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Unsolicited (Letters to the editor)

Every Issue

Cite as: (2008) 82(9) LIJ, p. 08

We reserve the right to edit letters and to republish them in their original or edited form on the internet or in other media. Letters must include a phone number and address for authentication.

Immigration changes a step in the right direction

Proposed changes to mandatory detention outlined by the Immigration and Citizenship Minister, Senator Chris Evans, are a positive step forward in making mandatory detention fairer. [See “Labor unveils new risk-based detention policy” at http://www.minister.immi.gov.au/media/media-releases/2008/ce08072.htm.]

Once a person seeking asylum has had their security, identity and health checks completed they will be released into the community (providing there are no security concerns) rather than remain in detention.

Future asylum seekers on Christmas Island will have access to the Immigration Advice and Application Assistance Scheme. Furthermore, the Immigration Ombudsman is likely to review cases of people in detention after six months rather than two years.

Most significant is the change in philosophy. The new Immigration Minister does not seek to use detention as a punitive measure. He aims to use detention as a measure of last resort and is opposed to it being arbitrary in any way. There is also an in-principle commitment to detention being used for the shortest practicable time.

These changes do not, however, mark an end to mandatory detention.

All undocumented arrivals will continue to be detained (except children). These proposed changes currently lack any real legal safeguards to ensure these reforms are applied consistently and in practice. They rely on the Department of Immigration and Citizenship (DIAC) to police itself and be accountable and fair, and experience has shown that DIAC cannot be trusted with such power and responsibility.

There will be no time limit on how long a person can be detained or legal right of review against continued detention enshrined in the law.

Potentially, a person could be detained for months or longer, if there are difficulties in ascertaining identity for example. While the Immigration Ombudsman is independent and will review people’s detention more often, their powers are recommendatory only.

The model proposed is that every three months a senior officer within the department will review the detention of a person to assess whether continued detention is justified.

Concerns remain about whom they will be accountable to. What powers will they have? What will be the criteria to continue the detention of a person? An independent body separate from DIAC with the power to release asylum seekers is essential.

Christmas Island will remain closed for the time being but will be reopened and used if there is a large arrival of undocumented arrivals. What purpose does offshore processing serve? It’s against the spirit of the Refugee Convention and undermines the government’s stated commitment to not use detention as a form of punishment.

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Kon Karapanagiotidis
Solicitor and Asylum Seeker Resource Centre CEO

For providing the letter of the month, Kon Karapanagiotidis has won a $50 book voucher from the LIV bookshop, redeemable for the next 12 months.

Creating “saviours and the law

I am a PhD researcher examining the regulation of IVF techniques in Australia and the UK, particularly in relation to couples who seek to use IVF to create a “saviour sibling” that will potentially cure an existing sick child.

During the IVF process, an embryo biopsy can determine whether a particular embryo will develop into a child with compatible tissue for an existing sick child. Once born, the blood stem cells from the umbilical cord of the new child (or the child’s bone marrow) can be transplanted to attempt to cure the sick child. At present, the law has paid little regard to whether we should allow parents to use IVF for this purpose, and it is about time that it did.

There are a number of inconsistencies between Australian jurisdictions. In some of the more heavily regulated jurisdictions such as Victoria, only couples at risk of passing on the same genetic disease from which the existing sick child is suffering are permitted to use IVF for this purpose. This means that parents of a child suffering from an acquired condition (a condition not genetically related, but develop after birth) will be barred from access to IVF.

It is important to consider whether this technicality should exist as a justified distinction for limiting access to IVF for this purpose. Why should a potential cure for a dying child be left open only to those at risk of transmitting the same genetic disease to future children?

Furthermore, there are a number of concerns that have been raised in relation to the welfare of families seeking treatment for this purpose and the children created as “saviours”. In the majority of Australian jurisdictions, counselling for the use of IVF for this purpose is not compulsory. Leaving aside the issues involved with general IVF treatments, couples seeking IVF for the creation of a “saviour sibling” will have a number of other factors at stake. They will also have to consider:

  • the illness of their current child;
  • the likely success of establishing a tissue-matched embryo in the IVF cycle;
  • the likelihood of being able to use the blood stem cells from the umbilical cord (or bone marrow from the child) if a tissue-matched embryo is detected and a successful pregnancy established;
  • the success of the transplantation procedure; and
  • the possibility of later remission for the sick child.

This list leaves aside the additional issues such as the cost, time and effort in obtaining these possible outcomes.

In my opinion, given the issues at stake, it is clear that the law needs to do more to at least consider the interests of those involved with these procedures.

