Australian Journal of Human Rights最新文献

{"title":"When diplomacy is more harmful to human rights than conflict: the effects of America's deal with the Taliban","authors":"Shuja Jamal","doi":"10.1080/1323238x.2022.2135168","DOIUrl":"https://doi.org/10.1080/1323238x.2022.2135168","url":null,"abstract":"ABSTRACT The US-Taliban deal of February 2020 preceded the violent return to power of the Taliban and the concomitant deterioration of human rights and development gains in Afghanistan. In this article, the author contends that the worsening situation in Afghanistan is largely the logical and inevitable consequence of this deal. The author, who is a former Afghan official involved in efforts during the negotiation and implementation of the deal, draws on his observations to argue that by excluding the preservation of human rights and development gains, the deal made it practically more difficult for the then-government of Afghanistan and its international partners to protect the fundamental rights of the people of Afghanistan. The lesson from the US-Taliban deal is that unless human rights priorities are embedded in peace diplomacy efforts, they could lead to adverse outcomes for millions of people.","PeriodicalId":37430,"journal":{"name":"Australian Journal of Human Rights","volume":"28 1","pages":"442 - 447"},"PeriodicalIF":0.0,"publicationDate":"2022-09-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46224081","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Pandemic restrictions and street vendors’ right to work in India: protection through a robust rule of law framework","authors":"Sharan Bhavnani, P. Narang, Jayana Bedi","doi":"10.1080/1323238X.2022.2127527","DOIUrl":"https://doi.org/10.1080/1323238X.2022.2127527","url":null,"abstract":"ABSTRACT The COVID-19 pandemic has wreaked havoc on the urban poor, particularly street vendors in India. The impact of the virus is worsened by the response of the Union and State governments. To evaluate the challenges faced by street vendors due to the pandemic, this paper seeks to: First, describe the legal architecture deployed in India to tackle the pandemic. Second, elaborate the human right to livelihood in international and domestic laws, and test domestic legislation on the principles constituting the rule of law. Third, assess the various executive orders issued by State governments under these laws on their fidelity to the principles of the rule of law. Fourth, identify the mechanisms which may bolster the rule of law in India by drawing inspiration from the best practices in other countries. Hopefully, these mechanisms, once imbibed, would protect India’s impoverished and the disadvantaged through any crises in the future.","PeriodicalId":37430,"journal":{"name":"Australian Journal of Human Rights","volume":"28 1","pages":"388 - 403"},"PeriodicalIF":0.0,"publicationDate":"2022-09-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49362522","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Re-thinking privacy in Australia in the wake of Dobbs v Jackson Women’s Health Organization","authors":"Georgina Dimopoulos","doi":"10.1080/1323238X.2022.2134289","DOIUrl":"https://doi.org/10.1080/1323238X.2022.2134289","url":null,"abstract":"ABSTRACT In June 2022, the Supreme Court of the United States overturned its decision in Roe v Wade, 410 US 113 (1973), which had established a right to abortion founded on an implied constitutional right to privacy. The decision in Dobbs v Jackson Women’s Health Organization, 597 US (2022) has sparked fervent debate about women’s reproductive rights and access to healthcare in the United States. This article presents a decisional privacy perspective on Dobbs and considers its implications for privacy rights in Australia. The concept of decisional privacy protects an individual’s ability to make decisions which contribute to defining their identity, free from the unjustifiable interference of other individuals or the state. Drawing on examples of the violation of rights of LGBTQIA+ individuals, I argue that threats to decisional privacy are alive and well in Australia; yet a failure to conceptualise and articulate them as such undermines the value of privacy both to individuals and to society. The Dobbs decision offers a prime opportunity to re-think the meaning and value of privacy in Australian law and society, not only to enrich privacy law scholarship and jurisprudence but also to enable privacy to be more robustly protected as a human right.","PeriodicalId":37430,"journal":{"name":"Australian Journal of Human Rights","volume":"28 1","pages":"425 - 434"},"PeriodicalIF":0.0,"publicationDate":"2022-09-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42685566","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Thailand: legislative response to torture and enforced disappearances","authors":"N. Smith, Robert B. Smith","doi":"10.1080/1323238x.2022.2144110","DOIUrl":"https://doi.org/10.1080/1323238x.2022.2144110","url":null,"abstract":"ABSTRACT Thailand has been a State Party to the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) since 2007 and signed the International Convention for the Protection of all Persons from Enforced Disappearance (CED) in 2012. Despite this commitment, there is evidence that Thailand has violated both CAT and