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Special Feature: Human Rights
Human Rights In Focus
In this two-edition special feature, we delve into the constantly evolving arena of human rights and the important role legal professionals play in shaping the ways our laws protect those in our community. Part 2 will feature in February 2022.
Feature Contents
- Special Foreword by Greg McIntyre SC
- An Interview with Lorraine Finlay, Human Rights Commissioner
- 2021 Sir Ronald Wilson Lecture presented by Emeritus Professor Rosalind Croucher AM, President, Australian Human Rights Commission
- The Humanitarian Crisis in Afghanistan by the Law Council of Australia
- Rise of the Business and Human Rights Agenda by Dr Fiona McGaughey, UWA Law School
- Police Cautions and Admissibility of Evidence by Aidan Ricciardo, Lecturer at the UWA Law School
Special Foreword by Greg McIntyre SC
Greg McIntyre SC, Barrister at Michael Kirby Chambers, Executive Member of the Law Council of Australia, Past President of the Law Society of Western Australia
In Koowarta v Bjelke Petersen Sir Ninian Stephen,[1] considering the application of the International Convention on the Elimination of All Forms of Racial Discrimination as a source of legislative power for the Racial Discrimination Act 1975 (Cth) (the first instance of an Australian Parliament enacting into domestic law rights and obligations set out in a United Nations Convention) said:
As Prof Croucher, President of the Australian Human Rights Commission, highlights in her article in this Human Rights Special Feature, in 1948 Australia was a founding signatory of the Universal Declaration of Human Rights. It spelt out an agreed set of universal fundamental human rights. Australia has reinforced its adherence to those obligations by signing up to and ratifying the International Covenant on Civil and Political Rights 1976, International Covenant on Economic, Social and Cultural Rights 1976 and Declaration on the Rights of Indigenous Peoples 2007, endorsed by Australia in 2009.
The Honourable Michael Kirby in the McPhee Memorial Oration to the Diversity Council of Australia described the universal values enshrined in international Human rights instruments as ‘setting a standard by which to create and judge new laws and their impact on human rights’ and ‘a hook on which to hang arguments of inequality and injustice.’[2]
In 2007, the Government of Western Australia commissioned an extensive community consultation to consider the introduction of a WA Human Rights Act. An independent consultation committee led by Fred Chaney AO held state-wide public forums and received over 300 written submissions. Following this consultation, and consistent with the WA community’s strong support, the committee issued a comprehensive report recommending that WA introduce a Human Rights Act with strong legal protections for a broad range of civil and political rights as well as economic, social and cultural rights. The report[3] included a draft Human Rights Act, which adopted a ‘dialogue’ model which would preserve the supremacy of Parliament, so that the Judiciary would not have the power to override the intent of Parliament. No WA Government has since proceeded with enacting a WA Human Rights Act.
Victoria, the ACT and Queensland have now passed Human Rights Acts. It is high time that Western Australia revisited the work done 14 years ago and joined those jurisdictions in Australia who have such legislation operating in fulfilment of the entitlement which all citizens have to the observations of fundamental human rights.
The impetus to do that is, as the Human Rights Commissioner Lorraine Finlay says in her interview in this Human Rights Special Feature, that “at the centre of every human rights issue are individual people whose lives are impacted [who are] free and equal in dignity and rights”. They are entitled to be enabled to have recourse to a comprehensive legislative framework protecting their fundamental human rights.
Prof Croucher reminds us, in her piece in this Special Feature, of the Bringing Them Home report of Western Australian Commissioners, Sir Ronald Wilson and Prof Mick Dodson, which pointed out that the forced removal of Aboriginal children in Australia breached the Genocide Convention 1949 and amounted to the considerable suffering of the ‘Stolen Generations’. Australia is a signatory to that Convention, in which “genocide” is defined to include “forcible transfer of children from a racial, ethnic or national group to another group with the intention of destroying that group”. The Stolen Generations were referenced in Collard v State of Western Australia.[4]
It should be pointed out that Justice Pritchard did not make any finding in relation to a ‘Stolen Generation’ in her primary judgment, because the direct facts she was dealing with were of one family and she found against the argument of breach of the State’s fiduciary duty argued in that case. However, the case was selected to be supported by the Aboriginal Legal Service of WA and conducted as a ‘test case’ on the ‘Stolen Generations’ (with the pro bono legal assistance of Lavan Legal) from the many instances of Aboriginal children removed from their families by the State held in the ALSWA catalogue of cases. This was referred to by Justice Pritchard in her Costs decision at [28]. Justice Pritchard refers to the ‘Stolen Generation Inquiry’ at [102] and [1058] of her primary judgement on liability. Members of the Collard family had, prior to the commencement of the case in the Supreme Court received payments from the State under its Redress Scheme, which was established by the State Government ‘to acknowledge and apologise to adults who, as children, were abused and/or neglected while they were in the care of the State. It ran from 2008 to 31 December 2011.’[5]
Some members of the Stolen Generations were directed into indentured service[6] one of the practices now captured under the Modern Slavery Act 2018 (Cth) (MSA), discussed in this Special Feature by Dr Fiona McGaughy, along with Magnitsky laws.
The relevance of the Procurement Act 2020 (WA), referred to by Dr McGaughy, which allows for the termination of government contracts with those who do not comply with the MSA is brought home when one considers, as Dr McGaughy points out, that the top five products imported by the G20 at risk of modern slavery include laptops, which are in daily use by most Western Australians.
The discussion of the Magnitsky laws has some immediate currency. The Parliament on 2 December 2021 passed the Autonomous Sanctions Amendment (Magnitsky-style and Other Thematic Sanctions) Bill 2021 (Magnitsky Act). The Magnitsky Act amends the Autonomous Sanctions Act 2011 (Cth) to expand Australia’s autonomous sanctions framework to expressly allow for targeted sanctions to be imposed on foreign individuals and entities to address, amongst other things, ‘serious violations or serious abuses of human rights’ and ‘activities undermining good governance or the rule of law, including serious corruption’.
The Law Council of Australia in its article on the Humanitarian Crisis in Afghanistan reminds us that Australia has international obligations under the Refugee Convention, to which Australia is a signatory, to provide asylum to Afghans who seek it and Australia has a particular moral obligation in relation to those who worked to support Australia’s defence and humanitarian work in Afghanistan and to defend and uphold the rule of law, and notes the particular risk posed to women participating in the legal profession in Afghanistan.
It is an uncontroversial employment law concept that an employer has power to issue lawful and reasonable directions to employees.[7] In addition, employers have a duty of care to safeguard clients and employees.[8] Equally, employees have a duty to take care that acts or omissions do not adversely affect the health and safety of others.[9] In that context, mandatory vaccination is arguably a justifiable limitation on the exercise of other rights and freedoms.
The non-derogable human rights recognised in international law comprise:
- right to life;
- freedom from torture, cruel, inhumane or degrading treatment or punishment;
- freedom from medical or scientific experimentation without free consent;
- freedom from slavery or involuntary servitude;
- right not be imprisoned for contractual debt;
- right not to be convicted or sentenced to a heavier penalty by virtue of retroactive criminal legislation;
- right to recognition as a person before the law; and
- freedom of thought, conscience and religion.
