2013 Speakers

Dr Murray Wesson, Lecturer Western Sydney University

Bio:Murray Wesson holds degrees from the Universities of KwaZulu-Natal and Oxford. He was previously a lecturer at the School of Law, University of Leeds, and has also been a visiting lecturer at the Central European University in Budapest and the Law Institute in Jersey. His research interests are in the areas of constitutional and human rights law.

Title: Constitutional Law and Social Justice

Abstract: In A Theory of Justice, John Rawls draws an influential distinction between two principles of social justice. Firstly: 'Each person is to have an equal right to the most extensive total system of equal basic liberties compatible with a similar system of liberty for all.' Secondly: 'Social and economic inequalities are to be arranged so that they are both (a) to the greatest benefit of the least advantaged, consistent with the just savings principle, and (b) attached to offices and positions open to all under conditions of fair equality of opportunity.' Rawls goes on to argue that the former principle should be constitutionally protected, whereas the latter should be pursued through the political process. This view of constitutional rights as imposing a limited set of negative obligations on the state is familiar and has historically underpinned many bills of rights. However, it has also rapidly been eroded as constitutions seek to impose increasingly far-reaching obligations on the state to realise a fuller version of social justice. This paper seeks to gain a historical perspective on this development, and also to identify the key conceptual and practical problems that are raised.

Dr Stephen Janes, Deputy Dean of Law School, Western Sydney University

Bio: Dr Stephen Janes BEc LLB (Hons) PhD (Syd) was admitted as a Barrister in 1991 and practised in Commercial, Equity and Succession law having previously practised as a Solicitor. In 2005 Dr Janes was awarded a PhD by the University of Sydney for a thesis on an aspect of Succession Law. He is also Deputy Dean at Western Sydney University lecturing in Wills and Succession.Dr Janes is a co-author of the forthcoming title Wills, Probate and Administration Law in New South Wales, Second Edition. He has also authored the chapters on Wills and Probate in New South Wales Court Forms Precedents and Pleadings. Dr Janes is a contributor to Halsbury's Laws of Australia on intestate succession.He is also a member of the Law Society Wills and Estates Specialist Accreditation Committee.

Title: Representational Conduct and Testamentary Succession

Abstract: It is not unknown for testators, particularly the elderly, to represent how they will exercise their testamentary freedom in a manner which in some cases allows the person a degree of influence over one who is hoping to benefit. To what extent can statements concerning the possible disposition of one's testamentary bounty actually bind the estate after death? The law has long recognised that statements concerning testamentary dispositions may amount to a contract including a mutual will which will have ramifications both in law and equity. Even in such situations where a representation may constitute a testamentary contract or mutual will the position may be fraught with difficulty. But what of representations that do not amount to a contract? Can a person to whom a testator has made a representation about what they might leave in their will enforce that representation after the testator's death and to the detriment of the named beneficiaries? If so in what circumstances can a testator be estopped from leaving their property as they choose? The courts in the United Kingdom and Australia have recently had to consider estoppel in relation to testamentary succession.

Abdul Awal Khan (Western Sydney University PhD Student) 

Bio: Abdul Awal Khan has been completing a PhD at Western Sydney University School of Law since March 2011 as an International Postgraduate Research Scholar. His PhD topic is on the 'Impact of Climate Change on Human Rights of the Displaced People: Bangladesh Perspective'. Before joining Western Sydney University, Abdul Awal Khan was an Assistant Professor in the Department of Law, International Islamic University Chittagong and Manarat International University, Dhaka, Bangladesh

Title: Climate Change and Its Impact on Human Rights: A Study on the Displaced People in Bangladesh

Abstract: Climate change embraces all aspects of human endeavour including human rights and environmental security. It poses an unprecedented challenge to the enforcement of human rights as well. The greatest impact of climate change has been observed as human displacement. Although climate change impacts everyone, displaced people are the most affected from this phenomenon: When people are displaced from their habitual place, severe human rights violations are observed. Their right to life significantly declines if the displaced people are not properly protected.

