human rights news, views & analysis for last week

Source: Human Rights Law Centre

Told you so, says Metcalf, on Malaysia plan fallout

The head of the Immigration Department, Andrew Metcalf has warned a parliamentary inquiry that the dramatic increase in the number of boats since the Hight Court’s decision forced the Government to halt offshore processing has justified the concerns he raised following the collapse of the Malaysia solution.

Conscience vote on gay marriage wins favour

A new poll shows that an overwhelming majority believes that all MPs should have the opportunity to vote their conscience on same sex marriage. The Herald/Nielsen poll showed that 81 per cent of people believe there should be a conscience vote on the issue. Meanwhile, Opposition leader Tony Abbot has given his strongest indication that he will not support moves for Liberal MPs to have a conscience vote. “It was the clear policy of the coalition at the election that marriage was between a man and a woman…every single member of the coalition was elected on that position and I don’t think we can break faith with the electorate.”

‘The protester’ named Time’s person of 2011

Time Magazine has awarded its annual person of the year to ‘the Protester’ citing the Arab Spring uprisings, the global Occupy movement and the recent Russian protests over elections as examples of how the protests have “redefined people power” around the world and been the force behind the biggest news stories of the past 12 months.

Release sought for asylum boy who attempted suicide

A 17 year old boy who attempted to commit suicide has become the focus of a legal challenge into the prolonged detention of recognised refugees whilst they are awaiting ASIO security checks. The claim seeks to have the immediate release of the 17 year old into community detention. The claim also posed the question regarding the duty of care Immigration Minister Chris Bowen has to unaccompanied children left to deteriorate into a state of mental illness.

Sharia a good fit in some areas says academic

A lecturer at Sydney Law School, Ghena Krayem has said that Australia’s Muslim population would not seek to move towards a parallel legal system, if Islamic practices were integrated better into the current legal framework.  Dr Krayem said in areas where both systems overlapped, such as marriage and divorce, a greater integration of Islamic principles is an appropriate means of ‘enhancing social cohesion, without legislative change.’

Roxon lets down bill of rights backers

Human rights activist, Mary Kostakidis has expressed disappointment that new Attorney-General Nicola Roxon has seemingly departed from her previous desire to introduce a Federal Bill of Rights.  The Australian reports that in 2004 and 2005 when Ms Roxon was opposition spokesperson on legal affairs she was a strong advocate for a Bill of Rights. However, she told reporters on Monday, following her appointment ‘she had no aspirations to introduce one now’.

Occupy movements fights for its future

Police actions in the United States, the pending European winter, and a struggle to maintain a united message has left the global Occupy movement reeling.  A Sydney occupier, Erima voiced her concerns at the recent gathering of Occupy Sydney participants “…are we about the 99 per cent and the movement? Or are we about occupation for an occupation’s sake?

Juries lie at the heart of justice

The 14 December editorial of the Daily Telegraph has called for the retention of jury trials, rejecting the assertion by Justice Peter McClellan of New South Wales that modern trials have become too complex for juries to adjudicate on.  Justice McClellan noted that while previously juries merely had to deal with the testimony of witnesses now they have to deal with the conflicting testimony of scientists. “If there are difficulties for a judge in resolving disputes between experts these difficulties will be greater (for) lay people” he said.

 

The extraordinary case of Andrew Mallard

Andrew Mallard is a Western Australian who was wrongfully convicted of murder in 1995 and sentenced to life imprisonment. He was released from prison in 2006 after his conviction was quashed by the High Court of Australia.

Mallard had been convicted of the murder of Pamela Lawrence, a business proprietor, who was killed at her shop, on 23 May 1994. The evidence used in Mallard’s trial was scanty and obscure, and it was later revealed that police withheld vital information from his defence team. Almost twelve years later, after an appeal to the High Court, his conviction was quashed, and a re-trial ordered. However, the charges against him were dropped and Mallard was released. At the time, the Director of Public Prosecutions stated that Andrew Mallard remained the prime suspect and that if further evidence became available he could still be prosecuted.

