452 million forcibly displaced people worldwide,

with Australia, PNG does not experience large influxes

46% of whom are children. There were 21,300 unaccompanied children

of refugees. The 1978 Migration Act (PNG)5 simply

seeking asylum through the UNHCR in 2012, the highest of any year on

states, “the Minister may determine a non-citizen to be

record. With such a large number of children seeking asylum, it is vital that

a refugee for the purpose of this Act�.6 As a result of the

there are processes in place for providing protection to these children

few claims received by PNG, there are few government

as soon as is practicable. However, the 1951 Convention Relating to the

employees who have the necessary skills to administer

Status of Refugees and its 1967 Protocol2 (“the Refugee Convention�)

the Refugee Convention7 and there are cases of

are silent as to what processes should be put in place for determining

considerable discrepancies between the outcomes

an asylum claim, yet alone those claims for children. As a result, across

of refugee status determinations undertaken by the

the globe “the definition of a refugee contained in Article 1A (2) has

UNHCR and PNG officials.8 At the time of writing, PNG

traditionally been interpreted in light of adult experiences�3 in local legal

was working with Australian officials to create a new

frameworks and children’s rights remain in limbo.

legal framework.9 The fact that Australia is so involved

1

Child asylum claims can be inconsistent and contain considerable gaps, posing difficulties for governments in assessing their applications.

in this process suggests that PNG may well implement a system that is similar to Australia.

There has been concern that children are slipping through the gaps, even

Prior to 13 August 2012, when the No Advantage10

in developed countries like Australia with complex legal processes and

principle was introduced, the key steps in Australia’s

frameworks for asylum claims. This becomes particularly concerning in light

Protection Obligation Evaluation Process were:11

of the recently announced ‘Regional resettlement arrangement’ between

ÂŹ

@3CREENINGÂŹ)NÂŹINTERVIEWÂŹ

Australia and Papua New Guinea, because of how underdeveloped

2.

Interview with the child by an Immigration

the Refugee Status Determination procedure is in Papua New Guinea

Advice and Application Assistance Scheme (IAAAS)

(‘PNG’). Placing aside the considerable moral, economic, health and

OFlCERÂŹTOÂŹAPPLYÂŹFORÂŹAÂŹPROTECTIONÂŹVISA

safety arguments against PNG as a country of resettlement for refugees,

3.

the very first issue is, can PNG actually process children’s claims?

(DIAC) case officer determines the credibility of

Article 1A (2) of the Refugee Convention defines a refugee as “a

Department of Immigration And Citizenship

the child’s claim based on subjective and objective

person who, owing to a well founded fear or being persecuted for reasons

ELEMENTSÂŹ4HEÂŹCHILDÂŹISÂŹNOTIlEDÂŹOFÂŹTHEÂŹDECISION

of race, religion, nationality, membership of a particular social group or

4.

political opinion is outside his country of nationality and is unable, or

THEÂŹ2EFUGEEÂŹ2EVIEWÂŹ4RIBUNALÂŹONÂŹREQUESTÂŹAND

owing to such a fear unwilling, to avail himself of the protection of that

5.

country�. Mary Crock and Laurie Berg highlight the difficulties arising for

unsuccessful in merits review).12

countries attempting to process asylum seekers in accordance with the Convention.

The Full Bench

Merits review of the decision reviewed by

Judicial review (accessible if the applicant is


(IN)CREDIBLE CHILDREN Throughout these steps, the applicant has the onus of illustrating

state of fear and that the fear have a rational basis as well.

that they are a person who is genuinely being persecuted as defined

This test was endorsed in MIEA v Wu Shan Liang.23 There are

under s. 91R of the Migration Act 1958 (Cth)13 for a convention

two issues for children facing persecution, firstly children who

14

and that

seek asylum are often experiencing trauma and can feel too

their story is truthful and credible. For children, this can be a very

intimidated to tell their story of persecution.24 The second issue

difficult task.

is that children may have limited knowledge about the political

ground under Article 1A(2) of the Refugee Convention

The first preliminary issue is that children are held to the same

situation or cause of the danger they are in and thus may be

legal standard of persecution as adults. Under s. 91R(1) of the

unable to explain the reasons for their persecution. The latter

Migration Act 1958 (Cth)

15

the persecution must involve systematic

has been recognized by UNHCR as a problem for countries

16

assessing child claims.25 One solution put forward is to presume

Serious harm is defined in s. 91R(2)17 to include a denial of access

the subjective test has been satisfied and to only consider

to basic services where the denial threatens the person’s capacity

objective factual information about the applicant’s country of

discriminatory conduct that causes serious harm to the person.

18

On the surface this appears to protect children whose

origin. However, to remove the subjective limb in its entirety

basic rights and protection needs are not met in their own country.

may mean that children’s experiences might be discounted if

However, there is a reluctance by the Refugee Review Tribunal to

they are not so recorded on the Country of Information Profiles.

recognise that a state is complicit or does not wish to act on child

The Tongue Review26 wrote extensively on the issue of relying

rights’ abuse, resulting in refugees not meeting the definition in

solely on the subjective or objective aspect of the decision,

Article 1A(2) of the Convention because they are capable of seeking

noting that 46% of appeals to the IPOA (which heard reviews

to subsist.

assistance in their own country.

19

in the Migration Act 1958 (Cth)

Furthermore, there is no flexibility 20

as to what constitutes serious

prior to the changes in legislation in late 2011 giving jurisdiction to the RRT) concerned incorrect country information.27

harm, rather the standard given in s. 91R(2) applies to all asylum

If a child does present subjective evidence that does

seekers. This is problematic for children because certain acts or

manage to meet the test of persecution, then the decision

threats that do not constitute persecution to an adult may well do so

maker must accept that the story is credible, or truthful. The

for a child “because of the mere fact that s/he is a child. Immaturity,

UNHCR fully acknowledges that “children cannot be expected

vulnerability, undeveloped coping mechanisms and dependency as

to provide adult like accounts of their experiences.... what

well as the differing stages of development and hindered capacities

might constitute a lie in the case of an adult may not necessarily

21

may be directly related to how a child experiences or fears harm.�

be a lie in the case of a child...�28 This has been accepted

This cannot be considered by the decision maker.

somewhat by Australian jurisprudence. The Refugee Review

A challenge that exists under both the Australian legal

Tribunal has issued materials aimed at guiding how to handle

framework and the Refugee Convention is that children may not be

testimony from vulnerable persons,29 which include guidance

capable of proving a subjective fear. In Chan Yee Kin v MIEA22 the

on how to treat children’s credibility.30 However, Guideline 9

High Court held that there was a general consensus that the phrase

states that the guidelines are not meant to replace legislation

“well - founded fear� in Article 1A(2) of the Refugee Convention

or bind the decision maker31 and under the legislation there

implies a bi-fold requirement that the refugee be in a subjective

are a number of factors that a decision maker can take into

“Immaturity, vulnerability, undeveloped coping mechanisms and dependency‌ may be directly related to how a child experiences or fears harm.â€?

account when determining whether an applicant is credible or not, including the applicant’s demeanor.32 Using demeanor as a method of scrutinizing credibility has obvious flaws, as “culture, gender, class, education, trauma, nervousness and simple variation among humans can all affect how people express themselvesâ€?.33 4OÂŹHELPÂŹENSUREÂŹCREDIBILITY ÂŹUNDERÂŹSÂŹ6 ÂŹOFÂŹTHEÂŹMigration Act 1958 (Cth)34 the applicant may be required to swear an oath as to the truthfulness of their claim. These oaths are recorded so that if children present different information,

The Full Bench

13


“the Minister may draw any reasonable inference unfavorable to 35

a child’s testimony using demeanor and memory, it

This effectively denies children the

would address the issue of discretion of behalf of the

opportunity to bring forward information which, because they are

decision maker to implement guidelines and it takes

experiencing deep trauma, have forgotten or perhaps did not feel

the burden of proof off traumatised children who

safe to tell. An example of this is found in 1215577 [2013] RRTA

have limited capacity to prove they are being truthful

the applicant’s credibility.�

36

where an unaccompanied minor from Sri

and places it, rightfully so, on the adults to illustrate

Lanka was deemed to not be a credible witness as he was not

otherwise. However, it is not clear if the UNHCR is

consistent in his evidence regarding when his father was in hiding

involved in the current discussions, and the UNHCR’s

from the Sri Lankan authorities and when he was not. However,

previous recommendations to PNG have been

there are cases where children have been given concession on their

rejected by PNG as being too complex.42

77 (11 January 2013)

capacity to adequately explain their story due to their youth. For example, in 1211431 [2012] RRTA 975

37

The onus which is placed on the applicant in

the credibility of the child,

demonstrating actual persecution and the emphasis

an unaccompanied minor, was not harmed by the embellishment

on credibility at all stages of the Protection Obligation

of their story, rather the tribunal referred to the “Guidance on

Evaluation process cause great difficulty for asylum

38

6ULNERABLEÂŹ0ERSONSv and held that children and young people may

seeking children, especially those who are seeking

not fully comprehend the context or implications of the review.39

asylum alone. There are considerable discrepancies

4HEÂŹ GUIDELINESÂŹ SEEMÂŹ TOÂŹ BEÂŹ INÂŹ CONmICTÂŹ WITHÂŹ SÂŹ 6 ÂŹ ANDÂŹ WITHOUTÂŹ between the system advocated by the UNHCR in

14

legislative backing, children are left vulnerable to the discretion of

processing child claims, which fully incorporates

the decision maker as to whether or not they implement them.

child

rights,

and

the

Protection

Obligation

There are proposed amendments to the RSD process to help

Evaluation process in Australia. The system is also

ease the problems posed by child asylum claims and PNG now

incredibly frightening to children, which may mean

has an opportunity to develop its program in light of the wealth of

that may not speak about their experiences at all,

knowledge from the UNHCR and Australia on the issue. The UNHCR

completely preventing the decision maker from

advocates that countries should adopt the concept of “benefit of

making a determination which takes into account

the doubt�40 when examining credibility as a pillar of assessing the

their individual experiences. The recent Papua

claim and recommends a shift of the burden of proof. Writing in

New Guinea Regional Resettlement Agreement

the US context, Crystal Estrada also advocates for the adoption of

poses many difficulties, just one of which is the

a presumption of credibility in favour of the child that could then

urgent need for a more detailed legal framework for

be rebutted by the State. The presumption could be rebutted by

processing asylum claims. PNG should learn from the

firstly highlighting “proof of adverse credibility such as a child’s

experiences of asylum seeking children in Australia

inconsistent statements�.

41

Then the government would have to

prove that this inconsistency was not the result of child specific

and work with the UNHCR to create a system that better supports children.

statements such as the trauma they are experiencing. Presuming credibility would do away with the issues such as how to evaluate 1.

2.

3.

4. 5. 6. 7.

United Nations High Commissioner for Refugees, â&#x20AC;&#x2DC;Displacement, the new 21st century challenge: Global Trendsâ&#x20AC;&#x2122;, UNHCR, (online), 19 June 2013 http://unhcr. org/globaltrendsjune2013/UNHCR%20 GLOBAL%20TRENDS%202012_V08_web. pdf, 4. Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954). United Nations High Commissioner for Refugees, Guidelines on International Protection: Child Asylum Claims under Articles 1(A)2 and 1(F) of the 1951 Convention and/or 1967 protocol relating to the status of refugees, (22 December 2009) UNHCR,, 3[1] <http://www.unhcr. org/refworld/docid/4b2f4f6d2.html>. Mary Crock and Laurie Berg, Immigration Refugees and Forced Migration (Federation Press, 2011) [12.58]. Migration Act 1978 (Papua New Guinea). Ibid s15A. United Nations High Commissioner for

8.

9.

10.

11.

12.

Refugees, above n. 2. See for example the April 2007 Vanimo UNHCR interventions concerning Burmese asylum seekers in Savitri Taylor, â&#x20AC;&#x2DC;The Impact of Australian â&#x20AC;&#x201C; PNG border management co-operation on refugee protectionâ&#x20AC;&#x2122;, (2010) 8(1) Local - Global 76, [81]. Hon. Rimbink Pato MP, â&#x20AC;&#x153;Refugee processing to commence at the Manus Regional processing Centre, (Media Release, 10 July 2013,) <www.immigration.gov.pg>. Join Select Committee on Australiaâ&#x20AC;&#x2122;s Immigration Detention Network, Commonwealth, Senate Inquiry into Australiaâ&#x20AC;&#x2122;s detention Network, (2012). The Australian Federal Government (14 August 2012), Report of the Expert Panel on Asylum Seekers (The Houston Report), The Australian Government, <http:// expertpanelonasylumseekers.dpmc.gov. au/report>. Department of Immigration and Citizenship, Refugee Status Determination Process (2011) Dpartment of Immigration

The Full Bench

13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24.

and Citizenship, <http://www.minister. immi.gov.au/media/media-releases/_ pdf/gov-response-to-hca-decision.pdf>. Migration Act 1958 (Cth) s 91R. Required by s 36(2)(a) of the Migration Act 1958 (Cth). Migration Act 1958, s 91R. Migration Act 1958 (Cth) s 91ÂŽ(1). United Nations High Commissioner for Refugees, above n. 3 [9.1]. Migration Act 1958 (Cth) s91R(2)(e). See for example 1211848 [2012] RRTA 933 (16 October 2012). Migration Act 1958 (Cth). United Nations High Commissioner for Refugees, above n. 3 [9.1]. (1989) 169 CLR 379. (1996) 185 CLR 259. This is well documented. See Mary Crock, Seeking Asylum Alone: A study of Australian Law, Policy and Practice regarding unaccompanied and separated children (Themis Press, 2006) and Australian Human Rights Commission, A last resort? (2004) Australian Human Rights Commit-


25. 26.

27. 28. 29.

tee <http://www.humanrights.gov.au/ national-inquiry-children-immigration-detention>. United Nations High Commissioner for Refugees, above n. 3 [27.7]. Sue Tongue, Review of refugee decision making within the current POE process, (29 June 2012) Department of Immigration and Citizenship, http://www.immi. gov.au/media/publications/research/_ pdf/review-refugee-decision-making. pdf>. Ibid [16.5]. United Nations High Commissioner for Refugees, above n. 3 [26 – 27]. Australian Government, (June 2012) Guidance on Vulnerable Persons, Refugee Review Tribunal, <http://www.mrt-rrt. gov.au/Files/HTML/P-C-GU-GuidanceVul-

30. 31. 32. 33.

34. 35. 36. 37. 38. 39.

nerablePersons.html#_Toc327956304>. Ibid Cl. 47. Australian Government, above n. 29, Cl. 9. Migration Act 1958 (Cth) s 91V(3)(c)(ii). Audrey Mackline,‘Truth or Consequences: Credibility Determinations in the Refugee Context’ (presentation to International Association of Refugee Judges: Ottawa, Canada, 14 - 16 October 1998), 3. Migration Act 1958 (Cth) s 91V(1). Ibid. 1215577 [2013] RRTA 77 (11 January 2013). 1211431 [2012] RRTA 975 (19 October 2012). Above n. 29. 1211431 [2012] RRTA 975 (19 October

40. 41.

42.

2012), 106. United Nations High Commissioner for Refugees, above n. 3 [27]. Crystal Estrada, 2009, Misperceived Child testimony: Why credibility should be presumed for unaccompanied and separated children seeking asylum, 31 Thomas Jefferson Law Review 121, 154. Human Rights Liaison Unit, Submission by the United Nations High Commissioner for Refugees for the Office of the High Commissioner for Human Right’s Compilation Report – Universal Periodic Review: Papua New Guinea, (November 2010) RefWorld, <http://www.refworld. org/docid/4ccfe3cf2.html>.

Keeping a global eye on women’s rights WHY OBSERVING INTERNATIONAL PROTECTION OF WOMEN’S RIGHTS IS A WIN-WIN FOR DEVELOPING NATIONS While International law attempts to provide for the equality of women, it appears that a vast number of women remain at a significant disadvantage across the globe. JOHANNA DEUTSCH explores how countries continue to flout their international obligations and talks about how equality will benefit more than just women.

