2018 Kirby Seminar Series

Seminar Recordings

A copy of the Seminar recordings are available at the 2018 Kirby Seminar Series Echo Centre.


Seminar Abstracts

Ms Sharon Payne presents

Ms Sharon Payne

Sharon Payne (LLB Dip Neuroscience) is a senior woman of the Wunnamutta clan of the Badjula, the traditional owners of K'gari (Fraser Island). Her professional background includes the Royal Commission into Aboriginal Deaths in Custody, CEO/Director of Aboriginal Legal Services, the establishment of circle sentencing courts in three jurisdictions and numerous other positions, initiatives and government appointments. Sharon was the first Aboriginal student at the University of Queensland in the 1970s and returned to tertiary study completing an LLB (ANU, 1999) and a Diploma of Neuroscience in 2014, as well as other qualifications in cultural studies and leadership. Along with her personal experiences these provide a unique perspective from which to examine the issue of Aboriginal people and the criminal law system.

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Aboriginal Until Proven Innocent

The standard discourse about the Law (the ‘Rule Of Law’ if not the actual laws themselves) tends to be that it (the Law] is applied objectively using the executive or thinking parts of the brain. The whole legal system is founded on the notion that the law is impartial, that cases are won or lost on an evidentiary basis using careful reasoning and well developed precedents. Neuroscience however has proven that our brains are social organs evolved over thousands of generations to enable us to live in small groups for the best chance of survival. As Benforado writes, ‘even if the system operated exactly as it was designed to, we would still end up with wrongful convictions, trampled rights, and unequal treatment. This is because the roots of injustice lie not inside the dark hearts of racist police officers or dishonest prosecutors, but within the minds of each and every one of us.’ (‘Unfair: The New Science of Criminal Injustice’ Crown Publishers NY 2015).

The title of this presentation refers to the way our brains process information/make decisions using different parts when dealing with one’s ‘in-group’ or the ‘out-group’; and the need for the latter to prove themselves innocent rather the onus on the prosecution to prove guilt. My contention is that the unconscious workings of the brain have far greater influence on our behaviours, actions and decisions than ‘traditional’ thinking would have us believe about the way laws are interpreted and applied to certain groups,. This then provides an exegesis for the over-representation of Aboriginal people in the criminal justice system. By focusing the [neuroscience] lens on the decision-makers and structures that support the high incarceration rates, I will explore how the emotional brain highjacks thinking processes with the result that when it comes to dispensing justice, the traditional owners of this country are effectively 'Aboriginal until proven innocent'.

Prof Alison Duxbury

Professor Alison Duxbury

Alison Duxbury is a Professor at Melbourne Law School and a member of the International Advisory Commission of the Commonwealth Human Rights Initiative. She is also a member of the Council of the Australian and New Zealand Society of International Law and the Executive Council of the Asian Society of International Law. Her publications include The Participation of States in International Organisations: The Role of Human Rights and Democracy (CUP, 2011) and a co-edited book, Military Justice in the Modern Age (CUP, 2016). She is currently a member of the ASEAN Integration through Law Project, coordinated through the National University of Singapore, and is working on a book on ASEAN and human rights with Dr Tan Hsien-Li.

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The Role of Human Rights in the ASEAN Community

In 2007 the Association of Southeast Asian Nations (ASEAN) adopted a formal charter setting out the principles and objectives of the organisation. For the first time, ASEAN included a binding legal obligation to uphold human rights and democracy in a constituent instrument. Following the adoption of the ASEAN Charter, the organisation established human rights institutions, notably the ASEAN Intergovernmental Commission on Human Rights, and drafted human rights instruments, including the ASEAN Human Rights Declaration. Despite this progress, there remain doubts about the priority and role ASEAN accords to human rights, particularly given recent events in ASEAN members.

This seminar will analyse ASEAN’s human rights agenda in the context of its community-building project and developments in the region.

