The Legal Bulletin: a regular publication of the Legal Section comprising
recent developments of interest
INSIDE
THIS ISSUE
International
developments
United Nations
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International Criminal
Court
In July 1998 in Rome, 120 Member States of the United Nations adopted
a treaty to establish a permanent international criminal court to prosecute
individuals accused of genocide, crimes against humanity and war crimes.
This treaty comes into force in July 2002.
United Nations Secretary-General Kofi Annan said. "Our hope is that,
by punishing the guilty, the ICC will bring some comfort to the surviving
victims and to the communities that have been targeted. More important,
we hope it will deter future war criminals, and bring nearer the day when
no ruler, no State, no junta and no army anywhere will be able to abuse
human rights with impunity."
Background. In 1948, following the Nuremberg and Tokyo tribunals
after the Second World War, the United Nations General Assembly first
recognized the need for a permanent international court to deal with the
kind of atrocities that had recently taken place. Since then, the need
for such a court has been discussed off and on at the UN. The nature and
scale of atrocities during the last 20 years gave impetus to the creation
of a permanent mechanism.
An international criminal court has been called the missing link in the
international legal system. The International Court of Justice at The
Hague handles only cases between States, not individuals. Without an international
criminal court for dealing with individual responsibility as an enforcement
mechanism, acts of genocide and egregious violations of human rights often
go unpunished.
Comparison with ad hoc tribunals. In the aftermath of the events
in Rwanda and the former Yugoslavia, the United Nations Security Council
responded by creating tribunals to bring individual perpetrators to justice.
However, tribunals established after the fact are typically bound by mandates
that are specific in time and place. The International Criminal Court,
established as an independent entity, will be able to act regarding crimes
within its jurisdiction without a special mandate from the Security Council.
Such a court, with a mandate to bring to individuals to justice, will
be able to take action quickly, possibly limit the extent or duration
of violence and, by nature of its existence, provide a much stronger deterrent.
The crimes covered. The Court has a mandate to try individuals
rather than States and to hold them accountable for - genocide, crimes
against humanity and war crimes, and, eventually, the crime of aggression.
Genocide is defined to include killing or causing serious
harm, committed with intent to destroy, in whole or in part, a national,
ethnic, racial or religious group.
Crimes against humanity include crimes such as the extermination
of civilians, enslavement, torture, rape, forced pregnancy, persecution
on political, racial, national, ethnic, cultural, religious or gender
grounds, and enforced disappearances - but only when they are part of
a widespread or systematic attack directed against a civilian population.
War crimes include grave breaches of the Geneva Conventions
and other serious violations of the laws and customs that can be applied
in international armed conflict, and in armed conflict "not of an
international character", when they are committed as part of a plan
or policy or on a large scale.
Aggression has been included as a crime within the Court's
jurisdiction. However, first States Parties must adopt an agreement defining
aggression and the conditions under which the Court could exercise its
jurisdiction.
From when are crimes covered. The Court's jurisdiction will
cover crimes committed after the Statute enters into force in July 2002.
The role of national courts. The Court can only exercise
its jurisdiction when a national court is unable or unwilling to genuinely
do so itself. For example, when a State's court system collapses and ceases
to function, where governments condone or participate in an atrocity,
or where officials may be reluctant to prosecute someone in a position
of power and authority.
-
Human Rights Committee
- Individual communications
Cagas and others v Philippines (31 Jan 2002): The authors
were arrested in June 1992, on suspicion of the murder of 6 women (the
so-called Libmanan massacre). They have since been held in detention awaiting
trial. The Committee found the excessive period of preventive detention,
exceeding nine years: affects the right to be presumed innocent and is
therefore a violation of article 14(2) of the International Covenant
on Civil and Political Rights; constitutes an unreasonable delay in
violation of article 9(3) (an accused is to be brought to trial within
a reasonable time or released); and, in view of the State party's obligation
to ensure that an accused person be tried without undue delay, amounts
to a violation of article 14(3)(c).
Brok v The Czech Republic (15 Jan 2002): Robert Brok's parents
owned a house in the centre of Prague which was confiscated during 1940
and 1941 by the German authorities because the owners were Jewish. In
1942 the property was sold to a company, Matador. The author himself,
was deported by the Nazis, and returned to Prague on 16 May 1945, after
having been released from a concentration camp.
Despite legislation providing restitution or compensation to victims of
illegal confiscation carried out for political reasons during the Communist
regime (25 February 1948 -1 January 1990) and for restitution or compensation
to victims of racial persecution during the Second World War, the Broks'
application for restitution to the Court was unsuccessful, as their claim
fell outside the scope of the legislation. The Committee held that the
author was denied his right to equal protection of the law in violation
of article 26 of the Covenant.
Sooklal v Trinidad and Tobago (8 Nov 2001): In May 1989,
the author was arrested and charged with the offences of sexual intercourse
and serious indecency with minors. The author was held in custody for
over three years until his release on bail. In February 1997 he was convicted
by the High Court and sentenced to 12 strokes with the birch, as well
as 50 years of concurrent sentences, equivalent to a sentence of 20 years
after remission. The author's appeal was heard by the Court of Appeal
on 19 November 1997. He did not receive any advice from his legal aid
lawyer regarding this appeal, and did not meet with his lawyer prior to
the hearing. During the proceedings his lawyer told the court that she
could not find any grounds for pursuing the appeal. Consequently, leave
to appeal was refused and the sentence was re-affirmed.
OUTCOME: The Committee found that the imposition of the sentence
of whipping with the birch, being corporal punishment, constitutes cruel,
inhuman or degrading treatment or punishment contrary to article 7 of
the Covenant. It found the State party violated article 9(3) by detaining
Mr Sooklal for three years prior to release on bail. (A detained person
is to be tried within a reasonable time or released). It noted that the
State party provided no justification for the delay of seven years and
nine months from the time of Mr Sooklal's arrest to the date of his trial.
The Committee found this was an excessive period of time amounting to
a breach of article 14(3)(c) (an accused shall be tried without undue
delay).
Further, the requirements of fair trial and of representation required
that Mr Sooklal be informed that his counsel did not intend to put arguments
to the Court and that he have an opportunity to seek alternative representation,
in order that his concerns may be ventilated at appeal level. As it did
not appear that the Appeal Court took any steps to ensure that this right
was respected, Mr Sooklal's rights under article 14(3)(d), were violated.
Simpson v Jamaica (5 Nov 2001): On 6 November 1992, the
author was convicted of two offences of capital murder and sentenced to
death by the Home Circuit Court in Kingston. Prior to his conviction he
was kept in a cell with 17 other inmates at the Half-Way-Tree Police Lock
Up, where some of the inmates had already been convicted. Shortly afterwards,
he was moved to the General Prison, where he shared a cell of 8 by 4 feet
with five other inmates. There was no artificial light in the cell, no
slop bucket, and he was only allowed to use the toilet once a day.
Since his conviction, the author has been confined in a cell alone for
periods of up to 22 hours each day and most of his waking time is spent
in darkness making it impossible for him to keep occupied. Slop buckets
are used, filled with human waste and stagnant water, and only emptied
once per day. There is no running water provided in the author's cell.
Consequently, the author has to wait until he is released to get running
water which he then stores in a bottle. It is also stated that the author
slept on cardboard and newspapers on concrete until October 1994 when
he was provided with an old mattress. He complained that he has been refused
appropriate medical treatment for various problems. The author was held
in St. Catherine's District Prison on death row for over five years. His
sentence has since been commuted to life imprisonment.
OUTCOME: The Committee found that in the absence of any explanation
from the State party, the author's conditions of detention and his lack
of medical treatment as described violate his right to be treated with
humanity and with respect for the inherent dignity of the human person
and are therefore contrary to article 10(1). In light of this finding
the Committee did not consider it necessary to consider article 7. The
Committee also found that the failure of the magistrate to adjourn the
preliminary hearing whilst the author's lawyer was absent during the hearing
of two of the four witnesses was a violation of article 14(3)(d).
European Court of Human
Rights
Birutis and
Others v. Lithuania (28 March 2002 ): The 3 applicants were convicted
by the Kaunas Regional Court of taking part in a riot at the Pravieniskes
Prison in January 1997, and were sentenced to further imprisonment of
10, 10 and 6 years respectively. The evidence taken into account by the
court included the statements of a number of anonymous witnesses (mostly
other detainees) taken by the prosecution during the pre-trial investigation
stage.
The applicants appealed, alleging that the anonymous statements were invalid,
that the secret evidence had not been scrutinised either by the defendants
or the court, that the prison administration had encouraged anonymous
testimonies by other detainees, promising them favourable treatment, and
the secret witnesses had taken part in the riot and collaborated with
the authorities to avoid prosecution.
The Court of Appeal dismissed the appeals. On 20 October 1998 the Supreme
Court rejected their further appeals, finding that the lower courts had
properly decided the case. It noted that the first and the second applicants
had been convicted not only on the basis of the anonymous testimonies,
but also by reference to the statements of the complainants and the prison
staff. It noted that the third applicant had basically been convicted
by reference to the statements of anonymous witnesses but that those statements
had been consistent and supplementary to other evidence confirming his
guilt.
The applicants alleged a violation of Articles 6 (1 & 3(d)) of the Convention for the Protection of Human Rights and Fundamental Freedoms which, respectively, relate to the right to a fair trial and the accused's
right "to examine or have examined witnesses against him . .".
