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Washington & Lee Law School
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  Alternative Law Journal   (Australia)
  Volume 33, Number 2, June 2008
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  • Civil Rights and Civil Unrest

  • Articles
  • Combatant status and the 'war on terror': Lessons from the Hicks case
        Jonathan Crowe
                                                                                               +cite        
        David Hicks is now back in Australia. The media attention that accompanied his detention at Guantanamo Bay has largely dissipated. However, it would be unfortunate if we forgot about Hicks. The legal issues surrounding his detention and aborted prosecution by US authorities carry enduring implications for the conduct of the international 'war on terror'. This article focuses on two issues arising from the Hicks case. The first concerns the level of protection to which Hicks was entitled under international law. The second point relates to the attempt by US military prosecutors to charge Hicks with attempted murder. The inclusion of this charge on the draft indictment revealed a serious confusion about the legal status of so-called 'unlawful combatants'. Although the charge was ultimately dropped, there is little sign that the underlying misconception has been remedied.
  • Human rights in Australia: Their relevance to the vulnerable and marginalised
        Liz Curran
                                                                                               +cite        
        If human rights are to be effectively protected and adhered to, then they need to be owned by all and be based on what civilizes. Those most likely to experience human rights intrusions need to know they have rights, to be protected when rights are infringed. Clear explanations about the value of rights also need to be advanced coherently to the general population so it understands, owns and claims the rights for all. It is imperative that those on the margins, who so often lack a space to be heard due to the absence of power, money, and political clout, have their rights adhered to. This article examines approaches taken in different jurisdictions which have legislative human rights protections, highlights avenues for advocates and lawyers to ensure human rights compliance for those on the margins by pressuring public authorities, and gives examples of some successes.
  • Interpreting vicarious liability with a broad brush in sexual harassment cases
        Patricia Easteal and Skye Saunders
                                                                                               +cite        
        Provisions in Australian federal and state/territory anti-discrimination legislation make employers directly responsible for incidents of sexual harassment by employees in the course of their employment. The authors undertook a study of 29 sexual harassment matters heard in the Federal Court and the Federal Magistrates Court between 2000-2007 as well as 45 complaints received by the ACT Human Rights Office between 2001-2005. The authors examined the frequency with which employers are alleged to be vicariously liable, the outcomes of the cases and the judicial officers' interpretation of the two main requirements of the vicarious liability section(s): namely, that the act of sexual harassment be 'in connection with' the harasser's employment and that 'all reasonable steps' were taken by the employer to prevent the harassment from occurring. The findings of the survey were that overall the courts and the ACT Human Rights Commission take a broad interpretation in assigning vicarious liability. Particular attention is paid to the decision of Lee v Smith [2007] FMCA 59 where the employer was found to be liable for sexual assault outside of normal work hours. This outcome could serve as a warning to employers to provide harassment-free workplaces.
  • Developing a consumer policy for the 21st century
        Nicola Howell
                                                                                               +cite        
        In light of the Productivity Commission's inquiry into Australia's consumer policy framework and administration, this article explores three assumptions that have underpinned our consumer protection framework to date: about the benefits of competition, self-regulation, and information. It argues that the benefits can be over-stated, and do not always reflect the reality of consumer experience. The article calls for the development of an overarching framework or principles document, with a more moderated approach to competition, self-regulation and information.
  • To coerce or to collaborate? Human rights lawyers relating to other professions
        Mark MacDiarmid and Tracey Willow
                                                                                               +cite        
        A significant proportion of broadly-defined human rights matters coming to the attention of Community Legal Centres (CLCs) are inappropriate as test cases because the issues they raise tend to fall below the ceiling of unlawful conduct. Given the difficulty of addressing these issues through the legal system, alternative ways of achieving results need to be identified and developed. These inevitably involve lawyers learning from and working with professionals in other fields, notably social work, education and health. For many years, CLCs have worked within a strong interagency, interdisciplinary framework. However, outside of a few well-funded government initiatives, interdisciplinary work in this field can be patchy and - at the level of direct service - delivery is often dependent on the skills and interest of individual workers. Leadership and support from academics and others to investigate and support sustainable models of collaborative practice would be greatly valued.
  • Comment: Satellites, citizens and secrets: R v Law & Others
        Russell Goldflam
                                                                                               +cite        
        In December 2005, a 'Citizens Inspection Team' comprising four Christian peace activists broke into the Joint Defence Facility Pine Gap near Alice Springs, leading to the first ever prosecution of charges under the Defence (Special Undertakings) Act 1952 (Cth). At their jury trial, the defendants unsuccessfully attempted to raise defences based on their belief that their conduct was a necessary and proportionate response to Australia's involvement in an illegal war in Iraq. Following their convictions, they appealed on the basis that they should have been allowed to challenge the legitimacy of Pine Gap itself... and won. This article examines the case, and explores its significance.

  • Briefs
  • Lessons for the 'war on terror'? 30 years since Sydney's Hilton Hotel bombing
        Michael Head
                                                                                               +cite        
        This article considers the contemporary relevance, 30 years on, of the 1978 Sydney Hilton Hotel bombing, in particular for the ongoing 'war on terror'. For many reasons, the Hilton affair underscores the need to constantly challenge the claims made by governments about the 'war on terror' and to oppose the erosion of civil liberties and basic legal rights carried out in its name.
  • Dr Haneef and me
        Stephen Keim
                                                                                               +cite        
        The author acted for Dr Mohamed Haneef, who was arrested and detained in July 2007 under part 1C of the Crimes Act 1914 (Commonwealth) on the ground that he was reasonably suspected of having committed an offence of providing assistance - a SIM card - to a terrorist organisation. In a speech delivered at the Tim McCoy Dinner in November last year, Stephen Keim conveyed a little of the drama and excitement of that representation.
  • Liberties and APEC
        Dale Mills
                                                                                               +cite        
        This article gives an in-depth look at the legislation implemented for, and protests held in response to, the September 2007 Asia-Pacific Economic Cooperation (APEC) forum in Sydney.
  • Indigenous rights and the debate over a Charter of Rights in Australia
        Tom Calma
                                                                                               +cite        
        As the Aboriginal and Torres Strait Islander Social Justice Commissioner, the National Race Discrimination Commissioner and great grandchild of a Stolen Generations woman, Tom Calma participated in and spoke in response to the Prime Minister's Apology to the Stolen Generations. Here, he addresses Indigenous human rights in the context of the emerging debate on an Australian Charter of Rights.
  • Family violence in Victoria: a recent history
        Renata Alexander
                                                                                               +cite        
        The last two decades have seen significant changes in the handling of family violence in Victoria, reflecting a commitment to an integrated approach within the government, public and community sectors.

  • Columns
  • Sport and the Law: Olympics, China and the law
        Ann Kent
                                                                                               +cite        
        Using the Olympics to highlight human rights abuses in China.
  • Asia-Pacific: Islam and the law in Indonesia - the significance of symbols
        Eve Warburton
                                                                                               +cite        
        Symbols such as Muslim dress are increasingly viewed as indicators of moral quality in Indonesia.