‘Amnesty slams ‘shocking’ Indigenous conditions’ (ABC News, 10 October 2011)

‘Amnesty slams ‘shocking’ Indigenous conditions’ (ABC News, 10 October 2011)

Key Excerpt:

(Amnesty International) Secretary-general Salil Shetty on Saturday toured remote towns in the Northern Territory, including Utopian communities north-east of Alice Springs.

He described the plight of locals as “devastating”, saying people there are living in inhumane conditions that are almost third-world.

“I’ve been to many places in bad shape in Africa, Asia and Latin America, but what makes it stark here is when you remind yourself you’re actually in one of the richest countries in the world,” he said.

“I can’t believe I’m actually in one the richest countries in the world and you have people, Aboriginal communities here who are living in conditions which are really almost inhumane,” he said.

A two-bedroom house he saw had 15 people living in it; others had no toilets or showers. Some had been without electricity and water for months.

Mr Shetty says the Federal Government is contravening its human rights obligations.

He says the community has been stripped of funds that provide basic services, including running water, electricity, and hygiene services.

Liu Xiaobo, jailed Chinese human rights activist, awarded Nobel Peace Prize

Some study and exam tips for Year 11 Legal Studies

My apology for this lateness.  I’m leaving the school soon and there’s always seems to be more to do in terms of transitional tasks.

Regarding the essay section (Port Arthur)

1. Make sure you have a full understanding of the legal history of gun law reform in Australia, including attempts taken before Port Arthur massacre.
2. While studying revision, make a quick list of all the relevant media articles.  Jot some quick notes about them.  Think about how they might be used in a legal studies essay.  You should already have media articles in your notes.  There are more on this website.
3. When you attempt the essay during revision and exam, make sure your plan, your paragraphs and your overall essay all directly address the keywords of the given essay question.  Do not regurgitate prepared answers into the exam.
4. When you see the essay question for the first time, read it and think.  What is the question really asking you?  Then write your plan accordingly.

Regarding the essay section (Women)

1. Similar advise to Port Arthur.
2. You can also get some useful media articles to use on this link to the State Library website (http://blog.sl.nsw.gov.au/hsc_legal_studies/index.cfm/Women).

Regarding other sections

1. Individual and the Law: make sure you know about individual rights and duties.  (Click here for summary notes on Rights.)
2. Individuals and Technology: make sure you are able to talk about some technology issues, with reference to media articles and preferably legislation or case laws.
3. Multiple-choice: go through the revision notes for the Half-Yearly exam.

Sex Discrimination Commissioner seeking to expand investigative power

At the present, the Sex Discrimination Commissioner and Commissioner Responsible for Age Discrimination, Elizabeth Broderick, who represents the Australian Human Rights Commission (AHRC), has the power to conduct investigation on the basis of complaints about gender discrimination as defined by the Sex Discrimination Act 1984 (Cth).  The AHRC (formerly the HREOC) also has these responsibilities:

holding public inquiries into human rights issues of national importance and making recommendations to address discrimination and breaches of human rights

developing human rights education programs and resources for schools, workplaces and the community

providing independent legal advice to assist courts in cases that involve human rights principles

providing advice and submissons to parliaments and governments to develop laws, policies and programs consistent with existing national laws and international human rights agreements

undertaking and coordinating research into human rights and discrimination issues.

However, the AHRC cannot initiate an investigation.  It can only conduct an investigation based on complaints.  This arguably hampers the effectiveness of the AHRC in combating sex discrimination, who can only be reactive rather than proactive.  This is what Elizabeth Broderick would like to change.

Sex discrimination chief wants power to initiate investigations (ABC News, 23 June 2010)

Sex Discrimination Commissioner Elizabeth Broderick says her office should be given the power to initiate investigations into sexual harassment in the workplace.

Ms Broderick says some workplaces need to be investigated even if there is no specific complaint from a worker.  She says sex discrimination is often built into work cultures and is difficult to tackle.

“We should be able to look at maybe organisations, maybe sectors where we know sexual harassment is more prevalent and really work to provide some more systemic response than relying on an individual complaint,” she said.

This would certainly increase the effectiveness of the AHRC and the legal instrument it seeks to carry out.  Note that the AHRC is not suggesting those investigations could lead to people being brought before tribunal, but more investigative power can lead to a more substantial “systemic response”.

