2015 Kirby Seminars

Audio Files

A copy of the recordings are available at the Kirby Seminar Series 2015 Echo Centre.

2015 Seminar Abstracts

Professor Shad Faruqui - Human Rights: Reflections of the East and Perceptions of the West - 18 December

"Human Rights: Reflections of the East and Perceptions of the West" submits that most advocates of human rights in Asia accept the imperative of some core human rights values but find it impossible to deny the influence of religion, culture, economy and history on their perceptions of what is the good and worthwhile life. There is genuine disquiet about equating everything "Western" with what is universal and dismissing concerns of the peoples of Asia and Africa as purely parochial. There is in many Asian minds a genuine attempt to resist the sweep of hegemonic Western values. While it is conceded that "Asian values" are often abused by authoritarian governments to douse the flames of freedom, it is also asserted that Western espousal of human rights is often used to promote a narrow Westcentric view of human civilisation and to secure unfair advantages for Europe and America in the post cold war era.

Tamir Boldbaatar - Product Liability under Mongolian Law (comparative study) - 24 September
The main aim of this presentation is to provide an overview of the current state of the law in Mongolia with regard to products liability.

The first part of this paper discusses about Mongolian legal system, the influence of German law on Mongolian Civil Law, and the reform of the Civil Code. Mongolian Civil Code is a product of the convergence of certain aspects of the Russian and German Civil Codes, which were both highly influential, but the new Civil Code is generally considered to be a reflection of German law. Under German influence, all doctrines of the law of obligations and contractual liability in Mongolian civil law changed in conceptual terms. The development of consumer protection started in the early 1990s. In the 2000s, the country began to be influenced by consumer issues occurring in Mongolia. The focus of the country’s consumer policy switched from consumer protection to the realization of consumer sovereignty.

The second part of this paper explores the basic rules governing liability for defective products. In Mongolia, products liability is usually approached from the perspective of tort law. Contract law could in principle invoked. Contractual liability for defective products, in principle, requires that the seller was at fault as to the delivery of a defective product. Product liability in Mongolia is primarily based in tort law.

Mongolia is currently at a stage in which it needs to consider what measures and policies are appropriate in order to overcome the problems of consumer protection legislation by investigating its own situation. Especially, Mongolia has many problems with manufacturing and selling pharmaceutical products. This presentation will explore the current problems in pharmaceutical product liability in Mongolia.
Dr Kylie Burns - Judicial Use of ‘Common Sense’ and Judicial Cognition: Nudging Judging? - 30 June

Judges are like other human beings. They use their common sense, their ‘common understanding’, their ‘contemporary knowledge’ of society and the ‘expectations of the community’, as part of their decision-making. The role of ‘common sense’ and ‘common understanding’ in judicial reasoning is well recognised. Many legal principles require judicial application of these forms of knowledge- the reasonable man (person?) in tort law; the extent of self- control of the ordinary ‘person’ when provoked in criminal law; the evaluation of the credit-worthiness of a witness late to complain of sexual abuse; the meaning of ‘sex’ in birth registration legislation; the ‘best interest’ of the child in family law. However, like the rest of us, judges are human decision-makers unconsciously impacted by cognitive limitations. Their factual assumptions may be influenced by their own cultural worldviews. Judicial use of ‘common sense’ can be the vehicle through which error, and discrimination enters the law. This paper examines how judges use ‘common sense’ in their judicial reasoning, how judging might be seen as a cognitive process with the consequent potential impact of heuristics, biases and cognitive illusions on judicial construction of ‘common sense’, and discusses whether judges can be ‘nudged’ to overcome the limitations of ‘common sense’ reasoning. The paper argues that while ‘common sense’ and ‘common understandings’ will always be an inevitable part of judicial decision-making (as they are for human decision-making), more attention is required to overcome the limitations of ‘common sense’ judging.

