In 2006, Hanky Gunawan, an Indonesian national, was sentenced to 15 years’ imprisonment by a district court in Surabaya, Indonesia’s second-largest city, for producing and distributing large quantities of ecstasy. Both the prosecution and Mr Gunawan appealed to the provincial high court, and his sentence was increased to 18 years. The prosecution appealed again, this time to the Supreme Court, objecting to the perceived leniency of the sentence. In 2010, the Court sentenced him to death by firing squad. However, the following year, the Court reopened the case and a new panel of judges re-examined it. The new panel reinstated the first instance sentence of 15 years, thereby saving Gunawan from death. It held that the death penalty was unconstitutional because the Constitution provided an absolute right to life. By initially imposing the death penalty, then, the Supreme Court had made a judicial error. To add weight to this finding, the new panel also pointed to Article 3 of the Universal Declaration of Human Rights (‘Everyone has the right to life…’) and Article 4 of Indonesia’s domestic Human Rights Law, which provides the same right.1
The 2014 police raids on the homes of suspected ISIS supporters in Sydney and Brisbane, in response to concerns that they were planning to kidnap and behead random members of the public, has once again seen the Islamic community at the centre of attention. The spotlight has been on highly visible symbols of Islam, in particular, the facial coverings worn by some Muslim women. This is evident from Senator Jacqui Lambie’s campaign to 'ban the burqa' (supported by Pauline Hanson),1 and Senator Cory Bernardi's vocal opposition to this garment epitomised in his tweet: 'Note burqa wearers in some of the houses raided this morning? This shroud of oppression and flag of fundamentalism is not right in Australia.'2 Indeed, even our Prime Minister has stated that he finds the burqa a 'fairly confronting form of attire and frankly I wish it weren’t worn.'3 For some Australians, it appears that the sight of a woman fully covered from head to toe, is deeply disturbing.
Scott Prasser and Helen Tracey (Eds); Connor Court Publishing, 2014; 410pp; $49.95 (paperback)
Royal Commissions and other forms of public inquiries are an important feature of modern government. Executed well, they contribute to rational policymaking and improved accountability and integrity. However if executed poorly, they can be wasteful and costly, and risk undermining public confidence both in the inquiry process itself, and in government more broadly. They are therefore an important topic warranting greater understanding.
On 30 October 2014, Communications Minister Malcolm Turnbull introduced the federal government’s controversial legislation for a mandatory data retention scheme into Parliament. Under the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014, it is proposed that telecommunications service providers must store customer telecommunications metadata (but not content data) for two years so that it can be accessed by law enforcement agencies on request without a warrant. Mr Turnbull told Parliament that “[a]ccess to metadata plays a central role in almost every counter-terrorism, counter espionage, cyber security, organised crime investigation”.
In its inquiry on Serious Invasions of Privacy in the Digital Era, the Australian Law Reform Commission (‘ALRC’) considered whether Australians whose privacy is invaded should have a civil action for redress. In its Report 123, tabled before Parliament on 3 September, the ALRC recommends new legislation that would give a legal remedy for serious invasions of privacy. Unfortunately, the current Commonwealth government is already on record for opposing such legislation.
The ALRC proposal, which largely follows an earlier Discussion Paper, is for federal legislation introducing a new tort of serious invasion of privacy. The ALRC recommends that the tort would focus on ‘intrusion into seclusion’ and ‘misuse of private information’. It would be confined to intentional or reckless invasions of privacy, so that negligent invasions of privacy would not be actionable, and be subject to a requirement that the invasion must be serious. Importantly, it is proposed that an action could only succeed if the court was satisfied that the public interest in privacy outweighed any countervailing public interests. This requirement for a balancing exercise would ensure that freedom of speech, freedom of the media, public health and safety and national security would not be disproportionately curtailed.
Directed by Matthew Warchus. Starring Bill Nighy; Paddy Considine and Imelda Staunton; eOne films 2014; 120 mins
The working-class destroying policies of Margaret Thatcher may be said to have spawned its own mini film industry. Films such as The Full Monty, Billy Elliot and the extraordinarily moving Brassed Off all depict life during the 1984-85 UK miners’ strike where Thatcher waged a vicious war using all the tools of state oppression, including draconian laws against the workers protesting the pit closures and the loss of their livelihoods. Those films show the desperate means that retrenched workers often have to go to in order to keep food on their families’ tables and all feature plenty of wonderful music.
Ulla Secher; Hart Publishing, 2014; 534pp; UK£90 (hardcover)
As noted in the Preface, this book seeks ‘to offer an alternative to conventional Aboriginal title doctrine,’ namely the doctrine of common law Aboriginal customary title.
The book starts by explaining the system of feudalism that shaped the common law and the doctrine of tenure, and the effect of their reception into the Australian colonies up until the seminal Mabo decision. The book then re-evaluates pre-Mabo case law from former British colonies in Africa, as well as the United States, Canada and New Zealand.
Diversity is a Wonderful Thing
Congratulations Maurice Blackburn on winning the prestigious Law Firm Diversity Award. In accepting the award, CEO Greg Tucker acknowledged the women who have made the firm one of the most gender-diverse in the country. He said, It goes without saying that I’ve had nothing to do with these achievements other than watching them happen. … These ladies have created what is accepted inside our firm; I’m accepting this on behalf of a lot of different people whose shoulders I’m standing on now.’ Seventy-seven per cent of Maurice Blackburn’s staff is female, and women make up around 44 per cent of the firm’s partnership.
The Australian federal government — and several state governments — are currently seeking to use law to reduce the democratic space available to Australian citizens and even future governments. Legal realist theory tells us that law follows power, in contrast to the legal positivist view that law’s development follows its own internal rules of logic.
In Australia today, the realist thesis is evidenced by several laws currently being pursued or considered by the Australian government, acting under the influence of corporate pressure. Four particularly striking examples illustrate this illiberal and alarming trend.