Social justice practice
At Maurice Blackburn we recognise that there are individuals and
organisations in our community who cannot afford the services of a
lawyer. That's why in appropriate cases, Maurice Blackburn will
provide legal services to such organisations and individuals on a
no charge (pro bono) or reduced charge basis. We also work
with many barristers on a similar basis. We fight for
fair.
This work is based on the view that Australian and international
law should support the notion of justice and reflect community
values. The firm's Social Justice Practice challenges the excesses
of government and business and champions the rights of those that
are disadvantaged. We believe legal action that supports social
justice contributes to a better society.
A history of fighting for
fairness
Maurice Blackburn has led litigation in the public interest on
behalf of refugees, workers who have been underpaid, and people who
have been unfairly targeted by national security legislation.
As far back as 1945, the firm worked with the ACTU and won a
claim for the 40-hour week. Maurice Blackburn also worked together
with union clients for equal wages for women throughout the 1950s
and 60s until the final victory in 1972, when the principle of
equal pay for equal work became law. In 1966 we acted on behalf of
the Northern Australian Workers Union in a landmark victory in the
Northern Territory Cattle Industry Case.
Aboriginal men employed as station hands achieved wage equality and
award conditions were extended to them. This case set the stage for
similar decisions to be achieved in other industries. [See other
landmark cases].
Social Justice practice
Maurice Blackburn has a dedicated Social Justice Practice,
headed by Elizabeth O'Shea which draws on lawyers from each of the
firms different practice areas, providing access to the some of the
best legal social justice expertise in Australia.
Key areas of practice:
- Civil and Political Rights
- Asylum Seekers Rights
- Environment & Climate Change
- Workplace Rights
- Indigenous Rights & Equality
Examples of how Maurice Blackburn's Social Justice Practice has
assisted organisations and individuals are listed below.
Maurice Blackburn welcomes applications for assistance. These
should be directed to Elizabeth O'Shea.
Significant cases
1. Civil and Political
Rights
Wrongful detention - Dr Mohamed Haneef case
Dr Mohamed Haneef was arrested in 2007 and charged with a
terrorism-related offence and his Australian visa was cancelled. He
was released after nearly four weeks in detention, the charge was
withdrawn and the decision to cancel his visa was subsequently
overruled by the Federal Court. The investigation and detention of
Dr Haneef cost over $7.5 million.
Dr Haneef instructed Maurice Blackburn to act on his behalf
during the Clarke Inquiry into the circumstances surrounding his
arrest and detention in 2008. Dr Haneef's legal team included Rod
Hodgson, of our Brisbane Office amongst others.
We are currently assisting Dr Haneef to seek compensation
for his wrongful detention.
Charitable status with the ATO - Aid/Watch Case
Aid/Watch is an organisation which monitors Australian aid
spending and debt and trade policy. Aid/Watch conducts and
publishes research into the impacts of development policies and
practices. Maurice Blackburn is acting for Aid/Watch
following a decision by the Australian Taxation Office to withdraw
its charitable status.
In 2006 when Aid/Watch exposed the misuse of Federal Tsunami
Aid, the former Foreign Minister himself telephoned Aid/Watch
offices and threatened to cease funding the organization, only to
be informed by staff that under its constitution the organisation
could not accept government funding. Later that year the Australian
Tax Office (ATO) withdrew Aid/Watch's charitable status for taking
a 'particular point of view' on the aid program.
With the support of Maurice Blackburn Aid/Watch was successful
in its appeal to the Administrative Appeals Tribunal, but lost at
the Federal Court following an appeal by the ATO. Most recently,
the firm successfully applied for special leave to appeal to the
High Court. The case is expected to be heard in the High
Court during mid-2010. This case has implications not only for
Aid/Watch but many other charities.
Wrongful detention - Scott Parkin Case
American peace activist Scott Parkin entered Australia on a
six-month tourist visa in June 2005. On 10 September 2005, Parkin
was put into immigration detention and told that his visa would be
revoked because he was a national security risk. After being
removed from Australia on 17 September 2005, the Commonwealth
Government billed him for $11,688.34 for the costs of his detention
and removal.
Maurice Blackburn represented Parkin in his legal challenge for
the cancellation of his visa and negotiated that his removal from
the country would not affect his appeal rights. We fought for
Parkin to be given access to the ASIO documents which made
allegations against him.
On 3 November 2006, the Federal Court declared that Parkin and
two Iraqi refugees, Mohammed Sagar and Muhammad Faisal, had the
right to know why the Government declared them to be security
risks. However, when the three men requested that ASIO produce
copies of their adverse security assessments, the Federal Court
dismissed this application and awarded costs against the
applicants. The Court permitted ASIO to rely on the public interest
immunity exemption to prevent them producing the documents.
