INSIDE VOICES OF VICTIMS 8 ELECTORAL REFORM 9 E-HEALTH INITIATIVE 10 RIGHTS, WHAT RIGHTS? 13

ISSUE 6 NOVEMBER–DECEMBER 2009 LIBERTY VICTORIA VICTORIAN COUNCIL FOR CIVIL LIBERTIES INC

FEATURE The truth of the refugee crisis

NOT Jessie Taylor and WELCOME Larry Stillman on HERE the government’s asylum seeker policy — 4–7 ISSUE 6 NOVEMBER–DECEMBER 2009

CONTENTS

EXECUTIVE COMMITTEE PRESIDENT’S REPORT Advancing Liberty 3 President Brian Walters SC HUMAN RIGHTS Myth and reality 4 Michael Pearce SC Hugh Crosthwaite Vice-Presidents Rachel Ball REFUGEES Playing politics with lives 5–6 Jamie Gardiner Jonathan Wilkinson Anne O’Rourke Judy Magassy REFUGEES The global refugee crisis 7 Georgia King-Siem Di Sisely GLOBAL JUSTICE Voices of victims 8 Spencer Zifcak Marian Steele Treasurer Evelyn Tadros ELECTORAL REFORM Expanding the franchise 9 Tim Warner Larry Stillman Secretary PRIVACY Is e-Health healthy? 10–11 Jessie Taylor OFFICE CRIME POLICY Law-and-order auctions 12 Assistant Secretary Alex Krummel Aggy Kapitaniak VICTORIAN CHARTER Rights, what rights? 13 Immediate Past President GPO Box 3161 Julian Burnside Melbourne VIC 3001 AO QC t 03 9670 6422

[email protected] www.libertyvictoria.org.au PRESIDENT’S COLUMN Advancing Liberty 2010 promises to be another big year for Liberty Victoria, writes Michael Pearce SC.

his is my fi rst President’s committee has power to appoint an the 2009 Alan Missen Oration, delivered who have assisted it through this year in column in my second term as additional two. by Rev. Tim Costello on the subject a strategic review of the organisation. President. I was re-elected This amendment was introduced of human rights and the churches. Vicki Davidson, of Quest Consulting, unopposed at our Annual because of increasing demand from It promised a lot and delivered even Michael Cohn, Bill Haebisch and Angela GeneralT Meeting held on Monday 23 the media for comment from Liberty. more. After withstanding months Tidmarsh have all generously donated November 2009. Also elected to the With up to four Vice-Presidents there of unrelenting anti-human rights their time to this project. executive were: Jamie Gardiner, is a wider spread of expertise in the propaganda from the Christian churches, They have now delivered their report Vice-President; Anne O’Rourke, Vice- public spokespeople as well as increased it was both refreshing and a relief to the Liberty members of the working President; Tim Warner, Treasurer; Jessie availability. to hear a pro-human rights message group who are currently considering Taylor, Secretary; and Aggy Kapataniak, In addition to the power to appoint soundly based in Christian doctrine and its recommendations. Without wishing Assistant Secretary. two further Vice-Presidents, the belief. to pre-empt the outcome of that The following were elected to the committee also has power to co-opt The message was also particularly consideration, 2010 is likely to see committee: Rachel Ball, Julian Burnside members to the committee. This power timely as the decision on whether we some organisational revamp of Liberty AO QC, Hugh Crosthwaite, Dr Di Sisley, has also been regularly exercised in will have a federal Human Rights Act is to enable it to do what it already does Marian Steele, Dr Larry Stillman, Evelyn recent years as the committee identifi es imminent. There are strong indications better, and to do more of it. Watch this Tadros, Brian Walters SC, Jonathan needs for expertise in particular areas. that the decision will be made largely space. Wilkinson, Georgia King-Siem, Prof Currently the committee sees a need by the Prime Minister, who wears his Finally, on behalf of the new Spencer Zifcak. to enhance its expertise in submission Christian faith on his sleeve. committee and executive, I should say At a committee meeting held writing on criminal law. Any members There is naturally a real concern thanks to our many members for their immediately after the AGM, Judy with the requisite skills and the time that the message from the anti-human support, fi nancial and other. One thing Magassy was co-opted to the committee and commitment to contribute to rights forces within the churches will be which has emerged from our strategic and the committee appointed Prof submission writing are invited to contact accorded more respect than it deserves. review is that we do tend to take our Spencer Zifcak and Georgia King-Siem as the Liberty offi ce. The Prime Minister might do well to members for granted and fail to engage additional Vice-Presidents. Before leaving the subject of the contemplate what Dietrich Bonhoeffer them suffi ciently in activities. The role of the additional Vice- new executive and committee, it is would say on this subject. To some extent this refl ects our lack Presidents was raised in a question appropriate to mark the retirement Thanks are due to the Alan Missen of resources but it is clearly something at the AGM. The offi cial public from offi ce of Yue Yanlo as Treasurer Foundation for supporting the Oration we need to work on. I am hopeful the spokespeople for Liberty are the and Ian Dunn, Lucie O’Brien and Peta and to the chairman of its trustees, strategic review will also yield positive President and the Vice-Presidents. Two Murphy as committee members. They Justice Alan Goldberg, who also spoke results in this area as well. So watch Vice-Presidents are elected each year have all made a signifi cant contribution and introduced the guest speaker. this space too. and, by amendment to the constitution to Liberty and we thank them for that. I would also like to record Liberty’s Meanwhile, all the best over the introduced a couple of years ago, the The AGM was held in conjunction with gratitude to the volunteer consultants holiday period and into the New Year. 33 Myth and reality Stephanie Batsakis questions whether Australia is really a land of the ‘fair go’.

