PIAC Bulletin Journal of the Public Interest Advocacy Centre May29 2009 EWCAP Conference Mark Ludbrooke, Senior Policy Officer, Energy + Water Consumers’ Advocacy Program As debate over the efficacy of the Australian Government’s Carbon Pollution Reduction Scheme (CPRS) intensifies, seventy delegates recently attended the EWCAP conference, ‘Carbon & Consumers’, to explore how disadvantaged consumers are likely EWCAP Conference ...... 1 to cope with and respond to the introduction of an Emissions PIAC’s Newest Initiative ...... 2 Trading Scheme (ETS). Cut off II launch ...... 4 Mental health advocacy forum ...... 5 The conference began with an Canberra and Centre for Policy Making human rights ‘real’ in mental acknowledgement that the CPRS Development concurred that many health ...... 6 is designed to increase the price households are unable to make Restoring Identity relaunched ...... 8 of carbon intensive goods and investments that allow them to services and that consumers reduce their energy consumption. Stolen wages update ...... 9 are supposed to respond to this Poor access to information about Profile - Vavaa Mawuli & Mark Holden .....10 price signal by reducing their energy prices and consumption Litigation update ...... 11 consumption. Robin Banks, levels, the propensity to keep old HPLS Solicitor Advocate: ensuring effective Chief Executive Officer of PIAC and inefficient appliances because representation ...... 12 and conference MC, expressed they continue to function, and concern that some consumers will the preference for immediate Street Care: giving homeless people experience difficulty responding savings over future benefits, each a voice ...... 14 to these price hikes and may be hamper consumer responses to Fines reforms update ...... 14 at risk of energy hardship and price signals. Professor McAuley PIAC promoting human rights disconnection. proposed that the Government conversations ...... 15 could overcome such barriers by Secrets, Spooks and FOI - National Security Keynote speaker Professor Ian disseminating detailed information and Public Interest ...... 16 McAuley from the University of and establishing norms of edited by: Jane King, Mark Warren and Robin Banks design: Site Specific Pty Ltd layout: Karen Kwok production: Thomson Reuters www.thomsonreuters.com.au copyright: PIAC May 2009 ISSN: 1039-9070 ABN: 77 002 773 524

Public Interest Advocacy Centre Ltd Level 9, 299 Elizabeth St Sydney NSW 2000 DX 643 Sydney Phone: 61 2 8898 6500 Fax: 61 2 8898 6555 www.piac.asn.au ‘Carbon and Consumers’ Conference (L to R) Mark Ludbrooke, Senior Policy produced by Officer, EWCAP; Professor Ian McAuley, University of Canberra; Joel Pringle, Policy Officer, EWCAP; Allan Asher, Director of the Foundation for Effective Markets and Governance; Robin Banks, CEO PIAC.

Continued p3 www.thomsonreuters.com.au PIAC Bulletin No 29 • May 2009 1 PIAC’s Newest Initiative Robin Banks, Chief Executive Officer Much has said in recent times of the need to ensure The Project received start-up funding in 2007 from Legal more effective service provision, including through co- Aid NSW to identify unmet legal and related needs ordination of different services, particularly in the area of of people with mental illness and develop and pilot community services and mental health. This reflects the approaches to responding to that need. In its first year, principles and philosophy underpinning the development the Project focussed on learning about what has worked of the community legal centre movement in Australia in in various other parts of the world and developing the 1970s, that it is not enough to simply respond to a relationships with a range of potential project partners. legal problem in isolation, to be effective services must also identify and seek to address both systemic issues Early in 2009, PIAC received news that the NSW Attorney impacting on the community more broadly, and other General, the Hon John Hatzistergos, through the NSW problems impacting on the individual’s ability to resolve Public Purpose Fund, had agreed to provide funding for legal and related issues. four specific pilot outreach projects all of which work on the model of bringing different services together to better meet As recently as 27 April 2009, the Sydney Morning Herald the needs of the client group. (See ‘Making human rights ran an opinion piece from Patrick McGorry, Professor of real in mental health’ on page 6 for more about the pilots). Youth Mental Health at the University of Melbourne on the need for better mental health care for young people. While the pilot projects cannot fill the gap left by the In his article, ‘Youth need better mental health care’, lack of specialist mental health services for particularly Professor McGorry observed: vulnerable communities, such as young people, we hope they can reduce the impact of the law and legal ‘By far the greatest burden for society flowing from processes on people whose lives are already complex and untreated mental disorders is social disability and often traumatic as a result of mental ill health. It is likely marginalisation from decades of suffering. Young adults that finding appropriate treatment and support services have the worst access to mental health care and, despite will be a key challenge as will finding appropriate legal links between offending behaviour, mental disorders services to assist where our services don’t have capacity. and substance abuse, there are virtually no specialised adolescent mental health services in Australia.’1 Capacity of services to respond to client needs and of clients to effectively use services has been identified in PIAC’s newest access to justice project—the Mental the project as a key focus and, as an adjunct to the pilots, Health Legal Services Project—seeks to respond in part to PIAC has developed and will be delivering two training concerns about the lack of early response and to improve courses. The first is a workshop for people with mental how people with mental illness are treated within the illness on how to deal with (pre-) legal problems and legal system by providing more holistic responses to legal to get the best out of visiting a lawyer. The second is a and related needs. workshop for legal and related service providers on how to work effectively with clients with mental illness. Continued p10

Matt Laffan The PIAC family was saddened by the unexpected death of DPP Solicitor, Disability Advocate and PIAC Director Matt Laffan earlier this year.

Matt was greatly respected for his courageous advocay skills, intellect and good humour. Tributes that followed his death spoke of Matt’s love for his family, the law and justice, rugby union and life in general.

PIAC Chair Shauna Jarrett said, ‘Matt brought an incredible mix of personal experience and knowledge of the law to his job as a Director. He will be greatly missed and our best wishes and thoughts go to his family.’

Matt is pictured here with former PIAC Director,The Hon Elizabeth Evatt AC, at last year’s AGM.

2 PIAC Bulletin No 29 • May 2009 Energy + Water Continued from p1 behaviour that encourage consumers organisations should integrate their carbon footprint, many other to act in the optimal manner, and by energy efficiency initiatives into their households lack the resources to do providing rebates for the replacement mainstream programs. Ms Peters so. Ms O’Halloran suggested that of inefficient appliances. also echoed Allan Asher’s view that low-income households must have organisations are trusted information the opportunity to improve their Professor McAuley also promoted the agencies that should be used to energy efficiency lest they become idea of a mandated conservation and support communities to become further marginalised as sustainable equity tariff with a minimum charge energy efficient. practices become emblematic of or free allocation of energy for basic ‘good citizenship’. usage and a higher charge for more Deb Pippen from the ACT Tenants’ discretionary consumption. Union reminded delegates that Having heard from various keynotes tenants lack the incentive and often and panelists about the likely Allan Asher, Director of the permission to invest in energy- impact of the CPRS, delegates then Foundation for Effective Markets efficiency initiatives because they adjourned to workshops to develop and Governance, then gave the don’t own the property to which ideas to assist consumers to respond second keynote address that focused improvements would be made. to rising energy prices. upon the experience of European Landlords also have limited motivation consumers following the introduction because they don’t see the economic Many delegates supported the and development of an emissions return from reduced energy bills. idea of employing government trading scheme (ETS). Mr Asher monopsony power to buy and then noted that the scheme increased Jenna Wood of Country Energy provide a quantum of free or low- the wholesale price of electricity by indicated that energy retailers and fixed-price energy to households. ten percent and added five to eight understand the impact of price Others suggested that community- percent to household energy bills. increases on households and work led energy generation and to assist customers experiencing purchasing should play a valuable In Europe, the experience was that difficulty to pay their bills. Ms Wood role in delivering affordable energy to energy companies raised their prices commended the Government for residential consumers. to incorporate the market value promising to compensate low- of the ETS even though they were income households for increased Delegates agreed that the given most of the permits. Mr Asher costs stemming from the CPRS but Government should roll out a warned that the European scheme expressed concern that support comprehensive energy audit had generated windfall gains for wasn’t directly linked to energy bills. scheme targeting low-income power generators but profits had not been invested in low-carbon, Karen Oakley from the NSW earners and funded through energy generation. He suggested Consumer Advisory Group - Mental CPRS revenue. A national that any profits from carbon trading Health added that rising energy body was proposed to oversee should be offset by mandatory costs mean many people with a local implementation through expenditure on social programmes mental illness will have to choose councils, energy retailers and and that government policies should between spending on energy or community organisations. be rolled out in collaboration with health services. Such financial not-for-profit organisations that have pressures create anxiety and stress There was also strong support for considerable experience working that exacerbate mental illness and additional funding for No Interest with communities. increase demand for health care. It Loans Schemes (NILS) and rebates was noted that many people living to assist households to replace Conference delegates then heard with a mental illness already incur inefficient appliances. from a panel of experts about the high electricity costs because they likely impact of CPRS-induced energy spend considerable time at home The introduction of financial price increases on their respective and that reliance on the Disability incentives and penalties to persuade constituencies. Support Pension means households landlords to improve the energy can’t afford the high upfront costs to efficiency of their properties was also Alison Peters of the Council of improve their energy efficiency. floated. So too, the idea of lobbying Social Service of NSW (NCOSS) the NSW Government to enhance the observed that the capacity of not- The final panelist, Maree O’Halloran BASIX building standards. for-profit organisations to support of the Welfare Rights Network, communities declined as energy observed that whilst high-income EWCAP is collating these and other bills escalated and suggested that households could afford to lower recommendations and will produce Continued p4