It is arguable, in my view, that the scientific work and legal approvals processes for vaccines in relation to the current COVID-19 pandemic take their administration to the public beyond any suggestion of ‘experimentation’. Mandatory vaccination, in response to the COVID-19 pandemic, is consistent with the Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights.[10] To the extent that mandatory vaccination for COVID-19 might be said to infringe any freedom, in my view, any vaccination requirement may be legitimately mandated in accordance with the Siracusa Principles, in that it is:
- in the interests of a legitimate objective of general interest, i.e., a public emergency which threatens the life of a Nation;
- provided for and carried out in accordance with the law;
- strictly necessary in a democratic society to achieve the objective of general interest;
- there are no less intrusive and restrictive means to achieve the same goal;
- and the restriction is not imposed arbitrarily.
The Full Bench of the Fair Work Commission, on 3 December 2021 in CFMEU v Mt Arthur Coal Pty Ltd,[11] concluded that compliance with an employer’s consultation obligations under work health and safety laws, employment contracts and other industrial instruments and a robust risk assessment is a necessary pre-requisite to a mandatory vaccination direction to employees being found to be lawful and reasonable. The Commission did not find it necessary to determine whether the employer had complied with its obligations under the Privacy Act 1988 (Cth) in relation to bodily integrity.
Ultimately human rights are about what the Court of Appeal based its decision upon in the case of Luo v The Queen[12], referred to by Aidan Ricciardo in his piece on Police Cautions and Admissibility of Evidence. The Court found that, when the accused person was being interrogated by police, he understood that he did not have to answer police questions, but, when he said he did not wish to answer any questions, the police ignored that and continued to interrogate him. The Court found that the interrogation breached the Anunga guidelines and that it lacked ‘fairness’ and ‘failed to respect the appellant’s choice to stay silent’.
End notes
1 - [1982] HCA 27; (1982) 153 CLR 168, at [27].
2 - Australia must ‘quickly’ consider adopting a Bill of Rights: Michael Kirby - Lawyers Weekly.
3 - Report of the Consultation Committee for a Proposed WA Human Rights Act - November 2007 (d3n8a8pro7vhmx.cloudfront.net)
4 - [2013] WASC 455, at [102] and [1058] and [2013] WASC 455(S), at [28]
5 - https://www.findandconnect.gov.au/guide/wa/WE00505
6 - https://www.sbs.com.au/nitv/10-things-you-shouldknow-about-slavery-in-australia/2e1e21d2-6a9a-43be9ee2-f0eecf33dcd7.
7 - R v Darling Island Stevedoring & Lighterage Co Ltd; Ex parte Halliday (1938) 60 CLR 601, 621-622.
8 - Work Health and Safety Act 2011 (Cth), s 19(1).
9 - Work Health and Safety Act 2011 (Cth), s 28.
10 - Siracusa-principles-ICCPR-legal-submission-1985-eng. pdf (icj.org)
11 - [2021] FWCFB 6059.
12 - [2020] WASCA 184 at [54] and [76]-[78]
The Inside Story: An Interview with Human Rights Commissioner Lorraine Finlay
Lorraine Finlay commenced her term as Human Rights Commissioner on 22 November 2021. Lorraine was a member of the Law Society for many years, until she moved to Canberra.
Prior to joining the Commission, Lorraine worked as a lawyer and academic specialising in human rights and public law. Her most recent roles have been as the Senior Human Trafficking Specialist with the Australian Mission to ASEAN, and as a law lecturer at Murdoch University, for which she has received a number of awards including Law Lecturer of the Year.
Lorraine has also been actively involved in a variety of community organisations, most recently as a member of the Executive Committee of the National Council of Women (WA) from 2011-2019. She has been awarded both the Centenary Medal and WA Law Society Youth Community Service Award for her volunteer work.
She kindly took time out to answer a few questions relating to her career and important new role as Human Rights Commissioner.
How did you become interested in law and in particular human rights?
I’ve wanted to be a lawyer ever since I was a child. While I don’t come from a family of lawyers, I do come from a family that always encourages community involvement and service. Becoming a lawyer seemed to be a way of combining my love of learning and reading, my curiosity for exploring and debating ideas, and my passion for people and community. Given that my interest in law was really based around wanting to help people, I naturally gravitated towards areas of law that had a human rights aspect to them. My legal career hasn’t always been linear, but it has always been guided by wanting to pursue opportunities that are people-focused and allow me to work on issues that I feel passionately about.
What motivated you to achieve so much in your career so far?
I’ve always been very aware of how fortunate I am to have had the opportunities that I have had. My grandfather has been a significant influence here. He originally wanted to be a lawyer, but had to leave school at an early age and never got to realise that dream. He has supported me every step of the way, but is also a constant reminder to me not to take opportunities for granted. John F. Kennedy famously said (drawing from Luke 12:48) that “For of those to whom much is given, much is required”. That has always struck a chord with me, and I have always been strongly motivated by the concept of community service and trying to make a positive difference.
As Human Rights Commissioner, you will be responsible for protecting and promoting traditional rights and freedoms in Australia. What do you think will be the hardest challenges of your new role?
I think the hardest challenge of the role is the fact that there are no abstract issues. At the centre of every single human rights issue are individual people whose lives are being impacted. As lawyers we’re trained to approach the law dispassionately and objectively, but as Human Rights Commissioner it is important not to lose sight of the fact that people are at the very heart of the job.
What would you like to achieve during your tenure?
There are a number of specific issues that I am keen to focus on – addressing human rights issues arising in the context of the ongoing COVID-19 pandemic, ensuring Australia does even more to tackle modern slavery and human trafficking, and focusing on fundamental freedoms such as freedom of speech, religion, movement and association. But what I would really like to achieve over my term is to strengthen the national conversation around rights and freedoms and to encourage people to become more engaged with these issues. In my view, the national conversation has become too focused on government, with people ignoring the role that they themselves need to play in preserving and strengthening rights and freedoms. We need to broaden the human rights conversation so that we aren’t just talking about what government needs to do to protect human rights, or immediately defaulting to thinking that passing a law is the only way to fix a problem. Instead we need to be talking about what we can all be doing as individuals and in our communities. Ultimately our rights and freedoms are too important to be left solely to government. We all need to take responsibility for strengthening and protecting human rights in Australia. If I can help to broaden the national conversation in this way that would then have a positive impact on a whole range of specific human rights issues.
Since you began practice, what change in the law/legal profession has been the most positive?
The most profound change has been the rapid development of technology. When I first started at Law School most students still took notes using a pad and paper, lectures were never recorded, and searchable electronic legal databases were non-existent. The way that technology has transformed both the study and practice of law has been overwhelmingly positive, particularly through making them more accessible and flexible. There are likely to be further long-term developments on this front as a result of the pandemic, with some of the remote and flexible working arrangements adopted out of necessity likely to have a continuing place in the post-pandemic workplace.
Is there anything you would like to change about the legal profession?
An issue that is going to need a renewed focus as we emerge from the pandemic is mental health and well-being within the legal profession. There has been a lot of excellent research and work done in recent years that
has recognised the critical importance of this issue, and that has helped reduce the stigma that has sometimes attached to these challenges. Unfortunately the pandemic has exacerbated many of the vulnerability factors that have previously been identified, particularly with respect to law students and young lawyers. Prioritising mental health and well-being as we emerge from the pandemic is going to be important for each of us as individuals, but it is also important for the legal profession more broadly to recognise the challenges and prioritise providing appropriate support.
How has the pandemic altered human rights discourse in Australia?