OUTCOME: The ECHR, whilst noting that the use of anonymous statements
is not in all circumstances incompatible with the Convention, said the
defence will be faced with difficulties which criminal proceedings should
not normally involve. In such cases Article 6(1), taken together with
Article 6(3(d)) require that such handicaps be sufficiently counterbalanced
by judicial procedures and that an applicant should not be prevented from
testing the anonymous witnesses' reliability.
The ECHR held that the 3rd applicant's conviction was based solely on
the anonymous evidence. It said the conviction of the first and the second
applicants was not based solely on the evidence of the anonymous witnesses
but that evidence was amongst the grounds on which the conviction was
based. It noted that the credibility of the evidence of the anonymous
witnesses was open to question, but the applicants were not able to question
them. It held that the courts' failure to question the anonymous witnesses,
and to conduct a scrutiny of the manner and circumstances in which their
statements had been obtained, was unacceptable from the point of view
of the applicants' defence rights and amounted to a contravention of Articles
6 (1 & 3 (d)).
United Kingdom
Sex Discrimination (Election Candidates) Act 2002.
This Act amends the Sex Discrimination Act 1975 (and the Sex
Discrimination (Northern Ireland) Order 1976) to exclude from its
coverage arrangements made by a political party which regulate the selection
of the party's candidates for elections so long as those arrangements
"are adopted for the purpose of reducing inequality in the numbers
of men and women elected, as candidates of the party, to be members of
the body concerned". The following elections are covered by the new
Act:
(a) Parliamentary elections
(b) elections to the European Parliament
(c) elections to the Scottish Parliament
(d) elections to the National Assembly for Wales
(e) local government elections within the meaning of section 191, 203
or 204 of the Representation of the People Act 1983 (c. 2) (excluding
any election of the Mayor of London).
The Act will expire automatically at the end of 2015 (enabling at least
3 elections to have taken place for each of the elected bodies). However,
the Act can continue to operate beyond 2015 if a statutory instrument
to that effect is approved by parliament.
BACKGROUND: There are currently 118 women out of the 659 MPs in
the House of Commons. In the mid 1990s the Labour Party required certain
constituencies to have all-women shortlists for the 1997 General Election.
This was challenged by unsuccessful male candidates in Jepson v The
Labour Party [1996] IRLR 116. An employment tribunal held that the
practice was unlawful discrimination contrary to the Sex Discrimination
Act. The Labour Party did not appeal and its policy of all-women shortlists
was dropped. In Jepson the tribunal rejected the submission that all women
shortlists were allowed by the EC Equal Treatment Directive as it was
of the view that decisions of the European Court of Justice indicated
EU law did not allow a total block on one sex. However, in 1999 the EU
Treaty was amended by the Treaty of Amsterdam to facilitate positive discrimination:
"the principle of equal treatment shall not prevent . . measures
providing for specific advantages in order to make it easier for the under-represented
sex to pursue a vocational activity or to prevent or compensate for disadvantages
in professional careers". The new Act is line with these provisions.
Bower v Schroders Securities Ltd (11 January 2002). In April 2001,
an Employment Tribunal ruled that share analyst, Julie Bower, was forced
to resign as a result of sex discrimination by her former employer, Schroder
Securities Ltd. After a hearing on remedy in January 2002 Ms Bower was
awarded £1.4 million compensation. (Comprising essentially: loss
of past salary, £130,000, loss of past bonuses, £490,000,
future loss of earnings £485,000, and £15,000 injury to feelings).
Amongst the Tribunal's findings was that the bonus awarded to her in 1998
(£25,000 later increased to £50,000) was not the market rate
for an analyst and did not reflect a genuine valuation of her performance
(the 2 male comparators received £650,000 and £440,000 respectively);
the figure for Ms Bower's bonus for 1998 had been 'picked from the air'
and this was part of a deliberate plan by her manager to drive her out;
'it was hard to conceive a process more lacking in transparency' than
the bonus setting process; in her appraisal Ms Bower was told she had
the lowest score of any team leader whereas overall she ranked 37th out
of 68; employees engaged in recruitment and appraisal had no training
in equal opportunities (other than those in the Personnel Department);
recruitment above graduate level was done with no regard for equality
of opportunity in the sense that it is advocated by the EOC; Schroders
did not monitor or observe either its recruitment or its pay levels to
establish whether they were discriminatory; there was a laddish or sexist
air about some of the corporate entertaining in which the respondent engaged
in that it involved taking clients to places where there were scantily
dressed women; the proportion of women employed in client-facing roles
while Ms Bower was at Schroders was around 15% (not out of line with what
competitors achieved); and, when Ms Bower left Schroders 100% of men (27
out of 27) at team leader or senior analyst level were directors, compared
to 71% of women (five out of seven).
BACKGROUND: Julie Mellor, Chair of the of the Equal Opportunities
Commission which supported Ms Bower's case said,
In the banking and finance sector women working full-time earn only
55% of men's average earnings. The gap between women's and men's pay
can be found in all sectors and at all levels. That is why the EOC launched
its Valuing Women campaign for equal pay last year. If this inequality
is ever to be overcome employers need to audit their pay systems and
ensure they are fair and transparent. In the UK people are generally
very unwilling to discuss pay. In research carried out by the EOC 77%
of respondents had never asked what colleagues earned, and only 26%
had ever asked for a pay rise. But we need to overcome that embarrassment
if we are to ensure that every individual's contribution in the workplace
is fairly valued and rewarded.
She said,
Mrs Bower raised the issue of equal pay when she heard rumours in
August 1999 that her comparators had been given a substantial pay rise
when she had not, although she claims her performance matched theirs.
She was told that the information about pay was 'private'. Employees
at Schroders were forbidden to discuss their pay and bonus with each
other. Mrs Bower had no idea, from information provided by Schroders,
how her performance related to her pay, bonuses and promotion.
Canada
-
Canadian Human Rights
Tribunal
Sabina Citron & Toronto Mayor's Committee on Community and Race Relations
& Canadian Human Rights Commission v Ernst Zündel (18 January 2002): This case, for the first time, raises the application
of the Canadian Human Rights Act to sites on the World Wide Web.
The complainants alleged that from October 10, 1995 onward, Ernst Zündel
offered a Homepage (the Zundelsite) on the World Wide Web that repeatedly
provided pamphlets and publications containing messages that were likely
to expose persons of the Jewish faith and ethnic origin to hatred and
contempt. Examples of the publications included: "Did Six Million
Really Die", "66 Questions and Answers on the Holocaust",
and "Jewish Soap".
The complainants alleged that the provision of this material on the website
was in breach of s.13(1) of the Canadian Human Rights Act:
It is a discriminatory practice for a person or a group of persons acting
in concert to communicate telephonically or to cause to be so communicated,
repeatedly, in whole or in part by means of the facilities of a telecommunication
undertaking within the legislative authority of Parliament, any matter
that is likely to expose a person or persons to hatred or contempt by
reason of the fact that that person or those persons are identifiable
on the basis of a prohibited ground of discrimination.
Despite the assertion of the respondent (who lived in Toronto) that Ms
Ingrid Rimland of California was the legal owner of the Zundelsite, the
Tribunal found on the evidence that the respondent controlled the Zundelsite
and that it was he who caused the materials found on the website to be
communicated. It found in terms of s.13(1) that, when it was transmitted
via the Internet, the material on the Zundelsite was communicated telephonically,
repeatedly, in whole or in part by means of the facilities of a telecommunication
undertaking within the legislative authority of Parliament. It found that
the tone and expression of these messages was so malevolent in its depiction
of Jews, that they amounted to hate messages within the meaning of the
Act.
The Tribunal did not accept that the material found on the Zundelsite
was merely part of a legitimate debate, and therefore immune from the
normal application of s.13(1). It noted that "legitimacy", in
the context of s. 13(1), has been determined by Parliament as that which
is not likely to expose individuals to hatred or contempt. It stated that
even if it were to accept that there can be legitimate debate on this
topic, it has focused on the manner in which the respondent expressed
his views and not the fact that he chooses to engage in this debate. It
accepted that the standard for determining the "promotion of hatred
or contempt" must be applied with care so that it remains sensitive
to free speech interests. However, the tone and extreme denigration of
Jews, separated these documents from those that might be permissible.
Constitutional issue - freedom of expression. The respondent sought
an order declaring s. 13(1) of the Canadian Human Rights Act unconstitutional
by virtue of s. 2(b) of the Canadian Charter of Rights and Freedoms which states:
Everyone has the following fundamental freedoms . . . freedom of thought,
belief, opinion and expression, including freedom of the press and other
media of communication.
The Tribunal found that the activity affected by s.13(1) constitutes "expression"
as the term is envisioned by s.2(b). It stated that s.1 of the Charter
"guarantees the rights and freedoms as set out in it, subject only
to such reasonable limits prescribed by law as can be demonstrably justified
in a free and democratic society". It held that the use of s.13(1)
to deal with hateful telephonic messages on the Internet remains a restriction
on the respondent's freedom of speech which is reasonable and justified
in a free and democratic society.
Constitutional issue - freedom of conscience. The Tribunal also rejected
the respondent's submission that s.13(1) is a violation of the fundamental
freedom of conscience and religion guaranteed under s.2(a) of the Charter
and that such violation is not justified under s.1 of the Charter. The
respondent had submitted that an offence for words that does not allow
one to tell the truth according to one's conscience is a violation of
s.2(a) of the Charter. The Tribunal stated that s.13(1) of the Act can
restrict the speaking of "truth" when it is necessary to protect
the human dignity and self-worth of members of a designated group, such
as, in this case, the Jewish community.
