Castan Centre for Human Rights Law

"Human Rights and Global Challenges Conference"
Paper Titles and Abstracts

"Oh That I Were Made Judge in the Land"
Associate Professor Jim Allan

This paper considers the desirability of adopting a Bill of Rights in Australia, either constitutionalised or statutory. In arguing AGAINST such a move the author will look at the New Zealand experience with a statutory model, the undesirable litigants Bills of Rights can attract, and the problems with handing ultimate social policy-making powers - powers implicit in deciding about fundamental rights - to unelected judges. This will involve a closer look at Bills of Rights and rights themselves.
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"Indigenous Self-Determination in the Age of Globalisation"
Professor Larissa Behrendt

This paper will look at the concept of "self-determination" in Indigenous political rhetoric and draw from this definition the implications for the Australian state. It will also consider the challenges of inclusive nation-building in an era of increased pressures from globalisation.
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"Human Rights as Judicial Politics or Parliamentary Judgements"
Julie Debeljak

This paper considers the institutional impact of judicially enforced Bills of Rights. It explores modern concepts of democracy, separation of powers, the politicisation of the judiciary and the judicialisation of politics, in an attempt to justify the transfer of power via Bills of Rights to the unelected arm of government. The Canadian and British systems are used to ground the theoretical discussion. Both models, in theory and practice, resolve the tension between human rights protection and democracy.
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"Making an Effective International System for the Protection of Human Rights"
The Hon Elizabeth Evatt AC

This paper will consider aspects of recent Australian performance in human rights, including achievements and shortfalls in the domestic protection of human rights, and in Australia¹s participation in the international system of protection of right. It will seek to identify some of the reasons for our successes and failures in these areas. It will consider the opportunities and challenges which will arise for Australia in human rights in the foreseeable future and assess the potential as well as the obstacles to progress.
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"The Indivisibility of Human Rights - The Constitutional Protection of Social Rights"
Professor Keith Ewing

The human rights debate is dominated by arguments about civil and political rights, and about the need for their legal enforcement through Bills of Rights. This paper will consider the extent to which social and economic rights can and should be regarded as fundamental human rights. It will also examine the significance for constitutional law of regarding such rights as human rights, and the implications of giving them the same legal status as civil and political rights. The paper will draw on the comparative experience of other common law systems which have entrenched human rights into their constitutional law, and will examine also the very different experience of continental Europe where in many cases social and economic rights are constitutionally entrenched.
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"Outside the Comfort Zone - Reporting on Human Rights"
Liz Jackson

There have been three major stories that have pre-occupied the Australian media and the Australian public in the past twelve months. Each raises critical human rights issues.
(i)The rape allegations published in "The Age" newspaper against ATSIC chair Geoff Clarke, and the ensuing debate concerning violence and sexual assault in Aboriginal communities.
(ii)The conditions under which asylum seekers are detained in Australia, and more recently the policy debate surrounding the treatment of asylum seekers arriving in Australian waters.
(iii) The terrorist attacks in the United States on Sept 11.

The passion that has arisen in relation to these stories has polarised public opinion in Australia to an extent that endangers the capacity to have a useful debate on the human rights issues involved. The media needs to take responsibility for addressing that outcome, but these are difficult times. The paper will canvass the coverage of these stories from a personal perspective, and from the perspective of colleagues in the ABC and within the commercial media sector.
Paper Unavailable

"The 'Third Wave' of Corporate Human Rights Accountability: Pharmaceuticals and Human Rights"
Sarah Joseph

The end of the twentieth century heralded a new global concern with the power of multinational corporations and their lack of appropriate legal accountability in the field of human rights. Until this year the corporations most targeted by human rights critics were those in the extractive industries and the garment industries. 2001 has seen an intensification of pressure on a third group, pharmaceutical corporations. In particular, serious concerns have been raised regarding the extent to which such corporations use (or arguably abuse) their patent rights, consequently denying access to life-saving drugs. This issue was thrown into particular relief in March when 39 subsidiaries of multinational pharmaceutical companies brought an action against the South African government to challenge statutory amendments which were aimed at easing access to anti-HIV drugs in a country where 15 year olds reportedly have a "more than 50/50 chance of dying of AIDS" (Radio National, 18/3/01). Though the case was ultimately dropped, the battle between patent protection and medicinal access is currently being fought within the WTO over the interpretation of TRIPS, with developed nations such as the USA and Australia ostensibly on the side of the pharmaceutical industry.