For many Australians freedom has been something that we have been able to largely take for granted in our daily lives up until recently. The pandemic has changed this, with the pandemic-related lock-downs and restrictions giving many of us for the first time a direct and personal understanding of what it means to have our rights and freedoms restricted. I am hopeful that we might emerge from the pandemic with a stronger appreciation of just how important rights and freedoms are in our daily lives, and a renewed commitment to strengthening human rights in Australia.
What do you say to theorists who doubt the existence of human rights?
I fundamentally disagree with them! It is certainly true that there are far too many examples (both throughout history and in the present day) of us failing to live up to human rights ideals. I also worry that the idea of universal human rights is undermined by broadening the concept to the point where it becomes essentially meaningless. But at the very core of human rights is the idea that all human beings are born free and equal in dignity and rights. Everything else stems from that. Which means that theorists who doubt the existence of human rights are really doubting the inherent dignity of all human beings. Nelson Mandela expressed the importance of this perfectly when he said that “[t]o deny people their human rights is to challenge their very humanity”.
What are some of your favourite books?
I absolutely love reading so picking just one or two favourite books is almost impossible. My favourite part-time job while I was at University was working at Dymocks in the Hay Street mall – being in a job where I was paid to talk to people about books and encouraged to read as widely as possible was pretty amazing! Part of what I love about reading is the use of language to inspire your imagination. Two of my favourite authors – Kazuo Ishiguro and Trent Dalton – have very different styles, but are my favourites because of the simply beautiful way that they each write and use language. Kazuo Ishiguro somehow conveys depths of meaning through restrained and understated language, while the lyrical way that Trent Dalton writes is magical. I’ve just finished reading Klara and the Sun, and Love Stories is right at the top of my Christmas reading list.
I’ve also got two young children and probably spend more time reading children’s books than adult literature! We did a lot of family reading during lockdown – we’ve just finished the latest book in The Bad Guys series and are huge fans of the Harry Potter books. Seeing my kids develop a love of reading, and sharing my childhood favourites with them, is really special.
2021 Sir Ronald Wilson Lecture
The Perils of Independence: The Australian Human Rights Commission’s role in protecting human rights in Australia
Presented by Emeritus Professor Rosalind Croucher AM, President, Australian Human Rights Commission Wednesday, 4 August 2021
Presented in Exclusive Partnership with Curtin University
Abstract
The Bringing Them Home inquiry and report, which investigated the forced removal of Aboriginal children from their families and communities, was Sir Ronald Wilson’s ‘blowtorch moment’. It led to conclusions that the removal of children could be considered ‘genocide’ and made recommendations for an apology and for reparations. The report is of continuing influence, although the reaction of government at the time was very negative. However, over time, the Bringing Them Home inquiry and its report demonstrate the power of independence and the ability of the Australian Human Rights Commission to contribute to change over a long horizon. It illustrates Sir Ronald Wilson’s role as President of the Commission and also the Commission’s role in protecting human rights in Australia, which, to this day, remains the only country in the Commonwealth of Nations not to have a Charter or Human Rights Act.
On 7 February 1990, Sir Ronald Wilson was appointed President of the Human Rights and Equal Opportunity Commission (HREOC) - now the Australian Human Rights Commission - under the Labor Government led by the Hon Robert Hawke MP. He was 67 years of age, charismatic, ‘universally liked and admired’ with a distinguished career in the judiciary behind him. His appointment was suggested by some as ‘calculated to save the Commission from abolition if the Coalition did gain power’.[1]
At the beginning of his time as HREOC President, Wilson was described as ‘circumspect’, and not wanting to embroil the Commission in political controversy. But, in the ensuing years, he was to become more forthright in expressing his views.
In September 1991, he gave voice to some of his thoughts about human rights in a lecture, the title of which was framed as a question: ‘Human Dignity for All: A Pie in the Sky?’ Wilson referred to the ‘respectable body of “law”’ represented by the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights— which together form the ‘International Bill of Human Rights’—and noted that a Declaration on the Rights of Indigenous Peoples was in the process of preparation at the time. All of this, he said, was ‘designed to encourage members of the UN to fulfil the hopes of 1945’,[2] when the founding document of the UN, the UN Charter, was signed.
However, 45 years on from the signing of the Charter, little had been done to enact the rights and freedoms protected by those instruments into Australian law. To Wilson, it was unacceptable for Australia to ratify international human rights instruments and then only partially enforce them. He considered that it was his obligation in his role as President of HREOC to advocate for human rights, particularly for the marginalised and disadvantaged sections of the community.[3]
On 11 May 1995, the then AttorneyGeneral, the Hon Michael Lavarch MP, under the Labor Government of the Hon Paul Keating MP, referred to the Commission an inquiry into the forcible removal of Aboriginal and Torres Strait Islander children from their families.
It was two and half years after Prime Minister Paul Keating had said in an address at Redfern, to launch the UN International Year of the World’s Indigenous Peoples, that ‘We took the children from their mothers’.
The inquiry was led by Wilson and Mick Dodson, the Aboriginal and Torres Strait Islander Social Justice Commissioner. It led to the report, Bringing Them Home: National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families (April 1997). The title for the report came from the evidence of Aboriginal poet, James Miller, at the inquiry hearings in Sydney, who said, ‘We need to bring them home’.[4]
The inquiry was to be Wilson’s ‘blowtorch moment’.
Blowtorch moment
In my first formal speech in my role as President of the Australian Human Rights Commission, I coined this phrase. I said:
The Bringing Them Home inquiry hearings were a life-changing experience for Wilson. In the biography, Sir Ronald Wilson: A matter of conscience, Antonio Buti says:
Among the recommendations of the Report were that an apology should be given for separation, to be participated in by Parliaments and churches, as well as restitution, rehabilitation and monetary compensation.[7] Another recommendation was for a national ‘Sorry Day’. The Report also concluded that
The definition of genocide includes the forcible transfer of children from a racial, ethnic or national group to another group with the intention of destroying that group.[9]
Within the Commission, the question of whether to use the ‘genocide’ label, generated a ‘significant debate’.[10] Mick Dodson was not so sure about the wisdom of using this label.[11] As Buti explained:
The ‘crux of the argument’ was that the removal policy’s intention was ‘to destroy the Aboriginal race by assimilating the next generation of Aborigines into mainstream European society and culture. The policies intended to assimilate Aboriginal children into White society, so that they would lose their “Aboriginality”.’[13]
The recommendation was a symbolic one: that the Commonwealth should legislate to implement fully in domestic law the Convention on the Protection and Punishment of the Crime of Genocide (Genocide Convention), which Australia had ratified in July 1949.[14]
In his Sir Ronald Wilson Lecture, Robert Nicholson said that, ‘These and other recommendations entered the political realm and became the subject of intense debate and, by some, intense anger’.[15]
Shooting the messenger
Where Terms of Reference are provided by an Attorney General, as distinct from an inquiry at the initiative of the Commission itself, it may well be that governments change in the middle, so that the Attorney, and Government, that commissioned the inquiry, are not the ones to receive the result. This was the case for the Bringing Them Home report.
On 5 April 1997 the report was delivered to then Attorney General, the Hon Daryl Williams AM QC MP, of the Coalition Government of John Howard. The political environment could hardly have been more different than in 1992, when Paul Keating made his Redfern speech.