‘ICC Outlines Kenya Probe Plan’ (Al-Jazeera, 1 April 2010)

This media report deals with the evolving role of the International Criminal Court (ICC) in achieving world order as it seeks to deal with political violence that took place in Kenya after the election in 2007.  (‘ICC Outlines Kenya Probe Plan’ (Al-Jazeera, 1 April 2010))  But in order to deal with that, we must get a brief historical overview, especially since Kenya is not well-known among most students in Australia, despite that the fact the current US President, Barack Obama, can trace his heritage back to this country .  First, let us look at the map of Kenya. 

Kenya is an East African country that borders Somalia, Ethiopia, Sudan, Uganda and Tanzania.  At least four of its neighbours are embroiled in widespread political violence.  To the northwest, the Sudanese government has been fighting a civil war against rebels in the south that led to accusations of war crimes and genocide, and the ICC currently has an arrest warrant for one of its government minister (Minister for Humanitarian Affairs) for Crime Against Humanity.  To the east, in Somalia civil war is continuing between the internationally recognised government in Mogadishu and the Islamist rebels.  On top of that, there are major piracy problems off the coast of Somalia that has drawn much international attention.  Recent media reports suggest that the Islamist rebels (Al-Shabaab) have actually been quite effective in restoring some semblance of law and order and civic governance, but is still currently shunned by the world community due to its alleged links with Al-Qaeda.   To the north, the Ethiopian government has been sending troops into Somalia to fight against the Islamist rebel government in Somalia, and there has been accusations of war crimes levelled against its troops.  Situation has been settling down in Uganda following decades of civil war and political violence after the rule of the violent dictator, Idi Amin.  Multi-party elections was successfully held in 2005, and there are continuing discusssions on the establishment of a war crimes court to with the legacy of its violent past.  The ICC actually has issued arrest warrants for five war crimes suspects from Uganda in 2005, but four of them are still at large, most notably that of Joseph Kony, leader of the notorious Lord’s Resistance Army.  Finally, an oasis of relative stability resides in Tanzania.  In fact, Tanzania has in recent years been an elected member-state of the UN Security Council, a clear sign of its relative political and economic stability.  In a nutshell,

• Kenya resides in a part of Africa that has experienced major political upheavals.  This must have repurcussions for the political stability for Kenya, considering the porous nature of its borders.  A good example of would be the recent report of skirmishes between the Kenyan army and Al-Shabaab militias from Somalia, which points to poorly demarcated border between Kenya and Somalia being a factor in the tension between the two countries.  (Stratfor report, dated 1 April, 2010)
• Despite its best effort, many wanted war crimes suspects by the ICC still remain at large.  This appears to indicate the continuing limit of its effectiveness.  However, ICC arrest warrants are often part of the overall discussions in conflict resolutions in that region, as evidenced by Joseph Kony’s specific requests for the rescinding of arrest warrants by the ICC as part of his conditions for ceasefire.  This suggests that in an organic way, the ICC is actually more effective than meets it first appears. 

Let us turn our attention to the post-election violence in 2007 in Kenya that has since drawn the direct attention of the ICC.  This is how IRIN summarises the events.  (IRIN is the humanitarian news and analysis service of the UN Office for the Coordination of Humanitarian Affairs, UNOCHA.) 

Kenya suffered its worst humanitarian crisis since independence following the December 30 results of a hotly-contested presidential election. Opposition leader Raila Odinga and his supporters rejected the declared victory of incumbent Mwai Kibaki, alleging it was the result of rampant rigging. Protests degenerated into widespread violence as decades of economic frustration and ethnic rivalry spiraled out of control. In the days immediately after the results were announced, gangs of youths blocked Kenya’s main roads and set fire to hundreds of homes of perceived ‘outsiders’. In all, more than 1,200 people were killed and some 350,000 displaced into temporary camps, with an equal number seeking refuge with friends or relatives. Agricultural activity was seriously hampered as farmers moved away from their fields, posing long-terms risks for the country’s food security – already threatened by drought and soaring fertiliser prices. The education and health sectors were also compromised by the large-scale displacement of professionals.

This wasn’t the kind of post-election violence that one might witness in Baghdad, where hundreds of people might die from a terrorist strike in a supermarket, but a fullscale upsurge of political violence that has led to the large scale displacement of people in hundreds of thousands (i.e. refugee camps) plus major disturbance to the civic institutions of the country.  This included key civic sectors such as health, education and judiciary.  (Note: Usahidi.com gives a really good map overview of the spread of violence in the country in 2007-2008.  (http://legacy.ushahidi.com/))  This has meant, among other things, the inability of the current judicial system in Kenya to deal with the scale of criminal cases that resulted from the post-election violence, particularly the ones that falls under the definition of ‘Crimes Against Humanity’. 

