2022 Kirby Seminar List

Is the war in Ukraine an International Law free zone?

Professor Don Rothwell

College of Law, Australian National University

Via Webinar: 1pm AEST Thursday 5 May 2022

In this Kirby Seminar, Professor Don Rothwell will explore the question,‘ Is the war in Ukraine an international law free zone?’ Russia’s ability to launch its so-called ‘special military operation’ to undertake ‘denazification’ in Ukraine has not so far faced international legal sanction. On 25 February 2022 a draft UN Security Council Resolution was debated but failed to win support after a Russian veto. Since then the Security Council has not revisited the conflict other than a 5 April address by Ukrainian President Volodymyr Zelensky.

The General Assembly adopted a non-binding resolution on 2 March, but without Security Council backing the resolution is primarily symbolic. Compared to the exhaustive and ongoing legal and political debates over the 2003 US-led coalition intervention in Iraq, Russia’s military intervention in Ukraine may appear to have received a muted legal response. All of this raises the spectre of the Lawless World British lawyer and author Philppe Sands wrote about in the wake of the Iraq War and the so-called global war on terror.

Despite appearances, a coordinated approach has been building to utilise multiple international legal mechanisms to make Russia responsible for its actions. While the images from across Ukraine may suggest a lawless world, that is not the case. Both international and national law is operating in the background. While international law is incapable of ending the conflict, it will eventually make some of those responsible for an ever expanding list of international law violations, war crimes, and atrocities.

Donald R Rothwell is one of Australia’s leading experts in International Law with specific focus on the law of the sea; law of the polar regions, use of force and implementation of international law within Australia. He is the author of 27 books and over 200 book chapters and articles. Don was previously Challis Professor of International Law and Director of the Sydney Centre for International and Global Law, University of Sydney (2004-2006), where he had taught since 1988. He has acted as a consultant or been a member of expert groups for UNEP, UNDP, IUCN, the Australian Government, and acted as advisor to the International Fund for Animal Welfare (IFAW).In 2012, Don was appointed an inaugural ANU Public Policy Fellow, and in 2015 elected as Fellow to the Australian Academy of Law.

Don is a regular media commentator on international law issues and has written over 100 opinion comments, including for all of the major daily newspapers in Australia and ABC Online The Drum. His media interviews have included ABC TV 7.30, ABC Radio ‘AM’ and ‘PM’, ABC Radio National ‘Breakfast’, ABC News 24, Al Jazerra (TV), BB

Alienage, ‘Aboriginality’ and the Problem of Plural Legal Orders

Professor Shaunnagh Dorsett

Faculty of Law, UTS, Sydney

Via Webinar: 1pm AEST Thursday 12 May 2022

In this Kirby Seminar, Professor Shaunnagh Dorset will discuss a range of issues around alienage and aboriginality, emerging from the High Court of Australia’s decision in Love v Commonwealth; Thoms v Commonwealth (2020) 270 CLR 152. This now well-known case concerned a challenge by two Indigenous men – neither of whom were Australian citizens – to an attempt by the Commonwealth to deport them. By virtue of their Aboriginality and deep on-going connection with Country, they argued, they could not be deported. Thoms and Love succeeded by a narrow majority. But that was not the end of the matter.

In 2022 the Commonwealth seeks to have the High Court overturn its own decision in this case (or at the least to confine it) in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Montgomery (High Court of Australia, Case No S192/2021). As did Love; Thoms this case raises significant constitutional questions. It also poses a significant challenge to and for the newly constituted High Court.

This case is overtly about immigration powers, the concept of alienage and the status of ‘Aboriginality’. But it is also about much more. At heart it is, as the earlier cases, a case about plural legal orders; it implicitly contains a demand that the Court recognise that the Australian common law is not the only legal system in this country. In this paper, then, I want to approach the problem at the heart of these cases – the denial of plural legal orders – from the particular standpointof a legal historian and occasional jurisprudent. What do these cases tell us about the High Court’s approach to the ‘problem’ of First Nations’ sovereignty and the spectre of plural legal orders? Why is the recognition of indigenous laws so confronting to our highest court? How can it be that as historians provide increasingly nuanced account of plurality, the High Court retreats further from their recognition. I hope this paper to be a (small) provocation – a starting point for a conversation about this ongoing and pressing legal issue.