There were other elements in the environment: Pauline Hanson was elected in 1996; the Wik case was decided on 23 December 1996,[16] the High Court holding that native title could coexist on pastoral leases, and the Government’s ‘Ten Point Plan’ was announced late in April 1997, watering down native title rights, in response.[17] This was not an environment to be receptive of the Bringing Them Home report, let alone a finding of ‘genocide’. As Buti observed:
On 20 May, the Sydney Morning Herald ran a front-page story referring to ‘unnamed government sources’ condemning the report, even though it had not yet been tabled. Margo Kingston also wrote about the attempt to discredit Wilson, in an article entitled, ‘Report that Won’t Stay under the Carpet’. Kingston referred to the advice of ‘Yes Minister’s’ Sir Humphrey Appleby to his MP, Jim Hacker, about how to suppress an inconvenient official report: ‘Discredit the man who produced the report.’19 In terms of Sir Humphrey’s strategy of ‘discrediting the man’, however, Kingston commented that the Government had a problem:
A Government press statement was made on 21 May, referring to aspects of the as-yet-untabled report. The statement attacked the report’s genocide finding and dismissed any suggestion of awarding compensation.[21]
This is a classic case of ‘shooting the messenger’.
On 26 May, the opening day of the Reconciliation Conference in Melbourne, the report was tabled and Wilson could now speak about it. In an ABC radio interview he said that he and those involved in the inquiry
What Wilson was doing was using international law principles in the domestic context—his brief under his statutory mandate. But the messenger was still shot.
The Commission’s Annual Report for 1997–1998 shows that budget cuts, taken over a three year forward period, represented a reduction of 40% of the budget of the Commission.23 Having strong, independent, national human rights institutions is an expression of the robustness of the commitments of governments across the globe in ratifying international conventions and treaties.[24]
Australia was a founding supporter of the UDHR and the Charter of the United Nations itself. If you look at the seven major treaties[25] Australia has committed to and their ratification, it is an equal split of Coalition and Labor support. It is neither a ‘Labor’ nor a ‘Coalition’ project. The commitment to respecting, protecting and fulfilling human rights, should therefore be above politics.
The language of ‘human rights’ and international law
While the act of ratifying treaties is a government commitment to give effect to human rights in Australian law, policy and practice, 73 years on from the Declaration (and some 30 years after Wilson’s speech of 1991), little has still been done to make the rights and freedoms enshrined in these international human rights instruments directly enforceable in Australia.
When the Commission was put on a permanent footing in 1986, as HREOC, it was designed in tandem with an accompanying Australian Bill of Rights Act. The Bill was passed in the House of Representatives, but did not pass the Senate. More recently, the idea was the principal recommendation of the National Human Rights Conversation led by Fr Frank Brennan SJ, over a decade ago.[26] The past President of the Law Council of Australia, Pauline Wright, in her Press Club address in 2020, also called for an Australian Bill of Rights.
While every other country in the Commonwealth of Nations has moved forward by introducing a Charter of Rights or a Human Rights Act—Australia stands alone for not having introduced such protection, at least at the federal level.
From the perspective of the Commission’s jurisdiction, it is still unfinished legal architecture. We are like a doughnut—with a hole in the middle.
International not domestic framing
Even without a formal enactment of a ‘Human Rights Act’, people can bring a complaint to the Commission on the basis of the ICCPR and other rights in the instruments scheduled to our Act.[27] But it is not judiciable, nor can there be enforceable remedies.
The Commission has a growing set of complaints invoking the right to return to the country and for children to enter or leave Australia for the purpose of family reunification during COVID-19.[28] These complaints do not sit under the category of ‘unlawful discrimination’ in Australia’s four anti-discrimination laws, but in what we describe as our ‘human rights’ jurisdiction that links to the treaties.
For complaints that reference the international treaties, an additional challenge is that the respondent is principally the Commonwealth, because the ‘acts or practices’ that we can consider are those ‘by or behalf of the Commonwealth or an authority of the Commonwealth’, which at many times places us in an oppositional position to government.
Moreover, the acts or practices may well be lawful under domestic law, but contrary to international human rights obligations. So the Commonwealth has a clear answer to the complaints in domestic law. But in international law, that is no defence.
When it comes to our function to consider human rights complaints, domestic law and international expectations are at loggerheads. In the absence of a Human Rights Act, the Commission has once again become the Devil’s Blowtorch.
The beauty of a Human Rights Act, and other measures that front-load rightsmindedness, is that they are expressed in the positive: affirming rights and freedoms—not just implying them—and giving a clear anchor for decision making. It front-loads human rights thinking.
Advancing the case for a Human Rights Act and other complementary reforms is the focus of the current project that I am leading, Free and Equal: the national conversation on human rights.[29]
No ordinary report—no ordinary man
Twenty-four years after the Bringing Them Home report was tabled, apologies have now been delivered by every Australian Parliament. Compensation schemes have been established in most Australian jurisdictions, either directly for members of the stolen generation, for the stolen wages of Aboriginal domestic workers, or for victims of institutional child sexual abuse.[30]
There is also now an accepted understanding, demonstrated in the language of the National Agreement on Closing the Gap,[31] that the actions of the past affect the health and other outcomes of the present. The truth of what was reported in Bringing them Home is now accepted and taught in schools nationally.
As Buti remarked, ‘The furore that followed the handing down of the report would forever change [Ron’s] place in Australian history’.[32]
Human rights, and the Australian Human Rights Commission, needs such champions. Wilson was, as Fr Frank Brennan remarked, ‘Western Australia’s gift to the nation’.[33]
End notes
1 - Chris Connolly and Paul Vout, ‘A New Era for the Human Rights Commission?’ 1990 (1) Polemic 20.
2 - Ronald Wilson, ‘Human Dignity for All: A Pie in the Sky?’, The Mitchell Oration 1991, 3.
3 - Buti, A Matter of Conscience, 293.
4 - Buti., A Matter of Conscience, 325. The suggestion for making it the title of the report is credited to Meredith Wilkie.
5 - ‘National Human Rights Commissions — What’s the point?’, International Bar Association Section on Public and Professional Interests, IBA Conference, Sydney (12 October 2017), 9.
6 - Buti, A Matter of Conscience, 324.
7 - Human Rights and Equal Opportunity Commission, Bringing Them Home: National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families (April 1997), 284–94, 302–13, 415–21.
8 - Bringing Them Home, 266.
9 - Article II. Australia ratified the Genocide Convention on 8 July l1949.
10 - Buti, A Matter of Conscience, 321. Dr Sarah Pritchard and Meredith Wilkie, staff working independently on the research and writing, both concluded that genocide was relevant to the findings and conclusions of the inquiry.
11 - Buti, A Matter of Conscience, 324.
12 - Buti, A Matter of Conscience, 325.
13 - Buti, A Matter of Conscience, 325.
14 - Human Rights and Equal Opportunity Commission, Bringing Them Home: National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families (April 1997), 292–5.
15 - Nicholson, ‘Sir Ronald Wilson’, 514.
16 - The Wik Peoples v The State of Queensland & Ors; The Thayorre People v The State of Queensland & Ors [1996] HCA 40.
17 - Buti, A Matter of Conscience, 330–331.
18 - Buti, A Matter of Conscience, 330–331.
19 - Buti, A Matter of Conscience, 332.
20 - Buti, A Matter of Conscience, 333. Sydney Morning Herald, 20 May 1997.
21 - Buti, A Matter of Conscience, 334.
22 - Buti, A Matter of Conscience, 337.
23 - Human Rights and Equal Opportunity Commission, Annual Report 1997–1998, 12–13.
