2012 - Vol 37(4) - Law in Practice

alternative law journal, vol 37(4) coverInvestigating detention

Interpreting legality

Embracing education

'Fair shake of the sauce bottle’: Fairer ASIO security assessments of refugees

Ben Saul

The issuing of adverse security assessments by the Australian Security Intelligence Organisation (‘ASIO’) often denies basic procedural fairness to those who are not Australian citizens, permanent residents or special purpose visa holders. Over the years the problem has been exposed by cases in the federal courts,1 the Australian Law Reform Commission (calling for an inquiry in 2004),2 and academics.3

From 2009 to the present, the problem has been felt most acutely by 54 irregularly arrived refugees who were refused protection visas after receiving adverse security assessments, and found themselves in indefinite detention. Their situation has been highlighted by the Australian Human Rights Commission, complaints to the United Nations Human Rights Committee, a Joint Select Committee on Australia’s Immigration Detention Network, a UNHCR expert roundtable, and two High Court challenges.4 The Australian Labor Party conference in 2011 suggested referring an inquiry to the Independent National Security Legislation Monitor, but that had not occurred by late 2012.

(2012) 37(4) AltLJ 221


Reforming rights-based scrutiny and interpretation of legislation

Bryan Horrigan

sroth international law on boardThis article examines recent and significant developments about rights-based scrutiny and interpretation of legislation at the national level of government. The developments canvassed here cover parliamentary scrutiny of laws against international human rights standards, the High Court’s first major consideration of a statutory human rights law, and the impact of legal globalisation upon norms of statutory interpretation. Each of these developments provides new opportunities for courts to explore how they and the other branches of government engage with foreign and international law (‘global law’) in law-making and statutory interpretation affecting human rights.

(2012) 37(4) AltLJ 228


Australia and the OPCAT

Adam Fletcher

The Optional Protocol to the Convention against Torture (‘OPCAT’) is a unique, action‑based treaty which is designed to protect people everywhere who have been deprived of their liberty. Detention puts individuals in a very vulnerable position, as they are at the mercy of the State and rely on the authorities for even their most basic needs. This raises a very real risk of human rights abuses — a risk which can only be mitigated by strong oversight mechanisms. The OPCAT provides a framework for such mechanisms, and is currently being considered for ratification by Australia. This article sets out some of the issues associated with ratification, including the potential costs, the places of detention it is likely to cover and which bodies are likely to be involved in implementation. It also explains that the OPCAT is highly relevant to Australia because it is about much more than just torture.

(2012) 37(4) AltLJ 233


Tough, tougher, toughest? A new government’s approach to sentencing laws in Victoria

Michelle McDonnell and James Farrell

sroth baillieu thWhen in opposition Victoria’s Liberal/National Coalition made a number of commitments to be ‘tough on crime’. As The Age editorialised within days of the new government’s election:

Of all the key election issues, law and order is the one on which Ted Baillieu’s Coalition ran earliest and hardest. Never mind, as The Age has often noted, that crime is not out of control – the overall rate has fallen since 2000 – and that Victoria is a generally safe place to live. The public 
was alarmed by rises in knife attacks, drunken violence 
in the CBD and crime on public transport (although 
these trends reversed in the latest police statistics). 
The Coalition’s tough-on-crime message hit home, with 
Mr Baillieu vowing to end the ‘tragic Monday morning roll call’ of assault victims. The popular expectation is likely to be that as Premier he will act as tough as he liked to talk while Opposition Leader.1

In comparison to other policy areas, the government reformed sentencing laws more quickly and more substantially in its first year of office than any other area of policy, with several key initiatives proposed or already delivered.

(2012) 37(4) AltLJ 238


In defence of Victoria’s Children’s Court

Judith Bessant, Michael Emslie and Rob Watts

Australian child protection systems have been subject to sustained and significant criticism for many decades. As a central part of that system Children’s Courts have been implicated: three recent inquiries into the child protection system in Victoria all criticised the Family Division of the Children’s Court.1 In the resulting debate two diametrically opposed points of view surfaced about the Children’s Court and the role that legal procedures and professionals should play in child protection matters. On one side bodies like the Children’s Court of Victoria, Victoria Legal Aid (‘VLA’), the Law Institute of Victoria (‘LIV’), and the Federation of Community Legal Centres (‘FCLC’) argued that the Children’s Court plays a vital role in child protection and should continue to play that role.2 On the other side a coalition of human service and child protection agencies called for major change including the removal of the Children’s Court from the child protection system. Victoria’s Department of Human Services (‘DHS’) has been critical of the Court3 as have community sector organisations like Anglicare, Berry Street, MacKillop Family Services and the Salvation Army — all agencies the DHS funds to deliver child protection services.4 Victoria’s Child Safety Commissioner has also called for major reform, publicly labelling the Court a ‘lawyers’ playground’ and recommending abolishing the Court’s involvement in child protection completely.5

(2012) 37(4) AltLJ 244


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