In 2006 police conducted a review of the investigation and subsequently a cold case review. As a result they uncovered sufficiently compelling evidence to charge convicted murderer Simon Rochford with the murder of Pamela Lawrence and to eliminate Andrew Mallard as a person of interest. After being publicly named as a suspect, Simon Rochford was found dead in his cell in Albany Prison, having committed suicide.

The Western Australian Commission on Crime and Corruption investigated whether there was misconduct by any public officer (police, prosecutors or Members of Parliament) associated with this case and made findings against two policeman and a senior prosecutor.

A book about the case, “Murderer No More: Andrew Mallard and the Epic Fight that Proved his Innocence” was written by Colleen Egan, the journalist who campaigned on Mallard’s behalf for eight years. It was published by Allen & Unwin in June 2010

Evidence at the Trial

Mallard was convicted chiefly on two pieces of evidence. The first was a set of police notes of interviews with Mallard during which, the police claimed, he had confessed. These notes had not been signed by Mallard. The second was a video recording of the last twenty minutes of Mallard’s eleven hours of interviews. The video shows Mallard speculating as to how the murderer might have killed Pamela Lawrence; police claimed that, although it was given in third-person, it was a confession.

Mallard had no history of violence; no murder weapon had been found. No blood was found on Mallard, despite the violence of the murder and the crime scene being covered with it. Nor was DNA evidence produced. He was convicted on the confessions purportedly given during unrecorded interviews and the partial video-recording of an interview. Despite this, Mallard’s appeal to the Supreme Court of Western Australia, in 1996, was dismissed.

Investigation

In 1998, Mallard’s family enlisted the help of investigative journalist Colleen Egan, who in turn managed to get John Quigley MLA and Malcolm McCusker QC involved. All were appalled at the manner in which Mallard’s trial had been conducted and eventually came to be convinced that he was innocent. Based on fresh evidence uncovered by this team, including a raft of police reports that, against standard practice, had never been passed to the defence team, the case was returned to the Court of Criminal Appeal in June 2003. Despite the fresh evidence and an uncontested claim that the DPP had deliberately concealed evidence from the defence, the Court of Criminal Appeal again dismissed the appeal.

High Court Appeal

 In October 2004, Mallard’s legal team was granted special leave to appeal to the High Court of Australia and on 6 and 7 September 2005, Mallard’s appeal was heard in the High Court and the Justices subsequently judged unanimously that his conviction be quashed and a re-trial be ordered. During the hearing, Justice Michael Kirby was reported to have said that on one of the pieces of evidence alone – a forensic report, not disclosed to the defence, showing that Mallard’s theory about the weapon used in the murder could not have been true – a re-trial should have been ordered.

The DPP did not immediately drop charges against Mallard but did so six months later immediately before a directions hearing was due. After almost twelve years in prison, Mallard was released on 20 February 2006. However in announcing that the trial would not proceed the DPP stated:

“Finally, I note for the record and for the future that this decision is made on evidence presently available to the prosecution. The discharge of Mr Andrew Mallard on this charge does not alter the fact that he remains the prime suspect for this murder. Should any credible evidence present in the future which again gives the state reasonable prospects of obtaining a conviction again, the state would again prosecute him.”

The Police Commissioner apologised to Mallard for any part the police had played in his conviction. The Premier indicated that the government would be considering compensation, though the Attorney General stated that no decision could be made until the Commission on Crime and Corruption had completed its investigation. However, on 22 November 2006, the Adelaide advertiser carried an AAP story stating that Andrew Mallard had received a A$200,000 ex-gratia payment as partial compensation.

In May 2009 Andrew Mallard was offered a payment of $3.25 million as settlement though the Premier of the state, Colin Barnett said that were Mallard to take civil action against those he held responsible for his wrongful conviction, the government would support any servant of the state in that event.

