2013 Kirby Seminars

During the post decade, research fraud of proportions previously not encountered has come to light. It has resulted in some instances in the preferring of criminal charges and also in retractions of articles in highly regarded scholarly journals at a rate that has been unparalleled. This is testament to the fact that peer review has failed as an effective check and balance in relation to scholarly misconduct. This epidemic of research fraud across many disciplines raises broad questions about integrity in academic contexts and as the profiles of those who engage in both serial fabrication and plagiarism  of others work. By viewing the phenomenon across disciplines and extrapolating from individual instances, which are often causes celebres and scandals within particular disciplines but thereafter recorded only in silos of infamy, commonalities can be identified and much can be learned about the characteristics of such conduct and the features and motivations of those involved. A further question also arises as to how these forms of conduct should be responded to and regulated - in particular, whether there is a role for an external body to which issues of scholarly misconduct should be assigned for investigation and determination.

This paper revisits recent assessments of the Magna Carta as standing outside the influence of the ius commune and outside the lineage of 'rights talk'. The ius commune was the inter-related body of medieval law comprising the canon or church law of Gratian's Decretum and its commentators and the body of Roman law codified by Justinian in the sixth century and its interpreters.  This paper will add to a recent body of scholarly opinion highlighting the possible influence of this ius commune on the English common law. I propose to do this by demonstrating how several provisions of the Magna Carta show parallels with both ius commune principles and legal and ecclesiastical practice in the second half of the twelfth century. This paper further suggests that some of these later-twelfth-century ius commune sources carried with them notions of subjective or individual rights in the sense understood by the scholarship of Professor Brian Tierney—what we might term pre-modern analogues of human rights.

There are good reasons to establish a Criminal Cases Review Commission. Despite the presumption of innocence and many other fair trial principles that favour the criminal defendant, wrongful convictions occur. We know this because they come to light on a fairly regular basis.  There is a 'searing injustice and consequential social injury ... when the law turns upon itself and convicts an innocent person' (Van der Meer v The Queen (1988) 82 ALR 10 at 31 (Deane J)).  Everything possible should be done to correct them.  A body along the lines of the English Criminal Cases Review Commission  should be established with the powers and resources to investigate potential wrongful convictions, and, where convictions appear unsafe, refer them back to the Court of Criminal Appeal.

However, this argument quickly runs up against the finality principle. Many safeguards operate before trial and at trial to minimise the risk of wrongful conviction, and where errors are made, they can be picked up by the Court of Criminal Appeal, and the few exceptional errors that continue beyond that can be picked up by existing post-appeal avenues. There should be caution in widening the scope for further appeals. If convictions are subject to endless reassessment, the jury's role will be undermined, the criminal justice system will lose efficiency and it will fail to provide victims and society with closure.

Like so many questions in criminal justice, this issue involves weighing the rights of the defendant against the broader interests of society.  The exercise of finding the right balance raises further questions. How many convictions at trial are erroneous? To what extent should the state be held responsible for these errors? How effective is the regular appeal mechanism at correcting these errors? Are well do the current post-appeal mechanisms work? And if the conclusion is reached that more should be done about wrongful convictions, and some reform is required, then what form should that take? The reform goal will be to shift the balance in favour of correcting wrongful convictions to the requisite degree, without abandoning the finality principle altogether.

These are difficult questions. Data about wrongful convictions and the effectiveness of existing mechanisms is limited. And even if we had complete data, there will be a range of reasonable views as to where the balance lies between finality and corrigibility. But these difficulties should not be allowed to make this important issue incapable of discussion. In this paper I argue that Australian jurisdictions are not fulfilling their responsibility with regard to the correction of wrongful convictions. Furthermore, a Criminal Cases Review Commission provides a good model for remedying the problem.  Importantly, the Commission, as it operates in England, provides considerable respect for the finality principle, and, in establishing an Australian body, more or less finality may be achieved by varying the Commission's scope for intervention.

The TXT Inside/Outside project was a form of conceptual and performance art. It was a collaboration between a legal academic, computing and social scientists, and an artist. The project involved young offenders aged 15 – 19 held under secure conditions using text art to reflect on their experiences of law, life and the legal system.

Dr Margoni's presentation will offer an overview on how the European Union regulates the complex issue of Internet intermediary liability. There will be examples of the implementation of the European general framework at the national level by selected member states. The presentation will focus on the obligation to remove or disable access to illegal content in order to avoid the further impairment of protected rights, and how this can be achieved avoiding the general monitoring tools that are prohibited in the EU.

Early in 2012, the then Commonwealth Attorney-General, Nicola Roxon, published a Discussion Paper entitled Improving Australia's Law and Justice Framework, the purpose of which was to explore the scope for reforming Australian contract law.  One of the "Drivers for Reform" was the simplification of contract law, and the removal of technicality.

In this Kirby Seminar, Emeritus Professor Jim Davis will seek to show, by reference principally to developments in the law relating to equitable estoppel, that the courts have already been engaged in the removal of technicality and the simplification of at least some aspects of contract law.

The paper discussed the case law surrounding the unique provision contained in Reg 19A of the Family Law Child Abduction Convention) Regulations 1986, as amended in 2007. The existing case law, notably represented by the decision of Thackray CJ of the Family Court of Western Australia in Soysa v Commissioner Western Australia Police (2012) 46 Fam LR 648. That case law suggests that, presently, the courts (in the rare occasion when the matter has come before them) have adopted a strict approach to its very restrictive provision. It may be that, given Australia's individual situation, that approach may not be the most appropriate approach. In other words, a potentially useful procedure ought not to be permitted to ossify.

The proliferation of law schools and the application of the free market to higher education, including the introduction of a user-pays system has compelled law schools to compete with one another to attract and keep students. This framework positions students as consumers who choose the most attractive educational 'product'. Law schools ignore the desires of student / consumers at their peril.

This paper considers the way choice is construed with the aid of 'branding' and its ramifications for legal education. In presenting themselves as the means of realising a bright future centering on an aesthetic of pleasure, law schools play down the broader civic role of law. Does marketisation mean that the education of critical thinkers who can contribute to public debate has become a thing of the past?

Australia's succession laws in their various forms – wills, intestacy and family provision – are a poor fit for Aboriginal people including the burgeoning middle class. This seminar reports on research done in Aboriginal communities to determine the needs and wishes of Aboriginal people in relation to succession on death. It is clear that all the mainstream law provisions are problematic. Although some changes have been made to intestacy law in response to these findings, paradoxically it seems as if the will is ultimately the best way to meet the expressed needs and desires of the Aboriginal people consulted. The research, carried out with the NSW Trustee & Guardian to develop culturally appropriate instruction forms and wills for Aboriginal people and to make them available generally, has now been completed and it now remains to see if the rate of will-making can be increased and how it impacts on the problems identified. You are warmly invited to attend.

Environmentalists have traditionally paid little regard to the financial economy, on the assumption that investors and financiers are passive actors, remote from the operational decisions, and without knowledge or means of influence over the environmental performance of companies or other economic entities. This seminar explains why finance capitalism should matter to anyone concerned about sustainability. It examines these issues through an assessment of the rationales and methods of socially responsible investing (SRI) — the one movement to take somewhat seriously this agenda. The seminar outlines a governance model that can harness and expand the influence of SRI in order to promote sustainability in the financial sector. The notion of "nature's trust" is advanced to capture the fiduciary responsibility that financial actors should have towards the environment.