CED. Thailand has been discussing draft legislation since it was lodged in the House of Representatives in 2015. A Bill to enact Thailand’s obligations under the Conventions passed its first reading on 16 September 2021 and was enacted by Parliament on 24 August 2022. These actions must be seen in the context of the unstable political environment in Thailand since early 2005. People are deprived of their rights and freedoms, especially when people express different opinions and then enter into political conflicts with the government. This article analyses Thailand’s international treaty obligations, constitutional protections and the recently enacted legislation, considering the associated political and legal issues.","PeriodicalId":37430,"journal":{"name":"Australian Journal of Human Rights","volume":"28 1","pages":"404 - 424"},"PeriodicalIF":0.0,"publicationDate":"2022-09-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42923405","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Intelligence, oversight and the ethics of whistleblowing: the case of Witness K","authors":"Peter Gill","doi":"10.1080/1323238X.2022.2145834","DOIUrl":"https://doi.org/10.1080/1323238X.2022.2145834","url":null,"abstract":"ABSTRACT Official secrecy and the actions states take against so-called unauthorised disclosures by those working in intelligence agencies, referred to either as ‘whistleblowers’ or ‘leakers’, raise questions relating to both the law and ethics of security intelligence as well as the rights of officials. A recent case in Australia has brought this issue into sharp relief, but it concerns all states in which intelligence operates within a democratic framework. The ethical implications of intelligence operations demonstrate the need for the rights of officials to be better protected by their incorporation into processes of oversight.","PeriodicalId":37430,"journal":{"name":"Australian Journal of Human Rights","volume":"28 1","pages":"206 - 224"},"PeriodicalIF":0.0,"publicationDate":"2022-09-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47386178","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"James Richard Crawford AC, SC, FBA (1948–2021)","authors":"","doi":"10.1080/1323238x.2022.2158450","DOIUrl":"https://doi.org/10.1080/1323238x.2022.2158450","url":null,"abstract":"","PeriodicalId":37430,"journal":{"name":"Australian Journal of Human Rights","volume":"28 1","pages":"199 - 200"},"PeriodicalIF":0.0,"publicationDate":"2022-09-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43124274","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Refoulement by another means—‘constructive refoulement’ and character-based decisions under the Migration Act 1958 (Cth)","authors":"Sanmati Verma","doi":"10.1080/1323238X.2022.2151559","DOIUrl":"https://doi.org/10.1080/1323238X.2022.2151559","url":null,"abstract":"ABSTRACT In 2014, the Federal Government introduced significant reforms to the Migration Act 1958 (the Act) in two tranches. The first involved adaptation of Australia’s obligations under the 1951 Convention relating to the Status of Refugees into a series of codified definitions under the Act. The second suite of reforms expanded the ‘character powers’ under the Act and established a regime of mandatory visa cancellation. The interaction of the ‘protection’ and ‘character’ regimes has generated a vast amount of litigation and created a sizeable population of people deemed ‘undesirable but unreturnable’, subjected to indefinite immigration detention. This article summarises the principles emerging from superior court decisions concerning character powers and non-refoulement obligations and considers the role that the nascent concept of ‘constructive refoulement’ might play in this area. As elaborated in recent decisions of the European Court of Human Rights, ‘constructive refoulement’ refers to practices adopted by a state that compel an asylum seeker to accept repatriation. Employing the concept in character-related decision-making may compel decision-makers, and courts charged with review of decisions, to have closer regard to the prospect of indefinite detention and assess it properly as being on a continuum with forced repatriation.","PeriodicalId":37430,"journal":{"name":"Australian Journal of Human Rights","volume":"28 1","pages":"347 - 365"},"PeriodicalIF":0.0,"publicationDate":"2022-09-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41333680","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The National Disability Insurance Scheme review process: weaknesses and opportunities to enhance the CRPD","authors":"R. Thompson","doi":"10.1080/1323238x.2022.2139882","DOIUrl":"https://doi.org/10.1080/1323238x.2022.2139882","url":null,"abstract":"ABSTRACT\u0000 The National Disability Insurance Scheme (‘NDIS’) commenced in 2013 and is designed to give effect to Australia’s obligations under the Convention on the Rights of Persons with Disabilities 2006 (‘CRPD’). Criticism of the NDIS has been widespread since the rollout, raising questions regarding compliance with the CRPD. This article specifically examines the shortcomings of the review process that persons with disabilities may encounter when they disagree with a decision made by the National Disability Insurance Agency, the body administering the NDIS, relating