In this paper, the issues raised in the South African case and in the TRIPS debate will be discussed, in particular the clash between the rights to health and life, and the right of pharmaceutical companies to have their patents respected. Are patents, for example, really necessary in order to catalyse research and development and therefore the creation of life-saving drugs in the first place? At what point, if ever, should profit-taking at the expense of the health of the poor (and perhaps of the rich) be characterised as an abuse of human rights?
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"The Shrinking State's Growing Responsibilities for Human Rights Protection"
Professor David Kinley

The basic question the paper seeks to answer is what is and will be the role of the state in the protection and promotion of human rights. The paper attempts to counter claims that states' responsibilities in this respect are decreasing. The main drivers of these claims are three-fold:

1) that the state is "shrinking" in the sense of its responsibility for direct service provision;
2) that there is a rise in other loci of responsibility for human rights protection within the private sphere - especially corporations;
3) that there is an increasing reliance on global regulation and supervision of human rights protection.

In stressing that responsibility for human rights protection is not a zero-sum game, the paper concludes that though the nature of a state's responsibility is changing, the weight of responsibility is not diminishing.
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"Transitional Questions about the Rule of Law" Why, What and How?"
Professor Martin Krygier

A commonly acknowledged condition for the secure enjoyment of human rights is the rule of law. But does that have a general character, found wherever there is the rule of law, or particular, able (and needing) to be satisfied differently in different social, historical, cultural and conjunctural circumstances. That is a question that has been raised in many places, perhaps nowhere more so than in countries emerging from authoritarian rule and seeking to establish democracy and the rule of law. This paper seeks to draw together both general insights into the rule of law, which derive from the human condition and general human purposes, as well as those which reflect the particular demands and considerations generated by the circumstances of post-authoritarian transformations.

Much thought (and both solicited and unsolicited advice) about the conditions and sources of legality in societies which have lacked it, ignores the distinctive character and specific imperatives of end-of-century transformations. Often it has issued in uncontextualised and unsuccessful offerings and borrowings. Recently, on the other hand, a few writers have emphasized the distinctiveness of such transformations, perhaps over-emphasised it, insisting that post-authoritarian 'transitions to democracy and the rule of law' are sui generis and thus incomprehensible in terms of understandings of the rule of law drawn from 'normal' countries and times. I am unconvinced that either of these options is the right one to choose in thinking about the nature and possibilities of the rule of law in 'transitional' (or for that matter in 'normal') circumstances.
This paper is concerned to tease out what are the right questions to ask about the rule of law - briefly: why bother with it, what is it and how do you get it? - and what is involved in thinking well about them. It seeks to attend both to the generality of these questions and the particularity of the contexts in which they are asked and fall to be answered. Any answers should be neither purely general, nor wholly idiosyncratic. Unfortunately, it is more common to veer in one or other of these directions, than to try to survey them both.
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"Human Rights, Social Responsibility and Regulation of International Business: The Development of International Standards by Intergovernmental Organisations"
Professor Peter Muchlinski

The rapid growth of international economic integration through the trading and investment activities of multinational enterprises (MNEs) is often described as leading to "economic globalisation". This, in turn, has raised questions concerning the social effects of such a process. In particular, there exists a common perception that certain activities of MNEs can give rise to unacceptable damage and loss to the communities in which they operate, as a result of practices that may be regarded as morally and ethically questionable. Such practices have been highlighted in recent years by non-governmental organisations (NGOs) active in the human rights, development and environmental fields. Equally, it is increasingly believed that intergovernmental organisations (IGOs) in the economic field, epitomised by the World Trade Organisation (WTO) and the World Bank, are doing little to regulate such practices while, at the same time, creating a deregulated global space in which MNEs will be increasingly free to act as they will, and in which there is little by way of democratic accountability for the actions of these powerful private actors. Against this background of popular perceptions, a discourse on ethics and international business is developing. The precise content of this discourse remains open to ideological contest. This contest is being conducted, in part, in relation to the policy the agendas of IGOs. The present paper seeks to examine this contest on a number of levels. First, it attempts to cast some light on what IGOs have, to date, achieved in the field of standard setting under the general rubric of "corporate social responsibility", concentrating, in particular, on the issue of human rights and corporations. Secondly, it examines what this development means for the evolving role of IGOs as regulators of social issues in the international economy. This analysis concentrates especially on their constitutional role as "quasi-legislators" and what this implies for the role of the nation-state, which has, hitherto, been seen as the prime forum for the resolution of social issues in the regulation of business, whether national or international. It will also address the question of whether an increased role for IGOs as standard setting organisations will offer an effective means of ensuring that corporate behaviour conforms with essential ethical values, by way of response to the scepticism expressed by proponents of a liberal world trading order over whether such regulation is desirable or useful.
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"Prisons, Privatisation and Human Rights"
Dr Bronwyn Naylor