ustralia prides itself on being government. Fundamental human rights to criticise China’s human rights record the land of the ‘fair go’ and such as the right to humane treatment, at universal periodic review hearings in yet from an international children’s rights, the right to non- 2009, China raised this recent request perspective, this reputation discrimination and the right to liberty as evidence of our hypocritical poor hasA been tarnished by our recent human were found to be violated by Australia rights performance. It is imperative that rights record. Persistent human rights and were not acted upon. Australia practises what it preaches violations across both Howard and Rudd Recent action by the Rudd in order to effectively promote the governments demonstrate that a federal government on human rights has benefi ts of human rights to developing Human Rights Act is the only way to caused the international community states. bring us into line with international to commend our change in direction. More than anything, this recent human rights standards. For example, Amnesty International’s history of human rights abuse While Australia is signatory to 2009 Report praised the apology to demonstrates that our current human all fi ve international treaties of the members of the Stolen Generations, rights protection is far from adequate. international bill of human rights, it the establishment of a National Council As noted repeatedly by other western is no secret that Australia’s domestic to Reduce Violence Against Women states and several branches of the policies have increasingly disregarded and their Children, the abolishment condemned Australia’s persistent UN, Australia urgently needs a federal these obligations since the Howard of temporary protection visas and policies on the Northern Territory Human Rights Act. government assumed leadership in legislation to remove discrimination intervention, mandatory immigration Without one, Australian courts 1996. According to the United Nations against same-sex couples and their detention, and the excessive use remain severely constrained as to the Association of Australia, by 2006 children. of police force. A key issue, raised extent to which they can apply human ‘Australia slipped further behind the Even during 2009, however, continued repeatedly, was that Australia remains rights standards, especially compared rest of its class’ and was criticised for violations of human rights have caused the only liberal democracy without to courts in the United States, New ‘continuing to legislate and operate in the international community to human rights enshrined in law. Zealand and Europe. A Human Rights breach of human rights commitments’. regard our positive developments with A signifi cant outcome of this Act will provide a much needed The UN Human Rights Committee has wariness. When Amnesty International’s blemished reputation is a reduced parameter for government behaviour, it heard 52 complaints against Australia secretary general visited a remote bargaining position in diplomatic will bring the issue of human rights to since 1993, 21 of which have found indigenous community this year, she relations. In February a Northern the forefront of public discussion, and Australia to be guilty of violating rights commented that ‘for a country which Territory Aboriginal group put in a importantly it will be a major step in contained in the International Covenant by human development standards is the request for urgent intervention to the reinstating our reputation as a land of on Civil and Political Rights. While third most developed in the world … Committee on the Elimination of Racial the ‘fair go’. complaints before 1996 were met with such a level of poverty is inexcusable, Discrimination, due to the devastating federal action, every complaint since unexpected and unacceptable’. In impact of the intervention on their Stephanie Batsakis is a 1996 has been rejected by the Australian March, the UN Human Rights Committee lives. Shortly after, when Australia tried Liberty Victoria volunteer. 4 Playing politics with lives The asylum seeker policy game continues under the Rudd Government, writes Jessie Taylor.