PIAC Bulletin No 29 • May 2009 3 Energy + Water

Cut off II launch Mark Ludbrooke, Senior Policy Officer, Energy + Water Consumers’ Advocacy Program

Performance statistics recently released by the Independent Pricing and Regulatory Tribunal (IPART) indicate that there are still over 18,000 residential electricity disconnections each year in NSW. PIAC recently launched a new report, Cut Off II: the experience of utility disconnections, that uncovers who is being disconnected in New South Wales and reveals their circumstances at the time of disconnection. It also highlights the inadequacy of the existing regulatory and policy framework in assisting people to both avoid disconnection and establish reconnection. Alarmingly, the report indicates that one in three customers reported no contact with their retailer in the period just prior to disconnection. Of those who did have contact with their retailer, one quarter said they weren’t offered a payment plan; energy or water vouchers; contact with a community organisation; access to Centrepay; or a hardship program. In addition, around half of those who were on a payment plan said it was unaffordable. In response to these findings, PIAC has developed a series of recommendations for action from both the NSW Government and energy retailers. For a Robin Banks (R), CEO PIAC, hands the Cut Off II report to copy of the report and recommendations contact Mark Clare Petre (L), the Energy & Water Ombudsman NSW. Ludbrooke on 02 8898 6518 or [email protected]

Continued from p3 a report of the conference findings to be presented to both the Federal and NSW Ministers for Environment. The proposals will also be developed and promoted in EWCAP submissions and advocacy work.

One of EWCAP’s primary objectives is to ensure that sustainability policies reflect the needs of low-income and other residential consumers. Whether Australia introduces an emissions trading scheme, carbon tax or some other carbon mitigation strategy, PIAC expects that the conference proceedings and advocacy to follow will assist in ensuring that low-income and other disadvantaged households are not adversely affected by climate change mitigation and that their amenity may be improved by initiatives that assist them to cope with rising energy prices.

EWCAP is funded by the NSW Department of Water and Energy to advocate in the interests of low-income and other residential consumers in the NSW energy and water markets. For more information contact Mark Ludbrooke on EWCAP celebrated its 10th Anniversary at the conference. 02 8898 6518 or [email protected] Cutting the cake are EWCAP Reference Group members, Cheryl Kelly (L) and Joyce Fu (R).

4 PIAC Bulletin No 29 • May 2009 Access to Justice

Mental health advocacy forum Amy McGowan, Project Officer, Mental Health Legal Services Project

The lack of independent mental presenting problems. For example, and diminished outcomes. What health (IMH) advocacy in NSW has in the area of accommodation, really matters is that advocates are been identified as a major issue for an IMH Advocate could consider able to refer people with mental people with mental illness in NSW. a range of options beyond what illness on or assist them to directly Without independent advocacy might usually be on offer. Thus, access, when required, appropriate people with mental illness are rather than a person being legal and other support. unable to access the most basic of all inappropriately discharged from protections: visibility. The need and hospital to a boarding house they 7. IMH advocacy should be freely potential for such advocacy was the might be placed in more suitable, available to all people with mental main theme of PIAC’s IMH Advocacy supported or independent illness: service exclusion criteria forum, held in January 2009. accommodation. often mean that people with mental illness can be excluded The purpose of the forum was to 4 Volunteer IMH advocacy programs from one necessary service or bring together a diverse group of need to be properly structured, another. It is important that IMH people with mental illness, past supported and supervised: past advocacy takes account of people and present advocates and other and current experience in running with mental illness in hospital, in people with a commitment to human such programs has shown that the community and in correctional rights in mental health, and those volunteers make good, even facilities, in both metropolitan with expertise in advocacy program outstanding, IMH Advocates. The and rural, remote and regional development and delivery. Several sustainability of any IMH advocacy areas of NSW. IMH advocacy also key themes emerged from the forum, program, moreover, rested upon needs to take account of diversity including: how well the program is organised, amongst people with mental the type and frequency of training illness, including Indigenous 1. IMH Advocates need to be support provided to advocates as status, homosexuality, non-English appropriately skilled and trained: well as the professional supervision speaking background or other advocates need to have a sound they can access. cultural variables. working knowledge of the law as it applies to mental health 5. IMH advocacy would work 8. IMH advocacy should uphold the specifically, as well as more best if delivered as part of a human rights principles that are broadly. holistic service delivery model: enshrined in the Convention on the participants suggested that Rights of Persons with Disabilities 2. Lived experience of mental illness wherever possible IMH advocacy (CPRD): the intent of the CPRD is is an important quality for IMH should be embedded in or to maximise individual autonomy Advocates: while it was agreed connected to other health, while eliminating social exclusion. that the most important skill for community and legal services. This It calls for all people who are an IMH Advocate is the ability to is because people with mental living with a disability to be steadfastly represent the wishes illness face immense obstacles granted equal access to the health, of the people with mental illness, when forced to travel from one community and legal services it was also agreed that lived service to another. A ‘one-stop- that they require to realise their experience of mental illness could shop’ approach would also make full protential and participation in further enhance the capabilities of the work of the IMH Advocate the life of the community. To that an advocate. much easier and more effective. end, IMH advocacy is a form of supported decision-making, which 3. The independence of the IMH 6. IMH advocacy should at once starts with the premise that people Advocate assists their primary role address the legal and non-legal with mental illness should, to the of enabling people with mental issues of people with mental greatest extent possible, retain illness: this is not merely with illness: one participant stated that agency over their own lives. regard to the obvious capacity ‘we can’t have 17 different sorts to act ‘without fear or favour’, but of advocates for different parts of Further work will be done on possible also to be able to step outside of a persons’s life’. The demarcation models for IMH in NSW. For further the people with mental illness’s between legal and non-legal information about the forum, please usual context and think about support serves no useful purpose contact the Mental Health Legal creative, alternative solutions to and in fact can lead to confusion Services Project on 02 8898 6539.

