Back to the future : the war on terror and its impact on civil liberties

This comment looks at the capacity of the Australian Constitution to protect the civil liberties of a small number of citizens and would be citizens whose lives have been forever changed by recent acts of terror and the legislative and executive actions taken by the Commonwealth in response to those terrorist acts. These legal changes have included the creation of specific "terrorism" offences, the legislative proscription of two foreign organisations and, most notably, a significant expansion of ASIO's investigative powers.1
Whilst the Constitution contains a number of provisions and principles protective of civil liberties, in most instances they cannot resist government action expressly aimed at curtailing or infringing individual rights and freedoms. To this end, steps ought to be taken to strengthen existing institutions and mechanisms capable of providing meaningful civil rights scrutiny of government legislation. The comment begins with an examination of the close historical and legal parallels that exist between the present day and the Cold War era and suggests how the High Court might interpret the defence power should a terrorist attack occur on Australian soil. It concludes with a proposed reform. The reform involves vesting Ch III courts with the power to measure Commonwealth laws against the International Covenant on Civil and Political Rights when determining a legal controversy. This may operate to secure better legislative outcomes from a civil liberties perspective without compromising the supremacy of Parliament.

Does Australia's treatment of non-citizens accord with its international human rights obligations? with specific reference to the treatment of on-shore refugees

The son of immigrants, I was motivated to write a paper addressing the issues of alienation and discrimination which confronts non-citizens upon arriving in Australia. Apart from descendants of Australia's indigenous population, the common bond shared by all citizens and permanent residents of Australia is that they are either themselves immigrants or are descended from immigrants. In this paper I will look at whether Australia's law and practice meets its international human rights treaty and convention obligations vis-a-vis non-citizens. To investigate this issue I trace the history of immigration to Australia and look at the political policies which influenced the treatment of non-citizens from 1788 to present times. In 1958 when my parents stepped upon Australian soil as displaced persons, Australia was a very different place from Australia in the 1990s. At that time Australia was still firmly under the influence of the 'White Australia Policy' which openly encouraged discrimination against non-anglo saxons. Since those times Australia has advanced to become one of the most culturally diverse nations in the world where multiculturalism is encouraged and a non-discriminatory immigration program is supported by both Australia's major political parties. However, notwithstanding the great social advances made in Australia in recent decades the traditional legal sources of law, namely, judicial pronouncements, statutes and the Commonwealth Constitution have not kept pace and it is my submission that Australia's body of law inadequately protects the rights of non-citizens when compared to Australia's international human rights convention and treaty obligations. This paper will consider these major sources of law and will investigate how they have been used in the context of the protection of the rights of non-citizens. It will be asserted that the weaknesses exposed in the Australian legal system can be improved by the adoption of a Bill of Rights1 which encompasses Australia's international human rights treaty and convention obligations. It is envisaged that a Bill of Rights would provide a framework applicable at the State, Territory and Federal levels within which issues pertaining to non-citizens could be resolved. The direction of this thesis owes much to the writings, advice and supervision of Dr. Imtiaz Omar who was always available to discuss the progress of this work. Dr. Omar is a passionate advocate of human rights and has been a tremendous inspiration to me throughout my writing. I owe a debt of thanks to the partners of Coulter Burke who with good nature ignored the sprawl of books and papers on the boardroom table, often for days at a time, thus enabling me to return to my writing from time to time as my inspirational juices ebbed and waned. Thanks also go to my typists Julie Pante, Vesna Dudas and Irene Padula who worked after hours and on weekends always without complaint, on the various versions of this thesis. My final acknowledgement goes to my wife Paula who during the years that I was working on this thesis encouraged me during my darker moments and listened to all my frustrations yet never doubted that I would one day complete the task successfully. I wish to thank her wholeheartedly for her motivation and belief in my abilities. The law relied upon in the thesis is as at the 30th June, 1998. Bill or Charter of Rights 'are taken to be enactments which systematically declare certain fundamental rights and freedoms and require that they be respected'. See Evans, G. 'Prospect and Problems for an Australian Bill of Rights' (1970) 3 Australian Year Book of International Law 1 at 16. Some such notable exception is the New Zealand Bill of Rights Act 1990, contained in an ordinary statute.

Cultural diversity, heritage and human rights : intersections in theory and practice

This theoretically innovative anthology investigates the problematic linkages between conserving cultural heritage, maintaining cultural diversity, defining and establishing cultural citizenship, and enforcing human rights.

It is the first publication to address the notions of cultural diversity, cultural heritage and human rights in one volume. Heritage provides the basis of humanity’s rich cultural diversity. While there is a considerable literature dealing separately with cultural diversity, cultural heritage and human rights, this book is distinctive and has contemporary relevance in focusing on the intersection between the three concepts. Cultural Diversity, Heritage and Human Rights establishes a fresh approach that will interest students and practitioners alike and on which future work in the heritage field might proceed.

The problem of voluntariness: parents and the anti-discrimination principle

Examines the theoretical justifications for the anti-discrimination protection for working parents in Australia. Implication of discrimination, voluntaries and employment; Analysis of the tort principles; Factors affecting the justification for protecting working parents.