ince Liberty’s last newsletter, seekers, shooting two, including a 17- had it right, and there are some who on our televisions. They were waiting there has been a signifi cant year-old boy who has been in solitary think he had it wrong. There are very and waiting, and — like so many others escalation in the game of confi nement at Kupang jail since he fell few people who would consider that — they took their lives into their own asylum seeker policy. Perhaps under suspicion of talking to the media. the Rudd government has handled this hands and took proactive steps to itS all started with a phone call from The rules of this game have changed. issue well in recent times. It has been a force a result for themselves and their Prime Minister Kevin Rudd to his Regardless of your politics, there is catastrophe. My own determination to families. Indonesian counterpart, asking that no denying that in recent weeks the give this government the benefi t of the This may be imperfect behaviour. Indonesian authorities intervene to Rudd government has edged dangerously doubt is dwindling fast. We can all see the moral fl aw in it. prevent a boatload of Sri Lankan Tamils close to reinstating the Howard- Many of the Sri Lankan Tamils on Perhaps they should wait in the magical from approaching Australian waters. era policy of ‘deter and deny’, the the Oceanic Viking and at Merak port queue that so many people enjoy In November, Indonesian coastguard, architecture of which it had worked so were in possession of UNHCR refugee talking about! But before getting too in a state-of-the-art Australian boat, hard to dismantle earlier on in its term. certifi cates. Many had been in Indonesia judgmental, let’s have a closer look at opened fi re on a boatload of asylum There are some who think that Howard for months or years before appearing that queue. (Continued next page.)

5 A 14-year-old boy whose entire family has been killed for converting to Christianity. A young man who watched his father’s body take 16 bullets “ from a Taliban AK-47. These stories are devastatingly commonplace. Around October 27 this year, some issues, and must be considered at the talk. The newest of the 10 young Afghan the moral and legal obligations that we Department of Immigration and highest level. But if we talk about them refugees to live in our house this year hold to asylum seekers. Citizenship fi gures emerged that I’m in the context of a faceless, nameless, came from Christmas Island last month. We must bolster the capacity and betting the government would have godless horde of boat people, devoid Last night he reeled off the inevitable transparency of the UNHCR in the preferred to keep quiet. Australian of humanity, then we dismiss the list that I always dread hearing: the region, ensure proper processing under resettlement from Indonesia was fundamental point of what it is to be a inventory of family members wounded, the banner of the rule of law and 35 people in 2008–09, 89 people in refugee. killed or just disappeared. This natural justice, and see that UNHCR’s 2007–08 and 32 people in 2006–07. Many of you will be familiar with the particular list included the boy’s father, operations are in line with international Total resettlement from 2001 to 2009 plight of the Hazara people, and how a sister, and his brother’s two baby best practice. was 460 people — an average of 50 per diffi cult it is to make a life when you children. So ordinary, so matter of fact Most fundamentally, we must increase year. If there are 2000 asylum seekers in are the Taliban’s public enemy number was his telling of it. So devastating that our resettlement of asylum seekers from Indonesia, the ‘queue’ that our morality one. In Indonesia I met a nine-year-old many of our countrymen would react Indonesia. With increasing systematic dictates that they should stand in is, on girl who described to me the Taliban’s with hostility and suspicion rather than ejection of Afghans from Iran, and the current fi gures, 40 years long. practice of hammering nails into the sorrow and condolence to a young man descent into chaos of the traditional Perhaps this would be bearable if skulls of Shi’a people, and her disgust who has lost so much. city of refuge — Quetta, Pakistan — we the opportunity existed to work, or to at three of her teachers, all women, We need our government to provide will see more asylum seekers heading send their children to school. To move being killed as punishment for educating leadership, to explain to the nation our way. Not because we are ‘soft’ or freely in the country without fear of girls. A 14-year-old boy whose entire our collective obligations to asylum because they are destination shopping, arrest and detention. But Indonesia is family has been killed for converting to seekers, and to set the tone of debate, but because between Pakistan and not, and never has been, a signatory Christianity. A young man who watched rather than scurrying along behind it in Australia, the only Refugees Convention to the Refugees Convention. It has no his father’s body take 16 bullets from a damage control mode. After the events signatory country is Cambodia. obligations to asylum seekers, and it Taliban AK-47. of recent months, nobody in their right Indonesia is the doorstep to the fi rst behaves accordingly. These stories are devastatingly mind would suggest that Mr Rudd will country where Iraqis and Afghan Hazaras I often get the impression that when commonplace, and it is understanding of lose the next election. So now, with can hope to have their claims processed Australian people talk about refugees, this experience of loss, grief and trauma political capital so far in the black, it according to law. Currently, we are we tend to start upside-down. We start that must colour our nation’s treatment is time for the government to spend letting them down spectacularly. with border protection, security control of asylum seekers. The other night I sat some: to make some tough decisions, and managed migration fl ows. All of up late with two of my housemates, perhaps unpopular decisions, but strong, Jessie Taylor is the secretary these are fundamentally important both young Hazara men, and we had a visionary and right decisions to uphold of Liberty Victoria.