PIAC Bulletin No 29 • May 2009 5 Access to Justice

Making human rights ‘real’ in mental health Stephen Kilkeary, Co-ordinator, Mental Health Legal Service Project

In March 2009, PIAC received the individual outcomes and systemic a service might be devised to best good news from the Public Purpose legal and policy issues. meet the legal, health and welfare Fund that it had been successful in service needs of Indigenous men. its funding submission for four pilot The pilot projects and training The result was a pilot project that projects and two training modules modules were developed in large combines the trauma recovery within the Mental Health Legal measure as a response to the elements of that program with a Services Project. Those pilot projects expressed needs of people with dedicated, Indigenous Men’s Access are: mental illness. to Justice worker. That worker will support Indigenous men through • a social work support service at Background research, such as that the course of the Gamarada Men’s the Shopfront Youth Legal Centre conducted by the Law and Justice Healing Program and where (Shopfront) in Darlinghurst; Foundation of New South Wales, appropriate, connect those men to • a legal support service at the and extensive field research by the relevant services. Multicultural Disability Advocacy Mental Health Legal Services Project, Association (MDAA) in Harris confirmed that people with mental It is anticipated that an important Park; illness face multiple barriers to consequence of the pilot projects • an Indigenous Men’s Access to accessing justice.1 and training modules will be to help Justice (IMAJ) Worker service at diminish the significant problem of Redfern; and These barriers cover a vast range stigma against people with mental • a legal support service at the of subjective, interpersonal, social, illness. Historically and to the present, NSW Service for the Treatment economic, political and ideological stigma arguably remains the greatest and Rehabilitation of Torture and factors. For example, it is a sad reality obstacle that people with mental Trauma Survivors (STARTTS) in that people with mental illness are illness face, insidiously enmeshed in Carramar. more likely than members of the cultural practices that lead to gross community as a whole to be: discrimination, harassment, violence The training modules are: and social exclusion.3 • the victims of crime; • ‘How to Sort Out Your (Pre)-Legal • living in poverty; The research evidence suggests Problems’, for consumers and • imprisoned; and/ or that one of the best ways to combat their advocates; and • homeless.2 stigma is to work directly with people • ‘How to Work With Consumers’, with mental illness and learn from for lawyers and other advocates. By combining hard evidence with their experiences.4 All four of the listening to the lived experience of pilot projects and the two training That means for the first time in NSW consumers, the pilot projects and modules are built as templates of and for a period of two years, a co- training modules will hopefully ‘consumer-oriented ‘ practice. For ordinated program of innovative realise positive individual outcomes example, the training module, service models will work towards while also contributing to ‘big picture’ ‘How to Work With Consumers’, improving access to justice for people change. In those specific ways, the for lawyers and other advocates, who are mentally ill. Indigenous men, co-ordinated program of innovative features a session where people homeless young people, refugees, service models will indeed make with mental illness talk about their asylum seekers and people from non- human rights ‘real’ in mental health. own experiences working with legal, English speaking backgrounds will all health and welfare professionals. directly benefit. One pilot project, to employ an Indigenous Men’s Access to Justice The next stage in the development Moreover, experiential, problem- worker, exemplifies the grassroots of the pilot projects and training solving training will be made approach used to develop the pilot modules is to recruit staff and to available to consumers, lawyers and projects and training modules. Over produce a training calendar. It is other advocates. From the outset, the a period of several months, Mental expected that the new workers will pilot projects and training modules Health Legal Services Project staff commence in late May or early June will be overlaid by a comprehensive, met on a regular basis with leaders 2009. The training will commence in action-research evaluation strategy, from the Gamarada Men’s Healing May 2009. to identify and quantify both Program in Redfern, to discuss how Continued p7 6 PIAC Bulletin No 29 • May 2009 Continued from p6

Gamarada Men’s Healing Program in Redfern.

This is an exciting time for PIAC, Footnotes for the project partners and for 1 M Karras, E McCarron, A Gray & 3 T Lincoln, E Arens, C Berger, W Rief, ‘Can human rights in mental health. S Ardasinski, On the Edge of Justice: The Antistigma Campaigns Be Improved? A Test Legal Needs of People with a Mental Illness of the Impact of Biogenetic vs. Psychosocial In light of Australia’s ratification (2006). Causal Explanations on Implicit and Explicit of the Convention on the Rights 2 J Choe, L Teplin, K Abram, ‘Perpetration of Attitudes to Schizophrenia’ (2008) 34(5) of Persons with Disabilities in July Violence, Violent Victimization, and Severe Schizophrenia Bulletin, 984. 2008, the pilot projects and training Mental Illness: Balancing Public Health 4 Corrigan & Penn 1999 cited in G Boysen, modules reflect that Convention’s Concerns’, (2008) 59 Psychiatric Services, & D Vogel, ‘Education and Mental Health 158-161; K Carter, T Blakely, S Collings, Stigma: The Effects of Attribution, Biased principles of individual autonomy, F Gunasekara, & K Richardson, ‘What is the Assimilation, and Attitude Polarization’ self-determination and the right to Association Between Wealth and Mental (2008) 27(5) Journal of Social and Clinical full participation in the life of the Health?’ (2009) 63 Journal of Epidemiology Psychology 446. community. Access to justice, after and Community Health 222-225; E Perese, all, should not be limited to some ‘Stigma, Poverty, and Victimization: Roadblocks to Recovery for Individuals with but should be freely available to all Severe Mental Illness’ (2007)13 Journal of citizens. the American Psychiatric Nurses Association 286 & 288-290.

HPLS at State Parliament The Homeless Persons’ Legal Service was invited by the NSW Attorney General, The Hon John Hatzistergos MLC, to observe the introduction of legislation into the Legislative Assembly that changes the way homeless people can deal with outstanding fines.

Pictured at the media conference at State Parliament (L to R) Father Chris Riley, Youth off the Streets; Julie Hourigan Ruse, Co-ordinator, HPLS; The Hon John Hatzistergos MLC, NSW Attorney General; Chris Hartley, Policy Officer, HPLS; Robin Banks, CEO, PIAC; and Major Marina Randall, Salvation Army.

PIAC Bulletin No 29 • May 2009 7 Indigenous Justice

Restoring Identity relaunched Vavaa Mawuli, Senior Solicitor, Indigenous Justice Program*

This year PIAC will release a revised edition of its ground-breaking report, Restoring Identity. First published in 2002, Restoring Identity proposed a framework for a national Stolen Generations Reparations Tribunal.

The proposals in Restoring Identity • measures of restitution; Developments in the Stolen were developed to address the • measures of rehabilitation; and Generations Reparations 2 failures of governments and • monetary compensation. campaign churches to implement a reparations scheme for the Stolen Generations There have been a number of notable as recommended by the National PIAC’s Proposal developments in the campaign Inquiry into the Separation of PIAC’s reparations tribunal for reparations for the Stolen Aboriginal and Torres Strait Islander proposal provides an alternative to Generations since Restoring Identity Children from Their Families, the litigation for members of the Stolen was published in 2002. Bringing them home Report.1 Generations who seek redress for harm and injustices suffered as state The apology by Prime Minister, The function of the proposed tribunal wards. Legal claims for compensation The Hon Kevin Rudd, to the Stolen is to provide a comprehensive have proven to be difficult, lengthy Generations in 2008 marked reparations package to Indigenous and costly and have produced very a significant step forward in people and communities to few successful outcomes for the acknowledging the experiences of acknowledge and address the harms Stolen Generations. The considerable members of the Stolen Generations. caused by the forcible removal of passage of time and difficulties with Indigenous children from their families accessing records either because The Tasmanian, Queensland and under past government policies. they are lost, destroyed or were Western Australian Governments inadequately maintained are just established redress schemes The National Inquiry, conducted by some of the issues that present designed to provide ex gratia the (then) Human Rights and Equal challenges to Stolen Generations payments to people who experienced Opportunity Commission (HREOC) litigants. Further, litigation outcomes harm in state care. in 1995 and 1996, investigated the may fail to adequately address the past laws and policies that led to complexities of the issues facing The New South Wales and the removal of Indigenous children Stolen Generations. Queensland Governments have by compulsion, duress and undue implemented Stolen Wages schemes influence. It heard accounts from PIAC’s reparations tribunal proposal to repay wages, benefits and other members of the Stolen Generations was widely supported during a entitlements that were withheld affected by the laws and policies Senate Inquiry into the Stolen from Aboriginal and Torres Strait about their experiences and Generations in 2000. In June 2008, Islander people under legislative documented many of these stories in the Senate Standing Committee and other arrangements and never its report, Bringing them home. on Legal and Constitutional Affairs repaid: a practice that widely affected tabled the report of its Inquiry into members of the Stolen Generations. The National Inquiry concluded that the Stolen Generation Compensation the policies were in breach of the Bill. 3 The formal support by the Australian international prohibition on racial Government for the United Nations discrimination and amounted to a PIAC submitted to the Committee Declaration on the Rights of ‘gross violation of human rights’. that it should endorse the reparations Indigenous People was symbolic in tribunal model as it did in its 2000 improving Australia’s relationship HREOC recommended a reparations inquiry.4 The Committee did not with Australia’s Aboriginal and Torres package for the Stolen Generations recommend the establishment of Strait Islander people. based on international human rights a reparations tribunal but instead principles consisting of: proposed the establishment of a These developments are a positive National Indigenous Healing Fund. step forward in the ongoing • acknowledgement and apology; The Healing Fund will be established campaign for reparations for the • guarantees against repetition; later this year. Stolen Generations. However, PIAC Continued p9 8 PIAC Bulletin No 29 • May 2009 Continued from p8 hopes that by releasing the revised International approaches to providing provides for the establishment of a edition of Restoring Identity, all reparations as well as drawing on reparations tribunal.5 governments, churches and other PIAC’s own experiences representing stakeholders will be encouraged to members of the Stolen Generations. The draft Bill provides a framework revisit the reparations tribunal model for the functions and powers of the and consider a collective approach Restoring Identity recommends a proposed tribunal and outlines the that is culturally appropriate and reparations tribunal that: claim process and procedures. The adequately acknowledges and revised edition of Restoring Identity addresses the experiences of the • Provides a forum for Indigenous will be launched later this year. Stolen Generations. people affected by forcible removal policies to tell their story in a non-adversarial process, have The Report their experience documented Footnotes Restoring Identity was the final report and acknowledged and be 1 Australian Human Rights Commission, of the Moving Forward: Achieving offered an apology. Bringing them home: Report of the National Inquiry into the Separation of Aboriginal Reparations national consultation • Provides reparations and Torres Strait Islander Children from Their project conducted in 2002, which measures, including monetary Families (1997). sought the opinions of Aboriginal compensation, in response to 2 Ibid, Appendix 9, Recommendations. and Torres Strait Islander people applications through appropriate 3 Senate Standing Committee on Legal and about PIAC’s proposal for a Stolen reparations packages. Constitutional Affairs, Inquiry into the Stolen Generation Compensation Bill 2008 Generations reparations tribunal. • Makes recommendations about (2008). government and church activities 4 PIAC, Submission to the Senate Legal and The project was carried out with that affect contemporary Constitutional Affairs Committee Inquiry the assistance of the HREOC, the Indigenous child separations into the Stolen Generations Compensation Aboriginal and Torres Strait Islander and measures that might be Bill (2008). 5 PIAC acknowledges the invaluable support Commission, the National Sorry Day implemented to heal past wrongs. of and work done by Associate Professor Committee and Stolen Generations Durbach, and the Partners and staff of groups in the Northern Territory. Included in the revised edition of Allens Arthur Robinson who worked with It documents the outcomes of Restoring Identity is a draft Stolen PIAC on the Bill. the consultations and examines Generations Reparations Bill, which