Dr Eric Descheemaeker - The Australian Origins of the English Defence of Responsible Publication in the Law of Defamation - 26 June
Possibly the most significant development in the law of defamation over the last quarter of a century, across the whole common-law world, has been the recognition of a defence of responsible publication on matter of public interest. In England it was carved out in the case of Reynolds v Times Newspapers Ltd in 1998 and then put on a statutory footing in the Defamation Act 2013 (UK). Besides its practical importance in terms of protecting the freedom of the press, its theoretical significance lies primarily in the fact that it signals the taking over by an essentially negligence standard of large swathes of the law of defamation: while dominant in tort law generally, negligence had historically been almost completely alien to a cause of action controlled by malice.
This presentation will explore the roots of the idea that a defendant should escape liability if he reasonably believed the defamatory matter to be true. These can be traced to developments that occurred in New South Wales in the early 20th century, and would ultimately lead to a worldwide shift of paradigm in the law of defamation a century later.
Maria Marquès i Banqué - The protection of the environment through Criminal Law in the EU - 15 June

The concern about the inadequacy of the existing systems of penalties in a scenario of increasing offences with extended effects beyond the borders of the States in which the offences were committed, led the European Union to pass a Directive in 2008 that obliged Member States to provide for criminal penalties in their national legislation in respect of serious infringements of provisions of European Law on the protection of the environment.

The seminar aims to expose the main contents of the Directive to show those areas that the EU considers that deserve more attention, as well as to analyze the overall capability of the Criminal Law to be effective in this field, taking into consideration the specific nature of the Directives in the EU Law and, from the Spanish experience, the limits that Criminal Law faces in this area when it comes to apply the law in courts.

Associate Professor Pauline Ridge - Participatory Liability and Finn’s ‘Australian Equity’ - 29 May

The Hon. Paul Finn was a Professor of Law at the Australian National University and then served on the Federal Court of Australia from 1995 to 2012. His academic and judicial work ranges across private law and public law, but he is particularly renowned for his understanding of equitable principle and equitable judicial method. The first objective of this paper is to identify the distinctive features denoting excellence – ‘hallmarks’ – of Australian equity (principle and method) that Paul Finn has espoused in his extra-judicial writing.

Equitable participatory liability has not yet been comprehensively considered by the High Court of Australia. The law is commonly formulated in terms of the ‘two limbs of Barnes v Addy’ (knowing receipt of misappropriated trust property and knowing assistance in a dishonest and fraudulent breach of trust), but this formulation fails to explain the diverse circumstances in which liability might apply and the principles that should guide the determination of liability. The second objective of this paper is to consider and critically evaluate the embodiment of Finn’s hallmarks of Australian equity in the Federal Court’s decision in Grimaldi v Chameleon Mining NL (No 2) [2012] FCAFC 6 (Finn, Stone and Perram JJ) concerning equitable participatory liability.

The third objective of the paper is to speculate upon how the High Court might embrace Finn’s vision of ‘Australian equity’ in any future case concerning the development of equitable participatory liability.

Professor Warren Swain - Lord Mansfield: Man and Myth - 8 May
More than two hundred years after his death, Lord Mansfield continues to fascinate. Ever since John Holliday produced his A Life of William Late Earl of Mansfield in 1797, a work described by Lord Campbell of all people as, ‘the worst specimen of biography to be found in any language’, a great deal has been written about him. The most recent addition to the genre appeared in just 2013. Traditional accounts of Lord Mansfield stress his role in founding commercial law, his use of equity and his willingness to depart from precedent. This caricature of Lord Mansfield’s jurisprudence contains a kernel of truth. It is amounts to a serious oversimplification. This seminar will investigate some of these established myths and consider some counter examples in order to create a more nuanced account of the legal life of the Chief Justice.
Dr Rick Sarre - The Top 10 Initiatives to Reduce Crime and Disorder in Australia Today - 23 April
For the most part, government 'justice' promises are narrowly focused, centred on lifting levels of intensive and intrusive policing ("we will put more police on the streets with zero tolerance for crime"), meting out heavier sentences ("we will rack 'em and stack 'em") and placing less discretion in the hands of those charged with the responsibility of delivering sentences ("we promise mandatory sentencing for those convicted of certain offences"). In academic parlance, this has become known as the 'law and order' response.