Associate Professor Colin Gavaghan

Associate Professor Colin Gavaghan

Associate Professor Colin Gavaghan is the first director of the New Zealand Law Foundation sponsored Centre for Law and Policy in Emerging Technologies.  In addition to emerging technologies, Colin lectures and writes on medical and criminal law.  Together with colleagues in Computer Science and Philosophy, Colin is the leader of a three-year project exploring the legal, ethical and social implications of artificial intelligence for New Zealand. Colin is a member of the Advisory Committee on Assisted Reproductive Technology and the Advisory Board of the International Neuroethics Network He was an expert witness in the High Court case of Seales v Attorney General, and has advised members of parliament on draft legislation. He dreams of writing science fiction, but compensates with regular appearances on panels at SF conventions.

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Thinking Outside the (Black) Box.

The Problems and Perils of Algorithmic Decision-making.

It would be a considerable understatement to say that artificial intelligence (AI) is commanding a great deal of current attention – from media, from national parliaments, even from the European Union. Much of this has focused on the metaphysical intrigues and existential threats of so-called computer ‘superintelligence.’ But the more mundane forms of ‘AI’ that are with us already pose opportunities and challenges of their own.

Decision-making algorithms are already in routine use, across government and the private sector. From recommender systems used by Amazon to risk predictions by parole boards, these systems promise greater accuracy and efficiency. But they have also attracted considerable suspicion from those concerned about issues of transparency and bias.

In this talk, I will discuss some of these concerns, and some of the regulatory strategies that are being proposed to address them.  Is there a way to get the best from the science predictive analytics, while at the same time avoiding the traps of the ‘black box’?

Mr James Lee

Mr James Lee

James Lee is Reader in English Law and PC Woo Research Fellow 2016-17 at The Dickson Poon School of Law, King’s College London; Senior Visiting Fellow, Gilbert + Tobin Centre of Public Law, University of New South Wales; and an Associate Academic Fellow of the Honourable Society of the Inner Temple. In April, he was Visiting Professor at Hong Kong University. He is Subject Sections Secretary of the Society of Legal Scholars. He writes on judicial reasoning, law reform and private law. With Jamie Glister, he is the co-editor of the leading trust text, Hanbury & Martin: Modern Equity, the 21st edition of which will published later this year.

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Judging Reformers and Reforming Judges

This article examines the practice and limits of judicial law reform. In particular, James considers the question of when initiation of a reform is appropriate for the judiciary as opposed to the legislature - an issue which has been a matter of controversy amongst the Justices of the United Kingdom Supreme Court. This question is assessed in the light of the institutional and constitutional competences of the courts, particularly with respect to the structure of common law reasoning. It is also argued that it is important to have regard to perspectives of the relevant judges in understanding the individual and collective approaches to the judicial development of the law.

Professor David Lindsay

Professor David Lindsay

Professor David Lindsay is an expert in technology law, copyright law and privacy law, and is widely published in these areas. He is the co-author (with Graham Greenleaf) of Public Rights: Copyright’s Public Domains (CUP, Cambridge, 2018), a major new study of comparative and international copyright law from the perspective of uses that do not require permission from the copyright owner. He is General Editor of the Australian Intellectual Property Journal and a board member of the Australian Privacy Foundation (APF). Much of David’s current research focusses on challenges arising from the use of AI, including issues facing the legal profession and human rights challenges. He has recently taken up an appointment as Professor of Law at the University of Technology Sydney (UTS), where he a leader of their technology law program and is responsible for the Applied Project in Law, Innovation and Technology.

