Observations
on the new Constitution of East Timor
by Graham Nicholson
Extensive community consultation and representative debate went into the constitution making process in East Timor. This article examines the Constitution, the powers of the President, rights and freedoms in the Constitution, the judiciary, and the extent to which the Constitution imports aspects of international law into the domestic legal system.
Off the peg'
or 'made to measure': Is the introduced legal system and Westminster style of
government appropriate In Solomon Islands?
by Jennifer Corrin Care
Within the last four years, Solomon Islands has been brought from an optimistic developing nation to a country ruled by fear and lawlessness. This article considers whether the breakdown of law and order owes more to the instability of the foundations of the rule of law than to current ethnic conflict. It considers whether the introduced system of law and government, which has been grafted from overseas roots into a somewhat hostile environment, can succeed. It examines some of the contradictions in the current legal system. The framework of government established by the Independence Constitution is briefly described and some of the incompatibilities with the indigenous order are highlighted. The article then considers whether democratic government and respect for the rule of law are, and have always been, illusory, by reference to case examples, which could be seen as portents of the current conflict.
One year on:
Australia's legal response to September 11
by George Williams
The law, and the notion that it
should be strengthened against terrorist activity, has played a prominent role
around the world in responses and reactions to September 11. This has been equally
true in Australia where the federal parliament has considered new anti-terrorism
laws. While Australia needs a national legislative response to terrorism, any
new laws must strike a balance between defence and national security, and important
public values and fundamental human rights. We must not pass laws that damage
the same democratic freedoms we are seeking to protect from terrorism. This
article examines the Security Legislation Amendment (Terrorism) Bill 2002, which
has been enacted by parliament, but only after being substantially amended to
meet a number of objections, and the ASIO Legislation Amendment (Terrorism)
Bill 2002, which has yet to be passed. The article examines whether the government's
legal response to September 11 has achieved the right balance.
ASIO and the
rule of law
by Joo Cheong Tham
The 'war on terrorism' as waged in Australia has placed the Australian Security Intelligence Organisation (ASIO) at the forefront of this offensive. For instance, the recent 'khaki' budget increased ASIO's annual budget by nearly one third. Further, the most controversial of the anti-terrorism laws is that proposing to confer on ASIO powers to detain without trial or charge.
Given the importance of ASIO in the 'war on terrorism', a critical question is this: assuming the continued existence of ASIO, how can its character and operations be reformed to be more compatible with progressive principles? This article will be addressing a narrow aspect of this broader question, that is, how can ASIO be reformed to be more compatible with the rule of law. This is done largely with the aim of opening up lines of inquiry.
The article firstly canvasses whether
the rule of law should be considered a progressive principle. After concluding
that a measured view of the rule of law has a place among progressive principles,
the article embarks on a preliminary discussion of the relationship between
ASIO and the rule of law. The key thesis of this section is that the secrecy
that cloaks ASIO's operations means that ASIO is always to some extent outside
the rule of law. Hence, from the perspective of the rule of law, ASIO's mandate
and powers should be restricted to what is clearly justifiable. The following
section then considers how the rule of law can apply to ASIO's discretionary
powers. Two key areas of reform are briefly discussed, namely, the reduction
of ASIO's discretion in relation to the interpretation of its mandate and the
structuring of ASIO's discretionary powers with reference to human rights considerations.
Refugee
determination processes - a view across the Tasman
by Dana Krause and Isabel Knott
The article compares the refugee determination processes of New Zealand and Australia, highlighting the higher level of compliance with international human rights standards demonstrated by New Zealand in its approach to asylum seekers and refugees. However, in light of recent changes to law and policy, the article concludes that it is not yet clear whether New Zealand's legal framework will be able to withstand increased people flows and current political pressures - namely the perception that global terrorist activities are intensifying and the attitude of its neighbour, Australia, to asylum seekers.
Implementing
women's and children's rights: The case of domestic violence in Samoa
by Penny Martin
The author explores the issues relating to the implementation of women's and children's human rights to freedom from domestic violence, with particular reference to the situation in Samoa. She discusses the relevant international instruments and their application in a Pacific island culture which is also a developing country. In putting forward a range of implementation strategies, she argues that human rights need to be locally focused and implemented in a sustainable manner, with full participation of civil society and non-governmental organisations.
Controlling
the national interest through migration
by Jonathan Faulkner
Migration law is used by the government
to promote its conception of Australian society. The government believes that
the national interest, and Australian society, is best served if the government
wields primary control over migration law. To this end, the government seeks
to exclude courts, the international community, and immigrants themselves from
eroding its control. In the process, it compromises the conception of Australian
society it seeks to promote.
East
Timor: mass jailbreak reveals flaws in East Timor's judicial system
Hannah McCaughey
The author worked as a lawyer in East Timor following independence and she describes her first hand experience of the obstacles facing the administration of justice in East Timor. The brief begins with a description of a jailbreak which was not a break for freedom but a protest about long periods of pre-trial detention and other abuses suffered under the penal system. It goes on to discuss three key areas in which there are significant problems: training, resources and the legal framework.
Asylum
Seekers: a taste of freedom from limbo in Woomera
Natalie Bugalski
This brief summarises the background
to the case of Al Masri v Minister for Immigration and Multicultural and Indigenous
Affairs [2002] FCA 1009.
Prisons:
The politics of punishment
Sean O'Toole
In the past decade there has been a hardening of law and order policy in most industrialised countries around the world. Because prison is still regarded as the ultimate sanction for law breakers, increases in prison populations around the world have been the common outcome. This article poses the question about the validity of law and order policy in crime prevention, examines the negative impact of prison on offending behaviour and suggests the answer to crime may rest with a re-examination of our fundamental social welfare systems.
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