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.
UN demands Vic Gov take responsibility for rogue police
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.
Castan Centre launches Human Rights Report
Monash University’s Castan Centre for Human Rights has launched its first Human Rights Report: “We have decided to publish this report to improve the public’s understanding of our world-renowned academic research. Each piece is written in plain English and designed to inform the public about human rights law and policy issues in key areas”. It features articles by legal experts on a range of topics including freedom of speech, corporations, foreign aid, spies, prisons and detention centres, asylum seekers, gender, reproductive rights, LGBTI rights, and Indigenous rights.
Doctor wants to be charged over euthanasia help
Dr Rodney Syme has challenged Victorian authorities to prosecute him for providing the death drug Nembutal to patients who wish to end their lives: “I just believe passionately that there are too many people suffering too much not to try a little bit harder to change things… And a lot of these things it seems will only be changed in a court decision, so bring it on.” While suicide is legal, it is an offence to incite, aid or abet an attempt to commit suicide. Dr Symes says police and the DPP are turning a blind eye because they do not support the law, but he wants euthanasia legalised and regulated: “Desperate people are doing desperate things, without any effective guidance regarding this medication, dosage or indications.”
High Court to hear offshore detention challenge
The High Court has agreed to hear a challenge to Australia’s transfer of asylum seekers to Papua New Guinea’s Manus Island. The plaintiff’s submissions raise two arguments. First, they say the offshore processing scheme is unconstitutional because it goes beyond the “naturalization and aliens”, “immigration and emigration”, and “external affairs” powers in section 51. Alternatively, they say that using Manus Island as an offshore detention camp is unlawful because it would not adequately process claims or protect refugees. (This was the basis of the High Court’s 2011 M70 decision to overturn a similar plan to send asylum seekers to Malaysia.) The case will be heard against the background of ongoing investigations into the brutal killing of Reza Barati, and an ongoing tussle over whether PNG judges can order a human rights inquiry into the camp.
High Court recognises gender diversity
In a landmark ruling, the High Court upheld Norrie’s right to have hir sex recorded as “non-specific” in the NSW Register of Births, Deaths and Marriages. The opening line of the unanimous judgment rejected the idea that gender is binary: “Not all human beings can be classified by sex as either male or female.” Simon Rutherford of A Gender Agenda, which appeared in the case as amicus curiae, said, “This a fantastic decision for gender diverse and intersex people, who simply want to be recognised for who they are.” The case was based on interpretation of NSW legislation, so it will not be directly applicable elsewhere, but it is an important step in a trend towards “bring[ing] the law into line with social understandings of sex and gender diversity.”
Should negligent police compensate crime victims?
“If a woman is assaulted or killed and police don’t do all they can to protect her from attack, should the police be held liable in negligence?” In Australia, the law is unclear. The NT police reached a confidential out-of-court settlement with Tiffany Paterson, whose complaints were ignored by police before she was beaten and slashed in the face by her former partner. In WA, the family of Andrea Pickett are suing the police for their failure to prevent her being brutally murdered in front of her daughter. Australian lawyers are attempting to develop this area of the common law because in the UK, the High Court awarded damages to two victims of a serial rapist. It held that “a series of systemic failings” breached “a duty imposed upon the police to conduct investigations into particularly severe violent acts perpetrated by private parties in a timely and efficient manner”. However, the UK claim was brought under the Human Rights Act 1998 (UK), and no equivalent legislation exists in Australia.
Ethnic leaders oppose weaker anti-racism law
The only Indigenous MP in the federal government’s caucus has threatened to cross the floor if Attorney-General George Brandis’s plan to water down anti-racism laws goes too far. He joins representatives of the Indigenous, Greek, Jewish, Chinese, Arab, Armenian and Korean communities, who said the proposals were “morally repugnant”. The government’s move is in response to a Federal Court finding that Andrew Bolt breached section 18C of the Racial Discrimination Act 1975 (Cth). In a series of articles, Bolt questioned whether “fair-skinned Aboriginal people … are sufficiently of Aboriginal race, colour or ethnicity to be identifying as Aboriginal”, and this “offend[ed], insult[ed], intidimidate[d] or humiliate[d]” Aboriginal people. He could not rely on the “free speech” defence in section 18D because his reports were “erroneous”, “mocking and derisive”, and were therefore not published “reasonably and in good faith”. Press reports suggest the government is proposing to amend both sections 18C and 18D. The Australian Human Rights Commission has published an explanation of how the laws currently work, with case examples.
Judge criticises mandatory sentencing
A County Court judge has criticised the mandatory sentencing that applies to people smuggling offences. The comments came during a plea hearing for a refugee who was found guilty of helping other refugees, including his family, enter Australia. Judge Dean suggested the mandatory penalty would create injustice: “One can understand why it happened and why a person would want to assist their own family or his wife’s family to travel or leave circumstances of persecution. It’s not lawful but it’s certainly explicable. He goes to prison and they are permanent residents.” The offender must be sentenced to a head sentence of at least five years, and a non-parole period of at least three years. Late last year, the High Court ruled that the sentencing regime was valid.
Data leak might cause asylum seeker persecution
In an a serious administrative bungle, “the names, dates of birth, countries of origin, arrival date and location of every asylum seeker in a mainland detention facility [were] accidentally published on the Immigration Department’s website.” So far, ninety asylum seekers have begun legal appeals to overturn their previous rejection—the leaked data may have increased the risk that they would be persecuted upon return to their homelands, making them refugees sur place.