At the same time, criminological researchers the world over are producing some excellent recommendations for reform. Some are implemented and others are ignored. Some work well and others struggle to get results. What is working? What could work better? What have we not tried, but should? Drawing on the evidence from recent research, this talk will count down and present the presenter's 'top ten' most affordable and workable law reform and justice initiatives that promise to reduce crime, violence and disorder in Australian society today. Come and find out what he has selected. Come and see whether these initiatives are the sorts of things that governments tout in their quest to establish their crime prevention credentials.
Professor Ian Freckelton QC - ‘Fitness to Stand Trial: From Ezra Pound to David Eastman’ - 13 April
The Kirby Lecture will scrutinise the dilemmas in evaluating capacity to participate in the criminal justice process via findings of fitness to stand trial. It will scrutinise the famous case of Ezra Pound in the aftermath of the Second World War, the decisions of the Extraordinary Chambers of the Courts of Cambodia in relation to Ieng Thirith, the case of Josep Nahak in East Timor, and the saga involving David Eastman over the past two decades in Australia. In so doing it will reflect on the disabilities which can detract in a meaningful sense from the capacity of persons to engage as accused persons and the challenges for the legal system in making decisions which impact profoundly upon those who go to trial and those who may never go to trial.
Professor Dr. Makoto IBUSUKI - Winny Case: A tragic story about remarkable P2P software and criminal responsibility of software programmer - March 20

There is always some kind of tension between technology and law.  This lecture focuses on specific P2P (peer to peer) software and introduces a trial, the so called "Winny case", of a programmer who created the program.  This software was free of charge and it became very popular with the Japanese online community.  In 2004, the programmer was indicted as abetting infringement of copyright that was violated by a user, and the trial court found him guilty.

When a programmer develops remarkable software and acquires millions of users and one of them violates law(s) by using it, what legal responsibility, if any, should the programmer have?  What factors should the court consider? The legal responsibility of computer programmers is an important issue in any society.  This lecture deals with this topic by referring to the recent Japanese Supreme Court decision.

Professor Barbara Cosens - Resilience of Social-Ecological Systems in the Anthropocene: The Adaptive Water Governance Project and the Columbia River Basin - 20 February

Legal systems, while establishing boundaries and fostering economic and social goals, are nevertheless inherently adaptable and responsive to new challenges. In the context of climate change, law provides a pragmatic perspective on how we might alter water governance to better prepare for accelerated rates of change and surprise as the water-related impacts of climate change unfold. The Adaptive Water Governance Project (AWG Project) is a synthesis project with the National Socio-Environmental Synthesis Center under funding from the (U.S.) National Science Foundation. The AWG Project explores the role of law in achieving water governance that is capable of facilitating management, adaptation and transformation in the face of climate change. It builds on the work of resilience scholars, proponents of adaptive governance and climate scientists, by asking four questions concerning the role of law in adaptive governance.

  1. What is the role of law in setting boundaries by identifying approaching thresholds or tipping points in a resource system? 
  2. What is the role of law in creating either a disturbance or window of opportunity in which adaptive forms of governance may emerge?
  3. What is the role of law in presenting barriers to adaptive forms of governance? 
  4. What is the role of law in actively facilitating adaptive forms of governance?

This talk will focus on the application of the project to the Columbia River Basin shared by the United States and Canada. The project is taking place in the face of a key window of opportunity for change in the basin brought about by expiration of certain provisions of a treaty between the United States and Canada, and a review process underway in both countries. The intersection of this window with climate change places the basin in a unique position to consider more adaptive governance mechanisms in its framework for transboundary management for the next century.