OUTCOME: The Tribunal upheld the complaint and ordered that "the
Respondent, Ernst Zündel, and any other individuals who act in the
name of, or in concert with Ernst Zündel cease the discriminatory
practise of communicating telephonically or causing to be communicated
telephonically by means of the facilities of a telecommunication undertaking
within the legislative authority of Parliament, matters of the type contained
in Exhibit HR-2 and found on the Zundelsite, or any other messages of
a substantially similar form or content that are likely to expose a person
or persons to hatred or contempt by reason of the fact that that person
or persons are identifiable on the basis of a prohibited ground of discrimination,
contrary to s. 13(1) of the Canadian Human Rights Act."
Federal
Discrimination Law
Sex Discrimination
In Ferneley
v The Boxing Authority of New South Wales [2001] FCA 1740, Wilcox
J considered whether the Boxing and Wrestling Control Act 1986 (NSW)
("the NSW Act")) was affected by the Sex Discrimination Act
1984 (Cth) ("the SDA"). The applicant applied to the Boxing
Authority of NSW ("the Authority") to be registered as a kick
boxer in NSW. It was accepted by the parties that the Authority was "the
Crown in right of a State". Ms Ferneley's application for registration
was refused on the basis of her sex as the NSW Act provides only for the
registration of "male persons".
The applicant alleged discrimination by the Authority in the provision
of a service; s.22 SDA. The State of NSW argued that the Authority does
not provide services as described in section 22, but rather is properly
classified as a qualifying body under s.18 of the SDA. Significantly,
s.22 of the SDA expressly applies to the Crown in right of a State, while
s.18 does not.
It was further submitted
by the State of NSW that even if the Authority was found to be providing
a service, and thus bound by s.22, the exemption in s.42 of the SDA would
apply. Section 42 states as follows:
(1) Nothing
in Division 1 or 2 renders it unlawful to exclude persons of one sex
from participation in any competitive sporting activity in which the
strength, stamina or physique of competitors is relevant.
The State of NSW
argued that this exemption should be interpreted in such a way that in
any sport in which strength, stamina or physique were relevant, people
could be excluded on the basis of their sex, meaning that the exemption
is not restricted to mixed team sports.
Wilcox J found that
the Authority was not providing a service for the purposes of s.22:
If s22 stood
alone, I would hold the Boxing Authority's failure to consider Ms Ferneley's
application on its merits was an act falling with s22. However, s22
does not stand alone. Although s18 does not apply to the Boxing Authority,
its existence must be taken into account in determining the proper construction
of s22 and, in particular, the extent of the latter section's operation.
He further observed
that if s.18 had applied, this would have provided a basis for relief,
rendering the provision of the NSW Act prohibiting the registration of
women constitutionally invalid. He also made observations about the application
of the exemption under s.42 and stated that s.42(1) is only concerned
with mixed-sex sporting activities and has no application to same sex
sporting activity as in the present case. In doing so, he adopted the
submissions of the Sex Discrimination Commissioner of the Human Rights
and Equal Opportunity Commission who appeared as amicus curiae in this
matter.
Application of HREOCA to States
In James Rainsford v State of Victoria [2001] FMCA 115 the
respondent submitted that the Human Rights and Equal Opportunity Commission
Act 1986 (Cth) ("HREOCA") did not have any relevant application
to the Crown in right of the State of Victoria and accordingly the Federal
Magistrates Court had no jurisdiction to hear the matter. The argument
was based on the apparent failure of HREOCA to specify that the provisions
relating to the grant of jurisdiction to the Federal Court and Federal
Magistrates Court applied to the Crown in right of a State. This argument
was upheld by McInnis FM, and resulted in legislative amendment to reverse
the effect of the decision; see below.
Swinging House Parties
In Ball v Morgan & Anor [2001] FMCA 127 a claim arose
out of "swinging house parties" run by the respondents at their
home under the name "Club Jacaranda", for which guests paid
a fee. The applicant complained of discrimination on the basis of her
disability which required her to use a wheelchair.
McInnis FM found that the operation by the respondents of Club Jacaranda
constituted a breach of the Prostitution Control Act 1994 as it
is properly characterised as an illegal brothel under that Act, and the
protection of the Disability Discrimination Act 1992 (Cth) ("DDA")
should therefore not apply. He stated that it was "contrary to the
public interest for the courts to simply enforce a right arising out of
human rights legislation if indeed that right were not to be enforceable
as a contract due to illegality". Even if the applicant was not aware
of the illegality of her conduct at the time, and/or her conduct was not
unlawful, it was the view of McInnis FM that "the activities conducted
at the premises are sufficiently anti-social to justify the court refusing
to enforce rights arising out of human rights legislation."
When determining if relief should be granted, McInnis FM looked at whether
the grant of relief would "affront the public conscience." He
was of the view that the refusal to grant relief should be assessed in
terms of it being "a sanction which would have to be proportionate
to the seriousness of the illegality involved." He concluded that
the nature of the activities at Club Jacaranda would affront the public
conscience and that the refusal to grant relief in this matter was not
disproportionate having regard to the nature of the activities involved.
In any event, McInnis FM found that the complaint of disability discrimination
was not made out on the facts.
Principles for commencement
out of time
The principles to be applied when commencing human rights proceedings
beyond the 28 day time-limit (s.46PO(2)) were considered in two cases
by McInnis FM. In Phillips v Australian Girls Choir & Anor [2001] FMCA 109 his Honour substantially followed the decision of Wilcox
J in Hunter Valley Developments Pty Ltd v Cohen 3 FCR 344 which
had considered the issue in the context of the Administrative Decisions
(Judicial Review) Act 1977. McInnis FM stated:
In the light of
A'Hearn's case [Comcare v A'Hearn (1993) 45 FCR 441] it is clear
that at least one of the principles referred to by Wilcox J in the Hunter
Valley decision needs to be modified, namely that it should not be any
longer regarded as law that the inexcusable delay on the part of a solicitor
should be visited upon the client and nor should it be a principle that
there is in fact a pre-condition to the exercise of discretion in favour
of the applicant for extension to show an acceptable explanation for
delay or that it's fair and equitable in the circumstances to extend
time. In the light of the decision in Ahearn's case it is useful to
set out in modified form the relevant principles in relation to the
exercise of the Court's discretion when considering an extension of
time in a human rights application based upon those principles distilled
by Wilcox J in Hunter Valley as follows:
1. There is no
onus of proof upon an applicant for extension of time though an application
has to be made. Special circumstances need not be shown, but the court
will not grant the application unless positively satisfied it is proper
to do so. The 'prescribed period' of 28 days is not to be ignored (Ralkon
v Aboriginal Development Commission (1982) 43 ALR 535 at 550).
2. It is a prima
facie rule that the proceedings commenced outside the prescribed period
will not be entertained (Lucic v Nolan (1982) 45 ALR 411at 416). It
is not a pre-condition for success in an application for extension of
time that an acceptable explanation for delay must be given. It is to
be expected that such an explanation will normally be given as a relevant
matter to be considered, even though there is no rule that such an explanation
is an essential pre-condition (Comcare v A'Hearn (1993) 45 FCR
441 and Dix v Client Compensation Tribunal (1991) 1 VR 297 at 302).
3. Action taken by the applicant other than by making an application
to the court is relevant in assessing the adequacy of the explanation
for the delay. It is relevant to consider whether the applicant has
rested on his rights and whether the respondent was entitled to regard
the claim as being finalised. (See Doyle v Chief of Staff (1982)
42 ALR 283 at 287).
4. Any prejudice
to the respondent, including any prejudice in defending the proceeding
occasioned by the delay, is a material factor militating against the
grant of an extension. (See Doyle at p 287)
5. The mere absence
of prejudice is not enough to justify the grant of an extension. (Lucic at p 416)
6. The merits of
the substantial application are properly to be taken into account in
considering whether an extension of time should be granted. (See Lucic at p 417)
7. Considerations
of fairness as between the applicant and other persons otherwise in
a like position are relevant to the manner of exercise of the court's
discretion (Wedesweiller v Cole (1983) 47 ALR 528).
This passage was
repeated by McInnis In Beling v Stapels [2001] FMCA 135.
Dismissal on basis of family
responsibility
In Song v Ainsworth Game Technology [2002] FMCA 31, in which an
employee complained of discrimination on the basis of family responsibility
having been made a part-time employee, Raphael FM considered the meaning
of "dismiss" in s.14(3A) of the SDA:
It is unlawful for an employer to discriminate against an employee on
the ground of the employee's family responsibilities by dismissing the
employee.
His Honour found that by unilaterally changing the applicant's contract
from full-time to part-time, this constituted a change to the fundamental
terms to the employment contract and therefore constituted a "dismissal".
The respondent argued that "dismissal" required a total cessation
of the employment relationship (as opposed to the employment contract),
relying on Brackenridge v Toyota Motor Corporation Australia Ltd (1996)
142 ALR 99. His Honour distinguished Brackenridge as having examined
the meaning of "termination" in light of ILO Convention 158
and ILO Recommendation 166, when the present provision was introduced
into the SDA by virtue of ILO Convention 156. He favoured a "more
purposive and wide ranging construction of the word 'dismiss'" which
included unilaterally changing a persons' employment arrangements from
full-time to part-time.
The decision is under appeal, to be heard by a full bench of the Federal
Court in August 2002.
Manifestation of Disability
In Randell v Consolidated Bearing Company (SA) Pty Ltd [2002] FMCA
44, Raphael FM considered a complaint of disability discrimination by
a man with a mild dyslexic learning disability. The condition contributed
to him taking longer than a person without his disability to learn and
become proficient in the tasks which he was set. His poor performance
resulted in him being dismissed. The complainant had not initially informed
his employer of his disability, but had done so prior to his dismissal.
