2014 Kirby Seminars

Audio Files

2014 Kirby Seminar Abstracts

Dr Bernadette Boss - Humanitarian Law v Human Rights Law in UN Collapsed State Peacekeeping - 12 September

UN peacekeeping is a complex undertaking carried out by individuals or groups of defence personnel from a combination of nation states. It is complicated by its cold war origins, utopian future world underpinnings and point in time geopolitics.  

UN Security Council mandates are characterised by being formulaic, uninformative and brief.  So how do UN peacekeepers or peacemakers know what law to apply when they land in a State reduced to rubble and smoking remains? This question has been answered in two ways.  On the one hand it has been argued that the Fourth Geneva Convention applies as this universally accepted international law is well suited to the situation peacekeepers find themselves in. It has structure and can be easily followed as a manual for how to run an occupied territory.  On the other hand it has been argued that human rights law is the law applicable.

This presentation will briefly describe the UN Charter background to UN peacekeeping and outline the arguments for the application of the Fourth Geneva Convention as the law applicable. The argument will then be made for international human rights law as the law applicable in collapsed State peacekeeping.

Dr Matthew Dyson - Tortious apples and criminal oranges: comparing across and within legal systems - 7 August

Tort Law and Criminal Law are closely bound together but their relationship rarely receives sustained academic scrutiny. This paper is the conclusions from the first comparative project to address that shortcoming. The volume draws together leading experts to chart the field and explore key points of interest within it.The volume is dedicated to understanding how and why tort and crime connect to each
other without the limitations of one legal system. The paper will draw on material from eight legal systems, England, Australia, Scotland, Sweden, France, Spain, Germany and the Netherlands. In particular, it features analysis of work done by a team from UNE led by Prof. Mark Lunney.

Professor Rick Bigwood - Curbing ‘Unconscionable Dealing’ in the High Court of Australia: Reflections on Kakavas v Crown Melbourne Ltd - 23 July

This seminar will explore the merits, or demerits, of the High Court's recent decision in Kakavas v Crown Melbourne Ltd (2013) 298 ALR 35. That decision appears to be further confirmation of a contemporary judicial tendency in Australia, which is to seriously restrict the ameliorative potential of the Amadio-style 'unconscionable dealing' doctrine, at least in relation to so-called 'arm's-length commercial transactions'. The High Court held that no relief is available for unconscionable dealing — or for 'unconscionable conduct' under s 51AA of the Trade Practices Act 1974 (Cth) (now s 20 of the Australian Consumer Law), which is the selfsame thing — unless the party alleged to have acted unconscionably actually knew of the victim's relative 'special disadvantage' and 'preyed upon' him or her. The seminar will address the question of whether, in relation to a doctrine that has traditionally been understood to implement a legal policy of protecting the transactional vulnerable from victimisation, the law relating to unconscionable dealing/conduct in Australia ought to be limited to disciplining nakedly exploitative conduct and nothing less.

Professor Jane Stapleton - My Account of (and simple test for) the Causal Relation Chosen by Private Law - 4 July

Causation is a central concern of metaphysicians, yet the greatest torts jurists disparage lawyers' engagement with their work. Sir Frederick Pollack claimed that 'the lawyer cannot afford to adventure himself with philosophers in the logical and metaphysical controversies that beset the idea of cause' while Lord Atkin thought that 'the word "cause" has in philosophy given rise to embarrassments which in this connection should not affect the judge'. In this seminar I explain this gulf between the discourses while presenting my own account of and test for the characteristic that the relation between a factor and a phenomenon must have before orthodox legal principle is prepared to recognise that relation as 'causal'.

Associate Professor Alex Gardner - ‘Mining access to water resources - traditions and developing principles’ - 16 June

Are mining and coal seam gas ("CSG") production subject to the key legal principles that apply generally to water resources management, especially the allocation of water resources in circumstances of water scarcity and competing uses? The sometimes exceptional circumstances of the mineral sector's use of water was acknowledged in clause 34 of the 2004 Intergovernmental Agreement on a National Water Initiative ("NWI"), by which it was agreed that minerals and petroleum project proposals may need to be assessed in light of sector specific factors that may require management arrangements outside the scope of the NWI. 

 Recently, the exceptional NWI status of the minerals and CSG sectors has been questioned because of the growing scale and risk of the water resource impacts, especially in respect of groundwater in certain regions. The National Water Commission ("NWC") said, in its 2010 Mining and Coal Seam Gas Positions Statements, that the clause 34 special circumstances had not been adequately articulated and that the regular resort to environmental approval laws to make special arrangements for resources projects was no sufficient substitute for better integrating these sectors' use of water resources into the general water planning and entitlement regimes. There was particular concern with cumulative, possibly irreversible, impacts and there is a growing concern with legacy liabilities post mining tenure.