The scope of human rights for prisoners depends on the formal articulation of prisoners' rights and the enforceability of those rights. Prisoners' rights are addressed in international instruments - primarily the ICCPR - and in domestic standards and state-based domestic legislation. Contracts and internal operating manuals constitute a third level of relevant regulation. Enforceability of prisoners' rights has long been problematic. International conventions are not part of domestic law unless specifically incorporated, and cannot currently be directly enforced. Domestic instruments generally lack enforcement mechanisms. Prisoner rights tend to be expressed in general or discretionary terms, and courts have been concerned to strike a balance between the persuasive demands of prison security and discipline, and claims to individual rights.

Questions of articulation and enforcement of rights are raised afresh where prisons are privatised. Privatisation of prisons raises fundamental questions about the notion of punishment as the prerogative of the state, with concomitant public sector protections. Privatisation is, however, now well established in Australia and comparable jurisdictions. Indeed, Victoria has the most highly privatised prison system in the world, with around 40% of prisoners held in private prisons.

This paper examines the challenges posed by privatisation to the notion of prisoners' rights, with the distancing of the provision of punishment from the state, reduction or removal of public sector accountability mechanisms, and the introduction of commercial agendas and obligations. It also evaluates the scope, in a privatised system, for the development of new mechanisms for articulating and protecting rights.
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"Self Determination in an Age of Intervention"
Dr Anne Orford

The new enthusiasm for humanitarian intervention, or willingness to use force in the name of defending humanitarian values, has played a major role in shaping international relations since the end of the Cold War. Actions such as that undertaken by NATO in response to the Kosovo crisis, or the authorisation of the use of force in East Timor by the Security Council, have been justified on the basis that the failure to guarantee democracy or human rights, or to protect against humanitarian abuses, represents a threat to peace and security. For many commentators, including some human rights lawyers and activists, military intervention has achieved a new respectability, and has come to represent, amongst other things, a means for the international community to bring human rights, self-determination, democracy and humanitarian values to those in undemocratic, authoritarian or failed states. The tensions that beset the attempt to guarantee the right to self-determination or to democratic governance through the use of force reveal the limitations of those legal aspirations. Real questions remain as to whether the new interventionism will, or indeed can, fulfil its promise to bring the people of target states the opportunity to determine their conditions of life and forms of governance. In particular, a consideration of the role played by international organisations in post-conflict reconstruction following intervention complicates the picture of international intervention as a guarantor of self-determination or emancipation, particularly in the context of international law's imperial history. The new forms of international trusteeship evidenced in Bosnia-Herzegovina, Kosovo and East Timor can be linked to a history in which international institutions came to play an important role in limiting the meaning given to the concept of self-determination for newly sovereign states, and mirrors the complicated ways in which international law facilitated colonialism. The ongoing struggle of people in target states to determine the nature of their conditions of existence, and to be recognised as fully sovereign, can be read as a contemporary manifestation of this history.
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"Resisting the Erosion of Economic and Social Rights: What Role can Legal Discourse Play"
Dianne Otto

The legal enforceability of economic and social rights, in areas like health, social security, food and housing, is an idea that Australian legal and political cultures have resisted. Rather than directly implementing such rights, thereby making them judicially enforceable, the enjoyment of economic and social rights in Australia relies on the indirect effects of legislation and government policies and programmes. This lack of enthusiasm for rights discourse is further reflected in popular culture, whereby those who demand 'rights' are often considered to be 'troublemakers'. This paper will examine the arguments of the troublemakers in the Australian context, asking whether they misunderstand the way the system works or, alternatively, whether rights discourse offers a better way of ensuring economic and social well-being.
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"The UN Human Rights Committee: Impressions of a New Member"
Professor Ivan Shearer

The Committee on Human Rights is established under the provisions of the International Covenant on Civil and Political Rights (ICCPR), 1966. It came into existence in 1976 on the entry into force of the Covenant. There are 18 members of the Committee, elected for terms of four years. The members serve in their individual capacities and do not represent their governments.