Raphael FM found
that the employer discriminated against the complainant in failing to
deal with his unsatisfactory performance by either seeking support services
(available to them through Employment National) or offering him alternative
employment. In considering the issue of behavioural manifestations of
a person's disability, he stated:
The respondent
in this case cites Tait v Raffin [2000] FCA 1582 as authority for the
proposition that if the alleged discriminator does not know of the discriminatee's
disability he cannot be guilty of discrimination. I would not cavill
with the decision of Wilcox J upon the facts of that particular case
which was considered by Emmett J in State of NSW v HREOC [2001] FCA
1199. That case raises some doubts about the extent to which one can
"treat behaviour as necessarily being a manifestation of [a] disability."
(para 45). But this case before me is different. One responsible member
of the respondent's staff did know that Mr Randell was dyslexic some
days before he was dismissed. [His manager] knew before the dismissal
and used that knowledge to indicate why the applicant could not be employed
in any other capacity.
Legislative Changes
Human Rights and Equal Opportunity
Commission Amendment Act 2002
The apparent effect of the decision in Rainsford v State of Victoria (above) was that no complaints under Commonwealth anti-discrimination
legislation could be brought against the States. To correct what was characterised
as a "drafting oversight", the Federal Parliament passed the Human Rights and Equal Opportunity Commission Amendment Act 2002.
This inserted subsection 6(1A) into the principal Act, providing that
Part IIIB of that Act which provides for redress for unlawful discrimination
binds the Crown in right of the States. The Act received Royal Assent
on 4 April 2002 and was taken to have commenced on 13 April 2000.
Sex Discrimination Amendment
(Pregnancy and Work) Bill 2002
The Sex Discrimination Amendment (Pregnancy and Work Bill) 2002
was introduced on 13 February 2002 and replaces the Amendment Bill
(No 2) 2001 which lapsed last year with the announcement of the federal
election. The Bill responds to concerns raised by the Human Rights and
Equal Opportunity Commission Report, Pregnant and Productive: Its a
Right not a Privilege to Work While Pregnant (2000) and implements
recommendations 36, 37 & 43 of that report.
The Bill does not
does not expand the operation of the Act, but rather clarifies the provisions
that protect pregnant and potentially pregnant and breast feeding women,
and confirms that discrimination on the grounds of breastfeeding is prohibited
by the Sex Discrimination Act 1984 ("the Act").
The Bill makes it
clear that the definition of 'sex discrimination' in s.5 of the Act includes
breastfeeding as a characteristic that pertains generally to women, and
removes any doubt that discrimination against a woman on the basis that
she is breastfeeding amounts to unlawful sex discrimination.
The Bill also makes
it clear that employers will not be able to ask women questions about
pregnancy or potential pregnancy in job interviews and people will not
be able to discriminate against breastfeeding women. Similarly, it clarifies
the federal anti-discrimination laws to ensure that medical information
collected from pregnant women may only be used for appropriate purposes,
such as for genuine occupational health and safety reasons and not in
a discriminatory manner.
Disability Discrimination
Amendment Bill 2002
The Disability Discrimination Amendment Bill 2002 was introduced on 13
February 2002 and is the same in substance as the Amendment Bill 2001.
It amends the Disability Discrimination Act 1992 to allow HREOC to grant
exemptions form disability standards dealing with public transport services
HREOC can currently
grant an exemption from Division 1 (discrimination at work) or Division
2 (discrimination in other areas) of the DDA, but does not have the power
to grant exemptions from disability standards.
HREOC will have to
consult with the National Transport Secretariat before granting an exemption
from the disability standards, and anyone else it sees as appropriate.
Exemptions can be granted for up to five years which can be extended on
application.
State
and Territory Anti-Discrimination Law
Legislative changes
- The Tasmanian Anti-Discrimination Amendment Act 2001 came into force on 17
December 2001, which allows education, health and welfare employers
to discriminate on religious grounds, allowing them to hire employees
who uphold their particular religious beliefs.
- The Tasmanian Anti-Discrimination Amendment Act 2001 commenced on 17 December
2002. It amends section 52 of the Anti-Discrimination Act 1998,
which deals with exceptions to discrimination in employment on the grounds
of religion.
- The Race and
Religious Tolerance Act 2001 (Vic) came into force on 1 January
2002. The Statute Law Amendment (Relationships) Act 2001(Vic)
also came into force, amending 43 Victorian Acts to recognise the rights
and responsibilities of all couples regardless of gender.
- Western Australia
introduced legislation outlawing discrimination on the basis of sexual
orientation in employment, education, accommodation access, the provision
of goods and services and facilities. The legislation also provides
equal inheritance rights for same-sex partners, enables medically infertile
women to access IVF treatment, and includes same-sex partners as beneficiaries
under the WA Parliamentary Superannuation and State Superannuation Schemes.
Race Discrimination
Kapoor v Monash
University & Anor [2001] VSCA 247 (21 Dec 2001): The complainant's
origins were from the Indian Hindus of the Brahmin Caste. She alleged
that her employer, Monash University, did not renew her contract on a
racially discriminatory basis. The complainant claimed that Monash University
believed she was unsuitable for the job because she had a reserved disposition,
which was a characteristic of her race and religion. Monash University
argued that her contract was not renewed as she lacked the ability to
perform the job's requirements.
The complainant was
appointed to conduct the English course element of the Monash Orientation
Scheme for Aborigines ("MOSA"). This position involved special
skills, and an understanding and appreciation of their particular special
needs. The job sometimes involved field trips with the students. On a
particular field trip, it was alleged that the complainant did not mix
with the students, which meant that she did not develop a proper understanding
of their special needs and this had a detrimental impact on her ability
to teach the MOSA program as required. The complainant argued that her
"reserved personality and social habits" were a product of her
religion and race, and that the University's decision not to renew her
contract on this basis amounted to racial discrimination.
The Court of Appeal
found if the University did not mentally connect the complainant's reserved
disposition with her race or religion, then the impugned decision did
not amount to discrimination for the purposes of the Equal Opportunity
Act 1985 (Vic). In order to prove "characteristic" discrimination,
the complainant needed to show that a substantial reason for its decision
was that her reserved disposition was a race or religion based characteristic.
The Tribunal stated that a construction of the Act as submitted by the
complainant would "inhibit employers and give protection to employees
in circumstances which could not have been intended by the legislature."
Sex Discrimination
Bonella &
Ors v Wollongong City Council [2001] NSWADT 194 (29 Nov 2001):
The NSW Administrative Decisions Tribunal found that Wollongong Council's
car policy indirectly discriminated against five female assistant managers.
75% of the male assistant managers were given cars with the right to private
use, however only 50% of the female managers were given such rights. The
Tribunal found that the council had indirectly discriminated against female
managers as it focused on the intention of the policy, not on its outcome.
The complainants had raised the issue with the respondent, and the Tribunal
noted that the respondent "ignored the effect of its policy of allocating
motor vehicles to only some of its employees, which was that the employees
with private rights use received more rewards". The Tribunal thus
expressed this as being an "equal remuneration" case.
The Tribunal awarded
each woman $7,500 for general damages relating to humiliation and stress,
however rejected their claim for damages for economic loss, stating that
what the complainants lost "was the opportunity to be considered
for a work-related benefit in a non-discriminatory manner." The Tribunal
also refused to award costs. Rather than order that Wollongong council
no longer follow the policy found to be indirectly discriminatory, the
Tribunal gave the Council an opportunity to consider the effect of the
policy, and take steps to remedy it itself. If they did not do so within
16 weeks, the Tribunal gave the complainants leave to return to the tribunal
for an order.
Delaney v Pasunica
Pty Ltd (t/as Seasoned Chicken Homestyle) [2001] VCAT 1870 (13
September 2001): The Victorian Civil and Administrative Appeals Tribunal
ordered the respondent to pay a 16 year old former shop assistant $29,489.10
after it found that the proprietor of the shop had sexually harassed her
during the first week of her job. The Deputy President of the Tribunal
noted that the allegations were so serious that some of them could have
equally been brought as criminal prosecutions. The allegations included
that that the proprietor poked her in the buttocks several times with
a rotisserie fork, groped her breasts and bottom, and that he sat her
down on a chair and pushed his penis into her face, saying "Come
on, give me a head job, I know you want to."
As the allegations
related to incidents to which there were no witnesses, the issue of proof
was central to the case. The Tribunal favoured the complainant's version
of events, taking into account the evidence of her GP, psychiatrist and
counsellor; the contemporaneous accounts the girl gave to her mother;
and the fact that her story had not changed over the two years since the
incidents occurred, or under cross-examination. It stated that the consistency,
quality and volume of such evidence should be preferred to the evidence
of the respondent. He simply denied most of the allegations, and the Tribunal
found the evidence of his brother to be unreliable, at times supporting
the evidence of the complainant.
Deputy President
Coghlan awarded the complainant $25,000 in general damages; $3,617.60
for loss of earnings and $871.50 for medical expenses. She refrained from
awarding aggravated damages, as she was of the view that there had been
no conduct by the proprietor "calculated to increase the hurt and
humiliation" suffered by the girl.
Disability Discrimination
Rabadi v Commissioner
of Corrective Services [2002] NSWADT 23, (21 Feb 2002): The NSW
Administrative Decisions Tribunal rejected a disability discrimination
claim by a prison guard seriously assaulted at work, as he was not able
to carry out the inherent requirements of the job. The assault left him
with back, neck, left shoulder, and right leg injuries. The extent of
the injuries led to a medical certificate being issued requiring "no
heavy lifting, no prolonged sitting or standing, no bending, no pushing,
no pulling." The assault also left him with psychiatric problems
variously described as post-traumatic stress disorder, depression, and
inability to handle stress.