6 6 The reality of the global refugee crisis Australia’s asylum seekers debate needs to be put into perspective, writes Dr Larry Stillman. ublic perception of refugees inhabiting hovels the size of garden you know how many refugees live in the politicians and enthusiastic bureaucrats causes razor sharp public sheds, without running water, electricity camp? Fifty thousand. That’s probably who play the worst sort of dog-whistle anxiety with every boat or proper sewerage. There are piles of fi ve times the total number of ‘illegals’ politics. arrival. Yet after rigorous garbage. Fleas and lice are endemic who come to Australia each year by The number of people who get to scrutinyP by the UN High Commissioner and then there are the rats. There are boat. Australian ‘illegally’ is tiny compared for Refugees or Australia’s Immigration only a couple of health clinics here, I have gone into such detail because with what happens in the rest of the Department, the vast majority of asylum each with huge queues of mothers and it is easy to forget how horrible life can world, and we can afford not only seekers can in fact be classifi ed as babies desperate for basic health care. be for people whose displacement is no to treat them better, but also to genuine refugees. Australia’s situation If someone is seriously ill, ambulances fault of their own, just as it is easy to massively invest in civil reconstruction must be also seen from a global cannot get into the camp because fall into cold governmental language and development abroad so that they perspective. The fi ve or ten thousand roads are almost non-existent and the that dehumanises ‘unjustifi ed’ refugees. needn’t fl ee in the fi rst place. people who come to Australia in this laneways are tiny. Instead, people must Just as the Nazis found good use for way are just a drop in the ocean of be piled into wheelbarrows and brought bureaucratic language to rationalise Dr Larry Stillman is a Liberty committee global population movements. These out. The chances of dying en route are their hatred, Australians have a member and Monash University movements are an international reality high. It is bad enough when it rains, penchant for a similar characterisation academic. These views are his own, not from which Australia, one of the world’s but when there is a downpour — like of supposed enemies, aided by those of the university. most affl uent countries, cannot be tonight, when I drove home to middle- isolated. class comfort — Zandspruit becomes I am starting to experience the a sea of fi lth and mud. Because of reality of the international refugee the struggle to survive, Zandspruit is crisis. In South Africa there are at very violent and there have even been least one million refugees, who have killings. fl ed countries such as Zimbabwe. In There are some non-government total there are at least 17 million organisations involved in supporting refugees in Africa, similar to Australia’s the community. The people who work entire population. Many of the for the NGOs are extraordinary, and refugees in South Africa live in tin- the local white councillor, who at fi rst shack shantytowns, some of the most sight seems like a relic of the apartheid squalid and heart-rending conditions regime, is an ANC member and a tireless imaginable. advocate on their behalf. Monash Just down the road from Monash University gives homework assistance University’s South Africa campus is to 200 children and runs fun activities the Zandspruit ‘informal settlement’. every Saturday morning, and I am It wouldn’t surprise me if the fi lm involved in an IT project. Amazingly, District 9 had been made there. At least some of these kids are even making it to 50,000 people live here cheek by jowl, university despite their struggles. And 7 Voices of victims The International Criminal Court is giving victims the opportunity to tell their version of events, reports Natalie Simpson.