Let us quickly revisit the definition of ‘Crimes Against Humanity’.  According to the Rome Statute of International Criminal Court, ‘Crimes Against Humanity’ can be defined as

particularly odious offences (that) constitute a serious attack on human dignity or grave humiliation or a degradation of one or more human beings. They are not isolated or sporadic events, but are part either of a government policy (although the perpetrators need not identify themselves with this policy) or of a wide practice of atrocities tolerated or condoned by a government or a de facto authority. Murder; extermination; torture; rape and political, racial, or religious persecution and other inhumane acts reach the threshold of crimes against humanity only if they are part of a widespread or systematic practice. Isolated inhumane acts of this nature may constitute grave infringements of human rights, or depending on the circumstances, war crimes, but may fall short of falling into the category of crimes under discussion.

Note that I have underlined parts that apply particularly to Kenya.  What separates violent crimes from ‘crimes against humanity’ are the questions of scale and the question of policy.  The post-election violence in Kenya in 2007-2008 was of such a large and systematic scale that credible allegations of crimes against humanity arose.  As it happens, ‘crimes against humanity’ falls under the jurisdiction of the International Criminal Court.

The International Criminal Court prosecutor has pledged to focus on victims as he prepares to begin an investigation into Kenya’s 2007-08 post-election violence.

Luis Moreno-Ocampo told Al Jazeera on Thursday that he assures protection to the victims and witnesses of the violence…

Moreno-Ocampo said he has a list of 20 possible suspects made up of political and business leaders and that he will prosecute “those most responsible”

Louis Moreno-Campo, chief prosecutor of the International Criminal Court, is making impressive promises during his interview with Al-Jazeera.  However, the International Criminal Court will be facing some very difficult challenges in fulfilling its promises.  Some of its twenty suspects are members of the current Kenyan government.  The ICC will face a lot of difficulties in its investigations if it does not receive the cooperation of the Kenyan government.  Questions must also arise as to the ability of the International Criminal Court to protect its own witnesses.  Moreno-Campo has stated he will not rely on Kenyan government to protect its own witnesses.  This means it will need to be careful in how it distributes its limited financial resources as it grants witness protection. 

ICC’s track record in Sudan and Uganda has been questionable.  Let’s hope that Moreno-Campo will be able to do better in Kenya. 

‘DNA to be obtained by force if necessary’ (Sydney Morning Herald, 2 September 2009)

There has been a disturbing trend in the erosion of civil liberties in the state of New South Wales in recent years.  There was the draconian enforcement of the anti-protest legislation introduced during the APEC summit in Sydney in 2008.  There was the World Youth Day anti-annoyance regulation that was subsequently struck down by the Federal Court.  There was the controversy surrounding the introduction of taser guns into the NSW Police Force.  Then there was the controversial legislation introduced in the aftermath of the bikie gang violent incident in Sydney Airport.

Personally I have absolutely no sympathy for people who sexually abused children.  However, in the context of recent trends in the erosion of civil liberties, this article raises some alarms.

‘DNA to be obtained by force if necessary‘ (Sydney Morning Herald, 2 September 2009)

THE State Government has moved to strengthen legislation so that force can be used to obtain the DNA of those listed on the child protection register who refuse to provide it voluntarily.

It follows pressure from the police, who said some offenders on the register have refused to co-operate since the Government’s move last year requiring them to provide their DNA.

“Offenders who come into regular contact with police are adept at skirting around the law as a way of frustrating authorities and avoiding detection,” the Attorney-General, John Hatzistergos, said. “These new laws will strengthen the process for taking DNA from offenders who have a history of harming children and continue to pose a risk to the community.“

Note that under current legislation introduced in 2000, people who are sent to gaol for indictable offence would have their DNA  sample taken and placed into a DNA database.  Perhaps part of the aims of this propose legislation is to extend the coverage of DNA sampling to offenders before 2000.  However, lawyers have expressed concerns about the proposed expansion of police powers.

“It is unreasonable to give police that sort of power,” said Stephen Blanks of the NSW Council for Civil Liberties. ”The power to compel DNA samples should be up to the courts.”

According to Stephan Blanks, courts already have the power to compel an offender to surrender DNA samples to the police.  However, courts act on the basis of providing safeguards against arbitrary abuse of power.  It exercises judicial power.  The police however does not exercise judicial power.  It exercises executive power, which is far more opened to abuse.

Overall, this appears to be an unnecessary expasion of police powes.

