Kirby Seminar Series

Friday
7 October

3pm

JN Lewis Seminar Room
W38 EBL Building

"Promoting the rule of law in post-conflict states: A case study of Timor Leste"

Dr Laura Grenfell

Dr Laura Grenfell will discuss how the international community promotes the rule of law in post-conflict states, using Timor-Leste as a case study. In particular, the seminar will examine the challenge of legal pluralism in this context.

Thursday
18 August

11am

JN Lewis Seminar Room (LT4)
W38 EBL Building

"The High Court and Constitutional Change"

Professor Geoffrey Lindell

The High Court is an important agent for change in Australia’s federal system. Professor Lindell intends to address how far constitutional change should be brought about by the High Court as distinct from the people and the Australian Parliament under s128 of the Australian Constitution, by examining:

(i) whether the High Court exceeded limits imposed by constitutional texts on the expansion of Commonwealth legislative power by judicial interpretation, as well as having, as has been alleged, contradicted the intentions of the framers, in the Work Choices Case (2006) 229 CLR 1;

(ii) provide his appraisal of remarks made by Sir Victor Windeyer J in the Payroll Tax Case (1971) 122 CLR 353 at p 396 (relied on in Work Choices Case (2006) 229 CLR 1 at [193] which suggested that the landmark Engineers Case (1920) 28 CLR 129, in which the High Court rejected the doctrine of the reserved powers of the States, was a consequence of developments which occurred outside the courts; and

(iii) the High Court’s rejection of an implied general Bill of Rights, as distinct from the few rights expressly guaranteed in the Constitution and those implied from the text and structure of that document.

He will seek to justify the comparatively low level of judicially protected federalism by reference to both legal and political considerations – and likewise with the rejection of an implied Bill of Rights as distinct from “rights” implied from the text and structure of the Constitution such as the freedom of political communication. By "political" he means the general acquiescence if not the agreement of the people as a whole in relation to the High Court’s interpretation of the Constitution. His main argument is that the High Court should generally be supported in its approach on these matters because of its adherence to orthodox principles of constitutional interpretation which he believes have a sound basis; and also because the Court is likely to have been in tune with what the general public wanted and did not want although that is not itself a relevant legal consideration which the Court is entitled to rely on in applying the same principles of interpretation.

Thursday
11 August

3pm

John Dillon Lecture Theatre (LT4)
W39 EBL Building

Mark Tedeschi QC

Mark Tedeschi MA LLB is the Senior Crown Prosecutor for New South Wales. He is the Head of Chambers of the 84 Crown Prosecutors. He is also the President of the Australian Association of Crown Prosecutors and a Visiting Professor at the University of Wollongong. Mark became a barrister in 1977, a Crown Prosecutor in 1983, a Queen’s Counsel in 1988, a Deputy Senior Crown Prosecutor in 1990, and the Senior Crown Prosecutor in 1997. He has prosecuted some of the most significant trials in New South Wales, including: Ivan Milat, Neddy Smith, the murderers of Dr Victor Chang, Philip Bell, Dolly Dunn, Phuong Ngo, Kathleen Folbigg, Sef Gonzales, Bruce Burrell, Gordon Wood, Desmond Campbell and Keli Lane. In 2004 Mark went to Fiji to prosecute the Vice-President and five other prominent citizens for taking treasonous oaths of office during the coup led by George Speight. In 2006, he went to Fiji to prosecute Maj Gen Sitiveni Rabuka on incitement to mutiny charges. Mark has been extensively involved in the training of prosecutors in many parts of Southeast Asia. In 2007, Mark was the Counsel Assisting the Coroner during the Inquest into the deaths of five Australian journalists at Balibo in East Timor during the Indonesian invasion in 1975. Mark is the author of a book on international trade law and has had published numerous articles on commercial law, environmental law, social welfare law, mental health law, criminal law, genealogy and history. Mark is also a very keen photographer. He has held numerous exhibitions and his photographs are included in the Art Gallery of New South Wales, the National library in Canberra, and the State Library of New South Wales. Mark's other interests are bushwalking, genealogy and travel. MA LLB is the Senior Crown Prosecutor for New South Wales. He is the Head of Chambers of the 84 Crown Prosecutors. He is also the President of the Australian Association of Crown Prosecutors ´and a Visiting Professor at the University of Wollongong.

