High court review 2005: The manifestation of separation of powers in Australia
In 2005 questions were raised in public debate regarding the scope, meaning and manifestation of the constitutional separation of powers and the role of the High Court in interpreting these. In particular, the issue of the efficacy of checks and balances within the system of government against potential abuses of executive powers was raised, due to the dominance of the legislature by the executive for the first time in 24 years. This Review argues that while the High Court staunchly defended its independence and the role of the judiciary in a division of powers, it demonstrated a simultaneous reluctance to curb executive powers. This has implications for the manifestation of separation of powers in the Australian context, both in terms of its philosophical foundations and in so far as it signals a trend away from the likely realisation of public expectations of its role as expressed in appeals made to it.
The "safe third country" approach vs. the notion of non-refoulment in international law : a critical examination of Australian law and policy
The notion of refugee was born immediately after World War I, so as to protect and promote human rights. After the adoption of the Convention Relating to the Status of the Refugees, however, much has changed in the world. Although the number of signatories is increasing, the Convention remains the same. Each country now appears to have erected barriers to prevent refugees from entering their territory and one of the much debated substantiations for so doing is the “safe third country” approach. This thesis will focus on the “safe third country” and “effective protection” principle which some see as a breach of Article 33 of the Convention known as “refoulment” and closely examines the law and policy in Australia, and makes some international comparisons. It also examines the doctrine of effective protection as interpreted by the Australian Courts and considers whether it breaches Australia’s Refugee Convention obligations, and analyzes two major cases, that of Minister for Immigration & Multicultural Affairs v Thiyagarajah and NAGV and NAGW of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs. This thesis examines statutory effective protection as comprised in ss 36(3)–(7) of the Migration Act and discusses Australia’s attempted justification of “safe third country” provisions. 1 (1997) 80 FCR 543 (hereinafter referred to as “Thiyagarajah”). 2 (2005) 222 CLR 161. This thesis argues that the criteria for returning refugees to ‘safe third countries’ should not be determined solely by one Country without having proper agreement with the proposed “safe third country”. In constructing these criteria, this thesis argues that Australia cannot send any refugee to another country in the name of the “safe third country” principle if there is a risk, whether knowingly or inadvertently, that the latter will violate rights which Australia itself is obligated to respect. This thesis also recommends requirements for the return of refugees to third countries, a list of minimum requirements of international law and a list of recommended best practice criteria. The underlying theoretical framework of this thesis has thus become a bilateral agreement with the “safe third country”, with monitoring arrangements by the International Humanitarian Organizations, such as, UNHCR, for co-operation. It is a strong argument of this thesis that without any existing agreement, the safe third country principle can not guarantee non-refoulment. This thesis attempts to provide the solution to breach of the non-refoulment principle by promoting the “agreement” concept through which Australia can assist refugees and comply with Article 33 of 1951 Refugee Convention and Protocol. The theory would also play a role to establish and promote cooperation between people on a government level and on a non-governmental level so that there will be a reasonably appropriate understanding within Australia of the plight of refugees. Further, “agreements” are essential for governments to maintain the reputation of Australia as a nation within the international community that respects refugees and human rights.
Pedestrian Malls, Local Government and Free Speech Policy in Australia
Abstract Since the 1992 free speech cases in the High Court, which elucidated an implied freedom of political communication in the Australian Constitution, the application of the freedom to speech policy has been seldom explored. This paper examines the scope of the freedom from the perspective of struggles over policy coherence and implementation. I first analyse selected High Court judgments referring to the freedom to establish its scope. Within this context, the regulation of pedestrian malls, both before and after the development of the constitutional doctrine is examined. The evidence suggests that pedestrian malls are regulated by local councils in a manner which restricts free expression on political matters in far-ranging ways. I conclude by highlighting continuities in the practice of speech policy before and after the development of the constitutional doctrine, outlining the limitations of current speech policy despite the elucidation of the constitutional freedom, and arguing that the freedom of political communication currently extant in the Australian polity is partial and unsatisfactory. These conclusions demonstrate policy inconsistency and difficulties in policy implementation of the High Court doctrine.