‘Bar-Ilan prof. seeks global standard for fair divorce’ (Jerusalem Post, 3 August 2009)

This proposal for a global standard for fair divorce by Israeli professor of law, Ruth Halperin-Kaddari is quite interesting.  It will probably face some initial difficulties, but the ensuing dialogues and conversations might in the long run bring about some paradigm shift about divorce and human rights.

‘Bar-Ilan prof. seeks global standard for fair divorce‘ (Jerusalem Post, 3 August 2009)

A longtime legal advocate for women’s rights in Israel is poised to create a new international standard to protect women seeking divorce.

Ruth Halperin-Kaddari, a law professor at Bar-Ilan University, says dissolving a marriage or partnership can have severe economic consequences for women.

As vice president of a UN committee on women’s rights, she has led a working group on the economic impact of divorce since last year; on Tuesday, she will address the full committee, thereby launching the drafting process for new international guidelines that account for women’s housing rights and recognize their earning potential during divorce proceedings.

In UN terminology, Kaddari is seeking a new “general recommendation” for the Convention on the Elimination of All Forms of Discrimination against Women. The new article would lay out economic protections for those seeking divorce, says Kaddari, chairwoman of the Ruth and Emanuel Rackman Center for the Advancement of the Status of Women at Bar-Ilan.

Such a recommendation would have legal authority under the UN convention, the apparatus adopted in 1979 to guard women’s rights and prevent gender-based discrimination and violence. The convention has been amended a number of times since then, notably in 1992, when the committee issued general recommendation No. 19 to fight and eradicate violence against women.

“Things have developed since then… we know much more about laws and how they affect women, especially the economics of marriage and the economics of divorce, and the economic consequences of divorce,” Kaddari said.

Do religions have rights? ‘Ireland bucks trend with anti-blasphemy law’ (The Register, 8 May 2009)

There have much criticisms at the Human Rights Council in recent weeks for their passing of a resolution that condemns attacks on religions as a human rights violations.  Most of the countries that passed the resolution in the Human Rights Council were Muslim countries, who sees this as a way of combatting ‘Islamophobia’.  Many human rights non-government organisations however have labelled this as an attack on ‘freedom of expressions’.

Ironically, one country that might find itself supporting this resolution is the Republic of Ireland.   ‘Ireland bucks trend with anti-blasphemy law’ (The Register, 8 May 2009) The particular person responsible for this rather problematic law is the Irish Minister of Justice.  The proposed law hits prospective blasphemers in the pocket.

“A person who publishes or utters blasphemous matter shall be guilty of an offence and shall be liable upon conviction on indictment to a fine not exceeding €100,000.”

What does it mean to “blaspheme”?  According to the proposed legislation, a blasphemous act is one that is

grossly abusive or insulting in relation to matters held sacred by any religion, thereby causing outrage among a substantial number of the adherents of that religion; and he or she intends, by the publication of the matter concerned, to cause such outrage.

Does that mean that atheists cannot criticise or satirize religions in Ireland?  How about comedians who want to satirize religions in comedy clubs.   Certainly this appears to be the case.  The proposed legislaton arose out of a 1999 case in which a Dublin newspaper was prosecuted for a satirical article attacking religions, thereby violating a clause in the Irish constitution that

“the publication or utterance of blasphemous, seditious, or indecent material is an offence which shall be punishable in accordance with law.”

However no such law actually existed.  (See explanation on Corway v Independent Newspapers (1999) Irish Supreme Court.)  Therefore the judge had to dismiss the case.  This raised the attention of the Oireachtas Committee on the Constitution.  However, rather fixing it by removing the arguably outdated clause in the constitution, they decided to make it legally enforceable.

This raises a legal and philosophical question.  Do religions even have ‘human rights’?

‘Muslim waitress wins payout over ‘figure-hugging’ dress’ (SMH, 16 June 2009)

This is an interesting lawsuit, even though it is not an Australian case.  As an anti-discrimination lawsuit, it falls under British common law, which often influences judges’ decisions in Australia.

A Muslim cocktail waitress has won a 3000 pound ($6090) compensation payout for having to wear a figure-hugging red dress she said made her feel “like a prostitute”.

A Muslim waitress in Britain, Fata Lemes, 33, has been asked to wear a summer uniform while the male staff have not been asked to do.  The summer uniform was ‘figure-hugging’ which the tribunal has judged as ‘gender-specific’.  The tribunal found in her favour.

“The respondents did not introduce a summer uniform for male waiting staff. Unlike the women, the men were not required to switch to brightly coloured, figure-hugging garb.”

