IALL 2019 Recap: Mary Crock, Refugee Law in Australia: The Protection of Migrant Children

By Rachel Green

Professor Mary Crock, Professor of Public Law at the University of Sydney Law School, taught “Refugee Law in Australia: The Protection of Migrant Children” at the IALL Annual Course on October 29, 2019.  Prof. Crock has co-authored two books relevant to this topic: Protecting Migrant Children: In Search of Best Practice (2018) and The Legal Protection of Refugees with Disabilities: Forgotten and Invisible? (2017).

The overarching takeaway was just how vulnerable migrant children are throughout the world.  According to 2015 UNICEF statistics, children accounted for 31% of the world’s population but 51% of the global refugee population.  The number of child refugees doubled from 2005 to 2015, particularly between 2011 to 2015 (likely due to the Syrian crisis).CROCK2019IALLPresentation - slide 1

Significantly, refugees do not typically begin by attempting international border crossing.  Instead, refugees fleeing their communities usually attempt internal migration first.  These “Internally Displaced Persons” (IDPs) numbered 41 million in 2015 (up from 28 million in 2010); 17 million (41%) were children.  It is only when IDPs are unable to find safety anywhere within their home countries that they risk seeking refuge across international lines.

Unaccompanied asylum seeking children are especially vulnerable to exploitation and abuse.  According to the UN Office on Drugs and Crime’s 2016 TIP Report, children represented 25-30% of trafficking victims (second to women).  The research underlying this report showed that conflict can drive trafficking, because traffickers “leverage [refugees’] desperation to deceive them into exploitation.”  Research also suggests that children are at greatest risk when moving along routes where they have to pay different smugglers for different legs of the journey.

Prof. Crock outlined international law agreements that are especially relevant to migrant children.  The International Covenant on Economic, Social, and Cultural Rights, Article 12, recognizes “the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.”  The Convention on the Rights of the Child (CRC) offers one of the strongest protections for children and is the most subscribed of all human rights conventions, although Prof. Crock noted that the U.S. has not ratified it, and many countries are not complying with it.  Traditional human rights treaties, as well as the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (1995), also play a significant role.

The CRC is critically important for understanding the rights of migrant children.  Of particular note, the CRC does not contain derogation clauses for emergencies, thus ensuring that migrant children retain their rights under all circumstances.  Some of the most pertinent articles are: Article 3, establishing that “best interests of the child shall be a primary consideration”; Article 19, requiring that State Parties protect children “from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse . . .”; Article 22, requiring “appropriate protection and humanitarian assistance” to refugee (or refugee status-seeking) children; and Article 38, requiring State Parties to “take all feasible measures to ensure protection and care of children who are affected by an armed conflict.”

Unfortunately, while mechanisms exist to protect children in theory, in reality, there are major gaps.  In Australia, an interest in deterrence has often prevailed over the need to protect children.  Examples include the use of prolonged detention onshore, the establishment of detention centers offshore, forced separation of children from their families, and the denial of family reunification after separation.

Prof. Crock emphasized the important role lawyers play, as they will always find a way to fight, even looking outside of immigration law.  For example, lawyers have made tort law claims on behalf of immigrants in detention camps.

Overall, this session was extremely informative, and Prof. Crock was a compelling speaker.  The subject of migrant children is particularly meaningful to me, as I do pro bono work on behalf of minors seeking legal status in the United States.  I wanted to be able to share this session with other FCIL members because I believe that it is a subject that resonates universally.  While the stories and information were difficult to hear at times, I was inspired by Prof. Crock’s positive attitude and hopefulness for change.  The lecture slides are available on the IALL website.

 

IALL 2019 Recap: George Williams AO, Australia’s Constitutional Quirks

By Jessica Pierucci

The International Association of Law Libraries hosts annual courses in different locations around the world each year. I was lucky enough to attend the 38th Annual Course, Law Down Under: Australia’s Legal Landscape, held October 27-30, 2019 in Sydney, Australia. The course [The 38th Annual Course of the International Association of Law Libraries in Sydney, Australia] included fascinating presentations from Australian lawyers, scholars, judges, and more. Among them were George Williams AO, Dean of the Law School, Anthony Mason Professor, and Scientia Professor at the University of New South Wales. An expert on Australian constitutional law, Williams engaged the audience with an eye-opening presentation titled Australia’s Constitutional Quirks.

