The Overarching Failures of the Northern Territory Intervention

Saturday, May 15. 2010
In an episode of SBS’s Insight, screened in March 2008, an Aboriginal woman stated that: “We should be thanking [former Indigenous Affairs Minister] Mal Brough.” This sentiment was echoed during the broadcast by one of the audience members, the current Opposition Leader Tony Abbott, who vigorously agreed. For that woman, gratitude towards Brough and the Intervention is for seeing her town free of alcohol and pornography, welfare payments quarantined and children made to attend school. These were all much-needed measures that have assisted thousands of Northern Territorians. But Mr. Brough would be hard-pressed to find gratitude in the hearts of others who view the Intervention as a lost opportunity and/or a distinct failure.

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A Collision of Cultures: Should France ban the burqa?

Monday, May 10. 2010
In 2004, the French President Jacque Chirac signed into law a ban on “symbols which show religious affiliation in public primary and secondary schools.” This included openly wearing crucifixes and the Muslim headscarf. The debate was heated, marked by protests and riots as the French Government defended its position to uphold the principle of laicité—the separation of Church and State. The current President of France has extended this line of thinking to the burqa, or full-face veil, as worn by certain Muslim women around the world. To many the burqa seems to be a physical memory of the extremist tyranny of the Taliban, where it was mandatory. A covering seems to threateningly hint at radicalisation and difference—it did take the world more than sixty years, after all, to peer behind the Iron Curtain.

Will this law be upholding certain inalienable parts of the French Constitution at the expense of others? Put simply, is the burqa ban (a movement which is rapidly gathering steam, even among Muslim communities), unconstitutional? The official motto of France is, in translation, ‘Liberty, Equality, Fraternity,’ but isn’t legislation outlawing a certain mode of dress a definite restriction of the avowed Liberty, at least?

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Hypocrisy and people smuggling

Sunday, June 28. 2009
PEOPLE SMUGGLING is a matter of considerable political concern to Western governments, and has received much international attention in recent years. This is evidenced by the fact that 119 states, including Australia, have become parties to the Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime.

Article 3(a) of the Smuggling Protocol defines “smuggling of migrants” as “the procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of the illegal entry of a person into a State Party of which the person is not a national or a permanent resident”. The Protocol refers to a profit motive again in article 6, which requires state parties to criminalise smuggling and related activities where committed by an organised criminal group and transnational in nature. The reference to a profit motive was included in order to ensure that those assisting migrants or asylum seekers on humanitarian grounds or on the basis of close family ties would not be caught by the Protocol’s provisions.

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Children as right bearers: or are they?

Monday, June 15. 2009

A few months ago in Melbourne, a father threw his baby daughter off the Westgate Bridge into the water and the terrible incident was witnessed by her siblings. The story sent shivers up my spine and thousand others who heard what happened to the child. The story made front-page news in the print and other media for a day or two and was soon lost in the din of other happenings.

Did it go off our radar because there were other important things in our lives to worry about or did it fade away from our memory because we thought we were lucky to have our happy and loving family?

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Seeking an alternative to life in limbo

Sunday, April 26. 2009
ON 30 SEPTEMBER last year the Australian Navy intercepted a boat off the coast of Western Australia and took the twelve Middle-Eastern asylum seekers on board to Christmas Island. These individuals, who had made their way from Indonesia, were the first unauthorised boat arrivals of the Rudd era. Since then several more boats carrying mostly Middle-Eastern asylum seekers have made the same trip. I use the term “asylum seeker” advisedly because all the arrivals to date appear to have made protection claims. What is more, all the protection claim decisions of which I am aware have been positive. In other words, the claimants have been recognised as refugees and granted permanent protection visas.

The federal opposition is arguing that the abolition of temporary protection visas and the softening of immigration detention policy have encouraged a renewal of people smuggling, which means that the government is to blame for the spate of unauthorised boat arrivals. There may be a small element of truth in this, but I tend to agree with the government’s assessment that the recent upsurge in irregular asylum seeker movement is part of a worldwide phenomenon largely caused by events in source countries such as Afghanistan, Iraq and Sri Lanka. Unfortunately, the one point on which government and the opposition are in rhetorical agreement is that Australia needs to keep intensifying its efforts to strengthen border control and disrupt people smuggling until the boats stop coming.

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How intolerant should religious schools be allowed to be?

Friday, April 3. 2009
A Christian school in Melbourne’s west recently refused to offer a training placement to a Muslim student teacher (The Age 25/3/09). The refusal was clearly based on the religious difference between the student teacher and the school. The Principal was quoted as saying that accepting the student teacher “would have been confusing for the kids. It’s not that we have anything against her or her beliefs; we just felt it was an inappropriate placement.”

The school was most likely within its legal rights in excluding a student teacher who does not share its faith. The Victorian Equal Opportunity Act 1995 gives religious schools plenty of leeway in excluding people who are not of the same religious belief.

However, this legal exemption for religious schools raises fundamental issues about how to achieve the right balance between religious freedom and responsible educational practices.

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Redressing the accountability deficit in an era of offshore borders

Thursday, November 13. 2008
As is well known, on 30 September 2008 the first unauthorized boat arrivals of the Rudd Government era were intercepted by the Australian Navy off the coast of Western Australia and taken to Christmas Island. The boat, which had departed from Indonesia, carried 12 passengers included nine Afghans. A week later a second boat came from Indonesia carrying 14 Afghan passengers. It too was intercepted off the Western Australian coast and its passengers taken to Christmas Island. It appears that all of the individuals have made protection claims which are being considered pursuant to the non-statutory process which applies in excised offshore places. Not so well known is the fact that many more individuals attempting to make their way to Australia in an irregular fashion are being intercepted in Indonesia through the joint efforts of the Indonesian and Australian governments. Since about 2000, Australia, Indonesia and the International Organisation for Migration (IOM) have had in place the Regional Cooperation Model (RCM). Pursuant to this arrangement, intercepted individuals are supposed to be turned over into the care of the IOM. If any of them indicate that they are asylum seekers, they are supposed to be referred by IOM to the Office of the United Nations High Commissioner for Refugees (UNHCR) for determination of their protection claims.

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Is Australia Responsible for Protecting the Human Rights of Asylum Seekers in Papua New Guinea?

Wednesday, October 1. 2008
In the second of the presentations in La Trobe Law's Colloquium Series, Dr Savitri Taylor looks at the question of whether Australia is responsible for human rights violations committed against asylum seekers in Papua New Guinea. Current Australian policy is to enforce borders strictly with respect to asylum seekers and Australia has entered into arrangements with its neighbours, most notably Indonesia and Papua New Guinea, to restrict asylum seekers from third countries from entering Australia. While these asylum seekers are detained in Australia's neighbours' jurisdictions, the question arises whether Australia is responsible for any human rights violations committed against these refugees during this period? Dr Taylor looks at the various institutional arrangements that impact upon these local arrangements, particularly those from the United Nations. Initial conclusions (this paper is part of a broader ongoing project) are that it is very difficult to hold any specific party accountable for abuses of the socio-economic rights of these individuals under current arrangements. Dr Taylor's paper and PowerPoint presentation may be accessed at the followng links: Paper and Presentation

Fairer trade and the human right to development

Wednesday, September 17. 2008
In the first of the presentations of the School of Law Colloquium Series for 2008, Professor Jianfu Chen considers the twin goals of fair trade and the right to development (as a human right). In doing so, Professor Chen looks at the historical origins of the relevant treaties and considers the progress that has been made towards these two goals. Professor Chen's materials may be accessed at the following links: Fairer Trade Paper and Fairer Trade Presentation