Thursday
7 July

1pm

Lecture Theatre 5
W39 EBL Building

David Brennan

Associate Professor, School of Law, University of Melbourne

"Is Copyright Infringement Not Causing Lost Sales Harmless?"

Data gathered to illustrate the economic harm caused by copyright infringement is sometimes regarded with skepticism. In particular it is said that an infringement does not necessarily amount to a lost sale, and therefore is not economic harm. This paper queries that skepticism, and asks whether it matters if an infringer downloader would never have paid for the content. In particular it will suggest that property (including intellectual property) has long been regarded as giving rise to special norms such that a type of per se or de jure harm arises when a person takes rather than bargains. This question will be explored in part through the recent damages decision in the case of Larrikin Music Publishing v EMI and it will observe that, as a minimum, courts have long ordered notional usage price damages against infringers - a position established at least as long ago as the 1867 English patent case of Penn v Jack.

Tuesday
21 June

12pm

JN Lewis Seminar Room
W38 EBL Building

Michelle Lim

PhD candidate, The University of New England

"Is Water Different From Biodiversity? Governance Principles for the Effective Management of Transboundary Resources"

The hydrologic linkages of international basins create common interests among their riparian states. Mechanisms for the cooperative management of water are required to ensure that water does not create national security issues. Governance principles are needed for the management of resources that occur across international boundaries. Previous work developed criteria for effective transboundary biodiversity conservation. The main outcome of this paper is a set of criteria for the management of transboundary water resources. This paper identifies the differences between transboundary biodiversity conservation and the management of transboundary water resources. The conclusion drawn from an examination of transboundary water management literature and practice is that most of the criteria developed for biodiversity are equally relevant for the management of transboundary water resources. Transferable lessons gained from the management experience of each resource are highlighted.

This paper will be presented in South Africa at the 9th Annual Colloquium of the Academy of Environmental Law of the International Union for the Conservation of Nature (IUCN) in July. This paper received the award of 'Best Graduate Student Paper' from the Academy. It will be presented in the final plenary session of the Colloquium. Michelle Lim is a PhD candidate in the Australian Centre for Agriculture and Law in the School of Law at the University of New England.

Wedneday
18 May

12pm

JN Lewis Seminar Room
W38 EBL Building

Emeritus Professor David Brown

The University of New South Wales

"The Limited Benefit of Prison in Controlling Crime"

Emeritus Professor David Brown taught Criminal Law, Advanced Criminal Law, Criminal Justice, Crime Prevention, Community Corrections and Penology courses at the University of NSW in Sydney from 1974 to 2008. He is a co-author of the major and innovative Criminal Laws (1990), (2nd edn 1996) and (3rd edn 2001) (4th edn 2006) (5th edn 2011) which has become the leading student teaching text in criminal law in universities in NSW. He is very widely published across the broad areas of criminal law, criminal justice, criminology and penology, both in Australia and internationally. He has co-authored or co-edited 10 books; published 33 chapters in books, and over 100 articles in journals and in conference proceedings published; given 120 conference papers or public addresses all over the world; and is a regular media commentator on criminal justice issues.

Monday 14 March

5:30pm for 6pm start

John L Dillon Lecture Theatre (LT4)

EBL Building (W42)

Stephen Gageler SC

"The Constitutionalisation of Australian Administrative Law"

Stephen Gageler commenced a five year term as Solicitor-General of Australia in September 2008. He was admitted as a barrister and solicitor of the High Court in 1982 and as a barrister of the Supreme Court of New South Wales in 1989. Mr Gageler was appointed Senior Counsel in 2000. He is a graduate of the Australian National University and has post graduate qualifications from Harvard University.

You can read more about Mr Gageler in his SMH interview.