24 - There is a process of accreditation for NHRIs, reflecting the centrality of the idea of independence, and principles concerning appointment and tenure of Commissioners and adequate funding to be able to operate independently of government, and not be subject to financial control: Paris Principles: https://humanrights.gov.au/our-work/commission-general/principles-relating-status-national-institutions-paris-principles-human/
25 - The International Covenant on Civil and Political Rights- external site (ICCPR); the International Covenant on Economic, Social and Cultural Rights - external site (ICESCR); the International Convention on the Elimination of All Forms of Racial Discrimination - external site (CERD); the Convention on the Elimination of All Forms of Discrimination against Women - external site (CEDAW); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT); the Convention on the Rights of the Child - external site (CRC); and the Convention on the Rights of Persons with Disabilities (CRPD).
26 - National Human Rights Consultation (Report, September 2009).
27 - Most notably, however, these instruments do not include the ICESCR.
28 - For individuals alone – Art 12 ICCPR; for family groups – Art 12,17 and 23 of ICCPR; and family groups with children, all of the above plus Arts 3, 8, and 10 of the CRC.
29 - In opening Law Week in Perth in 2019 I spoke about my Damascene journey of acceptance of the need for an Australian Human Rights Act, which was extracted and published in this Journal: ‘Law, Lawyers and Human Rights’ (2019) 46(5) Brief 22.
30 - On 5 August 2021, the day after delivering this Lecture, the Prime Minister announced the new Closing the Gap implementation plan would include a $378 million new redress scheme for Stolen Generations survivors. PM to unveil $1 billion Closing the Gap Implementation plan (news.com.au)
31 - https://www.closingthegap.gov.au/national-agreement
32 - Buti, A Matter of Conscience, 330.
33 - Brennan, ‘The Law and Politics of Human Rights’, 33.
The Humanitarian Crisis in Afghanistan
by the Law Council of Australia
The world watched on in shock as news and images were beamed from Kabul Airport in August of thousands of people trying to flee Afghanistan, of plane holds crammed full with hundreds of evacuees, and of the tragic loss of lives.
The fall of Afghanistan’s Government to the Taliban and the withdrawal of NATO Allied Forces, including Australian troops, resulted in a humanitarian crisis within Afghanistan, a significant internal displacement of Afghans, and reports of violence directed at Hazara Afghans. It has also produced a significant influx of Afghan asylum seekers to neighbouring countries and over 100,000 humanitarian visa applications made to Australia’s Minister for Home Affairs. A
s events unfolded, the Law Council of Australia called on the Australian Government to urgently assist Australians at risk along with Afghans who supported Australia’s defence and humanitarian work in the country.
It also held serious concerns for those who worked to defend and uphold the rule of law, and to support and establish democratic and justice institutions over the past twenty years, including in particular women participating in the legal profession.
On 1 September 2021, after the publicly indicated completion of rescue efforts, the Senate Foreign Affairs, Defence and Trade References Committee was charged with undertaking an inquiry into a range of issues associated with Australia’s engagement in Afghanistan.
The Law Council welcomed the opportunity to contribute to this inquiry, to reiterate and detail its views and recommendations and provide evidence at a public hearing.
The Law Council’s submission to the Senate Inquiry focusses on Australia’s obligations and actions now, rather than past events such as Australia’s military engagement in the first place and its planning for withdrawal.
Australia has international obligations in relation to Afghans who have already sought asylum in Australia and in relation to Afghans who may seek asylum in the future. Every person has the right to seek asylum and Australia is obliged to provide a fair, clear legal process for determining of claims made to it, and durable solutions for those found to be owed protection, which avoid discrimination which is based on a person’s mode of arrival. Australia has also committed to multilateral engagement, through United Nations processes, to support those Afghans who now seek protection from the international community more generally.
Australia has already taken steps which reflect an acknowledgement of many of these obligations and responsibilities. These steps are welcome, but the Law Council considers that more can be done. Specifically, the Law Council further recommends:
- The Australian Government ensure that it gives effect to all of its international obligations in relation to Afghan asylum seekers, with respect to both those who may seek asylum as a result of recent events, and those who have already sought protection or been recognised as being owed protection prior to these events;
- Extending the range of persons who qualify for protection by virtue of the assistance they or a family member provided to Australian Government agencies in Afghanistan;
- The Australian Government commit to substantially increasing the number of humanitarian visa places allocated to Afghans (currently 3,000) beyond the current humanitarian programme ceiling of 13,750 places annually over the next three years;
- Consideration be given to providing a contribution to the United Nations High Commissioner for Refugees’ (UNHCR) Afghanistan Situation Funding as part of its response to the humanitarian response to the influx of Afghan asylum seekers consistent with the commitments Australia made as a member of the United Nations General Assembly (UN GA) in the New York Declaration for Refugees and Migrants and the Global Compact on Refugees adopted by the UN GA in 2016;
- Urgently review its regional resettlement policies with a view to facilitating the expeditious resettlement of Afghan refugees registered with the UNHCR in Indonesia and Malaysia;
- The Department of Home Affairs makes a number of improvements to its systems for receiving, acknowledging and processing protection claims, and for undertaking identity checks;
- The Australian Government consider contributing to the international community’s effort to monitor possible human rights abuses in Afghanistan in light of the appointment of a special rapporteur to monitor the human rights situation there;
- The Minister for Home Affairs and the Department provide clarity to those Afghans who were granted a temporary Subclass 449 (Humanitarian Stay) visa to facilitate their expeditious departure from Afghanistan, but who are unable to apply for a visa once in Australia until the Minister lifts the visa application bar which applies to them. These Afghans should be permitted to apply for a permanent protection visa;
- Afghans who hold temporary protection visas either be transferred to permanent protection visas or be given access to a full range of social services and the right to sponsor family to migrate to Australia;
- The Australian Government identify opportunities to protect, assist and support Afghan nationals who have worked to defend and uphold the rule of law and to support and establish democratic and justice institutions over the past twenty years, and who are now at grave risk as a result of this work;
- The Australian Government urgently restore funding so that free legal assistance and representation is available to all asylum seekers in need, or at least provide dedicated additional funding to ensure the large number of Afghans seeking asylum from Australia have such assistance, including those whose claims may need to be revisited.
The Law Council was pleased to be able to speak directly with Committee Members at a public hearing on 8 September 2021. During this hearing, the Law Council’s spokespeople highlighted the vital need for a specific increase in places allocated to Afghans within the humanitarian program.
Senators were particularly interested in the Law Council’s insights on the number of people seeking visas and accessing assistance from the Australian legal profession and how challenges relating to identification should be addressed.
In response to this questioning, the Law Council provided a supplementary submission.
Reaching out to the profession to gather this information, the Law Council was overwhelmed and moved by the stories of urgent and increased demand, and a commitment to provide assistance in any way possible. Firms across the country are dedicating substantial resources to provide pro bono services to thousands of asylum seekers.
On its Migration Law website, the Law Council has established a referral point to assist people impacted by the crisis in Afghanistan who are seeking legal services.
The humanitarian crisis has far from passed, and the Law Council will continue to engage and work with Government and to advocate for those who need and deserve Australia’s gratitude, compassion and welcome.
Rise of the Business and Human Rights Agenda
by Dr Fiona McGaughey, UWA Law School
Dr Fiona McGaughey teaches international human rights law at UWA and was co-founder of UWA’s Modern Slavery Research Cluster. She has run CPD on Modern Slavery and is part of a team of researchers funded under the National Action Plan to Combat Modern Slavery 2020-25 Grant Programme on the project: ‘Improving the Regulation of Modern Slavery and Access to Remedy. Learning from Experience’.
