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.

Gillard Rejects Rudd on Palestine

JULIA Gillard rejected a plea from Foreign Minister Kevin Rudd for Australia to abstain in a vote on Palestine joining a key United Nations body, instead siding with Israel and the US to oppose the proposal.

Australia was one of 14 countries to vote against Palestine membership of the UN cultural organisation UNESCO this week, while close allies Britain, New Zealand and South Korea were among 52 to abstain.

The vote passed with 107 backing the drive, part of a diplomatic offensive to win formal recognition of a Palestinian state.

The UNESCO vote has entrenched the leadership split on Middle East policy in Australia, after The Age revealed in August that Mr Rudd had written to Ms Gillard urging Australia to abstain from voting on the highly charged resolution on Palestine.

It also comes amid renewed leadership speculation in Canberra, where Kevin Rudd was last night forced to declare his support for the government’s controversial pokies policy after weeks of prevarication.

Ms Gillard has not declared her hand on Palestine’s bid for statehood, but the UNESCO vote is seen as the most likely guide. ”Her track record would suggest to me she would go against [Palestine],” said a close observer.

Ms Gillard has been a vocal supporter of Israel, including during the 2009 Gaza conflict, and declared maintaining strong backing for the Jewish state as one of her foreign policy priorities after toppling Mr Rudd.

Mr Rudd has made several trips to Israel and the occupied Palestinian territories as Foreign Minister.

Support for Palestine is said to be critical to Australia’s chances of winning a Security Council seat in a ballot next year, which has been strongly backed by Mr Rudd as prime minister and Foreign Minister.

Australia’s rivals for the seat – Finland and Luxembourg – each backed Palestine joining UNESCO, leading some commentators to declare the

Australian Security Council bid effectively dead.

The question of Palestine becoming a UN member is expected to go to the Security Council on November 11, despite threats from Washington that it will veto any resolution.

Australia is not on the Security Council, but should the push fail, the Palestinians are likely to take their bid to the General Assembly, where all 194 member states have a vote.

Israel has reacted angrily to the UNESCO vote, with Prime Minister Benjamin Netenyahu withholding at least $100 million from the Palestinian Authority and stepping up the building of settlements in the occupied territories.

The US has stopped a $60 million payment to UNESCO in protest at the vote.

A spokeswoman for the Prime Minister did not address a question from The Age on the detail of Mr Rudd’s advice.

In a written statement, she said ”a negotiated peace” was the best way to achieve a Palestinian state. ”We voted against the resolution because it is premature for a subsidiary body of the United Nations (such as UNESCO) to consider this matter while it is still being considered by the United Nations Security Council.”

SOURCE: Gillard rebuffed Rudd on Palestine.