Stolen wages update Vavaa Mawuli, Senior Solicitor, Indigenous Justice Program* The registration deadline for potential claimants to make To contact the NSW Aboriginal Trust Fund Repayment a Stolen Wages claim is the end of May 2009. Scheme, call 1800 765 889.

The repayment of withheld wages, benefits, pensions For more information about PIAC’s Indigenous Justice and other entitlements to members of the Indigenous Program (IJP), contact IJP Senior Solicitor, Vavaa Mawuli, community is a very important issue and currently on 02 8898 6527 or [email protected]. repayments are being made in NSW through the Aboriginal Trust Fund Repayment Scheme.

Unfortunately, the Repayment Scheme is not widely * PIAC’s Indigenous Justice Program was advertised and so PIAC is asking you to let people know established in 2001 with funding support about the registration deadline. from law firm, Allens Arthur Robinson. This continued funding enables PIAC to employ The Scheme has recently changed some of the key a full-time solicitor in the Indigenous Justice elements of its operation. If you or another family Program. member has made a claim in relation to the trust fund of a deceased relative, only the person who has made the claim will be eligible for payment. The spouse, all living children, or all living grandchildren may be eligible under the Scheme and should get in touch with the Scheme to register.

PIAC Bulletin No 29 • May 2009 9 Indigenous Justice

Profile - Vavaa Mawuli & Mark Holden Vavaa Mawuli, Senior Solicitor & Mark Holden, Solicitor, Indigenous Justice Program I remained with the ALS for the next Mark Holden few years, where as a solicitor I advocated for a range of Indigenous I first became acquainted with PIAC people across New South Wales, when I applied for an internship, including parents whose children had through the Aurora Project. I was so been removed by the State, and also intrigued with how PIAC is different those charged with criminal offences. from other community legal centres in seeking change in policies and After two years in Sydney, I relocated helping promote the public interest again, and turned my focus to the for the good of prejudiced minorities. Indigenous people of the Top End of the Northern Territory. At the North As PIAC’s Indigenous Solicitor I feel Australian Aboriginal Justice Agency, a strong sense of empathy with our I devoted the next two years to clients as my family has been through working as a criminal law advocate many of the pains experienced by in the Darwin, Katherine, and them. This has included the loss of Nhulunbuy offices, and also as the trust funds owing or the breaking up manager of the Nhulunbuy office. of families by the Aborigines Welfare Vavaa Mawuli (L) and Mark Holden (R) Board. Vavaa Mawuli My work as an advocate for the Indigenous communities in New At the same time, I feel privileged I recently joined PIAC as the Senior South Wales and in the remote to hear the stories of those affected Solicitor in the Indigenous Justice regions of the Northern Territory by the policies. It has lead to some Program. I bring to the role over has exposed me to a broad range of revealing discoveries about life in four years of experience working public interest issues. the missions, the reserves and the as an advocate in Indigenous Legal infamous homes that has caused so Aid organisations in Sydney and the PIAC’s emphasis on improving much pain. Northern Territory. access to justice and achieving social justice for Indigenous Australians is It is this empathy and understanding After completing a law degree at what drew me to the position. I am that makes me determined to Bond University in Queensland, I committed to continue working with address these issues and contribute moved to Sydney to undertake the Indigenous communities to achieve to the reconciliation between College of Law program, which social justice and advocate to right Indigenous Australians, the Federal included an internship at the past wrongs perpetrated against and State Governments and the Aboriginal Legal Service, Redfern. them. wider community.

Continued from p2

This work builds strongly on much of PIAC other current to both respond to individual legal needs, conduct and past work. It links in with two joint projects PIAC test case litigation and build the capacity of the client has with the Public Interest Law Clearing House: the community to limit, prevent and more actively deal with Homeless Persons’ Legal Service and the Children in legal problems themselves. Detention Advocacy Project. It also builds on PIAC’s recent and ongoing work on mental illness and prisons I am looking forward to learning from the pilots and and on its history of identifying unmet legal needs and developing with others better systems for supporting piloting responses to such needs. PIAC has, in that work, people with mental illness in the legal system. sought to ensure that it built models that approached problems in a proactive way: looking to use research and policy capacity to develop law reform proposals to limit Footnotes harms and respond to systemic issues; to ensure ongoing 1 Professor Patrick McGorry, ‘Young need better mental health care’, capacity to learn from the experiences of those for whom Sydney Morning Herald, (Sydney, 27 April 2009, 9). the services are designed; and to ensure there is capacity