Many will have noticed the increased focus on ESG – environmental and social governance – in recent years. Corporations are under increasing scrutiny when it comes to their performance in this area, with consumers, investors and others putting pressure on large business to do better. Regulators are also increasing scrutiny and there may be further developments following recommendations in the Australian Law Reform Commission’s (‘ALRC’) 2020 Corporate Criminal Responsibility report.[1]
The introduction of the Modern Slavery Act 2018 (Cth) (MSA) was a significant development for the business and human rights agenda. It introduces a mandatory reporting requirement whereby businesses, not-for-profits, and Commonwealth government entities with an annual turnover of $100 million or more must publish an annual statement. These statements are then available for public scrutiny on the government’s repository: https://modernslaveryregister.gov.au/. This scrutiny is actually critical for the current MSA regulatory model which lacks penalties for non-compliance but works on the assumption that civil society, investors, academics and the media will monitor business performance in this regard.[2] In terms of content, statements must include information on the reporting entity’s structures, operations and supply chains, and on what they are doing to assess and address the risks of modern slavery in their operations and supply chains, and the operations and supply chains of any entities they own or control (Section 16).
From 2020, reporting entities began to publish their first statements under the MSA and analysis of compliance with the Act and quality of the statements is emerging in commentary and scholarship,3 with further extensive research underway by both civil society and academia. Under Section 6 of the MSA, businesses with a lower annual turnover may report voluntarily and at time of writing, 322 voluntary statements have been submitted.
In this piece, I discuss the MSA within the broader context of global and Australian developments in the area of business and human rights.
What is Modern Slavery?
Modern slavery is an egregious human rights violation and according to the Global Slavery Index produced by the Walk Free Foundation (Andrew Forrest’s anti-slavery NGO), there are an estimated 40.3 million people in situations of modern slavery worldwide.4 Modern slavery is defined as ‘an umbrella term used to describe a number of crimes including, but not limited to, human trafficking, forced labour, sexual slavery, child labour and trafficking, domestic servitude, forced marriage, bonded labour including debt bondage, slavery and other slavery-like practices’.5 Alongside the corporate reporting regime, acts of modern slavery remain crimes under sections 270-271 of the Criminal Code Act 1995 (Cth). However, prosecutions for such offences are extremely low for a variety of reasons. Cases reported within Australia include crimes such as sex trafficking,6 forced labour (e.g. in restaurants or the agriculture or horticulture industries),7 and servitude (e.g within a call centre operation).8
Some modern slavery-type offences are often inherently ‘business’ related in nature. They can involve forcing, deceiving or severely exploiting someone for the perpetrator’s economic gain. Walk Free estimates that there are 24.9 million people worldwide in forced labour, which means that the issue has a particular relevance to businesses. Under the MSA then, Australian businesses are tasked with identifying where risks of modern slavery might lie within their operations and supply chains and reporting on how they address these. The Act is silent on how many tiers of the supply chain should be subject to risk analysis. My research has found that some reporting entities outsource their risk analysis to consultants.[9] Others develop in-house skills using wellestablished datasets from the International Labor Organization, Walk Free and the US Trafficking in Persons report, for example. There are clear indicators of risk; for example, at a generic level, these can be geographical and industry based. According to the Global Slavery Index, the top five products imported by the G20, at risk of modern slavery are laptops, garments, fish, cocoa, and sugarcane.[10] Globally, the top 10 countries with the highest prevalence of modern slavery are North Korea, Eritrea, Burundi, the Central African Republic, Afghanistan Mauritania, South Sudan, Pakistan, Cambodia and Iran.[11] It is widely accepted that modern slavery will exist in many, if not all, supply chains, or ‘global value chains’ at some level. Business operations and supply chains are often geographically dispersed, straddling multiple jurisdictions, and can be opaque and difficult to navigate. The global reach of multinational corporations means that they may operate in jurisdictions in which human rights violations are prevalent, including at the hands of governments some of whom use forced labour.[12]
Further, risks of modern slavery are heightened during COVID-19. The shifts in labour demand provided strong incentives for some businesses to exploit workers, including in industries that produce, process and provide essential items such as food, medicines and medical equipment, which have seen a sudden surge in the demand for workers as a result of COVID-19.[13] Despite being asked to do so, not all Australian reporting entities discuss the impact of the pandemic on their modern slavery risks. Those that do acknowledge the pandemic in their statements, report that COVID-19 has increased risks through rapidly altered supply chain profiles and urgent demand for items such as personal protective equipment. Yet, there are widespread reports of reduced capacity to fully execute planned modern slavery risk assessment, training, and audit activities as a result of the pandemic.[14]
What other developments are afoot in this area?
There have been a few interesting developments in this area in recent years and months, both globally and within Australia and Western Australia. Here, I discuss first legislative initiatives and second, interesting litigation.
Globally, the Australian MSA is one of a number of similar laws in the past decade, which are either human rights due diligence laws, or business reporting (‘disclosure’) laws. Some of the laws deal with the broad area of human rights (and the environment in the case of France) and others specifically target modern slavery. The California Transparency in Supply Chains Act of 2010[15] was the first of these ‘disclosure’ laws; with similar regimes introduced in the United Kingdom Modern Slavery Act 2015, [16] the French ‘duty of vigilance’ law of 2017,[17] and the 2019 Dutch Child Labour Due Diligence Law. [18] Other modern slavery or human rights reporting or due diligence laws are under consideration in Canada,[19] the European Union and elsewhere. A number of Australian businesses were already reporting under some of these laws before the Australian MSA was introduced.20 As such, going forward businesses can expect more, rather than less, obligations to report on and / or carry out due diligence on human rights within their operations and supply chains.
Another relevant development is the introduction of so-called Magnitsky laws. Originating in the United States,[21] and named after Sergei Magnitsky, a lawyer who died at the hands of the Russian state after uncovering corruption,[22] these laws typically impose sanctions on foreign individuals for corruption and egregious human rights abuses. In the wake of the US Act and similar laws elsewhere, a Magnitsky-style law is also under consideration in Australia.[23] In August 2021 the Government indicated that such a law should include sanctions for certain human rights abuses, including the right to be free from slavery, servitude and forced labour.[24] The law would also allow sanctions against the perpetrator, their immediate family and direct beneficiaries of their conduct, and sanctions would apply to all types of entities, including ‘natural persons, corporate entities (emphasis added), and both state and non-state organisations.’[25]
A further incentive for businesses to increase their human rights efforts is that it could be required in future to qualify for government tenders. In 2020, the ALRC recommended ‘[t]he Australian Government, together with state and territory governments, should develop a national debarment regime’.[26] An example of this is the Western Australian government’s proposed procurement debarment regime as part of the Procurement Act 2020 (WA).[27] Part 7 of the Act allows for the termination of contracts with debarred suppliers, draft regulations include potential debarment for, inter alia, non-compliance with the MSA, equality and anti-discrimination laws and environmental laws.