to their funding. It highlights inconsistencies with the CRPD article 13 ‘Access to justice’, article 12 ‘Equal recognition before the law’ and article 9 ‘Accessibility’. The reader will gain a deeper knowledge of the human rights weaknesses of the NDIS review process and how this impacts persons with disabilities. Opportunities to enhance compliance with the CPRD and start restoring confidence in the NDIS for persons with disabilities will be identified.","PeriodicalId":37430,"journal":{"name":"Australian Journal of Human Rights","volume":"28 1","pages":"266 - 285"},"PeriodicalIF":0.0,"publicationDate":"2022-09-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49383683","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Recent court decisions about the protection of human rights of imprisoned people","authors":"A. Mackay","doi":"10.1080/1323238X.2022.2122690","DOIUrl":"https://doi.org/10.1080/1323238X.2022.2122690","url":null,"abstract":"ABSTRACT The courts have generally not been a very effective tool for protecting the rights of Australians in prison, despite human rights legislation in three jurisdictions (the ACT, Victoria and Queensland). An advancement in protection is represented by the 2021 decisions of the Victorian Supreme Court in Minogue v Thompson [2021] VSC 56 and the Queensland Supreme Court in Owen-D’Arcy v Chief Executive, Queensland Corrective Services [2021] QSC 273, in particular relating to two widespread practices in Australian prisons: strip searching and solitary confinement. This commentary provides an analysis of both decisions and contextualises them within preceding human rights jurisprudence, thereby highlighting the significance of both decisions for the advancement of human rights protection of imprisoned people in Australia.","PeriodicalId":37430,"journal":{"name":"Australian Journal of Human Rights","volume":"28 1","pages":"435 - 441"},"PeriodicalIF":0.0,"publicationDate":"2022-09-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48098900","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Tribute to James Richard Crawford, delivered Jesus College Cambridge, Saturday 28 May 2022","authors":"P. Sands","doi":"10.1080/1323238x.2022.2149236","DOIUrl":"https://doi.org/10.1080/1323238x.2022.2149236","url":null,"abstract":"James Crawford was a father, a husband, a sibling, a friend, a colleague. He was also the pre-eminent international lawyer of his age, a scholar, an advocate, an arbitrator and, at the end of his life, a judge. James was born in Adelaide, South Australia, in 1948, the first of seven children, his mother a nurse, his father a company director. There was law in the family, his maternal grandmother being only the second woman to graduate in law from the University of Adelaide. He came of age in the 1960s, already an independent spirit, a child, as he put it, of the ‘Vietnam generation’, already with an early republican instinct: as a schoolboy, he recalled, ‘I once had to sit in the sun for five hours waving my little flag and saw the Queen pass by for literally one minute... I was not terribly impressed’. He studied at Adelaide University (law, with history, English and international relations). The combination defined him, including a life-long interest in literature and words, but he opted for the law: a doctorate at Oxford and study under Professor Ian Brownlie. From the outset, he had an intensely pragmatic approach to the idea of an international rule of law—I am a ‘naïve positivist’, he once said, never himself much attracted to theory, but deeply respectful of others who were. The thesis became a book, on The Creation of States in International Law, today a classic that defines the field and would inform later engagements: Quebec’s secession from Canada; Scottish independence; and the decolonisation of Mauritius, including Chagos, from British colonial rule. Then back to Australia, as an academic: Adelaide, then Sydney. His interests broadened and deepened: he liked to challenge dogma—on the Australian Law Reform Commission he spearheaded the recognition of Aboriginal customary laws in Australia’s legal order. He qualified as a barrister, writing about Australian courts. He published the Rights of Peoples under international law, an early foray into matters of self-determination. You get the gist: rule or domination by others was a leitmotif of his intellectual style and product. In 1992, he returned to Britain as the Whewell Professor of International Law, and a fellowship at Jesus College Cambridge, a place he called home. A generation of international lawyers came to appreciate a mind that was sharp, witty, open, direct, engaged. He served as director of the Lauterpacht Centre for International Law, chaired the law faculty, and was a highly engaged teacher: his 70 doctoral students is surely a record. His protégés crossed culture, politics and identity, entering academic life across the globe, a lasting legacy for his ideal of international law as an ‘open system’: real, practical and forward","PeriodicalId":37430,"journal":{"name":"Australian Journal of Human Rights","volume":"28 1","pages":"201 - 205"},"PeriodicalIF":0.0,"publicationDate":"2022-09-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47750900","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}