As a result of this decision Parkin, Sagar and Faisal have been
denied an opportunity to see the evidence relied upon by ASIO when
it made an adverse assessment. In making its decision the
Court relied on parts of a confidential affidavit not made
available to the three men.
Parkin, Sagar and Faisal now face the prospect of proceeding to
a hearing to challenge a decision which makes unknown allegations
about them and was based on evidence that they are not allowed to
see. We continue to assist the applicants and seek access to
the adverse security assessments made by ASIO.
The case raises two important points. Firstly, the consequences
of failing the 'character' test under section 501 and secondly the
extent of the Department of Immigration and Citizenship's duty of
care where they determine that an individual is to be deported for
failing the character test.
Andrew Moore died three days after arriving in London, having
been deported from Australia for failing the character test under
section 501 of the Migration Act 1958 (Cth). MrMoore had
lived in Australia since 1977 and had been granted permanent
residency. His immediate family including his teenage son also
resided in Australia. Moore suffered a series of psychological and
physical illnesses, and in addition, had a long history of
substance abuse. In 2001 he was convicted of manslaughter and
sentenced to nine years jail with a non-parole period of seven
years. Moore had shown a willingness to rehabilitate and 'go clean'
on release from prison. In 2006, the former Minister for
Immigration detained Moore on release from prison under section 189
of the Migration Act. Under section 501 of the Act the Minister
ultimately cancelled Moore's visa on 'character' grounds due to his
criminal history and he was deported from Australia. Medical
practitioners had on numerous occasions noted that Moore required a
range of medical and psychological treatments and support networks
to cope with his various illnesses. His practitioner had also
recorded Moore's commitment to rehabilitation on release, and his
fear that he may relapse into substance abuse if was in a new
country where he had no existing social connections or support
networks. Moore had in fact been recommended for community
detention in Victoria with housing arranged and various support
networks in place provided by both the medical community, the
Salvation Army and his family in Victoria. In spite of this
recommendation to the Department of Immigration and Citizenship he
continued to be detained at Maribyrnong Detention Centre before
being deported to the United Kingdom.
People associated with these character provisions invariably
come from disadvantaged backgrounds, have problematic work
histories, dysfunctional social networks and often alcohol and drug
addictions.
While the Department may argue that they have no legal
obligation to exercise a duty of care regarding non-citizens they
deport, it must be asked that in circumstances where the Department
is fully apprised of a detainee's pre-existing physical and
psychological illnesses and their significant connections to their
place of residence as in this case, is deporting that individual
best for their ongoing health and wellbeing?
Or is it simply going to increase the risks to that individual
as well as to the community to which they are being deported?
Where individuals have their visa cancelled and are declared a
non citizen for failing the character test due to their criminal
history, the Department is effectively adding a further level of
punishment that was never sanctioned by our judicial process. Most
importantly it's a decision that arguably breaches fundamental
human rights and international conventions that Australia claims to
uphold.
Maurice Blackburn lawyer Natasha Andrew continues to pursue
this principle.
2. Asylum Seeker Rights
Adverse security assessment - Muhammad Faisal
Case
Muhammad Faisal was held on Nauru and was one of the last two
asylum seekers left there in 2004. Faisal suffered from high levels
of anxiety, bad vision, took medication daily, and tried to take
his own life. After five years in detention Faisal was moved to a
psychiatric facility in Brisbane. ASIO deemed Faisal to be a
security risk, and denied him a visa.
In February 2007 ASIO reversed their decision and Faisal was
granted a visa, however, his adverse security assessment has not
been withdrawn. Faisal has still not been given access to his
adverse security assessment. We continue to work on accessing
documents that led to the decision by ASIO to assess Faisal as a
threat to national security.
Adverse security assessment - Mohammed Sagar
Mohammed Sagar fled Iraq to Australia. He was assessed as a
refugee, but when he sought clearance from ASIO, was given an
adverse security assessment which prevented him from being released
into the Australian community. He was then held on Nauru for five
years between 2001 and 2005. Unable to settle in Australia,
and with the adverse security assessment making it difficult to
seek asylum in another country, Sagar faced the real prospect of
indefinite detention on Nauru. In 2007, Sweden accepted him as a
refugee and he passed the relevant security assessments without
issue.
Sagar has not been given any indication as to the basis of the
case against him. We continue to work on his behalf to challenge
the adverse security assessment.
Psychological harm suffered in mandatory detention - Shayan Badraie case
Maurice Blackburn represented 11-year-old Iranian refugee Shayan
Badraie in a landmark case in the NSW Supreme Court in 2006. The
family accepted a settlement payment of $400,000 as compensation
for psychological harm suffered by the boy whilst in detention. The
practices and condition of the detention centre were exposed in a
three month trial that included testimony from the former detention
camp commander. The settlement offer was only made as the trial
neared completion.