Thursday 17 February

12pm

Lewis Seminar Room
W38
EBL Building

Nengye Liu

(PhD Candidate, Department of Public International Law, Ghent University, Belgium)

“The Legal Constraints to the European Union’s Membership of the International Maritime Organization”

The presentation will focus on the relations between the European Union and the International Maritime Organization. First, it briefly describes the framework as well as the impressive development of European law in the field of maritime safety after the “Erika” (1999) and “Prestige” (2002) oil tanker spill disasters. Second, the EU’s current status in the IMO and incentives for EU’s accession to the IMO are discussed. Third, potential legal constraints to the EU’s ambition of being a member of the IMO are analyzed. It argues that the EU will meet both internal (from EU Member States) and external (from other IMO Members) constraints, which can result in an almost impossible mission for the EU to join the IMO in the foreseeable future. It concludes that the EU may reinforce internal coordination process instead of joining the IMO to influence international decision making process within the IMO more effectively.

Nengye Liu graduated from Institute of International Law, Law School, Wuhan University, China in June 2007 as an outstanding graduate (Master of International Law). Since Nov 2007, Nengye has been a PhD candidate at the Department of Public International Law/Maritime Institute, Ghent University, on the topic of "Prevention of Vessel-Source Pollution, a Comparative Study between European Law and Chinese Law". His PhD research project is funded by Special Research Fund (BOF), Ghent University, and focuses on how the EU and China interact with as well as implement and enforce international law on vessel-source pollution in order to better protect the marine environment. Nengye Liu has several publications in international peer-viewed journals, such as The Journal of Maritime Law and Commerce and The Journal of International Maritime Law. Nengye Liu was the Co-convener of the Graduate Student Meeting, 8th IUCN Academy of Environmental Law Annual Colloquium. In summer 2008, he was selected to participate in the 13th Rhodes Academy of Ocean Law and Policy, Greece, and also completed a two month traineeship in the Singapore International Arbitration Centre.

Monday 11 October

1pm

Lewis Seminar Room
W38
EBL Building

Lieutenant Colonel David Freeman

(former Chief Legal Officer HQ 1st Division 2006-08) Deputy Director Military Justice, Defence Legal Division)

“The political issues and the legal basis surrounding the United Nations Mission in Afghanistan and the legal considerations for the ADF in Afghanistan.”

This lecture will examine the political events from September 2001 that galvanised the United Nations into providing support to the fledgling Afghan Administration and the legal basis for the establishment of an International Security Assistance Force (ISAF) in 2001, and in early 2002 the United Nations Assistance Mission in Afghanistan (UNAMA).  It will also examine the legal basis under the United Nations Security Council Resolution(s) of the original involvement of ADF Special Forces as part of the Coalition on the War on Terror which entered Afghanistan in late 2001 for 12 months; only to return to Afghanistan in 2005 at the request of President Karzai to provide security in time for the first democratic elections to be held in 32 years.  And more recently, the ADF has assisted the Afghan Government with security to conduct its second parliamentary elections held in September 2010.  It will further examine the legal issues faced by the ADF, and the high standard of legal training given to the ADF in the Rules of Engagement, Targeting, and Detainee Operations.
The presentation then looks at the recent Paris Declaration in 2008, the strategic direction adopted by the Obama administration and the future course for Afghanistan.

Lieutenant Colonel David Freeman originally studied Agricultural Economics at the University of New England in 1976.  He then commenced Law at the Queensland University of Technology in 1979 and was a member of Queensland University Regiment 1979-81 and an Officer Cadet at OCTU in 1985.  He graduated with a Bachelor of Laws in 1984, and in 1985 was a Judge’s Associate in the District Court of Queensland. In 1986, LTCOL Freeman was admitted as a Barrister of the Supreme Court of NSW and the High Court of Australia. Since completing his LL.B., LTCOL Freeman has completed postgraduate courses in criminology, International Politics, International Human Rights Law at the Universities of Sydney, New South Wales, Oxford and Queensland.  He is currently undertaking a PhD in International Humanitarian Law.
 