I

n 1979, the United Nations General Assembly adopted

surprised. 2013 data on the likelihood of a women becoming

what remains the most comprehensive and detailed

victim to domestic violence (1 in 2 in Peru),4 the percentage

international agreement for the eradication of gender-

difference between earnings of a man and his female

based discrimination in both the public and private spheres

COUNTERPART¬ ¬ IN¬ 3OUTH¬ +OREA 5 and the number of girl

of women’s lives. Today, the Convention on the Elimination

children set to be married in the next 12 months (14.2 million

1

of All Forms of Discrimination Against Women (“CEWAD”)

globally)6 is evidence that gender inequality is universally rife.

has been ratified by 187 countries, with 80 acceding to

The paradox between the world’s ostensible support for

the jurisdiction of the Committee on the Elimination of

CEDAW and the world’s apparent dispassion for those whom

All Forms of Discrimination Against Women, the body

the Convention aims to protect, calls to question why State

2

entrusted with enforcing CEDAW’s 30 Articles. In light of the fact that 187 nation states have committed to the 3

parties are not more invested in female advancement. More importantly, it necessitates the brainstorming of

condemnation of female discrimination “in all forms” and

strategies that would assist in rectifying apparent apathy. In this

have pledged their efforts towards achieving this goal, we

article, I present one such strategy. I venture that State parties,

should be surprised and appalled that women continue to

particularly less developed nations, may be incentivised to

face pervasive and systemic disadvantage across the globe.

commit to CEDAW if they are reminded of the economic

Of course, while we may be appalled, we are not

rewards for doing so.

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15


+%%0).'ÂŹ!ÂŹ',/"!,ÂŹ%9%ÂŹ/.ÂŹ7/-%.3ÂŹ2)'(43 Female advancement and economic

productivity. Nations should begin by ending activities that inhibit female

benefits

self-determination so that a greater number of women can be educated.

Empirical evidence supports the existence of

a

positive

correlation

between

gender

(Not) coincidentally, State parties are in fact already bound to complete these tasks in accordance with their commitments under the CEDAW.

equality and economic growth.7 The connection is often attributed to progress made through

Removing practices that inhibit female self determination

two independent pathways. The first is through

In areas where it is practiced, child marriage is perhaps the saddest, and

improving the efficiency of a countryâ&#x20AC;&#x2122;s labour

most destructive, impediment to female advancement. Most prevalent in

markets by including women and thus maximising

South Asia and sub-Saharan Africa, the occurrence of a girl being married

its use of human resources. It is simple logic that an

BEFOREÂŹTURNINGÂŹÂŹISÂŹRIFEÂŹ.IGER ÂŹÂŹ.EPAL ÂŹÂŹ"ANGLADESH ÂŹ 9 and

economy lacking the ability and talents of one half

begets socioeconomic problems that are equally far reaching.

of its population will suffer proportionate limitations

Girls younger than 15 are five times more likely to die during childbirth

on its productivity. The second is through bettering

than women in their 20s, making premature pregnancy the leading cause

the socioeconomic prospects of children - the

of death in the world for girls aged 15-19.10 CEDAW attempts to quash

future generation of workers, parents and citizens

this practice by commanding State parties to â&#x20AC;&#x153;take all necessary actionâ&#x20AC;?

- by enhancing the cognitive capacity of women in

to prevent the â&#x20AC;&#x153;betrothal and the marriage of a childâ&#x20AC;? and proclaims any

8

their role as primary caregivers.

16

such unions to have â&#x20AC;&#x153;no legal effectâ&#x20AC;?.11 158 compliant countries report

The desired outcome for nations is reaching

that 18 years is the minimum legal age for marriage for women without

THEÂŹ POINTÂŹ ATÂŹ WHICHÂŹ BOTHÂŹ PATHWAYSÂŹ CONVERGEÂŹ ITÂŹ ISÂŹ

parental consent,12 yet staggering figures of child marriages across

here that studies show significant growth in GDP

the globe (24.4 million in South Asia in 2010 alone)13 suggest a certain

per capita and improvements in spheres related

disconnect between State partiesâ&#x20AC;&#x2122; official policy and their endorsement

to human wellbeing such as a decline in maternal

of local attitudes. Would State parties place greater emphasis on putting

mortality and transmissible disease.

a stop to child marriage if girlsâ&#x20AC;&#x2122; lost opportunity, wasted talent and

Reaching this point requires nations to take

unnecessary death could be readily translated into squandered economic

positive steps forward in areas that are likely

potential? It is an unsentimental viewpoint, for sure. But perhaps it is an

to have a follow-on effect for socioeconomic

effective one.

â&#x20AC;&#x2DC;UNTITLEDâ&#x20AC;&#x2122;, CREDIT - ALICE KESBY

The Full Bench


+%%0).'ÂŹ!ÂŹ',/"!,ÂŹ%9%ÂŹ/.ÂŹ7/-%.3ÂŹ2)'(43

the mere promise of future financial benefits. Considering

Promoting access to female education Education is widely considered to be a nationâ&#x20AC;&#x2122;s

the effectiveness of international law relies on domestic

gateway toward social security because it yields higher

enforcement, this cultural tension presents a significant

levels of individual income, which translates in growth in

hurdle to achieving universal female advancement through

14

GDP per capita.

Conversely, studies show that where

CEDAW.

there exists high gender gaps in education, nations suffer

When coming from a Western perspective of gender

from high fertility, low productivity and stunted economic

relations, commentary on the practices of developing nations

growth.15

should be made with care and cultural sensitivity. However,

Article 10 of CEDAW heeds these issues by

this does not mean that State parties in contravention of

demanding that State parties implement programmes

their commitments under international law, to protect and

â&#x20AC;&#x153;in order to ensure [women have] equal rights with men in

promote the rights of their female citizens, should escape

the field of educationâ&#x20AC;? and to provide â&#x20AC;&#x153;[equal] conditions

criticism. It also does not mean that State parties should not be reminded of the potential benefits of ending gender

16

for career and vocational guidanceâ&#x20AC;?.

Article 10 is intrinsically important for the 98% of

based discrimination. The fact remains that with each

married 15-19 year old girls in Nigeria who are forbidden

disempowered woman, we deny ourselves the opportunity to

to attend school,17 as well as the 12 million girls in sub-

build stronger societies. And while cultural barriers to female

Saharan Africa who have not received even entry levels of

advancement are intrinsically inhumane, the bottom line is

primary education.18

they also deny entire nations the chance to achieve greater

Article 10 may also be a useful instrument for State parties to implement as a means of promoting human development. The United Nations Population Fund

prosperity and brighter futures. 1. 2.

records that providing girls with just one extra year of primary school education can increase future wages by 10 to 20%, and an extra year of secondary school increases future wages by 15 to 25%.19 Because women are likely to reinvest 90% of the earnings back into their family,20 educating women is likely to alleviate some of the Governmentâ&#x20AC;&#x2122;s financial duty of care to citizens and reduce

3. 4. 5. 6. 7. 8.

rates of poverty generally. This model works in agricultural spheres as well whereby better-educated women use SMARTERÂŹ FARMINGÂŹ PRACTICESÂŹ )NÂŹ +ENYA ÂŹ CROPÂŹ YIELDSÂŹ AREÂŹ expected to rise by as much as 22% if women farmers receive the same education as their male counterparts.21 This would drastically improve the countryâ&#x20AC;&#x2122;s food supply and almost certainly enhance its export industry. Until now this article has sidestepped what is undoubtedly the greatest challenge to the success of an â&#x20AC;&#x2DC;economic rewardsâ&#x20AC;&#x2122; strategy encouraging State partiesâ&#x20AC;&#x2122; commitment to CEDAW. That is, existing entrenched religious and cultural attitudes in some countries that

9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21.

Convention on the Elimination of All Forms of Discrimination Against Women, opened for signature 1 March 1980, 1249 UNTS 13 (entered into force 3 September 1981) (â&#x20AC;&#x2DC;CEDAWâ&#x20AC;&#x2122;). Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women, opened for signature 10 December 1999, 2131 UNTS 83 (entered into force 22 December 2000). Non-ratifiers include Iran, Sudan, South Sudan, Somalia, Palau, Tonga and the United States. CEDAW, art 1. World Bank, â&#x20AC;&#x2DC;World Development Report 2012: Gender Equality and Developmentâ&#x20AC;&#x2122; (Report, World Bank, 2011) 20. Ibid 16. Ibid 169. David Cuberes and Marc Teignier BaquĂŠ, â&#x20AC;&#x2DC;Gender Equality and Economic Growthâ&#x20AC;&#x2122; (Background Report, World Bank, 2011). Naila Kabeer and Luisa Natali, â&#x20AC;&#x2DC;Gender Equality and Economic Growth: Is there a Win-Win?â&#x20AC;&#x2122; (Working Paper No 417, Institute of Development Studies, February 2013). United Nations Population Fund, â&#x20AC;&#x2DC;Marrying Too Young: End Child Marriageâ&#x20AC;&#x2122; (Report, UNFPA, 2012) 23. Ibid 4. CEDAW, art 16. UNFPA report, above n 9, 12. Ibid 30. Oriana Bandiera and Ashwini Natraj, â&#x20AC;&#x2DC;Does Gender Inequality Hinder Development and Economic Growth?â&#x20AC;&#x2122;(Policy Research Working Paper No 6369, World Bank, February 2013). Ibid. CEDAW, art 10. UNFPA report, above n 9, 73. Eliza Johannes, â&#x20AC;&#x2DC;Womenâ&#x20AC;&#x2122;s education in Sub-Saharan Africa: Obstacles facing women and girls access to education: The case of Kenyaâ&#x20AC;&#x2122; (2010) 1(2) Kenya Studies Review 57. UNFPA report, above n 9, 34. World Bank Report, above n 4, 78. United Nations Development Fund for Women, Stand Up to Overcome Poverty (2013) < http://www.womenfightpoverty. org/solution.php>.

subjugate women and strengthen patriarchy. In these nations, where social practices fundamentally dissent from the â&#x20AC;&#x2DC;benchmarksâ&#x20AC;&#x2122; of womenâ&#x20AC;&#x2122;s rights set by CEDAW, it seems unlikely that the people or local officials will be eager to abandon traditional practices in exchange for

The Full Bench

17


Same same, but...

THINKING DIFFERENT Yes, we realise that the heading is not grammatically correct, that dogs don’t wear glasses and that this has nothing to do with being a great law firm. But sometimes it’s ok to be a little bold, to be creative, to have fun – and to do things a little differently. As a lawyer with us, you’ll see this everyday. Whether delivering energy deals or raising billions in funds – you’ll be creating commercial solutions (not legal obstacles), communicating in simple English (not legalese) and offering the world’s first Sino-Australian expertise (not old world capability). You’ll be building skills and relationships in the world’s growth markets. “Thinking different” is why clients love us, why we’re at the centre of the action and why you should come to work for us. Get social with a firm that’s different – facebook.com/ KingWoodMallesons


!ÂŹ2%,/#!4)/.ÂŹ/&ÂŹ"/5.$!2)%3ÂŹ&!-),9ÂŹ,!7

A relocation of boundaries IT HAS BECOME A FEATURE OF MODERN SOCIETY FOR EMPLOYMENT OR A LIFESTYLE CHANGE. BUT

Divergences

between

common

law

jurisdictions There exists no shared judicial approach to the

WHAT HAPPENS WHEN A SEPARATED OR DIVORCED

resolution of international relocation cases, even

PARENT WISHES TO UPROOT THEIR LIFESTYLE FOR

across common law jurisdictions. The prevailing weight

A CHANGE OF SCENERY? KRISTEN TROY EXPLORES

of authority in Australia, Canada, and New Zealand

THE DEMANDING PROCESS OF OBTAINING THE COURTâ&#x20AC;&#x2122;S PERMISSION TO DO SO.

A RELOCATION OF BOUNDARIES (JIM NIX, 2010)

THAT PEOPLE INCREASINGLY RELOCATE OVERSEAS

advocates balancing factors that directly impinge upon or impact the welfare of children, and largely discards the effect of a refusal for a relocation proposal on the childâ&#x20AC;&#x2122;s primary carer. However, in England this constitutes an

I

nternational relocation cases in Australian family law not only

essential and weighty factual consideration.

represent a judicial area replete with pervasive controversy and

Consequently, the state of Australian law can be

difficulty, but also an increasingly important consideration in the

distinctly contrasted with the legislation and case law

midst of contemporary societyâ&#x20AC;&#x2122;s high separation and divorce

prevailing in England. There is no basis in Australia for

1

2

rates, rapid globalisation, and enhanced mobility. The problem of

claiming that parents maintain a general right to freedom

relocation incites within judicial officers and legal practitioners alike

of movement as Australia does not have any relevant

an uncomfortable sense of disquietude, born from the inextricable

domestic

complexity of competing and multiple interests. Relocation cases have

Australian legal practitioners are not obliged to consider

subsequently been routinely recognised as â&#x20AC;&#x153;the hardest cases that the

the importance of balancing the protected rights of

court does, unquestionably,â&#x20AC;?3 and are seen to â&#x20AC;&#x153;pose a dilemma rather

both children and adults in the way that their English

THANÂŹAÂŹPROBLEMÂŹAÂŹPROBLEMÂŹCANÂŹBEÂŹSOLVEDÂŹAÂŹDILEMMAÂŹISÂŹINSOLUBLEv4

counterparts must.9 However, in both England and

human

rights

legislation.

Subsequently,

Australia the childâ&#x20AC;&#x2122;s best interests remain the paramount

International relocation from Australia

consideration in relocation cases, despite the minute

The â&#x20AC;&#x153;essential tensionâ&#x20AC;? characterising relocation cases is

resemblance that the leading English international

determining the importance of the childâ&#x20AC;&#x2122;s right to maintain a meaningful

relocation decision, Payne,10 bears to the Australian

relationship with their non-resident parent post separation or divorce, and the childâ&#x20AC;&#x2122;s interest in ordinarily residing with a happy primary carer, who does not feel â&#x20AC;&#x153;imprisonedâ&#x20AC;? by court-ordered restrictions on their freedom of movement.5 This tension must be considered in light of the 2006 parliamentary amendments to the Family Law Act6 which function to promote a greater frequency of shared parenting arrangements, and to emphasise the significance of the childâ&#x20AC;&#x2122;s right to be able to maintain a relationship with both parents, in the absence of violence or abuse.7 Academics widely acknowledge that the operation of these amendments generally render it more difficult to justify a relocation than before the Family Law Amendment (Shared Parental Responsibility) Act8 came into effect.

â&#x20AC;&#x153;The problem of relocation incites an uncomfortable sense of disquietude, born from the inextricable complexity of competing and multiple interests.â&#x20AC;?

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19


!¬2%,/#!4)/.¬/&¬"/5.$!2)%3¬&!-),9¬,!7

“Undue restrictions on relocation applications maintain the potential to adversely impact the frequency of overseas parental child abductions.” acceptance of that test as reasonable.22 Resultantly, common principles should be available nationally and internationally for the determination of a relocation case introduced by a primary carer who has elected to seek judicial consent for their movement. The initial implementation of an international nonA RELOCATION OF BOUNDARIES (LASSE CHRISTENSEN, 2009)

binding instrument that outlines the appropriate approach to be employed within these cases could be an important step in the direction of harmonising child relocation law.23

relocation approach.11 In Payne,12 the case provided very significant

While relocation issues are often complicated to adjudicate,

weight to the primary carer’s interests, enabling their emotional and

they are a commonly litigated matter.24 The global prevalence

psychological wellbeing to be taken into consideration.13

of this state of affairs underlies the importance of moving

As a result of this operating presumption acting in favour of relocation, in which the child’s primary carer is given leave to relocate unless very good reasons to the contrary exist, international relocation applications are markedly more successful in England. However, the Payne14 decision domestically has attracted much

towards legislation uniformity in international family law. 1. 2. 3.

criticism for its insufficient regard to the effect of relocation upon

20

children, and children’s relationships with their non-resident parent.15 The Payne16 approach is described to be “parent centred rather than child centred,”17 and, as a generality, its validity and

4. 5. 6. 7.

logic are open to question.18 Despite this, the Australian relocation law experience may serve to grant critics an interesting insight into the implications of reversing the Payne19 approach in England. 8.

