In the island states of the South Pacific, state laws co-exist with customary laws. In addition, international law plays an increasing role in the region. In so far as international law governs the relationship between states, the position is not problematic, but the expansion of ‘modern’ international laws into the realm of individuals and non-State bodies increases the complexities of the relationship between the different types of law.
For lawyers, Julian Assange is the gift that just keeps giving. His situation over the past eight years has touched upon many issues of national and international law. In the latest legal development, Assange failed in his bid to have a UK arrest warrant against him set aside. If he had succeeded, he would have been able to leave the sanctuary of the Ecuadoran embassy in London a free man, without fear of arrest or extradition to Sweden or, of more concern to him, the United States.
This is the first of three posts on the Assange saga. This post is a brief chronology, describing the main developments leading to his current predicament. The next post will consider the immunity issues raised, and the third will canvas the other legal issues that have arisen over the years.
This is Part II in a series on the Voluntary Assisted Dying Act 2017 (Vic). Read Part I here: An Overview of the Voluntary Assisted Dying Act 2017 (Vic)
What VAD means for s 2 of the Suicide Act 1961 (UK)
Much like Australia, the UK has had its fair share of debate, both in Parliament and before the courts, regarding the scope and human rights implications of assisted dying. The starting position in the UK is the blanket ban on assisted suicide enshrined in s 2 of the Suicide Act 1961 (‘Suicide Act’). Since the seminal decision of the UK Supreme Court in R (On the Application of Nicklinson and Anor) v Ministry of Justice  UKSC 38 (‘Nicklinson’), several bills (e.g. here and here) proposing amendments to the Suicide Act to permit various forms of assisted dying have been debated before both the House of Commons and the House of Lords. None, however, have passed through to enactment and the blanket ban persists: it is an offence, punishable by up to 14 years’ imprisonment, to encourage or assist (or attempt thereto) the suicide of another, whether the individual actually dies or not.
On 6 March 2018, Australia’s Minister for Foreign Affairs, the Honorable Julie Bishop MP, and His Excellency Mr Hermenegildo Pereira, the East Timor Minister in the Office of the Prime Minister for the Delimitation of Borders, signed a historic agreement on the delimitation of maritime boundaries in the Timor Sea. The agreement, known formally as the Treaty Between Australia and the Democratic Republic of Timor-Leste Establishing Their Maritime Boundaries in the Timor Sea, was signed in New York in the presence of the United Nations Secretary-General and the Chair of the Commission that conciliated the dispute between the two nations.
Victoria has recently become the latest jurisdiction to legalise assisted dying (a term employed here as a ‘catchall’ phrase intended to cover both assisted suicide and euthanasia). It joins Belgium, Canada, Colombia, Luxembourg, the Netherlands and the US States of California, Colorado, Oregon, Vermont and Washington, and the District of Columbia, which have all introduced legislation permitting some form of assisted death.
Missing from this list are jurisdictions such as Switzerland in which assisted suicide is not unlawful but is also not expressly permitted by legislation. This might come as a surprise, as Switzerland is widely recognised as a jurisdiction that allows assisted suicide, largely as a result of organisations such as Dignitas which provide assistance to residents and non-residents in dying by suicide. In Switzerland, however, there is no legislation akin to Victoria’s Voluntary Assisted Dying Act 2017 (‘VAD’). Rather, art 115 of the Swiss Penal Code criminalises assisting or inciting another’s suicide based on ‘selfish motives’. Thus, provided the assistance is not so motivated, it may be given without risk of prosecution.
Your book has been described as a ‘cautionary tale’ about the sharing of border control policies, particularly in the context of the European refugee crisis. What are your main concerns about this ‘race to the bottom’?
My main worry is that the hard-won institution of asylum is under threat. The 1951 Convention on the Status of Refugees, concluded in response to the failure of states to give refuge to those fleeing Nazi Germany, creates certain obligations for governments in relation to protecting asylum seekers. States around the world are turning their backs on these obligations by implementing progressively more restrictive measures aimed at keeping asylum seekers away. These include policies like mandatory detention, interception and push-backs at sea, and extraterritorial detention and processing. All of these are aimed at blocking and deterring asylum seekers from accessing a state’s territory.
In his address at the opening of the current session of the Human Rights Council (HRC), the High Commissioner, Zeid Ra’ad Al Husseini announced that, since this would be his last address as High Commissioner, he was going to be blunt – and indeed blunt he was.
His first target was the permanent members of the United Nations (UN) Security Council (SC) and the ‘pernicious use of the veto’, which made those who used it responsible, ‘second to those who are criminally responsible … for the continuation of so much pain … it is they – the permanent members – who must answer before the victims’.
With the development of peer-to-peer networks and the dark web (a sub set of the deep web), child abuse activities are now mostly occurring in anonymous and encrypted environments largely out of reach of law enforcement bodies. Images are stored by the terabytes on personal hard drives and shared by the millions. For some people the anonymity seems to have ignited what may previously have been latent tendencies. (Understanding and Preventing Online Sexual Exploitation of Children, Edited by Ethel Quayle and Kurt M. Ribisl. 2012 Routledge. Chapter 11, ‘Situational prevention of child abuse in the new technologies’. Richard Wortley, Jill Dando Institute of Security and Crime Science, University College London. Introduction.) Fueling the problem and driving it to new almost unthinkable dimensions is the issue of desensitisation and destabilisation. (Heather Wood, Internet pornography and paedophilia, Psychoanalytic Psychotherapy, (2013) 27:4, 319-338)
It has been estimated that each year, approximately 25 million unsafe abortions take place. This number represents nearly half of all abortions undertaken worldwide. Almost all unsafe abortions occur in developing countries, where around 7 million women annually are hospitalised following terminations performed without the assistance of a trained health worker and in other conditions that place women at risk. Whether abortion is legal and accessible play an enormous role in determining whether a woman will have to take this route to end an unwanted pregnancy.
It is undeniable that the right to life represents a fundamental building block to achievement of all other human rights, but where argument tends to arise is in asking in whom this right accrues. The question of when life begins, considered from scientific, legal, philosophical and religious perspectives, yields a variety of answers, none of which is definitive. Yet, while this may be an interesting philosophical debate, for women seeking to terminate unwanted pregnancies the discord becomes tangible. Throughout the world women’s bodies are the subject of government intervention in the form of how society deals with the legality and practicalities of abortion. While some regimes are highly permissive, treating abortion as an issue of women’s health, others are restrictive to the point of harm, to the extent that a woman may be convicted of a crime for having suffered a miscarriage.
One of the most pointed criticisms levelled at the Turnbull Government in 2017 was its refusal to ratify the proposals of the Indigenous Referendum Council.
In the recommendations of their final report submitted to Prime Minister Turnbull, the Council proposed the creation of an advisory body representative of First Nation peoples to work with the legislature in order to address constitutional inequalities facing Indigenous Australians. The recommendations further included interpreting (or possibly even amending) the power to make laws with respect to ‘any race’ under s 51 (xxvi) as well as establishing an additional legislative committee to oversee the process of ‘truth-telling’ in drafting treaties with respect to Indigenous Australian Sovereignty at a Federal level. This relationship was encapsulated in the word ‘Makarrata’, which denotes a relationship of honesty and candour amongst leaders within the Yolgnu people of Arnhem Land.
The Turnbull Government defended their position on the grounds that the proposals were unclear in their intent and, in any event, could be so radical that they would create a parliamentary ‘third chamber’, which would prove divisive amongst Australians. This article will explore what models the Referendum Council may wish to pursue with reference to domestic and international notions of representation and sovereignty.