https://hdl.handle.net/2123/3997 2021-02-25T00:50:54Z 2021-02-25T00:50:54Z van Rijswijk, Honni https://hdl.handle.net/2123/4044 2009-02-10T11:39:31Z 2008-12-10T00:00:00Z

The Poetics and Politics of Past Injuries: Claiming in Reparations Law and in Toni Morrison's novel Beloved van Rijswijk, Honni Why is there such a discrepancy between legal time and historical time? Or rather, whose historical time is tacitly represented and silently justified in legal representations? Whose interests are served by the law’s particular fictions and whose injuries are privileged? In exploring these questions I will focus on the 2006 case of In re African- American Slave Descendants, a claim made for reparations for slavery in the U.S. Since the 1980s a number of litigants have filed claims for injuries arising out of slavery and none has succeeded, but these very failures are worth examining for what they reveal about the contemporary inability to reconcile the demands of the past on the present. Throughout the twentieth century, historians challenged the idea that we have transparent access to historical truths, which has obvious implications for the status of the legal text; and yet the law itself has remained largely untouched by these insights. However, I argue that reparations cases can be read as theorising a new relationship between law and history, and as interventions in the law’s logic of time. Reparations claims intercept legal logic in at least two important ways: first, by insisting on the continuing damage of slavery, the claims defy positivist representations of history and time; and second, in their reliance on the legal fiction of corporate identity across time, these cases allude to the interconnected history of the fictions of corporate and slave identities, and potentially rework these fictions in the direction of social justice.

2008-12-10T00:00:00Z Goldblatt, Beth https://hdl.handle.net/2123/4043 2009-02-10T11:39:32Z 2008-12-11T00:00:00Z

Different Routes to Relationship Recognition Reform: A Comparative Discussion of South Africa and Australia Goldblatt, Beth Relationship recognition has profound implications for the dignity, equality and property rights of disadvantaged groups. The paper will consider the often intertwined interests of women and gay men and lesbians in relationship recognition reform. It will also address situations where these interests sometimes diverge depending on how the reform debate is framed. It will compare South Africa’s recognition of same- sex marriage and its failure to protect the rights of domestic partners with recent proposals in Australia to remove discrimination against gay and lesbian couples and their children in federal legislation. The paper will focus on the varied roles played by law reform bodies, legislators and the courts in these two separate processes as well as touching on the approaches of some of the social movements in lobbying for changes. It will conclude with the caution that relationship recognition through law must challenge conservative legal and social categories if the rights and interests of people in choosing the forms of family appropriate for them are to be advanced.

2008-12-11T00:00:00Z Lambourne, Wendy https://hdl.handle.net/2123/4042 2009-02-10T11:39:33Z 2008-12-11T00:00:00Z

The Khmer Rouge Tribunal: Justice for Genocide in Cambodia? Lambourne, Wendy After 30 years a tribunal has finally been established to try those responsible for the mass human rights violations perpetrated against the Cambodian people by the former Khmer Rouge regime. Popularly known as the Khmer Rouge Tribunal (KRT), the Extraordinary Chambers of the Criminal Court of Cambodia (ECCC) is one of the first so-called ‘hybrid’ tribunals to be established by the United Nations in collaboration with local courts to try international crimes such as genocide. This paper will assess the KRT as a transitional justice mechanism in terms of its ability to provide Cambodians with a sense of justice for the past as well as its potential impact on human rights and justice in Cambodia in the future. The cultural specificity and local conflict conditions that affect responses to different types of transitional justice approaches will be interrogated, asking who chose this mechanism and how does it meet the needs and expectations of Cambodians.