But the damage was done. lets hope this doesn’t happen again.

Human rights must be cornerstone of Libya’s law

Opinion Source: CNN.com

The man with the golden gun told us that Gadhafi was wounded but alive, captured with several of his senior officials, and that he was on the road to Misrata. A few hours later came word that Gadhafi, who had ruled Libya for 42 years before being ousted by a popular uprising, had died, thereby escaping the trial and courtroom he so richly deserved.

 

READ MORE: Human rights must be cornerstone of Libya’s law – CNN.com.

Six significant legislation passed over winter

Today the Attorney-General Robert McClelland announce that had passed six important pieces of legislation in the Attorney-General’s portfolio, I can see those 6 important pieces has not been reported in the media due to their agenda and bias to the Government, those six legislation which include greater protections against sexual discrimination, enhanced national security laws and improved legal cooperation between Australia and New Zealand.

Robert Mclelland also added legislative agenda continued through the last sitting period. also A number of significant Bills in the Attorney-General’s portfolio passed through Parliament during the winter sitting period.

• The Government’s Sex and Age Discrimination Legislation Amendment Bill 2010 provides stronger protections for employees and students from sexual harassment and discrimination.

• The Bill prohibits discrimination on the basis of family responsibilities for both men and women in all areas of employment and establishes breastfeeding as a separate ground of discrimination.

• On national security policy, the Intelligence Services Legislation Amendment Bill 2011 continued the Government’s commitment to ensuring that Australia’s security and intelligence agencies are adequately equipped to respond to threats to our national security.

Also the Government will continue its strong legislative agenda when Parliament resumes next month,  Parliament passed the following pieces of legislation in the Attorney-Generals’ portfolio during the winter sitting period:

• Sex and Age Discrimination Legislation Amendment Act 2011 – strengthens protections against sex discrimination and sexual harassment.

• Electronic Transactions Amendment Act 2011 – updates the Electronic Transactions Act 1999 to reflect internationally recognised standards on electronic commerce and ensure Australian electronic commerce laws keep pace with technological change.

• Acts Interpretation Amendment Act 2011 – makes it easier for people to understand and interpret Commonwealth legislation;

• Personal Property Securities (Corporations and Other Amendments) Act 2011 – makes the final set of amendments to the Personal Property Securities Act legislation prior to the Personal Property Securities regime coming into effect later this year.

• Trans-Tasman Proceedings Amendment and Other Measures Act 2011 – refines the legislative regime implementing the 2008 agreement between Australia and New Zealand on trans-Tasman Proceedings and Regulatory Enforcement which will simply and streamline civil legal cooperation between the two countries. The scheme is likely to commence early 2012.

• Intelligence Services Legislation Amendment Bill 2011 – ensures that Australia’s security and intelligence agencies are adequately equipped to respond to threats to our national security

finally to add more to the mix those 6 legislation are great for the public will ensure there is no sex and age discrimination anywhere, the electronic transaction amendment Act will ensure that Australian commerce laws keep pace with the technological change.

One signigicant change is the Acts interpretation Amendment Act 2011 will make easy for people to read commonwealth Legislation, Trans-Tasman Proceedings Amendment and Other Measures Act 2011 will easy resolution for trans-Tasman disputes Trans-Tasman Proceedings Amendment and Other Measures Bill, has introduced a number of changes to ensure that litigation between parties located in Australia and New Zealand will become less stressful and more like a civil litigation between two parties of the same country the legislation will enhance cooperation in civil court proceedings by streamlining and simplifying the procedures for the service of process, the recognition and enforcement of judgments, obtaining and giving evidence as well as provide the ability for litigants to appear remotely.

