Constitutional and Human Rights Disturbances: Australia’s Privative Clauses Created Both in an Immigration Context

With the arrival of another wave of “boat people” to Australian waters in late 2009, issues of human rights of asylum seekers and refugees once again became a major feature of the political landscape. Claims of “queue jumping” were made, particularly by some sections of the media, and they may seem populist, but they are also ironic, given the protracted efforts on the part of the federal government to stymie any orderly appeals process, largely through resort to “privative clauses”. Such clauses demonstrate the many ways in which human rights of those seeking asylum in far-off lands and are potential future immigrants, who often lack much-touted needed papers, yet who are for the most part genuine refugees, are subject to the slings and arrows of political fortune (and misfortune). Approaching the courts if treated unfairly or seeking a further decision as to your fate would seem one of the fundamental premises of human rights. Yet privative clauses—or attempts to ouster the jurisdiction of the courts and to insulate decisions from appeal—have become an increasingly frequent feature of the Australian migration legislation. With a seemingly watertight federal constitutional power set in stone since 1901, to deal with migration and aliens, and without the tempered contemporary update of a federal Bill of Rights, the Australian federal government has been able to narrow the grounds of judicial review in those contexts. We argue that the concerted efforts to deny such fundamental rights of appeal to those most in need of the full armoury of the protection of the law in a modern, affluent democracy, constitutes both a breach of their human rights and a breach of core constitutional principles such as separation of powers. Those principles may not be formally articulated in the text of the Australian Constitution, but in our view they are implicit in the constitutional arrangements, and hence we can conclude with the arguments of former Justice of the High Court of Australia, Michael Kirby, who asked—to whom does sovereignty truly belong?     

Unlocking the Alienation: A Comparative Role for Alien Torts Legislation in Post-colonial Reparations Claims?

This article continues the themes developed in a previous paper looking at reparations for past wrongs in post-colonial Australia. It narrows the focus to examine the scope of the law of tort to provide reparations suffered as a result of colonisation and dispossession, with particular emphasis on the assimilation policies whose legacy is now known emphatically, although it ought not be exclusively, as the Stolen Generations. The search for more than just words is particularly topical in light of the Australian Prime Minister’s formal apology in early 2008. This highly symbolic step must not lose momentum. That momentum could be both political and legal. In the latter context, we explore here the concept of alien tort, in the light of current Australian tort jurisprudence, which has thus far proved inadequate to achieve compensation for the harms suffered. Taking a comparative approach, procedural and substantive developments are to better deliver justice consistent with community values. In particular, the greater acceptance of psychological harm as actionable tortious conduct in Canada and the United States is examined. The article further examines the scope for stolen children to bring suit under the US Alien Tort Claims Act 1789. While the Australian government enjoys sovereign immunity in the courts of the United States, non-state organisations such as churches that were complicit in the forcible removals may be subject to United States jurisdiction wherever they have a presence in that country. The procedural and substantive elements of such a claim are discussed. In particular, the relevant cause of action, the issue of forum non conveniens and the statute of limitations will be analysed to map out whether a claim could be developed and successfully prosecuted.     

Developmental Trajectories of Aggressive and Non-Aggressive Conduct Problems

Modeling the heterogeneous trajectories along which antisocial behaviordevelops in childhood and adolescence may contribute in important waysto understanding antecedents of offending in adult life. This paperexamines the development of aggressive and non-aggressive conduct problemsin the Great Smoky Mountains Study of Youth, a longitudinal study in thesoutheastern United States. Aggressive and non-aggressive conduct problemsof clinical severity, police contact and arrest, and family andenvironmental correlates were assessed in four annual interviews for789 boys and 630 girls aged 9–13 at first interview. The bestfitting latent class model identified three developmental trajectories:stable low problem levels, stable high problem levels, and declining levelsof conduct problems, for both aggressive and non-aggressive behaviors. Boyswere over-represented in the stable high trajectory class on the aggressivetrajectory, but sex differences in non-aggressive trajectories were lessmarked. The overlap between aggressive and non-aggressive trajectory classeswas quite limited. Both classifications showed strong associations withrisks of police contact and arrest in early adolescence, and with measuresof family adversity. The results are discussed in relation to developmentalmodels of conduct disorder and delinquency.     

Parental Demandingness and Executive Functioning in Predicting Anxiety among Children in a Longitudinal Community Study

Journal of Youth and Adolescence - Theoretical models and empirical studies of anxiety have predominately focused on the main effects of various predictors such as executive functioning deficits on...