David v. Goliath: the gay games, the Olympics, and the ownership of language

The Gay Games is firmly established on the contemporary global sports calendar, but is seldom canvassed in mainstream sports media, or considered a model for sports administrators. This is regrettable, as the Games’ ethos offers many clues into the relationships between individual and communal empowerment for homosexual and heterosexual participants alike, while providing a site of resistance against entrenched norms of elitism, nationalism, victory and record-breaking indicative of the modern Olympic movement. Credit for this inclusive ethos rests with the vision of inaugural Gay Games organiser Dr. Tom Waddell. Drawing on Games archives, this paper outlines Waddell’s vision, then discusses the impact of a protracted legal dispute instigated by the United States Olympic Committee in 1982 over the use of the term ‘Olympics’ in association with Gay Games I and II. Four United States Federal court rulings are examined, with particular reference to the contrasting hierarchy of private intellectual property and public civil rights considered under United States law of the time. Domestic and international legacies of the dispute are also briefly examined, focusing on the inherent tensions between the state-sanctioned protection of Olympic terminology, the ideals of free speech, the ownership of common sporting terms, and the potential discriminatory effects of selective trademark enforcement. The paper concludes with a brief discussion of how Waddell’s vision superseded each of these legal technicalities to ensure the Games continues to provide a viable model for inclusive and engaged participation for all people.

Australia's proposed anti-terrorism laws

Discusses if ASIO and the police should be able to keep people in detention for 48 hours without access to a lawyer? Is this an appropriate response to to a dangerous new post-September 11 world?Or a radical over reaction that tramples on civil rights?

Comparison of Australian and Malaysian views on the use of biometric devices in everyday situations

Since the September 11, 2001 terrorist attacks in New York City, many countries including Australia and Malaysia have been able to justify the use biometric devices such as fingerprint scans, retina scans and facial recognition for identification and surveillance of its citizens and others in the name of national security. In addition, biometric devices are increasingly being used worldwide by organizations to keep track of their employees and their productivity, leading to concerns of privacy and civil rights violations. Taking the critical theory perspective, this paper will analyse the data collected and report on the findings of a survey carried out in Australia and Malaysia, with respect to the responses provided and opinions expressed to the survey's open ended and other questions by individuals as to their current use, experiences, preferences, concerns about the devices and the situations in which they think biometric devices should be used, including in their workplaces. This descriptive study uses both quantitative and qualitative data to examine what Australians and Malaysians think about the use of biometric devices in everyday situations and compare them as to their similarities and differences within the context of each nation's culture and political systems. The paper will then critically examine the ethical and civil rights issues involved in the use of biometric devices in everyday life and what regulatory and legal measures should be taken to safeguard the rights of citizens while maintaining security and productivity, in order to avoid the situation of Michel Foucault's Panopticon becoming an unpleasant everyday reality, which could negatively influence social justice and create social change due to its effects on individuals in two multicultural societies. the apper will argue about the need to educate the general public as to the issues of surveillance and privacy involved in the use of biometric devices in everyday situations.

Instrumentalism and the 'helping' discourse : Australian indigenous performing arts and policy

Indigenous arts are significant to the way Australia is represented to the world. Since the early 19705 Indigenous cultural policies, at both federal and state levels, have helped to shape the development of Indigenous performing arts in Australia. Over this period, cultural policies, in confluence with the aims of Indigenous artists and civil rights activists, have produced and reproduced instrumentalist rationales for the support of Indigenous arts. In particular, the sector has deployed <helping' rationales for cultural policies which focus on social and economic outcomes. This article addresses current debates around the instrumentalist purposes of cultural policy and the participation of Indigenous practitioners in reproducing the 'helping' discourse. The article, however, finds evidence of a recent break in the consensus which sees some Indigenous artists resisting the historical imperative for their arts practice to be exclusively focused on instrumentalist outcomes.

Forever troubling: feminist theoretical work in education

My life and intellectual history are closely connected to the late 20th Century rise of the second wave women’s, student and civil rights movements. These decades also witnessed the professionalization of women’s traditional fields of work— teaching and nursing—with their introduction into the academy. But as all feminists know, and my intellectual and personal history illustrates, there is no gradual progress towards the betterment of all or a fairer redistribution of power, and there is no safe discourse of equality. Any restructuring of the social relations of gender arising from local, national or global social, economic and political shifts often reasserts masculine privilege.

The Reverend Setareki Tuilovoni: mobile pacific leader in the decolonisation era

Setareki Tuilovoni was made the first Indigenous president of the Fijian Methodist church in 1964. This paper gives a biographical account with particular focus on his experiences overseas and how these shaped his approach to creating a united Methodist church at home, and a united Christian fellowship throughout the Pacific by means of regional church bodies. Because Tuilovoni had been present in America and Africa at pivotal points in the struggles for civil rights and decolonisation, his ideas were shaped by his mobility, and this in turn influenced his work to redefine the church in a decolonising Pacific, paving the way for moderate voices in the postcolonial church.

Preventative detention and the right of personal liberty and security under the International Covenant on Civil and Political Rights, 1966

Preventive detention enables a person to be deprived of liberty, by executive determination, for the purposes of safeguarding national security or public order without that person being charged or brought to trial. This paper examines Article 9(1) of the International Covenant on Civil and Political Rights, 1966 to assess whether preventive detention is prohibited by the phrase 'arbitrary arrest and detention '. To analyse this Article, this paper uses a textual and structural analysis of the Article, as well as reference to the travaux preparatoires and case law of the Human Rights Committee. This paper argues that preventive detention is not explicitly prohibited by Article 9(1) ofthe International Covenant on Civil and Political Rights 1966. If preventive detention is 'arbitrary', within the wide interpretation of that term as argued in this paper, it will be a permissible deprivation of personal liberty under Article 9(1) of the International Covenant on Civil and Political Rights, 1966. Preventive detention will, however, always be considered 'arbitrary' if sajeguards for those arrested and detained are not complied with, in particular the right to judicial review of the lawfulness of detention.