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AUSTRALIA v THE WORLD: COMPARATIVE LAW ISSUE 04 2014 UTS LAW STUDENTS’ SOCIETY

1 EDITORIAL

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10 WORDS OR LESS Abbott’s Climate Summit no-show.

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THE CLAIM TO ABORIGINAL SOVEREIGNTY Can Indigenous sovereignty co-exist with the mainstream Australian legal system?

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A MODEL WORTH IMPORTING Live export in New Zealand and Australia.

SPOTLIGHT *BRAND NEW* …on the Brennan Program.

TREATY OBLIGATIONS IN AUSTRALIA AND GERMANY How does the Australian system compare? 28

BLIND JUSTICE AT THE COST OF HUMANITY The approach to corporal punishment and torture in the modern era.


tfb 2014

[Issue 04] the full bench EDITORS

Francesca Elias Arciuli Emily Meller Sefakor Dokli Johanna Fisher

DESIGNER Tom Stoddard

COVER ARTIST © 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 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. . Images and illustrations All images, unless provided to TFB personally for the purposes of this publication, were sourced from the photosharing website ‘Flickr’, with attribution provided within the text to specific publishers.

Fredrick Aplstedt, 2014.

MARKETING Olivia Kilponen

WITH SPECIAL THANKS TO

Ashleigh Barnes, Vice President (Education), and Lloyd Wood, President of the UTS LSS, for their guidance, support and contribution to the third edition of The Full Bench in 2014.

WITH FURTHER THANKS TO

Daniel Mckenzie, Susie McKenzie and Co. Kwik Kopy Neutral Bay 6/129-133 Military Rd, Neutral Bay, NSW 2089 Tel 02 9953 3077 Fax 9953 0530 www.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 Website www.utslss.com


CONTENTS 4. President and VPE Address 5. Editorial 6. Editors’ Question 9. 10 Words or Less 11. Discerning the Differences - Peter Attia 12. Enforcing Illegality - Emily Meller & Francesca Elias Arciuli 14. The Claim for Aboriginal Sovereignty - Te Raina Chan

18. Treating Obligations in Australia and in Germany - Matthew Page 20. Raising the Bar - Sylvia Xiao 22. Flying Across Jurisdictions - Samantha Williams 24. A Model Worth Importing - Ashleigh Best 25. Spotlight 28. Blind Justice at the Cost of Humanity - Dominic Smith 30. A False Protection - Ali Syed 31. Health Care - Hemant Vijaykumar 32. Ever-greening - Jinan Hammoudi 33. Stop. Hammer Time. - Bianca Newton and Johanna Fisher 35. Verbatim

EDITORIAL

16. Entrenching Freedom - Bianca Balzer & Johanan Ottensooser

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FROM THE UTS LSS

FROM THE UTS LSS PRESIDENT

PRESIDENT & VPE ADDRESS

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This edition of The Full Bench is the last edition for the calendar year and therefore the last edition for the current editorial team. This final edition will also coincide with our last Speaker Series, which will also feature our TFB Awards. I hope you are reading this whilst currently in the audience and are able to applaud those hardworking individuals who have done such a fantastic job bringing this publication together this year. This theme of Comparative Law is an important one and something we must continue to keep in our sights as internationalism and economic globalisation continues to grow. The way different countries and societies regulate the same actions is particularly intriguing, as many factors come into play such as religion, culture and legal historical development. While this includes a comparison of Australian law to laws that exist internationally, such as various treaties or customary law, it can also include a comparison of laws that occur domestically, between the different states of our nation. This edition, however, will focus on the former. With the 2014 tenure now wrapping up, I dearly thank all those involved in the production of four fantastic editions across these two semesters and hope that 2015 brings about a similarly brilliant team of law students to keep our law school journal at its peak. I urge you to contact the incoming Publications Director or nominate yourself for the Editorial Subcommittee to contribute and make your mark in 2015. The Full Bench in 2014 would have been nothing without the tireless work of Francesca Elias Arciuli. She has been passionate and dedicated throughout the year, moving onto the next publication before the former is even finished. She has been an asset to the 2014 Council and taken UTS LSS publications to new heights – thank you Fran! Of course, the cogs of The Full Bench, our editorial subcommittee, comprising of Emily Meller, Joanna Fisher, Sefakor Dokli and Olivia Kilponen, have been fantastic every step of the way and deserve all the praises

possible for our four wonderful publications. I would also like to thank our new designer, Tom Stoddard, who has continued to produce beautiful work and whom I hope stays on with the publication in the future. Finally, I thank Vice President (Education) Ashleigh Barnes, for her astute oversight throughout the year, our sponsors for this edition, Clayton Utz and Herbert Smith Freehills, and most importantly, our contributors and readers. Thank you to everyone who has engaged with this publication, or the UTS LSS in some other way, during your time at UTS and I hope we have been able to add something positive to your law student experience this year. Kind regards, Lloyd Wood UTS LSS President

FROM THE UTS LSS VICE PRESIDENT (EDUCATION) In the information age, an age of globalisation and increasing interconnection between nations, it would be remiss of law students to fail to consider, engage with and analyse the law of different jurisdictions. This edition of The Full Bench explores legal issues from various perspectives. As you read through the stimulating material in the subsequent pages, consider and compare the regulation of both age-old and emerging legal issues. As always, I would like to extend Lloyd’s words of thanks to all of those involved in the final edition of The Full Bench for 2014. Happy reading – consider, compare and contrast! All the best, Ashleigh Barnes Vice President (Education)


EDITORIAL With this being the final edition, we have a few people to thank! First, our President and Vice President (Education), Lloyd Wood and Ashleigh Barnes, for their support of TFB this year. Second, our 2014 designers, all three of them, without whom we would certainly not have such a superb guide. Third, Kwik Kopy Neutral Bay and specifically Susie McKenzie, for always greeting our changing schedules and regular orders with fantastic service and cheer. Last, but certainly not least, we would like to thank all of the people that contributed to TFB, especially those people that contributed more than once, and all of our readers. Without your engagement there would be no TFB (alas!), so we cherish your passion for learning and sharing your knowledge. It was a pleasure to work and engage with you all this year. We hope that you enjoy this edition, and bid you one last farewell! Please engage with TFB next year and remember to ‘Like’ The Full Bench on Facebook to remain up-to-date with all TFB related news! Goodbye, arriverderci, au revoir, adios, sayōnara, antío, selamat tinggal, poroporoaki and totsiens! Francesca, Johanna, Emily and Sefakor.

5 EDITORIAL

Welcome to the final edition of The Full Bench for this year! What a whirlwind it has been. In our four editions this year we have published over 50 articles, had over 70 contributors and printed over 350 copies of TFB for circulation. From Grangegate to provocation, the sex industry to phone tapping, there was no issue that we were unwilling to discuss; for discussion engenders learning and that is one of the core aims of the UTS LSS publications. This edition we pit Australia against the world, asking our contributors to compare the laws of our nation with those of a foreign jurisdiction. This comparative study exposes areas where Australia’s law excels, and also where it is found to be lacking. At other times, it demonstrates the attempts by all nations to grapple with difficult policy, with neither policy or law definitively classified as superior. This edition aims to reposition your perspective. We encourage our readers to cast their critical minds outwards to other nations and consider what makes good law. Is it the system of law? Or is it the preference of certain interests, such as those of the average person, over those of others, such as those of big businesses; or vice versa? These considerations, and more, are vital for us to consider as students before we go out and apply, perhaps even make, but most certainly live by, the law. As always, our contributors have risen to the challenge in an articulate, informed and diligent fashion, tackling difficult topics and taking no prisoners. Turn to the article co-authored by Bianca Balzer and Johanan Ottensooser on page 16, to read about the ever-topical debate of whether Australia should enshrine a bill of rights in its Constitution. With the aircraft disasters that have plagued this year, Samantha Williams’ analysis of aviation law (page 22) is as informative as it is topical. Page 28 features a must-read article by Dominic Smith on the differing approaches by Australia and Singapore in relation to the prohibition of torture. This edition has also seen TFB team up with the UTS LSS Social Justice portfolio to create a new segment. The SPOTLIGHT spread will feature regularly in TFB, and provide an avenue for reporting on social justice. In this edition, members of the Brennan Program who undertook a research project at Parklea Compulsory Drug Treatment Correctional Centre report on their experience and write on therapeutic jurisprudence across jurisdictions, in line with the theme of this edition. This segment is a response to many inquiries by people undertaking external social justice programs that need to publish works in academic or university publications. Whether you are one of those people, or would like to promote a social justice initiative, this is the place to get the word out! To get involved, all you have to do is respond to the call for contributors when advertised for each new edition.


EDITORS’ QUESTION The Royal Commission on Institutional Responses to Child Sex Abuse has highlighted the need for a just compensation scheme for survivors, and as asked to consider the redress necessary in its Terms of Reference. We asked our editors to caste their minds outwards to consider, what can Australia learn from compensation and redress schemes for abuse in foreign jurisdictions?

EDITORS’ QUESTION

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EMILY SAYS:

SEFAKOR SAYS:

Compensation schemes, while offering both symbolic and practical redress, are still limited. The Royal Commission has defined ‘redress’ as remedy or compensation that helps to ensure justice for victims.1 However, the effectiveness of redress schemes must be critically evaluated. In a submission, the Australian Psychological Society pointed out that they do at least offer concrete proof that the abuse suffered is illegal, and this may be a valuable part of recovery.2 The Canadian approach taken in the Indian Residential Schools Settlement Agreement 2006 which arose out of a scheme that saw many indigenous children placed into boarding schools, provides an example of approaching redress for victims of institutional abuse. The agreement involves payouts to victims in a settlement scheme, funding to the Canadian Aboriginal Healing Foundation and a Common Experience Payment (CEP) offered to all those who were placed in institutions under the scheme, with no need to prove actual damage.3 For those who suffered sexual abuse, a separate opportunity to be heard before an out of court adjudicator and receive specific damages was also provided. This scheme highlights the desire for many victims to remain anonymous and out of the court system. To be effective, any scheme must be easily accessible, made in consultation with those affected by the institution in question and publicly acknowledge that the conduct was illegal. Payouts alone will not be an effective tool in the true meaning of ‘redress.’

This Royal Commission has allowed thousands of people to have their stories of abuse heard. To tell these stories, whether cathartic or not, is almost always a difficult and emotionally taxing experience for the victims. It would therefore be entirely inadequate if the formal court process were the only form of redress available to them. Victims should not be forced to recount the harrowing tales of abuse over and over again before a team of defenders paid to poke holes in their stories. If Australia is to learn anything from the Canadian and Irish compensation schemes for abuse it is that any scheme envisioned must be creative, flexible and must look beyond the formal judicial system. Of the many schemes established in Canada to address sex abuse victims’ compensation, the Jericho Individual Compensation Program (JICP)4 appears to be a model that Australia could very well implement domestically. Under this scheme there must be a ‘reasonable likelihood’ that a claimant was sexually abused at the Jericho School, a lesser standard than the civil standard of ‘balance of probabilities’. A possible downside to such schemes is the notion of capping the amount payable to victims at a threshold falling below what a claimant could be awarded in the judicial system. Under the JICP the maximum amount claimable is CAN$60,000.00. However the less onerous burden of proof and the lack of a defence team far outweigh this concern and make the scheme an appealing model to adopt.


FRAN SAYS:

The Royal Commission has exposed the prevalence and far-reaching impact of horrific sexual offences against victims who were children at that time. Despite the numerous reported cases of child sex abuse within bodies such as the Catholic Church and Indigenous institutional facilities, victims have historically remained largely unsupported by state and federal governments in their struggle to obtain just compensation for their suffering. A national redress scheme is therefore desperately needed in order to afford survivors access to just compensation. Australia can, first and foremost, learn a lot by considering the successes and failures of its own compensation schemes. Existing redress schemes vary across Australian jurisdictions, with state and territory governments implementing their own frameworks for compensation, based on differing criteria and levels of compensation.5 Across Australia, there have been claims of institutional abuse within over 1,950 different organisations, with vast differences in the compensation policies implemented within these bodies.6 In response to this, a national redress scheme has been advocated by several leading agencies in order to effectuate the uniform application of compensation schemes. The motivating factors behind such an approach include a need for consistency and fairness in determining eligibility for compensation, coupled with increased accessibility of victims to justice.7 I agree with Emily and Sefakor that redress schemes in Canada provide a sound international reference point for policy-makers. Canada’s Grandview Redress Scheme seeks to promote access to justice for survivors of institutional child sex abuse whilst respecting the interests of victims.8 It achieves these objectives by applying principles of therapeutic jurisprudence in order to acknowledge the suffering experienced by victims. This ensures that victims do not experience further trauma in their dealings with the justice system. While such examples of international redress schemes provide a useful framework for developing a national redress system, the approach of the Australian government thus far inspires little hope for survivors. Unlike Canada, our government has been slow to adopt and implement recommendations from various bodies for a nationwide compensation scheme. Only time will tell whether this vital and necessary reform will eventuate.

The failures of the government and institutions in protecting children from sex abuse, often in breach of their duty of care to these children, calls for a redress scheme that compensates victims “adequately”. Whilst the harm and impact cannot be quantified, compensation is vital in allowing survivors to seek ongoing mental and physical support. Further to Sefakor’s reasons for rejecting formal litigation processes as the sole mechanism for redress is the fact that potential claimants face legal barriers in the courts. For example, under the ‘Ellis Defence’ the Catholic Church is not liable for the criminal activity of its clergy as it is an unincorporated entity.9 For this reason and others, a redress scheme must be instated to acknowledge and aid victims of past wrongs. Australia can learn from the Irish Redress Scheme. Based on the Canadian model, explored above by Emily, Sefakor and Jo, the Scheme similarly did not require proof of legal fault and had a lower burden of proof. Compensation was administered via the Irish Redress Board, established by the Residential Institutions Redress Act 2002 (“the Act”), and Australia could potentially follow this model. Another noteworthy aspect is that compensation was not capped. Section 5(1)(1) of the Act provided that an award was to be a ‘fair and reasonable sum, having regard to person’s unique circumstances’. The Catholic Church conversely recommends that compensation be capped,10 which undermines true recognition of the damage done and limits victims’ awards, when compared potential common law damages. This could feasibly pose a conundrum to victims, as they must decide through which avenue to seek compensation. Much is also to be learnt from the Scheme’s failures. Despite the increasing cost of compensating victims, the Church only contributed around 10% of funding and the government was forced to draw on taxpayer money.11 The Australian government must therefore seek to accurately estimate the amount owed under any potential scheme and a proportionate and sufficient amount from the responsible institutions from the outset. The Irish scheme also demonstrates the vitality of properly advertising the duration and accessibility of the scheme, and maintaining an open process in a scheme that, at least partially, will be drawing on government funds.

