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Washington & Lee Law School
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  Alternative Law Journal   (Australia)
  Volume 34, Number 4, 2009
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  • Australia, human rights and foreign policy
        Philip Lynch
        In the course of the recent periodic review the UN Human Rights Committee called on Australia to grasp its opportunity – and fulfil its obligation – to become a ‘AAA’ human rights state. This paper responds to three issues raised by that call. First, why should Australia strive to be a ‘AAA human rights state’? Second, does Australia have the necessary characteristics and satisfy the preconditions to become such a state? And, third, what are some of the steps and measures that Australia should take, including particularly at the international and regional levels, to pursue this path if, indeed, it is a path worth pursuing?
  • The road home: Australians’ right to adequate housing
        James Farrell
        Following the release of the federal Government’s White Paper on Homelessness, The Road Home, the Government has committed to reviewing the legislative framework for responding to the problem of homelessness. This article considers comparative international legislation, other Australian human services legislation and relevant international law standards, and argues that any new homelessness act must be founded on progressively realising the right to adequate housing.
  • More space for chickens: Guidance for Australia from developments in the European Union
        Katherine Cooke
        In 2010 the code of practice which sets guidelines for the farming of poultry in Australia will be reviewed. This article traces the development of the ban on conventional ‘battery’ cages in the European Union. It focuses on the aspects of the decision-making processes in the EU that set them apart from the Australian system and which have been central in achieving this important step. The article discusses the content of the relevant Directive and the scientific and market-based research that was necessary to support it. Finally, the article considers how the process of standard development in the EU can guide the adoption of equivalent standards in Australia.
  • Terrorists and bikies: The Constitutional licence for laws of control
        Andrew Lynch
        The constitutional jurisprudence of the High Court in recent years has facilitated rather than inhibited the emergence of pre-emptive civil orders addressing behaviour which has traditionally been the concern of the criminal justice system. Not only is there apparently no principled limit to the restriction of individual liberty for a preventative purpose determined by the State, but also, the courts themselves have been embroiled as actors in this project. This article considers the recent manifestation of this in the anti-bikie laws in South Australia and New South Wales before assessing the decision of the South Australian Supreme Court in Totani v South Australia which found the law in that State to be invalid. The author argues that this is unlikely to dim political enthusiasm for preventative orders.
  • What the Haneef Inquiry revealed (and did not)
        Michael Head
        The December 2008 report of the Clarke inquiry into the aborted terrorist prosecution of Dr Mohamed Haneef in 2007 left some unsatisfactory answers to a number of crucial questions. In particular, what political pressure or influence, if any, was brought to bear by members of the former Howard government and why was Dr Haneef was charged with a serious terrorist offence despite the relevant Queensland and Australian Federal Police officers concluding that insufficient evidence existed? Unless the relevant documents, including the cabinet records, are made public, it is impossible to accept the report’s assurance that there was no evidence that political pressure or influence had a role in the making of operational decisions relating to Dr Haneef.
  • A blue wristband view of history? The death of Mulrunji Doomadgee and the illusion of postcolonial Australia
        Sarah Keenan
        This article interrogates Australia’s “post-coloniality” in light of the death in custody of Mulrunji Doomadgee and its legal and political aftermath. While Prime Minister Rudd recently called for an end to the history wars, and while liberal reformist measures such as anti-discrimination laws and native title rights support the illusion that Australia has now reached a point in its history where it has meaningfully departed from its colonial past, the death of Mulrunji Doomadgee and the police reaction to it suggest that Australia today is still very much a colonial place. The article argues that what is emerging is a “blue wristband” view of history which denies the existence of colonial power relations today while actively reproducing them.
  • Prejudice and paedophilia in hate crime laws: Dunn v R
        Gail Mason
        This article considers the recent case of Dunn v R where it was decided by the NSW Supreme Court that sentence aggravation provisions for ‘hate crimes’ apply to paedophiles. This controversial decision is analysed against the backdrop of hate crime laws in Australian jurisdictions. The author argues that the decision in Dunn does little to further the social justice ideals of hate crime laws as a whole.
  • Firebombs and Ferguson: A review of hate crime laws as applied to child sex offenders
        Allan Ardill and Ben Wardle
        This short work responds to the arguments made by Gail Mason in her article in this issue on hate crime laws and the decision of Dunn v R. This article adds one or two extra ideas for reflection and argues that the balance was struck correctly in Dunn v R.
  • Binding the monolith: can state tribunals still hold the Commonwealth to account following Nichols’ case?
        Brendan Gogarty and Benedict Bartl
        This article discusses the Full Court of the Federal Court decision of Commonwealth of Australia v Anti-Discrimination Tribunal, in particular Justice Kenny’s finding that a state tribunal lacked sufficient “institutional arrangements and safeguards” to exercise federal judicial power. Justice Kenny’s finding, and its recent endorsement by the High Court in K-Generation v Liquor Licensing Court marks a shift in judicial attitudes towards courts of state, by requiring a much higher standard of independence and impartiality than in the past. Subsequently, we argue that legislatures across Australia must choose to either strengthen these aspects of their decision-making bodies – especially if they wish to bind Commonwealth instrumentalities – or simply accept that they will no longer be acceptable repositories of federal judicial power.
  • Causes of inaction: Barriers to accessing legal aid services
        Tracey de Simone and Rosemary Hunter
        This article explores the ways that social welfare organisations can unconsciously exclude their clients. It draws from research undertaken by the authors on the barriers to accessing legal aid services by women and looks particularly at the application process, the client’s dealings with the agency, the refusal process and the consequences of not having legal aid.

  • Briefs
  • Somewhere to call home
        Bill Swannie
        The South African Constitution includes specific protection from any forced eviction. Although this impinges on the rights of property owners, this protection is justified given the acute housing shortage in South Africa. Infected by association?
  • Infected by association?
        Chris McDermott
        The Tasmanian Anti-Discrimination Tribunal has recently found that the Australian Red Cross Blood Service’s policy of “deferring” blood donations from sexually active gay and bisexual men does not constitute unlawful discrimination. The primary reasoning of the Tribunal related to its acceptance of medical evidence about the risk of HIV prevalence amongst this minority resulting from certain types of sexual activity. This brief argues that reasonable alternatives to the policy were not canvassed appropriately by the Tribunal in its determination. This brief also considers whether or not the Tribunal has assessed the risk of HIV prevalence amongst the group inconsistently in its determination of direct and indirect discrimination. The author concludes that the policy and the Tribunal’s reasoning may perpetuate negative stereotypes about the minority – in the complainant’s own words, 'gay equals diseased.'

  • Columns
  • Asia-Pacific: The Case of Stern Hu: Perspectives on China's 'Rule of Law'
        Ann Kent
        Australia has been undergoing a sharp learning curve in its relations with China as a result of China’s detention on 5 July of Rio Tinto executive, former Chinese national, and now Australian citizen, Stern Hu, together with his three colleagues, Liu Caikui, Ge Minqiang and Wang Yong, all Chinese nationals. The main lesson has been that China’s version of the rule of law is quite different from Australia’s and that it may, in times of stress, impact on our own society. China’s rule of law is more a rule by law which is highly political, selective, arbitrary and flexible. While continuing to evince due respect for China’s legal process, both the Australian government and Rio should respond to the Hu case with a few politely-worded but strategically targetted signals. The alternatives, threats or pandering, are not to be recommended, because this is not the first example of the deleterious impact of China’s legal system on Australia, and it will not be the last.