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  Alternative Law Journal   (Australia)
  Volume 31, Number 3, September 2006
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  • Opinion

  • Articles
  • Taking economic, social and cultural rights seriously
        Paul Hunt
        For many years, classic civil and political rights, such as the right to a fair trial and freedom of speech, have received more attention than economic, social and cultural rights, such as the rights to food and the highest attainable standard of health. Hunt argues that economic, social and cultural rights are beginning to attract the attention they deserve. The article signals some of the deepening jurisprudence on economic, social and cultural rights at the international, regional and national levels, and points out that increasingly some civil society organisations are taking these human rights more seriously. The article also argues for both 'judicial' and 'policy' approaches to the vindication of economic, social and cultural rights. A 'policy' approach demands new human rights skills and techniques, such as using indicators, benchmarks and impact assessments.
  • International human rights law in Australian courts: A role for amici curiae and interveners
        Simone Cusack and Cecilia Riebl
        Legal practitioners have under-utilised international human rights law in Australian courts. The authors argue that third party intervention, specifically the amicus curiae and intervener mechanisms, provide an opportunity to develop such jurisprudence domestically. This article considers the role and purpose of amici curiae and interveners, exploring a number of recent cases in which third party interventions have facilitated arguments based in international human rights law.
  • Treaty, Yeah? The utility of a treaty to advancing reconciliation in Australia
        Megan Davis
        This article considers the prospect of a treaty between Indigenous Australians and the state and examines whether a treaty would contribute to reconciliation between black and white Australia.
  • A charter of (some) rights ... for some?
        Melissa Castan and David Yarrow
        The Charter of Human Rights and Responsibilities Act 2006 (Vic) will commence on 1 January 2007, making Victoria the first Australian state to adopt a Charter of Rights (not to mention Responsibilities!). The authors argue there are no reasonable grounds for excluding self-determination from the Charter.
  • The revolutionary potential of Walsh's Law
        Ros Kidd
        For several decades courts in Canada and the US have held their governments to the highest standards of accountability in their dealings with Indian property and finances. Australian courts are far more conservative. Given the evidence relating to government mismanagement of Indigenous trust moneys in Queensland, Ros Kidd identifies precedents in national and international case law which suggest governments in Australia should also be held accountable for the way they exercised their astounding discretionary powers.
  • Australia's obligations under Article 31(1) of the Refugees Convention: What are penalties?
        Graham Thom
        Article 31(1) of the 1951 Refugees Convention underscores the right of individuals to flee persecution and seek protection. In particular it recognises that people will have to flee undocumented and subsequently that they should not be 'penalised' for entering a state 'illegally'. Following the granting of refugee status to 42 individuals from the Papuan province of Indonesia, the Australian government announced, in April 2006, that it would be introducing legislation (the Migration Amendment (Designated Unauthorised Arrivals) Bill 2006) targeting individuals who attempted to reach Australia, undocumented, by boat. The government has specifically stated this legislation would not breach art 31(1). Only by taking a very narrow view of what constitutes a penalty could this conclusion be drawn. This interpretation is clearly at odds with the original intent and purpose of art 31(1), as well as subsequent developments in international interpretation and practice. This article examines what can be considered a penalty under art 31(1) and concludes, when looking at the detention and refugee status determination components of the legislation, that it would breach Australia's international obligations under art 31(1).
  • Refugee status in Australia and the cessation provisions: QAAH of 2004 v MIMIA
        Emily Hay and Susan Kneebone
        This article analyses the interaction between Australia's temporary protection visa regime and the 'ceased circumstances' clause in art 1C(5) of the Refugees Convention. Different judges in the Federal Court have drawn conflicting conclusions about how the Migration Act should be interpreted on this issue, and in particular whether an asylum seeker who applies for a permanent protection visa is required to establish the claim for protection de novo. This issue is currently the subject of appeal to the High Court in QAAH of 2004 v MIMIA. The authors urge the High Court to follow an approach to interpretation of the Migration Act which reflects the spirit and purpose of the Refugees Convention.
  • Religious vilification laws: Quelling fires of hatred?
        Dermot Feenan
        This article examines legal regulation of religious vilification with reference to the Racial and Religious Tolerance Act 2001 in Victoria and cases decided under the Act, particularly Islamic Council of Victoria v Catch the Fires Ministries, which has been appealed to the Supreme Court of Victoria.
  • Community Legal Centres: Resilience and diversity in the face of a changing policy environment
        Louis Schetzer
        The history of community legal centres has coincided with significant changes in the processes of public policy making and governing. This article maps the history of the funding of Victorian CLCs in the context of the changing public policy environment and identifies how these changes have influenced CLC management and service delivery.

  • Briefs
  • Human rights: Shifting the focus of engagement
        Andrea Durbach
        Increasingly, public confidence in the institutions charged with the enforcement of rights is being undermined by political leaders who demonstrate little appreciation of the historical, political or legal significance of the doctrine of the separation of powers. This article suggests that human rights advocacy and activism requires a shift in focus from the content of rights to the insidious erosion of structures and institutions established for their protection.
  • Law reform: Time for change
        Joanna Carr
        This Brief discusses the Victorian Law Reform Commission's Review of Family Violence Laws Report -- a comprehensive review of Victoria's Crimes (Family Violence) Act 1987.

  • Columns
  • Asia-Pacific: Truth-seeking for justice in East Timor
        Rowan McRae
        After a period of relative security in East Timor, the past few months have seen a dramatic shift towards political instability and humanitarian crisis. A key question now emerging is the extent to which the recent instability and violence can be attributed to the failure of East Timor and the international community to adequately deal with this new nation's violent and bloody past. This article describes the work of the Commission for Reception, Truth and Reconciliation in East Timor, and argues that the implementation of the Commission's recommendations must be a priority for the East Timorese government and the international community.
  • Sport and the Law: The rules of football and its place in international relations
        Peter Odhiambo
        Football has the special honour of being a universal reference for a global culture -- a lingua franca. It is a language that goes beyond the diversity of regions, nation-states, and even generations.