2008-12-11T00:00:00Z Renshaw, Catherine https://hdl.handle.net/2123/4045 2009-02-10T11:39:34Z 2008-12-10T00:00:00Z

The Globalisation Paradox and the Implementation of International Human Rights: the Function of Transnational Networks in Combating Human Trafficking in the ASEAN Region Renshaw, Catherine In A New World Order, Anne-Marie Slaughter describes the “globalisation paradox” as “the need for global institutions to solve collective problems that can only be addressed on a global scale” juxtaposed with “the infeasibility and undesirability” of world government and its concomitant threat to individual liberty (Slaughter, 2004). Slaughter’s solution – and the solution offered by a number of scholars in the neo-liberal tradition – is governance via transnational networks of national government actors. It is both a descriptive and a prescriptive programme for a new world order. Neoliberals envisage the aggregate elements of the state – regulators, legislators, judges – interacting with their foreign counterparts in a decentralized and dispersed way to conduct the business of global governance. This paper explores the application of global network theory in the field of human rights. In particular, it focuses on the work of a regional network of national human rights institutions, the Asia Pacific Forum of National Human Rights Institutions (APF). Since 1996, the APF has promoted regional cooperation on human rights issues by providing a forum for the region’s national human rights institutions (NHRIs) to share expertise and information on best practice, to undertake joint projects and to develop joint positions on issues of common concern. I examine the APF’s function in relation to the issue of human trafficking as an example of the interactive dynamic generated by and between network members in their efforts to address this transnational human rights issue.

2008-12-10T00:00:00Z Smith, Belinda https://hdl.handle.net/2123/4006 2009-02-09T23:19:54Z 2008-12-11T00:00:00Z

Models of Anti-Discrimination Laws – Does Canada offer any lessons for the reform of Australia’s laws? Smith, Belinda Looking around the world, there are various models that have been used in the design of antidiscrimination laws. In this paper I compare the model used by Canada, which has a reputation for being a leader in addressing inequality, and the model used in Australia which has come to be seen as an international laggard. Canada’s open model provides much discretion to the courts to identify what constitutes discrimination and legitimate justifications. With this scope for interpretation the courts are free to establish principles and, importantly, also to revise them over time as society changes. Australia, on the other hand, chose a more closed model, precisely defining a formula for direct discrimination and indirect discrimination, on specific grounds in specific areas, and with specific exceptions. In Australia there is growing evidence of our laws’ limitations and growing interest in legislative reform. In exploring legal reforms, I suggest that we need to consider changing not merely the legislative prescription but also the prescriptiveness of our model. Rewriting the definitions without taking a look at the bigger picture of what role our judges could and should play might help to solve a particular problem but leave us with a regulatory framework that is still ill-equipped to evolve over time. We need to re-examine both the legitimacy and capacity of our courts to take on a greater role in the protection of human rights, and specifically the promotion of substantive equality, in Australia.

2008-12-11T00:00:00Z Larcombe, Wendy https://hdl.handle.net/2123/4004 2009-02-09T23:26:05Z 2008-12-11T00:00:00Z

Rights and Responsibilities of Conscientious Objectors under the Abortion Law Reform Act 2008 (Vic) Larcombe, Wendy The landmark Abortion Law Reform Act 2008 (Vic), which came into force on 23 October 2008, has decriminalised abortion in Victoria. A woman’s informed consent is now the only requirement for a termination of pregnancy up to 24 weeks gestation. After 24 weeks, two medical practitioners must determine that a termination is appropriate in all the circumstances. While this provides health practitioners who perform abortions through either medical or surgical means with the clarity and security they have long sought, health practitioners who object to abortion on grounds of conscience are now in unchartered legal territory. When requested by a patient or client to provide advice on or perform an abortion, s8 of the new Act imposes certain obligations on registered health practitioners who object to abortion on grounds of conscience. The provision has sparked considerable disquiet among Catholic health practitioners and other ‘doctors of conscience’. Critics of the clause claim that, far from protecting the right to freedom of conscience, the clause in effect violates that right. This paper analyses the relevant clause – s8 of the Abortion Law Reform Act – and tests the claim that it infringes the human rights of health practitioners who object to abortion by compelling them to act against their conscience. It argues that the obligations created do not unduly infringe on freedom of conscience because practitioners are able to take simple steps to prevent the obligations arising.

