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Castan Centre for Human Right Law
Human Rights 2003: The Year in Review
Thursday, 4 December, 2003
The CUB Malthouse, Southbank, Melbourne
Session 1: The War on Terror: International Law and Politics
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Professor Hilary Charlesworth
Professor of International Law and Director of the Centre for International and Public Law in the Faculty of Law, ANU
“Is the War on Terror Compatible with Human Rights?: An International Law Perspective” [View paper (PDF, 180KB)]
Abstract: The paper will consider the particular challenges raised for the international human rights system by the 'war on terror' declared in the wake of the events of 11 September 2001. Taking an international focus, it will argue that a human rights framework is critical for the success of such an enterprise and will examine the practical and legal implications of acting otherwise.
Bio: Hilary Charlesworth is Professor and Director of the Centre for International and Public Law at the Australian National University. She was educated at the University of Melbourne and Harvard Law School. She has taught at the universities of Melbourne and Adelaide and has been a visiting professor at Washington & Lee School of Law, Harvard Law School and the Global Law Faculty at New York University.
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Tony Parkinson
International Editor, The Age
“The Political Realities of the War Against Terror” [View Paper (PDF, 99KB)]
Abstract: Were the actions of the governments of the United States, the UK and Australia in relation to Iraq, and terrorism more generally, entirely appropriate given the new realities of international politics post September 11? In this political climate, is there any role left for international human rights law and its associated institutions, most especially the United Nations?
Bio: Tony Parkinson has covered state, national and international politics for a number of major Australian newspapers including “The Australian”, “The Herald-Sun” and currently “The Age”. In 1991 he covered the first Gulf War from the Middle East. Also, his biography on Jeff Kennett was published in 2000.
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Session 2: The War on Terror: State Responses
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Simon Bronitt
Director, National Europe Centre, The ANU
“Australia's Legal Response to Terrorism: Neither Novel nor Extraordinary?” [View paper (PDF, 136KB)]
Abstract: Using comparative material, the presentation will explore the extent to which recent terrorism laws constitute a derogation from fundamental values and principles of the criminal law. Wider powers of investigation, coupled with reverse onus clauses, strict liability and inchoate offences, seriously threaten to undermine our human rights. Rather than being novel or extraordinary, these new laws seem to conform to the legal template that has been driving the War on Drugs over the past two decades in Australia and elsewhere. The displacement of human rights within this new model of criminal law based on surveillance and risk management of suspect populations will be critically evaluated.
Bio: Simon Bronitt has recently been appointed Director of the National Europe Centre at the Australian National University, Canberra. He is a Reader in Law at the University and teaches Criminal Law and Procedure, Criminal Justice and Criminology. His research interests range across these fields, focusing specifically on human rights issues.
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Dr David Wright-Neville
Politics Department, Monash University
“Australian Anti-terrorism Measures: Are they warranted?” [View paper (PDF, 148KB)]
Abstract: The thrust of this presentation will be whether or not the ASIO legislation is warranted from a terrorism assessment point of view, and whether or not it is likely to deter terrorists (or proto-terrorists) in the event that any are currently located in Australia.
Bio: Dr. David Wright-Neville rejoined the School of Political and Social Inquiry, Monash University in 2002 after several years working as a Senior Intelligence Analyst for the Australian government. He still consults on terrorism-related issues to both Australian and foreign government agencies. His contributions to discussions on terrorism appear regularly in the Australian and overseas media. Prior to joining the intelligence community David taught at both the University of Melbourne and Monash University where he specialised in cultural politics in East Asia and on Australian foreign policy. Among his recent publications is an edited volume on Asian security issues post-September 11 which is due for release in early 2004.
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Dr Jawahir Thontowi
Faculty of Law, Universitas Islam Indonesia, Yogyakarta
“The Islamic Perspective of the War on Terror and Current Indonesian Responses” [View paper in PDF (202KB)
Abstract: This presentation considers the implications of the Indonesian Government’s legislative responses to terrorism (especially the recent Antiterrorism Law No. 15/2003) and how those responses have been implemented, both by the Indonesian authorities alone and in conjunction with international assistance. Special consideration is given to the multiple Islamic perspectives within Indonesia and the difficulty the Indonesian Government appears to be having in distinguishing between different groups when it comes to anti-terrorism activities.
Bio: Dr Jawahir Thontowi is Dean of and lecturer at the Faculty of Law, Universitas Islam Indonesia. He has also served as guest lecturer at the Institute for Islamic Studies, Sunan Kalijaga Yogyakarta, and University of Muhammadiyah Yogyakarta. Dr. Thontowi is Director of the Indonesian NGO IMPRESS (Institute for Managing Peace and Refugee Studies) and is on the coordination board for National Disaster in Jakarta. His focus has been on the intersection between local and Islamic law, and dispute resolution. Other interests lie in Islamic Legal Studies, International Law, Terrorism and Peace and
Human Security, Anthropology and Sociology of Law, Legal Pluralism and Legal Culture, and Syariah Law in Southeast Asian Countries.
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Session 3: Iinternational Criminal Law & Human Rights
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Professor Tim McCormack
Australian Red Cross Professor of International Humanitarian Law, and Director of the Asia-Pacific Centre for Military Law, The University of Melbourne
“Bright Moments In a Frustrating Year: Developments in International Criminal Law”
Abstract: 2003 has been characterised by contradictions - some major achievements amid serious setbacks. The presentation will consider international developments: the establishment of the ICC and US opposition as well as the work of the ICTY and ICTR; developments in internationalised justice: the Special Court for Sierra Leone and ongoing proposals for Cambodia and East Timor; and developments at the national level: The Jakarta trials, Guantanamo Bay and national implementing legislation to deal with international crimes. The presentation will seek to assess the extent to which the frustrations of 2003 constitute a backlash against the advances of international criminal law in recent years.