7 EDITORS’ QUESTION

JO SAYS:


1.

EDITOR’S QUESTION

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Royal Commission, ‘Issues Paper 6,’ 2014, (online) accessed at < http://www.childabuseroyalcommission.gov. au/submissions/752/issues-paper-6>. 2. Submission into the Royal Commission, Australian Psychological Association, (online) accessed at < http:// www.childabuseroyalcommission.gov.au/getattachment/ fa0355ef-ee0e-4403-88e3-e61ca4ff67f6/9-AustralianPsychological-Society >. 3. Laura Thomas, Simpson, L., O’Callaghan E. 2008 ‘Reparation and Redress’, Public Interest Advocacy Centre, accessed at < http://www.clcnsw.org.au/State_ Conf_08/Wednesday/Simpson_CRR.ppt>. 4. Senate Standing Committees on Community Affairs, Parliament of Australia, Forgotten Australians: A report on Australians who experienced institutional or outof-home care as children (2004) 217 http://www.aph. gov.au/Parliamentary_Business/Committees/Senate/ Community_Affairs/Completed_inquiries/2004-07/inst_ care/report/index 5. Centre for Excellence in Child and Family Welfare Inc, Submission No 7, Royal Commission into Institutional Responses to Child Sex Abuse, June 2014, 7. <http:// www.childabuseroyalcommission.gov.au/getattachment/ eb465485-de76-4863-a1ce-f0080a6e1ad4/36-Centre-forExcellence-in-Child-and-Family-Welfa> 6. Justice Peter McClelland AM, ‘2014 Families Australia Oration,’ (Speech delivered at the Child Aware Approaches Conference, Melbourne, 31 March 2014). 7. Centre for Excellence in Child and Family Welfare Inc, Submission No 6, Royal Commission into Institutional Responses to Child Sex Abuse, 2 June 2014, 5. <http:// www.childabuseroyalcommission.gov.au/getattachment/ eb465485-de76-4863-a1ce-f0080a6e1ad4/36-Centre-forExcellence-in-Child-and-Family-Welfa> 8. Reg Graycar and Jane Wangmann, ‘Redress packages for institutional child sex abuse: Exploring the Grandview Agreement as a case study in ‘alternative’ dispute resolution,’ The University of Sydney Law School Legal Studies Research Paper No. 07/50, July 2007, 5. 9. Ellis v Pell [2006] NSWSC 109. 10. Rachel Brown, ‘Catholic Church recommends new redress scheme for child sex abuse victims’, Sydney Morning Herald (online), 12 August 2014, < http://www.smh.com. au/national/catholic-church-recommends-new-redressscheme-for-child-sex-abuse-victims-20140812-1037xm. html>. 11. Law in Action, ‘Irish Redress Scheme’, BBC (online), 9 July 2009, <http://news.bbc.co.uk/2/hi/programmes/ law_in_action/8139216.stm>. 12. Ibid.


10 WORDS OR LESS Tackling Climate Change. Worth Skipping Out On? Jill Clardy, Under the Canopy, 2009

By Olivia Kilponen

‘Because the Australian people care about climate change.’ – Francesca Elias Arciuli ‘Climate change needs to be leading the political agenda.’ – Lloyd Wood ‘Because climate change is universal, not simply a remote issue.’ – Jim Koukouras ‘Because we need to be part of the solution.’ – Saad Khan ‘Because he can’t afford to piss off more Australian voters.’ – Jack Fogl ‘Abbott needs to learn to push forward for future generations.’ – Alicia Scott ‘He can’t “stop the boats” if the ice caps melt.’ – Cecilia Ngu ‘Because sustainability is a core tenant of good government.’ – Gus Wyllie ‘Because Team Environment is just as important as Team Australia.’ – Rojda Dag ‘Because if he doesn’t, it’s our future he’s gambling with.’ – Rory Macken ‘Good photo op and semblance of caring for future generations.’ – Jess Xu ‘He has a responsibility to the world to be there.’ – Grace Liley ‘Climate change is indisputable whether he likes it or not.’ – Eloise Boughton

1. 2.

United Nations, UN Climate Summit – UN Climate Summit 2014 (2014) <http://www.un.org/climatechange/summit>. Jake Sturmer, ‘Climate Summit: European Union surprised Tony Abbott will not attend high level climate talks’, ABC News (online) 16 September 2014 <http://www.abc.net.au/news/2014-09-16/eu-climate-chief-surprised-by-australia27s-un-summit-snub/5745908>.

9 10 WORDS OR LESS

A week before it was due to be held, Prime Minister Tony Abbott announced he would be skipping the United Nations Climate Summit held in New York on 23 September. On the other hand, the PM has found the time to participate in a UN Security Council meeting related to defence against terrorism – in New York, the very next day. World leaders of over 120 nations will be attending the event, in the hopes of creating a global climate change agreement. The mission statement of the event is to encourage leaders to ‘bring bold announcements and actions that will reduce emissions, strengthen climate resilience, and mobilise political will’.1 So, you know, it’s kind of important. This decision has reflected poorly when compared with other nations’ enthusiasm to engage in the climate debate. Connie Hedegarrd, Climate Chief of the European Union, expressed her disappointment in referring to the comparative commitment of world leaders in attendance – ‘they know they have a role to play and a responsibility to take in order for the world to address climate change’.2 In keeping with the theme of comparisons, one has to wonder how the attitude of Tony Abbott, in choosing not to attend the Summit, starkly contrasts with the attitudes of international political heavyweights. Attending the event would no doubt prove to voters and the international community at large that Australia is committed to tackling climate change and its associated issues. We are thus left wondering what political agendas and forces are operating in such circumstances. So, for the final 10 WORDS of 2014, we’ve called upon our readers to provide their thoughts as to why the PM should have attended and represented Australia at the Climate Summit.


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10 EDITORIAL

EDITORIAL


Emmanuel Huybrechts,, Golden Lady Justice, Bruges, Belgium, 2008

DISCERNING THE DIFFERENCES Comparing the role of Public Prosecutors in Australian and Egyptian Jurisdictions.

In every jurisdiction, the public prosecution office plays an integral role in representing the interests of the community in criminal trials. However, despite this common goal, there exist key differences across jurisdictions. PETER ATTIA considers the distinctions between the role of prosecutors in the Egyptian and Australian jurisdictions.

court simply determining the verdict. Due to the active role of judicial personnel, courts in Egypt also have the right to carry out further investigations if the presented evidence is insufficient. In Australia judges play a more passive role in ensuring that the law is applied fairly, while prosecutors bear the onus of proving the guilt of the accused beyond a reasonable doubt.7 Additionally, prosecutors in Australia must not present the evidence accompanied with any concern of winning or losing or any attempt to convince the jury of their personal point of view; thereby compromising notions of fairness and impartiality. On the contrary, Egyptian prosecutors seek conviction in their presentation of the evidence; attempting to convince the court of the guilt of the accused. Since Egyptian prosecutors are obliged to take matters to court or dismiss them based on the evidence at hand, a decision to take a matter to court implies that the accused is guilty based on the available evidence, otherwise it would be dismissed accordingly. Therefore, the case will be presented by the prosecutor in the trial with some prejudice, leaving the decision to be decided by the court without any input from a jury, as jury trials do not exist in Egypt. Therefore, while the Egyptian and Australian prosecution offices function differently based on differences in their foundations, both seek to achieve the same goal. These differences do not indicate that one jurisdiction is efficiently better than the other, however they clearly indicate the importance of a community’s history, customs and needs in shaping legal systems.

1. 2. 3. 4. 5. 6. 7. 8.

Whitehorn v R (1983) 152 CLR 657, 663. Gino Dal Pont, Lawyers’ professional responsibility (Thomson Reuters (Professional) Australia, 5thed, 2012) 588. R v Lucas - [1973] VR 693,705. Bugg, Damian, ‘The Role of the DPP in the 20th Century’ (Paper presented at the HOPAC 2007 Conference). Lenny Roth, Judicial Appointments, Parl Paper No 3/2012 (2012), 5. Nickolas James and RachaelField, The New Lawyer (John Wiley & Sons Australia, Ltd, 2013) 176. Murray Gleeson, ‘The Role of A Judge in A Criminal Trial’ (Paper presented at the Lawasia Conference,Hong Kong, 6 June 2007). Dal Pont, above n 2, 592.

11 DISCERNING THE DIFFERENCES

There are many differences between the common law system of Australia and the Egyptian civil system. In both jurisdictions, key judicial and executive institutions function differently in order to achieve the same goal of pursuing justice. The Prosecution office is one of the most important bodies that plays an essential role in both countries; representing the community against the accused in a criminal trial.1 Despite the apparent similarities between Australian Public Prosecution offices and their Egyptian counterparts, there are several distinctions between the two bodies and their origins, authorities and the mechanisms that function within the varied roles. In particular, the ethical guidelines that the Office of the Director of Public Prosecutions in Australia must comply with differ from those of the Egyptian legal system. In both jurisdictions, the Public Prosecution office plays the same role in carrying out investigations fairly and impartially and representing the community that has suffered as a result of a crime before the courts.2 This role impacts methodologically upon prosecutors’ attitudes when carrying out their duties as “ministers of justice.” 3 In general, prosecutors do not seek to convict the accused, but rather they assist courts in determining the truth and promoting justice. Despite these similarities, there exist vast differences between the two bodies. On the one hand, the Australian Office of the Director of Public Prosecutions, at both State and Federal level, is seen as part of the executive branch that operates independently from the government.4 However, on the other hand, Egypt’s Public Prosecution Office is a judicial body that works independently from the executive authority. As a result, senior public prosecutors are considered as magistrates; an integral part of the judiciary. Nevertheless, in Egypt, judges are almost only appointed from senior prosecutors to be Local Court magistrates without any contribution from the executive or legislative authorities. This is vastly different to the Australian process of judicial selection, where the executive is responsible for promoting magistrates and judges utilising different methods depending on the court in question.5 Furthermore, in Australia, magistrates, as judicial officers, bear the onus in determining whether the evidence produced by the prosecution office is sufficiently convincing.6 However, in Egypt, senior prosecutors have the right to evaluate the evidence in each case; with the


ENFORCING ILLEGALITY Comparing International Asylum Policies Although many nations, including Australia, are signatories to international treaties aiming to safeguard the rights of refugees, an examination of policy and practice demonstrates that they are not often upheld. EMILY MELLER and FRANCESCA ELIAS ARCIULI analyse the asylum policies of Australia, Malta and Sweden to highlight the disparity in global responses to the refugee crisis.

ENFORCING ILLIGALITY

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In mid 2013 there were an estimated 11.1 million refugees, and growing. 1 Although refugees predominately seek asylum in neighbouring nations,2 controversy and concerns plague policy in relation to those who arrive by boat. This is demonstrated in the policies of islandnations Australia and Malta, who are both signatories to the 1951 Refugee Convention, the related 1967 Protocol and the International Covenant on Civil and Political Rights and also have mandatory detention policies. The approach of these nations will be compared with Sweden has an “open-door” policy and provides permanent resettlement to those found to be refugees. Governed by a web of domestic, international and human rights law, asylum seeker policies inevitably exacerbate tensions between what is “lawful” and what is “enforceable”.

WHAT IS REQUIRED UNDER INTERNATIONAL LAW? Under the aforementioned treaties, nations have an obligation to respect and uphold the rights of refugees. Under the 1951 Refugee Convention these include but are not limited to the right to non-refoulement, the right not be punished for mode of entry and the right to freedom of movement within the territory. The International Covenant on Civil and Political Rights further propounds the equality of all humankind. Evaluation the laws and policy governing the treatment of asylum seekers in both Australia and Malta reveals them to be in contravention of their obligations under international law.

MANDATORY DETENTION: AUSTRALIA AND MALTA Australia Australia’s Migration Act 1958 (Cth) contains explicit provisions for the mandatory detention of asylum seekers, and is the only country in the world to enshrine this in legislation. This was designed to be an interim measure under the Migration Amendment Act 1992 (Cth), but clearly the provisions have stuck. Australia’s offshore detention policy is also undertaken pursuant to this Act and its

amendments, with Christmas Island currently operating as an ‘excised offshore place’, and an agreement with the PNG government that allows asylum seekers to be removed to Manus Island and Nauru.3 The Australian mainland has also been excised from the migration zone.4 People who reach both Christmas Island and Manus Island without a valid visa are unable to apply for access to one unless the Immigration Minister decides it is in the public interest to allow them to do so. While it has historically been held by the High Court that detention is constitutional, the limits of legality have been thrown into question by the recent decision Plaintiff S4/2014 v Minister for Immigration and Border Protection.5 The High Court clearly set out the only circumstances that a person could be lawfully legally detained, namely: to consider whether someone is allowed to apply for a visa; to consider a visa application; or for removing that person from Australia. Further, this detention is only lawful where the above three circumstances are being pursued and affected ‘as soon as reasonably practicable’6 and the length of the detention ‘necessary and incidental’ to their being carried out.7 The provision of constitutional limits on detention means that parliament ‘cannot override them by introducing new legislation’, nor can it continue with its current policy of offshore detention.8 The judgment also rejected Scott Morrison’s proposal to implement temporary protection visas, which would have provided temporary protection to asylum seekers whilst prohibiting their application for permanent residency. As Joyce Chia has said, the verdict ‘spells the end of Australian immigration detention as we know it’.9 This announcement will naturally garner the approval of human rights advocates, with Australia’s asylum policy receiving criticism United Nations on repeated occasions.10 The incoming UN High Commissioner for Human Rights, Zei Ra’ad Al-Hussein, recently expressed his criticism of the our asylum policy, stating that it has created and perpetuated a “chain of human rights violations,” in contravention of Australia’s obligations under international law.11 Although, it is noted that more than 70 per cent of the Australian public would appear to support the restrictive policy to “turn back the boats”, where safe to do so, under Operation Sovereign Borders.12 Whilst Australia’s policy may have been effective


to help “stop the boats” and decrease arrivals by sea, it has been found utterly ineffective in maintaining and engendering human rights.

