LLB140 Human Rights Take-Home Exam Summer 2 2021
Instructions:
1.Both Question 1 and Question 2 are to be attempted.
2.Each Question is to be attempted in a separate word or pdf document and uploaded to the corresponding link on Blackboard (under the ‘Assessment’ tab and then the ‘Take-Home Exam’ submission link).
3.There are 1,000 words for Question 1. There are also 1,000 words for Question 2. Each Question is worth 25 marks.
4.In Question 2, marks and word count for each section are as indicated.
5.Headings and footnoted citations are not included in the word count. To maximise your word count, we encourage you to reference your sources in the footnotes, as opposed to the body of the answer. However, please note that substantive material should not be included in footnotes.
6.Your citations do not need to be AGLC 4 compliant. However, they should be sufficiently detailed to allow the marker to identify the sources you are referencing. For example,‘CESCR, General Comment 12’ would be sufficient.
7.You can use common abbreviations, for example, ICCPR for the International Covenant on Civil and Political Rights.
8.The deadline for submission of your take-home exam is Friday 12th February 2021 at 11:59 pm.
9.This is an individual assessment task. Consultation or collusion with others would undermine the purpose of the assessment and would be considered academic misconduct.
LLB140 Human Rights Law Assignment-Australia.
QUESTION 1
STATEMENT OF COMPATIBILITY
The Comprehensive Review of the Legal Framework of the National Intelligence Community (Richardson Review) was released in December 2020. The review is the most substantial review into the legislation governing Australia’s intelligence community in the last 40-50 years.
Since 2001, federal parliament has introduced 124 separate acts concerning the national intelligence community. Generally, these acts have enhanced government power, increased secrecy, and attempted to keep pace with the evolving threat environment. However, it has resulted in a very complex legislative landscape and one that is outdated by changing technology.
Many of the powers granted under the various acts have been justified on national security and public safety grounds but human rights groups have raised concerns regarding whether the powers granted and limitations on freedoms imposed are necessary and proportionate and whether the
oversight or accountability mechanisms are adequate.
Many of the recommendations in the Richardson Review affirm the current state of the law and the sector as a whole. However, some have noted that the review provided limited consideration of civil liberties, democratic freedoms, whistle-blower protections and other rights-based concerns.
The Report made some noteworthy recommendations. These recommendations included:
The development of a new Electronic Surveillance Act, with several agencies granted additional powers:
Currently, the Telecommunications (Interception and Access) Act 1979 (TIA Act), the Surveillance Devices Act 2004 (SD Act), and the Australian Security Intelligence Organisation Act 1979 (ASIO Act) (amongst other Acts) allow certain agencies to use electronic or technical means, which would otherwise be unlawful, to covertly listen to a person’s conversations, access a person’s electronic data, observe certain aspects of a person’s behaviour, and track a person’s movements.
LLB140 Human Rights Law Assignment-Australia.
The Review recommended that the SD Act and TIA Act, and relevant parts of the ASIO Act governing the use of computer access and surveillance devices powers should be repealed and replaced with a new Act.
It also recommended that under the new Act, several agencies are granted additional powers.For example, it recommended that new powers and access to telecommunications data should be granted to the Australian Transaction Reports and Analysis Centre (AUSTRAC) and corrective services agencies. A further recommendation was that electronic surveillance
powers should be vested in the Australian Border Force (ABF), not the Department of Home Affairs, and the ABF should also be granted the power to use tracking devices under warrant and authorisation for the purpose of serious criminal investigations.
Question 1 continued
- The widening of ASIO’s power to collect foreign intelligence:
Currently, ASIO can obtain warrants to collect foreign intelligence inside Australia but a warrant cannot be issued for the purpose of collecting information concerning an Australian citizen or permanent resident. The Review recommended this prohibition should not apply where an Australian citizen or permanent resident is acting for, or on behalf of, a foreign power. For example, the prohibition should not apply to a dual citizen working in Australia on behalf of a foreign government. The amendment would allow the Attorney-General to issue a warrant in relation to the person for the purpose of obtaining foreign intelligence, while the person is in Australia.
- Greater oversight mechanisms:
A range of oversight mechanism were discussed in the Review. For example, it was recommended that DFAT is made aware of covert intelligence operations happening overseas and that DFAT has the responsibility to determine whether the Minister should be advised of the activities.
Importantly, the Review recommended several enhancements to the oversight powers of the Inspector General of Intelligence and Security (IGIS). In particular, it was recommended that the Parliamentary Joint Committee of Intelligence and Security is allowed to request the IGIS
to undertake an investigation. This recommendation has been wholly rejected by the Government. The Government responded that it ‘remains appropriate for ministers to primarily oversee operations and be accountable to Parliament.’
However, there are criticisms that data surveillance laws are rarely subject to effective oversight or public accountability. This was seen, for example, in the Commonwealth Ombudsman’s 2019 report on warrant less access to retained telecommunication data.