Malcolm Smith
Queensland University of Technology Faculty of Law PHD Candidate

Legal needs of the hidden homeless

On 2 July the Bendigo based Loddon Campaspe Community Legal Centre launched the report Legal Services for Homeless People in Central Victoria. The report focuses on the legal needs of homeless people in the Macedon Ranges, Mount Alexander, Central Goldfields, Greater Bendigo, Loddon and Campaspe local government areas.

The report found proportionally higher levels of homelessness in the region (0.57 per cent of total population) than the average for other parts of Australia (0.48 per cent) and Victoria (0.26 per cent). A total of 1188 people in the catchment lived in an improvised home, tent, caravan, cabin or houseboat or slept out and of that, 241 people comprised the extreme categories of improvised home, tent or slept outside.

These numbers are disturbing considering the potential effects of homelessness – family breakdown, health problems (physical and mental), drug and alcohol abuse, inability to meet nutritional needs, education and employment problems, isolation, frustration, powerlessness, loss of identity, development of survival skills that may be detrimental to obtaining accommodation, violence, anti-social behaviour and criminalisation.

The potential costs to the community are also concerning – providing shelter and other services for the homeless, increased demand for health and community services, pressure on child protection services and the legal system where children are at risk, criminal activity and the associated strains on prisons and policing.

As lawyers we can come alongside these vulnerable people and assist them with legal problems – fines, criminal charges, family law disputes, welfare rights and discrimination, to name a few. Legal issues can be often neglected in place of immediate needs such as food and shelter, but lawyers can provide specialist assistance that has significant long-term outcomes.

The PILCH Homeless Persons Legal Clinic in Melbourne coordinates excellent services to assist the homeless or those at risk of homelessness. Private law firms and corporate legal departments provide lawyers who attend at agencies and provide legal assistance. This is overseen by staff both at the law firm and at the PILCH HPLC.

With local adaptation, the PILCH HPLC model could be the basis for similar services throughout regional Victoria, featuring collaboration between PILCH and local community legal centres, local and metro private firms, VLA regional offices and local community agencies.

The report by LCCLC has set the challenge to service a critical unmet legal need in Central Victoria. The report can be found at http://www.communitylaw.org.au/loddoncampaspe.

Paula Glassborow
Inaugural Clayton UTZ Foundation Fellow and Author of the Report

Credit where credit is due

I was amused to read the letter in the August LIJ headed “Low turnout disappoints”. In essence, the letter was complaining about the failure of female lawyers in Victoria to support the “Creating Justice” conference put on by the Australian Women Lawyers. I have represented artists for many years and trying to create a paying audience by berating non-attendees is indeed innovative. There appears to be a tendency among the “female elite” to assume that female lawyers lack the necessary experience or intelligence to make an informed decision in relation to attending a conference. I was articled to a female lawyer. I respected her then and throughout her long career – not because she was a female – rather because she was a good lawyer. That was 35 years ago. Perhaps it’s about time hard working female lawyers were given the credit they deserve. A good start would be to dispense with the word female.

Phil Dwyer
Dwyer & Co Solicitors

Access to justice and dealing with disadvantage

I am a law student at La Trobe University and have been on clinical placement at the West Heidelberg Community Legal Service.

I have written a report, “The disadvantage of the cost of litigation expert evidence for people who are financially disadvantaged”, which examines the effect on access to justice that costs associated with obtaining expert evidence required in court and tribunal cases has on people who are financially disadvantaged.

The research comprised
two stages: a literature review of the current legal aid and assistance schemes available to people who are financially disadvantaged in Victoria and interviews with community legal centre solicitors.

The research found that a key issue in equitable access to justice involves funding for disbursements because in order to mount a successful legal case, some form of expert evidence is often required. An inability to obtain expert evidence may not only result in a case having an undesirable outcome, but more disturbingly, an unjust one, which in the gravest of circumstances may result in the deprivation of liberty.

Recommendations recognise the importance of funding and supporting access to justice for disadvantaged people in Victoria as follows:

  • establishment of a publicly-funded scheme that provides assistance to financially disadvantaged people for disbursement costs associated with obtaining expert evidence required for litigation;
  • establishment of a scheme similar to Law Aid, except that it should be available for all types of litigation, not only civil matters;
  • that Medicare cover the cost of expert medical and allied health reports provided at the request of a legal representative whose client is financially disadvantaged and unable to self-fund the cost; and
  • the compilation of a resource directory listing various professionals such as doctors, psychologists, psychiatrists, social workers, housing officers, drug and alcohol counsellors, engineers, information technology professionals and so on, who are willing to provide pro bono assistance to financially disadvantaged people.

I hope that this law reform report may be of assistance in ensuring better access to justice for people who are financially disadvantaged.

Joanna Malseed-Harris
LaTrobe Student on Clinical Legal Education Placement with West Heidelberg Community
Legal Service

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