2008-12-11T00:00:00Z Toki, Valmaine https://hdl.handle.net/2123/4005 2009-02-09T23:22:24Z 2008-12-12T00:00:00Z

DO UNIVERSAL HUMAN RIGHTS PROMOTE INDIGENOUS RIGHTS? Toki, Valmaine The Universal Declaration of Human Rights proclaims a common standard of achievement for all peoples and nations. There is no specific reference to Maori or other Indigenous peoples. Recourse for a breach or non recognition of these universal human rights lie within an application to the relevant United Nation bodies. For Maori, there has always been an expectation that the rights and duties will be adhered to. This has not always been the case. Despite respected international human rights bodies finding that the actions of the New Zealand Government towards Maori are discriminatory this has not been heeded. For Pacific peoples, the effects of colonisation and past events suggest that any proposed regional human rights mechanism for the Pacific should be developed through an Indigenous lens. With an Indigenous starting point the mechanism can then draw not only on universal human rights but, more importantly it can also be sourced to core Pacific values. Nevertheless, any human rights mechanism for the Pacific peoples must be a culturally legitimate one to effectively promote and protect Pacific human rights.

2008-12-12T00:00:00Z Houlihan, Annette https://hdl.handle.net/2123/4003 2009-02-09T23:24:17Z 2008-12-12T00:00:00Z

(Ill-Legal) Lust is a battle field: HIV risk, socio-sexuality and criminality Houlihan, Annette This paper examines the criminalisation of HIV infection. HIV transmission offences exist in all Australian states and territories, but the bulk of prosecutions have occurred in Victoria. This paper outlines criminal legal responses to the virus in that state with an overview of the legislation and case law. Victoria has several HIV specific and nonspecific offences which may be applied to situations of HIV infection risk. It is the HIV non-specific offences which have been successfully used to prosecute HIV infection risks. The case law outlines several instances where HIV positive bodies have been charged with offences for placing others at risk of HIV infection. These charges have been applied in several cases regardless of whether the complainants seroconvert. Those charged have been same-sex desiring men or African-born men who engaged in sex with Caucasian women. There are marked differences in the sentences which have been applied to these defendants, which are based on the sexuality of the defendant and complainant. This demonstrates the heterosexist and Eurocentric character of the performance of these laws. These offences do not operate in isolation to sociality, rather this area of law embodies many cultural panics about the Other. HIV transmission offences signal socio-legal panics about sexuality, race/ethnicity and disease, situating certain bodies at greater risk of crimino-legal punishment.

2008-12-12T00:00:00Z Brown, Mark J.F. https://hdl.handle.net/2123/4007 2014-12-15T00:25:47Z 2008-12-11T00:00:00Z

Toward a new economy of suspended rights: sex offenders and post-sentence confinement and control Brown, Mark J.F. Giorgio Agamben has recently described the state of exception as a new ‘paradigm of government’ while Judith Butler writes of ‘the new war prison’ in which terror suspects and other ‘detainees’ face an indefinite detention suspended beyond or outside law. Less remarked upon has been the recent entry into Australian politics of a new penal form: schemes that provide for the post-sentence detention (continued imprisonment) of sex offenders who have completed a finite sentence of imprisonment and who would otherwise be returned to society as free citizens. First introduced in 2003 in Queensland, where such detention may be indefinite, three Australian states now have extended supervision and detention arrangements, while Victoria is currently drafting legislation to add continued detention to its current extended supervision provisions. This paper examines these measures that aim to excise, quarantine or exclude certain categories or groups of people from society through the lens of liberty rights. Particularly significant within the structure of justification for these measures, it will be suggested, is the status of justice rights. The focus of the paper is upon one recent case, Director of Public Prosecutions (WA) v GTR [2008], wherein key movements occurred in an emerging jurisprudence of security and architecture of control.