- The restriction of the power to sign warrants to the Attorney-General
Currently, junior ministers within the Attorney-General’s portfolio, the Solicitor-General (who is the government’s chief lawyer) and the Secretary of the Department can be drafted in to sign warrants. Given how serious matters of national security and intelligence gathering are, the Review recommended that the Attorney-General — and only the Attorney-General — can sign warrants allowing bugging, surveillance and raids.
The exclusion of judicial oversight
The Review recommended that Ministers should continue to authorise ASIO and Intelligence Services Act agency activities. These authorisations should not also be subject to judicial or other independent authorisation.
When agreeing with this recommendation, the Government stated that ‘[i]t is important that ministers be responsible for authorising ASIO and IS Act agencies’ activities, to allow ministers to make decisions taking into account the broader context of the agency, political risks, and national security considerations.’
However, the lack of judicial or independent oversight has raised concerns. For example, the Law Council of Australia expressed grave concern over the proposal to exclude judicial oversight. It highlighted that the United States, United Kingdom, Canada, and New Zealand all have judicial authorisation requirements for their intrusive intelligence collection-powers and that ‘this would reinforce Australia’s status as a major outlier within the Five Eyes Alliance.’
You work for the Legal Affairs and Community Safety Committee in the
Queensland Parliament. Using international and domestic human rights law, draft a Statement of Compatibility on the recommendations from the Richardson Review. Please note that it is not required that you read and analyse the entire Richardson Review. Instead, you can focus on a small number of recommendations. For example, you can select from the
recommendations outlined above. However, you are not confined to these noted recommendations.
In your Statement, you can consider whether the recommendations chosen address or fail to address previous human rights concerns raised regarding National Intelligence Community powers and/or whether implementing the recommended change(s) would raise human rights issues and/or whether the existing or recommended oversight mechanisms are sufficient safeguards to protect individuals’ human rights.
You may focus on 1-3 human rights in your Statement of Compatibility.
QUESTION 2
Provide answers for Part A and Part B in the same document.
Note: The exam scenario is based on real and evolving events. While real communities, issues and contexts are referenced, the companies are deliberately fictitious. The account below has also been tailored to suit an exam context. You should use the account below for your answer rather
than focus on the real events from which this question is based.
PART A
COTTON INDUSTRY IN CHINA
China is a key producer of the world’s cotton and most of its crop is produced in the Xinjiang region. Indeed, it is estimated that Xinjiang produces 85 percent of China’s cotton and 20 percent of the world’s cotton.
China has labour programs, which the Government states are designed to assist people to find employment and to alleviate poverty. However, there is evidence that it targets minorities, notably Uyghur and other Muslim minorities, and coerces participation.
A 2020 Centre for Global Policy (CGP) Report found that, as part of a state sponsored labour training and transfer scheme, at least 570,000 people in three Xinjiang regions were sent to pick cotton in 2018. The Report also acknowledged that the overall figure was likely to be several hundred thousand higher. While the Government denies allegations of forced labour and states that workers of all ethnicities engage with work voluntarily, some of the reported conditions appear to raise a high risk of coercion.
The CGP Report states that the labour scheme involves coercive mobilization through local work teams, transfers of pickers in tightly supervised groups, and intrusive on-site surveillance by government officials and (in at least some cases) police officers. Cotton picking is notoriously hard work and rising wages and better jobs elsewhere mean migrants have largely stopped providing this labour supply. Recruitment of labour from minority groups resolves this labour supply shortage but there are some reports that pickers participate because they fear being sent to
jail or detention camps. There are also accounts of Uyghur children and elderly persons being placed into centralized care while working-age adults are away on state-assigned cotton-picking work assignments. The payment received for the arduous work is also disputed. Although the documents claim that pay levels can exceed 5000 RMB ($763, £570) a month, one report appears to suggest that for 132 pickers organised from one village, the average monthly salary was just 1,670 RMB ($255, £188) each.
Publications on the labour schemes include references to policies discouraging ‘illegal religious activities’ and changing thoughts and behaviour through ideological training, which indicates that the policies are designed predominantly for Xinjiang’s Uyghurs and other traditionally Muslim groups. Government supervision teams monitor pickers, checking that they have a ‘stable’ state of mind. The supervisors eat, live, study and work with them, actively implementing thought education and political indoctrination sessions during cotton picking.
LLB140 Human Rights Law Assignment-Australia.
Question 2 (a) continued
As well as concerns regarding forced labour practices in cotton picking, there are concerns regarding the use of forced or coerced labour in manufacturing. China has confirmed that approximately 1.29 million people have been held in vocational training centres. The Government
states that the centres are necessary to counter religious extremism and to integrate the groups into society. However, UN experts and many human rights groups and analysts maintain that these are detention centre/re-education centres for minorities, particularly Uyghurs and other traditionally Muslim groups. In 2020 an Australian Strategic Policy Institute (ASPI) Report estimates that between 2017 and 2019 more than 80,000 Uyghurs were transferred out of the Xinjiang region to work in factories across China. It said some were sent directly from detention camps. The Report acknowledges that the actual figure of people transferred is likely to be much higher.