10 PIAC Bulletin No 29 • May 2009 Access to Justice

Litigation update Alexis Goodstone, Principal Solicitor Killeen v NSW Department of The complaint concerns comments PIAC’s submitted to the Coroner Transport made by former Victorian Premier, that the evidence before the Inquiry The Hon Jeff Kennett, to a News pointed to a systemic failure by the PIAC is acting for Mr Killeen, a Limited journalist in July 2008, which health system to meet the needs of disability advocate and wheelchair were published in SX Weekly, The a chronically ill patient, by failing to user, in his disability discrimination Herald Sun, The Daily Telegraph, The admit him or to provide alternative complaint against the NSW Australian and on the website ‘news. care. Department of Transport for licensing com.au’. In the articles, Mr Kennett wheelchair accessible taxis that supported the decision of Victoria’s PIAC drew on the recommendations he alleges do not comply with the Bonnie Doon Football Club to sack its of the NSW Mental Health Sentinel Disability Standards for Accessible trainer, Mr Ken Campagnolo, when Events Review Committee Report, Public Transport 2002 (Cth) (Public it was discovered he was bisexual. Tracking Tragedy, and called on the Transport Standards). Complaints Mr Kennett said, among other things: Coroner to make recommendations have also been lodged against two “[The club] ran an unnecessary risk... to Government to ensure that, in the companies that convert taxis to It’s the same if you have a paedophile future, people who are chronically be wheelchair accessible and two there as a masseur, right?” mentally ill and are a suicide risk, are companies that own and operate provided with appropriate care and wheelchair accessible taxis. The Board initially raised the question treatment, in a protective and secure of whether it had jurisdiction to deal environment. The Coroner is yet to From 2006, Mr Killeen found that he with the complaint as Mr Kennett hand down the Inquest Report. was not able to travel in a significant resides in Victoria. However, PIAC number of wheelchair accessible taxis argued that these comments were Other casework because there was inadequate space published in a national publication in the vehicles to accommodate him and therefore the NSW Board The Indigenous Justice Project using his wheelchair. This significantly had jurisdiction to entertain the continues to act for clients making reduces the number of taxis that Mr complaint. The complaint has now stolen wages claims. It is also Killeen and many other wheelchair been accepted and PIAC is awaiting a investigating a number of claims by users can access and causes delays response from Mr Kennett. Indigenous minors who appear to when using taxi services. On many have been unlawfully detained by occasions, Mr Killeen has booked a Coronial Inquiry into the police and providing preliminary wheelchair accessible taxi only to advice to a number of members discover that he cannot fit in it and has death of Jason Szczepek of the stolen generations who had to turn the taxi away and make PIAC represented Ms Lewis at the allege sexual and physical abuse another booking. At times this has Coronial Inquiry into the death whilst under the care of the (then) meant that he has had to wait for up to of her son, Jason Szczepek, who Department of Community Services. 50 minutes for a taxi and has resulted committed suicide on 29 May 2006. in him missing medical appointments The Coronial Inquiry was held in late PIAC’s defamation case against and other engagements. 2008. Prior to his death, Mr Szczepek Nationwide News Pty Ltd on behalf was discharged against his wishes of Romzi Ali has been finalised, with PIAC and Mr Killeen met with from Sutherland Hospital’s psychiatric the High Court recently rejecting an representatives of the Department unit. He attempted to commit suicide application from Nationwide News for late last year in an attempt to resolve at least once and requested re- leave to appeal the decision of the NSW the matter. However, PIAC has admission. Despite his deteriorating Court of Appeal to award damages to now lodged a complaint with the mental condition, he was not re- Romzi Ali for defaming him in articles Australian Human Rights Commission, admitted but instead remained on published in The Australian in 2003. which is currently being investigated. Community Treatment Order. Nationwide News had alleged that Mr Ali was linked to terrorists. Burns v Kennett The Inquest heard evidence from mental health workers and PIAC greatfully ackowledges the pro In October 2008, PIAC lodged a Mr Szczepek’s treating psychiatrist. bono assistance provided by laywers vilification complaint on behalf of The Coroner adjourned the Inquest and barristers to PIAC’s clients and Mr Burns with the Anti-Discrimination for the parties to present written Allens Arthur Robinson for funding Board of NSW. submissions. for the Indigenous Justice Project.

PIAC Bulletin No 29 • May 2009 11 Access to Justice

HPLS Solicitor Advocate: ensuring effective representation Jeremy Rea, Solicitor Advocate, Homeless Persons’ Legal Service*

The position of Solicitor Advocate and their caseworkers, where the service is equally provided by Legal within the Homeless Persons’ Legal client is either residing or seeking Aid and Aboriginal Legal Services, Service (HPLS) commenced on assistance, such as Wayside Chapel, however the HPLS model provides 14 January 2008. The purpose of Edward Eagar Lodge and Matthew it on a more personalised basis and the Solicitor Advocate position is to Talbot Hostel. utilises extensively the assistance establish a dedicated point of contact and knowledge of caseworkers and for people who are homeless or at This liaison is critical in both obtaining outreach workers. risk of homelessness to access legal an understanding of the particular representation in minor criminal client, which can be greatly assisted In terms of representation in court matters. by the input of the caseworker, and in the Solicitor Advocate role follows ensuring when and where the client the normal pattern of representing The role was established to overcome needs to go for support. the client in Court either by way of some of the barriers homeless making submissions on sentence, people face accessing legal services, In many cases the first contact and bail or appeal and representing including: a lack of knowledge of knowledge of a particular client’s a client in a defended hearing by how to navigate the legal system; need for legal assistance is through way of presenting evidence, cross- the need for longer appointment the client’s caseworker. There examining and making submissions. times to obtain instructions; and the have been many occasions when The difference is that the client capacity to address multiple and the Solicitor Advocate has been has the same solicitor from start to complex inter-related legal and non- contacted by a caseworker about finish, which appears to result in legal issues, such as mental health or a client who needs on-the-spot greater client satisfaction and a more addiction issues. representation in court and the satisfactory outcome, as opposed only person that can give coherent to a situation where the client is The title was adopted from those used instructions is the caseworker. represented by a different solicitor at by organisations such as Legal Aid each court appearance. NSW and the Office of the Director of One major feature of the HPLS Public Prosecutions, where a hybrid Solicitor Advocate model is that it Because of the chaotic nature of life position was created for a senior is proactive. The models adopted for many homeless people and the solicitor who would fulfil the role of by Legal Aid NSW and Aboriginal constant daily battle to find safe both solicitor and barrister in short Legal Services are in the traditional accommodation, a meal or attend trials and committal proceedings. mould of the client coming to the a clinic to get their medication, organisation to seek assistance and remembering to attend court is often providing the information as the case not the main priority for the Solicitor The role of Solicitor Advocate progresses to the particular lawyer Advocate’s clients. An important The Solicitor Advocate role as who has carriage of the matter. The aspect of working effectively with implemented by the HPLS, however, HPLS model, on the other hand, homeless clients is the constant is a unique role that is different to involves the Solicitor Advocate going personal contact to ensure they those at Legal Aid NSW. This is due to the client at either the HPLS host attend court. to the fact that the HPLS model, welfare agency or outreach centre while combining the traditional roles following referral either from one of The target client base for the Solicitor of solicitor and advocate, is a more the HPLS clinics, the host agency or Advocate has a deliberate focus proactive model. other homelessness services. on homeless people who cannot effectively access Legal Aid or the This can be seen in the breadth of It also involves the Solicitor Advocate duty solicitor at court. The clients of the tasks undertaken by the HPLS being able to represent a particular the Solicitor Advocate have complex Solicitor Advocate. The duties of the client on an urgent basis, either needs. As well as being homeless, Solicitor Advocate at HPLS include through contact from the client many clients must overcome the not only taking instructions from or, more often than not, through impact that mental illness or drug and the client, advising the client and referral from the HPLS host welfare alcohol addiction has on their ability representing the client in Court; agency as the client is often in to give clear instructions in a very they also include ensuring the client custody and cannot get ready access short interview in an unfamiliar and attends court and liaising with the to legal assistance. It is readily unfriendly environment immediately various HPLS host welfare agencies acknowledged that this type of before their matter is called.