An internationalised approach to relocation cases The cultural diversity of interpersonal family relations between international communities can render the prospect of systematising child relocation laws a formidable task. However, the importance of such reform is arguably reflected in the recognised notion that undue restrictions on relocation applications maintain the potential

9. 10. 11. 12. 13. 14. 15.

to adversely impact the frequency of overseas parental child abductions.20 Such lawless movement is the antithesis of judicially sanctioned migration following a successful relocation application. While the international family law regime enacted by the 1980 Hague

16. 17. 18. 19. 20.

Convention acts as a common standard to deter child abduction, no such recognised standard operates in relation to lawfully sought relocation.21 From the unsettled parent’s perspective, making an informed choice between legitimate relocation or unauthorised abduction, in part, depends upon their knowledge of which judicial test will affect their application for permission to relocate, and their

21. 22. 23. 24.

Patricia Easteal and Kate Harkins, ‘Are we there yet? An analysis of relocation judgements in light of changes to the Family Law Act’ (2008) 22 Australian Journal of Family Law 259. Patrick Parkinson, ‘Freedom of movement in an era of shared parenting: The differences in judicial approaches to relocation’ (2008) 36 Federal Law Review 145, 145. House of Representatives Standing Committee on Legal and Constitutional Affairs, Report on the exposure draft of the Family Law Amendment (Shared Parental Responsibility) Bill 2005 (August 2005), 22. Ibid. Garry Watts ‘Can we go or must we stay? Being able to relocate with the children’ (2002) 40 (10) Law Society Journal 66, 66. Family Law Act 1975 (Cth). Article 9 (1) of the United Nations Convention on the Rights of the Child (1989) states that signatory parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review, determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Also see articles 9 (3) and 10 (2). Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth). Lisa Young, ‘Resolving relocation disputes: The “interventionist” approach in Australia’ (2011) 23 (2) Child and Family Law Quarterly 203, 207. Payne v Payne [2001] 1 FLR 1052. Lisa Young, ‘Resolving relocation disputes: The “interventionist” approach in Australia’ (2011) 23 (2) Child and Family Law Quarterly 203, 207. Payne v Payne [2001] 1 FLR 1052. Ibid [85]-[86]. Payne v Payne [2001] 1 FLR 1052. Brendan Roche, ‘International relocation: Case for a Payne-less future?’ (2010) 91 Family Law; Lisa Young, ‘Resolving relocation disputes: The “interventionist” approach in Australia’ (2011) 23 (2) Child and Family Law Quarterly 203, 207. Payne v Payne [2001] 1 FLR 1052. Hemer v Eden [2001] NZFLR 913 [46]. Gray v McGill [2001] NZFLR 782 [6]. Payne v Payne [2001] 1 FLR 1052. The RT Hon Lord Justice Thorpe, ‘Relocation – The search for common principles’ (speech delivered at the Inaugural Conference, London Metropolitan University, 30th June 2010). <http://www. judiciary.gov.uk/Resources/JCO/Documents/Speeches/lj-thorpe-speech-relocation-london-metropolitan-uni-300620102.pdf>. Ibid. Yildiz Maria Berenos, ‘Time to move on? The international state of affairs with respect to child relocation law’ (2012) 8 Utrecht Law Review, 21. Ibid. Family Law Council, Relocation discussion paper (2006) Family Law Council <http://www.ag.gov.au/FamiliesAndMarriage/ FamilyLawCouncil/Documents/Discussion%20paper%20on%20 Relocation%20February%202006.pdf> at 2 August 2013, 11.

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One Journey

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!5342!,)!3ÂŹ(!2$,).%ÂŹ!39,5-ÂŹ3%%+%2ÂŹ0/,)#9

Are we slamming the doors HARDLINE on refugees? AUSTRALIAâ&#x20AC;&#x2122;S ASYLUM SEEKER POLICY cases dealing with asylum seekers are particularly complex. This

AFTER SPENDING FOUR WEEKS IN NAURU IN 2012, STUART DAVEY DRAWS ON HIS EXPERIENCES AND EXPLORES AUSTRALIAâ&#x20AC;&#x2122;S DECISION TO PROCESS ASYLUM SEEKERS OFFSHORE.

article explores what I have learned about offshore processing through my involvement in Nauru and seen as the opportunities and challenges within the international legal context.

Overview of recent legal history

I

22

n August 2012, the Australian government re-established

Over the past twelve years, Australiaâ&#x20AC;&#x2122;s legislative response

offshore processing of asylum seekers in Nauru and Papua

to people seeking asylum has created a ripple effect throughout

New Guinea. Issues surrounding the legal implications have

the pacific region. Arguably, it was the Howard governmentâ&#x20AC;&#x2122;s

taken a back-row seat to the escalated media attention. As

RESPONSEÂŹ TOÂŹ AÂŹ CARGOÂŹ SHIP ÂŹ THEÂŹ -6ÂŹ 4AMPA ÂŹ WHICHÂŹ HADÂŹ RESCUEDÂŹ

we head towards a federal election, the debate intensifies.

438 asylum seekers en route to Christmas Island in August 2001,

I was in Nauru in September and October 2012 as part of

which instigated the flavor of debate regarding the plight of

a team establishing the Regional Processing Centre, amidst

asylum seekers. In Ruddock v Vadarlis1 (the Tampa case) the

these heightened political tensions.

High Court examined whether the government was operating

I went to Nauru expecting to be appalled at the

WITHINÂŹ ITSÂŹ AUTHORITYÂŹ WHENÂŹ ITÂŹ ORDEREDÂŹ THATÂŹ THEÂŹ -6ÂŹ 4AMPA ÂŹ WHICHÂŹ

conditions, and I was. I returned looking for opportunities for

was being held four miles from Christmas Island, could not

change, beginning with an exploration of legal pathways to

ENTERÂŹ!USTRALIANÂŹWATERSÂŹANDÂŹIFÂŹNOT ÂŹWHETHERÂŹTHEÂŹWRITÂŹOFÂŹhabeas

respond to the situation. Cases dealing with asylum seekers

corpus should be applied. The case ultimately found that the

in detention often rely on the writ of habeas corpus. This

government was operating within its power. Australian media

writ is a summons demanding that a person in detention

referred to it as the â&#x20AC;&#x153;child overboard incidentâ&#x20AC;? â&#x20AC;&#x201C; reflecting false

be brought before a judge or into court, and that their

accusations that children were being thrown from the vessel

custodians present proof that there exists lawful authority to

â&#x20AC;&#x201C; and the Howard government swiftly introduced the Pacific

keep them in detention. If the custodians cannot establish

Solution policy which saw asylum seekers being transferred to

that they are acting within authority, the person in detention

Nauru for offshore processing between 2001 and 2007, before

must be released.

being admitted into Australia.

Mindful of the challenges of distance and the execution

The Pacific Solution policy was challenged in 20032 and

of legal principles in an international context, habeas corpus

2004. Most prominent was the case of Amiri,3 which brought

â&#x20AC;&#x153;In contrast to the 10.5 million refugees of concern to the UNHCR, last year Australia received 30,000 claims for asylum.â&#x20AC;?

The Full Bench AUSTRALIAâ&#x20AC;&#x2122;S HARDLINE ASYLUM SEEKER POLICY (TAKVER, 2013)


Advantageâ&#x20AC;? policy, which re-implemented many aspects of the Pacific Solution policy. A proposal to take asylum seekers who made it to Australia AUSTRALIA'S HARDLINE ASYLUM SEEKER POLICY (DEPARTMENT OF IMMIGRATION AND CITIZENSHIP, 2012)

and remove them to Malaysia for processing was thwarted after M70/2011

â&#x20AC;&#x153;I went to Nauru expecting to be appalled at the conditions, and I was.â&#x20AC;?

v Minister for Immigration and Citizenship6 (the Malaysian Solution case), which held that to do so was invalid, as Malaysia was not a signatory to the Refugee Convention. In response, a Regional Processing Centre in Nauru was re-established, with a second built in Papua New Guinea. This new policy declared that anyone who arrived by boat in Australia without a valid visa from 13 August 2012 would be transferred and placed in detention in one of these foreign countries. In July 2013, the Rudd government announced that anyone arriving by boat without a valid visa will not be resettled in Australia, with those granted protection visas to be permanently settled in Papua New Guinea.7

Specific challenge in Nauru Within this political and legal context, a legal challenge, prepared by an Australian legal team representing a group of asylum seekers held in detention in Nauru, was heard in the Nauruan Supreme Court on 10-12 June 2013. The habeas corpus case, AG & Ors v Secretary for Justice,8 PRESENTEDÂŹTWOÂŹCENTRALÂŹARGUMENTSÂŹTHATÂŹTHEÂŹAPPLICANTSÂŹAREÂŹBEINGÂŹUNLAWFULLYÂŹ

a writ of habeas corpus to the Supreme Court of Nauru. Amiri argued that those detained as a consequence of Australian policy, were invalidly held, according to Nauruâ&#x20AC;&#x2122;s Immigration Act 1999. The case failed and on appeal to the High Court of Australia, which has jurisdiction to hear

detained on Nauru, and that there is a long and unreasonable delay in processing their claims and in arranging their removal. The case centered on the highly politicised issues of the inhumane conditions in which detainees are being kept, and the role of a harsh regime in acting as deterrence towards others seeking asylum in Australia. Justice John von Doussa handed down his decision, finding the groupâ&#x20AC;&#x2122;s

appeals from Nauru, in the case of Ruhani,4 the original

detention did not violate Nauruâ&#x20AC;&#x2122;s domestic law. The court held that while

DECISIONÂŹWASÂŹUPHELD ÂŹWITHÂŹ*USTICEÂŹ+IRBYÂŹINÂŹDISSENT Transferring

individuals

to

another

country

for

processing impacts international relations. Countries are able to define what is a refugee by terms of their migration legislation. Under the 1951 United Nations Convention Relating to the Status of Refugees (Refugee Convention) and the 1967 Protocol Relating to the Status of Refugees, everyone has the right to apply to a country for protection,

the asylum seekers were detained on Nauru by the Australian government, which is contested by Nauruâ&#x20AC;&#x2122;s own government, this detention did not contravene local Nauruan law. With regard to the delay in processing claims, the court acknowledged that the delays were not unlawful by virtue of their delay to date, but that a later determination could be made should the delay be excessive. This judgement, though in favor for the government, left an open door for a later appeal. As with Amiri,9 special leave to appeal to the High Court of Australia

which is to be granted if they satisfy that countryâ&#x20AC;&#x2122;s definition of refugee. Signatories to the Refugee Convention have an obligation under international law to assess all claims for protection, regardless of how an individual arrives. In the Asia-Pacific region, Malaysia and Indonesia are noted as countries who have not signed the Refugee Convention,

could be sought. However, by the time a challenge to the High Court could be heard, I hope that those currently in detention on Nauru will have had their application for protection visas processed, and be comfortably settled in Australia. 1.

and are therefore not bound by it. In contrast to the 10.5 2.

3.

million refugees of concern to the United Nations High 4. Commissioner for Refugees (UNHCR) at the beginning of

5.

2012, last year Australia received 30,000 claims for asylum. 6. 7. Over 90 per cent of those seeking asylum in Australia are granted protection visas.5

8.

In 2012, the Gillard government announced the â&#x20AC;&#x153;No 9.

[2001] FCA 1329. Mahdi v Director of Police [2003] NRSC 3. Amiri v Director of Police [2004] NRSC 1. Ruhani v Director of Police (No 2) [2005] HCA 43. Asylum Seeker Resource Centre, Right to work myth buster (2012) Asylum Seeker Resource Centre <http://righttowork.com.au/wp-content/uploads/2013/02/ ASRC-Right-to-Work-Mythbuster_final-28-Feb.pdf> at 3 August 2013. [2011] HCA 32. Department of Immigration and Citizenship, Visas, Immigration and Refugees (2013) Australian government <http://www.immi.gov.au/visas/humanitarian/ novisa/> at 5 August 2013. [2013] NRSC 10. Amiri v Director of Police [2004] NRSC 1.

The Full Bench

23


In the land of Gods and Monsters CHILD SEX TOURISM AND AUSTRALIAâ&#x20AC;&#x2122;S RESPONSE of the child or a third party in return for a sexual contract. It

MARTHA CRNKOVIC sheds a harrowing

can occur as the result of a one-off commercial transaction

light on the plight of children who are victims of a rising global epidemic: international sex trafficking.

facilitated by a third party (situational offenders) - who makes the child available to the tourist or as a result of an extending â&#x20AC;&#x153;groomingâ&#x20AC;? operation.5 Grooming is the

C

hild sex tourism (CST) is a billion dollar industry. This business of trauma thrives and flourishes on

the systemic rape and torture of children. Globally, it is estimated that 2.1 million children and young people are trafficked every year for sexual exploitation and cheap labour: South East Asia housing the highest number of child prostitutes in the world.1 The Australian Human Rights and Equal Opportunity Commission estimates that OVERÂŹ ÂŹSEXÂŹTOURISTSÂŹVISITÂŹ!SIAÂŹEVERYÂŹYEARÂŹANDÂŹTHIRTEENÂŹ percent are coming from Australia.2

24

In 1994, Australia passed extra territorial laws in an attempt to combat child sex tourism: at home and abroad. Over the past decade, the Crimes (Child Sex Tourism) Amendment Act has had a granular effect on the rate of CST prosecution. In the ten years since its adoption, Australia has only charged sixteen individuals with CST.3 The prosecution rate is jarringly low considering the Protection Project has reported that sex offenders from Australia consistently top the list of CST offenders overseas. This year, the Australian Government purports to â&#x20AC;&#x153;strengthenâ&#x20AC;? these existing laws with the introduction of unprecedented â&#x20AC;&#x153;prepatory lawsâ&#x20AC;? for the planning and

manipulation of a child to trigger trusting behaviour in the perpetrator. CST is directly connected, and a produce of, child trafficking: children are trafficked both internally and across national borders to service sex tourists. It is important to note however that child sex tourism also captures the opportunistic or situational use of prostituted children. Offenders can therefore be categorised as preferential and situational offenders who travel from wealthier â&#x20AC;&#x153;sendingâ&#x20AC;? countries to poorer â&#x20AC;&#x153;destinationâ&#x20AC;? countries or regions.