Climate change has caused huge displacement every year in Bangladesh. As a consequence, this country is now treated as one of the most climate vulnerable countries in the world due to the geographical position and overall situation of the country. Moreover, the legal rights of climate displaced people are not protected by the Bangladesh legal system. Accordingly, this paper aims to compile the nexus between climate change and the problem of displacement from a human rights perspective in Bangladesh. This paper highlights the major human rights which are usually violated due to the adverse impact of climate change. It further argues for the introduction a comprehensive legal regime for the protection of climate displaced people in Bangladesh.

Professor Lee Godden, University of Melbourne

Bio: Professor Lee Godden is Director of the Centre for Resources, Energy and Environmental Law at Melbourne Law School. Her research covers environmental law and governance, comparative climate law, property law theory, water law and indigenous peoples' land and resource rights. Her work is interdisciplinary in nature drawing on both jurisprudential insights and disciplines such as sociology to explore how law co-evolves in keeping with a range of social cultural and environmental phenomena. Recent publications include: Zahar, A., Godden, L., Peel, J., Australian Climate Law in Global Context, (2012); 'Climate Change: Exploring the Intersection of Public International Law and the Reflexivity of Modern Environmental Law' in K. Rubenstein and B. Jessup (eds), Connecting International Law with Public Law, Series 3, (2012) and 'Legal Frameworks for Local Adaptation in Australia: Water Governance in a Climate Change Era' in B Richardson (ed); Local Climate Change Law: The Role of Local Governments, 2012.

Tile: Vulnerability and Resilience: The State, the Subject and the Law in a climate change world

Abstract: Climate Change has reoriented many facets of the relationship between the individual subject and the state. Increasingly it is recognised that adapting to the already changed and ever-changing climate is a current and not just a future imperative for law and policy. Governments responding to this new policy imperative have generally seen the task of the public sector as one of strategic planning and information provision while the private sector is the main realm of agency and action. However such a division of responsibility ignores central shifts in the nature of the state and governance over time. Accordingly, this paper explores how designations such as 'vulnerability' and 'resilience' have reshaped the nature of the understanding of the citizen in a climate change world. It provides case studies drawn from ongoing research on climate risk adaptation and the associated changes in legal, regulatory and institutional forms.

Emeritus Professor David Farrier, University of Wollongong

Bio: David Farrier is Emeritus Professor of Law at the University of Wollongong, NSW, Australia. In 2002, he was made a lifetime Honorary Fellow of the Planning Institute of Australia for his work on the Environmental Law Handbook: Planning and Land Use in New South Wales, now in its 5^th edition. He is an environmental/natural resources lawyer with expertise in the design of appropriate policy instruments for nature conservation on private land, exploring the continuum of available policy instruments, ranging from commmand and control regulation at one extreme to voluntarism at the other.. His particular passion lies in fostering collaborations between lawyers and ecologists to develop appropriate policy responses in relation to nature conservation. He has received large grants from the Australian Reseach Council to carry out research on the implementation of international nature conservation law in Australia and on intersections between science and law in the context of threatened species legislation (the latter in collaboration with a senior ecologist).

He has worked extensively with government agencies. In the past he has chaired the Southern Water Management Committee, and was a member of the NSW Water Advisory Council, the NSW National Parks and Wildlife Service, Visions for the New Millenium Review Steering Committee and the NSW Expert Working Group on Ecologically Sustainable Forest Management.

Title: The Implications of Conserving Biologicial Diversity: Legal Instruments for Managing Nature on Private Land

Abstract:With the conservation of biological diversity now recognised as the principal reason for conserving nature, the underpinning science is undermining, at both an international level and within Australia, the distinction traditionally drawn between protected areas, such as national parks, and the unprotected landscape beyond. The classical paradigm of a protected area was concerned with the protection from non-recreational human use of often isolated areas of land owned and managed by governments. In Australia, a new paradigm is emerging, with an increasing proportion of the National Reserve System located on land owned by indigenous people and non-government organisations, as government strives to meet the targets set by its commitment to the development of a Comprehensive, Adequate and Representative protected area system without compulsorily purchasing land itself. At the same time connectivity conservation has evolved from a localised concern with connecting fragmented landscapes through the establishment of linear corridors to a significant conservation movement. Its objective is to maintain the functional integrity of natural ecosystems and ecosystem processes by facilitating species movement and other ecological flows, emphasising the ecosystem goods and services provided by the natural environment and the need to respond to the impact of climate change on nature. A particular concern is to link protected areas.