1. 2. 3. 4. 5. 6. 7. 8.

9. 10.

11.

SWEDEN: AN ALTERNATIVE APPROACH Both Malta and Australia are the poster-children for relatively unforgiving asylum policies that do not meet their international law obligations, and have been similarly criticised for it. As the global refugee crisis worsens amid civil unrest and war, the question is raised – can asylum policy operate in a humane way to resettle people fleeing from terror and disadvantage? Sweden, also a signatory to the Refugee Convention and ICCPR, has an “open-arms” approach to granting asylum, despite its housing shortage and tensions between the Anti-Muslim Sweden Democrats and Sweden’s immigrant population, erupting in rioting in 2013.19 Swedish policy is regulated by the 2005 Aliens Act, which provides that refugees or exceptional circumstances may be granted asylum. Regardless of this fact, it is most common that all asylum seekers receive a permanent residence permit, with validity only being restricted in specific cases and never for less than one year.20 It is difficult to make a statement as to the effectiveness of Western asylum policies, because each of them has

12.

13. 14. 15. 16. 17. 18.

19.

20.

UNHCR, Mid-Year Trends, June 2013 (19 December 2013) 6 <http://www.unhcr.org/52af08d26.html>. Ibid. Migration Amendment (Excision from Migration Zone) Act 2001 , Memorandum of Understanding (Australia and PNG), signed 6 August 2013. Migration Amendment (Unauthorised Maritime Arrivals And Other Measures) Bill 2012. [2014] HCA 34. Plaintiff S4/2014 v Minister for Immigration and Border Protection [2014] HCA 34, [7]. Plaintiff S4/2014 v Minister for Immigration and Border Protection [2014] HCA 34, [29]. Joyce Chia, ‘High court verdict spells the end for Australian immigration detention as we know it’, The Guardian (online,) 11 September 2014, < http://www. theguardian.com/commentisfree/2014/sep/11/highcourt-verdict-spells-the-end-for-australian-immigrationdetention-as-we-know-it>. Ibid. See United Nations Association of Australia, UNHCR Condemns Australia’s new ‘excision’ law (6 June 2013) <http://www.unaa.org.au/unchr-condemns-australiasnew-%E2%80%98excision%E2%80%99-law.html>. Michael Gordon, ‘New UN human rights chief attacks Australia over asylum seeker right ‘violations,’’ Sydney Morning Herald (online), 7 September 2014, <http:// www.smh.com.au/federal-politics/political-news/ new-un-human-rights-chief-attacks-australia-overasylum-seeker-rights-violations-20140907-10dlkx. html#ixzz3Duv9qC00>. Rowan Callick, ‘Lowy Institute poll shows strong support for asylum-seeker policies’, The Australian (online) 4 June 2013 < http://www.theaustralian.com. au/national-affairs/foreign-affairs/lowy-institute-pollshows-strong-support-for-asylumseeker-policies/storyfn59nm2j-1226942198917>. Immigration Act 1970 (Sweden) art 14. Immigration Act 1970 (Sweden) Art 5(1) Immigration Act 1970 (Sweden) 1970 Art 5(2) Immigration Act 1970 (Sweden) Art 16 Immigration Act 1970 (Sweden) Art 10 Human Rights Watch, Boat Ride to Detention: Adult and Child Migrants in Malta (18 July 2012), < http:// www.hrw.org/news/2012/07/18/malta-migrantdetention-violates-rights>. Yermi Brenner, ‘Sweden’s refugee policy sets high standard’, Al Jazeera English (online), 24 November 2014, < http://www.aljazeera.com/indepth/ features/2013/11/sweden-refugee-policy-sets-highstandard-2013112485613526863.html>. Migrationsverket, Asylum Regulations – Swedish Migration Board (1 July 2014) <http://www. migrationsverket.se/English/Private-individuals/ Protection-and-asylum-in-Sweden/Asylum-regulations. html>.

13 ENFORCING ILLIGALITY

Malta Like Australia, Malta has a strict policy aimed at discouraging the arrival of asylum seekers. Unlike Australia, the tiny Island nation has a high asylum seeker to citizen ratio, relative to the size of its small population. Malta is the gateway for asylum seekers travelling from Africa to the EU, which ahs a common asylum policy pursuant to the Dublin Convention in 1990 and the implementation of the Eurodac and Dublin regulations in 2003. Malta’s asylum policy is governed by a network of legislation, with the Immigration Act 1970 being its main regulatory instrument. This Act empowers the government to undertake a policy of mandatory detention, with a ‘prohibited immigrant’ under art 5 of the Act being subject to a removal order and subsequent detention.13 There are two categories of prohibited immigrants under the Act – persons who enter Malta without authorisation14, and persons whose authorisation to enter or stay in the country is invalidated for a various reasons including if they are not economically independent, suffer from a mental disorder or are prostitutes.15 The first category, being persons who enter Malta without authorisation, are automatically taken into legal custody without a warrant16 and deemed not to have landed.17 They are usually always detained in practice.18 Like Australia, there is no legal time frame for refugee status assessments. Although policy seeks to ensure that vulnerable people (including unaccompanied minors) are released into the community or ‘alternative centres’ pending the verdict of their application, the 2012 Human Rights Watch Report, Boat Ride to Detention: Adult and Child Migrants in Malta, explicitly states that this does not occur in practice.

different aims. Australia’s policy is one that supports granting asylum through regional UNHCR programs, but that aims to deter unauthorised maritime arrivals and stamp out the people smuggling trade. Sweden, in contrast, does not aim to deter people smuggling, but makes its primary aim to fulfil its international duties. With the number of refugees growing every day, Zei Ra’ad Al-Hussein words must be remembered - “[h] uman rights are not reserved for citizens only, or for people with visas.” They are for everyone.


THE CLAIM TO ABORIGINAL SOVEREIGNTY The movement for sovereignty by Indigenous Australians is oft discussed but little understood. TE RAINA CHAN delves into the arguments for sovereignty to challenge the belief that it could not feasibly co-exist with the prevailing Australian legal system.

THE CLAIM TO ABORIGINAL SOVEREIGHNTY

14

Aboriginal sovereignty is a term that for many of my contemporaries conjures up a bewildering image. “What do they want?” ask the intellectuals. “Why are they angry?” lament the urban sophisticates. Yet for Ghillar Michael Anderson, the claim to Aboriginal sovereignty is part of re-validating who and what he is. Further, it is part of a conversation that is underway in sectors of our community that puts forth the idea that, in Australia, two or more legal systems could operate at the same time. “We declared independent statehood simply because of the fact that we know our country. The fact that our people are still in poverty, are totally dependent on government handouts all the time, we thought that it’s time we started asserting our own governance, taking control of our lives, taking control of our affairs” said Ghillar, a Euahlayi man, in an interview last year with NITV News.1 “Let’s service our people the way they should be and we will do it under our governance system. We’re in the process now of developing our citizenship acts, we’re setting up our judicial system and I hope by the end of September, we will be talking about a fiscal program which includes the establishment of a sovereign bank.” 2 One year on and claims for sovereignty have not ceased. Former chief political reporter Jeremy Geia was recently profiled in The Guardian, on him renouncing his Australian citizenship to reside solely under Yidindji law.3 In Ngurampaa Ltd v Balonne Shire Council,4 the Queensland Supreme Court heard claims challenging the Crown’s sovereignty to charge rates over Euahlayi land. In Sydney, passers-by at the Redfern Aboriginal Tent Embassy are greeted by large white letters spelling ‘Sovereignty’. For many of us, such actions seem like the desperate deeds of well-meaning but seriously misguided individuals. It is as if they are attacking “our” identity, “our” Australia. We suppress the flush of alienation and think instead of the political intent. We might even claim to understand it, but we’re left unsure whether they have any real basis.

THE CLAIM OF SOVEREIGNTY “Sovereignty is the legal space where governance powers and powers of decision-making are exercised which influence how individuals and collective groups identify themselves and exercise control over their own destiny”, says Dr Terri Libesman, senior lecturer at UTS and researcher into Aboriginal child welfare. Dr Libesman teaches an elective on indigenous peoples and the law that presents comparative legislative and policy frameworks for a range of specific areas such as child welfare, criminal law and land rights. “As an international law concept, sovereignty is how the law of nations recognise each other. Within a context of indigenous peoples and the law, it is often regarded as an internal concept. The word ‘sovereignty’, while it obviously has a Western origin, the concept of governance and controlling collective identity doesn’t need to take a specific institutional form. It can take many forms – it certainly doesn’t have to be a Western or Anglo-Saxon one.” In New Zealand, Maori people continue to recognise their ongoing, inherent sovereignty. “Many indigenous peoples will make the claim that they have an inherent sovereignty, separate and prior to colonisation,” says Dr Libesman. “They will claim with good historical and legal grounds that they have never ceded that sovereignty, that its ongoing.” For Maori, the ability to trace their ancestry to the original inhabitants of their tribal lands gives them mana whenua or sovereignty over tribal lands.5 It is Maori collective kinship ties to land that becomes the way by which individual rights are recognised. Thus in New Zealand, the concept of sovereignty has never diminished.

THE LEGAL RECOGNITION OF SOVEREIGNTY Arguably however, it has been government recognition of these sovereignty claims that have allowed the Maori to realise their indigenous political ambitions and their economic and social advancement. Maori relations with non-Maori peoples are governed by a treaty. Even as early as 1840, when the treaty was entered into, the Maori were recognised as a distinct nation with their own legal, political and governance systems.


‘That issues of constitutional recognition of Australia’s First Nations peoples, reconciliation and Aboriginal sovereignty continue to polarise many Australians suggests there is still a long way to go.’

The United States has also developed a limited form of recognition. Dr Libesman explains that there is an ongoing recognition of an underlying, inherent sovereignty which existed prior to colonisation. “It came in the form of Supreme Court recognition of the domestic dependent nation status as early as the 1830s by Chief Justice Marshall of the U.S. Supreme Court. While those cases adopt racist language, they also very clearly adopt a recognition that Indian peoples are nations with their own laws, their own customs, their own exercise of jurisdiction and that jurisdiction is not extinguished through colonisation.”

Whether Australia could feel widely comfortable accommodating a plurality of systems as it relates to Indigenous Australians is yet to be tested. That issues of constitutional recognition of Australia’s First Nations peoples, reconciliation and Aboriginal sovereignty continue to polarise many Australians suggests there is still a long way to go. On the question of how students can contribute to the discourse of indigenous sovereignty, Dr Libesman highlights the centrality of maintaining an open mind and recognising that plurality and multiple exercises of governance is not something that is foreign either to an Indigenous or common law or Anglo-Saxon system of governance. “First of all, federal systems of governance have layers operating together, federal, State and Territory governments that exercise jurisdictions which overlap. The common law system is founded on plurality - it gets its strength from the duality of sovereignty operating. For example, its not just governments, we have also a judicial system that can interpret laws and so the two are a check and balance of the other. Within the common law, there are multiple sources of law - there is customary law, equity law and statute law for example. So its not a foreign idea to recognise a plurality of laws and therefore its not that huge a leap from a non-indigenous perspective to actually say, well indigenous laws have been recognised as existing by a higher court, how they can operate and how that authority can operate.”

It seems then that Aboriginal groups are using the language of sovereignty to advance their claims of a right to govern themselves, of a right to make decisions affecting their own well-being. If our legal system can accommodate a plurality of governance and decisionmaking, can it not also accommodate Indigenous claims to governance in areas broader than, say, circle sentencing or child welfare? Could it be a lack of political will and intellectual debate that allows such deep conservatism to persist? Overseas experiences have shown that sovereignty, while recognised in one form or another, remains contested. It would therefore seem that those voices claiming sovereignty in Australia are merely part a greater claim shared with Indigenous peoples all over the world – one of progress and of equal recognition by the law.

1. 2. 3. 4. 5. 6.

‘Euahlayi Nation Declares Independence’ 2013 NITV News [online] <https://www.youtube.com/ watch?v=UY1pG4eCerg> Ibid. ‘The man who renounced Australia’ The Guardian, Tuesday 26 August 2014, accessed at < http://www.theguardian.com/world/ postcolonial/2014/aug/26/-sp-the-man-who-renouncedaustralia > [2014] QSC 146. Ranginui Walker, ‘Ranginui Walker’ in Hineani Melbourne (ed), Maori Sovereignty: The Maori Perspective’ (Hodder Moa Beckett, 1995) 26.

15 THE CLAIM TO ABORIGINAL SOVEREIGHNTY

‘Those voices claiming sovereignty in Australia are merely part a greater claim shared with indigenous peoples all over the world.’

THE LANGUAGE OF SOVEREIGNTY


ENTRENCHING FREEDOM Constitutions around the world and their take on human rights BIANCA BALZER and JOHANAN OTTENSOOSER compare Australia’s Constitution with that of Germany and the US to argue that a bill of rights within our Constitution is neither probable or necessary.

ENTRENCHING FREEDOM

16

The constitutional protection of human rights is a regularly visited debate in Australia (and no doubt, most Constitutional Law tutorials). There are increasing calls for our Constitution to protect our basic human rights and freedoms, a la the Bill of Rights in the Constitution of the United States of America. There is also, however, a conflict between the possibility of certain rights set in stone, and the flexibility of common law rights developing and growing with our nation. Whilst the push towards a “constitutionalisation of rights” may be increasingly popular, it is not the seemingly one-sided argument that it appers to initially be, nor is it sufficient in and of itself to protect the rights of Australians. It may just be that the grass seems greener on the other side. To investigate, we shall draw your attention to the German Basic Law, and the Constitution of the United States.

‘Since [Germany’s Basic Law] was first created in 1949, there have been 55 successful amendments. Contrastingly, the Australian Constitution was only amended eight times since 1901.’ Germany’s constitutional document, the Basic Law,1 is celebrated for its prescribed protection of human rights.2 With an appropriate level of self awareness of German history, the document’s initiating article states: “human dignity is inviolable”.3 All other articles in the document are subject to this entrenched right, which cannot, for any reason, be abrogated (in contrast with other rights in the document). The document continues to provide specific protection to rights including democracy, social responsibility, and the right to resist where the government breaches the fundamental rights of its citizens. The system apparently works in Germany, so why not give it a shot in Australia? A comparison of the requirements for constiuttional amendment in Germany and Australia demonstrate the procedural hindrances to this apparently simple suggestion. A central feature

of the German constitutional system is its method for constitutional amendment, arguably far more “efficient” than the Australian systems as outlined in s 128 of the Constitution. This allows the German Basic Law to change with the zeitgeist, as it did in the 70s and 80s. This relative flexibility is highlighted by the number of amendments of the Basic Law. Since it was first created in 1949, there have been 55 successful amendments. Contrastingly, the Australian Constitution was only amended eight times since 1901.