And finally Intelligence Services Legislation will enhance cooperation, assistance and information sharing between Australia’s security, intelligence and law enforcement agencies  also provides greater flexibility for ASIO to share intelligence and information with the broader national security community, within strict guidelines. It will also enable ASIO to cooperate with and provide assistance to law enforcement agencies in relation to telecommunications interception and other areas of expertise such as technical support, logistics and analytical advice. 

 

The measures passed by the Gillard Government represent a significant enhancement of the Government’s efforts to respond to important ongoing and emerging national security issues in order to protect the safety and security of Australians.

Luiggi berrospi is Law student at University of Western Sydney
E-mail: 17265342@student.uws.edu.au

A reality of live cattle trade

Independent Senator Xenophon yesterday introduced the Live Animal Export Restriction and Prohibition Bill in the Senate, with Denison MP Wilkie doing the same in the House of Representatives. 

The Bill Live Animal Export Restriction and Prohibition Bill 2011 submitted by Independent MP Andrew Wilkie, Senator Nick Xenophon and by the Australian Greens, if passes senate will amend the EXPORT CONTROL ACT 1982, Meaning If passed, the Bill will ban live animal exports by July 1, 2014. Xenophon wants government and industry to use the three-year timeframe to put in place the infrastructure needed to export chilled processed meat. 

This All started because of the Four Corners exposé of the treatment of Australian cattle exported live to Indonesia showed a damning picture of this trade.  The federal government decided to suspend the export of all live cattle to Indonesia, following a public outcry and a threatened backbench revolt.

The Agriculture Minister, Joe Ludwig,  signed the order last night and said the ban would stay in place until safeguards had been adopted that would ensure the proper treatment of the beasts along the whole supply chain. Sure?

The decision to suspend the $318 million-a-year-industry was taken by the Labor cabinet  and has the potential to upset the Indonesians, the cattle industry and the federal opposition, all of which have argued against a blanket ban.

So what now? 

Under Senator Xenophon’s bill, all live animal exports would end from July 1, 2014, and until then animals could only be exported to countries that use stunning and appropriate restraints in the slaughter process.

Senator Xenophon said the reason for the three-year time-frame was to give the cattle industry adequate time to transition to chilled meat exports.

All three bills would require the support of either the Government or the Opposition, and support for the bills is considered unlikely given that both the Government and Opposition have indicated their support for the ongoing continuation of the live export trade. 

 and the Australia government  cannot force Indonesia to adopt mandatory stunning throughout its abattoir industry. 

meanwhile the story in four corners has raised another question Can Australia Force Indonesia to adopt mandatory stunning throughout its abattoir industry ?

Only time will answer that question

Luiggi berrospi is Law student at University of Western Sydney
E-mail: luiggi.berrospi@students.mq.edu.au

Julia Gillard and the Asylum Seekers and Refugees Saga

#gobackSBS

It hard problem to deal with, the PM Julia must deal with it or else the problem Will eat her and her government and will put her and her Government in the wilderness

Australia has been built in Immigration for many years nobody can’t deny it, but in politics Polls are your life in politics, Julian Gillard has a dilemma on her hands, she has to deal with the rise of Asylum seeker and refugee problem which is eating her and their government slowly. And they cant hide it anymore those polls are showing unhappy Public, who want a solution on the refusee problem.

To understand this issue we have look back at the Australian Immigration History Which Began  in the initial human migration to the continent around 50,000 years ago when the ancestors of Australian Aborigines arrived on the continent via the islands of Maritime Southeast Asia and New Guinea.

From the early 17th century onwards, the continent experienced the first coastal landings and exploration by European explorers. Permanent European settlement began in 1788 with the establishment of the British Crown colony of New South Wales.

After World War II, Australia launched a massive immigration program, believing that having narrowly avoided Japanese invasion, Australia must ‘populate or perish’. Hundreds of thousands of displaced Europeans, including for the first time large numbers of Jews, immigrated to Australia. More than two million people immigrated to Australia from Europe during the twenty years following the end of the war.