In 1987, LTCOL Freeman was commissioned as a Captain into the Australian Army Legal Corps.  Over a twenty-three year career LTCOL Freeman has served in a broad range of Headquarter, Training and Operational postings and has deployed overseas on five occasions.  His deployments include East Timor, Iraq and Afghanistan where he variously provided advice to Command on human rights abuses, Rules of Engagement, Targeting and Detainee issues.  In 2001, LTCOL Freeman was one of three delegates chosen by the United Nations Association of Australia to be an International Observer for the first democratic elections ever held in East Timor.
LTCOL Freeman has been very active in professional civilian organisations such as the Red Cross, United Nations Association of Australia, the International Law Association and community works.  For his professional and community works LTCOL Freeman has received Australian and international awards including Fellow of the Royal Geographical Society (1996) and Knight of Honour in the Sovereign Order of St John of Jerusalem (2008).  He received the Chief of Army’s Commendation in 2003 for his work In East Timor and CHOGM. In 2009, he received the Outstanding Alumni award from the QUT Law Faculty and is an Adjunct Associate Professor at the QUT Law and Justice Research Centre.

Thursday 26 August

1.00pm

Lewis Seminar Room
W38
EBL Building

Michelle Lim

PhD candidate (Australian Centre for Agriculture and Law)

“Beyond International Law: Transboundary Biodiversity Conservation in Central Asia and Borneo”

Conservation scientists stress the importance of ecosystem approaches for biodiversity conservation. Further, many sites that merit conservation straddle the 220000km that make up the world’s international land borders. Transboundary cooperation provides a valuable means of combining and coordinating biodiversity conservation efforts at a transnational scale. State practice and academic commentary however lack detailed consideration of the principles of International Law that apply to biodiversity conservation in terrestrial transboundary ecosystems. This seminar examines existing transboundary law and two key biodiversity MEAs (the Convention on Migratory Species (CMS) and the Convention on Biological Diversity (CBD)). From this it is argued that international law is currently inadequate for transboundary biodiversity conservation.

The underdeveloped nature of international law is compounded by the fact that collaboration between adjacent states for transboundary biodiversity conservation occurs on a largely ad-hoc, case-specific basis without adherence to uniform standards or guidelines. Acknowledging this gap, this paper also addresses the governance issues for biodiversity conservation in transboundary mountain ecosystems. To achieve meaningful biodiversity conservation outcomes across international boundaries, integrative legal approaches are required. Such approaches need to incorporate the disciplines of governance and conservation science. Thus, this seminar examines ‘how to make the law work’ across international and disciplinary boundaries. This research combines an extensive review of the Transboundary Protected Area (TBPA) and Transboundary Natural Resource Management (TBNRM) literature with a critical reflection involving two case studies. The first case study is located in the Pamir-Alai Mountains of Central Asia. It involves the adjacent former Soviet nations of Tajikistan and the Kyrgyz Republic. The second occurs in the highlands of Borneo and includes the island’s three countries: Brunei, Indonesia and Malaysia. This seminar elaborates on the particular challenges of each case study and the lessons learnt. From this a set of 11 criteria for effective transboundary biodiversity conservation have been developed. These 11 criteria are presented here. Michelle Lim is a PhD candidate in the Australian Centre for Agriculture and Law. Michelle’s PhD focuses on the legal and institutional requirements for biodiversity conservation across international boundaries. Her research is linked to a United Nations transboundary project in the Pamir Mountains between Tajikistan and Kyrgyzstan. Michelle facilitated a workshop on legal and policy development for project’s national teams while in Tajikistan from April to May 2010. She also participated in meetings of local community leaders and an expert roundtable. This visit supplemented field work conducted in both Kyrgyzstan and Tajikistan in 2009. Michelle has also examined The ‘Heart of Borneo’ transboundary biodiversity conservation project which involves Malaysia, Brunei and Indonesia. Michelle’s interests are in International Environmental Law, Biodiversity Conservation and Sustainable Development. She obtained a double-degree in Science and Law with first-class honours from the University of New England in 2008. Michelle majored in Ecosystem and Natural Resource Management under the Science component of her degree. Her Law honours thesis questioned the adequacy of international law obligations for biodiversity conservation. Michelle gained a Diploma in Expedition Management in 2006 while assisting in Rapid Biodiversity Assessments in the Nguru South Mountain Forests of Tanzania. Further in 2007 Michelle was project manager of the Jane Goodall Institute's Mt. Kilimanjaro Community-Based Environmental Project.