George Williams speaking at a podium

George Williams AO

Misunderstandings

Williams opened with some alarming statistics about misunderstandings of the Australian Constitution. On a survey a number of years ago, 47% of respondents said Australia does not have a constitution. This is incorrect. In another survey, 61% believed Australia has a national Bill of Rights. This is also incorrect. According to Williams, Australia is the only democracy without a Bill of Rights in its federal constitution.

When working on Victoria’s Charter of Human Rights and Responsibilities, Williams frequently came across people who believed they could “plead the 5th” in court, a concept they likely learned from U.S. television that does not exist in the Australian Constitution. These conversations furthered Williams’ concern about the apparent lack of understanding of the Australian Constitution by many Australians.

Aboriginal Discrimination

One major issue with the Australian Constitution is its treatment of Aboriginal people. Current and former articles of the Constitution illustrate the discrimination ingrained in this document, created without the input of Aboriginal people.

Shockingly, Article 25 allows people to be disqualified from voting based on their race. While not currently in use, the fact that this article is still in the Constitution is deeply concerning. Williams does not know of another country with a similar constitutional rule. Aboriginal people only gained the universal right to vote at the federal level in 1962, less than 60 years ago.

In addition, former Article 127, repealed in 1967, excluded Aboriginal people from the population count. This former exclusion is emblematic of the view that Aboriginal people were not part of the country.

An active debate at the federal government right now focuses on Aboriginal people, responding to the 2017 Uluru Statement from the Heart requesting voice, treaty, and truth. But only time will tell if Aboriginal people will be appropriately incorporated into the Constitution, among other proposed reforms.

Challenges for Reform

Constitutional change is slow and difficult. The federal Parliament must initiate constitutional changes and Williams has seen a frequent disparity between the will of the people and Parliament’s actions. Further, constitutional amendments require referendum and only eight constitutional referendums have passed, most recently in the 1970s. Many more have not passed and the most recent attempt at a referendum was two decades ago.

Compulsory voting requirements mean that uninformed voters may vote against a referendum even if they agree with the idea proposed due to lack of understanding. Williams writes a regular newspaper column in The Australian with the hope of increasing awareness of the government and the Australian Constitution among the public, but he wonders how effective this is as he is not sure how many people are still reading the newspaper.

Encouragingly, many state constitutions throughout Australia have undergone changes to include a Bill of Rights and acknowledge Aboriginal people, among other reforms. But it’s a completely different story at the federal level.

Conclusion

Ultimately, Williams’ presentation showed the Australian Constitution has a disturbing history and substantial changes may still be quite a ways off. Remedy Australia collects United Nations cases finding Australia in violation of human rights. The data shows Australia has failed to remedy the vast majority of these violations. This falls in line with Williams’ understanding of Australia’s constitutional history and the resistance to change at the federal level.

IALL 2019 Recap: International Environmental Law in Australia

By Julienne E. Grant

Professor Tim Stephens spoke to attendees on the final day of the IALL conference, October 30, 2019. He is Professor of International Law at the University of Sydney; an Australian Research Council Future Fellow; and Deputy Director of the University of Sydney’s Marine Studies Institute. The topic of Professor Stephens’s excellent presentation was “International Environmental Law in Australia: Old Problems, New Challenges.”

Photo of Professor Tim Stephens.jpg

Professor Tim Stephens, Professor of International Law at the University of Sydney.

The professor began his talk by defining International Environmental Law (IEL). He said that it is a type of public international law that “seeks to conserve/manage natural and cultural/built environments.” He added that IEL is becoming increasingly important around the world and that it operates somewhat like the concept of equity.

Professor Stephens explained that IEL is predominately treaty-based; there are currently hundreds of such documents in force, with Australia being a party to more than forty multilaterals. The speaker explained, however, that treaties to which Australia is a party are not self-executing; that is, there is no automatic implementation, and only the Parliament of Australia can implement treaties. The professor indicated that the division between federal and state responsibilities is extremely complex in Australia, a fact that other conference speakers emphasized. Here, Professor Stephens cited the Tasmanian Dam Case” [1983] HCA 21, which radically expanded the power of the Australian parliament in external affairs. Overall, he said, the federal system has complicated Australia’s IEL commitments.

The speaker also indicated that the federal Environment Protection and Biodiversity Conservation Act 1999 (EPBC), although designed for the purpose of environmental protection, is not working; the federal government has not taken the lead on environmental management, leaving this to the individual states. He said that the Great Barrier Reef, a UNESCO World Heritage Site, is under significant environmental pressure; there is, for example, a coral “bleaching” problem, most markedly in the north part of the site. UNESCO, however, has not placed the Great Barrier Reef on its “In Danger” list yet.

