2016 Kirby Seminar List

Audio Files

A copy of the audio files at available at the 2016 Kirby Seminar Series Echo Centre.

Seminar Information

Professor David Rolph - Towards a National, Uniform Defamation Law: A Brief History - 20 October

For most of its history, Australia has eight, substantively different defamation jurisdictions. With a relatively small population and the rise of national media, such legal diversity became increasingly indefensible. The goal of achieving national, uniform defamation laws was one pursued by different political and legal actors over the course of four decades. This paper outlines the history of the attempts to enact national, uniform defamation legislation. In particular, it focuses on the issues in those attempts which presented the greatest obstacles to reform. This paper then examines the circumstances leading up to the introduction of the national, uniform defamation laws, analysing how the resulting legislation did (or did not) address those obstacles. This paper argues that the task of meaningful defamation law reform still lies ahead and that this task will benefit from being informed by an understanding of previous, failed attempts at reform.

Professor Mary Crock - Making Every Life Count: International Law and The Protection of Persons with Disabilities in Displacement - 5 October

Armed conflicts and natural disasters both cause impairments and pose acute challenges for persons with disabilities. Yet for a variety of reasons, these people are too often neglected or ignored in disaster planning and management. Former UN High Commissioner for Refugees, Antonio Guterres, has described refugees with disabilities as the ‘forgotten refugees’.

Professor Mary Crock presents the findings of a three-year, six-country study which sought to shed light on the experiences of persons with disabilities living in displacement, reflecting on the scope for international law to influence access to human rights in these settings.

Lachlan Mead - The Australian Style of Discipline: Military Justice and the 2nd AIF between 1939 and 1943 - 22 September

Observers of the Second Australian Imperial Force (2nd AIF) have often asserted that the Force was subject to an ‘Australian style of discipline’[1] that was necessary to accommodate the distinctive qualities of individualism and informality which are understood to characterise the archetypal Australian soldier in accordance with our ‘Digger’ myth. Australia, like the other dominions, derived its military justice system from the Army Act of the United Kingdom; but, unlike any other dominion, Australia insisted from the outset of Federation that Australian forces would be subject to Australian military justice.

By 1940, the Australian military justice framework that the 2nd AIF took with it to the Middle East had evolved to become self-sustaining and distinct from the British framework. The reason for this was not so much that the Army had to accommodate soldiers who did not like to salute or who did not comport themselves smartly in barracks, but rather to accommodate public expectations as to how a volunteer citizen militia should be treated; and, more importantly, to reinforce Australian control over Australian forces in Imperial coalitions under British command.

Nevertheless, while the 2nd AIF deployed to the Middle East in 1940 with an evolved and Australian military justice framework, it soon discovered that its military justice institutions were not up to the task of dealing with an unanticipated deluge of offending, most commonly involving unlawful absences and desertions, theft of civilian and military property, and assaults on military and civilian persons; but also extending to drug trafficking and use, sexual assault and even murder. Command was compelled to rapidly develop and professionalise the initially modest capabilities of the Force’s military police, courts martial, and detention barracks, so that by 1943 the 2nd AIF’s military justice institutions had became a model for the broader Australian Military Forces following its disengagement from the Middle East theatre and return to Australia.

Associate Professor Dale Stephens - The Increasing Militarization of Outer Space: Legal and Normative Responses - 15 September

It is becoming abundantly clear that the militarization of space is inevitable. New capabilities and weapons systems are being developed that will apply to outer space operations. Simultaneously military doctrine is being developed that will shape the manner in which such military operations will occur. Despite these developments, there is no clarity regarding how and in what manner international law might apply in those attenuated circumstances to constrain and regulate any developing hostilities or armed conflict.  The global community is currently in a precarious place regarding this emerging reality.  

This Presentation will examine the growing phenomenon of the increasing use of space for military activity and will canvass how international law may apply to condition behavior in a time of armed conflict. It will also provide a brief review of informal law making processes that are underway to influence thinking in this area and how such normative responses might fare in addressing this phenomenon.

Professor Ben Boer - The Environmental Rule of Law and the Sustainable Development Goals - 5 August

The Environmental Rule of Law and the Sustainable Development Goals

The concept of the ‘environmental rule of law’ has been growing in importance in recent years. It is based on the long-term acceptance of the centrality of the rule of law in the achievement of sustainable development, which was initially recognised in Agenda 21 of 1992, and, since Rio + 12 Conference, is now becoming accepted in many countries.  This paper will briefly examine the development of the ‘environmental rule of law’, and analyze some of the new principles that have recently emerged as a part of it.  These include: the principle of in dubio pro natura (when in doubt, decide for nature), the principle of non-regression and the principle of progression.

The paper will argue that the principles and concepts associated with the ‘environmental rule of law’ should be closely aligned with and underpin the implementation of the newly minted ‘Sustainable Development Goals’ (SDGs) and associated Targets that are embodied in the United Nations ‘Transforming our World: the 2030 Agenda for Sustainable Development’.  Several of the SDGs will be used as examples. The implications of such an alignment call for a comprehensive examination of environmental and natural resources laws at national, regional and international levels, with a view to generating more principled, integrated, consistent and robust frameworks for environmental and natural resources management. Examples will be drawn from various jurisdictions, with a focus on China and its recently developed policy framework of ‘ecological civilization’.