There are also some interesting developments in litigation. Two recent overseas cases of interest in this area are discussed here. The first is the landmark UK case of Vedanta Resources v Lungowe (Vedanta).[28] The decision affirmed by the UK Supreme Court was that over 1,800 Zambians could proceed with a claim against a Zambian company, Konkola Copper Mines (KCM), and Vedanta, its UK parent company. As the claimants would be unable to access justice in Zambia, they claimed that Vedanta owed them a duty of care, and that their health and livelihood were damaged by the mine’s water pollution. Despite the Zambian Government holding a minority stake in the mine, the Court of Appeal decided that a case was arguable, as Vedanta had published reports cl]aiming oversight of its subsidiaries, and risks of pollution at KCM, whilst noting its governance framework. Without admission of liability, the parties agreed to a settlement in January 2021.[29]
Commentators have expressed concern that the decision in Vedanta represents ‘a catch-22 for UK businesses: corporations that take steps to undertake due diligence regarding their supply chains… may in so doing expose themselves to liability by increasing the likelihood that a court may find they owed a duty of care to persons impacted by the activities of their foreign subsidiaries.’ Others argue that the decision supports the use of human rights due diligence and taking a proactive role with subsidiaries.[30] Due diligence is discussed further below.
Another significant comparative case is the Canadian case of Nevsun v Araya. [31] In 2020, the Supreme Court of Canada held that Canadian mining company Nevsun, a majority owner of a mine in Eritrea, could be sued in Canada by three Eritrean refugees. The refugees were bringing a class action on behalf of over 1,000 Eritreans. Their claim was that they had been indefinitely conscripted to work at the mine through the Eritrean Government’s National Service Program. In addition to seeking damages under domestic law for negligence, unlawful confinement, and battery, the Nevsun case is unusual as the claimants also alleged that Nevsun had committed slavery under customary international law. The Supreme Court noted that although international law has historically applied to states, international human rights law can be applied to private actors. In allowing the claim to proceed, the court also noted that remedy for such alleged grave violations under international customary law warrant stronger responses than tort claims.
Where to from here?
The business and human rights agenda is set to continue to develop. A United Nations binding treaty on business and human rights is under discussion and in the meantime, there is uptake of soft law instruments such as the UN Guiding Principles on Business and Human Rights and the OECD Guidelines on Multinational Enterprises. Within Australia, there has been an increase in complaints lodged under the OECD Guidelines to the Australian National Contact Point.[32] As discussed above, legislation in this area is becoming more widespread in a number of jurisdictions and there is some interesting litigation afoot globally.
Here, the ALRC has proposed a strengthening of corporate criminal laws, including a ‘failure to prevent’ approach to corporate criminal responsibility which rather than a negative duty not to commit an offence, incurs a positive duty to prevent an offence. The ALRC sees this type of offence as having the potential to bolster the MSA as transnational crimes including modern slavery are more likely to occur in the form of an omission or failure to prevent the relevant conduct by the corporation, rather than as a specific act intentionally committed by the corporation. The ALRC has also proposed a due diligence law, which many scholars and practitioners have also recommended as a way of strengthening the MSA.
Under Section 24 of the MSA, the Act will be subject to a three-year review and it is likely that recommendations such as this, together with the question of penalties for non-compliance, will be under consideration. There is quite strong political, corporate and civil society support for the MSA and the review is likely to be seen as an opportunity to strengthen the Act. Traditionally, we have viewed States as responsible for meeting human rights obligations. Now, increasingly, we see a dispersed responsibility for human rights protection and promotion that includes other powerful global actors such as the business community. And rightly so.
End notes
1 - Australian Law Reform Commission, Parliament of Australia, Corporate Criminal Responsibility (Final Report No 136, April 2020) (ALRC Report).
2 - Australian Government, Submission to the Senate Legal and Constitutional Affairs Legislation Committee Inquiry into the Modern Slavery Bill 2018 6.
3 - Nga Pham, Bei Cui, Ummul Ruthbah, ‘Modern Slavery Statement Disclosure Quality: ASX100 Companies’ (2021, Monash Centre for Financial Studies, Research Brief) https://www.monash.edu/__data/assets/pdf_file/0011/2652887/MCFS-Research-brief_Modern-Slavery-Statement-ASX100-3-1.pdf ; Fiona McGaughey, Holly Cullen, and Rebecca Faugno, ‘Australia’s World-first Repository of ‘Modern Slavery Statements’ A Step in The Right Direction’ 2020 The Conversation. https://theconversation.com/australias-world-first-repository-of-modern-slavery-statements-a-step-in-the-right-direction-151029.
4 - Walk Free Foundation. 2018. The Global Slavery Index 2018. https://www.globalslaveryindex.org/ (Walk Free).
5 - Joint Standing Committee on Foreign Affairs, ‘Modern slavery and global supply chains: Interim report of the Joint Standing Committee on Foreign Affairs, Defence and Trade’s inquiry into establishing a Modern Slavery Act in Australia’ 2017, 2.
6 - See, eg, R v Grey (No 3) [2020] ACTSC 43.
7 - See, eg, DPP v Shaik [2020] VCC 909; Fair Work Ombudsman v Shaik [2016] FCCA 2345; Fair Work Ombudsman v Maroochy Sunshine Pty Ltd & Anor [2017] FCCA 559.
8 - DPP (Cth) v Huang & Another, Unreported (QLDDC, 8 February 2017).
9 - Fiona McGaughey, ‘Behind the Scenes: Reporting Under Australia’s Modern Slavery Act’ (2021) 27 (1) Australian Journal of Human Rights 20.
10 - Walk Free, n 3, iv.
11 - Ibid, 3.
12 - Patrick Macklem, ‘Corporate Accountability under International Law: The Misguided Quest for Universal Jurisdiction’ (2005) 7 International Law Forum Du Droit International 281.
13 - Report of the Special Rapporteur on contemporary forms of slavery, including its causes and consequences, Impact of the coronavirus disease pandemic on contemporary forms of slavery and slavery-like practices. UN Doc: A/HRC/45/8, 4 August 2020, Human Rights Council Forty-fifth session 14 September–2 October 2020 (‘Report of the Special Rapporteur’) 12.
14 - Fiona McGaughey, ‘Australia’s Modern Slavery Act and COVID-19: A Get Out of Jail Free Card?’ (2020) 5 (2) Journal of Modern Slavery 41.
15 - California Transparency in Supply Chains Act (SB 657).
16 - Modern Slavery Act 2015 (UK) (UK MSA).
17 - Loi no. 2017-399 du 27 Mars 2017 relative au devoir de vigilance des sociétés mères et des entreprises donneuses d’ordre (France) (Loi no. 2017-399).
18 - Dutch Child Labour Due Diligence Law [2019] Wet Zorgplicht Kinderarbeid]
19 - BILL S-216 An Act to enact the Modern Slavery Act and to amend the Customs Tariff 2020
20 - See, eg, Fiona McGaughey, Hinrich Voss, Holly Cullen, Matthew Davis, ‘Corporate responses to tackling modern slavery: a comparative analysis of Australia, France and the United Kingdom’ (2021) Business and Human Rights Journal.
21 - Global Magnitsky Human Rights Accountability Act 22 USC §§ 2656
22 - Geoffrey Robertson and Chris Rummery, ‘Why Australia Needs a Magnitsky Law’ (2018) 89(4) AQ: Australian Quarterly 19, 21.
23 - Joint Standing Committee on Foreign Affairs, Defence and Trade, Parliament of Australia, Criminality, Corruption and Impunity: Should Australia Join the Global Magnitsky Movement? (Report, 7 December 2020).
24 - Australian Government, Australian Government response to the Joint Standing Committee on Foreign Affairs, Defence and Trade Human Rights Sub-Committee Report: Criminality, Corruption and Impunity: Should Australia Join the Global Magnitsky Movement? (Report, 5 August 2021) 5.
25 - Ibid 7.
26 - ALRC Report, n 1, Recommendation 15.
