'Human Rights 2005: The Year in Review' Conference

'Human Rights: A thematic overview'

Bio: In the course of his five decade career as a lawyer, legal educator, domestic judge, international judge, author and lecturer, Judge C.G. Weeramantry has touched on a wide variety of topics essential to peace, cross-cultural understanding and education.  He is a former Vice President of the International Court of Justice and the founder and chairman of the Weeramantry International Centre for Peace Education and Research, based in Sri Lanka.  Judge Weeramantry has also served on the Supreme Court of Sri Lanka and written on a wide range of human rights subjects.  His numerous books include, most recently, Armageddon or Brave New World? Reflections On The Hostilities in Iraq (2003) and Universalising International Law (2004).

Professor Sarah Joseph
Director, Castan Centre for Human Rights Law 

'Poverty, Development, Business and Human Rights'

Bio: Professor Joseph is the Director for the Castan Centre for Human Rights Law. She has been a member of the Faculty since 1995. Her teaching and research interests are International Human Rights Law and Constitutional Law.  She has published a number of books including Corporations and Transnational Human Rights Litigation (Hart 2004), and co-authoring The International Covenant on Civil and Political Rights: Cases, Commentary and Materials (OUP, 2nd ed, 2004), and Federal Constitutional Law: a contemporary view (LBC, 2005). She is a lead investigator on ARC grants on Multinational Corporations and Human Rights, and on the WTO and Human Rights. She has also published articles on human rights and terrorism, self-determination, and access to medicines as a human right.   Sarah has also conducted numerous professional human rights training courses for overseas and Australian Government Officials.

Abstract: The outpouring of compassion by individuals, corporations and states in response to the Asian tsunami and Hurricane Katrina were apposite to the scale of the disasters, but the extent to which those responses can be explained with reference to human rights discourse is unclear.  If the universality of human vulnerability was at the core of the responses, then surely the thirteen serious humanitarian disasters currently occurring across the African continent would also be deserving of our attention, as would the deaths of 30,000 children each day from causes directly relating to poverty.  The contrast between the responses to the tsunami and Hurricane Katrina is equally revealing.  The absence of a thorough analysis of the role of the duty bearing states prior to the Asian tsunami stands in stark opposition to the public response to Hurricane Katrina.  In the latter case, the clear expectation on the part of social commentators was that the US Government both could and should have done more to protect the lives of its poor and vulnerable citizens.  Such an analysis was all but absent from the tsunami response, despite the unequivocal evidence of a correlation between a low Human Development Index (HDI) rating and a high vulnerability to disasters.  Whereas the victims of Katrina were coded as being the victims of both nature and state neglect, the victims of the tsunami could only blame their circumstances on an 'act of god'.  What explains this apparent contradiction, and what does it suggest about the public understanding of the rights held by the respective parties?  Is disaster mitigation a core obligation of states to their citizens in the developed world, but a non-core obligation for developing countries in relation to their responsibilities to protect, promote and fulfil human rights?

Bio: Kirsty Nowlan manages the Policy & Advocacy Department at World Vision Australia.  She is also a PhD candidate at Macquarie University in Sydney.  The subject of her thesis is the relationship between free trade and human rights in international law.  Prior to taking up the role with World Vision, Kirsty taught in the schools of Politics and Sociology at Macquarie University.

Abstract: The 2005 World Summit of the United Nations considered a number of important changes to the United Nations human rights institutions and program. The Summit approved the establishment of a new Human Rights Council to replace the UN Commission on Human Rights, and considered the ongoing reform of the treaty bodies, and the new plan of action for the Office of the High Commissioner. This paper will examine some of the new challenges and opportunities for States and civil society that lies ahead, with much of the important detail of the reforms yet to be finalized.

Bio: Andrew Byrnes has been Professor of International Law since May 2005. He was previously Professor of Law at the Australian National University and before that a member of the Faculty of Law at the University of Hong Kong. He has written widely on international human rights matters, in particularly the work of the United Nations human rights treaty bodies, and gender and disability issues under human rights law. He is co-rapporteur of the International Law Association's Committee on International Human Rights Law and Practice, and his current work includes participation in the development of the new UN convention on disability rights.