Professor Ban Saul - Human Rights and Ungoverned Spaces: What Do “Terrorists” Make of “Law”? - 18 May
Professor Paul Rishworth QC - Courts or Parliament? The anatomy of public interest litigation over death and dying - 10 May
Professor Christine Parker and Dr Simon Kerr - Dangerous Climate Change – A Musical Response and an Inquiry into Academic-Artistic Co-production of Social Change - 5 May
Is there more to academic communication and policy impact than scholarly journal articles, books, opinion pieces and reports? Is it possible for arts and academia to work together to address the biggest challenges of our time? In the last twelve months Christine Parker (as manager and intellectual) and Simon Kerr (as musician, artist and activist) have worked together to plan, market and deliver a musical multimedia show addressing climate change. Their show uses stunning images, superb original music and captivating narrative to speak honestly about the science, provide hope for the future, and inspire new and positive ways to think and feel about the climate challenge. In this musical seminar, they will demonstrate the potential for collaboration and co-production between the arts and academia for translating academic research into social and policy change. The presentation will feature Simon Kerr on guitars and vocals performing excerpts from their show, Music for A Warming World together with a stunning visual display and reflection about the role of music and art in communicating science, engaging emotionally with the challenge of issues like climate change, prompting discursive change that can support legal and political and social change, and building community around new social imaginaries.
Professor Bronwen Morgan - Where Activism Meets Enterprise: The Socio-Legal Dimensions of Social and Environmental Innovation in the New Economy - 26 April

This paper explores the socio-legal dimensions of the growth of grass-roots innovations in everyday enterprises focused on fulfilling basic material needs, ranging from food, transport and energy to reuse/recycle and co-working initiatives. These initiatives often seek to weave social and ecological values into the heart of exchange rather than bolting them onto the edifice of commercial exchange as an afterthought.

After a brief overview of the scope and theoretical basis of the research project from which this paper draws, I will sketch the socio-legal dimensions of this meeting between activism and enterprise through four lens: 1) patterns in individual biographies of leaders and founders; 2) organisational choices and forms; 3) public and collective regulation; and 4) the salience of place, including shared infrastructure, land and the city as a commons.

I will draw on the fieldwork on food initiatives to illustrate a more general argument about a) ways in which the legal field is an important site of reimagining the building blocks of property, contracts and capital (land, relationality and resources); and b) the importance of emerging forms of 'cause lawyering for the social economy'.

Professor Jane Kelsey - Options and Strategies to Rescue Human Rights from Mega-Regional Economic Treaties: Lessons from Tobacco, Meds and Indigenous Rights - 18 April
The rise of mega-regional economic integration agreements on a scale never seen before poses a huge challenge to human rights communities. The tensions between binding and enforceable rules that advance commercial imperatives and ‘soft’ human rights law at the domestic and international levels are increasingly well documented, but the strategies that seek to rebalance them have been pragmatic, ad hoc and largely ineffective. This seminar will reflect on three examples where there has been some limited success – tobacco, affordable medicines, and indigenous rights - and assess the advances and the limitations on what they have achieved, and what this might portend for options and strategies in the future.
Dr Jennifer Nielsen - Challenging racism: breaching the formality of anti-discrimination jurisprudence - 15 March
Though we never actually see ‘race’, our ‘ideas about race’ attribute social meaning (Hollinsworth 2006) so that the experience of ‘race’ can be real and lethal (Pettman, 1992). Legal protections, such as the Racial Discrimination Act 1975 (Cth), offer individuals redress through a formally equal entitlement to be protected from (some) forms of racial harm.
However, our experiences of ‘race’ are not uniform. For instance, consultations that informed the Australian Human Rights Commission’s 2012 National Anti-Racism Strategy indicated the regularity and severity of racist incidents against Aboriginal and Torres Strait Islander peoples and those from a non-white ‘migrant’ background (June 2012), while the ‘white’ experience of race tends to be shaped by ‘normativity rather than marginality, and privilege rather than disadvantage’ (Frankenberg, 1993; see also Watson, 2005; Moreton-Robinson, 2012). But as Australian anti-discrimination jurisprudence reads the RDA and other comparable laws as creating formally equal entitlements, it fails to account for the complexity of racial experience; thus, the jurisprudence works from a limited understanding of the harms produced by racism and racial hatred.
This paper explores these concerns, which are illustrated by McLeod v Power (2003), a complaint made by a white prison guard (McLeod) against an Aboriginal woman (Power) under the RDA’s racial hatred provisions. Though the complaint was rightly (in my view) dismissed, I remain troubled by the Magistrates’ reasoning and finding that Ms Power’s use of the term ‘white’ to describe Mr McLeod did not refer to a racial identity. Though he acknowledged that the incident between Ms Power and Mr McLeod was ‘essentially infused by considerations of race and colour’ (at [69]), the Magistrate’s analysis explored only some of the racial characteristics of these ‘considerations’, and thus elided the complexity of racial experience contained within Ms Power’s and Mr McLeod’s exchange.
Dr Rakhyun E. Kim - The Nexus between International Law and the Sustainable Development Goals - 7 March
The set of seventeen Sustainable Development Goals (SDGs) has emerged without a clear relationship between the individual goals and targets. The absence of a rule defining how the goals and targets are related to each other will raise a number of implementation challenges. In particular, the SDGs by themselves will provide little guidance for managing the competing global priorities. This paper explores the extent to and ways in which the use of international law could address the limitation. It maps the latent link between international law and the SDGs by identifying treaties and other formal institutions that directly contribute to the SDG targets. The study reveals the sustainable development model that is built into international law, and what is required for SDG governance to overcome the limits of that model. It argues that the concept of sustainable development in international law has an important role to play as the principle of reconciliation and an overarching goal for the SDGs. Findings have implications for strengthening a mutually supportive relationship between international law and the SDGs.
Keith Mason AC QC - Private Law Taxonomy for Law Teachers - 29 February
This will be an interactive seminar designed to promote discussion about the impact of taxonomy in the teaching and development of private law in Australia; and to assess the claims made for and against taxonomy study. Keith Mason will also outline the course he teaches from time to time at UNSW on this subject.
Dr Indrajit Dube - Statutory Corporate Social Responsibility - Outcome of Decolonized Corporate Law - 4 February