Shaunnagh Dorsett is Distinguished Professor of Law and Associate Dean (Research) in the Faculty of Law at the University of Technology Sydney. She is an Honorary Fellow of the American Society for Legal History and a member of the Board of the European Society for Comparative Legal History. Her most recent book is Juridical Encounters: Māori and the Colonial Courts 1840-1852 (AUP 2017) and her forthcoming chapter in the Cambridge Legal History of Australia (Cane, Ford, McMillan (eds)) will consider this issue of plural legal orders.

C, and the Voice of America.

What Does It Mean to Respect, Protect and Fulfil the Human Rights of Intersex People in Australia?

Morgan Carpenter

Executive Director, Intersex Human Rights Australia

Via Webinar: 1pm AEST Thursday 21 July 2022

In this Kirby Seminar, Morgan Carpenter will discuss the fact that Intersex has been added to ‘LGBTI’ for many years, but action to protect, respect and fulfil the rights of people with innate variations of sex characteristics has lagged behind. This seminar will outline the goals of the intersex movement, action to further the health and human rights of people with innate variations of sex characteristics, and additional work that needs to be undertaken to fulfil those rights in Australia.

Morgan Carpenter is an intersex man, bioethicist, executive director of Intersex Human Rights Australia, and creator of the intersex flag. He plays an active role in systemic advocacy on legislative, regulatory and clinical reform. A signatory and drafting committee member of the Yogyakarta Principles plus 10 and a participant in the first UN expert meeting on ending human rights violations against intersex persons in 2015.

Morgan has been a contractor or consultant to the UN Office of the High Commissioner for Human Rights, World Health Organization, Australian Institute of Health and Welfare, and Australian Capital Territory and Victorian State governments, and an advisory group member for the Australian Human Rights Commission, Australian Bureau of Statistics, New South Wales Health, and the EU Intersex: New Interdisciplinary Approaches research network. He is a member of the Australasian Association of Bioethics and Health Law.

Find out more at  morgancarpenter.com

NT Aboriginal Justice Agreement

Ms Leanne Liddle

Director of the Aboriginal Justice Unit, Department of the Attorney-General and Justice - Northern Territory

Via Webinar: 1pm AEST Monday 29 August 2022

In this Kirby Seminar, Ms Leanne Liddle will discuss the NT’s first Aboriginal Justice Agreement- why it’s important, what it will deliver on and more. It will build on the 160 consultations and 120 visits to Aboriginal communities over 3 years- that informed the 7 year agreement that has received bipartisan support.

This session will outline why the 13 commitments and 42 actions are unlike any other justice agreement in the nation.

Leanne Liddle is an Arrernte woman born and raised in Alice Springs. Leanne has academic qualifications in Environmental Science, Law and Management, but she believes her most important knowledge has come from her grandmother and great-grandmother who taught her about traditional land management skills, particularly with the use of fire.

Leanne has served other senior public service roles, including as the manager of Food Security for Aboriginal communities in South Australia, and the manager of the APY and West Coast regions of South Australia both within the Department for Premier and Cabinet. She was also the first Aboriginal policewoman in South Australia where she worked for 11 years as a Senior Constable in remote and Adelaide police stations. Leanne has also worked on the international circuit; for the United Nations with stints in Geneva, New York and Paris with UNESCO, and as a director for Bush Heritage Australia. She has published scientific papers on the critical importance of integrating Aboriginal science into landscapes.

Since returning to Darwin, Leanne has worked as the Senior Policy Advisor for the Northern Land Council and the Principal Legal Policy Officer in the Department of the Attorney General and Justice, where currently is now, the Director of the Aboriginal Justice Unit where her small team is responsible for delivering the NT Aboriginal Justice Agreement.

Leanne was the 2022 NT Australian of the Year recipient.

Questions can be sent to: Leanne.Liddle@nt.gov.au

Northern Territory Aboriginal Justice Agreement

Pathway to Truth-Telling and Treaty with Tasmanian’s Aboriginal People

Professor Tim McCormack

Professor of International Law, University of Tasmania Law School

Via Webinar: 1pm AEDT Wednesday 2 November 2022

In this Kirby Seminar, Professor McCormack will discuss the Pathway to Truth-Telling and Treaty Report which was prepared by Tim and Professor Kate Warner. In preparing the report, more than 100 meetings took place with Tasmanian Aboriginal people. The key themes that arose from the consultations were truth-telling, treaty, identity and lateral violence, land and sea, cultural heritage and practices, education and capacity building, history, intergenerational trauma, and terminology (e.g. reconciliation, Aboriginal / Indigenous / First Nations / First Peoples).