Abstract: It was in the early 1990s, under the auspices of the Federal Labor government, that the rhetoric of human rights first came to the fore in relation to mental health in Australia. Since then, while mental health laws have been reformed to comply with a human rights framework, a number of inquiries have indicated that there is still a pressing need for better accountability and for significantly more resources to support mental health services. Most significantly, the system of mandatory detention of “unlawful non-citizens” in Australia has raised serious concerns about the lack of adequate mental health services for detainees. This paper will critically examine contemporary Australian mental health policy and practice in terms of human rights principles. It will outline how the wrongful detention of Cornelia Rau, an Australian resident of German origin with a history of mental illness, and the cases of two Iranian men, “S” and “M” have highlighted problems with the intersection between mental health services and mandatory detention. It will consider what action is necessary to lessen the gap between legislation and implementing human rights in the light of the recommendations of the Palmer Report into the detention of Cornelia Rau and the Senate Inquiry into mental health issues.

Bio: Professor McSherry holds the Louis Waller Chair of Law at Monash University and is the Associate Dean (Research) for the Monash Law Faculty. She is also a legal member of the Mental Health Review Board of Victoria and the Psychosurgery Review Board of Victoria. Professor McSherry has honours degrees in Arts and Law and a Masters of Law from the University of Melbourne, a PhD from York University, Canada and a Graduate Diploma in Psychology from Monash University. Professor McSherry has written extensively in the areas of mental health law and criminal law and is the co-author of the books Principles of Criminal Law (Sydney: Thomson LBC, 2005, 2^nd edition) with Simon Bronitt and Australian Criminal Laws: Critical Perspectives (Melbourne: OUP, 2004) with Bronwyn Naylor. She is currently involved in a number of research projects analysing mental health law and human rights, preventive detention regimes and terrorism related offences. She is a Past President of the Australian and New Zealand Association of Psychiatry, Psychology and Law (Victorian Branch) and a member of the International Association of Forensic Mental Health Services, the International Academy of Law and Mental Health and the International Criminal Law Network. Professor McSherry is the co-editor of the Legal Issues Column for the Journal of Law and Medicine and is on the editorial boards of Psychiatry, Psychology and Law and Monash Bioethics Review.

Abstract: This paper will investigate the prospects of a remedy based on the Racial Discrimination Act 1975 (Cth) (RDA) following the revelation of significantly lower per capita spending on Indigenous health, housing and education compared to non-Indigenous per capita spending on the same items. Baseline measurements of Commonwealth and Territory government spending on health, housing and education were undertaken for the purpose of a Council of Australian Governments (COAG) trial in the Thamarrurr Region in the Northern Territory.  The results, published in 2005, were surprising. Government spending per capita on health, housing and education in the Thamarrurr Region, with a largely Indigenous population, was significantly less than in comparable regions with a largely non-Indigenous population. The RDA makes it unlawful to engage in an act that is based on race and which has the effect of impairing the enjoyment of a human right. Is (comparative) government underinvestment “an act”? Is it an act “based on race”? Does the underinvestment impugn a “human right”? What about “indirect discrimination”? The prospect of affirmative answers to these questions is doubtful if the analysis of the RDA undertaken by the Federal Court in the recent “stolen wages” (Baird v State of Queensland [2005] FCA 495 is not disturbed on appeal. The paper will suggest that, having regard to the text and purpose of the RDA, an appeal in Baird’s case enjoys reasonable prospects of success.

Bio: Martin Flynn has been a Senior Lecturer at the University of Western Australia since 1998. His teaching and research interests are in the areas of discrimination law, human rights law and criminal law. He has undertaken pro bono and legal aid work on Indigenous legal issues and criminal law issues.