2008-12-11T00:00:00Z Humphrey, Michael https://hdl.handle.net/2123/4000 2009-02-15T14:32:15Z 2008-12-11T00:00:00Z

'Human Rights Politics & Transitional Justice' Humphrey, Michael This paper explores transitional justice as a way to bring an end to violence and consolidate peace. It approaches transitional justice as an expression of the ‘never again’ consensus to prevent or prosecute crimes against humanity. It explores transitional justice as an expression of globalizing law and the implications this has for the recovery of the ‘rule of law’ and ‘political legitimacy’ in the post conflict state. It takes Robert Meister (2002)’s formulation of the politics of victimhood, revenge and resentment in the relationship between the beneficiaries and the victims of injustice, as remaining at the centre of transitional justice politics in trying to decide on the balance between reconciliation and justice projects. It explores how human rights discourse has been used to de-politicise the ‘victim’ by adopting an individually embodied concept of violence as opposed to a structural one. It argues that transitional justice as an expression of globalizing law has been primarily directed at maintaining peace to achieve closure on past ‘evil’ but that the beneficiary-victim issue has re-emerged in the social justice movements and renewed desire for prosecutions.

2008-12-11T00:00:00Z Haines, Fiona https://hdl.handle.net/2123/4001 2009-02-09T23:25:28Z 2008-12-10T00:00:00Z

Regulation, ‘Red Tape’ and the ‘War on Terror’: Exploring the regulatory aftermath of September 11th Haines, Fiona To date, public debate around human rights and counterterrorism within Australia has focused on changes to criminal law and enforcement that threaten civil liberties. Yet concerns also arise with general security measures concerned with reducing the risk of terrorist attacks at our ports, airports and major infrastructure. New regulatory responsibilities require sites to identify possible methods of attack and to put in place comprehensive risk reduction measures. At ports and airports, tailored security plans, access control regimes, accompanied by screening and monitoring technology, are considered most appropriate to protect both the public and the infrastructure itself. Such measures may well assist in allaying public anxieties about their security from unprovoked and deadly attack. However, this approach is costly and resources used in this way need to be weighed carefully against its effectiveness in increasing security. Despite their initial appeal, security plans and other regulatory initiatives may provide only a limited salve to public anxieties around security. Whilst some level of screening and emergency planning at our ports and airports is appropriate, ever increasing levels of intrusion and resources divert both attention and resources from other initiatives based on tolerance and respect for human integrity that arguably do more to enhance our overall security and wellbeing.

2008-12-10T00:00:00Z George, Allen https://hdl.handle.net/2123/3999 2009-02-09T23:21:37Z 2008-12-11T00:00:00Z

‘Hate Crimes against Lesbians and Gay Men in New South Wales: Accumulated Knowledge of Victimisation via Five Reports’ George, Allen 'Hate crime’ was a term adopted for crimes committed against members of the lesbian and gay community in New South Wales in the 1990s. Acts of violence and harassment against members of this community was not a new discovery, though the application of the term hate crime assisted activist to build and govern through ‘community’ by arguing that this type of crime was different to that experienced by the ‘general’ community. Furthermore, such violence was used as a means to claim the right to be protected from crime. This paper examines lesbian and gay activism around hate crime. In particular it reviews the findings of reports on harassment and violence against members of this community produced in New South Wales by combining various key results from activist and state bureaux surveys into a single data set.

2008-12-11T00:00:00Z Esterling, Shea https://hdl.handle.net/2123/3998 2009-02-09T23:23:10Z 2008-12-12T00:00:00Z

Do We Need Another Human Right? Assessing the Right to the Repatriation of Cultural Property in the United Nations Declaration on the Rights of Indigenous Peoples Esterling, Shea Due to the non-retroactivity of the framework for the protection of cultural property,I ndigenous peoples are left without a claim under international law for the repatriation of a vast bulk of their traditional property. The international community has responded to this situation by developing such a right in the 2007 United Nations Declaration on the Rights of Indigenous Peoples. This article examines this right to repatriation of cultural property as understood in the Declaration through the lenses of both the regimes for the protection of cultural property and the broader human rights framework. Ultimately, it demonstrates it is an unqualified right in that it necessarily fails to balance the interests of the parties involved in cultural property disputes by ignoring the interests of current owners of cultural property. In turn, such an absolute right works an injustice which is out of step with the broader human rights regime. Rather, it is the existing human rights framework that strikes the appropriate balance between Indigenous demands for redress and the broader concerns of justice that permeate this framework.

2008-12-12T00:00:00Z