: DUAO - Vol 36(1)

DUAO - 2011 - Vol 36(1)

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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.

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HRC calls for immediate end to mandatory immigration detention

Phil Lynch
Human Rights
On 14 December 2010, the Australian Human Rights Commission released a statement on the policy and practice of mandatory immigration detention following a visit to immigration detention facilities in Darwin which house 'high numbers of families with children and unaccompanied minors' for extended periods of time.

In her statement, Commission President Catherine Branson QC said she was concerned about the impacts prolonged detention were having on the health, education and psychological needs of children.

Ms Branson said the Commission continued to have serious concerns about Australia's mandatory immigration detention system, in particular, the increasing length of time people were spending in immigration detention and the impacts of prolonged and indefinite detention on people's mental health.

'The Commission met with a number of people in detention, including children, who had experienced significant trauma in their home country or who had attempted self-harm while in detention,' Ms Branson said.

'The Commission continues to call on the Australian Government to reconsider the mandatory detention system. People should only be held in immigration detention if there is a risk that justifies detaining them, she said. 'If no such risk exists, they should be allowed to reside in community-based alternatives to detention while their refugee claims are assessed.'

The Commission's full statement is at http://www.humanrights.gov.au/human_rights/immigration/idc2010_darwin.html

(2011) 36(1) AltLJ 60


UN Committee Against Torture gives Australia a ‘Please Explain’

Phil Lynch
Human Rights
In December 2010, the UN Committee Against Torture issued a 'List of Issues Prior to Reporting' for Australia. The purpose of this List is to outline those issues which the Committee would like Australia to address and respond to in its next periodic report to the Committee, due in 2012.

The issues on which the Committee specifically seeks information and responses from Australia include:

  •  information regarding the legal entrenchment of human rights in Australia, including through a Human Rights Act and constitutional recognition of Indigenous people;
  •  the human rights compatibility and impacts of counter-terrorism legislation, including in relation to the powers of ASIO and the Australian Federal Police;
  •  mechanisms for monitoring and oversight of places of detention, including prisons;
  •  the right to health and access to adequate health care for detainees, including prisoners and persons detained in immigration facilities;
  •  trafficking of women and children;
  •  violence against women;
  •  the operation and impact of laws that criminalise homelessness and poverty;
  •  complementary protection and the prohibition against refoulement (sending asylum seekers back to the country from which they seek refuge);
  •  the operation and impact of Australia's refugee and asylum seeker policies, including in relation to mandatory detention, offshore processing, and the detention of families and children;
  •  the over-representation of Indigenous people and people with mental illness in the criminal justice and prison systems;
  •  Australia's extradition law, policy and practice; and
  •  police use of force, the investigation of police-related deaths and police monitoring and accountability mechanisms.
The List of Issues Prior to Reporting is available at http://www2.ohchr.org/english/bodies/cat/docs/followup/AdvanceVersion/Australia_AV_en.pdf

The Human Rights Law Resource Centre ('HRLRC') submission to the Committee, which significantly informed the Committee's List of Issues, is at http://www.hrlrc.org.au/content/topics/counter-terrorism/torture-and-ill-treatment-submission-to-un-committee-against-torture-on-australia-24-august-2010/.

(2011) 36(1) AltLJ 60


Recognition that the Constitution ‘embeds’ a right to vote and a ‘fully inclusive franchise’

Human Rights

On 15 December 2010, the High Court of Australia published reasons in Rowe v Electoral Commissioner [2010] HCA 46, having earlier pronounced orders in the matter on 6 August.

The case, heard and determined just prior to the 2010 Federal Election was a constitutional challenge to the validity of changes to the Commonwealth Electoral Act 1918 made by the Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Act 2006 (‘The Act’). The Act resulted in the electoral roll being closed on the day on which the electoral writ is issued for new or re-enrolling voters, and three days after the writ is issued for voters updating enrolment details. Previously, the roll remained open for a period of seven days after the issue of the writ. The Amendment Act was said to reduce the likelihood of fraudulent voter enrolment and promote electoral integrity.

According to the Australian Electoral Commission (‘AEC’), historically the calling of an election has resulted in significant numbers of persons, particularly young Australians, enrolling or changing enrolment during the 7-day period. This period enabled the AEC to advertise and promote enrolment and target particular groups, including Indigenous Australians and people experiencing homelessness. At the 2004 Federal election, approximately 423 000 people enrolled, re-enrolled or updated enrolment during the 7-day period; it was an agreed fact in the proceedings that, for the purpose of the 2010 Federal election, there were approximately 100,000 claims for enrolment received after the cut-off deadlines, but before the date for the closing of the rolls prior to the amending Act.

By a majority of four (French CJ, Gummow, Crennan and Bell JJ) to three (Hayne, Heydon and Keifel JJ), the High Court found the relevant provisions of the Amendment Act were unconstitutional in that they were incompatible with the requirements of ss 7 and 24 of the Constitution that the Houses of Parliament comprise of members ‘directly chosen by the people’.

The challenge to the early close of the rolls was jointly conceived and coordinated by the HRLRC and GetUp! and builds on the previous work of the HRLRC in establishing constitutional protection of the right to vote in the landmark High Court case of Roach v The Commonwealth [2007] HCA 43.

The matter was run pro bono by Ron Merkel QC, Kristen Walker, Fiona Forsyth and Neil McAteer of Counsel, together with Mallesons Stephen Jaques.

(2011) 36(1) AltLJ 60


New Human Rights Action Plan

Phil Lynch
Human Rights
The government has announced it is developing a new National Human Rights Action Plan to 'outline future action for the promotion and protection of human rights' in Australia. The new Action Plan, a key aspect of Australia's Human Rights Framework, will involve a 'comprehensive assessment of human rights needs in Australia, which is then translated into specific goals and practical actions'.

As a first step, the Commonwealth Attorney-General's Department released a background paper setting out the proposed process for the development of an Action Plan, with comments invited by 10 February 2011. Thereafter, it is proposed that the government will work with state and territory governments to develop an exposure draft of the Action Plan. At the same time the Australian government will develop a draft report, or Baseline Study, on Australia's human rights status. Both will be released for public comment in April 2011.

For further information, see http://www.ag.gov.au/www/agd/agd.nsf/Page/Humanrightsandanti-discrimination_NationalHumanRightsActionPlan

(2011) 36(1) AltLJ 61


Formal recognition of Australia’s indigenous peoples

Melissa Castan
In November 2010, the Gillard government announced it intended to formalise recognition of Australia’s Indigenous peoples within the Commonwealth Constitution. To do so requires a referendum, and with that aim in mind, the government appointed an ‘expert panel’ to examine the appropriate changes to the Constitution, and the best ways to engage the general population in the referendum process. The last referendum on Indigenous issues, in 1967, removed a limitation on the federal Parliament’s capacity to make laws for the ‘Aboriginal race’ (s51 (xxvi)), as well as deleting the racist requirement in s 127 that ‘Aboriginal natives not be counted’ as part of the population of the states and territories for certain purposes. These amendments to the Constitution met with a high degree of support from the Australian community, and had bipartisan support from the major political parties, thus the referendum passed with a resounding majority (over 80 per cent in all states, over 90 per cent in some).
(2011) 36(1) AltLJ 61


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