The principal functions of the Committee are:
(a) to receive initial, and thereafter periodic, reports of States Parties to the Covenant on their progress in achieving compliance with the provisions of the Covenant;
(b) to receive communications from individuals alleging violations of the Covenant by States Parties that have accepted the provisions of the First Optional Protocol, and to forward their views on these communications to the government concerned and the author.
Australia is among the 95 States that have accepted the First Optional Protocol. Several communications have been made in respect of Australia.

The Human Rights Committee has the broadest mandate of the five committees concerned with human rights established under the auspices of the UN. The others are the Committee Against Torture (CAT), The Committee on the Elimination of Discrimination Against Women (CEDAW), the Committee on the Elimination of Racial Discrimination (CERD), and the Committee on the Rights of the Child. The procedures and working methods of all committees have come under scrutiny and criticism from time to time. The Australian Government has been a recent leader among those seeking reforms.
The speaker will weigh those criticisms in the light of his experience as a newly elected member of the
Human Rights Committee.
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"Beyond the Elites"
Chris Sidoti

Human rights are in full retreat in Australia after a pounding over the last five years. They have never been especially popular in this country and have always been seen as somehow left wing or, more recently, trendy and elitist. Now they are considered irrelevant or, if relevant, then anti-democratic.

Yet there have been few times in recent history when human rights have been so regularly infringed in law, policy and practice at both federal and state levels. The need for heightened community awareness of and support for human rights has rarely been greater and the task of effecting that awareness has rarely been more difficult. The challenge is to move human rights discourse beyond the elites, to re-connect with people whose rights are being infringed, even though they might not know it or articulate it as such. Unless human rights go beyond the elites, the cause in Australia will be lost.
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"Human Rights & Gender Politics in an Asian Context"
Maila Stivens

This paper explores the dilemmas we face in trying to theorise the relationship between human rights discourses and gender politics. Recent years have seen renewed human rights claims operating within a western intellectual climate marked by profound scepticism about the so-called project of modernity. The paper looks at some of the ambiguities confronting us within these debates, especially the extreme fluidity of the concept of human rights and the multiple claims upon it. Feminist critiques of human rights discourses are relatively undeveloped as yet, but rightly, in my view, argue that the very character of human rights is revealed to be a thoroughly masculinist construct, based on a whole series of concepts that systematically exclude women. In turn, however, these critiques face unresolved dilemmas about how a situated feminist politics is to be thought of in these contemporary conjunctures: it is argued that postmodern anxieties about universalisms are intellectually appropriate but politically problematic. One possible path out of these conundrums, it is suggested, might lie with a questioning of the occidentalist identification of human rights discourses in 'non-western' contexts as 'western' imports. Instead, there is a need to locate such situated politics, including feminist politics, as specific aspects of highly divergent modernities. These issues are discussed within an Asian context.
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"The State Action Doctrine in Comparative Constitutional Law"
Professor Mark Tushnet

The paper will examine US and Canadian doctrine in particular, with some references to South Africa and Germany, as well as the question under the UK Human Rights Act, of what is a public authority covered by the Act. The state action doctrine is one side of an analytic coin, on the other side of which is the question of whether a constitutional system recognises affirmative (second or third-generation) rights or only first-generation ones. The argument has two parts: first, that the state action doctrine or some equivalent is necessary only to the extent that constitutional systems insist on distinguishing between a realm of public authority regulated by public (constitutional) norms and a realm of private action as to which public norms are not merely irrelevant but positively undesirable; and, second (and relatedly), that constitutional systems relatively comfortable with the social welfare state will be relatively uncomfortable with the state action doctrine.
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