Destination countries Generally, destination countries do not have the legislative mandate or the resources to effectively combat CST. Destination countries include the Philippines, Thailand, Cambodia, India and many countries in Africa and South America. These countries are politically and economically unstable and are often afflicted - and politically crippled by government corruption, severe poverty and civil unrest. Moreover, destination countries are likely to be reliant on tourism and the lucrative illegal industries associated with tourism and travel. Cambodia and Thailand are currently experiencing growth in tourism. An estimated 19 million visitors alighted

organisation of CST overseas.

to Thailand in 2011, and the country generated tourism

What is Child Sex Tourism (CST)? Child Sex Tourism is a phenomenon and experience that many of us simply cannot grasp. We find comfort in abstractions because when the numbers of victims bloat to the hundreds of thousands - and millions - we cannot conceive of trauma on this scale. The United Nations

â&#x20AC;&#x153;The exposure of children to HIV and aids (is) the â&#x20AC;&#x2DC;most frightening consequence of child prostitutionâ&#x20AC;&#x2122;.â&#x20AC;?

defines child sex tourism as â&#x20AC;&#x153;tourism organized with the primary purpose of facilitating...a commercial sexual relationship with a childâ&#x20AC;?.4 CST involves the remuneration IRA GELB 2012

The Full Bench


CHILD SEX TOURISM

â&#x20AC;&#x153;â&#x20AC;Ś2.1 million children and young people are trafficked every year for sexual exploitation and cheap labour.â&#x20AC;? REVENUEÂŹOFÂŹÂŹBILLIONÂŹTHATÂŹIS ÂŹOVERÂŹÂŹPERCENTÂŹOFÂŹ4HAILANDSÂŹGROSSÂŹDOMESTICÂŹ

countries. Canada, the United States, Japan and the

product.6 In Cambodia, 607,000 jobs - 8% of overall employment - were

5NITEDÂŹ +INGDOM ÂŹ TOGETHERÂŹ WITHÂŹ !USTRALIA ÂŹ AMENDEDÂŹ THEIRÂŹ

7

directly supported by tourism and travel. Due to the clandestine nature

respective criminal codes to overcome territorial barriers

of illegal activity, it is difficult to estimate the true impact of the child sex

in the prosecution of sex tourists. The Commonwealth

trade on the economy of destination countries. But what we may assume

child sex tourism regime, set out in Part IIIA of the Crimes

- and surmise - is the tentative position that as it stands today, destination

Act, prohibits a person traveling outside of Australia from:

countries will not be able to conclusively deal with CST alone.

engaging in sexual intercourse or sexual conduct with a child under 16 or inducing a child under 16 to engage in sexual intercourse or sexual conduct. The regime further

Physical and psychological consequences of CST Child victims suffer not only grievous physical harm at the hands

prohibits an individual or body corporate from benefiting

of their family, pimps and offenders but also lifelong psychological

from child sex tourism. These offences capture conduct

sequelae that is likely to be left undiagnosed, unrecognised and

such as organising child sex tours in a foreign country and

untreated. Australian researchers have identified chilling associations

are analogous to â&#x20AC;&#x153;child prostitutionâ&#x20AC;? offences in the State

between abuse and a childâ&#x20AC;&#x2122;s mental and emotional health, namely:

and Territory context. This means that under the regime,

depression, anxiety, eating disorders, suicide attempts, panic and

offenders can be prosecuted based only on evidence of

dissociative disorders, post-traumatic stress and reactive attachment

sexual acts abroad. Comparatively,

8

disorders, to list only a few.

9

Offenders target girls and boys between the ages of 10 and 18

Australiaâ&#x20AC;&#x2122;s

CST

regime

exhibits

numerous strengths that overcome the obstacles of cross-

and the age bracket is reducing rapaciously. In a harrowing article in

jurisdictional

prosecution.

The

regime

encompasses

the Strait Times, Theresa Tan reported that a three-year-old girl from

onerous penalties and ambitious expansions of evidentiary

the Philippines was forced to perform oral sex on strangers by her drug

rules. And from this year, the Australian Federal Police will

addicted pimp - her mother. Pimps, traffickers and customers severely

have the benefit of tougher legislation. The Australian

beat and harm the children under their control and as a result of rape

Government has further amended the CST regime to

and contaminated working conditions, children are often infected with

include unprecedented â&#x20AC;&#x153;prepatory offencesâ&#x20AC;? as well as

The United Nationâ&#x20AC;&#x2122;s Childrenâ&#x20AC;&#x2122;s Fund

possessionary offences relating to child pornography. It is

h5.)#%&v ÂŹDESCRIBEDÂŹTHEÂŹEXPOSUREÂŹOFÂŹCHILDRENÂŹTOÂŹ()6ÂŹANDÂŹAIDSÂŹASÂŹTHEÂŹ

now an offence to prepare or plan to commit a child sex

â&#x20AC;&#x153;most frightening consequence of child prostitutionâ&#x20AC;?.11

tourism offence, or to groom or procure a child for sexual

10

sexually transmitted diseases.

activity overseas. These offences theoretically allow the Australian Federal Police to investigate and intervene

The Australian response to CST Growing international pressure at the beginning of the 1990s

before sexual activity involving a child can take place. The

culminated in many nations (â&#x20AC;&#x153;sending countriesâ&#x20AC;?) passing extra-

penalties for child sex tourism offences have also increased.

territorial legislation to remedy the domestic failures of destination

Australians who sexually abuse children overseas can be

JAMES EMERY

â&#x20AC;&#x153;Child victims suffer not only grievous physical harm at the hands of their family, pimps and offenders but also lifelong psychological sequelaeâ&#x20AC;Śâ&#x20AC;? The Full Bench

25


CHILD SEX TOURISM

imprisoned for up to twenty years and Australians who groom

Childwise, a not for profit organisation and child advocacy

or procure a child for sexual activity overseas can be imprisoned

body, conducted a survey into community attitudes and

for up to fifteen years. The latter offence captures individuals

found that over 90% (of the 18,000 Australians surveyed)

who use the internet to befriend a child and then leverage the

were aware of human trafficking - approximately three

trust for sexual submission.

quarters being aware that children were trafficked for sex.

Nevertheless, we cannot yet measure the success of the

The finding seems to indicate that Australians know what

new â&#x20AC;&#x153;toughenedâ&#x20AC;? legislative scheme. Potential problems circle

is going on and either we donâ&#x20AC;&#x2122;t want to get involved, or

around the issue of reporting CST incidents, and even more

we donâ&#x20AC;&#x2122;t know how. Admittedly, statements such as â&#x20AC;&#x153;end

problematical is the likelihood of accurate reporting of planned

human traffickingâ&#x20AC;? may only mystify an audience into

or premeditated CST. We need to ask important questions.

some kind of depressive paralysis. Awareness is always

How will the AFP manage the investigation of prepatory CST

the proverbial first step to action and should you find

offences? How will the accuracy and credibility of reports be

yourself as disturbed and agitated as I am to this issue, you

measured? And furthermore - if we accept that a significant

will find there is a world of individuals, organisations and

proportion of CST offenses are committed opportunistically

communities fighting to end the demand and supply for

- then how do we prevent the CST offences occurring? Do

children.

we need a more comprehensive preventative campaign?

1.

Are penalties and invasive investigatory powers effective

2.

in excoriating the supply of child sex? Is this a larger issue? Have we unduly focused on criminality and broad brushed all

3.

perpetrators as mere monsters, when the reality is infinitely 4.

more complicated, and in many ways infinitely darker?

26 Australian attitudes to CST Sometimes statements such as â&#x20AC;&#x153;child sex trafficking is a global epidemicâ&#x20AC;? or statistics such as â&#x20AC;&#x153;2.1 million children are trafficked globallyâ&#x20AC;? alarm us. But more often information fails to cut through to us with any proportional sense of urgency.

5. 6. 7. 8. 9. 10. 11.

Child Wise, Stop Sex Trafficking of Children & Young People Australian Community Attitudes Report, July 2010. Australian Human Rights & Equal Opportunity Commission, Information for Students: Children and Sexual Exploitation, available at <http://www.hreoc.gov.au/info_for_students/ childrens_rights.html>. Svensson. N. â&#x20AC;&#x153;Extraterritorial Accountability: An Assessment of the Effectiveness of Child Sex Tourism Laws, International Comparative Law Review, Vol 38, pg 646. U.N. Economic & Social Council [ECOSOC}, Commission on Human Rights, Report of Special Rapporteur on the Sale of Children, 56, U.N. Doc. E/CN/4/1996/100. Child Wise, note above at 1, at 12. Svensson, N, note above at 3, at 645. Svensson, N, note above at 3, at 645. Child Welfare Information Gateway, Long Term Consequences of Child Abuse Factsheet, available at www.childwelfare. gov/pubs/factsheet/longtermconsequences.cfm. UNICEF Fact Sheet on Commercial Sexual Exploitation, available at www.unicef.org/protection/files/sexes2.pdf. UNICEF, note above at 9. Child Wise, note above at 1.

How you can combat Child Sex Tourism: sĂŚ

'IVEĂŚSOMEĂŚOFĂŚYOURĂŚTIMEĂŚANDĂŚMONEYĂŚTOĂŚRELIABLEĂŚCHARITIESĂŚANDĂŚNOTĂŚFORĂŚPROlTĂŚĂŚ organizations such as Project Futures who fund the rescue and rehabilitation of trafficked women and children.

sĂŚ

$OĂŚNOTĂŚGIVEĂŚMONEYĂŚTOĂŚCHILDĂŚBEGGARSĂŚORĂŚVENDORSĂŚWHENĂŚYOURĂŚTRAVELĂŚ

sĂŚ

3UPPORTĂŚRESPONSIBLEĂŚBUSINESSESĂŚTHATĂŚIMPLEMENTĂŚCHILDĂŚPROTECTIONĂŚSTANDARDSĂŚ

sĂŚ

#HOOSEĂŚAGENCIESĂŚTHATĂŚVETĂŚAPPLICATIONSĂŚCAREFULLYĂŚWHENĂŚPLANNINGĂŚFORĂŚVISITSĂŚORĂŚ volunteer work with children.

sĂŚ

!SKĂŚFORĂŚPERMISSIONĂŚBEFOREĂŚTAKINGĂŚPHOTOSĂŚOFĂŚCHILDRENĂŚ#HILDRENĂŚMAYĂŚBECOMEĂŚ disarmingly trusting of foreigners and strangers if formalities are negated.

sĂŚ

!VOIDĂŚGIVINGĂŚGIFTSĂŚDIRECTLYĂŚTOĂŚCHILDRENĂŚORĂŚTAKINGĂŚTHEMĂŚANYWHEREĂŚALONEĂŚ

sĂŚ

3TAYĂŚAWAREĂŚ3HOWĂŚLEADERSHIPĂŚWHENĂŚYOUĂŚTRAVELĂŚ4RAVELĂŚRESPONSIBLYĂŚ4AKEĂŚCAREĂŚOFĂŚ your friends and others overseas.

The Full Bench


ALL LAW FIRMS SAY THEY’RE DIFFERENT. BUT ARE THEY? TO FIND OUT VISIT CORRS.COM.AU/GRADUATES


!#4)6)3-ÂŹ).ÂŹ#().!

ROBERT GUZOWSKI

Activism in China AN OUTSIDERâ&#x20AC;&#x2122;S PERSPECTIVE ROBERT GUZOWSKI reflects on the political and social activism in the Peopleâ&#x20AC;&#x2122;s Republic of China.

C

hina is a country with a population of over 1.3 billion persons, a single

my attention to those protests that were large

party socialist state, and one of the fastest growing economies the

enough to be noticed by the insurance company.

world has seen over the past several decades. To say that China is different

Political activism isnâ&#x20AC;&#x2122;t new in China. The

TOÂŹANYWHEREÂŹ)ÂŹHAVEÂŹEVERÂŹBEENÂŹBEFOREÂŹWOULDÂŹBEÂŹANÂŹUNDERSTATEMENTÂŹLIKEWISEÂŹ

modes and subjects of modern activism, however,

to say that it is remarkable.

are new and changing with the social landscape

Thanks to the Beyond UTS International Leadership Development

telecommunication,

#HINESEÂŹ LANGUAGE ÂŹ CULTUREÂŹ ANDÂŹ POLITICSÂŹ ATÂŹ THEÂŹ 3UNÂŹ 9AT SENÂŹ 5NIVERSITYÂŹ  ÂŹ

networks has increased the reach and accessibility

in Guangzhou, one of the leading comprehensive research universities

of

in China. The setting for my studies was itself fascinating: Guangzhou is

mobilisation for protests and demonstrations. The

the capital of the Guangdong region located in southern China, the third

Arab Spring has yet to reach China â&#x20AC;&#x201C; hindered, I

largest city in China by population, and generally considered the most

assume, by the blocking of Twitter by the Great

liberal city in the Peopleâ&#x20AC;&#x2122;s Republic.

Firewall â&#x20AC;&#x201C; but the young and techno savvy of

Now, the BUiLDers reading this will know what I mean when I mention

28

of the Peopleâ&#x20AC;&#x2122;s Republic. The rise of mobile

(BUiLD) Program, I spent the first three weeks of this past July studying

the frequent medical and security advisory emails sent out by BUiLDâ&#x20AC;&#x2122;s

political

the

discourse,

internet

and

has

and

social

facilitated

China are nevertheless airing their grievances in the walled garden that is Chinese cyberspace.

insurance provider: these impressively thorough reports informed us

The subjects of activist behaviour today

overseas students of potential risks in the region we were staying. Of

extend beyond the realm of political reform,

the eleven such emails I received during the three-week study trip, three

with

related to demonstrations, one which took place in Guangzhou, and

RISINGÂŹ AMOUNTÂŹ OFÂŹ ACTIVISMÂŹ TWOÂŹ OFÂŹ THEÂŹ SECURITYÂŹ

another elsewhere in Guangdong. The first thing that this made me realise

alerts I received dealt with protests relating to

is that these demonstrations were potentially dangerous enough to justify

environmental issues. Notably, the issue of urban

a security bulletin. The second was that these notifications only brought

industrial smog â&#x20AC;&#x201C; with its environmental impact

environmental

concerns

motivating

a

mirrored by its health effects on individuals â&#x20AC;&#x201C; has caused much political unrest in the megalopolises of Beijing, Shanghai and Guangzhou. Beyond this, workersâ&#x20AC;&#x2122; rights, public development projects and central government policy are all grist for the activistsâ&#x20AC;&#x2122; mill. The causes for activism in the Peopleâ&#x20AC;&#x2122;s Republic of China are also changing. The influence of the West is apparent in the cities â&#x20AC;&#x201C; every other person on the metro has a smartphone by Apple or Samsung â&#x20AC;&#x201C; but it seeps beyond the superficial, too. It might be cultural arrogance to say that the desire for democracy is Western in character, but this particular influence is certainly repressed, denied by the central authorities in the Peopleâ&#x20AC;&#x2122;s ROBERT GUZOWSKI

Republic. International organisations continue focussing efforts on China, encouraging the

The Full Bench


governmentâ&#x20AC;&#x2122;s good behaviour on issues from the environment to employment conditions. The issue of human rights in China, to give another example, has acted as a lodestone for activism from groups as varied as NGOs, ethnic minorities within China, Chinese citizens, and individuals around the world. I still remember being completely thrown by a question regarding Taiwan, ASKEDÂŹOFÂŹMEÂŹBYÂŹONEÂŹOFÂŹTHEÂŹLOCALÂŹUNIVERSITYÂŹSTUDENTSÂŹONÂŹMYÂŹlRSTÂŹDAYÂŹINÂŹ'UANGZHOUÂŹ I scrambled around my response as tactfully as I could manage. The sentiment surrounding discordant political opinion is in flux, with the atmosphere not tense, so much as awkward and uncertain. Chinese society seems to be going through its awkward teenage years, with democratic urges sprouting in some of the most uncomfortable places. Things that seemed to me akin to dissidence were openly discussed by our culture and politics lecturers at the same time that the economics lecturers (teaching the alternative summer school module) were pushing the Party LINEÂŹANDÂŹLAUDINGÂŹ#HINASÂŹENDLESSÂŹGOLDENÂŹAGEÂŹ6ILLAGERSÂŹINÂŹRURALÂŹAREASÂŹAREÂŹRENOWNEDÂŹ as one of the most activist groups in China, while at the same time often being the most fiercely loyal to the Communist ideals espoused by the ruling Party. I feel that the Peopleâ&#x20AC;&#x2122;s Republic of China is moving inevitably towards a tipping point. The system of government leaves no room for democratic representation of popular sentiment, and domestic dissent is forcibly suppressed. There are growing groups of disadvantaged citizens who are no longer being supported by the governmentâ&#x20AC;&#x2122;s systems of social welfare, growing populations who are dissatisfied with local, regional or central governance, and a growing, economically mobile

â&#x20AC;&#x153;I feel that the Peopleâ&#x20AC;&#x2122;s Republic of China is moving inevitably towards a tipping point.â&#x20AC;? middle class. It is impossible to underestimate the importance of the part to be played by the people INÂŹTHEÂŹCONTINUINGÂŹSOCIALÂŹANDÂŹPOLITICALÂŹAGITATIONSÂŹITÂŹ is for themselves they that act, after all. Where a system allows for no democracy, the people will regardless find a voice. China will continue to grow, pursuing further economic reforms and chasing the Four Modernisations. Whether the rulers of the Peopleâ&#x20AC;&#x2122;s Republic will ever decide to add to their development agenda the goal of democracy â&#x20AC;&#x201C; the â&#x20AC;&#x153;Fifth Modernisationâ&#x20AC;?, as suggested by former Red Guard and activist, Wei Jingsheng â&#x20AC;&#x201C; only time will tell. But it seems clear to me that the people will demand it.