Shayan was in detention between the ages of five and seven. He
developed post-traumatic stress disorder and refused to eat, drink
or talk after witnessing traumatic events such as suicide attempts,
self harm and abuse in detention centres. The case is the first
time the Federal Government has conceded that a child has been
psychologically damaged while in mandatory detention. The
settlement is an acceptance of responsibility for the psychiatric
injuries suffered by Shayan during his period of detention. He and
his family have now been granted citizenship.
3. Environment and Climate
Change
Maurice Blackburn successfully represented The Wilderness
Society in proceedings brought against it and other defendants by
Gunns Limited in the Supreme Court of Victoria. Gunns claimed that
environmental activists and groups harmed the company by disrupting
logging and woodchipping operations and by damaging the company's
reputation.
The proceedings were resolved on 18 March 2009 in favour of The
Wilderness Society with Gunns agreeing to make a net payment to the
society of $325,000.00
4. Workplace rights
The family of Larry Knight and the Australian Workers Union were
supported by Maurice Blackburn in the six week coroner's inquest
following the Beaconsfield Mine Collapse.
Maurice Blackburn represented security guard, Faisal Durrani, an
international student who worked at the 2008 Australian Open as a
security guard. Durrani was paid only $1.26 per hour during the
month that he worked. We were successful in obtaining more
than $120,000 in unpaid wages and penalties for Durrani.
The Social Justice Practice has also assisted Prateek Sahni to
recover wages owing to him by a Subway franchisee after the manager
did not pay him for more than 40 hours work at the fast food outlet
and required him to do unpaid heavy labour at his house. Maurice
Blackburn is helping Sahni to seek penalties for breaches of the
award and minimum pay conditions that could exceed $200,000.
Unpaid wages cases - Scott Lee
and Jackey Wang
The Social Justice Practice is assisting a number of
international students to recover wages owing to them
by their employers. International students are
particularly vulnerable to exploitation by their employers for
a variety of reasons and Maurice Blackburn is seeking to raise
awareness about their plight. Scott Lee and Jackey Wang are
owed over $23,000 in unpaid wages and have struggled financially
because of this. Maurice Blackburn is helping Lee and Wang to
seek penalties for breaches of the award and minimum pay conditions
that could exceed $100,000.
5. Indigenous equality
and rights
Indigenous land rights - Muckaty Station
Maurice Blackburn has filed a legal challenge against the
Commonwealth Government and the Northern Land Council over plans
for a radioactive waste dump on Indigenous land in the Northern
Territory. Mark Lane Jangala, a senior Traditional Owner of Muckaty
Station near Tennant Creek, claims he and senior elders from four
other Traditional Owner groups were not adequately consulted before
Muckaty Station was nominated as a site for Australia's first
radioactive waste dump. By law, before a site on Aboriginal land
can be nominated, the informed consent of the Traditional Owners
has to be sought and obtained.
Mr Lane Jangala has instructed Maurice Blackburn, together with
NSW firm Surry Partners and Julian Burnside QC, to commence
proceedings challenging the nomination of Muckaty Station as a site
for the disposal of radioactive waste.
Stolen Generation Compensation Payments
Maurice Blackburn has assisted members of the Stolen Generation
to make applications for compensation under statutory regimes and
has assisted claimants to make Freedom of Information requests to
records relating to their removal and housing.
The Social Justice practice is actively searching for further
avenues to assist the Indigenous community with public interest
litigation.
6. Consumer Rights
Commercialisation of human genetic material -
breast cancer gene patenting
In an Australian first, Maurice Blackburn has launched
legal action against four biotech companies to challenge a patent
over human genetic material. The case has been filed on behalf of
Cancer Voices Australia and a Brisbane woman with breast cancer.
The Federal Court will consider the patent over a gene
mutation known as BRCA1. The mutation is associated with an
increased risk of breast and ovarian cancer in women.
Maurice Blackburn is arguing that
the patent held by companies including Myriad Genetics Inc and
Melbourne-based Genetic Technologies Ltd is invalid. In March,
the Federal District Court in New York ruled that patents were
improperly granted to Myriad Genetics on two human genes, including
BRCA1. The cases raises philosophical and ethical issues about the
commercialisation of the human body. It also exposes practical
concerns around gene patents including access to the gene
mutation for research and testing purposes.
In Australia, the test case is
supported by patent law expert Dr Luigi Palombi from Australian
National University and Sydney University and is being run by
the Social Justice Practice led by Rebecca Gilsenan and
barristers David Catterns QC and Peter Cashman.