‘…our rights could more flexibly be protected by our judiciary, with common law protections (as is currently the case) or the legislature, as is the case in some states.’ The strict nature of s 128 requirements in the Australian Constitution impede upon its legilsated adaptation to suit the people of its time, essentially rendering it a document frozen in time, and prima facie, difficult to suit the needs of a changing society. Germany’s Basic Law remains enlivened through legislative flexibility. In Germany, the Basic Law enshrines rights, and can change relatively swiftly. In Australia, the procedure for constitutional amendment is so “sticky” that any rights to be enshrined, if they can at all be passed, would be cemented, and unable to change with a changing Australia. Australia can have the opportunity to protect rights and maintain their flexibility, but this cannot come in the form of a constitutional amendment, which would be inflexible. Rather, our rights could more flexibly be protected by our judiciary, with common law protections (as is currently the case) or the legislature, as is the case in some states. The danger of an inflexible rights mechanism can be easily seen in the country with the most well known (although also very commonly misunderstood) bill of rights, the United States. Take, for example, the US constitutional right to bear arms. The specific wording of the right is to:


stan.faryna, signers of the us constitution_ details two, 2005

- A well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. - 5 Grundgesetz für die Bundesrepublik Deutschland [Basic Law of the Federal Republic of Germany]. 2. Danielle E. Finck, ‘Judicial Review: The United States Supreme Court Versus the German Constitutional Court’ (1997) 20 Boston College International and Comparative Law Review 123, 129. 3. Grundgesetz für die Bundesrepublik Deutschland [Basic Law of theFederal Republic of Germany], article 1. 4. Ibid. 5. United States Constitution amend II. 6. See e.g. United States v Miller, 307 U.S. 174. For further discussion of the history of the rights to bear arms, see Jill Lepore, Battleground America, (The New Yorker, 23 April 2012) (available at http://www.newyorker.com/ magazine/2012/04/23/battleground-america). 7. See e.g. Parker v District of Columbia, 311 F. Supp. 2d 103. 8. See Lepore, above n 6. 9. Pardon the over-used reference. 10. Oren Gross and Fionnuala Ní Aoláin, Law in times of Crisis: Emergency Powers in Theory and Practice (Cambridge University Press, 2006) 38. 11. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 567. 12. Australian Constitution, chapter 3; s 51(xxix). 1.

17 ENTRENCHING FREEDOM

This right, until mid-last century, was read literally – you could have a gun if you were in a militia.6 Since then, correlating with a take-up of gun-rights as a central facet of conservatism, the right has been extended by US judges beyond its original intention which, for many years, restricted the right to state militias, with a number of decisions conferring the right to an individual, rather than a militia.7 This rejects key elements of the original phrasing, so as to abandon what appears to be the intention of the provision. We need not discuss the damage that this right has wrought on the US.8 What our Constitution does have, that others do not, is what Australians call “the vibe”,9 and what European literature calls “wertschaft democratie” (militant or working democracy),10 which impliedly protects us as individuals. This stems from its fundamental elements: separation of powers, representative and responsible government, and power to change the Constitution by referendum.11 These elements gives the judiciary ability to interpret the Constitution in a way that protects us as individuals, and a duty to interpret legislation in a way that protects the rights covered by this vibe. Where something does infringe on the rights implied, it is likely to be invalidated. There is no denying that rights enshrined by our Constitution are limited. Although, in the instance where the Constitution does not cover a particular right, it does provide for the means for which it may be protected through the common law and international treaties.12 Whilst the Commonwealth could legislate in a manner that infringes on these rights, the very nature of our representative government would not allow it. Thus, while we do need to keep human rights in the foreground of our legal system, we do not need to enshrine them in a constitutional document for them to be protected by our courts.


TREATY OBLIGATIONS IN AUSTRALIA AND GERMANY In relation to upholding its treaty obligations, Australia has been tried and found wanting (by the UN no less). MATTHEW PAGE compares Australia’s mechanisms for implementing treaties with those of Germany to consider the possibility of Australia altering its model.

TREATY OBLIGATIONS IN AUSTRALIA AND GERMANY

18

A recent Matthew Golding cartoon shows a big-lipped, disgruntled and cross-armed Tony Abbot standing off against an anonymous, yellow-clothed and similarly crossarmed inmate, with jail bars in between the two. To the detained asylum seeker, or illegal immigrant depending on your persuasion, the Prime Minister comments that his ASIO file is a ‘terrible read,’ to which the inmate replies, ‘So’s your UN Human Rights file’.1 Beyond its comedic effect, the cartoon paints a stark reality. Australia, at least in the eyes of the United Nations, does not have a good human rights record. Since joining the UN complaints procedures in 1991, the UN Human Rights Committee (HRC) has found Australia in breach of the International Covenant on Civil and Political Rights (ICCPR) in 30 individual cases brought before it. Another body, the Committee Against Torture has found Australia culpable for two breaches of the Convention Against Torture, whilst the Committee on the Elimination of Racial Discrimination has also found Australia has breached its obligations under that committee’s related treaty. All in all, the United Nations has found Australia guilty in 33 verdicts, a figure putting Australia in the ignominious position of having the world’s fourth highest number of human rights complaints upheld against it by the United Nations.2 This is an unpleasant statistic to view. What is more, it symbolises a paradox in theAustralian legal system, as much of the nation’s ICCPR-contravening behaviour isnot even illegal by domestic standards. In fact, in FKAG et al v Australia,3 a case involving the alleged arbitrary detention of 37 Sri Lankan Tamil refugees, the HRC not only called for the federal government to remedy its violating actions (that as of now it still has not done) but for its immigration legislation to be altered. According to the HRC, “[Australia] should review its migration legislation to ensure its conformity with the requirements of articles 7 and 9, paragraphs 1, 2 and 4 of the Covenant (ICCPR)”.4 The High Court seem to have partially reconciled this particular inconsistency in the recent case of S4/20145 but the circumstance is still suggestive of a wider problem; Australia’s legislation does not always align itself with international obligations it has apparently signed up to.

The situation is somewhat indicative of Australia’s treaty making process. For Australia, the power to negotiate, sign and ratify treaties lies solely in the executive arm of government.6 However, signing or ratifying a treaty is of itself not enough to give the provisions of that treaty binding effect on a national level. Instead, parliament is required to enact the provisions into legislation before the international convention can be considered a direct source of law.7 A part from the occasional High Court decision where reference is made to international conventions, like Teoh8, and the essentially ineffectual requirement that domestic bills be ‘scrutinised’ for inconsistencies with treaties Australia has entered into, unincorporated treaties remainin consequential in the Australian legal landscape.9 Quite contrasted to the Australian Constitution, the German Constitution, the Grundgestez or ‘Basic Law’, institutes a structural reception of international treaties into the national sphere.10 Under Article 31(2) of the Basic Law, the German executive wing has the power to sign treaties, much like the executive does in Australia.11 However, ratification also requires the legislature to consent to the treaty in two circumstances; firstly, where it affects the political relations of the state, for instance, a treat affecting the position of Germany in the international community, and secondly, where the obligation can only be fulfilled by municipal regulation.12 This is known as the Act of Consent and the treaty’s provisions, subsequent to ratification, have the status of a federal statute in German law. 13 This largely incorporationist approach, particularly through the broad purview of the Act of Consent’s second qualification, has allowed domestic courts to directly apply international law, without an apparent decrease in democratic and federal control.14 If Australia were to follow a German model in necessitating parliamentary involvement before ratification, treaties could be directly applicable in Australia without future legislative implementation. This would go some way to remedying the currently ambiguous relationship between international conventions and federal law. Moreover, it would clear the path for municipal regulations to progress to a point of congruency with international human rights standards.


1.

2. 3. 4. 5. 6. 7.

8. 9. 10. 11. 12. 13. 14. 15. 16.

17. 18. 19. 20.

21. 22. 23.

Daniel Flitton, Marc Moncrief, ‘Refugees’ Mental Angusih in Australia’ ‘Guantanamo’’, Sydney Morning Herald at August 25, 2014 <http://www.smh.com.au/federal-politics/ political-news/refugees-mental-anguish-inaustraliasguantanamo-20140824-107dal.html> Remedy Australia, ‘2014 Follow-Up Report: Backgrounder’ at September 3, 2014 <http://remedy.org.au/reports/FollowUp_Report_backgrounder.pdf> (UN Doc CCPRC/108/D/2094/2011). F.K.A.G. et al. v Australia (UN Doc CCPR/ C/108/D/2094/2011) at 20 August 2013. Plaintiff S4-2014 v Minister for Immigration and Border Protection [2014] HCA 34. Australian Constitution (1901) s 61; Minister of State for Immigration and Ethnic Affairs v Teoh (“Teoh”) (1995) 183 CLR 273, 286-8 (Mason CJ and Deane J). Katherine Young, ‘The Implementation of International Law in the Domestic Lawsof Germany and Australia: Federal and Parliamentary Comparisons’ (1999) 21 Adelaide Law Review 177, 191-2. Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273. 9 See Human Rights (Parliamentary Scrutiny) Act 2011. Young above n 5, 177-8. See Grundgestez (1949) Art. 32(1), 59(2). Ibid Art. 59(2). Malcom Shaw, International Law (Cambridge University Press, London, 2013)170-2. mapulanga-hulston and harpur 185 Young above n 5, 177-8. Martha Finnermore & Kathryn Sikkink ‘International Norm Dynamics and Political Change’ (1998) 52 International Organisation 889-92. Jacbeth Mapulanga-Hulston & Paul Harpur, ‘Examining Australia’s Compliance to the International Covenant on Economic Social and Cultural Rights’ (2009) 10 Asia-Pacific Journal on Human Rights and Liberties 48, 62. Ibid, 48-9. Ibid. Ibid, 50. Pew Research, ‘UN Retains Strong Global Image’ at September 7, 2014 <http://www.pewglobal. org/2013/09/17/united-nations-retains-strong-globalimage/> Penny Venetis, ‘Enforcing Human Rights in the US’ (2014) 23 California Review of Law and Society 121, 128. Young above n 5. Remedy Australia above n 2.

19 TREATY OBLIGATIONS IN AUSTRALIA AND GERMANY

I judge this as a good thing. There is certainly substantial weight to the claim that statute-based human rights standards can solidify and expedite respect for human liberties.15 On a practical level as well, implementing human rights addressed in documents like the ICCPR would become far easier. The task of individually codifying certain liberties can prove almost insurmountable. To take the extreme example of Japan, in giving effect to the right to an adequate standard of living, it took 47 distinct pieces of legislation. No longer would this plague Australia.16 However, reform towards an incorporationist model faces several hurdles. Foremost is Australia’s traditional reluctance to accept international norms.17 Inherited from English common law and legal positivist conventions, Australia has rejected the incursion of international principles on the basis that it is an intrusion into internal sovereignty.18 Some like Ghassan Hage have argued that the restraint is symptomatic of a cultural wariness to foreign disturbance, a ‘shrinking society’ phenomenon to use his words.19 If this were true, reform to enhance the role of international law in Australia would not find wide support. But for me, this restraint is more institutional and formal than it is cultural. From just looking at a recent poll surveying Australians’ approval of the United Nations you would find that Australians are increasingly receptive to international instruments moderating national affairs.20 An incorporationist approach may even better accommodate this contemporary Australian perspective. Nevertheless, altering Australia’s treaty-making powers to shadow Germany has other potential problems. By reframing the decision on whether to ratify a treaty into a decision of whether to be completely and directly bound by the treaty or not be bound at all may in turn lead to Australia scarcely ratifying conventions.21 This would be a situation worse than having unimplemented international principles in court merely functioning as interpretative tools, as is currently the case.22 However, I contend that if a considerable portion of treaty-making powers were placed on a body directly elected by and responsible to the public, that body would more readily bow to public perception. If public opinion is in favour of greater recognition of human rights, as I believe it is, the federal legislature will be a more effective body in fastening Australia to international rights obligations. At this moment though, the chance of any positive treaty-making reform appears bleak. Australia has still not taken on-board recommendations made by the HCR in FKAG to amend its migration legislation to accord with the ICCPR.23 Personally, I doubt Australia will in the future, unless change occurs in how it implements its treaties. Germany’s model is just one option by which Australia may seek to remould it treaty-implementation process.


RAISING THE BAR Comparing Australia’s Personal Property Laws Secured credit is a powerful tool for economic growth, and an efficient and economical system for credit based on personal property security greatly enhances the ability and willingness of creditors to extend secured credit. SYLVIA XIAO explores the worldwide movement to modernise personal property security laws and the impact of the Personal Property Securities Act 2009 (Cth) in Australia.1 INTRODUCTION

RAISNG THE BAR

20

The Australian Personal Property Securities Act 2009 (Cth) (‘APPSA’) finds its roots in the same legal ancestors as other common law Personal Property Security (PPS) regimes currently in existence. Like its New Zealand (NZ) and Canadian counterparts, it draws on concepts originating in Article 9 of the United States Commercial Code (‘UCC’). Despite this, it would be a mistake to presuppose that the Commonwealth Parliament intended to take the same approach as those law-makers. While the APPSA is an antecedent of NZ and Canadian PPS reforms, it is clear that many of the provisions borne in the Act distinguish it to a certain extent from its kin. A careful consideration of its distinguished features gives a more comprehensive understanding of the purpose of the Act and therefore discerns the approach intended by Parliament. The APPSA has been criticised for being unnecessarily complicated and far lengthier than its overseas relatives.2 Australia’s reluctance to directly apply the template of existing legislative framework for its own is indicative of a parliamentary intention to discriminate, to some extent, our approach from NZ and Canadian jurisprudence. Through a consideration of the Act, relevant authorities and the worked of learned academics, an evaluation of the extent to which it appears that Australian PPS law will develop in alignment with established international principles is undertaken below.