The Government denies claims of forced labour and says the factories are another part of the voluntary poverty alleviation scheme. Some rights groups say that the Uyghur minority are being persecuted and recruited for forced labour and that people in camps are made to learn Mandarin
Chinese, swear loyalty to President Xi Jinping, and criticise or renounce their faith. Participants in the labour scheme generally work in factories far away from their home, they typically live in segregated dormitories, undergo organised Mandarin and ideological training outside working
hours, are subject to constant surveillance, and are forbidden from participating in religious observances. Numerous sources, including government documents, show that transferred workers are assigned minders and have limited freedom of movement. Again, there are accounts of participants fearing jail or detention centre if they refuse to work.
LLB140 Human Rights Law Assignment-Australia.
Explain and apply the human rights obligations and responsibilities, under international human rights law and principles, that the Chinese Government has potentially breached. Include in your reasoning the specific articles of the key treaties or principles, relevant jurisprudence and other relevant extraneous materials. You may focus on 1-2 human rights
in your response.
For the sake of exam purposes, please assume China ratified the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social or Cultural Rights, and any other relevant instruments.
PART B
The cotton picked in Xinjiang and manufactured in factories as part of China’s labour programs supply a large network of companies and corporations, including some of the world’s biggest brands.
Question 2 (b) continued
True Fashionistas is a large multinational corporation that is founded and headquartered in Melbourne. It designs and manufactures shoes, clothing and accessories. True Fashionistas recorded revenue for 2019 was $22.5 billion.
True Fashionistas’ largest supplier of cotton for its products is Patriot Cotton. Patriot Cotton picks and manufactures its cotton in the Xinjiang region and uses labour from China’s labour programs, including its labour training and transfer schemes. Patriot Cotton directly supplies 45 percent of
True Fashionistas’ cotton. A further 25 percent of its cotton is indirectly sourced from various suppliers, which both the CGP Report and the ASPI Report link to forced or coerced labour from China’s labour programs.
LLB140 Human Rights Law Assignment-Australia.
When True Fashionistas first entered negotiation with Patriot Cotton in 2017, it informally told Patriot Cotton that True Fashionistas wanted to ethically source its materials and that no forced or coerced labour should be used in the supply of its cotton. True Fashionistas claims that Patriot
Cotton readily agreed and that they did not feel that it was necessary to include a clause to this effect in their contract or to carry out any due diligence beyond this informal request. It stated that it did not include such a clause or conduct this type of due diligence for any of its suppliers, as it
felt a relationship of trust was important and such due diligence is costly, time consuming and practically difficult to conduct and/or verify in reality.
True Fashionistas states that it had no knowledge of any of the reported allegations of forced or coerced labour and that to the best of their knowledge, their cotton comes only from ethical sources. However, for several years there has been numerous public reports, media coverage and
international scrutiny of human rights concerns in China, including with respect to forced or coerced labour and the treatment of minorities. For example, the Uyghurs have requested that the International Criminal Court (ICC) investigate crimes against humanity and genocide in Xinjiang
(but the Office of the Prosecution said it was unable to do so because the alleged crimes happened inside China, which was outside the ICC’s jurisdiction). China has also attracted international condemnation, including sanctions and other diplomatic measures, for its network of detention centres. In 2020, the US imposed sanctions and cotton import restrictions on a key Xinjiang cotton corporation over human rights concerns and at least one independent industry body has stopped
auditing and certifying farms in Xinjiang because of, inter alia, concerns over China’s labour programs to alleviate poverty. Many human rights groups and experts say that there is likely to be forced labour involved in cotton sourced from the Xinjiang region.
LLB140 Human Rights Law Assignment-Australia.
Following the ASPI Report in early 2020, True Fashionistas has adopted formal policies that state that its materials will be ethically sourced and that it does not allow the use of forced or coerced labour in its direct or indirect supply chains. It has amended all its supply contracts, including its contract with Patriot Cotton, to contain a clause stipulating that the supplier guarantees that no forced or coerced labour was used in the supply of the materials. True Fashionistas also stated in a media announcement that it will establish a confidential grievance and whistle-blower program
accessible to all ‘high risk workers’ in their direct supply chains. However, the program has not yet been implemented. A media outlet has since questioned True Fashionistas on the failure to implement the program over the last few months and whether they would establish any other due
diligence protocols, for example, site visits. True Fashionistas responded that the program took time and was difficult to establish and that they would not conduct other due diligence procedures, such as site visits or directly approaching or interviewing workers, as they wanted to respect the
customs and norms of the countries involved and their relationship with their suppliers. They further stated that they believed that the signed guarantees were a sufficient and business appropriate measure to protect against forced or coerced labour in their supply chain.
LLB140 Human Rights Law Assignment-Australia.
Using international human rights law and jurisprudence, determine whether, and if so how, True Fashionistas has breached its responsibilities to human rights. In your answer, briefly identify what True Fashionistas should do going forward with citations to relevant materials. You may focus on 1-2 human rights in your response.
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