The IUCN Environmental Law Centre in Bonn has been working on a project funded by the German government dealing with legal aspects of connectivity conservation in which I was primarily responsible for looking at policy instruments relating to private land management as well as governance issues. My paper will draw on this material, and also a case study of the Great Eastern Ranges, a connectivity conservation initiative along the east coast of Australia, looking at how the policy instruments are used in practice (also prepared for the IUCN project, in collaboration with Melissa Harvey).

John Juriansz, Lecturer Western Sydney University

Bio: John joined the faculty of the Western Sydney University, School of Law in 2006 where he is the Director Academic Program for the LLB and Unit Coordinator for Remedies and Moot Court. John's current area of research concerns the legal framework for representative democracy and the implications of population change for institutional practices regarding electoral redistribution. Prior to joining Western Sydney University, John was a Senior Lawyer at Gilbert + Tobin Lawyers where he engaged in the practice areas of Commercial Litigation and White Collar Crime (2005-2006). Between 2001 and 2005, John was a Solicitor at Mallesons Stephen Jaques where he practiced in the areas of Dispute Resolution and Mergers & Acquisitions. In 2003, John was seconded to MLC Limited in the capacity of general legal counsel. From 2005 to 2006, John was a Committee Member of the Litigation, Law & Practice Committee of the Law Society of New South Wales. In 2001, John was an intern at the Australian Law Reform Commission where he was engaged in the drafting of Report 92 (The Judicial Power of the Commonwealth: A Review of the Judiciary Act 1903 and Related Legislation).

Title: The Transformation of Australia's Electoral Boundaries

Abstract: An examination of the evolution of the law of electoral redistribution in Australia from federation to the present demonstrates that it is the legislature that has driven the majority of the reforms and that the judiciary, in determining electoral issues, has avoided dealing with issues of electoral redistribution as well as electoral and political equality. The High Court of Australia has eschewed a role for itself in setting qualitative limits beyond the requirements of direct, popular elections and has indicated that the federal legislature possesses considerable latitude to amend the Commonwealth Electoral Act 1918 (Cth) to further depart from the concept of 'one vote one value'. In doing so, it has left to the legislature such issues as whether a diminishing popular tolerance of electoral inequality and the redistribution provisions in the Commonwealth Electoral Act 1918 (Cth) were consistent with the notion of representative democracy.

Dr Sarah Wilks, Research Fellow Western Sydney University

Bio: 

Sarah Wilks has a background in Envronmental Sciences and Management.  Her research interests include animal welfare, early Antarctic exploration and the social dimensions of conservation biology.

 Title: How Attitutudes Towards Animals Affect Animal Welfare Outcomes.

Abstract: Animal welfare legislation provides for a variety of welfare outcomes and substantial disparities can occur both between and within species. Using an exemplar species, the range of welfare outcomes that an animal could experience will be examined and it will be shown how these different outcomes are dependent upon the 'use' of the individual animal. This 'end-use' approach to animal welfare is illogical and open to challenge, and is undesirable from an animal welfare perspective.

The adequacy of current animal welfare provisions, and the acceptability of multiple welfare standards, are contested areas. Community expectations are difficult to gauge and highly complex. Key factors are gender, knowledge about the animal's treatment, and the 'appeal' of the species concerned. Attitudes towards an animal are crucial in determining what is thought to be appropriate treatment. Moreover, attitudes towards a particular species can vary according to the context the animal is in (eg a pest or a pet).

In this project, the degree of 'fit' between community attitudes and prevailing governance of animal welfare has been explored.

Liesel Spencer, Associate Lecturer Western Sydney University

Bio: Liesel Spencer joined the School of Law at Western Sydney University in 2007. Prior to joining the school, she spent two years as a sessional law lecturer with Western Sydney University, the University of Sydney, and the University of Wollongong. Her working history also includes positions in legal publishing with Law Book Company (now Thompson), as a commercial litigation paralegal, and in journalism. Her current scholarship is in the intersection between the local government law, public health law and urban planning disciplines. She is writing a PhD thesis on the use of local government law for sustainable public health. She also publishes in the area of legal education, on the use of exemplars and on motivating law students to engage in reading.