12 PIAC Bulletin No 29 • May 2009 The HPLS Legal Clinics at the Downing Centre, on the 4th Floor. short matters. Any double listing of Often the client, despite prior hearings would be fatal, as once a The HPLS legal clinics are the main notification and reminders, will not hearing of a matter starts it can be way in which the client gains access turn up on time and in rarer cases expected to go all day. to the Solicitor Advocate and not attend at all. If the client does not representation in Court. attend, then it’s time to get on the Except where the matter proceeds to phone to see if they can be located, a defended hearing or is a complex Solicitors from Public Interest Law calling the various welfare agencies sentencing matter, most Court Clearing House (PILCH) members staff that they may be visiting: be it the matters can be finalised by lunchtime. the clinics. (This is done by members HPLS host agency, a drop-in centre, on a pro bono basis.) If a client comes a rehabilitation centre, methadone After Court I return to the office to to a clinic needing legal assistance clinic or a detoxification centre. prepare follow-up correspondence, with a minor criminal matter they are arrange for medical appointments referred to the Solicitor Advocate. Sometimes the client does not turn for clients in cases where medical up because they have been taken evidence is required, have A day in the life of the Solicitor into custody. This is normally easily conferences with clients and Advocate established by ringing Central Local witnesses, liaise with the host welfare Court, which deals with the majority agencies or other organisations and A typical day for me, as the Solicitor of Sydney metropolitan custodies. undertake research that is essential Advocate, starts by coming into the Other times, clients have been in preparing for each matter. In office in Elizabeth Street, Sydney, scheduled to a psychiatric institution order to get a matter ready for Court before setting off for court. I check either by the Police or the Local the Solicitor Advocate must set e-mails and telephone messages and Mental Health Care team. aside uninterrupted time to review do what is necessary on those that the Police brief, prepare cross- require urgent attention. I generally Assuming that all goes to plan and examination and draft submissions. leave other e-mails and messages to the client gets to court, the case will This challenges even the best time be dealt with when the day’s court be in one of three lists: if the client management practices with all of work is over. has only recently been charged, the the other demands on my time in a case will be in the Registrar’s list to normal day as the Solicitor Advocate. As preparation and consulting with be adjourned for either hearing or the client has invariably occurred sentence; if the matter is ready for To date the model has proven to be before the Court appearance, little sentencing, it will be in the list before very effective. It is a model that can in terms of last minute preparation the Duty Magistrate; if the matter is and should be adopted by others needs to be done unless the matter is for hearing, unless it is estimated to as it enables the client to be better an urgent on-the-spot representation take more than a day, it will be in the integrated into the legal process or representation of a client in hearing list and is allocated to a Court rather than being just an isolated custody who I need to meet, get when one becomes available. object of the exercise. The model instructions from and advise before very much responds to the particular their court appearance. Often, I will have more than one impacts of homelessness on clients matter on each day and sometimes with minor criminal matters, being Before leaving the office for court, I in different courts. There have been flexible in relation to client contact let other staff know when I’m likely occasions when I’ve been required to and undertaking extensive outreach to be back in the office. If the court is be in Balmain, the Downing Centre and case management to ensure the in the suburbs then this is done the and Ryde Local Courts on the same best outcomes for the client. evening before. day. This involves a degree of time juggling done in the knowledge that Attendance at court normally means court process and lists are invariably * The Homeless Persons’ Legal Service is attending the Downing Centre Local slow, so that a matter designated to a joint initiative of the Public Interest Court or Central Local Court, both Advocacy Centre and the Public Interest commence at 9:30 am may not be Law Clearing House. PIAC receives funding of which are close to PIAC’s office. I called on by the Court until 1:00 pm from the NSW Attorney General, The Hon usually arrange to meet the client at or after. Listing of numerous matters John Hatzistergos MLC, through the NSW Court, either outside or, if the matter is only works with sentence and other Public Purpose Fund to operate the Service.

PIAC Bulletin No 29 • May 2009 13 Access to Justice

Street Care: giving homeless people a voice Julie Hourigan Ruse, Co-ordinator, Homeless Persons’ Legal Service

PIAC has been successful in obtaining funding under the In March, the office of the NSW Premier, The Hon Nathan City of Sydney’s 2008/2009 Community Services Grants Rees MP, invited Street Care to attend NSW Parliament Program to establish an advocacy and advisory group to House for a tour and to watch Question Time in the work with the Homeless Persons’ Legal Service (HPLS). The Legislative Assembly. The Minister for Housing, David group is made up of people who are homeless, formerly Borger MP, invited Street Care to his Parliamentary office homeless or at risk of homelessness. where he listened to concerns identified by members based on their personal experiences of homelessness. In February, the group, who have decided to call themselves ‘Street Care’, met for the first time. Street Care An exciting event that demonstrates the importance of has eight foundation members and is representative of a group like Street Care was the invitation for one of the people who are homeless, formerly homeless, exiting members to speak at a conference organised jointly by prison, women escaping domestic violence, youth and the City of Sydney and Mercy Foundation. Street Care Indigenous people. member Sarah Bartley spoke to, and took questions from, a gathering of 150 people who work in the homeless As part of PIAC’s and HPLS’s commitment to the sector, both government and non-government, on development of Street Care members, a half-day her experience of what is necessary to make exiting training session on what is means to be an advocate was homelessness permanent. conducted before Street Care’s first official meeting. Street Care will publish its first monthly newsletter, Street One of the aims of Street Care is to be a central point Cred, in April. of contact to facilitate appropriate and meaningful consultation with homeless people on issues affecting Enquiries about working with Street Care should be them, and ensuring homeless people have a strong voice directed by e-mail to: [email protected]. in the community.

Fines reforms update Julie Hourigan Ruse, Co-ordinator, Homeless Persons’ Legal Service

In December 2008, two years after the release of the A very important difference between a WDO and a court- Homeless Persons’ Legal Service (HPLS) report, Not such a ordered Community Service Order is that there is no Fine Thing! Options for Reform of the Management of Fines negative consequence that attaches to non-completion Matters in NSW, the NSW Government made a number or partial completion of the WDO. Because there is no of amendments to the Fines Act 1996 (NSW) that reflect concept of failure to complete a WDO, the worse outcome many of the recommendations made in the report and for an individual is that their outstanding fines debt those raised by HPLS in subsequent meetings with the remains unpaid. An individual will receive full credit for NSW Attorney General’s Department. every hour spent in undertaking a WDO; so, if a person completes one quarter of their WDO obligation their fines HPLS believes these reforms to the on-the-spot fines debt will be reduced by 25% and only the remaining 75% system in NSW will make a significant difference remains outstanding. Further, all enforcement sanctions, for people who are homeless and others who face like cancellation of a driver’s licence, are lifted once a disadvantage. The most radical reform will enable an WDO application has been approved. individual who has a mental illness, intellectual disability or cognitive impairment; is suffering from acute economic HPLS is currently working with the NSW Attorney hardship; or who is homeless, to apply to the State Debt General’s Department and a number of other government Recovery Office to participate in a two-year trial program agencies and non-government organisations to write the of Work and Development Orders (WDO) that allows guidelines that underpin the operation of the two-year them to ‘pay off’ their fines in ways other than money, trial of Work and Development Orders. HPLS expects the for example, through volunteer work with an approved trial to commence on 1 July 2009. organisation, participation in approved medical or mental health treatment programs or participation in education and/or vocational courses.

14 PIAC Bulletin No 29 • May 2009 Human Rights

PIAC promoting human rights conversations Brenda Bailey, Senior Policy Officer & Lizzie Simpson, Solicitor

A homeless persons’ theatre group has been one way PIAC has been gathering stories and viewpoints on whether Australia needs better human rights protections. The Federal Government’s a diverse range of people and into submissions. This work focused human rights consultation communities across NSW. PIAC on young people in the outer western provided groups with training, suburbs of Sydney and the inner In December 2008, the Federal consultation forums, and workshops west. It has been a challenge to help Government announced that it was on preparing submissions. workers on the front line understand holding a national consultation the link between human rights and to give Australians a chance to The importance of such engagement their everyday activities of helping have their say about human rights for PIAC was to encourage people young people with housing, social protection in Australia. to make submissions to the national security and juvenile justice issues. consultation and to support access Working through examples and The key questions that the to the process to those members of helping draw their links has been consultation has asked people to talk the community who otherwise would an effective way of making this and provide their views about are: have difficulty making a contribution. connection. It is this basic community education that is needed in order 1. Which human rights (including In the five months leading up to for people to engage in this debate corresponding responsibilities) the submission closing date, PIAC and has been the approach PIAC has should be protected and supported and participated in taken throughout its work supporting promoted? consultations with a range of groups people to participate. 2. Are these human rights currently including people experiencing sufficiently protected and homelessness, women (in partnership promoted? with the University of Technology, Homelessness and Human 3. How could Australia better Sydney) and older people with the Rights – consultations and protect and promote human assistance of the Council on the public forum rights? Ageing (NSW). Theatre can act as a rehearsal ground for the outside world, Submissions to the consultation close There was also a special program giving oppressed people skills to on 15 June 2009. supporting youth workers and their deconstruct, re-think and articulate organisations to get ideas from young their point of view and generally The consultation has been an people that could be incorporated communicate for themselves. opportunity for PIAC to reach Augusto Boal

In early May 2009, PIAC conducted a series of consultation events in homeless shelters around inner- city Sydney focusing on homeless peoples’ stories and ideas about human rights. In order to ensure that these consultations were conducted in an entertaining and accessible way, they were conducted jointly with Milk Crate Theatre.