The professor pointed out, though, that Australia has been a strong supporter of IEL overall, noting the country’s interest in protecting its unique species and biodiversity (he believes Australia is experiencing an extinction crisis with regard to both). He also noted that Australia brought a case to the International Court of Justice (ICJ) in 2010, accusing Japan of breaching several of its obligations under the 1946 International Convention for the Regulation of Whaling, as well as other international commitments to preserve marine mammals. Australia won the case (Australia v. Japan, decided March 31, 2014).

But the Australian government, Professor Stephens said, has taken an ambivalent stance on climate change because the country is a big user and exporter of fossil fuels. According to the speaker, there are weak emission targets in Australia, and the Clean Energy Future Act 2011 was repealed by the current government. He said that there are presently dozens of lawsuits in Australia related to climate change, and there is actually a separate Land and Environment Court in New South Wales (NSW). The current NSW government wants to override the federal “coal-friendly” administration. Gloucester Resources Limited (GRL) v Minister for Planning [2019] NSWLEC 7 has, however, changed the situation somewhat as dicta in that case suggests that climate change was a good reason to deny a construction permit for an open-cut coal mine. Professor Stephens called the language in that case “revolutionary,” as previously Australian courts did not look at anything related to IEL.

Professor Stephens concluded his lecture with the following thoughts:

  • IEL is being challenged significantly in the current geological era (Anthropocene), and we can expect to see a new round of IEL mechanisms;
  • Australian governments have generally been supportive of IEL treaties (but not always!);
  • Australia’s current federalist system has complicated its commitments to IEL;
  • The EPBC Act of 1999 has not been effective;
  • a new generation of environmental laws is needed in Australia, including a federal environmental act, monitored by independent institutions.

Overall, with regard to environmental protection, Professor Stephens believes that decision-making should be taken away from politicians and placed into the hands of scientists and other experts.

Professor Stephens’s PowerPoint slides for the presentation are posted on the IALL website.

IALL 2019 Recap: Australian Indigenous Peoples and the Law

By Meredith Capps

AustralianIndigenous

The panel at the Australian Indigenous Peoples and the Law program at IALL 2019.

On Monday, October 28th at 11:00 a.m., Thalia Anthony of the University of Technology, Sydney began the panel with her presentation titled Colonial Legal Histories and Indigenous Sovereignty.  Anthony described the concept of legal hybridity, and the historic tension between colonial jurisdiction and indigenous sovereignty.  She discussed the notion of ngurra-kurla embraced by the Warlpiri people, a philosophy embodying core elements of law land, law, language, skin, and ceremony, and how the Warlpiri utilize both compensation and shaming as punishment.  Recent policing of Warlpiri sacred sites in violation of its indigenous law provides an example of typical modern-day intracultural and intralegal conflicts.

Anthony discussed several significant Australian cases dealing with indigenous sovereignty, including:

  • R v Murrell (1836)–the Supreme Court of New South Wales (NSW) ruled that indigenous people are not “law-bearing people,” indigenous inhabitants subject to universal Anglo-Australian law;
  • Milirrpum v Nabalco & Cth (1971)–Supreme Court of the Northern Territories rejected a claim of native title;
  • Mabo v Queensland (No 2) (1992)–landmark decision of the High Court of Australia overturning Milirrpum, for the first time recognizing native title;
  • Walker v NSW (1994)–the High Court of Australia found that the legislature may pass general criminal statutes applicable to all persons;
  • Binge v Bennett (1988) & R v Buzzacott (2004)–NSW Supreme Court and Australian Capital Territory Supreme Courts dismissed concerns of racial bias in jury selection.

Anthony then discussed Australia’s incarceration of indigenous people, the most incarcerated group in the world.  Indigenous women currently represent Australia’s fastest-growing prison demographic.  Anthony characterized efforts to forcibly displace indigenous persons during the 18th century as “palliative carceralism” while in the 19th century, Australian authorities engaged in “protective carceralism,” asserting control over indigenous populations through missions and settlement.  Such efforts evolved into what Anthony characterizes as “welfare carceralism” and “penal carceralism.”  Indigenous communities are subject to a high level of policing on the streets, and greater levels of criminalization at each stage of the justice system (arrest, prosecution, and bail).  Indigenous young people are more likely to experience abuses such as torture while in police detention.  Despite efforts by the 1991 Royal Commission into Aboriginal Deaths in Custody, indigenous persons die at increasing rates while in police custody.  Anthony reemphasized that indigenous communities do not utilize prison as punishment, and highlighted the need for a hybrid domain embracing initiatives such as community courts and community justice reports.

