University of New South Wales Faculty of Law Research Series

Responding to the Fragmentation of International Law - WorldLII's International Courts & Tribunals Project

Graham Greenleaf et al. — Tue, 21 May 2013 18:15:41 PDT

International law arising from the decisions of international Courts and Tribunals used to be relatively easy to find in the sense that it arose from a only small number of permanent Courts and Tribunals. Since World War II there has been a proliferation of more than thirty permanent international Courts and Tribunals, both on a regional basis, and subject-specific ones such as those dealing with human rights, trade, the law of the sea, and international criminal law.

While almost all of these Courts and Tribunals provide their decisions in some form via the Internet, no previous facilities allow all of those decisions to be searched in combination or in a uniform format. In this sense, there has been a ‘Balkanisation’ or fragmentation of international law.

After a year of development, the World Legal Information Institute (WorldLII) through its International Courts and Tribunals Project provides search and browse facilities over 20,000 final decisions in full text, from twenty such Courts and Tribunals. In most cases the decisions go back to the start of the Court or Tribunal. Databases and decisions continue to be added, and the collection kept up to date. Interlocutory or interim decisions and procedural matters are generally not included, only the final decision(s) in each matter. The decisions can be searched together, in convenient groupings (‘All Human Rights Courts and Tribunals’, ‘All Trade-Related Courts and Tribunals’ etc), individually, or in any desired combinations.

The decisions are hosted on the most appropriate available Legal Information Institute, either or a regional basis (e.g .BAILII for European decisions) or on a linguistic basis (e.g. Droit Francophone for decisions in French), and all other decisions are hosted on WorldLII. It is a decentralised project of the world’s LIIs.

WorldLII also provides an extensive Catalog and Websearch of Court and Tribunal websites from around the world, providing convenient browsing access and some search facilities over more extensive information than the decisions themselves. Taken together, these facilities make up WorldLII’s International Courts and Tribunals Project.

Any international Courts and Tribunals not yet included are invited to join the Project.

(Note: This was the first paper published about what subsequently became the International Law Library on WorldLII.)

When the State Harms Competition ― The Role for Competition Law

Eleanor Fox et al. — Tue, 21 May 2013 18:15:39 PDT

This article is about the reach of antitrust laws to proscribe or override anticompetitive acts and measures of the states. While it was once the case that antitrust (or competition) laws were reserved for private restraints, a more modern view of the state and the market recognizes the integral relationship between them. The authors surveyed 32 jurisdictions and found that antitrust/competition laws of a number of jurisdictions condemned certain state acts and measures. This article describes and summarizes the research and combines the research findings with conceptual analysis to recommend relevant rules and principles that might be adopted as recommended principles and included in a model modern competition law.

The Integrity Function and ASIO’s Extraordinary Questioning and Detention Powers

Lisa Burton et al. — Sun, 12 May 2013 07:34:54 PDT

The Australian Security Intelligence Organisation Act 1979 (Cth ) permits ASIO to coercively question and detain non-suspects in order to gather intelligence about terrorism offences. This article examines the extensive checks and balances that constrain these powers, and whether they meet the standard embodied in the emerging concept of the ‘integrity function’. This involves elaboration of the content of the integrity function and its application in a problematic context, as ASIO must be permitted to act with some degree of secrecy, and executive judgments on matters of national security have long been considered unsuited to external scrutiny. This study illustrates the diffi culty of holding national security powers to account. It also reveals extant questions about the integrity function, including: whether it incorporates a law reform component; how independent the integrity branch must be; the intersection between the integrity function and judicial review, and whether and how the integrity branch can be silenced to protect national security. In turn, this article raises broader questions about the proper scope of ASIO’s powers.

Free access online legislation in a federation: Achievements of Australian Governments and issues remaining

Michael Rubacki — Thu, 09 May 2013 00:54:43 PDT

This paper explores the development of government provision of online access to legislation in Australia, including the technologies used in the drafting/publishing process. It focuses on the more recent developments, such as the use of websites as part of the actual legislative process and the near complete demise of paper products. It looks at the conflicts that arise in balancing continuing demands for traditional print-like products and developing more effective online services, and the elusiveness of more collaborative nationwide approaches.