The complainant alleged
that due to his injuries, he had suffered discrimination relating to his
general treatment at work, his failure to be promoted to one of several
positions, and when he was medically retired. Regarding his treatment
at work, the Tribunal accepted the incidents he complained of were minor
in relation to the effort the Department went to, to accommodate his disabilities.
The Tribunal found
that barring him from the promotion was discriminatory, but not unlawful
because of the inherent requirements of the position. The position would
have required him to be able to physically manhandle prisoners on occasions,
which he was unable to do. It noted that the "inherent requirement"
defence under the Anti-Discrimination Act 1977 (NSW) does not normally
apply to actions relating to existing employees. The defence is available
under s49D(4) and applies under s49D(1)(b) "which covers the action
of determining who should be offered employment. It does not apply to
s49D(2)(b), the action of denying an employee access to opportunities
for, relevantly, promotions." As the Department had allowed him to
apply for the promotion, and he had been considered for selection, the
Tribunal was of the view that the inherent requirement defence of (1)(b)
applied.
The Tribunal found
that the complainant's medical retirement was not unlawful under the inherent
requirement defence. It accepted that his physical and psychiatric disabilities
were so extensive that it placed too great a burden on the Department.
Sexuality Discrimination
Burns v Dye [2002] NSWADT 32 (12 March 2002): This decision dealt with homosexual
vilification under s49ZT of the Anti-Discrimination Act 1977 (NSW).
The Tribunal found that a homosexual man had been vilified by his neighbour
in only one incident of a number complained of. To satisfy the requirements
for homosexual vilification under the Act, a complainant must prove that
the acts complained of were "public" acts inciting hatred, serious
contempt or severe ridicule.
The neighbour had
scrawled graffiti on the complainant's door saying "fags live here,
faggots should die". The Tribunal found this to constitute vilification,
as it was addressed to the general public, and was "urging or encouraging
anyone with the inclination to take heed of the message being conveyed".
However, the Tribunal found that the other acts complained of, although
"highly offensive" and "unwelcome and threatening",
did not constitute vilification. For example, when the respondent yelled
abuse at the complainant from the stairs in a block of units, using terms
such as "poofter" and "faggot", the Tribunal was of
the view that it was not enough to "prompt an ordinary, reasonable
person to requisite feelings of ill-will" to the complainant, and
thus did not constitute vilification.
The Tribunal awarded
the complainant $1000 general damages, and ordered the respondent to make
a formal written apology to the complainant.
There was strong
dissent in this decision of by one of the members of the Tribunal. Member
Tony Silva found that the other acts complained of satisfied the criteria
in the Act and thus constituted homosexual vilification. He was also of
the view that the complainant should have been awarded $15,000 compensation.
Procedural Issues
Crewsdon v
Niland & Ors [2002] NSWADTAP 5, (4 March 2002): In this case,
the NSW Administrative Decisions Tribunal - Appeal Panel found that it
has broad powers to dismiss complaints where it is required for "the
efficient, effective and expeditious conduct of proceedings even if the
complaint is not frivolous or vexatious". The Panel noted that equal
opportunity legislation is to be interpreted beneficially, and that such
benefits apply to both complainants and respondents. "The legislation…recognises
that a complaint may not be frivolous, vexatious, misconceived or lacking
in substance yet if the complainant has demonstrated either an unwillingness
or an inability to co-operate with the tribunal and the respondents in
having the matter ready for hearing within an acceptable time, the complaint
may nonetheless be dismissed." The Appeal Panel took into account
the fact that the complainnt had attempted to postpone a hearing by withdrawing
his complaint when he thought it was not going his way, only to attempt
to re-list it later.
Immigration
and Refuge Law
Legislation
- The Migration
Legislation Amendment (Transitional Movement) Act 2002 (Cth) commenced
operation on 4 April 2002. This Act amends the Migration Act 1958 (Cth) ("Migration Act") to allow a "transitory person"
(a person who is taken to Nauru or PNG and all persons aboard the Aceng
or MV Tampa) who is brought to Australia and remains in Australia for
a continuous period of six months to make a request to the Refugee Review
Tribunal ("the Tribunal") for an assessment of whether that
person is a refugee under the Refugee Convention and Protocol. The decision
of the Tribunal is subject to a privative clause.
If a "transitory
person" has engaged in "uncooperative conduct" either
before or after the person was brought to Australia, then the Secretary
of the DIMIA may issue a certificate to that effect to the Tribunal.
"Uncooperative conduct" is defined as failing or refusing
to cooperative with relevant authorities in relation to attempts to
remove the person to a country where the person formerly resided or
another country, or in relation to the detention of the person in
Nauru or PNG. The issuing of a certificate by the Secretary is subject
to a privative clause.
- The Australian
Citizenship Legislation Amendment Act 2002 also commenced operation
on 4 April 2002. This Act repeals section 17 of the Australian Citizenship
Act 1948 (Cth) and enables Australian citizens to acquire another
citizenship without losing their Australian citizenship.
Procedure
Following 11 September
2001, all applicants for an Australian visa are now required to complete
Form 1190 "Additional character declaration" which asks whether
an applicant has ever "served in a military force or state sponsored
private militia, undergone any military/paramilitary training, or been
trained in weapons/explosives use (however described)". A failure
to complete this form may result in there being insufficient evidence
to satisfy the Minister's delegate that the applicant passes the character
test.
"Privative clause"
decisions
As yet there is no
decision of either the High Court or a Full Court of the Federal Court
dealing with the effect of the "privative clause" in section
474 of the Migration Act, inserted by the 2001 amendments to that Act
[see Legal Bulletin, Volume 2, issue 5]. A five bench Full Federal Court
considered this issue on 3, 4 and 5 June 2002 in Melbourne (NAAV v Minister
for Immigration & Multicultural Affairs, NABE v Minister for Immigration
and Multicultural Affairs).
To date, where this
issue has been considered, there has been divided opinion between judges
of the Federal Court as to whether the "Hickman" exceptions
to the privative clause in s474 include matters going to "jurisdictional
error" and "natural justice".
(a) Examples
of a broad view of "Hickman" exceptions
In Walton v
Ruddock [2001] FCA 1839 (20 December 2001) Merkel J found that,
as s474 and Part 8 of the Migration Act are silent on compliance or non-compliance
with the rules of natural justice, there is no clear legislative intention
to abrogate or exclude the rules of natural justice. He held that s474
did not, therefore, prevent the review of decisions for a failure to comply
with rules of natural justice, being decisions in excess of jurisdiction.
In Boakye-Danquah
v MIMIA [2002] FCA 438 (11 April 2002), Wilcox J found that s474
did not prevent the Court from granting relief for jurisdictional error
of the kind discussed by McHugh, Gummow and Hayne JJ in MIMIA v
Yusuf [2001] HCA 30 at [82] relying on the formulation in Craig
v South Australia (1995) 184 CLR 163 at 179 as follows:
If … an
administrative tribunal falls into an error of law which causes it to
identify a wrong issue, to ask itself a wrong question, to ignore relevant
material, to rely on irrelevant material or, at least in some circumstances,
to make an erroneous finding or to reach a mistaken conclusion, and
the tribunal's exercise or purported exercise of power is thereby affected,
it exceeds its authority or powers. Such an error of law is jurisdictional
error which will invalidate any order or decision of the tribunal which
reflects it.
Wilcox J stated that:
Application
of more recent decisions of the High Court may mean that court intervention
is now available in circumstances wider than those identified by Dixon
in Hickman. If so, that is the effect of the development of the law
over the intervening 57 years. It is not a reason for refusing to apply
the more recent decisions.
He did not discuss
whether natural justice principles had been excluded by s474.
Finkelstein J in Kwan v MIMA [2002] FCA 498 (23 April 2002) appears to agree
with Wilcox J's approach in relation to jurisdictional error.
In the most recent
case of WACN v MIMIA [2002] FCA 504 (29 April 2002), Nicholson
J assumed "in the interests of the applicant" that jurisdictional
error and natural justice lie within the retained permitted jurisdiction
of the Court.
(b) Examples
of a narrow view of "Hickman" exceptions
On the other hand,
Gyles J in NAAX v MIMIA [2002] FCA 263 (15 March 2002) read
the Hickman exceptions to s474 narrowly. He found that:
there are jurisdictional
errors and there are jurisdictional errors, in the sense that some will,
whilst others will not, be affected by a privative clause … To
conclude that prohibition will go in all cases of jurisdictional error
of the type identified in Craig … and all cases of the breach of
the rules of natural justice would be to ignore the clear distinction
drawn in Hickman and render s474 and like privative clauses devoid of
content.
On the facts in this
case he held that s474 is inconsistent with the existence of an implied
duty to afford procedural fairness by supplying information going beyond
the explicit requirements of Div 4 of Part 7 of the Migration Act. While
his Honour stated that he was not "intending to answer an abstract
question as to whether a privative clause can exclude natural justice",
he went on to assert that the suggestion by Spigelman CJ in Vanmeld
Pty Ltd v Fairfield City Council (1999) 46 NSWLR 78 that it did
not:
involves a variation
and extension of the Hickman exceptions which are binding upon me and
too well entrenched for extension, short of the High Court, particularly
in relation to a clause which is, and is designed to be, indistinguishable
from that considered in Hickman and many cases which have followed it.