Title: Cuban legal structures facilitating urban agriculture: adaptation for the New South Wales local government context

Abstract: Local councils in New South Wales have multiple priorities and limited resources. Public health and environmental health are significant areas councils have to take into account in the exercise of their planning, policy-making, expenditure and regulatory functions. The emerging theory of 'cobenefits', suggests that local councils can better reconcile priorities within resource constraints, by exercising functions in ways that acknowledge the interdependency of human health and ecological health. The urban agriculture ('city farming') model, developed in Cuba as a response to the 1990s economic crisis, has had positive impacts on Cuban public health and environmental health. By internationally recognised measures, Cuba is a model of sustainability. Cuba's low ecological footprint per person, low infant mortality and high life expectancy, are an anomalous combination in the developed world. These public health outcomes have been achieved with much lower public health expenditure per capita than is the case in New South Wales. Local councils in New South Wales, in planning for public health and environmental health (and planning for climate change mitigation and post peak-oil economies) can adapt and apply the Cuban model of urban agriculture to suit New South Wales local government legal structures. This paper proposes ways in which the legal structures supporting the Cuban model (including the Organopónicos, Unidades Basicas de Producción Cooperativas, and Mercados Agropecuarios) can be modified and translated to the New South Wales context.

Dr Shelley Bielefeld, Lecturer Western Sydney University  

Bio: Dr Shelley Bielefeld is a graduate of the School of Law and Justice at Southern Cross University. She has a keen interest in social justice and a particular interest in the area of race and the law. Her PhD, entitled 'The Dehumanising Violence of Racism – The Role of Law', has focused on exercises of parliamentary power resulting in adverse effects for groups targeted on the basis of race. Shelley worked as an academic at Southern Cross University at the School of Law and Justice from February 2003 until August 2011 and then took up a Lecturer position at the School of Law at Western Sydney University. Her most recent publications are in the area of social justice issues affecting Indigenous Australians.

Title: History Wars and Stronger Future Laws: A Stronger Future or Perpetuating Past Paternalism? 

Abstract: In recent decades there has been significant controversy over Australia's history and how that history should be interpreted. For much of Australia's history, the dominant view focused upon celebratory accounts of pioneering settlers and brave explorers who managed to tame a wild continent through agrarian and other commercial enterprises. Revisionist historians such as Henry Reynolds have played a central role in awakening the public to a different version of history. Reynolds and others have highlighted the savage treatment meted out by those of European origin to Australia's Indigenous peoples. These revisionist views of history met with a substantial conservative backlash. Conservative historians such as Geoffrey Blainey and Keith Windschuttle offered countering perspectives which have been labelled 'new right' history. The debate over the history wars is of central importance in defining whose voices should be privileged and whose should be marginalised within the national historical narrative. The history wars play a significant role in Australia's colonial discourse and have an ongoing impact upon Indigenous Australians. The debate over the history wars is of central importance in justifying the direction of contemporary laws and policies. New right perspectives dominated the Howard era. The dominance of new right historical perspectives was in part responsible for the development of the Intervention laws and policies of the Federal Government in 2007 which have affected Indigenous people living in the Northern Territory. This paper will explore the relationship between the history wars and the government's recent Stronger Futures legislation enacted in June 2012.

Bill Madden, Western Sydney University Adjunct Fellow and the National Practice Group Leader (Medical Law) for Slater & Gordon Lawyers

Bio:

Bill Madden is an Adjunct Fellow with Western Sydney University School of Law and the National Practice Group Leader (Medical Law) for Slater & Gordon Lawyers. He is the co-author of the books Health Care & the Law (Thomson Reuters) and Australian Medical Liability (Lexis Nexis) and an editorial board member for Australian Civil Liability & Australian Health Law Bulletin (both published by Lexis Nexis).

Title: Medical law & litigation challenges: Consent by parents for children for procedures with no clinical benefit.

Abstract: The law has generally recognised the consent of a parent for a child's medical procedures, save for a need for court approval for some major procedures. Recent developments overseas and in Australia have highlighted some unresolved issues regarding procedures with no clinical benefit but for cultural reasons - male & female circumcision. Is the law in Australia clear, well directed and does it adequately respond to diverse cultural backgrounds?