Milk Crate Theatre is a joint project between the Darlinghurst Theatre Company and Wesley Mission’s Edward Eagar Lodge that aims to create challenging and inspiring 2008 Human Rights Awards: (L to R) The Hon Catherine Branson QC, President, theatre with, by and for the homeless Australian Human Rights Commission; The Hon Robert McClelland, Federal and disadvantaged community. Attorney-General and Robin Banks, CEO, PIAC. Continued p17 PIAC Bulletin No 29 • May 2009 15 Government and Democracy

Secrets, Spooks and FOI – national security and public interest Mark Polden, Solicitor

The Rudd Government’s promise to reform freedom of information laws is welcome but government information can still be kept secret if it’s deemed a matter of national security.

In 1983, the Australian Secret Minister, relating to cases like these, in the hands of Ministers. Their Intelligence Service (ASIS) was are potentially available for release.If wholesale excision from the scope involved in an incident at the the Government asserts that disclosure of FOI will take effect whether or Melbourne Sheraton Hotel, in which would damage defence or national not access would cause, or could a door was smashed with a sledge- security, it can make an exemption reasonably be expected to cause, any hammer and sub-machine guns claim, which can be examined damage at all to Australia’s security or brandished by black-clad agents by an independent tribunal: the defence interests. wearing party masks, much to the Administrative Appeals Tribunal (AAT). alarm of paying guests. Perhaps significantly, the one case in Alternatively, the Minister can issue a which a conclusive certificate has been This was a training exercise that went conclusive certificate, which effectively issued to date on defence or national horribly wrong: an example of ASIS means ‘all bets are off’. In other words, security grounds involved Department exceeding its powers, and acting access to the information is banned, of Foreign Affairs and Trade documents, unlawfully. and the individual’s rights to review relating to whether convicted terrorism are strictly limited. supporter David Hicks was legally held More recently, the (then) Minister at Guantanamo Bay detention camp by for Immigration Kevin Andrews In its 2007 policy statement, the Government of the United States of consistently claimed that he had Government Information: Restoring America. acted in the national interest in Trust and Integrity, the ALP in cancelling the visa of Mohammed opposition made an election These issues relate to a project that Haneef, the Indian doctor who was commitment to repeal the power to PIAC is presently undertaking relating accused of aiding terrorists. issue conclusive certificates. For that to prisoner capture, transfer and it should be congratulated. treatment of prisoners, including At the time, the Minister was in those captured by Australian forces possession of threat assessments But there is a fly in the freedom of in Afghanistan and Iraq. The project from the Australian Security and information (FOI) ointment. The is being run in co-operation with Intelligence Organisation (ASIO), Freedom of Information (Removal the American Civil Liberties Union, which established that there was of Conclusive Certificates and Other New York University and UK all no evidence at all to suggest that Measures) Bill 2008 (Cth) abolishes party Parliamentary Committee on Haneef was a national security threat. conclusive certificates. However, the Extraordinary Rendition. The Minister acted instead on the Bill also amends the legislation by basis of ‘suspicions’ expressed by excluding from FOI all documents, no Recent revelations in the USA in the Australian Federal Police (AFP), matter what their content, that have relation to the so-called ‘war on which the subsequent Clarke Inquiry originated or have been received from terror’ suggest that any step that found were based on little more than Australia’s seven security agencies, would have the tendency to exclude extracts from internet chat rooms including ASIO and ASIS. from public view documents and telephone conversations, and evidencing misconduct by state Dr Haneef’s attempt to depart the A second group of proposed FOI agencies, particularly those charged country on an overseas flight. changes was announced in the with the onerous responsibility of form of an ‘exposure draft’ by the investigating terrorism, ought to be In each of these examples, paper Special Minister of State, The Hon viewed with a degree of caution. trails left by two of Australia’s seven Senator John Faulkner, in late March security agencies—ASIO and ASIS— and revealed that the Government In recent years, a number of showed who in Government knew intends to exclude from FOI all incidents have arisen in which what, and when. defence documents relating to government Ministers have asserted operational intelligence. that they were not aware of crucial Under the current Freedom of intelligence–or defence-related Information Act 1982 (Cth), ASIO and Such documents are presently within information. One such instance ASIS documents in the hands of a the scope of the Act, at least when involved the (then) Defence Continued p17 16 PIAC Bulletin No 29 • May 2009 Human Rights

Continued from p16 Minister, The Hon Senator Robert The proposed blanket exclusion of of the Sheraton and Haneef cases Hill’s complete lack of awareness all security agency and operational would likely remain a state secret. concerning a report on conditions at documents from the scope of FOI Such an approach is inconsistent with Abu Ghraib Prison, prepared by the would take effect irrespective of their the rhetoric of restoring trust and International Committee of the Red content, or their potential to damage integrity to FOI. Cross, the fact that an Australian army national interests, as opposed to the major had drafted the US response, interests of Ministers, departments or and the content of that response. agencies. Under these changes details

Continued from p15

The inspiration for the human rights performance piece came from the real-life stories of people who had experienced homelessness and brought home the fact that human rights are inadequately protected for homeless people in Australia. Following the performance piece, PIAC staff and other volunteers assisted the participants in recording their stories and ideas about human rights and how they could be better protected.

These stories were collected together in a book titled, Universal Declaration PIAC Solicitor, Lizzie Simpson (L) and Disability Advocate, Greg Killeen (R) taking of Homeless Rights, which was part in the National Consultation held in Sydney. presented to the Federal Attorney- General, The Hon Robert McClelland, help women understand that human then provided an opportunity for and other guests at a Public Forum rights belong to everyone. Small participants to join in the national on 20 May. The Public Forum groups of women shared stories from conversation through a facilitated featured a keynote address by the their life experience. As one woman, small group conversation format. Attorney-General, a panel discussion who worked on international issues, Participants were encouraged to of homelessness and human rights said at the end of the day, ‘I didn’t think about how human rights are and a performance by the Sydney know I had a story’. relevant in their work and daily lives Street Choir. A copy of the book and to contribute to the national was also submitted to the National The stories documented at the forum consultation. Consultation and informed PIAC’s will be included in a submission to own submission. the national consultation from the If you haven’t thought about what women who attended the forum. you might add to the national Women and Human Rights consultation, we urge you to do so. This is a rare opportunity to Forum Human rights – join the contribute to the formulation of a In early April, more than sixty women conversation significant new direction for not participated in this forum to develop PIAC, in collaboration with Telstra, only government, but our nation a submission for the National Human Social Leadership Australia and as a whole. It is vital that the Rights Consultation. the Australian Human Rights consultation engage the whole of the Commission, put on an event focused Australian community, not just ‘the Liz Broderick, Sex Discrimination on encouraging participation from usual suspects’. It is important that Commissioner with the Australian alumni of the Sydney Leadership the consultation hear of everyone’s Human Rights Commission was the Program and the business community, experience and views of what should keynote speaker. but open to the public more broadly. be fundamental rights, of how the The event, held in early May, heard core principles of respect and dignity The program for the forum included from the President of the Australian should be reflected in both our an exercise that helped the women Human Rights Commission, The national culture and law, of what to find their ‘story’. The aim was to Hon Catherine Branson QC, and matters to each and every one of us.