Gyles J also found
that the privative clause was not unconstitutional. He held that it did
not operate to give judicial power to an administrative body as the Tribunal
was not making a determination as to existing rights but whether a new
right (under the Migration Act) should be granted.
Tamberlin J in NABE
v MIMIA [2002] FCA 281 (19 March 2002) reached a similar conclusion
to Gyles J, although he did not consider whether natural justice principles
had been excluded by s474. He held that jurisdictional error of Yusuf
and Craig kind has been expressly excluded by section 474. He stated that:
Section 474
in terms makes it evident that the decision of the RRT is intended to
authoritatively resolve questions of fact and law before it. That principle
is qualified by the authorities to the effect that a privative clause
will not apply to prevent judicial review or where the decision is unconstitutional
or in breach of a specific, express or indispensable precondition to
jurisdiction or exercise of power, or where the empowering statute makes
it clear that compliance with a condition is essential to the exercise
of jurisdiction.
The approach of Gyles
J in NAAX was specifically approved by Beaumont J in NABM v MIMA [2002]
FCA 335 (26 March 2002) where he stated:
In my view,
the decision of Gyles J in NAAX is correct. There is no scope for reading
into the provisions of Part 7 of the Act as it now stands an implied
duty of procedural fairness, breach of which can provide a basis for
review on the grounds of jurisdictional error.
It was also approved
by Heerey J in Turcan v MIMA [2002] FCA 397 (18 April 2002).
(c) Middle
ground?
In Ratumaiwai
v MIMA [2002] FCA 311 (20 March 2002), Hill J claimed the middle
ground. He stated that:
For my part
I am inclined to agree with Gyles [in NAAX] that s474 would preclude
the Court … from making an order for prohibition absolute where
there had been a denial of natural justice … On the other hand,
there is nothing in s476 [sic: 474?] which would prevent the court from
setting aside in judicial review proceedings a decision made in excess
of jurisdiction under one of the other heads of review (eg, error of
law) and so there is no reason to believe that Parliament would thus
have limited this Court's power to grant prohibition where there was
jurisdictional error.
However, in Wang
v MIMIA [2002] FCA 477 (17 April 2002), Hill J cast doubt on his
decision in Ratumaiwai. He referred to the decision of Wilcox
J in Boakye-Danquah and stated:
With respect
to his Honour, the policy he attributes to Parliament is in my view
rather charitable both as expressed in the language used by Parliament
and in the extrinsic material to which I have referred. Accordingly,
I propose to follow the views of Gyles [in NAAX] and Tamberlin JJ [in
NABE]. In doing so I am conscious that not all of what I have said in
the present judgment can be reconciled with the views, expressed as
dicta, which I wrote in Ratumaiwai …
Other decisions
Minister for
Immigration and Multicultural Affairs v Khawar [2002] HCA 14.
Mrs Khawar and her three children, all citizens of Pakistan, applied for
a protection visa on the basis that she was a victim of serious and prolonged
domestic violence on the part of her husband and members of his family,
and that the police in Pakistan refused to enforce the law against such
violence or otherwise offer her protection and that such discrimination
is both tolerated and sanctioned by the state.
The Tribunal rejected
Mrs Khawar's claim as it found that, if Mrs Khawar's allegations were
true, those harming her were not motivated by a Convention reason, namely,
her race, religion, nationality, political opinion or membership of any
particular social group. The conduct of her husband and his family was
for purely personal reasons related to the circumstances of her marriage,
the fact that she brought no dowry to the family and their dislike of
her as an individual.
The Tribunal did
not make findings of fact in relation to whether Mrs Khawar was able to
obtain police protection from the violence suffered by her and failed
to determine whether Mrs Khawar was a member of a particular social group
in Pakistan within the meaning of the Convention.
HELD: The majority
of the High Court (Gleeson CJ, McHugh, Gummow and Kirby JJ, Callinan J
dissenting) found that:
- While the paradigm
case of persecution contemplated by the Convention is persecution by
the state, Article 1A(2) will be satisfied where the "persecution"
consists of two elements:
(a) the criminal
conduct of non-state agents, such as private citizens; and
(b) the toleration
or condonation of such conduct by the state or agents of the state
which results in the denial of a fundamental human right otherwise
enjoyed by Pakistani nationals, namely, access to law enforcement
authorities to secure a measure of protection against violence to
the person. It would not be sufficient to show maladministration,
incompetence or ineptitude on the part of the state or its agents.
- It was open to
the Tribunal to find that a group as broad as "women in Pakistan"
are a "particular social group" under the Convention. The
size of the group does not matter, nor is it necessary for the alleged
persecution to define the group.
The case was remitted
to the Tribunal to be dealt with according to law.
Minister for
Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11.
The Immigration Review Tribunal made a 'decision' affirming the cancellation
of the respondent's visa. However, through an administrative oversight,
the Tribunal did not give the respondent an opportunity to attend a hearing
to present evidence and argument before doing so. When it realised what
had happened, the Tribunal conducted a further hearing, which was attended
by the respondent, and made a fresh decision.
HELD: A majority
of the High Court (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan
JJ, Kirby J dissenting) held that the Tribunal was able to do this. All
the majority judges held that the Tribunal had failed to discharge its
statutory function in making the original decision, such that the Tribunal
had failed to conduct a "review" of the decision as required
by the Migration Act. The Court held that nothing in the Act or the principles
of administrative law required that a purported decision involving jurisdictional
error should be treated as valid unless and until set aside by a court.
Thus it was open to the Tribunal to reconsider the matter and make the
second decision.
In re Patterson;
ex parte Taylor [2001] HCA 51. T was a child and a British subject
when he arrived with his parents to settle in Australia in 1966. In Nolan
v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178
the High Court held that a resident of Australia who was not a citizen
and whose parents where not citizens could be treated as an "alien"
within Constitution s.51(xix). Following the Nolan decision
the Migration Act and the Australian Citizenship Act were amended in 1987.
The 1987 amendments to the Citizenship Act removed the favoured status
of British citizens and the amendments to the Migration Act placed it
under the power given over aliens by Constitution s.51(xix) rather than
the power with respect to immigration in s.51(xxvii). After further amendments
to the Migration Act in 1994 T was taken to hold a visa under the Migration
Act by operation of law.
In June 2000, a delegate
of the Minister for Immigration cancelled T's visa under s.501(3) of the
Migration Act. T commenced proceedings in the original jurisdiction of
the High Court seeking constitutional writs. T submitted that he was not
an "alien" and the Migration Act did not authorise an order
to remove him from Australia.
HELD: The majority
of the Court accepted that T was beyond the "immigration" power
in Constitution s.51(xxvii) because he had been "absorbed".
By a majority of 4 to 3 the Court decided to overrule Nolan and hold a British subject who entered Australia before 1973, or possibly
May 1987 (when the amendment of the Migration Act and Citizenship
Act occurred), was not an "alien": Gaudron J [42]; Kirby
J [103]; Callinan J [380]; McHugh agreed that Nolan should be overruled
but concluded British subjects ceased to be aliens in 1973 when the Royal
Style and Titles Act 1973 (Cth) commenced [94]; Gleeson CJ dissented [7]
as did Gummow with Hayne JJ [252]. The Court made an Order Absolute for
a Writ of Certiorari to quash the decision.
General Law
Constitutional Law
In Re McBain; Ex Parte Australian Catholic Bishops' Conference and
Another, Human Rights and Equal Opportunities Commission and others intervening [2002] HCA 16, the High Court considered applications (brought
in the court's original jurisdiction) to quash a decision of Sundberg
J, a judge of the Federal Court of Australia.
In the proceedings
before Sundberg J, Dr McBain (a gynaecologist) sought a declaration that
certain provisions of the Infertility Treatment Act 1995 (Vic)
were inoperative because they were inconsistent with the Sex Discrimination
Act 1984 (Cth).
The applicants were
not parties to the action in the Federal Court, but had been granted leave
to be heard as amici curiae. The parties to the Federal Court action did
not appeal Sundberg J's decision.
The High Court unanimously
dismissed the application. The majority (Gleeson CJ and Gaudron, Gummow
and Hayne JJ) held that the High Court did not have jurisdiction to consider
the applications because they did not give rise to a "matter"
within the meaning of Ch III of the Constitution. The other members of
the Court agreed that the application should be dismissed, but on different
grounds.
None of the members
of the Court gave any detailed consideration to issues raised in the proceedings
regarding the validity and interpretation of the Sex Discrimination Act
1984.
In United Mexican
States v Cabal (2001) 183 ALR 645 a Full Court of the High Court
(Gleeson CJ, McHugh, Gummow J) allowed an appeal against an order of Kirby
J. Kirby J had granted bail to Mr Cabal, who had been detained under a
warrant issued under the Extradition Act 1988 (Cth) pending the
hearing of an appeal against an order of the Full Court of the Federal
Court challenging the extradition order.
The Full Court of
the High Court held (allowing the appeal and dismissing the application
for bail) that:
(i) quite apart from the provisions of the Extradition Act, the
High Court has power to grant bail in extradition and criminal cases
as an incident of its powers under section 73 of the Constitution to
hear appeals from the orders of certain courts;
(ii) although the Extradition Act does not diminish the powers
of the Court under section 73 of the Constitution, the court must still
take into account the purpose and policy of that act when exercising
its constitutional power. The principles which govern an application
made under the Extradition Act will "illuminate" the
object of the proceedings that give rise to the relevant application
or appeal to the High Court;
(iii)having regard to the above, bail should only be granted in extradition
cases under section 73 of the Constitution where the circumstances
of the particular individual case are "special" and there
is no real risk of flight; and
(iv) the exercise of discretion by Kirby J to grant bail miscarried
because his Honour made no finding about the likelihood of the applicant
attempting to flee. His Honour also failed to make a finding that the
applicant had made out a very strong case for the grant of special leave.
