The Commonwealth government continues to demonstrate its expertise in Orwellian turns of phrase. Law reform initiatives have seen the government call for submissions on ‘traditional’ freedoms while passing a tranche of laws that challenge rights to due process and the protection of the law. The Migration Amendment (Protecting Babies Born in Australia) Bill 2014 for example, rather than protecting babies, removes protection for babies born in Australia to asylum seekers, that would otherwise be available under the Refugee Convention. The Guardian for Unaccompanied Children Bill 2014 appoints a guardian for unaccompanied non-citizen children. The Bill is a ‘measure to assist Australia to meet its obligations under the Convention on the Rights of the Child’. The Orwellian twist is that the Bill is intended to apply to all children held in immigration detention, found by the Human Rights Commission to be contrary to human rights.
Developments around the country
DownUnderAllOver is a round-up of legal news from both State and federal jurisdictions, and contains topical articles and short pieces from Alternative Law Journal committees around the country.
The ACT is undergoing significant changes in respect of sentencing laws. The Legislative Assembly Standing Committee on Justice and Community Safety is currently conducting an inquiry into sentencing and is expected to deliver its report in early 2014. The terms of reference include the law, legal doctrine and rationale of contemporary sentencing practice; comparisons with other jurisdictions; rates of successful sentencing appeals; and timeliness in handing down decisions and sentences.
In March 2014, the ACT government announced its intention to phase out the use of periodic detention by 2016–17. The ACT is currently the only Australian jurisdiction that uses periodic detention, with NSW having abolished it in 2010. In April 2014, the ACT Corrections Minister, Shane Rattenbury, confirmed that moving away from periodic detention would ‘make way for future alternative options which may include intensive community correction orders, which will more effectively deliver on our goals of rehabilitation and reduced rates of incarceration’.
This year the Human Rights Act 2004 (ACT) entered its 10th year of operation. Since 2010, the ANU College of Law has been running the ACT Human Rights Act Portal (‘ACTHRA Portal’), which monitors developments in how the Act has been applied and interpreted. The ACTHRA Portal is a database containing over 180 summaries of court and tribunal decisions relating to the Human Rights Act, in addition to a regularly updated compilation of extracts from debates of the ACT Legislative Assembly. Student volunteers in Law Reform and Social Justice at the ANU College of Law contribute to the Portal by writing brief case summaries, and by working together with academic faculty advisers who provide editorial and drafting guidance to bring all content to a publishable standard. This year, the ACTHRA Portal has completed case summaries for court and tribunal decisions in which a number of human rights issues were raised, including freedom of expression, fair trial, statutory interpretation and reasonable limits on freedom and has begun offering biannual electronic newsletter updates. To check out the database, or subscribe to the newsletter, go to: — http://acthra.anu.edu.au.
The ACT Law Reform Advisory Council has been asked by Attorney General, Simon Corbell to inquire into the terms and operation of the Guardianship and Management of Property Act 1991 (ACT) to ensure that it reflects best practice in guardianship law relating to adults. The Council has been told to 'have regard to the General Principles established in the United Nations Convention on the Rights of Persons with Disabilities ('CRPD') focusing on the principle of respect for individual autonomy and dignity of persons, which is reflected in supported decision making frameworks'.
The inquiry in the ACT follows recent inquiries by the Victorian Law Reform Commission, the Queensland Law Reform Commission, and the Australian Law Reform Commission. Focus on the CRPD is important in light of the concerns of the UN Committee on the Rights of Persons with Disabilities, expressed in October 2013, that despite ratifying the CRPD and adopting the National Disability Insurance Scheme, Australia has 'not yet brought its legislation fully into line with the Convention'.
The ACT inquiry is scheduled to report by 20 September 2015. A public submission process will commence in early 2015. Updates are available at — www.lawreform.act.gov.au.
There are over 100 million migrant workers globally, many employed on temporary contracts. For numerous developing countries in the Asia Pacific region, labour migration is a key strategy for poverty reduction and economic development. Yet many low-wage migrant workers routinely encounter violations of their basic human rights and labour rights, as well as their legal rights under domestic laws and employment contracts. Such violations can often be traced to misconduct within the private recruitment industry, in both the workers’ home and host countries.
In October 2014, UNSW Law hosted the first international research workshop on migrant worker recruitment in the Asia Pacific region in almost a decade.
The workshop was preceded by a public symposium — the first in Australia to focus specifically on the challenges posed by privatised migrant worker recruitment. Discussion focused on migrant workers’ subjection to deception and improper fees during recruitment, and to workers’ common experiences of indecent work conditions, unpaid wages and employer abuse abroad.
Australia’s migrant workers — who include working holiday-makers, international students, and workers on 457 visas who increasingly perform low-wage work — also encounter problems not dissimilar to those faced by migrant workers in other countries, even though they are a less homogenous ‘migrant worker’ group.