PBLJ focuses on a diverse range of legal and policy issues as they affect the rapidly developing economies of the Pacific Rim. Throughout its history, the journal has featured articles written by leading scholars and practitioners on topics including human rights law, constitutional law, comparative law, criminal law, international trade law, business and corporate law, and intellectual property law.
Volume 27, Issue 2, 2010
The Right to Freedom of Association in the Workplace: Australia's Compliance with International Human Rights Law
The right to freedom of association in the workplace is a well established norm of international human rights law. However, it has traditionally received insubstantial attention within human rights scholarship. This article situates the right to freedom of association at work within human rights discourses. It looks at the status, scope and importance of the right as it has evolved in international human rights law. In so doing, a case is put that there are strong reasons for states to comply with the right to freedom of association not only in terms of international human rights obligations but also from the perspective of human dignity in the context of an interconnected world.
A detailed case study is offered that examines the right to freedom of association in the Australian context. There has been a series of significant changes to Australian labor law in recent years. The Rudd-Gillard Labor government claimed that recent changes were to bring Australia into greater compliance with its obligations under international law. This policy was presented to electors as in sharp contrast to the Work Choices legislation of the Howard Liberal-National party coalition government. This article critically assesses the extent to which the new industrial relations regime in Australia complies with international instruments governing the right to freedom of association at work.
China revised its Criminal Procedure Law in 1996 adopting an adversarial-style trial model and granting remarkable procedural safeguards to the accused. Many have been tempted to conclude that this new law is capable of ensuring fair trials for criminal defendants and thus could improve China's record of human rights protection.
This article will argue that, despite some progresses in formality, the new law has been poorly implemented and has failed to fulfill its promise of fair trials. This article will examine two high profile cases in detail to demonstrate how procedural safeguards prescribed by the new law are frequently manipulated by judges, either to pursue efficiency and convenience or to accommodate outside influences such as political concerns, public outrage, personal friendship, or even bribes. These manipulations have caused the essence of fair trials intended to be created by the 1996 law to be largely nonexistent in modern proceedings, while at the same time allowing interferers to freely produce wrongful verdicts and disproportionate sentences.
The reality is that many of these problems are caused by institutional flaws in China's criminal justice system, particularly the absence of a responsible judiciary. However, instead of pinning hopes for reform on unrealistic constitutional changes, this article proposes a technical approach that focuses on restructuring the 1996 law to make criminal trials less vulnerable to manipulation and interference. This technical solution would help to ensure fair trials by relying on the procedure itself rather than on unreliable judges.
Since its founding the People's Republic of China has used various forms of administrative detention to rehabilitate administrative offenders, in particular drug users and prostitutes. A number of studies have focused on the undesirability of administrative detention in terms of its questionable legality and rationality. Very few studies, however, focus on its poor effectiveness in preventing re-offending and its contribution to high recidivism rates in China for certain offenses. This article first examines the true nature of the policy of administrative detention by looking at the policy's rationales of punishment, retribution and deterrence. In contrast to administrative detention, education, rehabilitation and correction based on the utilization of social capital have successfully contributed to a reduction in recidivism for administrative offenses. By reviewing the practice of the Chinese community correction program, this article concludes that compared to administrative detention, community correctional schemes that are filled with positive social capital may serve as the ideal substitute to rehabilitate Chinese administrative offenders.