Forcing her to wear the dress if she wanted to continue working at the bar “violated her dignity”, the panel decided, and created a “humiliating” environment.

The panel found: “Her perception was that wearing the dress would make her feel as if she was on show, as if she was being presented as one of the attractions which the Rocket Bar was offering its customers.

“In our view that perception was legitimate and not unreasonable. We are reinforced in this conclusion by the striking contrast between the dress and the dark, loose-fitting attire which would remain the men’s uniform.”

“The respondents did not introduce a summer uniform for male waiting staff. Unlike the women, the men were not required to switch to brightly coloured, figure-hugging garb.”

Forcing her to wear the dress if she wanted to continue working at the bar “violated her dignity”, the panel decided, and created a “humiliating” environment.

The panel found: “Her perception was that wearing the dress would make her feel as if she was on show, as if she was being presented as one of the attractions which the Rocket Bar was offering its customers.

“In our view that perception was legitimate and not unreasonable. We are reinforced in this conclusion by the striking contrast between the dress and the dark, loose-fitting attire which would remain the men’s uniform.”

State’s police licensed to Taser (SMH, 14 June 2009)

This blog entry concerns the widespread introduction of taser stun guns to the NSW Police Force.  It will also discuss the possible ramifications of such widespread use.

State’s police licensed to Taser (SMH, 14 June 2009)

TASER stun guns will be rolled out across the state in the biggest revolution of police equipment since the NSW force was formed in 1862.

In a move which will delight the Police Association and alarm civil libertarians, Tuesday’s budget will include $10 million to buy 1962 Tasers for front-line police.

They will have just eight hours’ training but will need to get at least 80 per cent in a written test, and pass an annual certification, before they can use the potentially deadly weapons.

TASER stun guns will be rolled out across the state in the biggest revolution of police equipment since the NSW force was formed in 1862.

In a move which will delight the Police Association and alarm civil libertarians, Tuesday’s budget will include $10 million to buy 1962 Tasers for front-line police.

They will have just eight hours’ training but will need to get at least 80 per cent in a written test, and pass an annual certification, before they can use the potentially deadly weapons.

What is a taser gun?  According to its entry in Wikipedia, taser gun is “an electroshock weapon that uses electrical current to disrupt voluntary control of muscles“.  It is made by Taser International.  Taser works by firing

two small dart-like electrodes, which stay connected to the main unit by conductive wire as they are propelled by small compressed nitrogen charges similar to some air gun or paintball marker propellants. The air cartridge contains a pair of electrodes and propellant for a single shot and is replaced after each use.  (Wikipedia entry on ‘History of Taser‘)

Used correctly, taser guns offer a non-lethal alternative to normal guns for law enforcement.  However, it is not without its critics.  Many civil liberty advocates have expressed concerns about its misuse and abuse by members of the law enforcement agencies.  Of particular concerns is the drive-stun mode, a function now commonly found in taser guns.  According to Amnesty International Canada,

“… the potential to use TASERs in drive-stun mode – where they are used as ‘pain compliance’ tools when individuals are already effectively in custody – and the capacity to inflict multiple and prolonged shocks, renders the weapons inherently open to abuse.” (‘Amnesty International’s concerns about Tasers‘, Amnesty International Canada)

Not surprisingly, the usage of taser guns  have been accompanied by civil litigation concerning its misuse by the police force.  The most recent one appears to be in Sydney.

‘Man launches civil action after stun-gun attack’ (SMH, 14 June 2009)

Solicitor Nick Boyden, of Australian Criminal Law Specialists, said yesterday his 38-year-old client, whose identity has been withheld, was still suffering from the effects of being twice Tasered by a senior officer on Oxford Street almost three months ago, when it appears he was complying with instructions from the officer to get off the road and onto the footpath.

Mr Boyden, who has briefed criminal defence barrister Winston Terracini, SC, to lead the civil action, said: “There is a place for the responsible use of a Taser by police and that is as a shield to protect police and the public … not a weapon.“

Mr Boyden said what happened to his client at 2.30am on Sunday March 29 was captured by a closed-circuit video camera.

“It is clear that the use of the Taser in this instance was unwarranted as three other officers from the public riot squad were close at hand to detain my client who only appears to be intoxicated and not posing a threat to any other persons,” he said.

In fairness to tasers, it is probably a safer alternative to ballistic shotguns.  However, the potential of abuse appears to be considerable, and when seen in the context of the recent increase in police powers, this is still a worrying trend in the civil liberty of New South Wales.