In this episode of Hearsay, I’ll take a look at the international legal dispute that led to our Prime Minister being dubbed “Mr Trumble”. I’ll also talk about some of the other controversies surrounding Donald Trump’s fledgling presidency, and explain how they have parallels with issues in Australia’s legal system. Continue reading “1×01: Mr Trumble goes to Washington”
The latest video in Castan Centre’s Have You Got That Right? series considers the right to a healthy environment. Monash University’s Associate Professor Adam McBeth says while the UN does not yet explicitly recognise it, “a new right to a healthy planet may continue to be fleshed out, emerging from our existing rights” to health, food, water, and the like. South Africa’s constitutional bill of rights includes section 24, which protects human rights “to an environment that is not harmful to their health or well-being” and “to have the environment protected, for the benefit of present and future generations”. In a decision upholding the government’s right to prevent the construction of a new petrol station, Claasen J of the South African High Court (roughtly equivalent to an Australian State Supreme Court) ruled that s 24 meant “[p]ure economic principles will no longer determine in an unbridled fashion whether a development is acceptable. Development, which may be regarded as economically and financially sound, will in future be balanced by its environmental impact…” In 2014, in a report considering the right to a healthy environment around the world, the UN’s Special Rapporteur on Human Rights and the Environment observed that “over 90 national constitutions recogniz[e] some form of the right”, including 30 African countries, but that “implementation was the major issue”.
In 1988, two NSW teenagers were sentenced to life imprisonment for rape and murder. At the time, they could apply for release after 10 years. However, the NSW Government repeatedly changed the law to ensure they were “cemented in jail and were never to be released”, in the words of then Premier Bob Carr. The Human Rights Law Centre took their case to the United Nations Human Rights Committee, making a number of arguments about the International Covenant on Civil and Political Rights (ICCPR), to which Australia is a signatory. Their three strongest arguments were: First, that “the imposition of a life sentence without the possibility of parole in respect of a juvenile offender is incompatible” with Article 10, paragraph 3, which states: “The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation.” Second, that “the imposition of a life sentence [without parole] on a juvenile constitutes cruel, inhuman and/or degrading punishment” contrary to Article 7. And third, that sentencing the teenagers to an adult sentence without giving them an opportunity to show their rehabilitation was a breach of Article 24, which requires protection of children. The Committee agreed with these arguments at paragraph 7.7. The Australian Government now has 180 days to respond to the Committee’s findings. Daniel Webb of the HRLC argues that response needs to include amendment of the NSW sentencing law.
Former Prime Minister Gough Whitlam died this morning, aged 98. From a Legal Studies perspective, his short term in office provided much to consider. His program included many legal reforms, including lowering the voting age to 18, allowing the Territories to elect two senators each, establishing the Family Court and a no-fault divorce system, funding legal aid and community legal centres, creating the Australian Law Reform Commission, signing a raft of UN treaties, supporting Indigenous land rights, and introducing significant legislation like the Racial Discrimination Act 1975. He proposed two increases in Commonwealth Constitutional power, but both failed at the 1973 referendum. He called a double-dissolution election in 1974, and is the only Prime Minister to subsequently hold a section 57 joint sitting of both Houses of Parliament to pass deadlocked bills. He controversially appointed his Attorney-General, Senator Lionel Murphy, to the High Court—over the objection of Chief Justice Garfield Barwick. In retaliation NSW filled the Senate vacancy with a non-Labor appointment. Later that year, Queensland also replaced a dead Labor senator with a conservative. This process was changed by a referendum in 1977 to prevent it happening again, but at the time it tipped the balance of power in the Senate and allowed the Opposition to block supply bills. Whitlam refused to resign because he believed he was accountable only to the House of Representatives, but his government could not function without supply. The Chief Justice of the High Court provided legal advice to the Governor-General, arguably in breach of the separation of powers, and instead of dissolving parliament, the Governor-General sacked Whitlam and swore in Malcolm Fraser as the new prime minister. The supply bills were passed by the Senate before Labor senators had been told about the change of government. The House of Representatives immediately voted confidence in Whitlam, but it was too late. Fraser comfortably won the subsequent double-dissolution election. This series of events is known as a Constitutional Crisis because it highlighted that unwritten (and therefore breakable) conventions are very important to the functioning of Australia’s written Constitution.
In its Tajjour v NSW judgment delivered yesterday, the High Court ruled on a challenge to section 93X of the Crimes Act 1900 (NSW), a guilt-by-association offence that bans “habitually consorting” with convicted criminals. The High Court upheld the law’s validity and rejected the plaintiffs’ three arguments. First, applying the Lange test, a majority of the Court accepted that s 93X burdens political communication, but said it is still valid because “it is reasonably appropriate and adapted, or proportionate, to serve the legitimate end of the prevention of crime”. Second, the Court reiterated its previous rulings that there is no “free-standing” implied freedom of association in the Constitution—association is only protected to the extent that it is a form of political communication. Third, the Court unanimously held that freedom of association under the International Covenant on Civil and Political Rights could not restrict State Governments because it has not been ratified by Commonwealth legislation.
