Alternative Law Journal

DUAO - 2016 - Vol 41(4)

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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Rights of nature and human rights

Federal

Late October 2016 saw two significant events for the future of the environment and the rights of Indigenous Australians. The Australian Earth Law Alliance organised a Conference in Brisbane, ‘The Future of Environmental Law: politics, reform and community activism’; and the two-day conference, which was sold out, was followed by the Rights of Nature Tribunal, held symbolically in the Banco Court. Michelle Maloney, organiser of the Tribunal, explained the symbolism following a performance of Indigenous dance and music in the foyer of the court, where past justices wrapped in scarlet robes looked down upon the gathering. ‘The legal system, those judges and that court, as elsewhere in the country, had failed the environment and the Aboriginal peoples.’

Many of the conference participants attended the Tribunal, where the issues raised at the conference — lack of protection of the environment, the science behind that judgement, the ongoing correlative destruction of aboriginal culture and heritage, recommendations for reform of law and government policy, and community activism — were at the heart of the Tribunal proceedings. The cases heard by the Tribunal panel dealt with the serious threats of the combination of climate change, corporate greed and government failure to the future existence of the Fitzroy River, the forests of the country, the Great Artesian Basin and the Great Barrier Reef. Defendants included the federal government, state governments, the ‘unconventional gas industry’ (fracking) and the fossil fuel industry. Expert testimony, including convincing scientific studies, were provided to the Tribunal, as well as stories of aboriginal exclusion from the protection of the environment and the impact of that historic government policy and practice. The panel was reminded that the aborigines had exercised effective custodianship for at least 40 000 years.

Cite as

(2016) 41(4) AltLJ 285

Category: DUAO - 2016 - Vol 41(4)

Native Title Valued

Dani Larkin

Federal

On 24 August 2016, Mansfield J deliberated on various compensatory issues with regard to native title claims put forth by the Indigenous peoples from the estate groups of Makalamayi, Wunjaiyi, Yanturi, Wantawul and Maiyalaniwung. Those estate groups are located near the township of Timber Creek in the Northern Territory.

The native title claims put forth by the claim group drew upon section 51 (xxxi) of the Constitution to interpret ‘just terms’ reflecting a reasonable and proportionate compensation payout to the claim group affected.

One of the critical questions to determine was whether compensation was to be assessed at the date of the acts of extinguishment of native title rights and interests; or at the date of validation of the act of extinguishment. Other related issues in this dispute were the valuation of compensation for the claim group (whatever the timing) and whether it should be based on the market value of freehold title. The extent of traditional attachment to the land was also considered, and whether this should be reflected in compensation for non-economic or intangible loss. Lastly, he considered whether compensation should reflect the effluxion of time between the various dates in which compensation entitlement arose and the date of judgment.

Cite as

(2016) 41(4) AltLJ 285

Category: DUAO - 2016 - Vol 41(4)

Privacy as a human right?

Bruce Baer Arnold

ACT

The incoherence of Australia’s recognition of privacy as a human right is demonstrated by the idiosyncratic nature of privacy statutes across the states and territories, the weakness of Commonwealth law in the absence of a justiciable Bill of Rights, and regulatory incapacity on the part of watchdogs such as the Office of the Australian Information Commissioner. It is puzzling, for example, that New South Wales and Victoria have enhanced their information privacy statutes (albeit while weakening the state privacy commissioners) and sought to establish technology-neutral legislation regarding surveillance devices but South Australia has yet to provide statutory protection for information privacy.

Discrepancies in protection are highlighted in the consultation by the ACT government, concluding this month, about ‘civil surveillance regulation’. That consultation centred on an issues paper for the government by Daniel Stewart of the ANU College of Law regarding private sector surveillance in the Territory. It follows establishment of the Workplace Privacy Act 2011 (ACT) and the Information Privacy Act 2014 (ACT). The latter statute represented a step forward, with a discrete information privacy regime for the Territory beyond the Privacy Act 1988 (Cth).

Cite as

(2016) 41(4) AltLJ 285

Category: DUAO - 2016 - Vol 41(4)

Premier Mike Baird wagered moral authority on greyhound ban but wavered under pressure

Kcasey McLoughlin

New South Wales

In a move that has angered animal welfare groups but no doubt placated the industry, Premier Mike Baird announced that the government would not be forging ahead with the ban to the greyhound racing industry that was scheduled to come into effect in July 2017.

The impetus for the ban was the Special Commission of Inquiry into the Greyhound Racing Industry in NSW. The Inquiry followed the February 2015 broadcast of the ABC’s Four Corners program that exposed the practice of live animals being used to train greyhounds. The Commission was required to evaluate ‘whether the issues [relating to the governance, integrity and animal welfare standards of the greyhound racing industry in NSW] are able to be appropriately addressed, to permit the continuation of a greyhound racing industry in NSW’.

Commissioner, former Justice of the High Court, the Hon Michael McHugh AC QC delivered his report in July 2016 and recommended that, in light of findings of widespread animal cruelty, ‘the Parliament of New South Wales should consider whether the industry has lost its social licence and should no longer be permitted to operate in NSW’.

Cite as

(2016) 41(4) AltLJ 286

Category: DUAO - 2016 - Vol 41(4)

Trial of an adapted Hawaiian parolee management program

Isabel Roper

Northern Territory

The Northern Territory’s trial of an adapted Hawaiian parolee management program has passed its first year in operation. The COMMIT program is designed to reduce recidivism through ‘swift and certain’ sanctions imposed on individuals who return positive drug urinalysis results or disengage from supervision. HOPE/SWIFT, the original Hawaiian program which began in 2004, has been adopted by numerous US states, and has led to significant reductions in re-offending, substance use, disengagement from supervision and fewer subsequent reimpositions of outstanding sentence balances. While positive drug results and delayed or missed reporting attract brief gaol terms, lower penalties are imposed on participants who spontaneously admit to offending. Continued engagement and negative results will lead to less frequent testing.

A trial of the program in the NT began in early 2016 and as of November had approximately 35 participants. Participants are streamed into the COMMIT program during sentencing hearings and subsequent breaches are ideally managed by the original sentencing judge. While the program was designed to be trialled in the Darwin region, a quarter of participants reside in other areas in the Territory. The trial has revealed some avenues for potential improvement, including the need to modify standard conditions to remove ambiguities about drug tests which ‘may’ return a positive result. The program can also be resource-intensive as an explanation of the COMMIT program will take longer than a standard sentence. The need for interpreters for some Indigenous offenders adds further complexity.

Cite as

(2016) 41(4) AltLJ 287

Category: DUAO - 2016 - Vol 41(4)