Thursday 18 March

4.00pm

John Dillon Lecture Theatre
W38
EBL Building

Human Rights Symposium

Link to video recordings of the event

Human Rights Conversations – New Trends in Human Rights Protection from a European and Australasian Perspective in the John Dillon Lecture Theatre 4 (LT4), EBL Building. Justice Kirby will participate in this symposium together with Professor Bee Chen Goh (pictured) from Southern Cross University and the Head of School of the School of Law at UNE Professor Jürgen Bröhmer.

Thursday 18 March

2.30 pm

Armidale Bowling Club

The Honourable Michael Kirby

Retired High Court Judge, The Honourable Michael Kirby, visited the School of Law at UNE and spoke about human rights three different events in Armidale on 18 March.

Wednesday 11 November

3:00–4:00 pm, with refreshments to follow

Lewis Seminar Room
W38
EBL Building

Professor Michael Jeffrey, QC

University of Western Sydney

Capture and Storage: Wishful Thinking or a Meaningful Part of the Climate Change Solution.

Abstract:

In the lead-up to the climate change negotiations that are scheduled to take place in Copenhagen towards the end of 2009, pursuant to the United Nations Framework Convention on Climate Change, and in order to reach agreement on a post-Kyoto Protocol international climate change regime, many countries around the globe are considering the options available to them to reduce greenhouse gas (GHG) emissions in a manner that will minimize the cost impacts to economies already battered from the onslaught of the 2008 global financial crisis. In addition to confronting a markedly changed geopolitical landscape including the election of a new administration in the United States under the Democrats and President Barack Obama, the ongoing military confrontation between Hamas and the Israelis in Gaza, an outbreak of terrorist attacks in Mumbai, and Iran drawing ever closer to the possible development of nuclear weapons, the international community is facing what is predicted by some to be the most severe and prolonged economic downturn since the 1930s and the Great Depression. The collapse of the banking systems in several countries Triggered, in part, by the sub-prime mortgage crisis in the United States has inevitably led to a credit crisis around the globe as job layoffs are expected to climb throughout 2009 and into 2010. The impact of these events on the ability of the international community to address the climate change challenges that lie ahead is fraught with uncertainty and the reluctance of the world’s major coal producers to abandon or curtail an industry of vital economic importance in terms of both jobs and exports, has elevated carbon capture and storage (CCS) to increasing levels of importance in the consideration of available energy options. It remains to be seen whether the attention and investment dollars presently committed to the development of CCS technologies around the globe is warranted. This address will endeavour to outline how CCS is currently viewed by Australia and the European Union as part of their respective energy strategies.

3 September

12:00–1:00 PM

JN Lewis Seminar Room
W38
EBL Building

John Mancy

John Mancy is a Sydney-based barrister, part-time law lecturer, founder and managing editor of Legal Bulletin Service.

“Animal Law: Why?”

“Animal Law”. No doubt it’s all very worthy. The Australian Law Reform Commission President Professor David Weisbrot thinks it might be “the next great social justice movement”.

But is “Animal Law” (whatever it might entail?) worthy of “real” legal study? Does it warrant serious consideration for a place on a legal curriculum? After all, there is no “Animal Law” as such. Animal Law issues can crop up in almost any of the traditional legal disciplines. Could an Animal Law course – no matter how well conceived - provide any real benefits to students?

This seminar will look beyond the core content of a typical Animal Law course: History & Ethics; Animal Welfare legislation: interpretation and application, standing and enforcement; Use of animals as food, for clothing, entertainment or scientific experimentation; pets, pests and native wildlife. This seminar will consider whether, by engaging students in the subject matter by virtue of their personal connection to the issues being raised, Animal Law can lead them to a deeper understanding of the nature of the legal system. What constitutes a legal interest, what doesn’t, and who decides these things and by what process?