â&#x20AC;&#x153;It might be cultural arrogance to say that the desire for democracy is Western in character, but this particular influence is certainly repressed, denied by the central authorities in the Peopleâ&#x20AC;&#x2122;s Republic.â&#x20AC;?

ROBERT GUZOWSKI

The Full Bench

29

ROBERT GUZOWSKI

ROBERT GUZOWSKI

!#4)6)3-ÂŹ).ÂŹ#().!


Opinion

THE CLASH BETWEEN CULTURE AND INTERNATIONAL LAW

IN THE GLOBAL VILLAGE, SOMETIMES NEIGHBOURS DON’T SEE EYE-TO-EYE ON WHAT SHOULD BE CULTURALLY AND LEGALLY PERMISSIBLE. BUT SOMETIMES, SOME THINGS ARE RIGHT OR WRONG NO MATTER WHERE YOU HAIL FROM, WRITES ALOYSIUS ROBINSON.

P

eople do terrible things to one another. This is one of the

Notwithstanding such a concept, the very real legal prob-

primal reasons for the development of the rule of law. But

lem occurs when a particular country or culture’s parochial prac-

what happens when the law itself sanctions abuse? Unfortunate-

tices clash with regional or international law. The most impor-

ly, one does not have to look far to find an ongoing plethora of

tant of these laws are those that protect human rights. While

examples of customs, practices, and laws which offend any rea-

enshrined in the law, human rights are not born from it. They are

sonable sense of acceptability – many in the name of law. From

fundamental to the human condition. The recognition of the

the plainly bizarre, to the barbaric, many of the worst cases in-

universality of human rights, as enumerated in documents such

volve violence, vigilantism, child abuse, subjugation of women,

as The Universal Declaration of Human Rights, is the product

homophobia, and systematic discrimination, often clothed in

of our species’ collective moral, philosophical, and intellectu-

the garb of tradition, religion, and culture.

al discourse. To ignore these rights in the name of tradition is

Cultural relativism is a principle in philosophy, anthropology, and jurisprudence which espouses that the merits of a particular belief, practice or law should only be judged through the

30

lens of the culture in which it developed. There is no objective right and wrong. One society cannot sit in judgment of another. Cannibalism, honour killings – who are we to say these acts are wrong?

“The fear of being politically incorrect should not compromise policy, regulation, and judicial standards.”

The Full Bench

CULTURE CLASH (STEPHEN RITCHIE, 2011)


OPINION: THE CLASH BETWEEN CULTURE AND INTERNATIONAL LAW

word. Indeed, many countries, including Australia, con-

“What should be prescribed is an awareness of, and a respect for, the rights of others.” flawed. But living in a world that is connected as never before, this is near impossible. The online democratisation of journalism has given a voice to many who have long suffered in isolation and silence. This has increased global inter-awareness. The globalisation of trade has increased the governmental and private ties between nations, and countries the world over have experienced a boom in immigration, leading to the “multiculturalisation” of domestic societies. The net result is an increased occurrence in, and visibility of, culture clash. Like the proverbial tree falling in the woods, for much of history, many laws and practices, which we now identify as repugnant to human rights, developed and became ingrained by virtue of their longevity, restriction and isolation. Indeed, distinct societies have come into the global village by very different means. The Europeans, and their colonial offspring established in the western democratic tradition, lumbered slowly forward through the centuries, often taking a step or two back, before advancing again. Rights discourse developed around the individual as the fundamental unit of society. By contrast, many of what would be described as developing countries have been rapidly thrust forward into modernity. Often these cultures place primacy on communal values, rather than individual rights. These historical and philosophical differences are what have lead to the oft touted argument that universal human rights are an imposition of western cultural imperialism. Universal human rights are not a call to import one countries or the “western worlds” legal system on the rest of the

tinue to face real human rights challenges. Terrorism fear-mongering, the anti-immigration and anti-refugee movement, and the temptation for governments to abuse and misuse information in the digital age, are examples of the problems faced by many modern western societies. The cultural norms of any one specific society are not what should be the ideal. Rather, what should be prescribed is an awareness of, and a respect for, the rights of others. As such, recognition should be given to the fact that all communities are made up of individuals. Universal human rights, in any society, are an ideal, and not a reality. It is the aspirational drive towards achieving human rights goals that is of the greatest importance. This means that practices that infringe on the self determination of individuals must have a legitimate and reasonable aim, and be conducted in a proportionate manner. The subjugation of individuals in the name of cultural or religious traditions is simply not acceptable. So what does this all mean? Internationally, it is unrealistic to expect rapid change in countries where human rights abuses are endorsed by the state. Domestically, however, we must be aware of, but not subject to, cultural sensitivity. As the makeup of society within Australia continues to change, the fear of being politically incorrect should not compromise policy, regulation, and judicial standards. Culture should be cherished, and diversity celebrated, but don’t fall down the cultural relativism rabbit hole. When it comes to human rights, it is appropriate to draw a line. We should be ascribing to a global culture of universal minimum human rights standards. It is not intolerant, unreasonable, or “racist” to denounce a group of people who hold practices and beliefs which are incompatible with respect for the individual. Sometimes, it is necessary.

Comments? Please email publications@utslss.com with your views!

The Full Bench

31


JUST JURISDICTION?

Just jurisdiction? ENGLISH HIGH COURT UPHOLDS EXCLUSIVE AUSTRALIAN JURISDICTION CLAUSE JURISDICTION CLAUSES PLAY AN IMPORTANT ROLE IN CROSS-BORDER COMMERCIAL CONTRACTS, ESPECIALLY WHEN DISPUTES ARISE. MITCHELL KELLY ANALYSES THE RECENT DECISION OF EUROMARK LTD V SMASH ENTERPRISES PTY LTD [2013] EWHC 1627 (QB) (6 JUNE 2013) (â&#x20AC;&#x153;EUROMARKâ&#x20AC;?), IN WHICH THE ENGLISH HIGH COURT (QUEENâ&#x20AC;&#x2122;S BENCH DIVISION) HAS REFUSED TO OVERRIDE AN EXCLUSIVE â&#x20AC;&#x153;AUSTRALIANâ&#x20AC;? JURISDICTION CLAUSE IN A DISTRIBUTION AGREEMENT AND CONSIDERS WHETHER, IN LIGHT OF THIS DECISION, AN ENGLISH COURT WOULD UPHOLD AN EXCLUSIVE JURISDICTION CLAUSE IN FAVOUR OF AUSTRALIA. Introduction

T

he

expansion

of

international

The Euromark Case

Termination of the Distribution

Distribution Agreement

Agreement

trade and commerce over recent

In July 2011, Australian supplier

In October 2012, just over a year into the

decades has led to a significant increase

Smash Enterprises Pty Ltd (Smash)

Distribution Agreement, Smash sought to

in the number of international legal

engaged Euromark Ltd (Euromark)

terminate the Agreement and began dealing

disputes, as parties to transnational

to distribute exclusively its products

directly with Euromarkâ&#x20AC;&#x2122;s customers â&#x20AC;&#x201C; such as

contracts

are

evermore

being

â&#x20AC;&#x201C; childrenâ&#x20AC;&#x2122;s lunchboxes and the like â&#x20AC;&#x201C;

Tesco and Sainsburyâ&#x20AC;&#x2122;s â&#x20AC;&#x201C; as those retailers had

exposed to foreign legal systems, with

INÂŹ THEÂŹ 5NITEDÂŹ +INGDOMÂŹ WITHÂŹ POSSIBLEÂŹ

indicated that they would in future only deal

associated costs and uncertainties.

expansion

directly with Smash.

32

The inclusion of jurisdiction clauses in cross-border commercial contracts

to

Ireland,

the

United

States and Canada) for a 3 year term (Distribution Agreement). Clause 25(1) of the partiesâ&#x20AC;&#x2122; written

disputes between them to a stipulated

Distribution Agreement provided that:

Euromark

commenced

sÂŹ

3MASHÂŹ HADÂŹ NOÂŹ PROPERÂŹ GROUNDSÂŹ

for terminating the Agreement (and had

relationship between the parties shall

just done so because it was commercially

international commerce. However, one

be governed by and in accordance with

CONVENIENT ÂŹAND

of the difficulties faced by practitioners

Australian law and the parties hereby

when dealing with disputes arising

submit to the exclusive jurisdiction

directly with Euromarkâ&#x20AC;&#x2122;s customers, Smash

from

of the courts of Australia (exclusive

had wrongfully repudiated the Agreement,

jurisdiction clause).

entitling Euromark to substantial damages.

the

legal

uncertainty

is

surrounding

and

High Court, asserting that:

the

transactions

Agreement

result,

of mitigating the uncertainties of

cross-border

This

a

proceedings against Smash in the English

â&#x20AC;&#x201C; whereby the parties submit any

court â&#x20AC;&#x201C; is therefore an important means

As

the interpretation and enforcement

The parties thus entered into a

of such clauses. The recent English

contract that provided that they submit

High Court case Euromark provides

to the exclusive jurisdiction of the

some clarity for legal practitioners

Australian Courts.

sÂŹ

"YÂŹ

TERMINATINGÂŹ

ANDÂŹ

DEALINGÂŹ

Smashâ&#x20AC;&#x2122;s challenge Smash challenged the proceedings on jurisdictional grounds, arguing that, because

on this issue and stands as a warning

of the exclusive jurisdiction clause, the Court

to legal practitioners of the pitfalls of

had no jurisdiction to hear Euromarkâ&#x20AC;&#x2122;s claim,

underestimating jurisdiction clauses.

and sought a declaration pursuant to CPR  ÂŹ THEÂŹ 5+ÂŹ CIVILÂŹ PROCEDUREÂŹ MECHANISMÂŹ FORÂŹ

The Full Bench


$/-%34)#ÂŹ6)/,%.#%ÂŹ2%&5'%%3

disputing the Courtâ&#x20AC;&#x2122;s jurisdiction). In

granting an anti-suit injunction â&#x20AC;&#x201C; unless the

The Court ultimately found that the above

other words, any claim would need to be

party suing in the â&#x20AC;&#x153;non-contractualâ&#x20AC;? forum

factors were not enough to justify overriding

commenced in Australia (where Smash,

can show â&#x20AC;&#x153;strong reasonsâ&#x20AC;? for doing so

the exclusive jurisdiction clause and as a

but not Euromark, was based).

(e.g. â&#x20AC;&#x153;in the interests of justiceâ&#x20AC;?, where

result Euromark would have to commence

In response, Euromark maintained

courts in the relevant jurisdiction may

proceedings in an Australian court (at further,

that, in all the circumstances, there were

not afford a fair trial or were potentially

potentially significant, cost to Euromark). As

â&#x20AC;&#x153;strong reasonsâ&#x20AC;? for allowing them to

UNRELIABLEÂŹORÂŹUNJUST ÂŹAND

his Honour stated, â&#x20AC;&#x153;[t]he defendant is simply

INÂŹ ALLÂŹ THEÂŹ CIRCUMSTANCES ÂŹ EVENÂŹ

trying to enforce the contract to which the

regardless of the exclusive jurisdiction

though Euromarkâ&#x20AC;&#x2122;s case against Smash

parties had agreed, and there is no material

provision. Euromark argued:

on liability appeared â&#x20AC;&#x153;very strongâ&#x20AC;?, and

on which I can conclude that there is some

assuming some element of tactical â&#x20AC;&#x153;home

form of sinister or ulterior motive in the

that

courtâ&#x20AC;? advantage by Smash, it was not

defendantâ&#x20AC;&#x2122;s preference for Australia rather

the Court could ignore the exclusive

wrong or unfair for the Court to simply

than England.â&#x20AC;?3

jurisdiction clause and continue with

enforce the partiesâ&#x20AC;&#x2122; agreement (as set out

PROCEEDINGSÂŹBROUGHTÂŹINÂŹ%NGLANDÂŹAND

in the exclusive jurisdiction clause).1

bring these proceedings in England,

sÂŹ

ITSÂŹ CLAIMÂŹ WASÂŹ SOÂŹ STRONGÂŹ ANDÂŹ

â&#x20AC;&#x153;effectively

sÂŹ an

unanswerableâ&#x20AC;?),

3MASHÂŹ

unfair

WASÂŹ

procedural

ONLYÂŹ

SEEKINGÂŹ

advantage

by

challenging the Courtâ&#x20AC;&#x2122;s jurisdiction.

sÂŹ

The Consequences of Euromark

The Court did not consider the fact

The decision in Euromark highlights the

that Euromark was relying on Smashâ&#x20AC;&#x2122;s

importance of exclusive jurisdiction clauses,

repudiation of the underlying contract to

even where a contract is alleged to have

be relevant. In doing so, the Court rejected

been repudiated.

Euromarkâ&#x20AC;&#x2122;s submission that such a breach

As this case demonstrates, jurisdiction

Coulson J rejected the arguments put

amounted to the â&#x20AC;&#x153;tearing upâ&#x20AC;? of the

clauses are not to be overlooked or regarded

forward by Euromark, and accordingly

contract, instead ruling that repudiation

as simply standard clauses with minimal

granted a declaration that the English

is simply a form of contractual breach,

commercial significance. Both parties need

Court did not have jurisdiction to hear

which may be foreseen by commercial

to consider the issue of jurisdiction carefully,

The Decision

2

Euromarkâ&#x20AC;&#x2122;s claim. In essence, his Honour

parties.

Such a ruling accords with the

and to understand clearly the significant

concluded that:

doctrine of separability, confirming that

practical and commercial implications when

THEÂŹ#OURTÂŹWILLÂŹORDINARILYÂŹENFORCEÂŹ

contractual invalidity of the main contract

negotiating agreements.

an exclusive jurisdiction clause â&#x20AC;&#x201C; whether

does not necessarily affect the validity of a

1.

by staying its own proceedings or

jurisdiction clause.

2. 3.

sÂŹ

The Full Bench

Euromark Ltd v Smash Enterprises Pty Ltd [2013] EWHC 1627 (QB), [42]. Ibid, [22]. Ibid, [41].

33


-/2!,3¬6%253¬).4%2.!4)/.!,¬,!7

When laws attempt to point our moral compass North WITH THE INTRODUCTION OF INTERESTING LEGISLATION IN CHINA WHICH MAKES IT MANDATORY FOR CHILDREN TO VISIT THEIR AGEING PARENTS, ANA-MARIA CINDRIC QUESTIONS WHETHER THE LAW SHOULD INTERVENE IN PRIVATE MORAL AFFAIRS IN ANY COUNTRY.