egal representation for victims The concept of victim participation at only be allowed if it ‘is not prejudicial a substitute or ancillary prosecutor by in international criminal trials the pre-trial and trial phase of a hearing to or inconsistent with the rights of picking up the slack in the prosecutor’s is an interesting and emerging is novel in international criminal law the accused to a fair and impartial questioning. The counter-argument fi eld of international criminal and while it has its basis in protecting trial’. However, one questions how to this particular objection from the Llaw currently being developed through the rights of victims to a crime, it also effective such a provision will be in representatives was that if curtailed, the International Criminal Court in The has signifi cant fl aws. One of the main reality when the mere existence of such the legal representatives risk becoming Hague. Governed by Article 68 of the arguments against the system of having representatives arguably undermines glorifi ed spectators to the proceedings Rome Statute, legal representation victims legally represented by counsel is this fundamental right. with no practical function. of victims is the practice of allowing that it upsets the balance of justice in The highly problematic role of the The Court has yet to decide on the victims of crime to have counsel the court. legal representatives for victims needs exact role the legal representatives will represent them throughout proceedings, This practical concern stems from to be dealt with carefully in these early play in this particular case, and given sometimes being actively involved the idea that having a prosecutor and years of the International Criminal the youth of the ICC there is very little in the questioning of witnesses and a representative for victims effectively Court in order to maintain the integrity instruction as to how the role of the presentation of arguments. allows the prosecution more power, of the Court’s proceedings. The fi rst legal representatives will develop, but it The precise role of victims in therefore undermining the strength case to openly question the role of will be interesting to see how this fi eld proceedings is essentially left up to of the defence from the outset and legal representatives of victims is The emerges and how the Court manages to the discretion of the presiding judges undermining the presumption of Prosecutor v. Germain Katanga and balance the fundamental rights of the who have ultimate power over deciding innocence afforded to the accused. Mathieu Ngudjolo Chui. In this case, the victims with those of the accused. the manner in which the victims’ legal The Rome Statute attempts to defence team for Mr Katanga recently representatives can participate in the correct this imbalance by stating in voiced its concerns to the Court that the Natalie Simpson is a proceedings. Article 68(3) that such intervention can representatives are effectively acting as Liberty Victoria volunteer.