Australia’s 2012 Privacy Act revisions: Weaker principles, more powers

Nigel Waters et al. — Wed, 17 Apr 2013 05:43:10 PDT

The Australian Government’s Privacy Amendment (Enhancing Privacy Protection) Act 2012 was enacted on 29 November 2012 but will not commence until March 2014. It contains the first significant amendments to the Privacy Act 1988 since 2001. The whole process took nearly seven years since the Australian Law Reform Commission (ALRC) started work on its privacy reform reference. This article focusses on those aspects of the law which have been changed, for better or worse. We have previously analysed the deficiencies of the Bill in articles and submissions , and the Bill was enacted with none of those deficiencies removed.

The most positive aspect of the Amendment Act is the additional enforcement powers given to the Privacy Commissioner, including powers to direct remedial actions; power to make determinations following ‘own motion’ investigations; civil penalty provisions; powers to require Privacy Impact Assessments; and a new function to conduct ‘assessments’, replacing audit powers.

The addition of a right of appeal to the Administrative Appeals Tribunal against determinations by the Commissioner, while very desirable, do not deal directly with the key problem of the Act: complainants cannot require the Commissoner to make determinations when they are dissatisfied with mediation and disagree with the Commissioner’s view that a complaint has been successfully resolved.

Although one unified set of privacy principles in the Act is desirable, unfortunately none of the thirteen new Australian Privacy Principles (APPs) is an overall improvement, and 8 of the 13 APPs are worse for privacy protection. The most controversial new principle is APP 8, which abandons a ‘border protection’ approach in favour of ‘accountability’. The dangers of this approach are outlined.

Changes to the credit report and direct marketing are also outlined.

China’s NPC Standing Committee Privacy Decision: A Small Step, Not a Great Leap Forward

Graham Greenleaf — Mon, 15 Apr 2013 08:52:27 PDT

The Decision of the Standing Committee of the National People’s Congress (NPC Standing Committee) of December 28, 2012 concerning data privacy and the internet (‘2012 Decision’) is the highest level law yet enacted in China to deal specifically with data protection issues. This article analyses that Decision, comparing its content with the MIIT Regulation directed at the same IISPs, and covering much of the same ground (see G Greenleaf ‘China's Internet Data Privacy Regulations 2012: 80 Percent of a Great Leap Forward?’ available at ).

The conclusion is reached that, other than that this Decision comes from the high platform of the Standing Committee of the NPC, it is not obvious that it constitutes ‘far-reaching requirements’ or ‘a great step forward,’ as some authors have suggested – at least not in the direction of a comprehensive data privacy law (even in relation to the Internet). It is missing essential principles (access and correction; deletion/de-identification; and data export limitations), and ambiguous on others (finality and collection limitations). However, the strong requirement on opting out from direct marketing, the clearer right to seek civil damages for breach, and the extension of obligations on State agencies, do add to the requirements in the Regulation published one year earlier.

Singapore’s new Data Protection Authority: Strong enforcement powers and business risks

Graham Greenleaf — Mon, 15 Apr 2013 08:41:54 PDT

Singapore’s Ministry of Communications and Information (MCI) has quickly brought into effect on 2 January 2013 the Personal Data Protection Act (PDPA) enacted in October 2012. This article analyses the enforcement aspects of the Act. The data protection principles in the Act are analysed in <http://ssrn.com/abstract=2212608>.

The structure and functions of the Personal Data Protection Commission are explained, and why it is not as an independent statutory authority. The artice examined the various methods of dispute resolution at its disposal; avenues of appeal; the extent of transparency of the complaint and appeals processes and the advantages and disadvantages of this; and the remedies available, including through the courts as well as the Commission. The vicarious liability of employers for breaches and the personal liability on company officers for offences give non-compliance an unusual level of risk.

The article concludes that although the standards for compliance with Singapore’s Act may not turn out to be very high, and it has exemptions of sweeping and partly unknown scope, that Act appears to have a serious and multi-faceted ‘enforcement pyramid’. It is a data privacy law which may have surprising results.

