Realistic yet humanitarian? The comprehensive plan of action and refugee policy in Southeast Asia

The 1989 Comprehensive Plan of Action (CPA) has recently been described as a successful example of how to manage large protracted refugee flows. However, this article revisits the circumstances surrounding the CPA used to resolve the prolonged Indo-Chinese refugee crisis to highlight that part of its development was linked to the fact that Southeast Asian states refused to engage with proposed solutions, which did not include repatriation for the majority of the Indo-Chinese asylum seekers who were deemed to be ‘non-genuine’1 ( UNGA, 1989a) refugees. This resulted in the CPA often forcibly repatriating ‘non-genuine’ refugees, particularly near the end of its program. This article reviews the CPA in order to assess whether its practices and results should be repeated.

Competition laws and policies in China and Hong Kong : a tale of two regulatory journeys

Reviews the background to China's enactment of the Anti-Monopoly Law in 2007 and compares the debate surrounding the proposed introduction of similar legislation in Hong Kong. Examines the main issues arising during the Law's 13 year drafting stage, its key provisions and the remaining areas of uncertainty concerning its enforcement. Discusses ongoing efforts to introduce competition law regulations in Hong Kong, the main features of the draft General Competition Law and the shortcomings of its approach to penalties and exemptions.

Post-WTO China : competition and technology transfer laws in the 'new' socialist market economy

China has been the focus of much academic and business scrutiny of late. Its economic climate is changing and its huge new market opportunities seem quite tantalizing to the would-be 'technology entrepreneur'. But China's market is a relatively immature one; it is still in the process of being opened up to real competition. The corollary of this is that, at this stage of the transitional process, there is still significant State control of market function. This article discusses Chinese competition law, the technology transfer system, how the laws are being reformed and how the technology entrepreneur fares under them. The bottom line is that while opportunities beckon, the wise entrepreneur will nevertheless continue to exercise caution.

The constitutional power to make war: domestic legal issues raised by Australia's action in Iraq

The legal power to declare war has traditionally been a part of a prerogative to be exercised solely on advice that passed from the King to the Governor-General no later than 1942. In 2003, the Governor- General was not involved in the decision by the Prime Minister and Cabinet to commit Australian troops to the invasion of Iraq. The authors explore the alternative legal means by which Australia can go to war - means the government in fact used in 2003 - and the constitutional basis of those means. While the prerogative power can be regulated and/or devolved by legislation, and just possibly by practice, there does not seem to be a sound legal basis to assert that the power has been devolved to any other person. It appears that in 2003 the Defence Minister used his legal powers under the Defence Act 1903 (Cth) (as amended in 1975) to give instructions to the service head(s). A powerful argument could be made that the relevant sections of the Defence Act were not intended to be used for the decision to go to war, and that such instructions are for peacetime or in bello decisions. If so, the power to make war remains within the prerogative to be exercised on advice. Interviews with the then Governor-General indicate that Prime Minister Howard had planned to take the matter to the Federal Executive Council 'for noting', but did not do so after the Governor-General sought the views of the then Attorney-General about relevant issues of international law. The exchange raises many issues, but those of interest concern the kinds of questions the Governor-General could and should ask about proposed international action and whether they in any way mirror the assurances that are uncontroversially required for domestic action. In 2003, the Governor-General's scrutiny was the only independent scrutiny available because the legality of the decision to go to war was not a matter that could be determined in the High Court, and the federal government had taken action in March 2002 that effectively prevented the matter coming before the International Court of Justice

Legal responses to climate change

The challenges of climate change pose problems requiring new and innovative legal responses by legal practitioners, government officials and corporate officers. This book addresses a broad range of topic areas where climate change has impact and systematically analyses the key legal responses to climate change, both at the international level and within Australia at federal, State and local levels. In particular, it critically examines: •the rights, duties and market mechanisms established under the international climate change regime •the effect of climate change policies on the implementation of environmental and planning laws •new regimes for the implementation of renewable energy and energy efficiency initiatives •legal frameworks for the implementation of biological and geological sequestration projects (including forest projects and carbon rights); and •legal principles for the design of an effective carbon trading scheme for Australia It also considers the role of the common law including: •the likely response of the law of torts to emerging forms of climate change harm; and •potential liabilities for professionals who must take climate change into account in their decision-making and advice

The role of legislative, executive and judicial mechanisms in ensuring a fair and effective asylum process

A good faith reading of core international protection obligations requires that states employ appropriate legislative, administrative and judicial mechanisms to ensure the enjoyment of a fair and effective asylum process. Restrictive asylum policies instead seek to ‘denationalize’ the asylum process by eroding access to national statutory, judicial and executive safeguards that ensure a full and fair hearing of an asylum claim. From a broader perspective, the argument in this thesis recognizes hat international human rights depend on domestic institutions for their effective implementation, and that a rights-based international legal order requires that power is limited, whether that power is expressed as an instance of the sovereign right of states in international law or as the authority of governments under domestic constitutions.

Access to protection for 'Offshore Entry Persons' aka asylum seekers

In 2001, amendments to the Migration Act 1958 (Cth) made possible the offshore processing of protection claims. The same amendments also foreshadowed the processing of claims by ‘offshore entry persons’ in Australia according to non-statutory procedures. After disbanding offshore processing the then Rudd Labor Government commenced processing of protection claims by ‘offshore entry persons’ in Australia under the Refugee Status Assessment process (RSA). The RSA process sought to substitute well established legislative criteria for the grant of a protection visa, as interpreted by the courts, with administrative guidelines and decision-making immune from judicial review. This approach was rejected by the High Court in the cases M61 and M69. This article analyses these developments in light of Australia’s international protection obligations, as well as considering the practical obstacles that continue to confront offshore entry persons as they pursue judicial review of adverse refugee status determinations after the High Court’s decision.