PIAC Bulletin No 29 • May 2009 17 Submissions & Publications October 2008 - May 2009

Australia’s Future Tax System Review Implementing the Productivity Commission Response to the Australian Energy Regulator (October 2008) review of the Disability Discrimination Act draft distribution determination 2009-10 to Submission to the Australia’s Future Tax System (January 2009) 2013-14 (February 2009) Review Submission to the Senate Legal and The AER draft determination includes Constitutional Affairs Committee Inquiry into significant rises in the cost of electricity. In this Street Rights NSW Ed 12 (November 2008) the Disability Discrimination and Other Human submission PIAC argues that a number of the Newsletter of the Homeless Persons’ Legal Right Legislation Amendment Bill regulator’s decisions should be reviewed for Service their impact on residential consumers. Unified Privacy Principles - the right way Hunter water prices (November 2008) ahead (February 2009) Opening the door for disability access (March Submission to the IPART review of prices for Comments to the Federal Department of Prime 2009) water, stormwater and recycled water services Minister and Cabinet on the draft Unified Submission to the House of Representatives for Hunter Water Corporation Privacy Principles Standing Committee on Legal and Constitutional Affairs Inquiry into the draft Freeing up information (November 2008) Harmonising spent convictions laws in Disability (access to Premises - Buildings) Response to the NSW Ombudsman’s review of Australia (February 2009) Standards the Freedom of Information Act 1989 Submission to the Standing Committee of Attorneys General on the Draft Model Spent Submission to Report on Secure and Maintaining consumer focus in health Convictions Bill 2008 (SA) Sustainable Urban Water Supply and complaints: the key to national best practice Sewerage Services for Non-Metropolitan (November 2008) PIAC Annual Report 2007-2008 (February NSW (March 2009) Submission to National Registration and 2009) In this submission PIAC acknowledges the need Accreditation Scheme for the Health for reform of local water utilities but submits Professions on proposed arrangements Street Rights NSW Ed 13 (February 2009) that changes must be in the best interests of for handling complaints, and dealing with Newsletter of the Homeless Persons’ Legal non-metropolitan customers and communities. performance, health and conduct matters. Service Central Coast water prices (March 2009) People with disability - from recipients to Cut Off II: the experiences of utility Submission to IPART Draft Determinations and full and active participants (December 2008) disconnections. Final report (January 2009) Draft Report on prices for water, wastewater Response to the Developing a National This is the final report for the project Cut Off and stormwater services for Gosford City Disability Strategy for Australia Consultation II: The Experience of Utility Disconnections, Council and Wyong Shire Council prepared by Urbis for the Energy and Water Review of alcohol-related violent offences Consumers’ Advocacy Program. Clean and fair (April 2009) (December 2008) Submission to the Senate Senate Select Submission to the NSW Sentencing Council’s Considering the impact of CIN more broadly Committee on Climate Policy review of the sentencing procedure for alcohol- (January 2009) related violent crime. Response to the NSW Ombudsman’s review of Protecting consumer protections (April 2009) the impact of Criminal Infringement Notices Submission to the Council of Australian Talkin’ Justice – Issue 4 (December 2008) on Aboriginal and Torres Strait islander Governments (COAG) released a consultation Newsletter of the Indigenous Justice Project Communities paper titled ‘An Australian Consumer Law: Fair Market – Confident Consumers’ Well Connected - No 33 (December 2008) Implications of government funding of Newsletter of the Energy and Water Consumer advocacy for third-sector independence and A privileged profession? Shield laws and the Advocacy Program exploration of alternative advocacy funding Evidence Act (April 2009) models (Summer 2008) Submission to the Senate Legal and Enhancing the rights-based approach to This paper examines the effect of funding Constitutional Affairs Committee Inquiry health care complaints in NSW (December contracts on the capacity of third-sector into the Evidence Amendment (Journalists’ 2008) organizations to effectively advocate. Privilege) Bill 2009 (Cth) Submission to NSW Parliamentary Joint Committee on the Health Care Complaints Deepening democracy (February 2009) Electricity price increases as of 1 July, 2009 Commission Submission to the Department of Prime (April 2009) Minister and Cabinet in response to the PIAC response to the Chair of IPART, in relation Improving clarity and enhancing protection Electoral Reform Green Paper to concerns about the impact of price rises on of privacy rights (December 2008) low-income households. Submission to the NSW Law Reform Taking action on homelessness (March 2009) Commission in response to its Consultation Response to the NSW Government Silent Corruption (April 2009) Paper 3: Privacy Legislation in NSW Homelessness Action Plan Submission to the Committee on the Independent Commission on Corruption into Submission on the Freedom of Information A just and fair prison system: Principles or Section 37 of the Independent Commission (Removal of Conclusive Certificates and profit? (March 2009) Against Corruption Act 1988 (NSW) (April 2009) Other Measures) Bill 2008 (January 2009) Submission to NSW Legislative Council General Submission to the Senate Standing Committee Purpose Standing Committee No 3 - Inquiry Finding the right balance: Medicare on Finance and Public Administration Inquiry into the Privatisation of Prisons and Prison- Compliance Audits (April 2009) into the Freedom of Information (Removal of related Services Submission to the Senate Community Affairs Conclusive Certificates and Other Measures) Committee Inquiry into Compliance Audits on Bill 2008. Lifting the veil of secrecy (March 2009) Medicare Benefits Response to the Australian Law Reform A Good FiT: Designing an effective and fair Commission Issues Paper 34: Review of Secrecy Taxing Charity (May 2009) Feed-in Tariff Scheme for NSW (January Laws Submission to Australia’s Future Tax System 2009) Review Submission to the NSW Solar FiT Taskforce consultations All publications are available on PIAC’s website: piac.asn.au 18 PIAC Bulletin No 29 • May 2009 Public Interest Advocacy Centre Directors Shauna Jarrett (Chair) Ben Slade (Deputy Chair) Britta Bruce Associate Professor Dr Peter Cashman Alison Peters Alan Cameron AM Alan Kirkland (joined August 2008) The Hon Kevin Rozzoli AM Matt Laffan (to March 2009) Associate Professor Merrilyn Walton Public Interest Advocacy Centre Staff Robin Banks Jane King Joel Pringle Chief Executive Officer Manager, Policy Officer [email protected] Finance & Administration Energy + Water Consumers’ [email protected] Advocacy Program Brenda Bailey [email protected] Senior Policy Officer Karen Kwok [email protected] Administrator Mark Polden [email protected] Solicitor (from January to May 2009) Natasha Case Acting Principal Solicitor Mark Holden Jeremy Rea (to March 2009) Solicitor (from January 2009) HPLS Solicitor Advocate Senior Solicitor Indigenous Justice Program [email protected] [email protected] [email protected] Lizzie Simpson Jessica Cruise Mark Ludbrooke Acting Senior Solicitor (to March 2009) Acting Senior Solicitor Senior Policy Officer Solicitor (to December 2008) Energy + Water Consumers’ [email protected] Advocacy Program Peter Dodd Keppie Waters [email protected] Solicitor - Health Policy & Advocacy Senior Solicitor (to January 2009) [email protected] Amy McGowan Indigenous Justice Program Project Officer Alexis Goodstone Elwyn Ward Mental Health Legal Services Project (returned from leave March 2009) Finance Officer [email protected] Principal Solicitor [email protected] [email protected] Vavaa Mawuli Mark Warren Marion Grammer Senior Solicitor (from February 2009) Media and Communications Adviser Bookkeeper Indigenous Justice Program [email protected] [email protected] [email protected] PIAC College of Law Placements Carolyn Grenville Deirdre Moor Jonathon Soloman (from Jan 2009) Training Co-ordinator Manager, Policy & Programs Marley Zelinka (from Dec 2008) [email protected] [email protected] Ee Von Lok Chris Hartley Jason Mumbulla Paralegal (December 2008) HPLS Policy Officer Computer Systems Administrator Daniel Tomasetti [email protected] [email protected] Paralegal (December 2008) Julie Hourigan Ruse Ka Ki Ng Aurora Project Placements HPLS Co-ordinator Receptionist Madeleine Ellicott (Jan - Feb 2009) [email protected] [email protected] Tallace Bisset (Jan - Feb 2009) Christine Johnson Tracy Lam Mark Holden (Nov - Dec 2008) Librarian Administrator Student Placements [email protected] [email protected] Danielle Mawer (from Mar 2009) Stephen Kilkeary Scott Parker Briana Wherry (from Mar 2009) Project Co-ordinator Administrator Mental Health Legal Services Project [email protected] [email protected] Public Interest Law Clearing House (PILCH) Staff Amy Kilpatrick Amy Brady PILCH Secondees Executive Director Solicitor Samantha Johnson (Nov 2008 - Jan 2009) [email protected] [email protected] Steven Johnstone (Nov 2008 - Feb 2009) Isabelle Paton (from Mar 2009) Gina Vizza Angela Radich Jennifer Tyler (from Mar 2009) Pro-Bono Co-ordinator Senior Solicitor (from April 2009) [email protected] Pro bono Animal Law Service PILCH College of Law Placement [email protected] Iain Bailey (to Jan 2009) PIAC Bulletin No 29 • May 2009 19 THOMSON LEGAL JOURNALS ONLINE

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