Dr Vicky Comino, Senior Lecturer, University of QLD 

Bio: Dr Vicky Comino is a Lecturer at The University of Queensland. She holds the degrees of BA, LLB (Hons), LLM and PhD (UQ). Dr Comino now principally teaches corporations law, which is also her main research area. Previously, she taught a variety of subjects in an academic career spanning over twenty years, ranging from first to final year subjects. Before commencing an academic career at the Law School, she practised as a solicitor working at Morris Fletcher & Cross (now Minter Ellison Lawyers) in the fields of corporate law, leasing, commercial and residential conveyancing, strata development, securities and opinion work. Over the years, Dr Comino has also done voluntary work for Legal Aid, South Brisbane Immigration & Community Legal Service, Women's Equal Opportunity (WEO) and Justice and the Law Society (JATL) (UQ). She has also served on numerous committees, most recently on the Queensland Law Society Business Law Specialist Accreditation Advisory Committee.

Her most recent publications have arisen out of her doctoral thesis, Australian Corporate Regulation: Theory and Practice – the Australian Securities and Investments Commission and the Regulation of Corporate Misconduct, which focus on exploring how, and to what extent, ASIC in its role as corporate regulator can achieve more effective regulation of the corporations legislation. Having completed her PhD, for which Dr Comino was awarded a Dean's Award in Research Higher Degree Excellence in 2011, she now has the opportunity to expand her contribution to the scholarship in the corporations law field.

Title: The Australian Securities and Investments Commission and the Problems of the Civil Penalties Regime

Abstract:It has been 20 years since the civil penalty regime, currently

contained in Pt 9.4B of the Corporations Act 2001 (Cth), came into operation. The regime was introduced with the expectation that ASIC would be able to deal with corporate misconduct more effectively than under the previous criminal law regime. This is due to ASIC having the advantage of civil rules of evidence and procedure in civil penalty proceedings rather than the limitations of criminal rules of evidence and procedure (s 1317L). In recent years, ASIC has had some success in using the civil penalty regime against directors in high profile cases. However, this paper argues that ASIC's ability to continue to use the regime effectively is being undermined by a number of factors. Principal amongst them is the courts' treatment of civil penalties as quasi-criminal offences. While it is true that a civil penalty case is a civil action that may result in the imposition of penalties on the defendant so that courts have shown particular regard for the rights of defendants in such cases, it seems that they have lost sight of the fact that civil penalties are also concerned with pubic wrongs and moral culpability and that they have an important deterrent function to play. This is most evident in the low penalties recently imposed on the directors in the notorious James Hardie matter. Further evidence that ASIC's major enforcement efforts are being impeded is ASIC's defeat in October 2012 in the high profile case against Fortescue Metals and its chairman and former CEO, Andrew Forrest, for misleading and deceptive conduct over statements made to the market in 2004 that a deal struck with Chinese State-owned entities involved 'binding contracts'. In holding that Fortescue Metals and Forrest had no case to answer, the High Court of Australia in Forrest v Australian Securities and Investments Commission found that ASIC failed in its pleadings to clearly identify the case which it was seeking to make against the defendants, undermining their right to a fair trial. The ideal solution remains the enactment of legislation to resolve the procedural obstacles facing the use of civil penalties. If this occurred, ASIC would be better placed to implement Parliament's aim and be a more effective regulator.

Dr Zhiqiong June Wang, Lecturer Western Sydney University

Bio: Zhiqiong June Wang joined the School of Law at the Western Sydney University as a lecturer in January 2010. She has an LLM from the University of Sydney (2003) and a PhD from the University of New South Wales (2010). June formerly worked as a lawyer in Beijing specialising in foreign investment law, international trade regulation and intellectual property law. Her research areas are Chinese law, International Trade Regulation and Comparative Law.