8 Expanding the franchise Kate Mallinson comments on the review of the federal electoral act.

he second Electoral ([2007] 233 CLR 162) when the information. Reform Green Paper was Court struck down an attempt by The Green Paper also invited released for comment the Howard Government to impose discussion on the current ‘close- on September 23. Since a blanket ban on all prisoner voting. of-rolls’ period. Australia’s Federal 1918T the Commonwealth Electoral Liberty’s submission to the Green Elections have no fi xed date, Act has only been rewritten once, Paper suggested that the loss of which means the closing date in 1984, and consequently much prisoners’ voting rights constitutes of the electoral roll is a critical of language contained in the extra-judicial punishment, which issue. Reforms to the Electoral Electoral Act is outdated, complex only serves to further isolate and Act in 2006 shortened the amount and in need of reform. The Green stigmatise incarcerated persons of time available to enrol or Paper sought to address this, and from the community. vary enrolments. This effectively opened for comment a broad The Green Paper invited disenfranchised a large number range of discussion issues relating suggestions on the issue of how of eligible voters. The Australian to Australia’s electoral structure best to engage members of the Electoral Commission estimates that and processes. The paper invited community that tend to be isolated in the 2004 election, when there comment on issues including the from the electoral process, were seven days from the issue of possible methods to maximise specifi cally, young voters, persons the writs in which to enrol, 423, 975 voter participation, the use of new experiencing homelessness and people used the close of rolls week media in enrolment and election Indigenous voters. In order to to change their details. Liberty processes, coordination of State address research fi ndings that suggested in our submission that the and Federal electoral laws, the Australians aged between 15 close of rolls period be extended distribution of electoral boundaries and 35 have limited knowledge to seven days from the issue of the and the structure and functions of of Australia’s political system, writs. The current close of rolls the Australian Electoral Commission. Liberty’s submission suggested the period disenfranchises voters and Most importantly for Liberty, the establishment of civics education runs contrary to the key principles paper welcomed discussion around in secondary schools. Liberty also suggested in the Green Paper. the voting franchise. suggested amendments to the Liberty trusts the Federal The Electoral Act currently Commonwealth Electoral Act in Government will take advantage contains exclusions around the order to remove barriers in the of the opportunity to reform the right to vote for prisoners serving legislation that currently prevent electoral laws in order to ensure a sentence of three years or homeless persons from exercising the franchise is available to all more. This has been a particularly their vote, for example, by making eligible members of the Australian contentious issue, and was the Electoral Act more fl exible community. addressed in the High Court case around the provision of mobile Kate Mallinson is a of Roach v. Electoral Commissioner polling booths and electoral Liberty Victoria volunteer. 9 IS E-HEALTH HEALTHY? Tim Warner warns that Australia’s e-Health Initiative provides the structure for a national ID scheme.

hould you visit a Medicare clinical errors can be welcomed, but health practitioner in the the mechanisms chosen to deliver second half of 2010, you will be these outcomes, the method chosen to asked to identify yourself from administer the scheme and possibly the aS list of persons who have similar names actual outcomes have serious downsides. and birth dates. This will be the start of The second pilot scheme for the a new medical records system called the referral and management of patient e-Health Initiative, designed to allow the records has been running in the Hunter smooth electronic referral of patients, Health public health service of NSW. patient records and the orderly transfer This follows a very troubled fi rst pilot in of pathology results. Tasmania where many practical failings This unique identifi cation system will of e-records became apparent. Two large rely on a number that will be generated problems were the lack of consistency in when you appear for an appointment recording illness between doctors: what after July 2010, and will not be stored on one sees as a cold, the other will write your Medicare Card — it will be kept in up as a minor upper respiratory tract a separate computer system which will infection. be the hub of the doctors, pathologists In the delicate issue of social diseases and so on. The new number is required some doctors either use personal codes because many Medicare cards cover or misdiagnose an illness with a similar a number of individuals in families pharmacological treatment. The second or households, and this new system major issue was that many people have is designed for clinical use and will multiple Medicare identities many for therefore have to be patient-specifi c. reasons of personal safety and legal All of the above is happening and invisibility. How to handle this became a many of the planned direct outcomes in signifi cant issue. improving patient records and reducing (Continued next page.)