Instead of dealing with subjects of an effectively abstract nature with which most law students might have had little personal experience, critical Animal Law questions arise in a very familiar and “real life” context, involving ordinary student behaviour (eg what they eat or wear) and the moral choices involved. Thus, students may be forced to confront and critique the way in which the legal system recognizes some interests at the expense of others.

14 July

12:00–1:00 PM

JN Lewis Seminar Room
W38
EBL Building

Professor Don Rothwell

Australian National University, Canberra

“Capital Punishment and Diplomatic Protection: Australia's Experience in Responding to its Citizens in Peril”

Throughout the past decade Australia has been confronted with a number of challenges arising from its citizens being sentenced to death in overseas countries. In some instances, as with a number of Australians held in Vietnam, the Australian government has been successful in requesting that clemency be applied and the death sentence has been commuted. In other instances, such as the case of Van Nguyen in Singapore in 2005, the government's diplomatic efforts have failed. Currently, there are three Australians on death row in Indonesia; all members of the so-called Bali Nine who were arrested for drug trafficking offences in Bali in 2005. Whilst the Australians held in Bali had yet to exhaust their local judicial remedies, there is growing concern as to their plight and what options may ultimately be open to the Australian government to ensure the death penalty is not applied. This seminar will explore these issues, especially the rights and obligations the Australian government may have towards its citizens who are being detained overseas and in circumstances of peril. It will also review the position of successive Australian governments towards the death penalty.

25 June

12:00–1:00 PM

JN Lewis Seminar Room
W38
EBL Building

Associate Professor Angus Corbett

University of Technology, Sydney

“The Missing Dimension of Safety: The Liability of Statutory Authorities for Failing to Prevent Harm Associated with the use of Roads”

Associate Professor Corbett’s paper is concerned with the missing dimension of safety in the regulation of the use of roads. It investigates a number of well known cases that deal with the application of principles determining when statutory authorities will be liable for failing to prevent harm associated with the use of roads. This analysis reveals that it is often rational to limit liability of statutory authorities for failing to prevent harms associated with the use of roads. But it also reveals evidence that these authorities lack the capacity to develop safety systems that are needed to prevent many harms that are associated with the use of roads. The argument developed in this paper is that it is important for courts to acknowledge both the failure of statutory authorities to develop safety systems and the complexity of the task of establishing these safety systems. Acknowledging the complexity of the problem of improving safety will assist in creating a context in which governments, statutory authorities, community organisations and members of the public are able  probe our 'social structure and culture to see how these promote' our vulnerability to damage associated with complex systems such as roads.

19 May

12:00–1:00 PM

JN Lewis Seminar Room
W38
EBL Building

Dr Jonathan Crowe

Senior Lecturer, University of Queensland

“The Priority Of Contextual Meaning: A Theory of Judicial Interpretation”

Dr Crowe will argue that, in interpreting legal texts, judges should seek to give effect to their contextual meaning: the meaning they hold when considered in the full light of their broader social and moral context. He will argue first that, as a descriptive matter, contextual meaning is necessarily prior to any more restricted form of textual interpretation; that is, the contextual meaning of a legal text is its ordinary meaning. He will then advance two arguments for the proposition that, other things being equal, judicial interpretation of legal texts ought to follow their ordinary (or contextual) meaning. The final parts of his paper explore the nature and limitations of the contextualist model of judicial practice. The possibility of conflicts between contextual factors at different levels of abstraction makes it necessary to distinguish between narrow and wide versions of the contextualist methodology. He argues that wide contextualism offers the best overall account of judicial practice.

19 March

12:00–1:00 PM

JN Lewis Seminar Room
W38
EBL Building

   Professor Dr Dieter Dörr 

Chair in Public Law, International and European Law, Media Law, Johannes Gutenberg

University Mainz and Director, Mainz Media Institute

“The Tension between Ensuring and Protecting Personal Reputation and Free Speech: Comparative Perspectives - An Overview of the German Constitutional Court’s position on Defamation and Hate Speech under consideration of Art. 10 European Convention on Human Rights.”