Although Britain and Ireland remained the predominant source of immigrants, other European countries such as Greece, Italy, Germany, Yugoslavia and the Netherlands also became major contributors. Political refugees fleeing dictatorships in Spain and Portugal, and Communism in Hungary, Czechoslovakia, Poland and the former Soviet Union (Russia) were also included in the figures.

During the 1970s around 90,000 Indo-Chinese refugees were resettled in Australia. During that decade, Australia first began to adopt a policy of what Minister of Immigration Al Grassby termed “multiculturalism”. The influx of Asian immigrants was also due to the abolition of the White Australia Policy in 1972, under Prime Minister Gough Whitlam. The development of Australia’s multicultural policy was heavily influenced by the Galbally Report of 1978, which addressed various issues with living in and planning for a multicultural Australian society.

The word unrest and world events mean Australian had obligation to the UN to take up immigration, so many people from Countries which civil unrest began sought asylum in Australia, there was opposition to immigration in 1988 John Howard, then opposition leader, launched the One Australia policy, stating that he believed the rate of Asian immigration into Australia should be slowed down for the sake of social cohesion. He stated: “I do believe that if it is – in the eyes of some in the community – that it’s too great, it would be in our immediate-term interest and supporting of social cohesion if it were slowed down a little, so the capacity of the community to absorb it was greater.”

In the 1996 election Pauline Hanson was elected to the federal seat of Oxley. In her maiden speech to the House of Representatives, which instantly made headlines and television news bulletins across Australia, she expressed her concern that Australia “was in danger of being swamped by Asians”. This message exposed a population deeply divided on the issue of immigration.

Hanson went on to form the One Nation Party, which subsequently won nearly one-quarter of the vote in Queensland state elections. The name “One Nation” was meant to signify national unity, in contrast to what Hanson claimed to see as an increasing division in Australian society caused by government policies favouring migrants (multiculturalism) and indigenous Australians. Political ineptitude and infighting led to One Nation’s demise, but the issue of immigration remains highly sensitive in Australia.

In 2001 John Howard campaign in the issues of ‘border protection’ at the 2001 federal election were widely seen as a successful effort to win One Nation voters back to the Liberal and National parties.

There was many Asylum seeking controversies In the early 1990s Australian immigration legislation was changed dramatically, introducing the concept of mandatory detention of unauthorized arrivals, who were popularly referred to as boat people. With a sharp rise in unauthorized boat arrivals in the late 1990s, mostly from war-torn countries such as Iraq and Afghanistan, the Howard government enforced the mandatory detention policy created by the previous Paul Keating government. This came to international attention during the Tampa affair of 2001.

During the 2001 election campaign, immigration and border protection became the hot issue, as a result of incidents such as the Tampa affair, the Children overboard affair, and the sinking of the SIEV-X. This was a major factor contributing to the victory of the Coalition, deemed impossible only a few months earlier, and also marked the beginning of the controversial Pacific Solution.

After the election, the government continued with its hard line on unauthorized arrivals of asylum seekers. Legislation was developed to excise certain islands from Australia’s migration zone meaning that if asylum seekers landed on an excised island, Australia was not required to provide access to the Australian courts or permanent settlement. Australia still adheres to its international obligations by considering such refugee applications offshore and providing temporary protection visas to those in genuine need of protection.

By 2004, the number of unauthorized boat arrivals had been reduced dramatically. The government argued that this was the result of its strong policy towards asylum seekers. Others argued that the decrease was the result of global factors, such as changing circumstances in the primary source nations of Afghanistan and Iraq.

Julia Gillard our PM announce Australia will send 800 Muslim refugees from mainly Afghanistan and Iraq to Malaysia and in exchange get 4000 Christian and Buddhist refugees from Burma/Thailand,

Time will tell Julia Gillard Political life.

Luiggi berrospi is a law student At University of Western Sydney
Email: Luiggi.berrospi@students.mq.edu.au