Kirby Seminars - archived 2011-2012

25 September

"Legal regulation of genital ‘normalising’ surgery on intersex children"

Aileen Kennedy

'Intersex’ is an umbrella term used to describe a range of conditions whereby a person is born with biological characteristics (chromosomes, gonads, genitals) that are a mixture of male and female. An intersex person may have the biological attributes of both sexes or lack some of the biological attributes considered necessary to be defined as one or the other sex. A percentage of intersex people are born with genitals which are ‘ambiguous’ – which cannot be clearly assigned as male or female. From the 1950s until the mid 1990s, the medical treatment protocol for intersex which produced ambiguous genitalia was to perform surgery before the child was 2 years old, in order to make the genitals appear more unambiguously male or female. Current treatment protocols continue to recommend genital ‘normalising’ surgery, though with less enthusiasm and more caution. This paper considers the legal regulation of such treatment, and argues the possibility that these surgeries are being performed without appropriate legal consent or authority.

11 May

"Just Healing"

Patrick Shepherdson

Click for powerpoint slides.

Patrick Shepherdson has an extensive background in the NSW criminal justice system, most recently as Assistant Director, Crime Prevention with the NSW Department of Attorney General and Justice. In addition to management of the NSW legislatively-based crime prevention planning and funding program, Patrick established and managed a number of Aboriginal crime prevention initiatives, including the $1 million statewide Aboriginal Community (‘night’) Patrols program. Since establishing a consultancy in late 2010, Patrick has developed a number of crime prevention strategies in urban, regional and remote communities. He has worked on a number of national projects with Urbis research including research on legal support afforded to Native Title groups, focus testing of a national violence-prevention media campaign targeting young Indigenous people and a study exploring the feasibility of establishing a national training institute for the Aboriginal and Torres Strait Islander Healing Foundation. The paper ‘Just Healing’ is informed by research undertaken towards completion of a Masters Degree in Criminology at the University of Sydney.

His paper is about how a growing body of research recognises the relationship between past Australian government policy and practice and the drastic over-representation of Aboriginal people in the criminal justice system. Similarly, numerous studies informed by consultation with Aboriginal people identify the relationship between colonisation, dispossession and child removal policies and epidemic levels of violence, abuse and addiction. Given these reports all suggest a need for healing as a priority to address the grief and trauma that continues to lead Aboriginal people into the criminal justice system, recent evaluations of Indigenous sentencing courts were considered to explore whether they facilitate or support healing. Analysis of the evaluations of two Australian Indigenous sentencing courts suggests that while they have had no discernible impact on Aboriginal re-offending rates, they may in fact support community and individual healing in some regards. However it also suggests the programs’ potential will remain unrealised unless they look beyond the administration of justice and better acknowledge the relationship between Aboriginal social and emotional wellbeing and over-representation in the criminal justice system.

4 May

"The Integrative Law Movement"

J Kim Wright

Click for powerpoint slides.

A graduate of the University of Florida Levin College of Law, she has been licensed as a lawyer since 1989. She has been licensed in North Carolina since 1994.

Kim is a leader of the integrative law movement that is focused on collaboration, problem-solving, peace-making and healing conflict. In November of 2009, the American Bar Association named Kim as one of the 50 Legal Rebels who are “finding new ways to practice law, represent their clients, adjudicate cases and train the next generation of lawyers.” The ABA also invited Kim to write a book and in April, 2010, Lawyers as Peacemakers, Practicing Holistic, Problem-Solving Law was published. It was named one of the ABA's Flagship Series and was on the ABA best-seller list for seven months.

What if lawyers were peacemakers, problem-solvers and healers of conflicts? What if the purpose of law is to design, manage and heal relationships? If the legal system reflected the shift in societal values, what would it look like? How can lawyers create satisfying careers that allow them to make a difference, earn a living and have a satisfying life?

These are some of the questions of the Integrative Law Movement, a shift in the legal paradigm.

The integrative law movement contains many models and practices. Some practices, such as peacemaking circles, are traditional, ancient models which originated among tribal societies. Others, like problem-solving courts, are more recent developments. At times, seemingly identical new models have arisen in different geographic areas. Different names developed, some of which are still used in making reference to the movement. Integrative law has been or is sometimes called: comprehensive law, renaissance law, transformational law, visionary law, conscious lawyering, holistic law or holistic justice, creative lawyering, and relationship based lawyering.

Some people may also have heard of movement by the names of the many models and practice perspectives which fall under the integrative law umbrella including: collaborative law, restorative justice, transformative mediation, creative problem-solving in law, lawyers as peacemakers, lawyers as healers (law as a healing profession), sharing law, social-entrepreneurship law, preventive law, community lawyering, problem-solving and collaborative courts, including drug courts, veteran’s courts, mental health courts.

By whatever name, the integrative law movement represents a shift away from the adversarial, analytical legal system to a system that takes the best values and lessons of the current system and adds human values and emotions, applied positive psychology, and a broader view of the stakeholders in the system. Integrative law recognizes that legal problems and controversies do not arise in a vacuum but are part of complex, inter-related systems.

27 April

"Law and the struggle against facts"

John R Morss, Deakin Law School, Victoria

The profession of law is focused on a respect for facts even or especially when the facts are unwelcome to a client or to an advocate. The academic discipline of law also finds itself dealing with what it considers to be facts. Drawing on a range of somewhat disparate but overlapping examples and contexts, my presentation seeks to raise questions about our ambivalent approach to facts. A number of the examples relate directly or indirectly to international law, where the facts encountered include geopolitical and historical facts. Other areas discussed include aspects of legal philosophy.

13 April

"Automatic disqualification for financial interest: was Kirby right after all?"

Professor John Tarrant, University of Western Australia

When the courts initially developed the law in relation to disqualification of judges for bias they did so by focusing on circumstances where a judge had a financial interest in the case. The courts appeared to adopt a strict rule that where a judge had an interest in the case the judge was automatically disqualified. However, in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 a majority of the High Court of Australia decided that an automatic disqualification rule had in fact never been adopted by the courts and that any disqualification for interest should be determined on the basis of whether or not an apprehension of bias arose from the interest held. Kirby J was critical of the majority accusing them of effectively rewriting history. A number of important Australian and English cases were not drawn to the attention of the High Court in Ebner and these cases strongly support the position adopted by Kirby J. The presentation will outline the decision in Ebner and the importance of the cases not considered by the High Court.

30 March

"Ombudsman: Champion of the people?"

Allan Asher

Allan Asher, former Commonwealth Ombudsman, will be talking about developments in public administration and accountability and in particular the ethical challenges and dilemmas confronting public servants who bring strong social justice commitments to their role.

Allan Asher is outspoken consumer advocate and campaigner for nearly 40 years. He was Deputy Chair of the Australian Competition and Consumer Commission 1988-2000. At the end of his term the ACCC was engaged in some 53 civil and criminal prosecutions in the Federal Court of Australia. He had a special concern for e-commerce and global information technology matters. From 2001 to 2010 he worked in a range of senior positions as a consumer advocate in the UK and Australia including as CEO of Energy Watch UK. He was Commonwealth Ombudsman from 2010 – 2011. On October 2011 Asher resigned after it was revealed that he provided questions for Greens Senator Sarah Hanson-Young to ask him during a Senate Committee hearing in May. The questions were designed to highlight inadequate funding for his office and problems with immigration detention centres.

7 October

"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.