10 The e-Health The second trial at Hunter Health and their medical details and contact COAG, and thus not under Freedom has been under way for more than a details will be linked. The fi rst stage of Information or other responsibility Initiative is a year. It is slated to have a public release has all medical practitioners moving to mechanisms of either state or federal very worrying of an interim report in March to April storing their records in a form that is jurisdictions. Each request for 2010. Here we reach the fi rst major consistent and searchable by the new information or transparency is met piece of problem in process. The federal and number. with an answer couched in terms of the “ public policy. state governments are scheduled to pass Later external searches of others agreed to it. It is in effect the enabling legislation for e-Health in practitioners’ databases will be possible Each criticism of process or February to March 2010 — before we see to ensure up-to-date clinical information inadequate outcome has been met with the structure the results of the fi nal practical trial. at the venue where the patient the other agreed to it. Direct request of a national Without information from the Hunter presents. Many of these details are not for information or accountability are Health trial and with some key issues confi rmed but are inherent in the design met with a reply that they do not have identifi cation not even included in the limited trial, proposed. The possibility of function to respond as they are not covered by scheme.” we are setting forth on a national and creep, both within the Health and Social federal or state FOI. expensive scheme, without knowing if Security Department and in ‘whole of The e-Health Initiative is a very it will deliver the key outcomes. Will government’, is very real. No attempt at worrying piece of public policy. It is it reduce patient misidentifi cation placing limits on the information to be in effect the structure of a national or wrongful diagnosis due to lack of gained is included in the design. identifi cation scheme. Future uses or wrong prior history by signifi cant The fi nal key process failure is one and expansion of the system are being amounts? with massive implications for many of designed into the system, whilst those The second process issue is the lack the proposed public policy initiatives, implementing the system claim they of continuing information on how the including the changes to hospital and have no mandate to discuss wider future federal and state governments have clinical delivery. The driving force uses. The actual effi cacy of the scheme been reaching each stage. Juanita behind the e-Health Initiative is not is in doubt and laws are to be enacted Fernando of the Australian Privacy the Federal Government as such, but before proof has been made public. Foundation has been demanding the the Council of Australian Governments. The vehicle chosen to implement the opening of various reports since 2005. COAG is the formalising of the old system: a company structure owned by The Australian IT section has had many Premiers Conference where money and an arm of federal–state consultation, articles, including some leaked papers, responsibilities for national issues were which has no methods of answerability that show a culture of secrecy and a debated and allocated. It now has grown or responsibility to the public. The lack of accountability. to have an independent existence and as best that could be said of the e-Health The methods chosen to deliver the such is not directly answerable to any of Initiative is that Sir Humphrey would be e-Health Initiative contain all the the constituent parliaments. proud. elements of a national identifi cation The e-Health Initiative has been Tim Warner is a Liberty scheme. Every adult will be identifi ed structured as a company owned by Victoria committee member.

11 Law-and-order auctions Michael Pearce SC welcomes the NSW Shadow Attorney-General’s commitment to put an end to law-and-order auctions before elections.

n a surprise but welcome move, punishment.’ He refers also to the legislation currently before the Victorian persuasions in Victoria to stop and take a senior NSW politician has called failure of the Blair government’s law Parliament giving police unprecedented stock of where we are headed. They for an end to the law-and-order and order agenda in the United Kingdom powers to stop and search people, need not look too far: just northwards auctions which have prevailed in and its repudiation by the present in direct confl ict with the Charter of and over the Murray River. What lies INSW politics since the 1980s. And this government following a report by Cherie Human Rights and Responsibilities. It beyond there is not attractive or worthy was not just any politician but the NSW Booth QC. Mr Smith concludes: ‘We have has bipartisan support and is modelled of emulation. If you doubt that, just ask Shadow Attorney-General Greg Smith SC come to a point in time when the theory on UK legislation, part of that country’s Mr Smith. MLA. of “lock them up and throw away the failed law-and-order program. Michael Pearce SC is In an article in the current Bar News key” just doesn’t work. It is time for politicians of all president of Liberty Victoria. of the NSW Bar Association, Mr Smith Governments all over the world have traces the history of the law-and-order to contend with more pressures on auction through various state election limited resources … The state cannot campaigns back to the 1980s. He afford to keep incarcerating more demonstrates convincingly the damage people, and spending will have to shift done by that debate and concludes: ‘I to reducing incarceration rates. became very uneasy with the law and Non-custodial punishments will order auctions, as they tended to make inevitably become more prevalent the law — particularly the sentencing and far more work must be done on laws — more complex and more rehabilitation before, during and after susceptible to error.’ incarceration.’ He refers to the lower imprisonment This departure from decades of rates and lower recidivism rates in refl exive law-and-order rhetoric in NSW Victoria and observes: ‘[Victorian] is bold and courageous. It carries special sentences are lower and rehabilitation weight because of Mr Smith’s intimate more effective. Be assured that I knowledge of the justice system and his strenuously support protecting the senior position as a prosecutor. community from dangerous offenders, It is especially timely for us in but most of those imprisoned could not Victoria where politicians on both be so described. They are sentenced to sides of the major divide show signs of less than 12 months’ imprisonment and being seduced by the lure of a law-and- there is a strong case for non-custodial order auction. For example, there is