China and Foreign Direct Investment: Looking Ahead

Leon E. Trakman — Wed, 03 Apr 2013 16:30:33 PDT

Notwithstanding China’s endorsement of investor-state arbitration more than a decade ago, few investor claims have been initiated against it and none has concluded with an award. This does not necessarily mean that foreign investors will not make such claims in the future, but rather that proceeding against China, from an economic rationalist perspective, is likely to be contentious, costly and dilatory. However, these concerns are not peculiar to China. Economically and politically powerful states, not least of all the United States, are less frequently subject to investor-state arbitration than poorer states for much the same reason.

What is increasingly likely is that China is preparing itself and its investors abroad for investor-state proceedings in the future. This is evident, for example, in China’s growing interest in the functioning of the International Center for the Settlement of Investment Disputes (‘ICSID’), in its inclusion of investor-state arbitration in its Model Bilateral Investment Agreement and in various regional and bilateral agreements it has concluded.

China is overtaking the United States as the biggest recipient of foreign direct investment (‘FDI’) in the world. It is also one of largest sources of outward FDI, with its outward investors initiating large-scale claims against foreign governments, such as Ping An, China’s second largest insurer’s recent claim for USD 2.2 billion against the Belgian Government In light of China’s rise in the FDI and the consequence this may have on its engagement with investment claims, this paper has three primary purposes. The first purpose is to explore China’s history and practice in concluding bilateral investment agreements (‘BITs’) with foreign countries. The second purpose is to examine China’s limited experience with investor-state arbitration under such BITs. The third purpose is to identify how China is likely to develop its dispute resolution regime through strategic investment alliances with other states without sacrificing its distinctive national interests including those of its investors abroad. Particular emphasis will be given to China’s dilemma, in seeking to liberalize investment treaties to protect growing outbound investments, while also trying to protect its national interest from arbitration claims by inbound investors.

Drowning in Codes of Conduct: An Analysis of Codes of Conduct Applying to Online Activity in Australia

Chris Connolly et al. — Wed, 27 Mar 2013 17:41:45 PDT

With auDA Foundation support, this was the first comprehensive comparison and analysis of the sixteen main Australian Internet Codes of Conduct, using a set of criteria based on best practice in consumer protection.

Initially 10 Codes were considered, growing to a final number of 16 (13 plus three of uncertain status). Researchers conducted interviews and surveys using Best Practice Guidelines for code operation to derive detailed questions, and sought to verify this with feedback and consultation with the operators. An extensive table of results takes up most of the 70 pages, and the introduction sets out some of the issues for consumers which we extracted from the data. Observations started from the discovery that there were surprisingly many codes – with even more in the wings? The issues for consumers included a complex, confusing mosaic of coverage, variation in compliance with Guidelines, inconsistencies between the codes and their procedures, referrals processes often inadequate, complaints processes often inadequate, and overall complexity from the perspective of the online consumer.

Australian Asylum Policy All at Sea: An Analysis of Plaintiff M70/2011 v. Minister for Immigration and Citizenship and the Australia-Malaysia Arrangement

Jane McAdam — Sat, 23 Mar 2013 20:17:46 PDT

On 25 July 2011, the governments of Australia and Malaysia announced that they had entered into an 'Arrangement' for the transfer of asylum seekers. Its stated aim was to deter asylum seekers from travelling by boat to Australia by providing that the next 800 asylum seekers to arrive unlawfully would be transferred to Malaysia in exchange for the resettlement of 4,000 UNHCR-approved refugees living there. The success of the Arrangement relied on Malaysia being perceived as an inhospitable host country for asylum seekers, with the Australian Government emphasising that it provided the best form of deterrence. A successful challenge to the High Court of Australia found that the Arrangement was unlawful under the Migration Act 1958 (Cth). This article examines the background to the Arrangement and the implications of the High Court’s decision for the future development of Australian refugee law and policy. In particular, it analyses the international law dimensions of the judgment relating to the reception, processing and protection of asylum seekers and refugees.