O

n 1 July 2013 it became illegal for children not to visit

What about in the case of China’s one child

their parents in China. The Chinese government made

policy?

amendments to the existing Law of Protection of Rights and Interests of the Aged, which makes it mandatory for adult children to ‘frequently’, visit their aging parents.1 One cannot help but wonder what exactly would the penalty be for such a breach? Can such a law be regulated? More to the point, should the law be able to intervene in matters concerning private morality?

barbaric strategy as a panacea for its unsustainable expanding population. From the 1970s till now human fertility in China became subject to the monopolization of the state. Adopting a utilitarian outlook, the policy had justified the sacrifice of one’s reproductive autonomy for the common good of society. However, the price was

In the Wolfenden Report published in 1957, England’s legislature was confronted with the contentious issue as to the legality of the Buggery Act 1533. This Act had the effect of

34

For three decades China’s government used this

criminalising any sexual acts between two homosexuals despite the acts being consensual. The inquiry illuminated the pivotal question as to the extent to which the law could penetrate the privacy of an individual and regulate their behaviour.

a heinous legacy of forced abortions, sterilisations and eugenics accompanied by the highest female suicide rate in the world.3 In this instance, how did China reconcile the interests of the public with that of the individual? Well, its strategy could be explained using the theory of communitarianism derived by Jean-Jacques Rousseau. He insisted that for the survival of China’s future polity, sacrifices

In October 1957, the Archbishop of Canterbury, Geoffrey Fisher, spoke in support of the Wolfenden Report, arguing that private affairs should not be regulated.

had to be made by the individual.4 Even if it meant that a woman who had an ‘illegal birth’ would be dragged to a local clinic, bound by a surgical table and injected with a

“There is a sacred realm of privacy... into which the law, generally speaking, must not intrude. This is a principle of the utmost importance for the preservation of human freedom, self-respect, and responsibility,” he said.

legal drug forcing the fetus out and disposing of it.5 Peter Devlin promulgates that a “toleration of maximum individual freedom that is consistent with the integrity of society” is required.6 However, in China and

According to Fisher, society places an intrinsic value on its individual rights to privacy. In this regard, the law must recognise instances where it has a positive obligation to punish acts that enter into the realms of criminal law and disregard those that merely remain sinful - just like in the case of

the Asian countries the vague benchmark for ‘maximum’ individual freedom is incongruous to its traditional values. !CCORDING¬ TO¬ 3INGAPORES¬ 0RIME¬ -INISTER ¬ ,EE¬ +WAN¬ 9EW ¬ traditional Asian values of collectivism and social primacy take precedence over any inconveniences or even violation

fornication and adultery which, although repugnant to society,

of an individual’s autonomy.7

do not breach that tentative line between the individual right

“There is a sacred realm of privacy... into which the law, generally speaking, must not intrude.”

and the common good to justify any criminalisation. It is these acts of, according to Lord Devlin, “human weakness” that make it too hard to police and place it outside the scope of the law.2

The Full Bench


“The mere occurrence of prohibitive activities in the privacy of one’s home does not negate the law’s ability to intervene.” What about the legislation which

no matter what irrational or prejudicial grounds such a consensus has been

forces children to visit their ageing

met.8 It is however this unqualified notion of popular morality that has

parents?

led to the perpetuation of many human rights abuses and a vindication

The impetus for these laws appears to be the widespread neglect of the elderly and the

of rights within the law as can be seen in the area of homosexuality and Anti-semitic laws.

increasing pressure on its patchy social welfare

Isn’t society more than passive conformists of laws set

system. Such acts cannot be strictly classified

by the sovereign power?

as a crime per se (unless it’s one of criminal

According to Hart, indeed it is. He argues that society operates more

negligence) and can be merely viewed as an

than merely on a command and obey dynamic and it is ‘psychologically

offence of one’s morals or, more precisely, a

complex’.9 One does not abstain from killing or inflicting harm because a

violation of the Confucian value of filial piety –

legal rule says they should not. It is inherent that there is a behavioral and

respect for your elders.

attitudinal dynamic at work that operates on certain values and principles

Private morality versus individual

individuals practice.10 It is not, as Devlin proposed, the mere acceptance

freedom

of a genuine disdain for certain activities that makes it legally justifiable

But is the law entitled to legislate for the welfare of society on areas of private morality at the expense of individual freedom?

to punish it. The internalization of rules is because individuals ought to out of an innate moral imperative not merely because of the fear of the consequence of not doing so.11 And so the argument endures as China’s one child policy continues to

Merely because one’s individual freedom is paramount should not discharge the law’s duty to intervene on matters it thinks are injurious to the public’s interest. In light of the example of marital rape, if we apply this same principle of freedom of choice and the right to privacy of morality then it could be possible that such deplorable activities such as marital rape may have well continued to

invade homes albeit in a ‘reformed’ form along with its newly controversial counterpart. What the correct balance between liberty, morality and the law is, is an elusive question that underlies the social fabric of our existence. It is an unsettling concept that invites further inspection, discussion and debate but until a radical epiphany or perhaps a universal unanimity on the parameters of morality are achieved we shall continue to disagree on where North is on our moral compass.

be justified by a lack of legal intervention. The

1.

mere occurrence of prohibitive activities in the

2.

privacy of one’s home does not negate the law’s ability to intervene. But what moral standards

3.

require intervention?

4.

Which standard of morality is to be

5.

used then? Without venturing too deeply into the elusive jurisprudential waters of such a question we may look to perhaps the Hart-Devlin debate for some

6. 7. 8. 9. 10. 11.

Law requires Chinese to visit their aging parents (2013) http://news.yahoo. com/law-requires-chinese-visit-aging-parents-063254370.html. Patrick Devlin’s argument on morals and the criminal law extracted from the Report of the Wolfenden Committee on Homosexual Offences and Prostitution (1957) 189. Keng Ellen, ‘Population Control through the One-Child Policy in China; Its Effects on Women’ (1996-1997) 18 Women’s Rights Law Reporter 2, 209. Helena Rene, ‘Ethical Perspectives on China’s One-Child Policy’ (2007) 1 Journal of the Washington Institute of China Studies 2, 53. ‘China’s Brutal One-Child Policy’ (2013) http://www.nytimes. com/2013/05/22/opinion/chinas-brutal-one-child-policy.html?_r=0 Devlin, above n 1, 186. Rene, above n 4, 54. Ronald M. Dworkin, ‘Lord Devlin and the Enforcement of Morals’ (1966) 75 Yale Law Journal 986, 995. Brian Brix, Jurisprudence Theory and Context (Sweet and Maxwell, 4th ed, 2006) 38. Ibid, 39. H.L.A Hart, The concept of Law (Oxford University Press, 3rd ed, 2012) 82-86.

enlightenment. Lord Devlin conceded the theory of popular morality which is determined by the majority consensus on a moral position in society

The Full Bench

35


SNOWED-IN WITH THEIR IMAGES SPLASHED ACROSS THE FRONT PAGES OF INTERNATIONAL NEWSPAPERS, THE LIMELIGHT HAS BEEN CAST ON THOSE BLOWING THE WHISTLE ON CONFIDENTIAL GOVERNMENT SECRETS. HARAN DELILLO TAKES A CLOSER LOOK AT THE NEW WAVE OF WHISTLEBLOWERS SUCH AS EDWARD SNOWDEN, AND PROVIDES HIS OPINION ON THEIR ROLE IN OUR SOCIETY.

36

The Full Bench


3./7%$ ).¬7()34,%",/7%23¬5.6%),%$

WHISTLEBLOWERS UNVEILED

divided public opinion. An adventurous lawyer may

he United States unwearyingly waits for Edward Snowden to emerge

T

press Snowden’s potential refugee status through

from Russia under charges of publicising confidential information.

initiating proceedings against him. However, a com-

Snowden, however, has sought asylum from states historically uncooperative

parison of Snowden’s situation to other examples

with the US. Those who see Snowden as a traitorous informer await his pros-

of US political persecution, such as Senator McCa-

ecution while others applaud and hope to rescue him from what they profess

rthy’s indiscriminate ‘witch hunt’ of supposed com-

is political persecution.

munists, may make it difficult to accept his cries of

submit that an unjust system is attempting to op-

mistreatment.

THE QUESTION ARISES: WHAT IMPORTANCE DOES THE WHISTEBLOWER HAVE, AND DO THEIR ACTIONS REALLY HELP US?

The era of whistleblowing 9ET¬ OF¬ LATE ¬ 3NOWDENS¬ ACTIONS¬ ARE¬ IN¬ NO¬ WAY¬ unique.

The prosecuted or persecuted?

quickly return stories of Julian Assange and Bradley

The charges filed against Snowden under Title 18 of the United States

Manning alongside Snowden.

Code (the federal criminal code) are threefold. The initial charge is for theft of

The situation for Manning looks bleak, having

government property under section 641. The following charges are of unau-

been found guilty of 20 offences and a probable

thorised communication of national defence information under section 793,

century-long sojourn in prison. Assange cannot risk

and for the wilful communication of classified communication information to

leaving the Ecuadorian Embassy without the possi-

an unauthorised person, contravening section 798. Each charge individually

BILITY¬THAT¬HE¬MAY¬BE¬PICKED¬UP¬BY¬5+¬LAW¬ENFORCE-

carries a sentence of up to 10 years in prison.

ment and extradited for prosecution.

Snowden

The latter two offences derive from the Espionage Act 1917 and the In-

will never be able to return to American soil or that

ternal Security Act 1950, the former of which was designed during the First

of any cooperative nations so long as the charges

World War to prevent military insubordination. Since their inception, the

against him are alive.

provisions’ imposition on the right of free speech has been of curial import. Schenck v United States 249 U.S. 47 (1919) upheld the Espionage Act and first

Despite this it would seem that whistleblowing is the fad of the 2010s.

articulated the ‘clear and present danger test’, which determined that in cir-

Wikipedia’s page on Snowden is more extensive

cumstances where an act brings about ‘a clear and present danger that…will

than that on Rake and Suits combined. This may ev-

1

bring about substantive evils’ , limits can be placed on freedom of speech,

idence a rising tendency towards whistleblowing as

assembly and press. Rather incongruently, this was held not to violate the First

an alternative, albeit unstable, career path. Why so?

Amendment. This doctrine has since been substituted by the current ‘immi-

Whistleblowers and their fellow WikiLeak-ers,

nent lawless action’ doctrine,2 which purports that speech is not protected if

who man the flagship of the cause, consider them-

the speaker intends to incite violation of a law that is both imminent and likely.

selves beacons illuminating the shadowy workings

These landmark decisions and doctrines demonstrate the legal validity of

of governments garbed in secrecy. Such advocates

the charges against Snowden and why his right to free speech, fundamental

call for greater transparency in government actions,

to the United States identity, has been nullified. With his constitutional right

specifically through the removal of confidentiality

essentially being undermined, is it any wonder that Snowden maintains that

and privacy laws keeping national security informa-

he faces persecution?

3

tion unpublished. Their increasing calls can be inter-

The 1951 Refugee Convention provides some guidance on the international legal position of the treatment of the persecuted. Article 1 defines a refugee as a person who has a ‘well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a social group or political opinion.’ If Snowden truly does fear persecution, and is suffering by reason of STEVE RHODES

Googling the term ‘whistleblowers’ will

his political opinion, he could surely be classified as a refugee. Hence, deciding whether Snowden is being justifiably prosecuted or in-

preted as highlighting a discursive shift in attitudes

“…what importance does the whistleblower have, and do their actions really help us?”

discriminately persecuted is a matter of perspective, which has undoubtedly

The Full Bench

37


3./7%$ ).ÂŹ7()34,%",/7%23ÂŹ5.6%),%$

â&#x20AC;&#x153;It is ironic and somewhat hypocritical that at least half of those who branded Snowden a traitor felt as though their rights were being breached by government actions, yet only learnt of it through Snowdenâ&#x20AC;&#x2122;s treachery.â&#x20AC;? goals would seem to differ. Then, if Snowdenâ&#x20AC;&#x2122;s engine is really

KEIJO KNUTAS

driven by his desire to increase governmental transparency, does he draw attention to a legitimate concern for us? A poll conducted by the Washington Post and ABC News of 24 July 2013 found that 55% of the US population felt that 3NOWDENÂŹWASÂŹAÂŹ@WHISTLEBLOWERÂŹANDÂŹNOTÂŹAÂŹ@TRAITORÂŹÂŹ9ET ÂŹTHREEÂŹ out of four of the same surveyed felt that the NSAâ&#x20AC;&#x2122;s surveillance and recording of telephone calls and internet traffic intrudes on privacy rights. It is ironic and somewhat hypocritical that at least half of those who branded Snowden a traitor felt as though their rights were being breached by government actions, yet only learnt of it through Snowdenâ&#x20AC;&#x2122;s treachery.4 The issue also hits close to home, with leaked documents exposing Australian defence sites linked with US intelliGENCE GATHERINGÂŹPROGRAMÂŹ8+EYSCOREÂŹÂŹ!LTHOUGHÂŹTHEÂŹEXISTENCEÂŹ of vast integrated systems recording the digital information of individuals globally had been rumoured, the files disclosed

38

confirm the breadth and depth of such reaches. It is doubtful that the materialisation of these documents shall lead to any discontinuance of such intelligence programs towards the government, from one of faith in leaders to distrust of

or reduction in clandestine activities. At the very least, the

democratic institutions whose foibles are increasingly exposed.

achievements of whistleblowers lie in the recognition that ele-

Historically, whistleblowers have exposed unethical, exploita-

ments of an Orwellian state are not so remote.

tive practices in institutions and the government. Take, for exam-

Afforded one-year asylum, Snowden is temporarily safe in

PLE ÂŹ+ATHRYNÂŹ"OLKOVAC ÂŹWHOÂŹBLEWÂŹTHEÂŹWHISTLEÂŹONÂŹTHEÂŹINVOLVEMENTÂŹ

Russia. Whilst it is not likely that he will reveal further dam-

of U.N officers in sex trafficking in Bosnia, and the Watergate

aging information about the US government, we can look

whistleblowers, who are among the greats of their kind. The fact

forward to knowing that, in time, new material shall surface

that these events have been turned into films demonstrates the

from a presently unknown source. For as Nietzsche reflected,

ongoing fascination with those who expose the sordid secrets of

â&#x20AC;&#x153;there is nothing we like to communicate to others as much as

powerful administrations and trusted figures.

the seal of secrecy together with what lies under it.â&#x20AC;?

But at what point do these people become a venerated â&#x20AC;&#x2DC;whistleblowerâ&#x20AC;&#x2122;, as opposed to a traitor for leaking confidential information?

1. 2. 3.

Manningâ&#x20AC;&#x2122;s mammoth dump of defence information was arguably done without consideration of the documents leaked. He merely downloaded a collection of files, then uploaded them for

4.

Schenck v United States 249 U.S. 47 (1919) Brandenberg v Ohio 1969 See Sergei L. Loiko, 2013, â&#x20AC;&#x2DC;Edward Snowden requests temporary asylum in Russia in compromiseâ&#x20AC;&#x2122;, http://articles.latimes. com/2013/jul/16/world/la-fg-russia-snowden-20130717 , Los Angeles Times See David Sherfinski â&#x20AC;&#x153;Most Consider Snowden a Whistle-blower, not a Traitorâ&#x20AC;? The Washington Times, August 1, 2013 http://www. washingtontimes.com.

the world to read, without considerable thought as to what they detailed. Manningâ&#x20AC;&#x2122;s actions appear to be that of a man caught up in the act, for the sake of the act itself. Snowden, however, was rather selective in what he revealed, indicating some sense of concern for an issue. Despite their common means, the end

The Full Bench


39

The Full Bench


Take two for Radovan KaradŞic WILL THE ICTY BRING KARADŽIC TO JUSTICE?

practising as a new age healer.3 He was arrested in the Serbian capital of Belgrade in 2008.