After considering those matters, the Court refused Mr Cabal's application
for bail.
In Pasini v
United Mexican States [2002] HCA 3 (13 February 2002) the High
Court considered a special leave application which raised the validity
of certain provisions of the Extradition Act 1988 (Cth). Those
provisions required that an appeal to the Federal Court from an extradition
order of a magistrate be conducted on the basis of the material before
the magistrate. The High Court dismissed the application for special leave,
holding:
(i) the authority committed to a magistrate under the Extradition Act
1988 (Cth) did not involve the exercise of judicial power (involving,
instead, an administrative determination of whether a person is eligible
for surrender to an extradition country);
(ii) however, the review, by the Federal Court, of the exercise of that
authority did involve the exercise of judicial power;
(iii) some powers may appropriately be treated as administrative when
conferred on an administrative body and judicial when conferred on a
court; and
(iv) the court's function in reviewing an administrative decision includes
determining the rights and liabilities of the parties and thus involves
an exercise of judicial power.
Practice and Procedure
In Kingham
v Cole [2001] FCA 47, Heerey J considered a practice note of the
Royal Commissioner conducting the Royal Commission into the Building Industry.
That practice note provided that a person would not be permitted to cross-examine
a witness until the person provided a statement of evidence indicating
where the person disagreed with the witness. Heerey J found that the practice
note was not ultra vires and was not contrary to natural justice.
In Kabushiki
Kaisha Sony Computer Entertainment v Stevens (2001) ATPR 41-846,
Sackville J granted the ACCC leave to appear as amicus curiae in proceedings
brought under the Copyright Act 1967 (Cth) and the Fair Trading Act 1987
(NSW). His Honour discussed the relevant principles involved in considering
an application for leave to appear as amicus curiae.
Other
In Police v
Darby (NSW Magistrates Court, 21 November 2001) Deputy Chief Magistrate
Jerram refused to admit certain evidence obtained using "Rocky",
a "drug sniffer dog". Her Worship held that the search was illegal
as it preceded the formation of (and indeed created) a reasonable suspicion
that the defendant was in possession of a prohibited drug. Her Worship
concluded that that illegality outweighed considerations in favour of
the admission of the evidence. She therefore declined to admit the evidence
pursuant to section 138 of the Evidence Act 1995 (NSW).
Her worship also
expressed the view that the actions of the police were in breach of article
17 of the ICCPR, in that "search of persons in public places in these
circumstances, given the illegality, can be seen to create an 'unlawful
interference' with …privacy".
In North Australian
Aboriginal Legal Aid Service v Bradley [2001] FCA 1728, Wienberg
J dismissed an application alleging that the appointment of the Chief
Magistrate of the Northern Territory was for improper or extraneous purposes
and contrary to an implicit requirement that judicial independence be
protected.
In Wong v Q (2001) 185 ALR 233 the High Court considered the practice adopted
by the New South Wales Court of Criminal Appeal of describing some judgments
as "guideline judgements". In the proceedings that were the
subject of the appeal, the Court of Criminal Appeal had received evidence
from the prosecution concerning drug importation and published a table
of "sentencing guidelines".
The majority of the
High Court found that the principles underlying the sentencing guidelines
were flawed, in that those guidelines selected weight of the narcotic
as the primary factor to consider in sentencing.
Three of the majority
judges (Gaudron, Gummow and Hayne JJ) further found that the Court of
Criminal Appeal had no jurisdiction to issue the guidelines. Their Honours
stated that the Court only had jurisdiction over matters concerning the
particular offenders in the proceedings before it. It had no jurisdiction
in respect of sentences passed or to be passed on others.
In Cubillo
v Commonwealth of Australia (2001) 183 ALR 249, the Full Federal
Court dismissed an appeal by the appellants, who are members of the stolen
generation. The trial Judge had earlier dismissed the applicant's claims
that:
- they had been
wrongfully imprisoned;
- they had been
victims of a breach of statutory duty by the Director of Native Affairs
(for whom the respondent was alleged to be vicariously liable); and/or
- they had suffered
loss by reason of breaches of duties of care and fiduciary duties owed
by the Commonwealth.
The Full Court found
that the trial judge was correct in rejecting the appellant's substantive
claims.
Their Honours further
found that the trial judge was correct in finding that the Commonwealth
had suffered irremediable prejudice by reason of the appellant's delay
in bringing proceedings, meaning that the appellant's should not therefore
be granted an extension of time under the Limitation Act 1981 (NT)
(in respect of all actions save for the fiduciary duty action). As regards
the fiduciary duty action, the Full Court agreed with the trial judge's
conclusion that the defence of laches barred the appellant's from pursuing
that action.
Their Honours specifically
noted that they had not been required to make findings regarding the existence
or otherwise of the stolen generation and that no part of their reasons
should be construed as doing so.
An application for
special leave to appeal was subsequently refused by the High Court.
Australian
and International Privacy Law
Australia
Privacy Amendment
(Private Sector) Act
The Privacy Amendment (Private Sector) Act 2000 (Cth) came
into force on 21 December 2001. It seeks to regulate the use of personal
information by private sector organisations and set out the rights of
individuals in relation to their personal information. Organisations to
which the regulations apply must either implement the ten National Privacy
Principles (NPPs) or adopt their own privacy code with the approval of
the Privacy Commissioner. The first private sector privacy code was approved
on 17 April, 2002, being a code submitted by the Insurance Council of
Australia to cover the general insurance industry.
The National Privacy
Principles are set out in Schedule 3 of the Privacy Act and legally bind
organisations in the way that they must handle personal information. The
NPPs cover collection, use and disclosure, data quality, data security,
openness, access and correction, identifiers, anonymity, transborder data
flows and sensitive information.
The new provisions
apply to:
- Organisations
with an annual turnover of more than $3 million, including not-for-profit
organisations;
- All health service
providers regardless of turnover;
- Businesses with
an annual turnover of $3 million or less that are related to another
business that has an annual turnover of more than $3 million;
- Businesses that
disclose personal information for a benefit, service or advantage or
provide someone else with a benefit, service or advantage to collect
personal information, regardless of turnover; and
- Any business that
is a contracted service provider for a Commonwealth contract, regardless
of turnover.
Anti-Terrorism
Bills
The Federal Government is currently considering several bills designed
to give greater powers to ASIO in investigating alleged terrorist activities.
The bills will grant ASIO wide ranging powers to detain and question persons
who may have information that may assist in preventing terrorist attacks
or in prosecuting those who have committed terrorism offences. The warrants
may provide for custody and detention incommunicado for a period of up
to 48 hours under the first warrant. These bills also authorise law enforcement
and other agencies to collect, use and disclose personal information in
ways not otherwise permitted under existing legislation. The Office of
the Federal Privacy Commissioner has made submissions to the Senate Committee
outlining its concerns about these bills and their implications for privacy.
In Australian
Broadcasting Corporation v Lenah Game Meats P/L (2001) 185 ALR
1 the respondent was licensed to kill possums in Tasmania and export their
meat. Members of an animal liberation organisation installed secret cameras
to record the activities at the abattoir.
A copy of the film came into the possession of the ABC, which proposed
broadcasting it. The respondent commenced proceedings in the Supreme Court
of Tasmania seeking an interlocutory injunction to enjoin the ABC from
broadcasting the film. At first instance, the application was dismissed.
The respondent's appeal to the Full Court of the Supreme Court of Tasmania
was allowed and an injunction issued.
The ABC's appeal to the High Court was allowed by a majority. Amongst
other things, the Court considered when the law would protect a right
to privacy by means of an injunction to restrain publication and the extent
to which the implied freedom of communication concerning government and
political matters protected comment on the activities in the possum abattoir.
USA
Online Personal
Privacy Bill
The Online Personal Privacy Bill was introduced on April 18, 2002. The
bill addresses the collection, use and disclosure of personally identifiable
information, requiring notice and consent for the collection and sharing
of sensitive personally identifiable information, as well as security
and consumer access to information. The bill would provide for a private
right of action for persons whose sensitive information has not been treated
in accordance with the bill's provisions. The bill was introduced by Senator
Ernest Hollings, following several setbacks in the aftermath of the September
11 attack.
United States
v Scarfo (2001) Criminal No. 00-404 (D.N.J.): A Federal Judge
in New Jersey ruled on 26 December, 2001 that the methods used by the
FBI to gather information about Nicodemo Scarfo, an alleged mobster involved
in a loan shark operation, were legitimate. The FBI had obtained a court
order to trespass into Scarfo's office, plant a keystroke "sniffer"
in his PC and monitor its output. The decision is the first of its kind
on an issue considered important in defining police powers to circumvent
privacy-protecting encryption products.
Tattered Cover
v City of Thornton (2002) CA 2150 The Colorado Supreme Court unanimously
ruled on April 9, 2002 that a bookstore is not required to disclose information
to police that revealed who had purchased two books on how to make illegal
drugs. It held that the First Amendment and the state constitution protected
the right of citizens to purchase books anonymously. The ruling does not
prevent police from obtaining records but sets the bar higher in obtaining
search warrants.
New Zealand
The Telecommunications
(Interception Capability) Bill is being prepared by the New Zealand
Ministry of Justice which will require Internet Service Providers, mobile
phone companies and others to make their systems more easily interceptable
by police and intelligence agencies.