This presentation draws on a paper of the same title that is soon to be published.   It reviews the extent to which the regulation of the taking and interference with water resources by mining and CSG operations has been reformed to bring them under the general regulatory regimes for water resources management. It analyses aspects of the relevant legislative regimes of New South Wales, Queensland and the Commonwealth, to evaluate the extent to which the National Water Commission's recommendations have been implemented by legislative reforms and the key principles of those regimes, including adaptive management.

Samantha Hepburn - Global Perspectives on the Unconventional Gas Revolution in Australia - 14 May

This paper examines the nature and efficacy of the 'golden rules' that have emerged within Australia to date in response to the global unconventional gas revolution.   In particular, focus is given to land usage and environmental assessment initiatives.  The paper argues that orthodox processes for assessing environmental impacts and land usage concerns must be reassessed in the context of unconventional gas development.  Governments need to devise appropriate regulatory regimes, based on sound science, high-quality data and community engagement.  This is crucial as there is a 'critical link' between the way that governments and industry respond to these social and environmental challenges and the future prospects of unconventional gas production.  In this context, Australia has many lessons to learn from some of the state-based developments that have occurred within the United States, where following extensive moratoriums, new and unorthodox regulatory tools have been proposed which are better equipped to respond to emergent environmental and social challenges.

Lisa Ford - Revisiting the Rum Rebellion: Despotism talk and the reconstitution of the British Empire - 6 May

This paper puts 'despotism talk' in the Rum Rebellion in the context of legal reform throughout the British Empire in the early nineteenth century. It suggests that accusations of tyranny - from New South Wales to Trinidad - did much more than to threaten Empire with the spectre of revolution. Rather they were used by new, old and tenuous British subjects to engage in detail with systemic flaws in colonial constitutions and legal procedures. By engaging with the administration of law in new and old colonies, colonial critics and metropolitan humanitarians sought to carve out a new understanding of the minimum accoutrements of colonial subjecthood in a rapidly changing imperial milieu.

Christine Parker, Can you really vote with your fork? The regulatory construction of consumer choice behind the label on your food - 1 April

Popular food writer, Michael Pollan famously promises consumers, "You can simply stop participating in a system that abuses animals or poisons the water or squanders jet fuel flying asparagus around the world. You can vote with your fork, in other words, and you can do it three times a day". It is now deeply inured in consumer capitalist societies that if people are sufficiently educated they will use the market to govern the market through their shopping choices.

 In this presentation Prof Christine Parker will critically examine this claim by reference to two case studies - highly visible contested claims over "free range" eggs and the largely invisibile problem of high use of pesticides in strawberry production. The idea of voting with your fork suggests that consumers can see and respond to significant issues of product, process and place when buying food. This presentation will argue however that the choices available to the consumer are already constructed and framed by many regualtory and market decisions that have been made by other actors before the consumer ever gets a chance to choose. The presentation will consider whether voting with your fork can be an efficient, effective and legitimate way for citizens to engage with and try to change the food system to meet sustainability, health and cultural values.

Peter Robson, 'Women Lawyers on TV - the 21st century experience' - 18 March

Peter Robson has an LLB from St Andrews University and a PhD from Strathclyde University. He is a solicitor and sits as a judge in the Appeals Services dealing with disability issues and his principal professional work is in Housing Law on which he has published extensively. He has been Professor of Social Welfare Law in the University of Strathclyde since 1992. He works and advises on housing law and is the author of Homelessness and the Law (3rd ed; 1996), Housing Law in Scotland (2010) and Residential Tenancies (3rd ed; 2012).

In the past decade he has extended the early focus of his writing on legal theory and sociology of law from the work of judges into coverage of how popular culture affects the practice of law. In addition to writing in the area he has developed undergraduate and postgraduate courses on Law, Film and Popular Culture which he has taught in Universities in Scotland, Portugal, Spain and Argentina. He has written widely on law and film in journals and edited collections including co-editing Law and Film (with Stefan Machura) in 2001. His most recent film work (with Steve Greenfield and Guy Osborn ) Film and the Law: the cinema of justice was published in 2010 and updates the influential 1st edition. He is co-editor with Jessica Silbey of Law and Justice on the Small Screen (2012). He is the author of essays on British Lawyers on TV and is working on a female TV lawyers project. He has also recently started to examine law and the theatre and court architecture.