From Acquittal to Reversal

RADOVAN KARADŽIC MAY HAVE HAD MANY FACES OVER THE YEARS, BUT HIS HANDIWORK IS STILL RECOGNISABLE. IVANA KATIC INVESTIGATES WHO EXACTLY KARADŽIC IS, WHAT HE HAS ALLEGEDLY DONE AND WHY HE IS AGAIN BEING BROUGHT TO JUSTICE FOR GENOCIDE. 40

FRANCESCA ELIAS ARCIULI

4HEÂŹ 4RIALÂŹ #HAMBERÂŹ OFÂŹ THEÂŹ )#49ÂŹ ONÂŹ ÂŹ *UNEÂŹ ÂŹ found, inter alia, that there was â&#x20AC;&#x153;no evidence, even taken at its highest, which could be capable of supporting a conviction for genocide in the municipalitiesâ&#x20AC;?4 pursuant TOÂŹ !RTICLEÂŹ  ÂŹ OFÂŹ THEÂŹ )#49ÂŹ STATUTEÂŹ 4HEÂŹ JUDGMENTÂŹ FORÂŹ +ARADäICSÂŹACQUITTALÂŹWASÂŹDECIDEDÂŹPURSUANTÂŹTOÂŹ2ULEÂŹ bis OFÂŹTHEÂŹ)#49ÂŹ2ULESÂŹWHEREÂŹACQUITTALÂŹCANÂŹOCCURÂŹIFÂŹTHEREÂŹISÂŹhNOÂŹ evidence capable of supporting a conviction.â&#x20AC;? Rule 98 bis further provides that the evidence of the Prosecution is to be taken at its highest and assumed to be credible. The Trial Chamber held that at its highest, the

The Appeals Chamber of the International Criminal Tribunal

evidence before it could not support the finding that the

FORÂŹ THEÂŹ FORMERÂŹ 9UGOSLAVIAÂŹ @)#49 ÂŹ HASÂŹ REVERSEDÂŹ 2ADOVANÂŹ

conditions in detention facilities across the municipalities

+ARADäICS ACQUITTAL FOR ONE COUNT OF GENOCIDE IN RELATION TO

â&#x20AC;&#x153;reached a level which could support an inference that

municipalities across Bosnia and Herzegovina claimed as

Bosnian Muslims and/or Bosnian Croats were detained in

Bosnian-Serb territory.

conditions of life calculated to bring about their physical

What is the ICTY?

destructionâ&#x20AC;?.5ÂŹÂŹ4HISÂŹWASÂŹONEÂŹOFÂŹTHEÂŹREASONSÂŹWHYÂŹ+ARADäICÂŹ

4HEÂŹ)#49ÂŹISÂŹAÂŹ5NITEDÂŹ.ATIONSÂŹCOURTÂŹSITUATEDÂŹINÂŹ4HEÂŹ(AGUE ÂŹ

was acquitted on one of the two counts of genocide

The Netherlands. It was established in 1993 to bring perpetrators

against him. However, the Trial Chamber upheld the

OFÂŹWARÂŹCRIMESÂŹINÂŹTHEÂŹSÂŹ"ALKANÂŹWARSÂŹTOÂŹJUSTICEÂŹ4HEÂŹ)#49ÂŹISÂŹ

REMAINING COUNTS AGAINST +ARADäIC FOR WAR CRIMES  AS

responsible for the indictment of 161 individuals charged with

presented in the Prosecution indictment.

offences of genocide, crimes against humanity, violations of the

The Prosecution relied on a number of submissions

laws and customs of war, and grave breaches of the Geneva

in attempting to reverse the acquittal. Core amongst

Conventions.1ÂŹ 4HEÂŹ )#49ÂŹ DEALSÂŹ WITHÂŹ CRIMESÂŹ COMMITTEDÂŹ BYÂŹ

these was the assertion that the Trial Chamber had

NATIONALSÂŹFROMÂŹALLÂŹFACTIONSÂŹOFÂŹTHEÂŹFORMERÂŹ9UGOSLAVIA

erred in its assessment of the evidence presented to it.

Who is Radovan KaradĹži ?

The Appeals Chamber noted evidence on the record

$URING THE "ALKAN WARS OF THE S  +ARADäI WAS THE

which indicated that Bosnian Muslim and Bosnian-Croat

president of Republika Srpska, an independent legal entity

detainees across detention facilities in the municipalities

of Bosnia and Herzegovina. As former leader of the Bosnian-

were kicked, beaten with numerous objects, thrown down

3ERBS  +ARADäIC STANDS ACCUSED OF PARTICIPATING IN A *OINT

flights of stairs, had their heads smashed against walls,

Criminal Enterprise committed to removing Bosnian Muslims

were subjected to cruel and inhumane treatment and

and Bosnian-Croats from parts of Bosnia and Herzegovina

forced labour, were not provided adequate shelter, food,

â&#x20AC;&#x153;through a campaign of persecutionsâ&#x20AC;?.2

water, medical assistance or hygiene, and were sexually

!SPARTOFTHISCAMPAIGN+ARADäIC ALONGWITHMANYOTHERS 

assaulted.6

has been indicted for the â&#x20AC;&#x2DC;ethnic cleansingâ&#x20AC;&#x2122; of Serb-held parts

The Appeals Chamber looked to Article 4(2)(b) of the

OF "OSNIA AND (ERZEGOVINA +ARADäIC EVADED CAPTURE BY THE

)#49ÂŹ3TATUTEÂŹWHICHÂŹPROVIDESÂŹTHATÂŹhCAUSINGÂŹSERIOUSÂŹBODILYÂŹ

)#49ÂŹ THROUGHÂŹ ADOPTINGÂŹ THEÂŹ PSEUDONYMÂŹ @$RAGANÂŹ $ABICÂŹ ANDÂŹ

or mental harm to members of the groupâ&#x20AC;? constitutes

The Full Bench


4!+%ÂŹ47/ÂŹ&/2ÂŹ2!$/6!.ÂŹ+!2!$:)#ÂŹ

RADOVAN KARADĹ˝IC: AS PRESIDENT OF THE REPUBLIKA SRPSKA IN THE EARLY 1990S (LEFT), EVADING CAPTURE AS NEW AGE HEALER â&#x20AC;&#x2DC;DRAGAN DABICâ&#x20AC;&#x2122; UNTIL 2008 (MIDDLE), AND FACING CHARGES FOR WAR CRIMES BEFORE THE ICTY (RIGHT). an â&#x20AC;&#x153;underlying actâ&#x20AC;? of genocide. In light of

is no evidence capable of demonstrating

this and the evidence on record, the Appeals

the actus reus of deliberately inflicting

Chamber considered that â&#x20AC;&#x153;no reasonable

conditions of life calculated to destroy.â&#x20AC;?

AGAINST +ARADäIC PERTAINS TO HIS ALLEGED

Trial

This error amounted to a miscarriage of

involvement in the Srebrenica massacre.

justice.

The decision to reverse the first count of

Chamber

reviewing

the

specific

evidence on the record in this case â&#x20AC;Ś could

9

strong case in the defence phaseâ&#x20AC;?.12 The second count of genocide

have concluded that it was insufficient to

Accordingly, the acquittal for one

genocide took place on the same day

establish the actus reus of genocide in the

count of genocide was reversed on 12

that Srebrenica survivors marked the

context of Rule 98 bis of the Rulesâ&#x20AC;?.7

July of this year. The effect of this reversal

eighteenth anniversary of the Srebrenica

The Prosecution also argued in its

DOES NOT RESULT IN +ARADäIC BEING FOUND

genocide, described by many as the

submissions that the Trial Chamber had erred

â&#x20AC;&#x2DC;guiltyâ&#x20AC;&#x2122; of genocide, but reinstates the

worst war time atrocity to have occurred

in law as it had failed to find that the evidence

charge of genocide him. As a result,

in Europe since the Second World War.

on the record met the requirements of Article

+ARADäIC ONCE MORE STANDS ACCUSED OF

Survivors reburied the remains of more

 C ÂŹ OFÂŹ THEÂŹ )#49ÂŹ 3TATUTEÂŹ 4HISÂŹ PROVISIONÂŹ

â&#x20AC;&#x153;planning, instigating, ordering and/or

than 409 Srebrenica victims identified

stipulates that â&#x20AC;&#x153;deliberately inflicting on the

aiding and abettingâ&#x20AC;? genocide against

in recent exhumations, after being

group conditions of life calculated to bring

Bosnian Muslims and Bosnian-Croats.

executed and dumped in mass graves

10

during the Balkan wars.13

about its physical destruction in whole or in

+ARADäICNOWFACESELEVENCHARGESAS

partâ&#x20AC;? forms an underlying act with respect

outlined in the Prosecution indictment,

For the survivors and families of the

to genocide. The Prosecution put forward

INCLUDINGÂŹ TWOÂŹ COUNTSÂŹ OFÂŹ GENOCIDEÂŹ WITHÂŹ

victims of the 1990s Balkan wars, one

that the evidence before the Trial Chamber

the second count being for his alleged

would humbly assume that this is a fitting

demonstrated that Bosnian Muslims and

involvement in the 1995 Srebrenica

ANDÂŹTIMELYÂŹDECISIONÂŹBYÂŹTHEÂŹ)#49ÂŹ

Bosnian-Croats were regularly put through

massacre), persecutions, extermination,

conditions which, in other trials, have been

murder, deportation, inhumane acts,

held to satisfy the elements of Article 4(2)(c)

terror, unlawful attacks, and taking of

OFÂŹTHEÂŹ)#49ÂŹSTATUTE

hostages.11

The Appeals Chamber considered the

Concluding Observations

evidence on the record and found that the

!LTHOUGH +ARADäIC HAS CHOSEN TO

Trial Chamber had erred in fact. The Appeals

represent himself in defending the

Chamber put forward that the Prosecutionâ&#x20AC;&#x2122;s

charges, the Tribunal provides the funds

evidence, taken at its highest, established

for lawyers to assist him to ensure a fair

that Bosnian Muslims and Bosnian-Croats

trial. Peter Robinson is the principal

were put through conditions â&#x20AC;&#x153;that would

LAWYER ASSISTING +ARADäIC WITH HIS

bring about their physical destructionâ&#x20AC;? and

DEFENCE 2OBINSON STATED THAT +ARADäIC 

hence, potential genocide.8 The Appeals

â&#x20AC;&#x153;is taking on board their comments

Chamber concluded that, â&#x20AC;&#x153;no reasonable trial

about the crimes and his intent and we

chamber could have concluded â&#x20AC;Ś that there

are determined to go on and put on a

The Full Bench

1. 2. 3.

4. 5. 6. 7. 8. 9. 10. 11. 12.

13.

ICTY, Infographic: ICTY Facts and Figures ICTY < http://www.icty.org/sid/11186> at 21 July 2013. The Prosecutor v Radovan KaradĹžic (Judgment) [2013] IT-95-5/18-AR98bis.1, 1. Jack Hitt, Radovan KaradĹžicâ&#x20AC;&#x2122;s new age adventure (2009) The New York Times, <http:// www.nytimes.com/2009/07/26/magazine/ 26KaradĹži -t.html?pagewanted=all&_r=0> at 21 July 2013. The Prosecutor v Radovan KaradĹžic (Transcript of 28 June 2012) IT-95-5/18-T, 28769-28770. Ibid, 28768. The Prosecutor v Radovan KaradĹžic (Judgment) [2013] IT-95-5/18-AR98bis.1, 12 â&#x20AC;&#x201C; 14. Ibid, 14- 15. Ibid, 19. Ibid, 20. The Prosecutor v Radovan KaradĹžic (Indictment) IT-95-5-18-PT, [30]. Ibid, [5] â&#x20AC;&#x201C; [35]. Associated Press in the Hague, Radovan Karad Ĺži genocide charge reinstated by UN judges (2013) The Guardian, <http://www.guardian. co.uk/world/2013/jul/11/radovan-karadzic-genocide-charge> at 19 July 2013. Unknown, UN judges reinstate KaradĹži genocide charge (2013) Aljazeera <http://www.aljazeera.com/news/europe/2013/07/2013711134946866457.html> at 19 July 2013.

41


1ÂŹÂŹ!ÂŹ*!-%3ÂŹ#2!7&/2$

Q & A with James Crawford AC SC FBA Interviewee profile

After reading about James Crawfordâ&#x20AC;&#x2122;s significant contributions

NAME: James Crawford AC SC FBA

to international legal practice, reform, and arbitration, LAUREN FITZPATRICK

RELEVANT EXPERIENCE: James is Whewell Professor of

wanted to discover how he made his

International Law at Cambridge

way up in the world of international law.

University, and concurrently Research Professor of Law at Latrobe University

Q: How do you believe that studying

in Melbourne. He studied his LLB at Adelaide University,

overseas at the University of Oxford

and then went to the University of Oxford to complete his

impacted on your career prospects?

doctorate on the creation of states in international law. He held a position at the Australian Law Reform Commission,

42

Studying overseas is virtually essential for a career

and was the first Australian member of the United Nations

in international law, usually at Cambridge, Oxford, New

International Law Commission. He has appeared in more

9ORKÂŹ5NIVERSITY ÂŹORÂŹ4HEÂŹ'RADUATEÂŹ)NSTITUTEÂŹ'ENEVAÂŹ)ÂŹ

than 40 cases before the International Court of Justice,

did a doctorate at Oxford, under the supervision of Ian

and other international tribunals. In 2012, the Australian

Brownlie.

government declared that it supported Jamesâ&#x20AC;&#x2122; candidature for the International Court of Justice bench in 2014.

Q: What do you see as the most important report you produced at the Australian Law

Q: Did you always have an interest in international

Reform Commission?

law when studying your LLB? In terms of its effects: The report on Civil Admiralty My interest in international law was triggered fairly early. My first

Jurisdiction in 1986. It concerned the continuing

exposure to international relations was in 1962, when I was a second- application of the Colonial Courts of Admiralty Act year high school student during the Cuban missile crisis. And what I

1890 (Imp), which was the source of a number of

knew then was that the world was on the brink of nuclear war, or at

uncertainties and unjustified limitations on jurisdiction.

least a nuclear engagement. It made me realise that the world did

We recommended a new uniform admiralty jurisdiction for

not revolve around Adelaide, and I wanted to be part of it.

Australia, enacted in 1988. This also led to a second report

At the same time, I was becoming a lawyer, and I believe in law as one of the tools that we use to create some measure of order in our lives. I studied international law in 1968, during the protests

on Criminal Admiralty Jurisdiction and Prize in 1990. In terms of effort: The report on the Recognition of Aboriginal Customary Laws in 1986, which addressed

ABOUTÂŹ6IETNAM ÂŹANDÂŹSOÂŹONÂŹ)ÂŹPUTÂŹTOGETHERÂŹMYÂŹINTERESTÂŹINÂŹINTERNATIONALÂŹ whether courts should be able to apply Aboriginal relations and my interest in the law itself, and decided that a career in international law was what I would like to do.

customary law in criminal cases, and whether Aboriginal communities themselves should have the power to apply customary laws on punishment and rehabilitation.

The Full Bench


1ÂŹÂŹ!ÂŹ*!-%3ÂŹ#2!7&/2$ÂŹ

Q: What were your responsibilities as a member of

Q: What do you believe is the biggest impediment

the United Nations International Law Commission?

in enforcing international law? Does State sovereignty have an impact in some way?

I was elected as a member of the Commission in 1992. I was responsible for the draft Statute of the International Criminal Court,

)TÂŹISÂŹNOTÂŹREALLYÂŹAÂŹQUESTIONÂŹOFÂŹSOVEREIGNTYÂŹ3TATESÂŹAGREEÂŹTOÂŹLIMITÂŹ

which we completed in 1994, and from 1997â&#x20AC;&#x201C;2001 I also served as

their sovereignty when they consent to rules of international

Special Rapporteur on State Responsibility. As Special Rapporteur,

law. The impediments to â&#x20AC;&#x153;enforcingâ&#x20AC;? international law vary

I was responsible for shepherding the Articles on the Responsibility

greatly among different areas of international law â&#x20AC;&#x201C; investment,

of States for Internationally Responsible Acts into their final form.

trade, human rights, the use of force, the law of the sea. It

This was achieved and recognised by the United Nations General

also depends partly on whether binding dispute resolution

Assembly in 2001. Since then, the Articles have had a substantial

is available, as it frequently is in some of those areas, but

impact on the international law of state responsibility, and are

often isnâ&#x20AC;&#x2122;t in others. In any event, international law routinely

frequently cited by international courts and tribunals.

governs matters such as territorial jurisdiction, communications, transportation, diplomatic relations, and so on. Most states

Q: You have extensive practice in international law

comply with most rules of international law almost all of the

and international arbitration. Is this something you time, regardless of whether they are â&#x20AC;&#x153;enforcedâ&#x20AC;?. were always working towards? Q: Do you have any advice to offer law students 9ESÂŹ)TÂŹWASÂŹONEÂŹTHINGÂŹTOÂŹASPIREÂŹTOÂŹAÂŹCAREERÂŹINÂŹINTERNATIONALÂŹLAW ÂŹ

interested in specialising in international law?