The Immigration Minister, Scott Morrison, has introduced a bill to make it easier to deport asylum seekers who face a risk of torture or death in their country of origin. The proposed changes are in response to statutory interpretation of the Migration Act that the government disagrees with. The Explanatory Memorandum to the bill states: “The Full Federal Court’s decision in Minister for Immigration and Citizenship v SZQRB … found that the threshold to be applied to assessing complementary protection claims is whether there is a ‘real chance’ of significant harm, the same threshold that applies to the assessment of claims under the Refugees Convention. The Government’s position is that the risk threshold applicable to the non-refoulement obligations … is ‘more likely than not’. ‘More likely than not’ means that there would be a greater than fifty percent chance that a person would suffer significant harm in the receiving country.” The Age columnist Tony Wright translates the legal language as follows: “In short, if there is a mere 49 to 50 per cent chance of … being hung by one’s thumbs from meathooks while being thrashed by a length of electrical flex, that’s good enough for Mr Morrison. They can be sent to whatever fate might await them.”
The UNESCO World Heritage Committee yesterday took only seven minutes to reject an application by the Abbott Government to reduce the size of the Tasmanian Wilderness. The protected area was expanded by UNESCO last year, and the government sought to return to the previous boundary, in order to allow logging to resume. No member nation spoke in favour of the proposal, but Portugal spoke against, saying, “The justifications presented to the reduction are to say the least feeble.” The world heritage status of Tasmania’s forests has been politically sensitive since it was first listed by the UN in December 1982. Only a few months later, the Hawke Government ratified the listing with the World Heritage Properties Conservation Act 1983 (Cth), in order to prevent the Tasmanian government building the Franklin Dam. In the Tasmanian Dam case, the High Court adopted a broad interpretation of “external affairs” and upheld the dam ban.
Former High Court judge, Michael Kirby, was appointed by the UN to head a Commission of Inquiry on Human Rights in the DPRK (North Korea). Based on testimony from refugees, the commission’s report found that terrible human rights abuses were committed in North Korea, and warned that its leaders faced prosecution for crimes against humanity. North Korea responded with a personal attack on Kirby. Last week, The Guardian organised an Ask Me Anything session on the Reddit forum, and Kirby fielded questions on the commission’s process and findings, and his views on what should occur next. Although he was realistic about the prospect of Kim Jong-Un facing trial—“There is absolutely no possibility that the present Supreme Leader of North Korea would appear voluntarily before the ICC”—he nevertheless remained hopeful that the report, shared by clandestine internet connections, would have an impact: “I suspect that the only thing [the DPRK leaders] respect and fear is the spreading of information about the truth in their country. And especially the risk that this information will get into the hands of the local population. … In the upshot, the truth will out. Truth is a great cleansing agent. North Korea must be opened to the truth. I hope, now that the COI report has been translated into the Korean language, it will become increasingly available to the citizens of DPRK.” The Guardian has collated ten highlights from the Kirby AMA.
The United Nations Human Rights Committee says Victorian law should hold the government responsible for all actions by on-duty police officers, and the victim of a savage beating should receive compensation. In 1996, police broke in to Corinna Horvath’s home, bashed her, fabricated evidence, and later lied in court. She initially won compensation, but that was overturned when the Court of Appeal ruled the government was not vicariously liable under section 123 of the Police Regulation Act 1958 (Vic) because the indidual police involved had not acted “in good faith in the course of his or her duty”. The UN ruled this was a breach of the International Covenant on Civil and Political Rights: “It is the State’s responsibility to ensure that its police do not violate human rights and to remedy violations of human rights by its police”. It concluded that “the State of Victoria is obliged to change its domestic laws” to address the problem. The Victoria Police Act 2014, which commences in December, changes the State’s liability for torts committed by police, but Horvath’s lawyers say the new law will be “an expensive and lengthy two-step process” and does not go far enough.
A nine-month-old baby in Pakistan has been granted bail on an attempted murder charge. His whole family was charged over an alleged stone-throwing incident. The baby’s grandfather told reporters, “Everyone in the court was saying ‘How can such a small child be implicated in any case’? What kind of police do we have?” Article 40 of the UN Convention on the Rights of the Child requires governments to establish “a minimum age below which children shall be presumed not to have the capacity to infringe the penal law”. The minimum age of criminal responsibility in Australian jurisdictions is 10 years old, with a rebuttable presumption against responsibility between 10 and 14.