Decolonisation of Company Law in India accelerated with economic transition. The present Company Act 2013 has been de-rooted largely from its colonial origin. Post Colonial Company Law 1956 [CA 2015] was largely a replica of British Law, which sustained for 56 years with 24 amendments. With the shift in country’s economic model in 1991, CA 1956 was felt to be inadequate to address the growing local needs.

Colonial Company Law Philosophy was based on Shareholder Primacy. But Government of Independent India emphasised on role of companies in societal building. So, India witnessed massive nationalisation of companies with the objective that they will contribute to the economic and social growth in postcolonial period. In this process, the Government became the largest shareholder. This model was short-lived even though it proved to be successful to a certain extent.

This model was also somewhat counter-productive. It contributed to inefficacy in Model of Public Sector Undertaking, slow growth in economy, heavy balance of payment deficit and sinking balance in foreign currency. This led the Government of India to adopt a New Economic Policy.

The model of corporate business, India wanted to develop was largely based on Gandhi’s concept of trusteeship. This demanded that they manage the assets in the best possible way, take part of the profits to sustain themselves and dedicate the remaining profits for the upliftment of society. To that extent, the Corporate philosophy forwarded by CA 1956 was not in synchrony with the Gandhian philosophy of trusteeship.

Many commentators have opined that there is difference between India and Bharat. There are large underprivileged sections in India, even though a number of millionaires and billionaires feature in the Forbes list of richest people in the world.

India thought, through the development of corporate economy, it could contemporaneously uplift its social Institutions. And in doing that, corporate need to participate significantly in the process. So, after a long debate within and outside Parliament, Indian adopted Statutory Corporate Social Responsibility (CSR), where a particular class of companies needs to spend two percent of their profit in CSR of their choice.

India made a remarkable departure in its corporate philosophy from shareholder primacy to stakeholder primacy.

Dr. Marcia Dieguez Leuzinger - The investigation of Aboriginal co-management arrangements for protected areas - 2 February
The creation in Brazil of environment protected areas (IUCN I and II categories), or ‘conservation units’ on public lands which are inhabited by traditional populations involves a serious conflict between environmental conservation and the protection of these groups’ cultural rights. This occurs because, in accordance with the SNUC Act 2000 (Law nº 9985), the permanent presence of human populations within national parks, ecological stations and biological reserves is prohibited. This causes, in the case of traditional peoples, transfer to a place which is agreed by the parties. Due to the strong sense of territoriality, the transfer of these groups to another area means, in general, the group's disintegration and the loss of cultural heritage.
The adoption of ‘joint management’ models between government agencies and traditional groups, as used in Australia, is a possible solution to the problem. Different types of joint management, also called co-management, are used in some Australian protected areas. Each arrangement has peculiarities, and can involve either strong or weak agreements between official agencies and Aboriginal communities, in terms of the rights and interests of the Aboriginal land users. Memoranda of Understanding for Joint Management - MoU, Indigenous Land Use Agreements - ILUAs or Lease Back Agreements are three of the several types of joint management agreements in various Australian States and Territories. The implementation of joint management does however encounter difficulties, sometimes including mistrust by official conservation agencies of traditional knowledge and, consequently, of the ability of traditional peoples to manage protected areas and natural resources. When co-management is successful, it involves a trade-off between the rights of traditional communities and the interests of the official environmental agencies. Each stakeholder gives up a portion of his powers or interests in favor of finding a solution to potential conflicts over the area. Therefore, although there are problems in relation to joint management, many benefits can also be identified. Joint management, practiced in different forms, could be applied in Brazil to help solve conflicts between traditional populations living in public conservation units.
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.