12 Victorian Parliament earlier this month, insuffi cient justifi cation for a law that it became obvious how weak Victoria’s disregards fundamental human rights. Rights, proud new Human Rights Charter really The police also have increased is. In particular, it became obvious how powers to move people on. These new ready our elected representatives are to ‘move-on’ powers are distressingly ignore the Charter altogether. broad. For example, under the new laws what The SOCW Act has now given police the police have power to give directions in Victoria increased powers to search to a person to ‘move on’ whenever an any person including a child in a offi cer believes the person ‘is likely designated area, even when there is no to breach the peace’ or ‘is likely to rights? reasonable suspicion that the person endanger the safety of other persons’. is carrying a weapon. The government As the Federation of Community to the Victorian Parliament’s Scrutiny itself, in a statement put together by Legal Centres noted in its letter to of Acts and Regulations Committee, the minister for the purposes of review the Scrutiny of Acts and Regulations she said that she was ‘concerned Dr Alice de Jonge by the Scrutiny of Acts and Regulations Committee of November 20, such broad with the lack of public consultation, questions whether the Committee, admits that this new power move-on powers involve ‘granting police including the lack of consultation with is a breach of the Charter of Human powers based on subjective predictions her offi ce, regarding a proposal with Victorian Charter has Rights. of future behaviour by individual police such an adverse impact on the rights of lived up to expectations. In the minister’s own words, the offi cers’. Such powers are inevitably Victorians’. Referring to the SOWC Bill, SOCW Act is ‘incompatible with the ‘prone to be applied in a discriminatory the Privacy Commissioner then went on charter to the extent that it limits and disproportionate way against some to recommend ‘that the Bill not proceed rights … in providing powers for police of our most vulnerable community until such time as proper consultation is hen the Charter of Human to randomly search persons (including members, including people who are undertaken necessary for a proposal of Rights and Responsibilities children) and vehicles in public places homeless, young people, Aboriginal this kind’. Act was enacted in 2006 within designated areas, even if the people and people experiencing mental The Government is clearly prepared it appeared that a new police have not formed a reasonable health issues’. to pass into effect a new law which is eraW had arrived in the relationship suspicion that the person or vehicle is A motion by Greens MLC Sue incompatible with the Human Rights between government and citizens in carrying a weapon’. Moreover, there Pennicuik that would have seen the Charter. At least the government has Victoria. The Act was described by is no exemption for peaceful protests SOWC Act submitted to a process of been prepared to admit that parts of Professor George Williams as marking ‘a applying to the random search powers. public consultation, including a round the new law are not compatible with decisive departure, at least in Victoria, Accordingly, these powers breach the table with the many social service the Charter. This admission includes from the long-held notion that the rights of freedom of association and and social justice organisations that an acceptance that limitations on best protection for human rights is freedom of expression contained in the have expressed concern at the new human rights in the SOWC Act are not the good sense of our parliamentary Charter. legislation, was voted down by both necessary, reasonable or demonstrably representatives’. Under the Act, the police may government and coalition members. justifi ed. As a Victorian-born citizen, I When the Summary Offences and conduct pre-arrest strip searches of any In refusing to allow the SOWC to see am no longer proud of our state’s new Control of Weapons Acts Amendment person, including children, in certain the light of public consultation, the Human Rights Charter. (SOCW) Bill was passed during a late- circumstances. The government has government has ignored the clear night sitting of the upper house of the sought to justify this in the interests of recommendation of the Victorian Dr Alice de Jonge is a community safety, but this is a grossly Privacy Commissioner. In her submission Liberty Victoria volunteer. 13