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Taming the Machine? Human Rights Implications of Artificial Intelligence

Considerable resources are being expended in the development and deployment of artificial intelligence (AI). While these transformative technologies give rise to both significant opportunities and risks, analysis of the legal and social implications lags behind the rapid pace of technological change. In particular, although some attention is being given to developing ethical frameworks for AI, analysis of the implications of AI for human rights is at an early stage of development. This presentation will address two of Michael Kirby’s abiding concerns – human rights, and law and technology – by identifying and examining some of the most important human rights implications of AI technologies. Specifically, the presentation will: describe the current state of development of AI technologies, including an explanation of why the technologies are now being implemented; identify the main international initiatives aimed at establishing ethical or human rights frameworks for the development of AI; analysis the implications of AI for particular human rights, especially the rights to privacy and non-discrimination; and draw some conclusions about the merits of potential regulatory interventions, especially those aimed at promoting algorithmic transparency.

Joanna Kalowski

Joanna Kalowski

Jo is a mediator, facilitator and judicial educator, and has worked with courts and tribunals in Australia, Asia and Europe. She has a background as an adult educator, and designs, leads and evaluates programs for lawyers and judges.  She is on the Resolution Institute's Advanced Panel, the Centre de Médiation et d'Arbitrage de Paris and the International Panel of Singapore Mediation Centre. She was a member of the Administrative Appeals Tribunal from 1988 to 1996 and of the National Native Title Tribunal from 1996 to 1999. In 2004, Joanna became the judges' trainer in the Family Court's Children's Cases Pilot program, a program now known as the Less Adversarial Trial. In 2008, Jo was appointed to the International Mediator Institute (IMI), where she served on the independent standards commission and co-chaired the reference group that determined IMI standards in intercultural mediation.

In July 2013, Jo took on the role of principal facilitator in the pilot phase of the Defence Abuse Taskforce’s restorative engagement process. In late 2015, Jo became chair of the Amoonguna Aboriginal Trust in Alice Springs after successfully co-mediating the Amoonguna's dispute with the Northern Territory Government. Who's Who Legal 2017 placed her third on the list of mediators active in Australia. Jo is on the faculty of MATA (UK) at their biennial mediator retreats in Italy, and is a member of CIMJ, Conférence Internationale de Médiation pour la Justice. Jo speaks fluent French, German and Italian and lives part of each year in Paris.

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To walk this land together: the search for an Australian mediation model

If there were a peculiarly Australian way of mediating, would it take the form of a model, or a change in the mediator's role and approach?

This lecture proposes that it is not a new model of mediation Australia needs.  We can readily adapt existing approaches and models as mediation frameworks rather than scripts.  What is required is an insistence on the development of mediators' intercultural and cross-cultural expertise in one of the mloost diverse societies in the world.

Broad intercultural expertise is fundamental - and hard to find.  Beyond it lies something more: a commitment to understanding the nature of the power and social relations between Indigenous and non-Indigenous Australians.

Absent these skills, sustainable solutions to the resource and environmental challenges facing Australia are unlikely.  The capacity to engage Indigenous stakeholders as traditional custodians of the land, whether they are holders of Native Title or not, will simultaneously address environmental issues and two centuries of inequity to the benefit of all.

Dr Bruce Oswald

Dr Bruce Oswald

Dr Bruce 'Ossie' Oswald’s is a Professor at Melbourne Law School and the Director of the Asia Pacific Centre for Military Law. His interests in law and practice are in the areas of international humanitarian law, peace operations, state building, accountability and responsibility, and the application of human rights law to military operations.

Ossie has served in the Australian Regular Army as a legal officer. He has seen operations service in Rwanda, the Former Yugoslavia, East Timor, Iraq and Afghanistan. Ossie continues to serve as a Colonel in the Australian Army Reserves.

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The Use of Force in UN Peacekeeping Operations

The primary purpose of this seminar is to consider the legal framework governing the use of force in self-defence by UN peacekeepers. The seminar will begin by outlining the evolution of the doctrine of self-defence in UN peacekeeping operations; and will explain how this doctrine is applied today. Dr Oswald will then discuss several legal issues that arise from the UN’s approach to the use of force in self-defence and explain how this approach runs counter to the common law understanding of self-defence. Dr Oswald will explain how the differences between UN self-defence and common law self-defence raises several serious legal accountability issues for troop contributing countries.