PRIMARY PURPOSE OF PPS LAW REFORM AND THE LEGISLATIVE CONSTRUCT The need for financial law reform of this nature in Australia was multi-dimensional; as is the purpose of the legislation designed by parliament to meet these needs. The system of company charges which existed before the PPSA was, for its inconsistencies, non-conducive to the promotion of international investment confidence. After observing a number of jurisdictional shortcomings of the Canadian system as evident in GMAC Commercial Credit Corp. – Canada v TCT Logistics Inc.3 It became patent that only a federal Act could adequately fulfil these needs. The primary purpose of the legislation is to ‘provide for a single national law with personal property securities which was identified as necessary for modern advanced financial systems’. 4 To this extent, the reforms simultaneously addressed past shortfalls and current demands of Australia’s modern economy by ‘simplifying the laws and processes...introducing consistency and substantially reducing the costs of the current system’. 5 The Bill was predominately based on similar NZ,

Canadian and US legislation and also drew on tenets of private international law. By promoting closer ties with the US and NZ, 6 the amendments brought Australia’s finance law into correlation with its broader economic interests. 7 Prior to the enactment of the PPSA there were 70 Commonwealth, state and territorial legislations modelled on the UK system of company charges, which lacked the requisite consistency expected of commercial security precepts. The process that led to the eventual implementation of a PPS scheme in Australia looked internationally and therefore a consideration of the approach intended by Parliament must include an examination of the established international methodologies and their influences on Australian securities law. The Act draws primarily from the Saskatchewan Personal Property Security Act of 1993 and the New Brunswick Personal Property Security Act of 1993. Constructive Departure from Existing Models of Legislative Framework The Australian path to the codification of the new bedrock of security law has been an uncomfortable and resisted journey. Unlike NZ’s timely adoption of PPS law following recommendations put forward by their law reform commission,8 Australian reform did not occur until almost two decades after the Australian Law Reform Commission’s (ALRC) interim report in 1990. This report opined that existing PPSA models were ‘too radically different … to existing Australian law’ and consequently, the draft bill annexed was criticised for being vastly distinct beyond justifiable bounds.9 Although the conceptual paradigm of the Australian Act mirrors NZ and Canadian legislation, there are obvious structural and substantive differences that indicate a reformed legislative approach.10 Australia’s PPSA construction has been duly criticised in the international realm for being unnecessarily creative11 and creating a statute that is vastly different than existing models, with substantive, linguistic and structural variations. Parliament expressly stated that this legislative construction was deliberate due to the ‘circumstances surrounding Australian consumer law, commercial practices and recent technological advances’.12 However, a careful examination of the Act and Explanatory Memorandum in comparison with the NZ and Canadian PPSA is helpful. Sections of the Australian PPS law that are without corresponding provisions in the existing PPS models include: Chapter 3 Part 3.2, which deals specifically with Agricultural interests13 and Chapter 6 which gives extensive guidance to Judicial


the WA Supreme Court made a subsequent decision in White v Spiers 20 without considering international case law and therefore authoritatively suggests that references to foreign precedents should remain merely incidental to the proper application of PPS law.

JUDICIAL APPLICATION AND INTERPRETATION

There is a material risk to prematurely assuming that the courts will consider it appropriate to continue to rely upon overseas precedents in the PPS realm. Literature on the APPSA affirms that despite structural and conceptual similarities, there is a distinct legal and societal variation necessary in its interpretation. It is for pragmatic and practical reasons that the courts have chosen to look internationally for guidance as to the proper resolution and adaption of existing commercial principles to such a radically reformed system of interest prioritisation. It is this desire for promotion of stability in commerce that sees the popularity of reference to NZ and Canadian law and not a policy-based adherence to the approaches adopted by these jurisdictions. To date, there appears to be no conclusive evidence of any policy adherence or overarching judicial compliance with NZ and Canadian approaches to PPS law development.

Lack of Australian Precedent The PPSA radically changed the way that secured lending and priority disputes were to be resolved. Existing cases provide an insufficient basis upon which an interpretation of the Act can be actualised. The fundamental priority underlying UCC Article 9 and other PPS legislation is the time of registration. The significant departure away from existing systems of company charges means that growing pains are inevitable. Judicial process will likely attempt to grapple with the intricate balance of international custom through Australian legal discourse without the weight or traditional guidance of precedent. Many of the ‘teething issues’ associated with the commercial implementation of Australia’s new PPS act were experienced also by the other common law jurisdictions that have executed similar regimes. For this reason, many of the novel disputes before Australian courts hinge on established principles in NZ and Canadian case law. Accordingly, the judiciary has diligently looked towards these for guidance where it is needed. In Re Maiden, the application of the PPSA was considered by the courts in NSW. Bereton J finds that in enacting legislation which was inspired by identifiable antecedents, the Federal Parliament intended that the well-established principles under these regimes should be given due consideration. This, however does not substantiate the claim that the ‘same approach’ should be taken to apply. The case serves as the first major application of the PPSA in a priority dispute in Australia, thus setting the tone for future related decisions. 17 Australian PPS Cases An examination of existing Australian case law concerning the application of the PPSA will reveal the extreme scarcity of precedent. Most applications that have appeared before the courts have been ex parte, procedural in nature and generally eventuated in the making of orders allowing an extension of time for registration. These decisions are made without reference to established PPS concepts with judges looking instead at existing precepts of commercial law. 18 Re Maiden Civil 19 was the pioneer Australian case that dealt with the operation of the PPSA. The consideration of the operation of s 19(5) of the Act noted substantial similarities and the existence of identical provisions in NZ and Canadian PPS and their authorities were cited. Despite recognising a number of distinguishing provisions in Australian law, the judgement in Maiden goes so far as to suggest that parliament intended that “the same approach” as that undertaken in Canada and NZ should apply. In subsequent judgments the Supreme Court has neither affirmed nor denied this approach as authoritative in resolving substantive PPS issues. However,

CONCLUSION

1.

2.

3. 4. 5. 6. 7. 8. 9. 10. 11.

12. 13. 14. 15. 16. 17.

18. 19.

20.

Henry Deeb Gabriel, “The NZ Personal Property Securities Act: A Comparison with the North American Model for Personal Property Security” The International Lawyer 34(2) Winter 2000. Aidan Drinkwater, “The rise and fall of purchase money security interests at general law and under Article 9 regimes”, (2010) 21 Journal of Banking and Finance Law and Practice 5. GMAC Commercial Credit Corp. – Canada v TCT Logistics Inc. [2002] O.J. No. 3244 Main Committee Personal Property Securities Bill 2009 Second Reading, Ley Sussan, MP 16 September 2009. ALRC Report 61 at 24. NZ Personal Property Securities Act (1999). Above, Ruddock, Phillip MP. Ashurst Australia, “PPS Reform Overseas”, undated, accessed at <www.ashurst.com/doc.aspx?id_ Resource=6472> on 20 April 2014. Gerard McCormack, ‘Personal Property Security Law Reform in Comparative Perspective – Antipodean Insights” (2004), 33 Comm. L World Rev. 3. Mike Gedye, “A Distant Export: The NZ Experience with a North American Style Personal Property Security Regime” (2006), 43 Can. Bus. L.J. 208. Anthony Duggan and Michael Degye, “Personal Property Security Law Reform in Australia and NZ: The Impetus for Change” (2008-2009) 27 Penn St. Int’l L. Rev. 655. Main Committee PERSONAL PROPERTY SECURITIES BILL 2009 Second Reading, McClelland, Robert, MP 24 June 2009. Personal Properties Security Act (Cth) 2009 Part 3.2. Personal Properties Security Act (Cth) 2009 Part 8.4 Personal Properties Security Act (Cth) 2009 Part 8.5 Personal Properties Security Act (Cth) 2009 Part 4.4 Baker & McKenzie, “First Major PPSA Decision - Perfection is Key!”, 2 July 2013 viewed at < http://www.bakermckenzie.com/ ALAustraliaFirstPPSADecisionJul13/> on 23 April 2014. Re Barclays Bank plc [2012] NSWSC 1095. Richard Albarran and Blair Alexander Please As Receivers and Managers of Maiden Civil (Pande) Pty Ltd and Ors v Queensland Excavation Services Pty Ltd and Ors [2013] NSWSC 852. White v Spiers Earthworks Pty Ltd [2014] WASC 139.

21 RAISNG THE BAR

EDITOR’S QUESTION

21

Proceedings. The seemingly extraneous elements of the Australian Act evince Parliament’s intention that it be a more comprehensive act that rectified the identified shortcomings of other PPS law. The extension considers the provision of information,14 giving of notice15 and also extends to stipulations of rules applicable after enforcement.16


FLYING ACROSS JURISDICTIONS Cryon, Ectoplasm, 2007

FLYING ACROSS JURISDICTIONS

22

Recent air disasters such as the MH370 and MH17 tragedies have sparked increased public interest in how aviation law is regulated and applied globally. SAMANTHA WILLIAMS discusses two key conventions which have shaped the aviation industry across international jurisdictions.

Aviation is widely regarded to be the most regulated industry in the world. There is no industry that is more affected, and indeed controlled, by international standards than the aviation industry. The adoption and proliferation of international aviation treaties1 such as the Chicago Convention 19442 not only influence all aviation activities, both internationally and domestically, but also dictate all operational, technical, safety and security standards within the industry. It is therefore correct to suggest that the laws governing aviation are almost universally applicable across the jurisdictions worldwide. This is not to say that every country3 has adopted the same international standards, but as many countries have incorporated these international conventions into their own laws there is some consistency between countries. It therefore seems like a redundant exercise to compare aviation law across jurisdictions if this area is primarily based on international conventions. This article will therefore discuss two major international conventions that have shaped the aviation industry globally.

THE MONTREAL CONVENTION 1999 The Montreal Convention 1999 is the most recent international convention governing international air carriage and was intended to consolidate and update the ‘patchwork’ nature of the various Warsaw system amending protocols. The Montreal Convention establishes a new two-tier scheme to govern passenger compensation.4 The first tier, which operates up to 113,100 Special Drawing Rights (SDRs),5 which is approximately AUD$173,305, imposes strict liability upon the carrier.6 For the reader’s benefit, a Special Drawing Right serves as the unit of account of the International Monetary Fund and some other international organisations. The Special Drawing Right’s value is based on a basket of key international currencies including the Euro, Japanese Yen, the British Pound and the U.S. Dollar. The carrier’s liability under the first tier can only be reduced if it can be demonstrated that there was contributory negligence or wrongful act of the passenger. Liability under the second tier is unlimited if damages are proven in excess of 113,100 SDRs, but can be avoided by the carrier proving that the damage was not caused by its negligence or was caused solely by the negligence or other wrongful act or omission of a third party. In this tier, the onus of proof has been reversed from the passenger to the carrier. This means that the carrier must

defeat a presumption of fault in order to defeat a claim for damages within this tier, by either proving there was no negligent or wrongful act or omission of its own, or by proving that the passenger’s damages are solely the result of another party’s negligence or wrongful act or omission.

THE CHICAGO CONVENTION 1944 The Chicago Convention 1944 essentially updated and replaced the Paris Convention 1919.7 The Chicago Convention establishes rules of airspace, aircraft registration, aircraft safety and details the rights of the signatories in relation to air travel. More than 190 Sovereign States have ratified the Chicago Convention and by doing so are bound by the technical and operational standards developed by the International Civil Aviation Organization (ICAO) as detailed in the 18 Annexes to the Convention. The Convention provides for the sovereignty of airspace above the territory of each State,8 together with five freedoms which govern the freedom of States to operate air transport flights across, into and within the airspace of other States. The five freedoms established under the Convention are as follows:

1. THE RIGHT OF AN AIRLINE OF ONE COUNTRY TO FLY OVER THE TERRITORY OF ANOTHER COUNTRY WITHOUT LANDING; 2. THE RIGHT OF AN AIRLINE OF ONE COUNTRY TO LAND IN ANOTHER COUNTRY FOR NON-TRAFFIC REASONS, SUCH AS MAINTENANCE OR REFUELLING, WHILE ON EN ROUTE TO ANOTHER COUNTRY;. 3. THE RIGHT OF AN AIRLINE OF ONE COUNTRY TO CARRY TRAFFIC (PASSENGERS, MAIL AND CARGO) TO ANOTHER COUNTRY; 4. THE RIGHT OF AN AIRLINE OF ONE COUNTRY TO CARRY TRAFFIC FROM ANOTHER COUNTRY TO ITS OWN COUNTRY; 5. THE RIGHT OF AN AIRLINE OF ONE COUNTRY TO CARRY TRAFFIC BETWEEN TWO FOREIGN COUNTRIES AS LONG AS THE FLIGHT ORIGINATES AND TERMINATES IN ITS OWN COUNTRY.


Bulent KAVAKKORU, Istanbul International Airport - Ramp Night2, 2011

1.

“...as many countries have incorporated these international conventions into their own laws there is some consistency between countries.” Unlike other modes of transportation, aviation travel goes beyond the confines of political and geographical boundaries. Carriage of passengers may be within a country’s territorial waters or airspace, but at other times operations are inter and extra-jurisdictional when carried out over the high seas or within international airspace. Due to the uniqueness of air transportation, countries need to adopt consistent standards for the aviation industry to operate efficiently. By various countries adopting international conventions such as those listed in this article, the aviation industry can operate in an efficient and effective manner.

International treaties that govern aviation include but are not limited to the Chicago Convention 1944, the Montreal Convention 1999, the Warsaw Convention 1929 and the Cape Town Convention 2001. 2. The formal name of the Chicago Convention 1944 is the Convention on International Civil Aviation. 3. For example, Indonesia and Thailand have not yet adopted the Montreal Convention 1999. 4. Convention for the Unification of Certain Rules Relating to International Carriage by Air, Montreal, opened for signature 28 May 1999, 2242 UNTS 350 (entered into force 4 November 2003) art 21 (‘The Montreal Convention 1999’). 5. The Special Drawing Right is an international reserve right asset, created by the International Monetary Fund in 1969 to supplement its member countries’ official reserves. 6. For those readers who are not familiar, strict liability means that the carrier will have to pay this amount regardless of whether there was any fault on the part of the carrier. 7. The formal name of the Paris Convention 1919 is the Convention Relating to the Regulation of Aerial Navigation. 8. Convention on International Civil Aviation, Chicago, opened for signature 7 December 1944, 15 UNTS 295 (entered into force 4 April 1947) art 1 (‘The Chicago Convention 1944’). 9. The first two freedoms are referred to as technical rights, and some 100 countries are contracting parties to the ‘The International Air Services Transit Agreement’. 10. Convention on International Civil Aviation, Chicago, opened for signature 7 December 1944, 15 UNTS 295 (entered into force 4 April 1947) art 26 (‘The Chicago Convention 1944’). 11. Convention on International Civil Aviation, Chicago, opened for signature 7 December 1944, 15 UNTS 295 (entered into force 4 April 1947) art 13 (‘The Chicago Convention 1944’).