Australian Complementary Protection: A Step-by-Step Approach

Jane McAdam — Sat, 23 Mar 2013 20:08:16 PDT

The passage of the Migration Amendment (Complementary Protection) Act 2011 (Cth) in September 2011 has brought significant and welcome changes to the Migration Act 1958 (Cth) (‘Migration Act’). By implementing a system of ‘complementary protection’ in domestic law, it gives effect to Australia’s international human rights law obligations not to return people to places where they face a real risk of arbitrary deprivation of life, the death penalty, or cruel, inhuman or degrading treatment or punishment. However, the legislation makes the Australian system of complementary protection far more complicated, convoluted and introverted than it needs to be. This is because it conflates tests drawn from international and comparative law, formulates them in a manner that risks marginalising an extensive international jurisprudence on which Australian decision-makers could (and ought to) draw, and in turn risks isolating Australian decision-making at a time when greater harmonisation is being sought.

Conceptualizing 'Crisis Migration'

Jane McAdam — Thu, 21 Mar 2013 21:00:41 PDT

This paper adopts a theoretical perspective to explore the parameters of "crisis migration" to examine the extent to which it offers a useful conceptualization for advancing legal and policy responses to forced migration. Does framing different types of migration as "crisis migration" – for example, movement spurred by natural disasters, civil war, the impacts of climate change, or nuclear and industrial accidents – help to illuminate the nature of such movement and the kinds of policy responses required to address it? Or is this just another term for "forced migration"? What commonalities can be extracted for the clarification of universal standards, and where might the idiosyncrasies of context demand highly tailored responses?

Colonial Processes, Indigenous Peoples, and Criminal Justice Systems

Chris Cunneen — Thu, 21 Mar 2013 20:55:49 PDT

This chapter considers the interaction between colonial processes, Indigenous peoples and criminal justice systems. The commonalities in the experiences of Indigenous peoples in white settler societies (Australia, Canada, New Zealand and the US) provide the focus for an exploration of the implications of the colonial process for understanding Indigenous contact with western criminal justice systems across a number of domains. A fundamental point derived from this exploration is that the politics and outcomes of colonization are not simply of historical interest. Rather, the contemporary relationship between Indigenous people and crime, punishment, and justice is structured by these longer term relationships.

La Giustizia Riparativa Al Vaglio Della Criminologia Critica (Understanding Restorative Justice Through the Lens of Critical Criminology)

Chris Cunneen — Thu, 07 Mar 2013 15:40:32 PST

La relazione fra criminologia critica e giustizia riparativa è una relazione piuttosto scomoda. Da un lato, la giustizia riparativa è una storia di ottimismo, riforme e cambiamento sociale; dall'altro, essa, poiché tende a funzionare all'interno dei sistemi tradizionali di giustizia penale, non riesce ad opporsi ai processi di esclusione e di criminalizzazione. Questo capitolo esplora alcune delle tensioni esistenti tra giustizia riparativa e criminologia critica e propone una disamina della giustizia riparativa per quanto concerne le sue potenzialità non realizzate. This chapter explores the tensions between critical criminology and restorative justice. Of particular focus is the paradoxical nature of restorative justice, where on the one hand restorative justice is a story of optimism, reform and social change, yet its operationalization within traditional systems of criminal justice makes it inseparable from the processes of exclusion and criminalization.

Note: Downloadable document is in Italian.

Criminology, Criminal Justice and Indigenous People: A Dysfunctional Relationship?

Chris Cunneen — Thu, 07 Mar 2013 15:37:48 PST

This lecture looks at issues of crime and violence in Indigenous communities in the context of broader problems of criminal justice law, policy and practice. In particular it addresses four points:

• the problem the legal system has in ensuring protection of Indigenous women in the context of domestic and family violence;

• the problem Indigenous people have in using the legal system to protect and enhance their own interests and rights, particularly in the area of civil and family law, and the implications this has for criminalisation;

• Indigenous access to legal advice and representation and funding issues associated with Aboriginal legal services; and

• the limitations of criminal justice agencies in developing strategic policies that change the way they do business with Indigenous people.