ANOTHERÂŹTHINGÂŹFORÂŹITÂŹTOÂŹHAPPENÂŹ9OUÂŹNEEDÂŹBOTHÂŹLUCKÂŹANDÂŹABILITYÂŹnÂŹMOREÂŹ luck than ability, because it is one thing to take your chance, and

Work hard, do as well as you can in your first degree, do at

another thing to have that chance in the first place.

least a Masterâ&#x20AC;&#x2122;s degree abroad, and then follow your nose! And

When I began my career, it was more difficult than it is now.

good luck!

Now, there are more cases, more institutions, and more arenas for practising international law. At the same time, thereâ&#x20AC;&#x2122;s a great deal more specialisation than there used to be. I grew up in the era of the â&#x20AC;&#x153;general international lawyerâ&#x20AC;?. And I still think as a general international lawyer, without much regard to internal categorisation.

Q: What do you believe is the most significant

For the full set of questions

case you have worked on on Australiaâ&#x20AC;&#x2122;s behalf at

and answers, check out The

international tribunals?

Full Bench Facebook page!

East Timor (Portugal v Australia) in the International Court from 1991â&#x20AC;&#x201C;5. Australia had recognised Indonesian sovereignty over East Timor in order to secure Indonesian agreement to the Timor Gap Treaty. Portugal, the former coloniser, alleged that Australia had breached its obligation to respect Portugalâ&#x20AC;&#x2122;s duties and powers as the administrating power in international law, and East Timorâ&#x20AC;&#x2122;s own right to self-determination. The court ultimately held that, since it would have to rule on the lawfulness of Indonesiaâ&#x20AC;&#x2122;s conduct, it was not able to exercise jurisdiction in the case in the absence of Indonesia as a party â&#x20AC;&#x201C; though it noted that East Timor remained a self-governing territory with a right to self-determination.

The Full Bench

w w w. f a c e b o o k . c o m / UTSTheFullBench2012

f

43


2%6)%7ÂŹ!,3!ÂŹ#/.&%2%.#%ÂŹ ÂŹ0/,)4)#3ÂŹ6ÂŹ-/2!,)49

Review BY ANITA JURIC AND LOUISE ZHAN

POLITICS VERSUS MORALITY: A REPORT FROM THE 2013 CLAYTON UTZ ALSA CONFERENCE, PERTH ANITA JURIC and LOUISE ZHAN attended the Refugee and

Panel:

Asylum Seeker discussion, which took place at Perth

Carina HoangÂŹnÂŹ#ARINAÂŹESCAPEDÂŹ6IETNAMÂŹ

Town Hall. The event was part of the Education and Social

ASÂŹAÂŹREFUGEEÂŹATÂŹTHEÂŹENDÂŹOFÂŹTHEÂŹ6IETNAMÂŹ7ARÂŹ

Justice programme endeavouring to inspire social change

and after a dire journey she resettled in the United States. She is a strong advocate for

and bring issues of international law to the fore of student

refugees and has spoken widely of her own

debate. The panel consisted of passionate speakers who

experience, aiming to raise awareness. At

commented on the political, legal and humanitarian issues

present, Carina is a Special Representative

surrounding Australiaâ&#x20AC;&#x2122;s asylum seeker policy.

for the United Nations High Commissioner for Refugees (UNHCR), alongside Governor General Quentin Bryce, sportsman Mark Schwarzer and actress Angelina Jolie.

Definitions Asylum seeker: An â&#x20AC;&#x2DC;asylum seekerâ&#x20AC;&#x2122; is an individual who seeks safety in another country and waits for his/her claim as a refugee to be assessed.1 It is not

Ellen Hansen â&#x20AC;&#x201C; Senior Protection Officer with

illegal to seek asylum.

the UNHCR Regional Office in Canberra, with over 25 years of experience in the field

44

of international law. She has worked with the Department of Foreign Affairs and Trade as well as the UNHCR Secretariat in Geneva.

Refugee: According to the 1951 Convention, a â&#x20AC;&#x2DC;refugeeâ&#x20AC;&#x2122; is any person who: @xOWINGÂŹTOÂŹWELLFOUNDEDÂŹFEARÂŹOFÂŹBEINGÂŹPERSECUTEDÂŹFORÂŹREASONSÂŹOFÂŹRACE ÂŹRELIgion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is UNWILLINGÂŹTOÂŹAVAILÂŹHIMSELFÂŹOFÂŹTHEÂŹPROTECTIONÂŹOFÂŹTHATÂŹCOUNTRYÂŹORÂŹWHO ÂŹNOTÂŹHAVINGÂŹ

Judyth Watson â&#x20AC;&#x201C; A former Member of the Legislative Assembly, who was the Minister for Aboriginal Affairs, Multicultural and Ethnic Affairs under Premier Carmen Lawrence. She is now a member of the management committee for the Coalition for Asylum Seekers, Refugees and Detainees (CARAD).

Moderator: James McHale â&#x20AC;&#x201C; A former lawyer with Clayton Utz and current national presenter for ABC News WA.

a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to itâ&#x20AC;Śâ&#x20AC;&#x2122;2

The current policy The Papua New Guinea (PNG) solution is the latest policy proffered by the Labor Government in an attempt to deter people smuggling. Under this policy all individuals who arrive without a visa will be processed and settled in PNG. It seems that this is yet another example of the Australian Governmentâ&#x20AC;&#x2122;s progressively rigid policies towards asylum seekers, which becomes even more apparent when compared to the halcyon years of the Fraser Government WHEREÂŹ 3OUTHÂŹ 6IETNAMESEÂŹ @BOATÂŹ PEOPLEÂŹ WEREÂŹ WELCOMEDÂŹ INTOÂŹ !USTRALIAÂŹ WITHÂŹ open arms.

The Panel Discussion Is this policy effective? Whilst opposing political views remain prevalent, the effectiveness of this solution as a sufficient deterrent is seemingly dubious. The panel discussed Australiaâ&#x20AC;&#x2122;s international legal obligations in light of attempts to develop

The Full Bench


a regional solution to the issue of asylum seekers, such as Australiaâ&#x20AC;&#x2122;s human rights obligations under the International Covenant on Civil and Political Rights. In this discussion Judyth Watson emphasised that it is pivotal to understand the desperation experienced by asylum seekers when considering appropriate policy options. Judyth drew on her experience and contact with many refugees, which has allowed her to learn about their personal reasons for uprooting their lives and leaving their home countries. The

OXFAM INTERNATIONAL

recurring pattern she found was that individuals were intent To individuals that prefer a hard line approach to asylum

on escaping from the bleak conditions in their home countries even if the passage to Australia was not guaranteed.

seeker policy, the issue may be viewed through a commercial

The logical extension of this discussion is that whilst the

lens and perceived as merely a lucrative business unworthy of

PNG solution may appear practical in preventing the arrival

moral sympathy. However, in light of Carinaâ&#x20AC;&#x2122;s story it is difficult to

of refugees to Australia, its effectiveness may be brought into

detract from ethical considerations when considering the threats

question as the issues driving the flow of refugees in the first

of homeland persecution and suffering that refugees are subject

place remain in existence.

to. The discussion further emphasized ethical questions by

The question of motive

delving into the â&#x20AC;&#x2DC;no advantage principleâ&#x20AC;&#x2122;, which was enacted

The panel raised the point that there often appears to

in August 2012. Under this principle peopleâ&#x20AC;&#x2122;s claims will be

be escalated discussion of this issue during election time. It

processed no faster than if they had used regular options.3 The

was suggested that the formulation of government policy is

aim is thus that there will be no advantage or benefit arriving

inextricably influenced by the need to appease sections of

onshore and, indeed, there is no guarantee people who arrive by

the Australian electorate in order to garner votes.

boat will ever come to Australia.4

In this regard, it is worth noting that, Australian immigration

The panel suggested that the principle could be interpreted

law has been littered with ever changing approaches to its

as an unethical conception, where theory fractures in practice. In

Refugee and Humanitarian Programme. Policies such as

this regard, members of the panel referred to exploitative housing

John Howardâ&#x20AC;&#x2122;s Pacific Solution and Julia Gillardâ&#x20AC;&#x2122;s Malaysian

conditions and mental health issues that may develop from the

Solution arguably reflect the political motivation of each party

long periods of detention that refugees often experience.

rather than any genuine attempt to process asylum seekers.

Conclusions following the panel discussion What about morality?

Whether you agree or disagree with the current political

Carina Hoang provided poignant insight into the plight

stance, it is fair to say that the issue of asylum seekers is a complex

of refugees. Carina relayed her own experience as a child

moral dilemma faced by countries all over the world that attracts

mEEINGÂŹ 3AIGONÂŹ DURINGÂŹ THEÂŹ AFTERMATHÂŹ OFÂŹ THEÂŹ 6IETNAMÂŹ 7ARÂŹ INÂŹ

divergent perspectives. The insights of the panel reinforce this

ÂŹ3HEÂŹANDÂŹHERÂŹTWOÂŹSIBLINGSÂŹATTEMPTEDÂŹTOÂŹESCAPEÂŹ6IETNAMÂŹ

and suggest that in the struggle to resolve public and private

four times prior to their successful fifth attempt, where they

interests, morality should always play a role.

reached Indonesia and were rescued by UNHCR three months later. She described her journey as arduous and dangerous, experiencing encounters with corrupt groups and a lack of basic resources.

1 Once an individual is assessed as a refugee, then Australia is obliged under international law to ensure that they are not sent back to their home country unwillingly if there is a risk of persecution. 2 UN General Assembly, Convention Relating to the Status of Refugees, 28 July 1951, United Nations, Treaty Series, 189 UNTS 152. 3 Department of Immigration and Citizenship, Australian Government, Fact Sheet: The Expert Panel on Asylum Seekers and the â&#x20AC;&#x2DC;no advantageâ&#x20AC;&#x2122; principle (2013) <http://www.immi.gov.au/managing-australias-borders/border-security/irregular-entry/no-people-smuggling/_pdf/factsheet-english.pdf> 4 Ibid.


DEBATE: UNITED NATIONS

Stop. Hammer time. IS THE UNITED NATIONS AN EFFECTIVE INTERNATIONAL PEACEKEEPING INSTITUTION?

FOR

AGAINST

By Pavlina Zdraveski

46

By Laila Nawsheen

The collective goal of the United Nations is to promote

1994 was the Rwandan genocide. Over the course of

peace, security and economic development. It has already

one month, Hutu mobs, armed with superior weapons,

proven itself to be very effective and through its unique

butchered 80,000 of their Tutsi neighbors. To put this into

structure continues to show us why it is one of the most

perspective, roughly 45,000 people attended last yearâ&#x20AC;&#x2122;s

powerful international peacekeeping tools in the world.

Stereosonic festival in Melbourne. And in 1993, the year

First, the UN already has a strong record of establishing

before Rwanda, was the beginnings of the Darfur genocide

enduring peace. It has helped to achieve this through

which, to date, has claimed over 480,000 livesâ&#x20AC;&#x201C; thatâ&#x20AC;&#x2122;s about

international law created within its framework. One clear

11 Stereosonics and then some.

example is the Non-Proliferation Treaty which has assisted

The problem with numbers is that they donâ&#x20AC;&#x2122;t resemble

in ensuring that no nuclear bomb has exploded since WWII.

people. Last week it was announced that the official death

The UNâ&#x20AC;&#x2122;s record for peacekeeping also speaks for itself

toll in Syria has just exceeded 100,000. The UN have

despite receiving a lot of criticism. We need look no further

likened it to Rwanda, however in this case the death toll

than the UNâ&#x20AC;&#x2122;s work in Namibia, El Salvador, Cambodia,

has exceeded Rwandaâ&#x20AC;&#x2122;s by more than 20,000. The UNâ&#x20AC;&#x2122;s role

Mozambique and East Timor to see the demonstrated

in Syria has been called the last failure of former Secretary

successes of UN peacekeeping.

'ENERALÂŹ+OlÂŹ!NNANÂŹ(OWEVER ÂŹTHEÂŹ5.ÂŹSHOULDÂŹNOTÂŹBEÂŹHELDÂŹ

The UN is also important because it galvanises

accountable for the devastation in Syria. In light of its

discussion between nations which can lead to peace. The

dismal resources and outdated administration, it would

UN is a vital avenue by which governments of nation-states

be impossible for the UN to even reasonably assist in such

can have an open dialogue and work together to solve

conflict.

international conflicts and other problems. This multi-

The blueâ&#x20AC;&#x201C;helmeted troops enlisted by the UN are

lateral diplomacy is a very effective measure in international

only one and a half Stereosonics worldwide. And, as the

peacekeeping.

organisation was founded in the reflection period of WWII,

The UN is also the biggest organisation of its kind and

the structure is modeled in a way that was intended to

in international peacekeeping, bigger is always better. In

encourage diplomacy between states, not within them.

particular, the size of the United Nations makes it invaluable

Modern warfare has given us primarily civil war, and itâ&#x20AC;&#x2122;s

to the distribution of humanitarian aid and other services

difficult (if not impossible) to stop a dictator from killing

on a global scale especially in post-conflict reconstruction

his own people when those who make these decisions are

of nations. No other organisation, national or international,

casting their votes with motives that have little to do with

is able to do this task on such a large scale.

the bringing relief to a foreign stateâ&#x20AC;&#x2122;s internal massacre.

The UN has had considerable success in international

Genocide is not a problem that can be dealt with by

peacekeeping and will continue to do so. It is because of

a small international army and a significantly diminished

this success that we can conclude that no other institution is

resource base. The UN is a necessary organisation but

as effective in keeping the peace at a global level.

to be considered a key force in peacekeeping, it needs serious reform and plenty more money.

The Full Bench


6%2"!4)-¬,!7¬3#(//,¬*/+%3

Verbatim Q: What’s the difference between a jellyfish and a lawyer? A: One’s a spineless, poisonous blob. The other is a form of sea life. Q: What’s the difference between accountants and lawyers? A: Accountants know they’re boring. Q: What’s the difference between a lawyer and God? A: God doesn’t think he’s a lawyer. Q: How many lawyers does it take to screw in a light bulb? A: Three. One to climb the ladder, one to shake it, and, one to sue the ladder company.

Q: What’s the difference between a good lawyer and a bad lawyer? A: A bad lawyer can let a case drag out for several years. A good lawyer can make it last even longer.

47 Q: Santa Claus, the tooth fairy, an honest lawyer, and an old drunk are walking down the street together when they simultaneously spot a hundred dollar bill. Who gets it?

A: The old drunk, of course, as the other three are fantasy creatures. Q: How many lawyer jokes are in existence? A: Only three. All the rest are true stories.

A prominent young attorney A woman and her little girl were

is on his way to court when a

visiting the grave of the little girl’s

bus hits him. Suddenly he finds

grandmother. On their way through

himself at the Pearly Gates

Three partners of a law firm were

the cemetery back to the car, the

facing St Peter.

attending a conference at the Gold

little girl asked, “Mummy, do they

“This has to be a mistake!”

Coast. As the plane carried them to

ever bury two people in the same

exclaims the lawyer. “I am much

their destination, one of the partners

grave?”

too young to die! I’m only 35!”

gulped and told the second partner,

“Of course not, dear,” replied the

St Peter replies, “Gee, that’s

“Oh my gosh, I forgot to lock the safe”.

mother. “Why would you think that?”

funny. Based on the number of

The third partner said, “There’s nothing

“The tombstone back there said...

hours you have billed to clients,

to worry about. All three of us are

‘Here lies a lawyer and an honest

we thought you had to be at

here!”

man.’”

least 105!”

The Full Bench


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THE FULL BENCH

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and further editions of The Full Bench hit the stands

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www.utslss.com

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2013 The Full Bench Ed 3  

This is the third edition of The Full Bench published in 2013 by the UTS Law Students' Society.

2013 The Full Bench Ed 3  

This is the third edition of The Full Bench published in 2013 by the UTS Law Students' Society.

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