23 FLYING ACROSS JURISDICTIONS

Only the first two of these freedoms apply automatically to signatory states of the Chicago Convention, with the remainder being subject to national agreement.9 In regards to aviation accidents, under the Chicago Convention, if a foreign aircraft has an accident for example in Australian territory, Australia is obliged to investigate the circumstances of the accident and provide a report on the findings of the investigation to the authorities of the country in which the aircraft is registered.10 An accredited representative from the aircraft’s country of registration, operator manufacture and design are entitled to participate in the investigation conducted by the investigation authority.11


A MODEL WORTH IMPORTING New Zealand’s Live Export Policy ASHLEIGH BEST looks to Australia’s neighbour for a worthy example of live export legislation that engenders compassion and not cruelty.

As a result of the global nature of the live animal export trade, a patchwork of municipal legal and political frameworks designed to regulate the practice has emerged across the world. While New Zealand was once an active participant in the trade, stringent legislation introduced in 2007 has resulted in the country’s effective resignation from the industry. However, Australia is yet to implement a similar ban of the trade, persisting instead with feeble and unreliable arrangements which leave exported animals vulnerable to cruelty.

THE PROBLEMS WITH LIVE EXPORT

A MODEL WORTH IMPORTING

24

The trade of live animals creates a web of ethical and legal issues. Principles of international law, namely state sovereignty and jurisdiction, incapacitate exporter governments from controlling the treatment and slaughter of animals in recipient states. As such, bilateral agreements and memoranda of understanding established between transacting governments with a view to upholding animal welfare are ‘not legally secure’;1 compliance hinges on the mere volition of the parties. Even standards developed by the World Organisation for Animal Health, which may be said to represent the ideal conditions under which animals may be exported, subject animals to ‘pain and fear’ 2 by sanctioning the traumatic practice of slaughter without prior stunning. In addition to such direct cruelty and inhumane slaughter, animals exported live are placed at an ‘increased risk of harm’ 3 by virtue of the sea travel they are forced to endure.

the imposition of conditions upon an animal welfare export certificate, for example, to require that animals be accompanied in transit by a specifically qualified person.8 While the legislation therefore provides a mechanism for participation in the trade, since the introduction of the prohibition, ‘there has not been a single application to export live animals’.9 This victory for animals may almost certainly be attributed to the rigour of the legislative framework and the primacy it vests in high animal welfare.

A CURE FOR AUSTRALIA Australia’s live animal export trade was described three decades ago as ‘inimical to good animal welfare’,10 with this assessment remaining true in the present. The adoption by Australia of the New Zealand model, through the institution of a general prohibition against the export of live animals, would quell concerns regarding Australia’s ability to protect the welfare of animals supplied by Australia to international markets. The emulation of New Zealand’s certification system would enhance accountability by permitting exporters to trade live animals only in compliance with strict conditions, representing an improvement upon the frequently breached Exporter Supply Chain Assurance System. It can be hoped, therefore, that just as New Zealand experiences the light of a new day hours before its westerly neighbour, the nation’s vital and progressive approach to live animal export will soon be taken up by Australia.

NEW ZEALAND’S SOLUTION In response to concerns about the treatment and slaughter of animals exported live in recipient states, New Zealand implemented the Customs Export Prohibition (Livestock for Slaughter) Order 2007, conditionally proscribing the trade of live animals exported for slaughter. This shift is reflected in the Animal Welfare Act 1999 (NZ), which places a general prohibition upon live export ‘other than under the authority, and in accordance with the conditions, of an animal welfare export certificate’.4 The legislation requires that regard be had to certain matters in determining the application for a certificate, notably the concern the applicant previously paid to animal welfare on the transport route to which the application relates,5 the length of the journey6 and the extent to which the conditions of transport would cause harm and distress to the animals.7 Significantly, the legislation authorises

1.

Alex Bruce, Animal Law In Australia: An Integrated Approach (LexisNexis, 2012), 299. 2. Laura Morfuni, ‘Pain for Profit: An Analysis of the Live Export Trade’ (2011) 16 Deakin Law Review 497, 509. 3. Malcolm Caulfield, ‘Live Export of Animals’ in Peter Sankoff and Steven White (eds), Animal Law in Australasia: A New Dialogue (The Federation Press, 2009) 153, 165. 4. Animal Welfare Act 1999 (NZ) s 40(1). 5. Animal Welfare Act 1999 (NZ) s 43(a). 6. Animal Welfare Act 1999 (NZ) s 43(f). 7. Animal Welfare Act 1999 (NZ) s 43(g). 8. Animal Welfare Act 1999 (NZ) s 45(1)(h). 9. Marie T Hastreiter, ‘Animal Welfare Standards and Australia’s Live Exports Industry to Indonesia: Creating an Opportunity Out of a Crisis’ (2013) 12(1) Washington University Global Studies Law Review 181, 193. 10. Senate Select Committee, Parliament of Australia, Senate Select Committee on Animal Welfare Report (1985) 185.


Spotlight …on the Brennan Program

EXPERIENCING THERAPEUTIC JURISPRUDENCE by JOHANNA FISHER & CHELSEA DELAHUNTY

‘Getting involved in the Brennan Program has helped remind me why I decided to study law in the first place. At times when university feels like an endless cycle of assignments and study, it’s really beneficial to get involved in something that gives you a positive perspective on the law. The Parklea project was a great example of this as it brought together a group of socially conscious students and provided us with an insight into the practical role that mediation and TJ play within the legal system.’ - Rachel Howell ‘This project showed us not only a “different” view to learning about the law in a traditional sense. It enabled us to explore the many facets of therapeutic programming via the participant, the custodial officers and the judicial perspective in a practical way. – Irene Nicolaou ‘Mediation allows for a much more personalised approach to the settlement of legal disputes, and aligns with the values of social justice upheld by the Brennan Program. Through contributing to the research efforts we could see applications of the law in settings that we don’t often discuss in our core courses. Our perspectives and experiences were broadened in the ways that are positively encouraged by the Brennan Program.’ - Chelsea Delahunty ‘Being involved in this project provided me with a broader perspective of the law. In law school you learn about the various elements and concepts of the law but being able to apply what you have learnt practically is truly remarkable. The Brennan Program provides this avenue by allowing students to practically apply their legal knowledge to various projects offered through the Brennan Program.’- Samantha Williams

25 SPOTLIGHT

In March 2013 eight Brennan Program students embarked on a research project with the Brennan Program led by Dr Nicky McWilliam, Research Fellow at the UTS Faculty of Law and co-principal of Sydney Mediation Partnership. This research project implemented and examined the feasibility of a mediation program within the Parklea Compulsory Drug Treatment Correctional Centre (CDTCC); a therapeutic facility which is located within the Parklea prison compound. The implementation of the ‘Sorting it Out’ mediation program, written by Dr McWilliam, commenced with a six week presentation on mediation by two trainers over the course of six weeks, which encouraged facility staff and participants to communicate effectively with each other to resolve disputes. At the same time, Dr McWilliam and the students attended the facility and conducted interviews, observations and studies to evaluate the effectiveness of the program whilst adhering to confidentiality and security protocols. Following the implementation period, students, under Dr McWilliam’s supervision, worked together as a team at UTS to record and analyse the data collected. This stage of the project allowed students to gain valuable research skills, including the collection of journal articles and other literature, transcribing interviews conducted at CDTCC, quantitative data entry and recording qualitative data. The research phase of the project concluded in December 2013, and in early 2014 Dr McWilliam submitted her final report to Corrective Services NSW. A journal article by Dr McWilliam on therapeutic jurisprudence (TJ) written will soon be available online. This opportunity was made available to the students through the Brennan Justice and Leadership Program, enabling them to gain professional experience that could be credited towards the ‘Leadership through Service’ component of the Program. The mediation aspect exposed students to the increasingly important role of alternative dispute resolution and TJ within the law today. Further, involvement in the project provided insight into the operation of diversionary programs such as the Drug Court, which the group visited and observed.


SPOTLIGHT

26

The participants: Chelsea Delahunty, Helena Canaris, Samantha Williams, Fiona Donnelly, Dr Nicky McWilliam, Irene Nicolaou, Rachel Howell and Johanna Fisher. Absent: Alexandra Kyriazis.

THE EXPANSION OF THERAPEUTIC JURISPRUDENCE IN THE CRIMINAL LAW by CHELSEA DELAHUNTY, RACHEL HOWELL AND SAMANTHA WILLIAMS Therapeutic jurisprudence (TJ) is a multi-disciplinary approach to the study of law which looks at the ‘law’s impact on emotional life and psychological well-being’.1 TJ aims to understand how the law can have beneficial, therapeutic effects on individuals who come into contact with the legal system, and develop systems and processes that achieve this. Initially TJ was applied in mental health law, however over time its application expanded into other areas, particularly criminal law.2 Within the United States this resulted in the development of Drug Treatment Courts in the late 1980s. Based on this American model a drug court was established in Parramatta, NSW in 1999 – the first of its kind in Australia.3 In 2006 a Compulsory Drug Treatment Centre (CDTCC) was developed at Parklea to work alongside the court. While varying between jurisdictions, drug courts commonly operate by requiring

offenders to plead guilty and accept diversion into their jurisdiction, where they agree to a number of conditions.4 Specialised drug treatment tribunals, or “problem solving courts”, have developed as a response to the recognition that the traditional criminal justice approach does little to address the underlying causes of addiction.5 An understanding emerged that drug dependency could be specifically targeted and reduced by a multi-agency approach where sanctions and treatments are tailored to each offender. In doing so offenders are given assistance, direction and encouragement to change their behaviour. The attractiveness of this approach is demonstrated by the international growth of such institutions.6 As of 2013, there were 2,907 drug courts in the US alone.7 Due to jurisdictional differences between states and counties, no two courts operate in the same way. However there is a general form followed that involves sustained and


1. 2. 3.

4.

David Wexler, ‘Two Decades of Therapeutic Jurisprudence’ (2008) 24 Touro Law Review 17, 20. Ibid 25. Toni Makkai, ‘Drugs Courts: Issues and Prospects’ (Trends & Issues in Crime and Criminal Justice Discussion Paper No 95, Australian Institute of Criminology, September 1998) <http://www.aic.gov.au/documents/C/ F/2/%7bCF289583-4DF9-4689-ACC28E6410154589%7dti95.pdf>.

5.

6.

7. 8. 9. 10. 11. 12.

13.

14.

15.

Bruce Winick, ‘Therapeutic Jurisprudence and Problem Solving Courts Special Series: Problem Solving Courts and Therapeutic Jurisprudence’ (2002) 30 Fordham Union Law Review 1057. Bruce Winick, ‘Therapeutic Jurisprudence and Problem Solving Courts Special Series: Problem Solving Courts and Therapeutic Jurisprudence’ (2002) 30 Fordham Union Law Review 1055. Department of Justice Victoria, Policy Framework to Consolidate and Extend Problem Solving Courts and Approaches (2006) <http://u.b5z.net/i/u/10196230/f/LISA_Policy_ Framework_-_Problem_Solving_Courts_and_ Approaches_-_March_2006.pdf>. National Drug Court Resource Centre, How many drug courts are there? (2012) <http://www.ndcrc.org/content/how-many-drug-courtsare-there>. Drug Court NSW, For participants (12 August 2014) <http://www.drugcourt.lawlink.nsw.gov.au/drgcrt/ dc_participants.html,c=y>. See Don Weatherburn, Craig Jones, Lucy Snowball and Jiuzhao Hua, ‘The NSW Drug Court: A re-evaluation of its effectiveness’ (Trends & Issues in Crime and Criminal Justice Discussion Paper No 121, Australian Institute of Criminology, September 2008) 11 <http://www.bocsar. nsw.gov.au/agdbasev7wr/bocsar/documents/pdf/cjb121. pdf>. This 2008 study also found that individuals who successfully complete the CDTCC program are65% less likely to be reconvicted of an offence against the person; 35% less likely to be reconvicted of a property offence; and 58% less likely to be reconvicted of a drug offence. Stephen Goodall, Richard Norman and Marion Haas, ‘The costs of the NSW Drug Court’ (Trends & Issues in Crime and Criminal Justice Discussion Paper No 122, Australian Institute of Criminology, September 2008) 13 <http://www.bocsar.nsw.gov.au/agdbasev7wr/bocsar/ documents/pdf/cjb122.pdf>. Australian Institute of Criminology, Australian responses to illicit drugs: Drug Courts (13 February 2014) Australian Institute of Criminology <http://www.aic.gov.au/ criminal_justice_system/courts/specialist/drugcourts. html>. Global Centre for Drug Treatment Courts, Drug Treatment Courts in Operation Worldwide (2014) Global Centre for Drug Treatment Courts <http://www. globaldrugcourts.com/>.

27 SPOTLIGHT

intensive treatment provided to drug dependent offenders with frequent contact between the judge, caseworkers, relevant bodies and the offender. Similarly, the NSW Drug Court follows the same general structure. Offenders who are referred to the Court are given an individualised Drug Court Program that operates over three sequential stages (initiation and stabilisation, consolidation and re-integration) either within the community or the CDTCC.8 It helps participants to strengthen relationships and networks that they will need to rely on after the completion of their sentence and reduces drug dependency and recidivism – benefitting participants in its program and society at large. A study conducted in 2008 found that individuals who successfully complete the CDTCC program are 37% less likely to be reconvicted of any offence.9 The CDTCC also saves $1.758 million per annum in comparison to mainstream prison services.10 These positive outcomes have helped to facilitate the expansion of the NSW Drug Court. In 2011the Drug Court was extended to Toronto in the Hunter Region and in 2013 to the Sydney CBD. Within Australia, all states except for Tasmania operate drug courts modelled on the NSW example.11 Internationally there are drug court programs in at least 24 countries, including Argentina, Belgium, Brazil, England, Mexico, New Zealand, Norway and, of course, the US.12 This growth exemplifies the positive impact of therapeutic jurisprudence in the legal landscape, with its proliferation across the globe indicating no sign of abating.