Europe
The Council of Europe
released its Recommendations for Freedom of Information on 21 February,
2002. They call for member countries to adopt laws on access to information
so that citizens will be able to access personal records held by government
bodies.
Canada
The Privacy Commissioner
of Canada issued on 1 May, 2002 a statement outlining his concerns about
impending national defence Bills in the Canadian Parliament which would
entitle national police and security forces to demand personal information
from all Canadian air travellers without judicial authorisation and have
access to passenger information obtained by airlines. The Commissioner
criticised the Bill for going "far beyond anti-terrorism" and
for being an unjustified and dramatic expansion of privacy-invasive police
powers.
Industrial
Law
Cases
Reasonableness of probation
periods
Allison Ballard v ACT Ambulance Service AIRC PR910100 (9 October
2001) - re Alleged unlawful termination - jurisdiction: Ms Ballard was
employed by the ACT Ambulance Service as a Trainee Technical Officer.
Her letter of offer specified that employment was subject to a training
probationary period, during which she was required to successfully complete
the Diploma of Applied Science (Ambulance Studies) conducted by the ACT
Ambulance Service. Eventually Ms Ballard was dismissed for unsatisfactory
academic progress and she applied to the AIRC for unfair dismissal. Her
employer opposed this application, claiming that the AIRC did not have
jurisdiction as the employee was serving a period of probation that fell
within the unfair dismissals exclusion found within the Workplace Relations
Act.
Section 170CC Regulations of the WR Act provides for employees
serving a period of probation or qualifying period to be excluded from
the termination of employment provisions:
… an employee serving
a period of probation or a qualifying period of employment, if the duration
of the period or the maximum duration of the period, as the case may
be, is determined in advance and, either:
(i) the period, or the maximum duration, is three months or less; or
(ii) the period, or the maximum duration is more than three months;
and is reasonable, having regard to the nature and circumstances of
the employment; …
HELD: The AIRC determined that Ms Ballard was serving a period of probation,
which had been determined in advance of her employment. As the maximum
period of the probationary period was in excess of three months, the AIRC
examined whether the period of probation was reasonable having regard
to the nature and circumstances of the employment. The onus falls on the
employer to justify why a period of probation should extend beyond the
three month period. The AIRC concluded the four year probation was not
reasonable, stating: 'Had the training not been carried out by the employer,
but by some other institution, and the employer had not been given any
opportunity to assess the trainee's abilities until the academic qualifications
were obtained, a four year probation period (which, in reality, would
amount to a 12 month probation period) might be justified.
COMMENT: The AIRC has stressed that in cases where employment of a public
servant is governed by statute, the terms of the statute will prevail
over any other inconsistent expression of those terms whether in writing
or not.
What did the term 'redundancy' mean in the context of the award agreement
between Bank employees and the CBA - if the Bank no longer required the
work of the employees who did not take up employment with an outsourced
provider (EDS) to be done even though, as a matter of fact, generally
they continued to perform the same or substantially the same duties after
their work was outsourced?
Finance Sector Union of Australia & Macey v Commonwealth Bank
of Australia [2001] FCA 1613: These proceedings were representative
proceedings brought under the Federal Court of Australia Act 1976 by Macey and the Finance Sector Union of Australia against the CBA. The
applicants alleged that the Bank breached the Commonwealth Bank of Australia
Officers' Award by failing to terminate the employment of certain of its
employees and pay them severance payments as a result of redundancy.
The employees were employed by the Bank's information technology services
department. In October 1997 the functions of the IT Dept were out-sourced.
EDS Australia took over these operations, a company in which the Bank
had a shareholding. At the time many, but not all, of the employees of
the Bank working in the IT Dept took up employment with EDS. These proceedings
concerned those Bank employees that did not take up employment with EDS.
The court considered evidence concerning events leading up to and associated
with EDS taking over the Bank's IT operations. It also considered the
way in which EDS conducted those operations and the relationship between
EDS and the Bank, as well as the relationship between EDS, the Bank and
the employees involved in those operations.
HELD: Moore J held the obligation of the Bank to retrench and pay severance
pay arose when the redundancy situation in fact arose, on October 10 1997.
Therefore, the Bank had breached the award and must agree with the applicants
on amounts payable to the employees involved.
What is the scope of the prohibition in the Workplace Relations Act
1996 (Cth), s.170MN?
Emwest Products Pty Ltd v Automative, Food, Metals, Engineering, Printing
& Kindred Industries Union [2002] FCA 61, (6 February 2002):
WRAct s.170 MN reads (in part):
(1) From the time when:
(a) a certified agreement; or
(b) an award under subsection 170MX(3) (which deals with the exercise
of arbitration powers on termination of a bargaining period);
comes into operation until its nominal expiry date has passed, an employee,
organisation or officer covered by subsection (2) must not, for the
purpose of supporting or advancing claims against the employer in respect
of the employment of employees whose employment is subject to the agreement
or award, engage in industrial action.
The respondent union submitted that the expression 'in respect of the
employment of employees who employment is subject to the agreement' in
the Act, may refer to only the matters actually agreed upon by the parties
in the agreement. If so, the prohibition would relevantly extend only
to industrial action taken for the purpose of advancing claims in respect
of such agreed matters.
HELD: Kenny J: 1) The expression is open to more than one meaning, therefore
it must be interpreted in light of its statutory object. 2) Part VIB permits
a certified agreement to cover a single business, or part of a single
business such as a geographically distinct part of an employer's business
or a distinct operational unit: ss 170L and 170LB. Part VIB also contemplates
that employees may be subject to more than one certified agreement (the
nominal expiry date of which has not passed) at any one time: s 170LY(1)(b).
3) Assuming the policy behind s 170MN is to encourage parties to adhere
to the bargain they have struck, then the policy would not be defeated
by permitting the parties to negotiate effectively in respect of matters
that were not the subject of a relevant certified agreement. The policy
is sufficiently protected if s 170MN(1) is construed as prohibiting parties
to a certified agreement from resorting to industrial action to undo the
matters they have agreed upon in the certified agreement, if the nominal
expiry date has not passed. 4) If the parties so desired, they could agree
that a certified agreement made by them was intended to cover the whole
field of relevant employment, thereby excluding the possibility of industrial
action during the currency of the agreement.
How does one determine an appealable error: the decision in Coal &
Allied Operations Pty Ltd v Australian Industrial Relations Commission
(2002) 203 CLR 194 explained.
Wan v Australian Industrial Relations Commission [2001]
FCA 1803, (17 December 2001): (Spender, Kiefel, Dowsett JJ): Held; 1)
The case of Coal & Allied Operations Pty Ltd v Australian Industrial
Relations Commission establishes that the nature of an appeal
pursuant to the Workplace Relations Act 1996 (Cth), s 45(1), does
not vary according to the nature of the decision under appeal. In all
cases, an appellant can only be successful if an appealable error is demonstrated.
2) However, where the appeal is from a decision of a discretionary nature,
the nature of that discretion might affect the ease with which error is
shown. Some discretions are relatively narrow, involving little more than
the formation of an opinion based on facts. Other discretions are relatively
wide, involving decisions almost of a 'policy' nature. The narrower the
discretion, the easier it will be to demonstrate error. 3) The High Court
cannot be taken to have established a dichotomy between narrow and broad
discretions and to have prescribed separate bases of appeal, namely demonstrable
appealable error. The relative breadth or narrowness of the discretion
might affect the capacity to demonstrate such error. 4) Section 45 does
not specify grounds for granting leave to appeal other than in the special
case referred to in s 45(2). Grounds traditionally adopted in granting
leave have included considerations such as whether the decision is attended
with sufficient doubt to warrant its reconsideration and whether substantial
injustice may result if leave is refused. These 'grounds' should not be
seen as fetters upon the broad discretion conferred by s 45(1), but as
examples of circumstances which will usually be treated as justifying
the grant of leave. 5) It will rarely, if ever, be appropriate to grant
levae unless an arguable case of appealable error is demonstrated.
Statutory Developments
New South Wales
See http://www.dir.nsw.gov.au/action/current/ for comments on the latest Bill seeking to amend the NSW Industrial Relations
Act 1996. The NSW Government comments: The Government introduced into
the Parliament, a draft exposure Bill for consultation purposes, seeking
to repeal the Annual Holidays Act 1944, the Long Service Leave Act 1955
and the Long Service Leave (Metalliferous Mining Industry) Act 1963, and
insert a new part in the Industrial Relations Act 1996 dealing with leave
matters. As a result of this consultation process, the original Bill has
been significantly redrafted to incorporate the comments received. The
Industrial Relations Amendment (Leave) Bill 2001 (No 2) also incorporates
the Governments commitment to remove age-based discrimination in the calculation
of long service leave entitlements. Comment is invited on the latest draft
of the Industrial Relations Amendment (Leave) Bill 2001 (No 2). Submit
written comment by Friday 1 March 2002 to Pat Manser, Deputy Director
General.
Western Australia
The Western Australian
Government introduced the Labour Relations Reform Bill (2002) into
Parliament on February 19. The relevant Minister's explanation of the
Bill is at http://www.ministers.wa.gov.au/Feature_stories/IR_Bill/IR-outline.PDF.
The State Labor Government does not have a majority in the Upper House
and therefore, there is potential for substantial amendments to the Bill
before it is passed. In essence the proposed amendments shift the focus
of industrial relations in Western Australia back to the Western Australian
Industrial Relations Commission providing it with greater jurisdiction
and wider powers to deal with industrial issues.
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