In Protecting Indigenous Cultural Property, attorney Terri Janke described intellectual property protections for indigenous land, documentation, arts, and language.  She discussed international protocols such as the Negoya Protocol, WIPO provisions regarding traditional cultural expressions, and the UN Declaration on the Rights of Indigenous People, which assert rights, but these rights do not automatically translate into domestic statutory law in Australia. Janke highlighted challenges common to protecting cultural history in different spheres.  Copyright, for example, does not protect content such as oral history, which does not exist in a fixed format.  In the patent realm, co-sharing agreements can provide a mechanism for protecting indigenous knowledge in medicinal use of plants.  Janke discussed a few notable cases dealing with indigenous cultural property, including Milpurrurru v Indofurn, in which indigenous artists prevailed in a copyright suit involving use of their art in woven carpets, Bulu v R&T Textiles, rejecting the idea of communal ownership of copyright but finding that the artist owed a duty to the indigenous group whose work he represented, and ACCC v Birubi Art Pty Ltd, penalizing Birubi for sale of fake indigenous art in souvenirs.

Finally, Magistrate Sue Duncombe presented NSW Circle Sentencing and the NSW Youth Koori Court.  59% of the juvenile detention population is indigenous, and the Youth Koori Court, awarded a $2.7 million, three-year government grant, hopes to address this imbalance.  Its goal is not necessarily to reduce recidivism, but to reduce risk factors for offending, and though some participants have reoffended, many participants now live independently, obtain employment, and maintain custody of children. Juvenile offenders accepted in the program will engage in a suitability exercise where they learn program expectations, including developing of their own action and support plans, and compliance with monitoring and reporting procedures.  At sentencing, punishments may not exceed those the youth would receive in the criminal justice system, and staff acknowledge and incentivize progress.

IALL 2019 Recap: Pre-Conference Workshop–An Introduction to the Australian Legal System and Legal Research

By David Isom

IALL 2019 Preconference Workshop.JPG

Larissa Reid and Fiona MacDowall present at the IALL Pre-Conference Workshop

This year’s IALL Annual Course Pre-Conference Workshop was titled “An Introduction to the Australian Legal System and Legal Research.” Held at the Parliament House of New South Wales on Sunday, October 27, the workshop was presented by Larissa Reid, Reader Services Manager at the New South Wales Law Courts Library of Sydney, and Fiona MacDowall, co-editor of the Australian Law Librarian. The workshop was as an excellent introduction to the law of Australia and a very helpful preparation for the sessions that followed. While I can’t do justice to the breadth and depth of their presentation in a summary of this kind, I have chosen to highlight those topics which I—as a non-Australian with little familiarity with the country’s history and legal system—found particularly valuable.

Reid and MacDowall began the workshop with an introduction to the Australian system of government and legal system. Australia remains a constitutional monarchy whose head of state is Queen Elizabeth II, represented locally by the Governor-General (currently David Hurley). It is a federal parliamentary democracy with a written constitution which took effect in 1901. Vast in area (just under three million square miles) but relatively small in population (slightly more than 25 million residents as of 2019), it consists of six states and two self-governing territories (as well as seven external territories and the Jervis Bay Territory).

The British colonizers of Australia applied the doctrine of terra nullius (“land belonging to no one”) to the land they settled—disregarding the Aboriginal peoples and their customary legal traditions—and established English law in Australia, making it a common law jurisdiction. Formal reception of English law began in 1828 in New South Wales (which then included what are now Queensland and Victoria) and Tasmania with the Australian Courts Act 1828 and continued in additional states and territories through 1911. After reception, any subsequent English legislation is inapplicable (though English common law was not fixed at such time). After reception, the Australian colonies had the authority to enact legislation of their own provided that it was not “repugnant” to the laws of England (under the Colonial Laws Validity Act 1865).

The passage of the Commonwealth of Australia Constitution Act 1900 joined the six Australian colonies as “one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland.” Organized into eight parts, the Constitution establishes three branches of government: a Parliament (consisting of a House of Representatives and a Senate), the Judiciary, and the Executive Government. The Constitution gives Parliament the power to legislate in enumerated areas (including but not limited to defense; interstate and international trade; taxation; marriage and divorce; immigration; and bankruptcy); the states have power to make laws in all other areas. While it contains no bill of rights, the Constitution explicitly mentions five individual rights: the right to vote; protection against the Commonwealth’s acquisition of a person’s (or State’s) property on unjust terms; the right to a jury trial; freedom of religion; and a prohibition of discrimination based on a person’s state of residency. Amending the Constitution requires approval from Parliament and a nationwide referendum (which requires a “double majority”—approval of a majority of voters nationwide, as well as a majority of voters in a majority of states).