BLIND JUSTICE AT THE COST OF HUMANITY The Use of Corporal Punishment and Torture in the Modern Era If you thought corporal punishment was dead, it is time to think again. DOMINIC SMITH evaluates the Australian and Singaporean policies in relation to torture and cruel punishment to argue for the complete prohibition of such inhumane practices. Throughout history corporal punishment and torture have been implemented by governing bodies to provoke public terror, punish wrongdoers and to administer legal sentences.1 Whilst people may only consider that torture consists of only the most heinous forms of physical violence, the scope of the offence extends to other issues including the infliction of mental anguish and the performance of degrading punishments (especially corporal punishment) on an individual.2 To combat such issues, the United Nations has attempted to prevent any ‘acts of torture’ from occurring especially during state wars (or cold wars), in response to a national security threat or in the operation of judicial sentences.3 However a key question remains: to what extent has international law effectively removed the existence of torture and degrading punishments globally?

BLIND JUSTICE AT THE COST OF HUMANITY

28

‘[Judicial caning] derives from the laws enforced by the British Commonwealth on Malaysia and Singapore during colonisation.’ This article contrasts the legislative commitments of Australia with Singapore’s Criminal Procedure Code 4 to assess the extent to which international conventions and laws regarding torture and degrading punishment are adhered to throughout the Asia Pacific region.

THE ROLE OF UNITED NATIONS IN THE MOVEMENT TOWARDS ERADICATION Torture is defined by United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, as the intentional infliction of severe ‘physical or mental’ pain or suffering by an official (or person acting with official capacity) for the purposes of ‘obtaining information or a confession’, punishing a person who has committed a crime or coercing a person.5 Under the UN Convention, national governments are required to develop ‘effective legislative, administrative, judicial or other measures’ to prohibit torture in any state or territory within its jurisdiction’.6 In response to international laws regarding torture and degrading punishments, 81 countries have signed the Convention and approximately 71 countries have ratified the treaty into their national law. Although there has been significant support for the international law, the drafting of the Convention has been harshly criticised by politicians and public policy-makers globally. A key argument staged against the new laws, was that torture and degrading treatment could be justified to protect

the security of the nation and the general public from substantial war crimes and terrorism.7 Yet this argument is flawed, insofar as such measures diminish the importance of human rights in society and have been drastically abused throughout history to justify heinous crimes against humanity.8 Whilst the legal effect of these laws are only enforced in signatory countries, the drafting of the Convention emphasises the commitment of the United Nations towards promoting state accountability and more humane systems administering legal punishment, political detainment and social rehabilitation.

A STEP IN THE RIGHT DIRECTION: DEVELOPING STATE ACCOUNTABILITY IN AUSTRALIA On 10 December 1985, the Australian Government signed the UN Convention on Torture and ratified the law by implementing the Crimes (Torture) Act 1988 (Cth) (repealed). Since the ratification of the treaty, the Australian government has implemented the Crimes Legislation Amendment (Torture Prohibition and Death Penalty Abolition) Act 2010 (Cth) to widen the scope of the prohibition and to promote state accountability to such human rights abuses in all states and territories across Australia.9 Whilst this response has indicated a step in the right direction, key changes are still required to ensure that torture and inhumane punishments are eradicated within Australia. The current migration policy relating to the expulsion of asylum seekers is a key area of concern for the Australian Human Rights Commission, as it is possible that the Australian Government is in breach of its international obligations relating to torture and inhuman, degrading or cruel punishment. The High Court decision Chu Kheng Lim v Minister for Immigration Local Government & Ethnic Affairs established the legal validity of the expulsion and detainment of refugees in Australia. In this case, the majority of the court agreed that the detaining of ‘an alien in custody for the purposes of expulsion or deportation… constitutes an incident of executive power’.10 The current border protection policy intends to return boat arrivals to their country of origin or to another country in the region if they are refugees. Under Article 33 of the Refugee Convention, the expulsion of a refugee with a ‘well-founded fear of being persecuted’ and faces the risk of torture in their country constitutes a violation of Australia’s international obligations to torture.11 This definition has also been extended by other treaty obligations prohibiting the expulsion of political prisoners and diplomats, who are at risk of being tortured or killed in their own country.12 In order to prevent violations of these international laws and


takomabibelot 2007

prevent situations involving torture, it is essential that the government amends the Migration Act 1958 (Cth) to make specific provisions to protect asylum seekers and migrants who seek to invoke Australia’s treaty obligations.

IN THE NAME OF JUSTICE? SINGAPOREAN PENAL CODE AND JUDICIAL CANING

‘Whilst many politicians and policy advisors advocate for the continuation of torture to protect the security of nations, there is no exception to torturing a human being.’ According to Bala Reddy16 the implementation of judicial caning in Singapore arguably aims to ensure ‘the offender’ receives a just punishment, which will deter and reduce the likelihood of re-offending.17 However in this discussion, Bala Reddy also recognises that it is essential the courts enforce the punishment with a high level of discretion when interpreting the statutory provisions.18 However the use of violence to prevent immigration offences (‘unauthorized entry’ or illegally overstaying visa time period)19 or vandalism20 has been significantly criticised by lawyers and politicians in Singapore due the lack of proportionality of the punishments administered for the offences committed. Although the intention of Singaporean Government is to deter and prevent the occurrence of crime, the use of judicial caning is a form of degrading punishment that disregards more effective rehabilitative practices and the offender’s mental or physical health.

Since the development of international laws regarding the abolition of torture and other degrading punishments, our tacit understanding of what constitutes ‘torture’ as heinous physical violence has been extending to include severe psychiatric harm and other forms of institutional human rights violations (for example, deaths in custody, judicial caning and the expulsion of refugees and political prisoners). The movement towards abolition of torture in Australia and the evidence of opposition to corporal punishment in Singapore signify a movement towards reducing the quantity of degrading punishments in the region. Whilst many politicians and policy advisors advocate for the continuation of torture to protect the security of nations, there is no exception to torturing a human being. As soon as we justify the usage of torture, we forget the importance of humanity and how organisations and governments for political and economic purposes have abused such punishments. .1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14.

15. 16. 17. 18. 19. 20.

Alan Clarke, ‘Rendition to Torture: A Critical Legal History’ (2009) 62(1) Rutgers Law Review 1, 4. United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment Art 1. Iveta Cherneva, ‘The Drafting of Article 2 of the Convention Against Torture (2012) 9(1) Essex Human Rights Review 1, 2. Criminal Procedure Code (Singapore, cap 68, 2012 rev ed) s325. United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment Art 1. Ibid Art 2. Cherneva, above n 3, 5. Ibid, 6. Crimes Legislation Amendment (Torture Prohibition and Death Penalty Abolition) Act 2010 (Cth) Sch 1. Chu Kheng Lim v Minister for Immigration Local Government & Ethnic Affairs (1992) 176 CLR 1, 10 (Mason CJ). Convention relating to the Status of Refugees Art 33 International Covenant on Civil and Political Rights Art 7, 10(1). Criminal Procedure Code (Singapore, cap 68, 2012 rev ed) s 329. Bureau of Democracy, Human Rights and Labor, 2011 Human Rights Reports: Singapore (24 May 2012) US Department of State <http://www.state.gov/j/drl/rls/ hrrpt/humanrightsreport/index.htm#wrapper> Ibid. Bala Reddy is the Chief Prosecutor (Projects) in the Attorney General’s Office, Singapore. Bala Reddy, ‘Sentencing: Unintended But Foreseeable Consequences’ (1992) 4 Singapore Academy of Law Journal 116, 117 Ibid,118. Immigration Act (Singapore, cap 133, 2008 rev ed) s 15 Vandalism Act (Singapore, cap 341, 1985 rev ed) s 3

29 BLIND JUSTICE AT THE COST OF HUMANITY

Judicial caning is form of legal punishment, which derives from the colonial practice of birching with a rattan cane.13 The punishment derives from the laws enforced by British Commonwealth in Malaysia and Singapore during colonisation. However after the independence of Singapore, the scope of judicial caning was used as a form of legal punishment for criminal offences including robbery, rape, drug trafficking, vandalism and violations of immigration laws.14 In 2012, Singaporean law courts sentenced 2,500 people to judicial caning and out of those sentences 2,203 caning sentences were executed (some exemptions for reasons including but not limited to medical grounds, court appeals and age).15

WHY IS ABOLITION IMPORTANT?


A FALSE PROTECTION Blasphemy Laws in Australia and Pakistan ALI SYED highlights the inherent similarities between blasphemy laws in Australia and Pakistan to argue that they truly have no place in contemporary society.

A FALSE PROTECTION

30

In recent years there has been significant debate of the role of anti-blasphemy laws in multicultural societies. Most Western democracies have removed blasphemy laws from their criminal codes. However you might be surprised to find that Australia is not one of them.1 The origin of blasphemy law lies in British ecclesiastical law. After abolition of ecclesiastical courts, blasphemy was declared to be a common law offence. It is interesting to note that the common law offence of blasphemy only applies to the criticism of the fundamental tenants of Christianity and does not protect other religions.2 The states of Victoria and Tasmania still have penalties in their Crimes Acts for those who are convicted for publishing blasphemous material.3 This, however, should not be a huge cause for alarm for those who see blasphemy laws as incompatible with upholding a functioning democracy. The last successful prosecution of an individual on this charge in Australia was in 1871.4 This starkly contrasts another former British colony, Pakistan. Established in 1947 after gaining freedom from British rule, Pakistan has very strict blasphemy laws. Like Australia, these laws originate in inherited UK criminal statute. Blasphemy laws were established in the penal code of British India in 1860, and continue to be applied today.5

“An individual can be convicted under these laws without the admission of any proper evidence in court; mere hearsay has proved enough to convict people.” The former Dictator Zia Ul Haq introduced a raft of changes to the original blasphemy laws in the late 1970s (Section 295-298 Penal Code of Pakistan). The result of these amendments was an increase in blasphemy proceedings – while between 1860 and 1977 there had been only seven cases of blasphemy, since 1977 there have been more than 320 cases lodged. 6 The number of cases alone should be alarming. However, the problem does not end there. These laws are fundamentally flawed. An individual can be convicted under these laws without the admission of any proper evidence in court; mere hearsay has proved enough to convict people in many cases.7 There is also no element of ensuring that the person who allegedly committed this crime had the necessary mens rea, or intention, to commit this act. But wait, it gets worse.

The most contentious section of these blasphemy laws is s 295C, which states that if convicted of blasphemous acts you are to be punished by death or imprisonment for life, and will also be liable for a fine. 8 It is difficult to imagine being charged with blasphemy, and worse knowing it is unlikely you will get a fair trial by Australian standards. These amendments, made under the guise of protecting rights of people of all religious faiths, have instead legitimised bigotry and oppression of minorities. Religious zealots have used international events to inflame the masses against Christian minorities and those who would speak up against such laws. The situation came to a head when the Governor of Punjab Salman Taseer was shot twenty six times because he spoke against these laws. There is clear daylight between Australia and Pakistan as far as anti-blasphemy laws are concerned, although perhaps not in their implementation. Australian states should completely repeal any present blasphemy laws and should join the international world in pressuring Pakistan to amend or repeal their own legislation.9

1. 2. 3.

4.

5. 6.

7.

8. 9.

Criminal Code Act 1995 NSW Law Reform Commission, ‘Blasphemy’, Report 74 (1994) Greg Dyett, ‘Is it time for Australia to get rid of its blasphemy laws, which are mostly rooted in the nation’s Christian heritage and British legal origins?’ SBS (online) 6 September 2014 < http://www.sbs.com.au/news/ article/2013/05/27/time-australia-abandon-blasphemylaws > Anne Flahvin, ‘Blasphemy law doesn’t apply to Muslims’ The Australian (online) 6 September 2014 < http://www.theaustralian.com.au/business/legalaffairs/blasphemy-law-doesnt-apply-to-muslims/storye6frg97x-1226482935491 > Indian Penal Code 1860 (UK), s 295C Asad Hashim, ‘Living in fear under Pakistan’s blasphemy law’ Al Jazeera (online) 7 September 2014 < http://www. aljazeera.com/indepth/features/2014/05/living-fearunder-pakistan-blasphemy-law-20145179369144891. html > Amina kator-mubarez, ‘equivocated intentions: blasphemy laws in pakistan’ global ecco, (online) 6 september 2014 < https://globalecco.Org/ctx-vol.-3-No.1-Article-6 > Ibid. Asad Hashim, ‘Living in fear under Pakistan’s blasphemy law’ Al Jazeera (online) 7 September 2014 < http://www. aljazeera.com/indepth/features/2014/05/living-fearunder-pakistan-blasphemy-law-20145179369144891. html >


HEALTH CARE A PRIVATE COST OR PUBLIC PROBLEM? With the proposed $7 co-payment and privatisation of state hospitals, it is little wonder that health care has proved one of the most explosive topics of the year. JINAN HAMMOUDI examines Australia’s system with Obamacare, seeking to discern whether the issue is a private cost or public problem, and which of the two systems is preferable. Australia has long prided itself on its world-class health care system. It has been described as ‘one of the most efficient in the world’,1 topping world ranks to place 7th compared to America’s rank of 46th.2 But has the time now arrived that Australia, having reached its peak, can only go only downhill from here? I say this in light of the recent steps taken by the Australian Government to privatise aspects of Medicare. While Australia begins to move away from its established and successful system of healthcare, America moves towards it. Through Obama’s introduction of the Patient Protection and Affordable Care Act, also known as ObamaCare, new health benefits, rights and protections in relation to health care are now increasing.

AUSTRALIA’S PRIVATISATION OF HEALTHCARE

COMPARING THE TWO SYSTEMS To discern which system of health care is more desirable, one only need look at the history. Australia’s successful efficient and equitable health care outcomes care can be directly attributable to its universal provision by the government, as opposed to America’s failing privatised system. Judging by America’s poor history of health care under the privatised system, it is curious why Australia has opted to follow in its footsteps. All the while America makes moves towards Australia’s system. To answer the question on the expected effectiveness of these two nations’ change in direction: only time will tell.

31 1.

2. 3. 4.

5. 6. 7.

8.

9.

OBAMACARE Despite the high percentage of GDP invested by America in health care, it has consistently underperformed relative to other countries.11 The privatised nature of health care has also been an attraction for costs, through the existence of ‘multiple payers in a supposedly competitive marketplace’, which have acted to increase the administration complexity.12 Obama’s introduction of the Patient Protection and Affordable Care Act has been enacted in an attempt to combat these issues through universal provision of health care. It operates by regulating health insurance, offering new benefits, rights and protections’ with greater availability and at an affordable cost.13 A number of provisions have

10. 11.