Bio: Professor Tim McCormack is the Foundation Australian Red Cross Professor of International Humanitarian Law. He is also a Vice-President of Australian Red Cross and Chair of the Australian Red Cross National Advisory Committee on International Humanitarian Law. Tim is also the Foundation Director of the Asia-Pacifc Centre for Military Law – a collaborative Training and Research venture between the Law School and the Australian Defence Force Legal Service. His special research interests are in the fields of International Humanitarian Law, International Criminal Law, Arms Control and Disarmament and the Law of International Institutions.
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Gwynn MacCarrick
Assigned Counsel for the Defenders Unit, Special Court for Sierra Leone
Former Defence Counsel in East Timor
“Human Rights and Defending War Crimes”
Abstract: This presentation examines: the international justice system in East Timor generally; the Panel for Serious Crimes as a creature of the UN; the hybrid criminal trial system; the rights of the accused before international tribunals; and the role of defence counsel in this context.
Bio: Gwynn MacCarrick is a Human Rights lawyer based in Hobart. She has appeared as Defence Counsel before the UN Special Panel for Serious Crimes in East Timor, has worked with the Office of the Prosecutor at the UN Criminal Tribunal for the Former Yugoslavia, and in between her domestic criminal practice has taken up various postings with the UN High Commission for Refugees. Gwynn is currently undertaking a Doctorate in International Criminal Law at the University of Tasmania Law School.
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Session 4: Indigenous Rights, Refugees and the Pacific
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L to R: Nic MacLellan, Susan Kneebone and Melissa Castan
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Melissa Castan
Senior Lecturer, Monash law School
“Indigenous Australian Rights in the Courts: The Jurisprudence of Denial” [View paper (PDF, 184KB)]
Abstract: A number of Australia’s most senior judiciary have invited the courts to embrace a beneficial interpretation of the law when ambiguity is evident. Yet the High Court today has largely declined to adopt any interpretations supportive of, or reflective of, the human rights standards regarding the concerns of, and obligations to, Indigenous Australians. This presentation examines the jurisprudence of denial in relation to international and domestic human rights standards regarding land, culture and self determination for Australian Indigenous peoples.
Bio: Melissa Castan is a Senior Lecturer at Monash University Law Faculty who now teaches and researches in the areas of Human Rights Law, Constitutional Law and Indigenous Rights. She is the co-author of two books - The ICCPR: cases material and commentary (2nd edn forthcoming from OUP); and Federal Constitutional Law: A Contemporary View (2001 LBC).
Dr Susan Kneebone
Associate Professor, Monash Law School
“Bouncing the Ball between the Courts and the Legislature: What is the score on refugee issues?” [View paper in PDF (262KB)
Abstract: The broad purpose of this paper is to examine recent developments in refugee law and policy and the interaction between the Australian courts and the legislature. I examine the role of the courts and the extent to which they have acted and can act as guardians of human rights on these issues.
In particular I examine how the courts have responded to recent legislative measures to limit the application of the Refugees Convention in Australian law by narrowing the refugee definition, and to restrict judicial review. Paradoxically these measures coincide with a judicial broadening of the refugee definition by the High Court in the Khawar decision and an expansion of the concept of jurisdictional error as a result of S157 \ 2002 v Commonwealth.
I argue that the legislative measures to limit the refugee definition are inconsistent with international law and international jurisprudence. I demonstrate that they have led to much confusion and increased litigation. In my view these legislative measures should be repealed, and the application of the refugee definition should be left to the courts to apply in accordance with the Refugees Convention.
Bio: Dr Susan Kneebone is an Associate Professor at the Faculty of Law, Monash University where she teaches International Refugee Law and Practice, Citizenship and Migration Law, Administrative Law, Equity and Trusts. She is the author of Tort Liability of Public Authorities (LBC 1998) and editor of The Refugees Convention 50 Years On: Globalisation and International Law (Ashgate 2003).
Nic Maclellan
Journalist and Researcher on the Pacific
”Australian Neo-colonialism in the Pacific: Human Rights Implications” [View paper (PDF, 187KB)]
Abstract: 2003 witnessed Australia’s intervention in the Solomon Islands, proposals to study the use of the Australian dollar as the shared currency among Pacific island states, and an emerging stoush with PNG and other countries over the placement of Australian officials and police in senior positions as part of the aid program. Is Australia’s renewed engagement with the region based on neo-colonial policies on self-determination, collective human rights, “good governance” and regional intervention? What institutional and community-based human rights initiatives are emerging in the Pacific that may counter-balance Australian influence?
Bio: Nic Maclellan has worked as a journalist and community development worker throughout the Pacific Islands. Between 1997-2000, he worked with the Pacific Concerns Resource Centre (PCRC) in Fiji. Nic has written widely on disarmament, human rights and self-determination in the South Pacific, and is co-author of three books on Pacific issues: La France dans le Pacifique - de Bougainville à Moruroa (Editions La Découverte, Paris, 1992); After Moruroa - France in the South Pacific (Ocean Press, New York and Melbourne, 1998); and Kirisimasi (PCRC, Suva, 1999).
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