Australia has both Commonwealth courts and state/territory courts; the court of last resort for both is the High Court of Australia. For Commonwealth courts, the principal intermediate courts are the Federal Court and the Family Court, and the trial courts are the Federal Circuit Courts. States and territories have Supreme Courts; beneath them are the District or County intermediate courts and Local or Magistrates trial courts.

Two major free resources for finding legislation across all Australian jurisdictions are Lawlex and AustLII. Government websites (both for the Commonwealth of Australia and for individual states and territories) are also important free resources; for the Commonwealth, the websites for the Federal Register of Legislation (for texts of legislation and government gazettes) and the Australian Parliament (for bills, explanatory memoranda, texts of parliamentary debates, and committee reports) are particularly useful. For caselaw, AustLII and the partly-free/partly-paid platform Jade both include judgments from courts, tribunals, and commissions, as well as citators. Court websites (both for the Commonwealth and for individual states and territories) are also useful sources of the texts of judgments; for Commonwealth courts, see the websites for the High Court of Australia, the Federal Court, and the Family Court.

Legally significant decisions are published in law reports; the most authoritative are those officially selected as authorized law reports, which exist for both the Commonwealth and individual states and territories. For the High Court, the authorized report series is Commonwealth Law Reports (CLR), available in part on AustLII and Jade and in full on Westlaw AU. The authorized report series for the Federal Court is Federal Court Reports (FCR), available on Westlaw AU. Access to authorized reports for states and territories varies; some are available at no charge via AustLII, while others are only available via Westlaw AU or Lexis Advance Australia.

A wide range of secondary sources specific to Australian law (including encyclopedias, dictionaries, looseleaf services, and textbooks) are available, though many are exclusive to Westlaw AU or Lexis Advance Australia. Useful free secondary sources include Trove (a service of the National Library of Australia, which includes archived government websites and gazettes as well as non-law materials); the Monash University guide to legal abbreviations; the Australian Guide to Legal Citation, available as a free PDF from the University of Melbourne; and the Australian Legal Scholarship Library, available on AustLII.

Second Call for IALL 2019 Bloggers

sydneyAre you heading down under for IALL 2019 in Sydney?  We’re still looking for bloggers to recap some of the program for the blog.  We’re had a few volunteers, but are looking for a few more, particularly for the following sessions, but are happy to have coverage of any session you’re planning on attending:

Monday, October 28th
9:45-10:30am:  Keynote: Australia’s Legal History & Colonial Legacy

Tuesday, October 29th
9:30-10:15am:  Australia’s Constitutional Quirks
10:15-11:00am:  International Law in Australia

Wednesday, October 30th
9:30-10:15am:  Contemporary Challenges to Open Justice: Law, Technology, and Culture
1:45-2:30pm:  International Environmental Law in Australia
2:30-3:15pm:  Criminal Law in Australia

If you are willing and able to recap one of these sessions or any other program from IALL 2019, please email Alyson Drake at alyson.drake@ttu.edu or Jessica Pierucci at jpierucci@law.uci.edu.

Call for Bloggers: IALL 2019

volunteerAre you heading down under for IALL 2019 in Sydney?  We’d love to have some recaps of the program for the blog.  We’re particularly interested in the following sessions, but are happy to have coverage of any session you’re planning on attending:
Sunday, October 27th
1:30-4:30pm:  Pre-Conference Workshop:  An Introduction to the Australian Legal System and Legal Research

Monday, October 28th
9:45-10:30am:  Keynote: Australia’s Legal History & Colonial Legacy
11:00–12:30pm:  Australia Indigenous People and the Law

Tuesday, October 29th
9:30-10:15am:  Australia’s Constitutional Quirks
10:15-11:00am:  International Law in Australia
11:30-12:15pm:  Refugee Law in Australia

Wednesday, October 30th
9:30-10:15am:  Contemporary Challenges to Open Justice: Law, Technology, and Culture
1:45-2:30pm:  International Environmental Law in Austrlia
2:30-3:15pm:  Criminal Law in Australia

If you are willing and able to recap one of these sessions or any other program from IALL 2019, please email Alyson Drake at alyson.drake@ttu.edu or Jessica Pierucci at jpierucci@law.uci.edu.