Title: The Evolution of Franchising in the Chinese Courts:The Qualifications for a Franchisor and the Application of the Disclosure Requirements by the Courts

Abstract: Franchising, a business concept

developed in the US in 1950s has captured the opportunity to develop in China since 1990s. With the introduction of franchise specific laws in China, franchising posted challenges for judges in China. Notwithstanding the original 1997 Interim Franchise Measures and the 2005 WTO compliant Measures, the number of franchise disputes brought before the courts was comparatively low. But since the coming into force of the State Council Commercial Franchise Administration Regulation in 2007, the volume of franchise cases has steadily risen.

The franchise cases in China suggested that in the early years the primary focus of the judges was whether the franchisor met the qualifications of a franchisor as set out in the law. If not the franchise agreement was held invalid. This approach has now given way to less focus on whether the franchisor has met the qualifications, and more focus on whether any disclosure document was provided, and whether in such disclosure document the deficiencies in the qualifications were revealed. In other words rather than having the courts make an administrative decision as to whether a corporation has the qualifications to be a franchisor, the courts now make a decision as to whether the contract was properly and fairly formed by the making of the required disclosures.

This paper examines the evolution in the way the Chinese courts have handled franchise disputes. It firstly compares the provisions of the 2005 Measures and the 2007 Regulation. It also briefly discussed how the Chinese law is similar to or different from the specific laws in other countries. It analyses the decision of the selected cases in the Beijing courts and discuss the change of interpretation of law by the courts.

Thilla Rajaretnam, Associate Lecturer Western Sydney University

Bio:Thilla is an associate lecturer with Western Sydney University School of Law. She teaches business law and her research focus is on online data collection and privacy issues, electronic commerce (e-commerce) and mobile commerce (m-commerce) law, and the international and Australian regulation for information privacy and data security protection. Thilla has submitted a thesis entitled 'The Regulation of Information Privacy Protection in Electronic Commerce (E-commerce) in Australia'.

Title: Implementing Ethical Principles in Medical Data Mining: Ethical and Regulatory Considerations Related to Privacy and Confidentiality in Medical Data

Abstract: Application of data mining techniques for healthcare related data is rewarding to medical research. It is mandatory to obtain ethical and legal clearance from Institutional Ethics Review committees before using data mining tools in health care research. Ethical considerations while practicing data mining undermine the confidentiality of medical data. The lack of domain knowledge within healthcare providers requires active collaboration between the medical practitioner and the data miner. Profiling techniques, data mining or knowledge discovery in data bases raise ethical concerns related to consent and confidentiality medical data. This article offers some ethical and legal perspectives on the question of the right to know and not to know medical data. It examines the proposed reforms to the handling of health information in Australian and the recommendations by the Australian Law Reform Commission.

Professor Steven Freeland, Western Sydney University

Bio: Steven Freeland is Professor of International Law at the  Western Sydney University, Australia, where he teaches both postgraduate and undergraduate students in International Criminal Law, Public International Law, Human Rights Law, Commercial Aspects of Space Law, and International Moot Court. He is also Co-Director of Research and HDR at the School of Law, and coordinator of the School's International Law Mooting Program.

He is a Visiting Professor in International Law at the University of Copenhagen, Denmark and at the University of Vienna, Austria, a Permanent Visiting Professor at the iCourts Centre of Excellence for International Courts, Denmark, a Member of Faculty of the London Institute of Space Policy and Law, and an Expert Assessor of Research Proposals to the Australian Research Council, Australia and the Netherlands Organisation for Scientific Research. He has taught courses and presented guest lectures at Universities in The Netherlands, Austria, Italy, Germany, Estonia, Bulgaria, United Kingdom, New Zealand, Denmark, United States, Australia, Turkey, France and Singapore.

Among other appointments, he is a member of the Advisory Board of the US-based Global Institute for the Prevention of Aggression, a member of the Space Law Committee of the London-based International Law Association, a Director and member of the Directorate of Studies of the Paris-based International Institute of Space Law, a member of the Australian and New Zealand Society of International Law and a Fellow of the Tim Fischer Centre for Global Trade and Finance.

Title: Space, Technology and the Challenges they pose for International Humanitarian Law

Abstract:The presentation will discuss the challenges to the well-established principles of International Humanitarian Law (jus in bello) posed by the development of new weapons technology and means of conducting armed conflict (drones, robotics, automated weapons systems, space technology etc), and then focus on how those principles might be applied to the use of satellite technology and space-related weapons systems in warfare.