27 - Part 7 of the Procurement Act 2020 (WA) allows for the termination of contracts with debarred suppliers and came into force on 1 June 2021. Regulations providing for debarment are envisaged for late 2021: WA Department of Finance, ‘New Western Australian Procurement Framework Enacted’ (Government Announcement, 21 June 2021) <https://www.wa.gov.au/government/announcements/new-western-australian-procurement-framework-enacted>.
28 - Vedanta Resources Plc and Konkola Copper Mines Plc (Appellants) v Lungowe and Ors. (Respondents) [2019] UKSC 20.
29 - Business and Human Rights Resource Centre, ‘Vedanta Konkola Copper Mines Settle UK Lawsuit brought by Zambian Villagers for Alleged Pollution from Mining Activities’. <https://www.business-humanrights.org/en/latest-news/vedanta-konkola-copper-mines-settle-uk-lawsuit-brought-by-zambian-villagers-for-alleged-pollution-from-mining-activities/>
30 - ALRC report, 464.
31 - Nevsun Resources Ltd v Araya [2020] SCC 5.
32 - See open complaints here: https://ausncp.gov.au/complaints/track-open-complaint
Police Cautions and Admissibility of Evidence
by Aidan Ricciardo, Lecturer at the UWA Law School
Does failure to understand the police caution render an accused person’s admission involuntary?
There are a handful of Western Australian cases (decided over the past couple of years) in which it has been argued that an admission was not voluntary, and thus should be inadmissible, because the accused person did not understand the police caution given to them. That is, the argument goes that the person did not understand that they had a right to remain silent, so they were not speaking voluntarily.
The judgments:
The Court of Appeal has made it very clear that failing to understand the caution does not itself give rise to involuntariness. For example (and most recently), in Luo v The Queen [2020] WASCA 184, the Court said that:
In Luo, the appellant spoke Cantonese and submitted that he spoke no English. He also submitted that he was an unsophisticated fisherman. For these reasons (amongst others), at trial, he claimed he did not understand the caution given to him by police. A similar situation arose in George v State of Western Australia [2020] WASCA 139, in which the appellant was a speaker of a dialect of Tamil who the Court of Appeal observed could ‘communicate effectively in English’ (at [43]). In George, the Court of Appeal (at [100]–[101]) made the same point that was later made in Luo.
These arguments in Luo and George might have been prompted by a similar argument which was made the year prior in EYO v State of Western Australia [2019] WASCA 129. In that case, the appellant spoke Djaru as his first language, and also spoke some English. The appellant argued that his admissions were involuntary because he did not understand the caution given to him. Ultimately, in EYO, the Court did not clearly state that a failure to understand would not result in an admission being made involuntary, presumably because the Court agreed with the trial judge that the appellant did in fact understand the caution:
However, in EYO, the Court did find that the record of interview should have been excluded through exercise of the fairness discretion due to law enforcement’s failure to comply with the Anunga Guidelines (which are to be complied with when interviewing a suspect who is an Aboriginal or Torres Strait Islander person). As the Court set out:
The breaches in EYO ultimately justified exercise of the discretion to exclude the record of interview for the following reasons:
Conclusion:
The judgments are very clear that failure to understand the caution will not make an admission involuntary. However, it will be relevant to the exercise of the fairness discretion.
Law Access Awarded 2021 UNAAWA Human Rights Award
An article submitted by Dominique Hansen, Chief Executive Officer, Law Access
L – R: Matthew Howard SC, Board Member Law Access; Dominique Hansen, CEO Law Access; Randhir Amoganathan, UNAAWA Human Rights Committee; Georgia Pickering, Principal Lawyer Law Access; Elizabeth Lang, Finalist UNAAWA Human Rights Award.
UNAAWA connects Western Australians with the United Nations in order to promote justice, peace, security and sustainable development for present and future generations.
Law Access was honoured to be awarded the 2021 UNAAWA Human Rights Award at a ceremony held on 22 October 2021. The Excellence in Human Rights Promotion Award recognised the work of Law Access as an outstanding contribution to the promotion of human rights in WA. The award reflects the contribution of the many pro bono lawyers and volunteers who we rely on to deliver our service.
Below are some comments Law Access received from the judging panel: “The judges enjoyed learning about your advocacy for those in need of legal representation in the Western Australian community. You have had an outstanding impact; providing assistance to those in need but unable to afford representation, education about the rights they are entitled to and challenging the status quo – to name a few.”
“Your nomination demonstrated innovation and a strong commitment to volunteerism that has directly contributed to Australia’s achievement of SDG goals. It is the dedication and energy of local Champions like yourself that makes a difference in the community.” Established by our founder and parent body the Law Society of Western Australia in collaboration with our many stakeholders, Law Access has delivered a state-wide pro bono legal referral service since 1 July 2015. Our service works to improve access
to justice for the most disadvantaged and marginalised people in Western Australia, and, in doing so, to promote and uphold their human rights. Two -thirds of applications received by Law Access in FY2021 were civil law matters. This is our highest area of unmet legal need followed by Family and Criminal Law.
Criminal law
Law Access provides pro bono assistance in criminal law matters where legal assistance from legal aid or community legal centres or the Aboriginal Legal Service of WA is not available. This is of particular concern for applicants facing potential imprisonment in WA in the Magistrates Courts. Law Access is determined to play its part in ensuring that accused persons are able to exercise their right to legal representation. Law Access and its referral partners strive to provide applicants charged with a criminal offence with the minimum requirements owed to an accused person, such as information about, and an understanding of, the nature and cause of the charge, legal assistance of their choosing, and the free assistance of an interpreter if necessary.
Immigration (a subset of civil law)
Law Access enables applicants to challenge decisions made in this rapidly evolving area of law and are grateful to work with lawyers who are committed to ensuring decisions are made fairly and in accordance with the law. Law Access established the Lawyers for Refugees Network in response to unmet legal need for asylum seekers at judicial review. Lawyers in the Network have since assisted large numbers of “legacy caseload” asylum seekers who arrived by boat after the relevant change in Commonwealth law in 2013.
Family law
Whilst it is more difficult to refer family legal matters on for pro bono assistance due to the relatively small size of the family law profession and the complexity and duration of many family law matters, Law Access continues to aim to better understand and explain the extent of unmet legal need in this area of law and to help as many people as we can.
In order to maximise the impact of the limited available family law pro bono resources, Law Access prioritises people at risk of homelessness, including those affected by family and domestic violence who seek assistance with property settlement matters. We also prioritise assistance for families facing statutory intervention in Children’s Court proceedings with limited or no legal representation. Such proceedings have the potential to split families up and, therefore, to impact their human rights.
Ensuring Pro Bono Culture Thrives in Western Australia
Law Access works hard to undertake policy and advocacy in areas of unmet legal need. We also continue to foster pro bono engagement within the Western Australian legal profession by developing a sense of community and connection among legal professionals engaging in pro bono work. We promote opportunities for pro bono lawyers to take our referrals through our networks and through the various professional associations, and provide referral lawyers with support, and, where necessary, training in areas of high unmet legal need. Pro Bono Lawyers who take our referrals donate extensive time and expertise to the community and each year we issue certificates of appreciation to express our thanks to those lawyers for being part of the pro bono legal community. We also hold an annual Law Access Walk for Justice on the Tuesday of National Law Week each year. This provides an opportunity for the pro bono community to come together to highlight unmet legal need and to celebrate the pro bono legal community’s achievements.
We look forward to growing our service in order to assist even more marginalised people in Western Australia to achieve access to justice.