Tim is a Professor of International Law at the University of Tasmania. He is also a Special Adviser on War Crimes to the Prosecutor of the International Criminal Court in The Hague and an honorary Professorial Fellow at Melbourne Law School. Tim was appointed a Fellow of the Australian Academy of Law in 2010 and appointed by the Premier of Tasmania in 2021 to support Professor Kate Warner in mapping out a Pathway to Truth-Telling and Treaty with Tasmania’s Aboriginal People.

Pathway to Truth - Telling and Treaty - Report to Premier Peter Gutwein

Class Action Wars

Professor Vicki Waye

Dean of Law, University of South Australia

Via Webinar and Venue: 1pm AEDT Monday 14 November 2022

In this Kirby Seminar, Professor Vicki Waye will discuss the polarisation of views driving Australian policy makers regarding the utility of class actions.  Competing views about the capacity for class actions to be misused and the impact (positive and negative) they have on business and government have led to topsy-turvy policy approaches that have masked larger institutional questions regarding how public and entrepreneurial action should best be leveraged to achieve just outcomes.  This lecture will discuss the function of class actions and suggest some measures to attain a better balance between regulatory and private redress.

Professor Waye is Chair of the Academic Board at the University of South Australia and Dean of Law. She is a foundation Professor of Law in the University of South Australia Law School with over 25 years’ experience of teaching at the undergraduate and postgraduate levels. Professor Waye's research interests are wide-ranging; however, her two main fields of research are firstly, systems of justice, including ways that access to justice is affected by matters such as litigation funding and mechanisms of collective redress, and secondly, the global food and wine trade. A high proportion of Professor Waye's research is process oriented, that is concerned with the efficacy of legal process. The research seeks to explain pathways that lead to particular system features and outcomes as well as consider and assess their potential trajectories.

From legal protection to restoration of Australia’s coastal wetlands

Associate Professor Justine Bell James

TC Beirne School of Law, University of Queensland

Via Webinar: 1pm AEDT Monday 5 December 2022  

In this Kirby Seminar, Associate Professor Justine Bell James will discuss the complexities in moving from a legal regime for environmental protection towards one that facilitates restoration, using the coastal and marine context as a case study. The importance of coastal wetlands in delivering crucial ecosystem services like water filtration, carbon sequestration, fisheries habitat and shoreline protection. Wetlands continue to be threatened by fishing, aquaculture, clearing and development, pollution and climate change. They are disappearing at three times the rate of terrestrial forests. Climate change mitigation must be paramount, but urgent restoration activities in this coastal space is also needed.  2021-2030 has been declared the United Nations ‘Decade on Ecosystem Restoration’ with the aim of ‘supporting and scaling up efforts to prevent, halt and reverse the degradation of ecosystems worldwide’.

In January 2022, the Federal Government released a methodology for blue carbon projects under Australia’s Emissions Reduction Fund. This allows for some restoration projects, namely, tidal restoration of blue carbon ecosystems, to be accredited and receive carbon credits. A significant door has opened for coastal restoration projects and should create a broader discussion of how the law can promote restoration goals across the landscape.

Justine Bell-James is an Associate Professor at the TC Beirne School of Law at the University of Queensland with expertise in environmental and climate change law and climate change litigation. Justine's research focuses on legal mechanisms for protection of the coast under climate change, incorporating both human settlements and coastal ecosystems. She currently leads an ARC Discovery Project (2019-2022) considering how coastal wetland ecosystem services can be integrated into legal frameworks. Justine is also an expert on legal mechanisms to facilitate blue carbon projects in Australia and internationally, and she was involved with the development of a blue carbon methodology under Australia's Emissions Reduction Fund. Justine's work is highly interdisciplinary and she is an affiliated researcher with UQ's Centre for Biodiversity and Conservation Science. Her recent collaborations and consultancies have involved colleagues from science, industry, NGOs, government and legal practice. Justine also has expertise in climate change litigation, and her work on opportunities for litigation under Queensland's Human Rights Act 2019 has underpinned the first test case in this area.