12.

13.

Amy Watson, How does Australia’s medicare compare? ( 21 February 2014) SBS News <http://www.sbs.com.au/ news/article/2014/02/20/how-does-australias-medicarecompare> Ibid. Ibid. Health Education & Training Institute, The Australian Healthcare system <http://www.heti.nsw.gov.au/ international-medical-graduate/australian-healthcaresystem/> Nib, Benefits of Private Health Insurance <http:// www.nib.com.au/home/newtonib/whynib/Pages/ BenefitsofPrivateHealthInsurance.aspx> https://www.greenleft.org.au/node/56317 Jim McIlroy, Coalition push to dismantle health system, Green Left Weekly <http://www.abc.net.au/news/201408-08/government-seeks-to-privatise-medicarepayments/5659114> NSW Nurses and Midwives’ Association, Six Important Questions about Privatisation and Medicare (20 March 2014) NSW Nurses and Midwives’ Association <http:// www.nswnma.asn.au/six-important-questions-aboutprivatisation-and-medicare/> Inga Ting, Competing private health insurers push up costs, inquiry told (17 March 2014) The Sydney Morning Herald < http://www.smh.com.au/federal-politics/ political-news/competing-private-health-insurers-pushup-costs-inquiry-told-20140316-34vjx.html> See above 8 <http://www.nswnma.asn.au/siximportant-questions-about-privatisation-and-medicare/> The Commonwealth Fund, Mirror, Mirror on the Wall, 2014 Update: How the U.S. Health Care System Compares Internationally <http:// www.commonwealthfund.org/publications/fundreports/2014/jun/mirror-mirror> Dr Lesley Russell, Creating a better health system: lessons from the United States (2 September 2014) The University of Sydney <http://sydney.edu.au/news/84. html?newsstoryid=13992> U.S. Department of Health and Human Services, About the Law <http://www.hhs.gov/healthcare/rights/>. See above n 12 <http://sydney.edu.au/news/8 4. html?newsstoryid=13992>

HEALTH CARE: A PRIVATE COST OR PUBLIC PROBLEM?

Australia’s current system of health care is a dual one, where universal healthcare co-exists with private health care.3 Under this system, the government delivers a range of health care services through Medicare and the Pharmaceutical Benefits Scheme.4 Individuals, however, may take out private health insurance cover, giving them the advantage of shorter waiting times for elective surgery, choice of doctor and other added benefits.5 Moves towards privatisation of health care have come about through steps to privatise aspects of Medicare and Medibank, and a growing trend of the ‘erosion’ of public hospitals and clinics due to privatisation.6 Under this privatised system, the push towards increased use of private healthcare funds, as well as the sale of Medicare’s functions, is claimed to decrease costs and improve efficiency.7 Critics, however, argue that this privatisation would in fact result in greater inefficiencies.8 According to OECD data, ‘the more private insurance is used to fund healthcare, the more expensive the health system for the same, or lower, quality of care’.9 Other criticisms lie in the burden that will be placed on those who cannot afford care. The changes have been compared to the highly privatised US health care system, where those who can pay will have access to excellent care, while the rest face the consequences.10

already been enacted and the Act will be in complete operation by 2022. While there is currently no real data to judge the success of the policy, it is expected that it will be beneficial in increasing efficiency and affordability, having already made inroads in a number of investment programs.14


ANTI-EVERGREENING A trend? HEMANT VIJAYKUMAR compares India’s patent law policy with that of Australia and the US to expose which laws encourage accessibility, as opposed to those that protect pharmaceutical companies by allowing the practice of “evergreening.”

ANTI - EVERGREEN

32

Patent law around the world is diverse and often controversial despite the World Trade Organisation’s efforts to implement a harmonised patent system. In particular, the regulation of a practice called “evergreening” has been thrown into the limelight after the recent Novartis decision in India. The socalled “evergreening” practice is a strategy used by pharmaceutical companies to seek extra protection of an already patented drug by investing in incremental innovation and applying for a secondary patent over that innovation.1 Accordingly, this has been criticised as granting protection for trivial changes which most view as an abusive practice by multinational pharmaceutical companies. For countries such as India with poor financial and health resources, this practice hinders the nation’s access to health, as patented drugs are more expensive, and is thus criticised. Conversely, the United States of America and Australia commend the practice to spur future innovation and reward inventors for their research and development; a utilitarian justification. Overlying the global law is the Trade Related Aspects of Intellectual Property Agreement (TRIPS). Article 7 of TRIPS attempts to draw a balance between the rights of the patentee and the end-user. However, flexibilities inherent in the drafting of the clause inevitably results in diverse interpretations. Recently, the Indian Supreme Court handed down a decision2 that ended a seven-year long battle. The court denied Novartis AG, a supreme Swiss pharmaceutical company, a patent over a new version of the cancer drug ‘Gleevec’, instead upholding the decision of the Indian Patent Office to reject the patent application. Importantly, the court held that small changes and improvements to the drug did not constitute innovation deserving of a patent. This ruling carved a path for generic companies to engineer and sell cheap substitutes of the same drug, increasingly accessibility to the treatment. Section 3(d) of the Patents (Amendments) Act 2005 in India mandates that in order for a drug to be patentable the newly discovered form of a substance must enhance the known efficacy of the substance. The underlying purpose of this legislation is to reduce the practice of evergreening.3 However, the terms ‘enhance’ and ‘efficacy’ within this section gives rise to ambiguity. with no explanation provided in the Act as to their meaning. This poses further questions – How do we measure the known efficacy?4 What is the threshold to satisfy an increase in efficacy? The legal vagueness of the section creates significant hurdles for multinational pharmaceutical companies investing in incremental innovation. Clearly the odds are in favour generic drug companies.

In contrast to India, the US has taken an alternative approach in the Hatch-Waxman Act.5 The Act governs the administrative requirements for generic pharmaceutical companies seeking drug approval. The system provides a mechanism to original patentees for periods of data exclusivity, interlocutory injunctions on generic drugs, and further terms of extensions.6 Similarly, Australia has engaged in patentee-friendly regulations by recognising extensions of protections for pharmaceutical patents in the Patents Act 1990 (Cth).7 To some extent this was as a result of the AustraliaUnited States Free Trade Agreement (AUSFTA)8 that transposed the US policy into Australia’s domestic law.9 Although, Australia did veer away from US policy to amend the Therapeutics Goods Act 1989 (Cth) to include anti-evergreening measures, much to the disapproval of the US. These measures impose conditions on pharmaceutical companies wanting to take legal action against generic pharmaceutical companies for patent infringement.10 While these provision may be in place, it seems likely that evergreening in Australia will continue.11 This is because the provisions are hollow and lack the veracity of India’s Section 3(d).12 It begs the question should Australia take stronger action against evergreening to support accessibility over business interests? It will be interesting to observe the trend over the next decade as we approach the end of patent protection for many well-known drugs. 1.

Robert Chalmers, ‘Evergreen or Deciduous? Australian Trends in Relation to ‘Evergreening’ of Patents’ (2006) 30(1) Melbourne University Law Review 29,31. 2. Novartis AG v. Union of India (UOI) and Ors.; Natco Pharma Ltd. v. UoI & Ors.; M/S Cancer Patients Aid Association v. UoI & Ors. Civil Appeal No. 2706-2716 of 2013. 3. Johanna Sheehe, ‘Indian Patent Law: Walking the Line?’ (2009) 29 Northwestern Journal of International law & Business 577, 584 see Linda L Lee, ‘Trials and TRIPSulations: Indian Patent Law and Novartis AG v Union of India’ (2008) 23 Berkeley Technology Law Journal 281, 285. 4. Susan Fyan, ‘Pharmaceutical Patent Protection and Section 3(D): A Comparative Look at India and the U.S.’ (2010) 15 Virginia Journal of Law & Technology 198, 207. 5. Otherwise known as the Drug Price Competition and Patent Term Restoration Act 1984 6. Federal Food, Drug, and Cosmetic Act, 21 United States Cod § 355(b)(2)(A) (2004). 7. Patents Act 1990 (Cth) s 70. 8. See AUSFTA Art 17.10.4. 9. Chalmers, above n 1,34. 10. Therapeutics Goods Act 1989 (Cth) s 26(C)(3). 11. Patents Act 1990 (Cth) s 81. 12. Patents Act 1990 (Cth) s 81.


STOP. HAMMER TIME. The civil law system is more efficient than the common law system. This edition we asked our debaters whether the civil law system is more efficient than the common law system. This age-old contest between the systems of law is a constant source of contention among legal scholars and professionals, with JOHANNA FISHER and BIANCA NEWTON contributing to the discussion.

NO :

Civil law is practiced in approximately 150 countries, including much of Europe and South America. Its popularity is legitimised due to its benefits – based upon a set of codified rules as opposed to judge-made law, the system promotes clarity and certainty whilst facilitating the uniform application of the law. Though the common law system is often espoused as offering greater flexibility in the interpretation of laws, the civil law system is arguably more efficient due to the active role that judges play in adjudicating proceedings. Unlike the common law system – in which judges act as passive spectators – the civil law system allows them to adopt an inquisitorial role. This enables judges to guide the parties through proceedings and establish facts by adducing evidence and other requisite material. They may also call relevant witnesses – powers that are generally entrusted to advocates in the common law system. This approach promotes efficiency and the quick resolution of matters otherwise be stalled where parties delay proceedings to further their own interests or to procure evidence. The active role of judges is justified because of their training. Unlike common law countries, where prospective judges must climb the ranks of the legal profession before being selected as a judge, judges in civil law countries may undertake judicial training from the outset. This allows civil law judges to develop specialised skills which can be applied in practice, and ensures a greater understanding of their role whilst promoting efficiency in relation to education and training.

The common law system is arguably more effective than civil law as it is better suited for adapting to changing social norms and ideals, and places a greater emphasis on legally trained professionals, facilitating community based results. The greatest advantage of the common law system is its ability to evolve to meet the changing needs and ideals of society. Common law courts are not absolutely bound by legislation or even their former precedent, with the system allowing room for the reinterpretation and revision of the law, granted that it is limited and appropriate in the circumstances. This was demonstrated in the landmark Mabo decision, with the High Court altering existing law that had been upheld since colonisation to ensure that Indigenous title to land was officially recognised. The fact that this was subsequently codified in statute demonstrates the altruistic nature of legislation and judge-made precedent in common law nations, working together to generate equitable outcomes and adapt to changing contexts. This also demonstrates the ability of the system to gradually work out the details of the law, significant so that the law doesn’t suffer a dramatic break and negatively affect those it is designed to protect. Also emphasised is the important role of the lawyer, enlivening ‘the notion that law grew out of a community and that the law has meaning beyond the words on a piece of paper’. The central role of lawyers in leading litigation, as opposed to judges generally taking the lead in the civil law courtroom, questioning and establishing facts, is seen to reflect community attitudes. This is because the case is lead by people involved and familiar with the clients, also being more equitable as it is not led by one, sole judge in a position of influence.

By Johanna Fisher

By Bianca Newton 1.

2.

S.B, ‘The Economist explains: What is the difference between common and civil law?’ The Economist (online) 16 June 2013 <http://www.economist.com/blogs/economistexplains/2013/07/economist-explains-10> University of California at Berkeley, The Common Law and Civil Law Tradition, The Robbins Collection, School of Law (Boalt Hall) < https://www.law.berkeley.edu/ library/robbins/CommonLawCivilLawTraditions.html>

3.

4.

The Hon Michael Kirby AC CMG, ‘Patron’s Perspective: The Judicial Life,’ (Speech delivered at Monash University, unknown date) < http://www.hcourt.gov.au/assets/ publications/speeches/former-justices/kirbyj/kirbyj_ judiciallife.htm> Sullivan, K. S. 2007, Constitutional Context: Women and Rights Discourse in Nineteenth-Century America, Johns Hopkins University Press, Baltimore.

33 STOP. HAMMER TIME.

YES :


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VERBATIM Overheard in the Courtroom: The Funny Things Judges Say How ever would we survive law school without those gems of comic relief that come far and few between slabs of latin and legalese in any given judgment. In the final edition of The Full Bench for 2014 SEFAKOR DOKLI brings to you these (unintentionally) funny words of wisdom from the judicial elite.

MR DONAGHUE: At present I cannot see any way around that and we will have to put on the material in due course but we will, if your Honour is content, cross that bridge when we come to it if we can. HAYNE J: No, I simply hear what you say. You should not ascribe any sense of contentment to me at all.

A one-man company does not metamorphose into the one-man simply because the person with a wish to abstract its assets is his wife.” Rimer LJ, Petrodel Resources Ltd & Ors v Prest & Ors [2012] EWCA Civ 1395 (26 October 2012).

35

MR SILBERT: If the Court pleases. Your Honours, I propose to address grounds 3 and 2, and to adopt enthusiastically the submissions of the second respondent in relation to ground 1. GUMMOW J: Why would your enthusiasm help? Momcilovic v The Queen & Ors [2011] HCATrans 16 (9 February 2011).

MR GLEESON: There is a lot of truth in that statement. HAYNE J: If you sit on the fence too long, Mr Solicitor, it becomes deeply uncomfortable. The Commonwealth of Australia v The Australian Capital Territory [2013] HCATrans 299 (3 December 2013)

MR CATTERNS: In the US, methods of treatment are patentable – I will take your Honours to it – there is a carve-out for surgery. FRENCH CJ: An unfortunate metaphor. MR CATTERNS: I beg your pardon, your Honour. Apotex Pty Ltd v Sanofi-Aventis Australia Pty Ltd & Ors [2013] HCATrans 123 (28 May 2013)

Illustrative of the process of “bargaining” or “haggling” is the exchange between Brian and the street merchant in Monty Python’s Life of Brian.” Flick J, Endeavour Coal Pty Limited v Association of Professional Engineers, Scientists and Managers, Australia [2012] FCA 764 (19 July 2012).

VERBATIM

JARK and Ors v Minister for Immigration and Border Protection and Anor [2014] HCATrans 150 (18 July 2014)


Congratulations to our 2014 contributors and thank you for your support. See you in 2015!

2014 The Full Bench Ed 4  

This is the fourth edition of The Full Bench published in 2014 by the UTS Law Students' Society.

2014 The Full Bench Ed 4  

This is the fourth edition of The Full Bench published in 2014 by the UTS Law Students' Society.

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