Abstract: Australia has a wide range of obligations under international law concerning the rights of workers. They derive from the two main United Nations Covenants, and various conventions of the International Labour Organisation (ILO). Since the advent of the Workplace Relations Act 1996 (Cth), the ILO has been critical of aspects of Australia's federal labour laws, including in particular its regulation of the right to strike. In this paper I consider whether Australia's new labour law dispensation takes us closer to or further from compliance with our obligations at international law.

Bio: Colin Fenwick is a graduate of the University of Melbourne and of the University of Virginia with more than fifteen years’ experience in the field of labour relations law in Australia, the United States and Switzerland.  He has worked as a prosecutor of workplace health and safety crimes; in international labour standards and human rights law; and as a Labour Law and Labour Relations Specialist for the International Labour Office in Geneva.  His research interests lie in international and comparative labour law, particularly South Africa, and in developing human rights approaches to the promotion and enforcement of international labour standards.

Abstract: The ACT Human Rights Act 2004 came into operation on 1 July 2004.  There are some important lessons and experiences arising from its implementation, especially in Victoria where the government is considering the Human Rights Consultation Committee's Report.  Some important issues that the Human Rights Commissioner has initiated include conducting a systemic human rights audit of a juvenile detention centre, intervening in the Supreme Court when a party sought a Declaration of Incompatibility, and convening a regular Human Rights Community Forum.  The ACT Attorney-General has also sought advice on issues ranging from anti-terrorism measures to detention of remandees.  The mechanisms for scrutinishing new legislation have been interesting, particularly in respect of an amendment enabling emergency electro-convulsive therapy for people under involuntary mental health orders.  Education programs and other effective means to involve the community, such as the Annual Human Rights Art Award for primary school students, are crucial to developing a human rights culture.

Bio: Dr Watchirs has over twenty years experience as a human rights lawyer working for Federal government agencies in Australia, and as an employee, consultant and expert to several United Nations agencies in Geneva, including the Joint UN Programme on HIV/AIDS (UNAIDS), the World Health Organization (WHO), the International Labour Organization, the UN Development Programme and the Office of the High Commissioner for Human Rights.  She has performed consultancy work for the Australian National Council on AIDS, Hepatitis C and Related Diseases, AusAID, the Australian Health Ministers' Advisory Council and the National Mental Health Council of Australia. She has also served as an expert to the UK Department for International Development and the Caribbean Community. 

Abstract: The ongoing process for considering a Bill of Rights for Victoria has raised the issue of whether, and to what extent, such human rights instruments should provide protection against poverty.   The most direct way to provide protection against poverty is to guarantee people's social and economic rights, such as rights to adequate housing, social assistance and healthcare.   In framing the debate over a Victorian Bill of Rights, the government's Statement of Intent precludes inclusion of social and economic rights.  Instead, the government focuses attention on guaranteeing civil and political rights, like the rights to equality and a fair trial.  In doing so, however, the government contends that the interests of the poor will still be served because the poor are often the people most in need of civil and political rights protection.  While this may be so, experience under the Canadian Charter of Rights and Freedoms, which has been predominantly interpreted and applied as a civil and political rights instrument, suggests that the poor can expect to face a variety of doctrinal and procedural barriers to advancing their interests under a Victorian Bill of Rights.  In this presentation I identify and explain some of the barriers that have arisen in the Canadian context and suggest means by which they might be addressed.

Bio: David Wiseman is a graduate and past faculty member of the Faculty of Law at Monash University.  Now living in Canada, David is an Assistant Professor in the Faculty of Law at the University of Windsor, where he teaches in Property Law, Access to Justice and Constitutional Law.  His primary research focus is the legal protection of social and economic human rights in international law and under the Canadian Charter of Rights and Freedoms.  In addition to publishing research on those topics, David has assisted in community-based social and economic rights claiming at United Nations human rights treaty monitoring bodies and in Canadian courts.   He is also a member of a community-university research alliance undertaking a multi-year, research council-funded, study of ways to improve accountability to social rights norms in Canada.