What is Terrorism? Assessing Domestic Legal Definitions

Keiran Hardy et al. — Thu, 07 Feb 2013 08:33:51 PST

Anti-terrorism powers were largely enacted as an emergency response to September 11 and later terrorist attacks, and yet they now appear to be a permanent feature of domestic law. How governments apply these anti-terrorism powers depends upon the scope of statutory definitions of terrorism. This article develops three key criteria for assessing the appropriateness of definitions of terrorism in domestic legislation. The first two criteria relate to the principle of legality. They require definitions of terrorism to be drafted in language which (1) gives reasonable notice of the prohibited conduct, (2) confines the operation of legislation to its intended purposes, and (3) is drafted consistently in comparable jurisdictions. The article then tests seven definitions of terrorism against these three criteria. It focuses on legal definitions of terrorism in the United Kingdom, Canada, Australia, South Africa, New Zealand, India, and the United States. The article not only examines the statutory language used to define terrorism in each jurisdiction, but also examines how these definitions have been applied and interpreted since their enactment. This testing process suggests that much remains to be done to improve the clarity, scope and consistency of definitions of terrorism in domestic legislation.

Can Tasmania Legislate for Same-Sex Marriage?

George Williams — Thu, 07 Feb 2013 07:51:04 PST

Marriage equality conjures up a range of passionate arguments and strongly held convictions around fairness, equality, community values and religious relief. This article examines the myths around this issue, and examine what might happen if Tasmania enacted a same-sex marriage law, and in particular, the possible challenges to such law in the High Court.

Sunset Clauses in Australian Anti-Terror Laws

Nicola McGarrity et al. — Thu, 07 Feb 2013 06:46:39 PST

A sunset clause is a legislative provision that provides for the expiry of legislation at a fixed point in time. The use of such clauses is controversial. Some argue that sunset clauses are appropriate where legislation makes significant inroads into fundamental human rights, for example, in the anti-terrorism context. Others argue that sunset clauses are the ‘spoonful of sugar’ that enables bad legislation to be passed by the Parliament. This article examines the Australian experience with sunset clauses in the anti-terrorism context. Only two pieces of federal anti-terrorism legislation have incorporated a sunset clause. The question that this article asks is how effective these clauses have been. It will consider their impact upon pre-enactment scrutiny of legislation, as well as the extent to which they have led to rigorous and meaningful post-enactment review.

The Extraordinary Questioning and Detention Powers of the Australian Security Intelligence Organisation

Lisa Burton et al. — Wed, 06 Feb 2013 07:01:57 PST

The Australian Security Intelligence Organisation Legislation (Terrorism) Amendment Act 2003 (Cth) is the most controversial piece of anti-terrorism legislation passed by the Commonwealth Parliament. The Act created a system of warrants that permit the Australian Security Intelligence Organisation to question and detain non-suspects for the purposes of gathering intelligence about terrorism offences. This regime is subject to a sunset clause and will expire in July 2016, unless renewed by Parliament. This article provides a comprehensive overview of the process by which warrants are issued and the powers conferred by them. It finds that the regime is insufficiently tailored to its purpose of protecting Australians against terrorism. In light of this, and evidence about how the powers have been used, the article concludes that these extraordinary questioning and detention powers should not be renewed without significant amendment.

The Death Penalty in Australian Law

Jo Lennan et al. — Wed, 06 Feb 2013 04:45:22 PST

This article undertakes a comprehensive review of Australian legislation on the death penalty. It charts the legal progress towards abolition, detailing the successive moves by colonial, state, territory and Commonwealth legislatures to restrict and then completely abolish capital punishment. Most recently, the Crimes Legislation Amendment (Torture Prohibition and Death Penalty Abolition) Act 2010 (Cth) blocks any state or territory attempt to reinstate the death penalty. The article examines whether any action now remains to be taken in Australia in this area. It considers the extent to which laws and practices on extradition and policing might involve Australian authorities in processes leading to the imposition of the death penalty abroad. It is suggested that while the 2010 Act represents the last necessary step (save for constitutional entrenchment) to abolish the death penalty in Australia, action can still be taken as a matter of principled opposition to the death penalty to ensure that Australian officials are not involved in the imposition of capital punishment elsewhere.