2013 - Vol 38(4) - Expanding Legal Horizons

altlj 38 4 front cover smPrinciples of Legality

Limited Rights in Limited Spaces

Whistleblowers, media and the Law


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The Common Law Principle Of Legality

Dan Meagher

In this age of statutes and human rights the common law principle of legality has assumed a central importance. The principle holds that ‘[u]nless the Parliament makes unmistakably clear its intention to abrogate or suspend a fundamental freedom, the courts will not construe a statute as having that operation.’ 1 This development has occurred throughout the common law world most relevantly in New Zealand and the United Kingdom where its re-emergence coincided with the enactment of statutory bill of rights.2 It is however the aim of this article to outline the nature and scope of the principle of legality in contemporary Australian law.

(2013) 38(4) AltLJ 209


Withholding Government Funding

Anthony Gray

Withholding-Government-Funding-s roth150pxA breach of freedom of political communication

In recent times, we have witnessed attempts by state governments to restrict the ability of government-funded services, such as community legal centres, to engage in lobbying or advocate political change. The Queensland Attorney-General is on record as stating that money provided to community legal centres should not be used for political campaigns on political issues.1 Queensland Health is apparently requiring funded organisations to agree they will not advocate for legal change.2 In New South Wales, conditions in government funding agreements to community legal centres are similarly prohibiting the use of funding on lobbying activities and public campaigns.3 There are reports that these agreements prevent a funded organisation from including links on their website to an organisation that does engage in the relevant advocacy.4 Earlier this year legislation was passed by federal parliament to prohibit the use of such clauses in contracts involving the federal government.5 However, this Act does not preclude their use in contracts involving state governments, the source of the current controversy.

(2013) 38(4) AltLJ 214


Public Interest Litigation: Making the case in Australia

Andrea Durbach, Luke McNamara, Simon Rice and Mark Rix

public interest law sroth150pxMaking the case in Australia

Growing government enthusiasm for alternative dispute resolution (‘ADR’) — motivated, at least in part, by a determination to rein in the cost of running the civil justice system — has potentially significant consequences for public interest litigation (‘PIL’). The rhetoric of ADR is that it is ‘friendly’ to litigants and cheaper than pursuing court adjudication but, in contrast to PIL, ADR is designed to produce agreement-based outcomes that potentially compromise issues and do not give rise to public rulings or precedents.1 As well, increasingly high court fees and costly pre-action protocols have the potential to impede campaigns where PIL and court involvement are important for asserting rights, declaring conduct ultra vires, holding officials and corporations to account via sanctions, and providing redress to those harmed by violations or breaches of the law. Such threats to using litigation as a mechanism for achieving progressive social change make it important and timely that public interest campaigners and their lawyers are aware of, and able to act in accordance with, solid empirical evidence on the optimal conditions for the effective deployment of PIL.

(2013) 38(4) AltLJ 219


The ‘best interests’ of asylum-seeker children

Maria O’Sullivan

Who’s guarding the guardian?

Unaccompanied asylum-seeker children — those under 18 years of age who arrive in a country seeking asylum without their parents — are regarded as particularly vulnerable individuals. Given that they lack the protection of both their home State, and their parents, such children are at special risk of being exposed to harm. In recognition of this vulnerability, a number of UN bodies and other international non-governmental organisations have recognised that these children — commonly referred to as ‘unaccompanied minors’ — require special procedural safeguards, including the appointment of an independent guardian.

(2013) 38(4) AltLJ 224


Scared Straight

Terry Hutchinson and Kelly Richards

Scared-Straight-S-Roth150pxBoot Camps for Queensland

The Liberal National Party (‘LNP’) ‘tough on youth crime’ policy mantra was well publicised in the months leading up to the 2012 Queensland state election.1 Boot camp trials were espoused as a quick-fix panacea — a way of addressing youth offending. The idea was particularly favoured in the far northern regions of the state. In line with the new government’s policy, the Youth Justice (Boot Camp Orders) and Other Legislation Amendment Bill 2012 (Qld) (‘the Bill’) had a speedy passage through the unicameral Queensland parliament. It was introduced on 1 November 2012, scrutinised by the Legal Affairs and Community Safety Committee (‘LACSC’) which sought community feedback, and reported back to Parliament within the given timeframe of three weeks. The Bill received assent early December and the provisions commenced in January 2013.

(2013) 38(4) AltLJ 229


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