: DUAO - Vol 40(3)

DUAO - 2015 - Vol 40(3)

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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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While secrecy persists, abuses continue

Tania Penovic

Scrutiny of Australia’s treatment of asylum seekers has not been warmly received by the Abbott government. Rather than addressing the continuing abuse of vulnerable people, the government has preferred to turn on the messenger. One such messenger has been the president of the Australian Human Rights Commission, Professor Gillian Triggs who was the target of pernicious personal attack and demands for her resignation following the release of the commission’s 2014 report into children in immigration detention. Others include ten Save the Children workers who were ordered off Nauru by the government late last year amidst allegations that their accounts of abuse of asylum seekers were fabricated and that they had encouraged asylum seekers to engage in self-harm. The allegations against the workers were subsequently found to be baseless.

(2015) 40(3) AltLJ 209


Freedom of information, privacy and government information policy

Katie Miller

It’s separation of powers 101 — Parliament makes laws and passes budgets; the Executive administers laws. If the Executive government doesn’t like the operation of a law, it seeks a change from Parliament. Simple, right? Not quite, when it comes to the Office of the Australian Information Commissioner (‘OAIC’).

The OAIC was created by the Rudd government in 2010 and brought together freedom of information, privacy and government information policy. The OAIC consists of three commissioners — the Freedom of Information (‘FOI’) Commissioner, the Privacy Commissioner and the Information Commissioner.

(2015) 40(3) AltLJ 209


Controversial copyright website-blocking law passed

Leanne O'Donnell

The Copyright Amendment (Online Infringement) Bill 2015 passed in the last sitting week before the Winter recess. The passage of this Bill was preceded by a brief Senate Inquiry that held just one public hearing, which only two Senators attended. The Bill was passed on 22 June with the support of both major parties.

This new law provides that copyright owners can apply to the Federal Court for an order against internet service providers (‘ISPs’) to block access to online locations outside Australia whose primary purpose is to infringe or facilitate the infringement of copyright.

The parties to an action are the owner of the copyright and the ISP. There is, however, a financial incentive for the ISP to not contest the application. The operator of the site in issue can apply to be joined, though this is unlikely given the applications relate to overseas sites.

(2015) 40(3) AltLJ 210


Native Title reforms

Katie O'Bryan

The Australian Law Reform Commission (‘ALRC’) has completed its inquiry into the native title system, tabling its final report in Parliament on 4 June 2015.

The inquiry commenced in June 2013 with the release for public consultation of draft terms of reference, which were subsequently finalised in August that year. This was followed by the release of an issues paper in March 2014 and a discussion paper in October 2014. The terms of reference related to two specific areas, namely:

  • connection requirements relating to the recognition and scope of native title rights and interests; and
  • any barriers imposed by the authorisation and joinder provisions of the Native Title Act 1993 (Cth) (‘NTA’) 
to claimants’, potential claimants’ and respondents’ access to justice.
(2015) 40(3) AltLJ 210


Human Rights Act review

Simon Rice

This is old news, but it shouldn’t be. I had forgotten that 
the ACT Human Rights Act (‘HRA’) has a review provision (s 43) requiring the Attorney-General — by the end of 2014 — to review the operation of the so-called ‘right to education’ in s 27A, and to ask the really big question of ‘whether other economic, social or cultural rights should be included’ in the HRA.

When I was reminded of the review provision, I thought, that’s odd, I don’t remember a review process last year. The oddity is that there wasn’t one, at least not a public one. Instead, a ‘review’ was conducted in-house — http://justice.act.gov.au/review/view/32/title/2014-review-of-the-human, and tabled without a media release in November 2014. Specifically, the review was conducted ‘internally by officers of the Legislation, Policy and Programs branch of the ACT Justice and Community Safety Directorate’. There was research, ‘conducted with the assistance of an intern from the University of Canberra’, and ‘all ACT Government directorates were invited to provide input on the terms of reference’. This last point is ambiguous; the most favourable interpretation is that the directorates were invited to actually contribute to the review, but the report does not say whether or how they accepted the invitation.

(2015) 40(3) AltLJ 211


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